Berys & Berys
[2022] FedCFamC2F 1162
Federal Circuit and Family Court of Australia
(DIVISION 2)
Berys & Berys [2022] FedCFamC2F 1162
File number(s): SYC 1562 of 2018 Judgment of: JUDGE MORLEY Date of judgment: 5 September 2022 Catchwords: FAMILY LAW – parenting – final orders – best interest of the children - where Father has perpetrated family violence and has anger management issues – where Mother, Father and the ICL each seek different regime of graduated progression of time between Father and children – where Mother is to have sole parental responsibility for the children – where the Father’s time with the children is to be in the presence of an adult known to the children until the Father completes an anger management course and other courses – where unsupervised overnight time with the Father and children is to graduate to the endpoint of four nights each alternate fortnight at graduated intervals from the commencement of time – where certain injunctive orders as sought by the Mother are made – where the ICL’s costs are to be paid by Mother and Father Legislation: Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)
Cases cited: A & A & The Child Representative [1998] FamCA 25
Godfrey & Sanders (2007) FamCA 102
Harridge and Anor & Harridge and Anor [2010] FamCA 445
Johnson & Page [2007] FamCA 1235
M & M (1988) 166 CLR 69
M & S (formerly E) (2007) FLC 93-313
Mazorski & Albright [2007] FamCA 520
McCall & Clark (2009) FLC 93-405
Napier & Hepburn [2006] FamCA 1316
Tait & Densmore (2007) FamCA 1383
W & W (Abuse Allegations: Unacceptable Risk) [2005] FamCA 892
Division: Division 2 Family Law Number of paragraphs: 298 Date of hearing: 10-13 May 2021 Place: Sydney Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: Urban Family Lawyers Counsel for the Respondent: Ms Eldershaw Solicitor for the Respondent: Clinch Long Woodbridge Lawyers Counsel for the Independent Children's Lawyer: Mr Ladopoulos Solicitor for the Independent Children's Lawyer: Legal Aid NSW Bankstown Family Law ORDERS
SYC 1562 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BERYS
Applicant
AND: MS BERYS
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE MORLEY
DATE OF ORDER:
5 SEPTMBER 2022
THE COURT ORDERS THAT:
1.That the Mother has sole parental responsibility for the children X born in 2012 and Y born in 2016 (‘the children’;).
2.That the Mother:
(a)Notify the Father of any proposed decision relation to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)Take into consideration any views expressed by the Father, in writing, about the proposed decision; and
(c)Notify the Father in writing of her final decision about the issue.
3.That the Father forthwith take all necessary steps to enrol in and complete, as soon as possible, the following courses:
(a)"Tuning in to Kids"; and
(b)"Taking Responsibility",
both as provided by C Counsellors, and upon completion provide a copy of a certificate of completion of the course by him to the Mother.
4.That for six (6) months from the date of these orders, or until the Father has completed the parenting and behaviour change courses identified in Orders 3(a) and 3(b), whichever is later, the children spend time with the Father:
(a)On alternate Thursdays from 3.00pm or the conclusion of school or day-care until 6.30pm if it is a school day, or 10.00am until 3.00pm if it is a non-school day, the first such occasion to be 15 September 2022; and
(b)On alternate Sundays from 10.00am until 3.00pm, the first such occasion to be on 11 September 2022.
5.That except as provided by Order 6, the Father’s time with the children pursuant to Order 4, and pursuant to Orders 9 during the pendency of Order 4 only, shall occur in the presence of an adult agreed upon between the parties and known to the children.
6.That if the children attend an extra-curricular activity on the Thursday that they spend time with the Father under order 4(a), the Father shall take the children to the activity and the time need not occur in the presence of another adult as would otherwise be required by order 5.
7.That if the Father wishes to nominate an extra-curricular activity for the children to attend on the Thursday afternoons that the children spend time with him under order 4(a) at his expense, the Mother shall give proper, genuine and realistic consideration to the proposal and not unreasonably withhold her consent to the children being enrolled in the activity.
8.That from the end of the time period specified in order 4, the children spend time with the Father as follows:
(a)For a period of three (3) months:
(i)Each Thursday from 3.00pm or the conclusion of school or day-care until 6.30pm if it is a school day, or 10.00am to 3.00pm if it is a non-school day; and
(ii)On alternate Sundays from 10.00am to 3.00pm.
(b)Then for a period of three (3) months:
(i)Each Thursday from 3.00pm or the conclusion of school or day-care until 6.30pm if it is a school day, or 10.00am to 3.00pm if it is a non-school day; and
(ii)On alternate Sundays from 10.00am to 5.00pm.
(c)Then for a period of six (6) months thereafter:
(i)Each Thursday from 3.00pm or the conclusion of school or day-care until 6.30pm if it is a school day, or 10.00am to 3.00pm if it is a non-school day; and
(ii)Each alternate weekend from 10:00am until 5:00pm on Saturday and from 10:00am until 5:00pm on Sunday.
(d)Then for a period of three (3) months each alternate weekend from 10.00am on Saturday until 5.00pm on Sunday.
(e)Then for a period of three (3) months each alternate weekend from the end of school (or 3.00pm if not a school day) on Friday until 5.00pm on Sunday.
(f)Then for a period of three (3) months each alternate weekend from the end of school (or 3.00pm if not a school day) on Friday until the start of school (or 9.00am if not a school day) on Monday.
(g)Thereafter, each alternate week from the end of school (or 3.00pm if not a school day) on Thursday until the start of school (or 9.00am if not a school day) on Monday.
9.That the children to spend time with the Father as follows:
(a)On Father’s Day from 10am to 5pm, if not otherwise spending time with the father;
(b)On 25 December 2022 from 10.00am until 3.00pm;
(c)On 24 December 2023 from 10.00am until 3.00pm;
(d)From 3.00pm on 25 December until 3.00pm on 26 December in 2024 and each even numbered year thereafter; and
(e)From 3.00pm on 24 December until 3.00pm on 25 December in 2025 and each odd numbered year thereafter.
10.10. That notwithstanding any other order, the children shall be in their Mother’s care:
(a)On Mother’s Day, from 10:00AM until 5:00PM; and
(b)From 3.00pm on 24 December until 3.00pm on 25 December in 2024 and each even numbered year thereafter; and
(c)From 3.00pm on 25 December until 3.00pm on 26 December in 2025 and each odd numbered year thereafter.
11.That until the end of the school holidays at the end of Term 1 in 2024, and provided that the Mother gives the Father at least four (4) weeks written notice, the Mother may suspend the children’s time with the Father for a 14-night block for the purpose of taking the children on a holiday on no more than two (2) occasions in each calendar year. In that event the children shall make-up any suspended Thursdays and Sundays on the Saturdays following the end of the holiday on which the children would not otherwise be in the Father’s care.
12.That from and including the school holidays at the end of Term 2 in 2024 the children’s time with the Father pursuant to order 8 is suspended during all school holidays and the children’s time with the Father under order 8 will resume on the weekend next after the end of school holidays that commenced in an even numbered year and on the weekend second after the end of school holidays that commenced in an odd numbered year.
13.That the children spend time with the Father during school holidays as follows:
(a)During the school holidays at the end of Term 2 in 2024, from 9.00am on the first Monday of the school holidays until 5.00pm on the following Thursday;
(b)During the school holidays at the end of Term 3 in 2024, from 9.00am on the first Monday of the school holidays until 5.00pm on the following Saturday;
(c)During the school holidays at the end of Term 4 in 2024, on a week-about basis during the school holidays, with the children being with the Father from the end of their school attendance for the year for the first week, then with the Mother for the second week, and alternating thereafter; and
(d)Thereafter for one half of each school holiday period with the Father for the first half of school holidays that commence in an even numbered year and the second half of school holidays that commence in an odd numbered year.
14.That except where changeover occurs at the children's school or day-care, or as otherwise agreed, the Father shall collect the children from the Mother's residence at the commencement of the children's time with him and the Mother shall collect the children from the Father's residence at the conclusion of the children's time with him. When conducting changeover, neither party may enter onto the other party's property (that is, they shall not go past the line of the letterbox).
15.That the Mother and the Father are to advise each other as soon as practicable of any significant illness or injury that affects either of the children while in their care, including information about the name and contact details of any health professional providing treatment to the children, and the details of any medication prescribed for them.
16.That, in relation to the children's health care, the Mother is to:
(a)Keep the Father advised of the names and contact details of the children's treating GP and any specialists or allied health practitioners providing treatment to the children,
(b)Authorise such practitioners to speak directly to the Father to provide information about the children's treatment; and
(c)Provide the Father with copies of any reports relating to the children provided by any health care provider.
17.That, in relation to the children’s schooling, each parent is at liberty to:
(a)Directly contact the children's schools to obtain information about their education and wellbeing; and
(b)Obtain copies of documents relating to the children including school reports and newsletters.
18.That the Mother and the Father are each to keep the other advised at all times of their up to date residential address, contact telephone number and email address.
19.That, in relation to the children's schooling, each parent is at liberty to attend school events to which parents are invited, including parent teacher interviews, concerts, sports events and performances, and the Father is to give the Mother at least 48 hours notice in writing of his intention to attend any such event.
20.The Father is restrained from approaching or attempting to communicate with the Mother at any school event referred to in order 19 unless specifically invited to do so by the Mother.
21.That each of the parties is restrained from making comments derogatory of the other parent, any member of the other parent's family, or any member of the other parent's household, in the presence of or within the hearing of any of the children.
22.That each of the Father and the Mother is restrained from allowing any of the children to remain in the presence of or within either child's hearing of any other person who is making comments derogatory of the other parent, any member of the other parent's family, or any member of the other parent's household.
23.That each of the Father and the Mother is restrained from using any form of physical discipline upon the children and from throwing any item at them or in either child's direction.
24.That each of the Father and the Mother is restrained from passing information or messages through the children to the other parent.
25.That each of the Father and the Mother is restrained from permitting the children to:
(a)Play computer games,
(b)Access internet pages, or
(c)Watch television programs or movies
with a rating that does not correlate to the age of the children at the time.
26.That each of the Father and the Mother is restrained from providing the children with any electronic device that is capable of tracking the children's or the other parent's location.
27.That each of the Father and the Mother is restrained from discussing these proceedings with the children except as is necessary to inform the children of when they will be in the care of each parent pursuant to these orders.
28.That the Father is restrained from:
(a)Permitting either of the children to ride a motor bike or a quad bike whether as the rider or as a passenger/pillion;
(b)Toileting or showering in the presence of the children;
(c)Being naked from below the waist in the presence of the children;
(d)Dressing or undressing the children; and
(e)Causing or permitting the children to be placed into the care of Ms D, or for Ms D to collect or deliver the children to or from changeover (this includes nominating Ms D for the purpose of Order 5).
29.The Mother shall provide the Father with updating information and any exercises that Y is required to undertake by her speech therapist.
30.The parties shall use the Family Wizard Application (or other app as agreed between the parties) for the purpose of communicating with each other about the care, welfare and development of the children. If the Family Wizard app or other agreed app ceases to be available, then the Mother shall nominate a replacement application or dedicated email address. All such communication is to be polite and businesslike and relate solely to matters concerning the care of the children.
31.That within six (6) weeks of the date of these orders, the Mother pay to Legal Aid NSW the sum of $4,530 by way of contribution to the costs of the ICL.
32.That within six (6) weeks of the date of these orders, the Father pay to Legal Aid NSW the sum of $6,180 by way of contribution to the costs of the ICL.
NOTATIONS
A.The Court notes that the Mother and Father agree that the children are old enough to shower, bathe, toilet and dress themselves independently and the parents will allow them privacy to do these things.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Berys & Berys has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
Introduction
These are final parenting proceedings under the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant Father, Mr Berys born in 1956, ('the Father') and the Respondent Mother, Ms Berys, born in 1971, ('the Mother').
The final hearing of this matter took place over four days from 10 to 13 May 2021.
Mr Jackson of Counsel appeared for the Father, Ms Eldershaw of Counsel for the Mother and Mr Ladopoulos of Counsel for the Independent Children's Lawyer.
The parties met in 2000 at their common workplace, commenced cohabitation in 2004, separated from May 2008 until April 2009 when they reconciled, and married in 2012.
There are two children of the relationship, X born in 2012 and Y born in 2016 ('the children').
The parties separated on 2 July 2017 and were divorced on 18 January 2019.
At separation the Mother and the children left the family home at Suburb B and the Father remained in occupation.
Proceedings
The Father filed his Initiating Application on 13 March 2018 seeking interim and final parenting orders.
The Mother filed her Response on 29 June 2018 seeking interim and final parenting and property settlement orders.
The Father filed a Reply to Response for Final Orders on 27 September 2018 setting out the final property settlement orders he sought.
The first return date of the matter was before Judge Henderson (as her Honour then was) on 16 May 2018 and an order was made appointing an Independent Children's Lawyer ("ICL") to represent the interests of the children in the proceedings.
On 23 July 2018 Ms Weaver filed a Notice of Address as the ICL for the children.
The parties attended a Child Dispute Conference with a Family Consultant, Ms E, on 6 July 2018 and a Memorandum to Court dated that date was provided for the court's assistance.
On 27 September 2018 interim orders in relation to parenting issues were made by consent as follows:
[1]That the children [X] born [in] 2012 and [Y] born [in] 2016 ("the children") live with the mother.
[2]That until such time as a place is available at [F] Children's Contact Centre at [Suburb G], the children spend supervised time with the father as follows (in a four week cycle):
(a) In week 1, with [H Contact Centre].
(b) In week 2, with [H Contact Centre].
(c) In week 3, in the presence of [Ms J] and [Ms K].
(d) In week 4, with [H Contact Centre].
with such time to take place on Sunday from 12 noon to 3:00pm or such other times available [H Contact Centre] can facilitate.
[3] That once a place for the family is available at [F] Children's Contact Centre at [Suburb G], the children spend supervised time with the father in a four week cycle as follows:
(a) In week 1, at [F] Children's Contact Centre at [Suburb G];
(b)In week 2, in the presence of [Ms J] and [Ms K] or a delegate of [Ms K] where upon the mother shall ensure the attendance of [Ms K] or a delegate;
(c) In week 3, at [F] Children's Contact Centre at [Suburb G];
(d)In week 4, with [H Contact Centre] for children with such time to take place on Sunday from 12noon to 3:00pm or such other times [H Contact Centre] can facilitate.
[4]For the purpose of Order 2(c) and Order 3(b) such time will take place at a public venue to be nominated by the father and advised to the mother in writing via her solicitor no later than 72 hours prior to his time with the children and the time will take place within 20 minutes drive of [Suburb L] NSW.
[5]That the cost of supervision will be shared equally between the parties.
[6].That the mother is to keep the father advised of the school/day care centres at which the children are enrolled, and:
(a)The father is authorised to contact any such school or day care to obtain information about the children's progress and well-being and to obtain copies of all documents, usually provided to parents including reports and newsletters.
(b)The father is restrained from personally attending at the school or day care to collect or attempt to collect the children.
(c)The mother is to provide a copy of these Orders for any such school or child care provider.
[7]The parties are each restrained from denigrating or criticizing the other parent or their family members in the presence or hearing of the children.
[8]That [Ms J] and [Ms K] will file an appropriate Undertaking with this court indicating that they understand the nature of the allegations made by the mother against the father and their responsibilities as supervisors to ensure the safety of the children.
[9]The parties are each to do such things as are necessary to allow contact to commence at [F Contact Centre] [Suburb G] Children's Contact Centre, including completing all necessary forms and attending interviews and orientation appointments.
[10]That the parties shall do all things reasonably necessary to attend and facilitate attendance with [Ms M] on 10 December 2018 for the purposes of the preparation of a single expert report and that she be requested to:
(a)Conduct interviews with the parent, the children and relevant family members;
(b)Observe interaction between the children and the parents;
(c)Consider any views expressed by the children and any factors (such as the children's maturity or level of understanding) that would affect the weight the Court should place on those wishes;
(d)Address the matters set out in sections 60CC, 61DIA,65DAA of the Family Law Act 1975 (Cth); and
(e)Address any other mattes that the family assessor considers important to the welfare or best interests of the children.
[11]That the costs of a family report shall be met equally between the parties, such costs to be paid directly to [N Families] by 30 November 2018.
The parenting arrangements in the interim orders made by consent on 27 September 2018 continued until the final hearing and remain in force until final orders are made.
The Single Expert's Report ordered by consent on 27 September 2018 was prepared by Ms M, dated 22 January 2019, and released by an order made 23 January 2019.
On 23 August 2019, the matter was set down for four days of final hearing commencing on 14 April 2020, but on 24 March 2020 the April hearing dates were vacated due to the SARS-CoV-2 (COVID-19) pandemic.
On 22 January 2021, orders were made by me setting the matter down for final hearing for four days commencing 10 May 2021.
The parties settled their property proceedings on a final basis by consent with orders made by the Court on 10 May 2021.
The materials relied upon at final hearing
The Father relied upon the following documents:
(a)A Case Outline document prepared by Mr Jackson and filed 4 May 2021;
(b)The Father’s Amended Initiating Application filed 2 March 2021;
(c)The Father's affidavit affirmed and filed 12 February 2021;
(d)The affidavit of Ms J, a friend of the Father, sworn and filed 12 February 2021;
(e)The affidavit of Ms O, the Father's sister, sworn 21 September 2018 and filed 25 September 2018; and
(f)A Minute of Orders sought by the Father provided to the Court at the final hearing.
The Father tendered into evidence the following exhibits:
(a)Exhibit A1 – being a chain of emails between H Contact Centre and the Father dated 4 March 2021;
(b)Exhibit A2 – being documents produced on subpoena by the Department of Family and Community Services relating to information reported by the Mother during a phone call to the Department, marked with a blue tab "22";
(c)Exhibit A3 – being material produced on subpoena by the NSW Police Force being event reports dated 2 July 2017 and 27 July 2017;
(d)Exhibit A4 – being a photograph of the Father's backyard; and
(e)Exhibit A5 – being a letter from Anne Day & Associates addressed to Clinch Long Woodbridge Lawyers dated 25 May 2020.
The Mother relied upon the following documents:
(a)A Case Outline document prepared by Ms Eldershaw and filed 3 May 2021;
(b)The Mother’s Amended Response filed 25 October 2019;
(c)The Mother's affidavit affirmed and filed 13 March 2020;
(d)The Mother's updating affidavit sworn and filed 19 April 2021;
(e)The affidavit of Ms P, the Mother's sister, affirmed 11 March 2020 and filed 13 March 2020;
(f)The affidavit of Ms Q, the maternal grandmother, affirmed 11 March 2020 and filed 13 March 2020;
(g)The affidavit of Ms K, a friend of the Mother, affirmed 6 March 2020 and filed 13 March 2020;
(h)The affidavit of Mr S, the Mother's brother-in-law, affirmed 11March 2020 and filed 13 March 2020;
(i)The further affidavit of Mr S filed on 19 May 2021 and sworn in Court on 12 May 2021;
(j)A Minute of Orders sought by the mother, provided to the Court at the final hearing; and
(k)Written Submissions prepared by Ms Eldershaw and provided to the Court on 13 May 2021.
The ICL relied upon a Case Outline document prepared by Mr Ladopolous and filed 6 May 2021, a Minute of Orders sought by the ICL, provided to the Court at the final hearing, and tendered the following materials into evidence:
(a)Exhibit ICL1 -the Expert Report of Ms M dated 22 January 2019;
(b)Exhibit ICL2 -the Child Dispute Conference Memorandum by Family Consultant Ms E dated 6 July 2018; and
(c)Exhibit ICL3 - a document produced by the Department of Communities and Justice entitled 'Helpline Assessment' dated 24 May 2018.
The Father was cross-examined by Ms Eldershaw for the Mother and Mr Ladopolous for the ICL.
The Father's witnesses, Ms O and Ms J, were not required for cross-examination by the ICL or the Mother.
The Mother was cross-examined by Mr Jackson for the Father and by Mr Ladopoulos for the ICL.
The Mother's witnesses, Ms Q, Ms K and Mr S were not required for cross-examination by the ICL or the Father. Ms P was cross-examined by Mr Jackson and was not required by the ICL.
The Family Report Writer Ms M was cross-examined by Microsoft Teams link by Mr Ladopolous for the ICL, Mr Jackson for the Father and Ms Eldershaw for the mother.
At the end of the evidence each Counsel made oral submissions and Ms Eldershaw also provided written submissions.
The competing proposals of the parents and the ICL
The Father sought the following orders as set out in his Minute of Orders:
[1]The mother have sole parental responsibility for the children [X] born [in] 2012 and [Y] born [in] 2016 (‘the children’).
[2]The parties consult each other and make a genuine effort to reach a decision about any major long-term issue involving the children including, the children’s education, health, name, and changes to a children’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
[3]The Mother shall ensure that she keeps the Father informed as soon as it is reasonably practical of:
(a)Any medical problems or illnesses suffered by the children whilst in each parent’s care;
(b) Any medications that have been prescribed for the child;
(c)Any specialist medical appointments;
(d)Any significant social, school or religious functions which the children are to attend;
(e) The details of any sporting body(ies) that the children are involved in;
(f)His residential address and particulars of other who may reside with the child;
(g) Any other important matter relevant to the welfare of the child.
[4]That the Mother shall provide to the father full particulars of any medical practitioner, health service provider or institution attended by the children and provide any authority.
[5]That each parent is entitled to attend all events involving the children, including, but not limited to:
(a) Sporting fixtures;
(b)Extracurricular activities that allow for parent attendance or participation;
(c)School functions and events that allow for parental attendance or participation.
[6]That both parents be permitted to liaise directly with the children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
[7]Each party will have responsibility for the children about decisions, which are not major long-term issues, whilst the children is in their care.
[8] The children live with the mother.
[9] The children to spend time with the father as follows:
(a) Each Saturday from 10am to 5pm for five occasions;
(b)Thereafter, every alternate weekend from Saturday 10am to Sunday at 10am for a period of 3 months;
(c)Thereafter, during school terms from after school on Friday to before school on the following Monday for period of 3 months;
(d) After school on Thursday until before school on Monday;
(e)On Father’s Day from 10am to 5pm, if not otherwise spending time with the father;
(f)On Christmas Day each alternate year from 10am to 5pm on Boxing day in years ending in an odd number and from 10am Christmas Eve to 10am [sic] Christmas Day in years ending in an even number;
(g)On the father’s birthday from 5pm to 7pm, if not otherwise spending time with the Father;
(h)On the child’s birthday from 5pm to 7pm, if not otherwise spending time with the Father;
(i) During school holidays:
(i)Commencing in the Term 3 holidays 2021 and thereafter, for one half of the school holidays being the first half in years ending in an even number and the second half in years ending in an odd number; and
(ii)Otherwise as agreed
[10] The children’s time with the Father will be suspended as follows:
(a) On Mother’s Day from 10am to 5pm; and
(b) The Mother’s birthday from 5pm to 7pm;
(c) And as otherwise agreed.
[11] For the purposes of changeover:
(a)If a school day, the Father to collect the children from school if a school day at the commencement of the time and return the children to school at the conclusion of the time;
(b)If the commencement of time is not a school day, the mother shall deliver the children to the father’s residence at the commencement of the time;
(c)If the conclusion of the time is not a school day, the Father shall deliver the children to the Mother’s residence at the conclusion of the time.
[12]The parties will keep each other informed as to their addresses, mobile telephone numbers and advise of any change within 7 days.
[13]That forthwith and on a continuing basis, each party will do all acts and things and sign all documents necessary to authorise and direct any school attended by the children to discuss with the other party the children’s school attendance and progress and furnish reports, photographs, invitations and correspondence in relation to sporting and all other extra-curricular events and all other correspondence, newsletters or other written material produced by the school and distributed to carers and both parties will be entitled to fully participate in all and any activities at the school or connected with the school.
[14]That neither party will be precluded from attending any school function or activity involving the child, in the event that such function or activity occurs at a time when the children is living with or spending time with the other party.
[15]The Court notes that each parent will facilitate the children having telephone communication with the other parent whilst the children is in their care.
[16]Each party is hereby restrained from denigrating the other parent or their family in the presence of the children and will remove the children immediately from the presence of any person who denigrates the other parent.
The Mother sought the following orders as set out in her Minute of Orders:
[1]That all prior parenting orders be discharged.
Parental Responsibility
[2]That the Mother have sole parental responsibility for [X] born [in] 2012 and [Y] born [in] 2016 (‘the children’).
[3]Other than in a case of emergency, the mother shall in the exercise of her parental responsibility:
(a)inform the father of the decision that she proposes to make, give the father adequate information about, and reason(s) for, her proposed decision;
(b)Give the father not less than 14 days to consider the proposed decision so that he can make his own enquiries about it;
(c)Give realistic and genuine consideration of any views expressed by the Father in respect of any proposed decision, including any concerns raised by him; and
(d)Promptly notify the father of the outcome of the decision.
Live with
[4] That the children live with the Mother.
Spend time with
Stage 1
[5]For 6 months from the date of these orders or until the father has completed the parenting and behaviour change courses identified in Orders 17 and 18, whichever is later, the children spend time with the Father:
(a)Each Thursday from 3pm or the conclusion of school or day-care until 6.30pm if it is a school day, or 10am to 3pm if it is a non-school day; and
(b)On alternate Sundays from 10am to 3pm.
[6]Except as provided by Order 7, the Father’s time with the children pursuant to Order 5 and Orders 12, 14 and 15 (during the pendency of Order 5) shall occur in the presence of an adult nominated by the father provided that:
(a) The person is already known to the children; and
(b)The mother consents to the nomination and she shall not unreasonably withhold her consent.
[7]If the children attend an extra-curricular activity on Thursdays, the Father shall take the children to the activity and the time need not occur in the presence of another adult as would otherwise be required by Order 6.
[8]If the father wishes to nominate an extra-curricular activity for the children to attend on Thursday afternoons at his expense, the mother shall give proper, genuine and realistic consideration to the proposal and not unreasonably withhold her consent of the children being enrolled in the activity.
Stage 2
[9] Upon expiration of Order 5, the children spend time with the father:
(a)Each Thursday from 3pm or the conclusion of school or day-care until 6.30pm if it is a school day, or 10am to 3pm if it is a non-school day; and
(b)On alternate Sundays from 10am to 3pm.
Beyond stage 2
[10]Not earlier than 15 months after the commencement of Order 9, and unless agreement has otherwise been reached between the parties, the parties shall attend on a Family Dispute Resolution Practitioner to discuss further parenting arrangements for the children with a view to entering a Parenting Plan or making an Application for Consent Orders to vary these Orders.
[11] To give effect to Order 10:
(a)Either party may write to the other parent inviting requesting that they participate in Family Dispute Resolution and proposing the names of three suitably qualified practitioners from which the other parent shall make an election.
(b)The cost of Family Dispute Resolution (if any) shall be paid equally by the parties.
Special occasions
[12]In addition to the times provided by Orders 5 and 9, the children spend time with the Father as follows:
(a)On [X]’s birthday, [Y]’s birthday and the Father’s birthday from 3pm to 6.30pm;
(b)On Father’s Day from 10am to 3pm;
(c)On Christmas Day in 2021 and each alternate year after that from 10am to 3pm; and
(d)On Christmas Day in 2022 and each alternate year after that from 10am to 3pm.
[13]The father’s time shall be suspended if it coincides with Mother’s Day.
School holidays
[14]During school holidays occurring at the end of Terms 1, 2, and 3, the father’s time on the Thursday of the first week of the holidays shall be suspended and the children shall spend make-up time with him the following Tuesday from 10am to 3pm.
[15]Provided that the mother gives the father at least 4 week’s written notice, she may spend the children’s time with the father for a 14-night block for the purpose of taking them on a holiday and the children shall make-up any suspended:
(a)Thursdays on the same number of Tuesdays following the holiday from 10am to 3pm; and
(b)Sundays on the same number of Saturdays from 10am to 3pm.
Changeover
[16]Except where changeover occurs through school or day-care, or as otherwise agreed, the father shall collect the children from the mother’s residence at the commencement of the time and the mother shall collect them from the father’s residence at the conclusion of the time. When conducting changeover, neither party may enter onto the other party’s property (that is, they shall not go past the line of the letterbox).
Courses
[17]The father shall enrol in and complete all individual and group sessions, including all follow-up sessions of the ‘Taking Responsibility’ men’s behavioural change course operated by [C Counsellors] and, upon completion provide a copy of the certificate of completion to the mother.
[18]The father shall enrol in and complete all sessions of the “Tuning into Kids” parenting course and, upon completion provide a copy of the certificate of completion to the Mother.
[19]Each party shall enrol in and complete all sessions of the “Keeping Contact” post separation parenting course operated by [T Families] and, upon completion provide a copy of the certificate of completion to the other parent. The children shall participate in [T Families] Child Inclusive Practice while the parties are engaged in the Keeping Contact program if recommended by the facilitator of the Keeping Contact program.
Other orders
[20]That by this order the father is authorised to communicate with any medical or allied health provider who treats for the children or any of them and to obtain such information about the child(ren) from those professionals as the father reasonably requires.
[21]That by this order the father has authority to communicate with any school at which the children or any of them are enrolled and to obtain such information from those facilities as the father reasonably requires.
[22]The Mother shall provide the father with updating information and any exercises that [Y] is required to undertake by her speech therapist.
[23]The parties shall use the Family Wizard Application (or other App as agreed between the parties) for the purpose of communicating with each other about the care, welfare and development of the children. If the Family Wizard app ceases to be available, then the mother shall nominate a replacement application or dedicated email address.
[24] Without admissions, that each parent be restrained by injunction from:
(a)Denigrating or blaming the other parent and/or their family members and friends to the children or in the presence of the children and shall do all things reasonably necessary to remove the children from any environment in which the other parent and/or their friends or family are being denigrated;
(b)Passing information or messages through the children to the other parent;
(c)Physically disciplining the children or throwing any item at them or in their directions;
(d)Permitting the children from playing computer games, accessing internet pages, or watching television programs or movies with a rating that does not correlate to the age of the children at the time;
(e)Providing the children with any electronic device that is capable of tracking their location;
(f)Discussing any legal proceedings in which the parties are involved and/or their family law dispute with the children.
[25] The father is restrained by injunction from:
(a)Permitting the children to ride a motor bike or a quad bike whether as the rider or as a passenger/pillon;
(b)Toileting or showering in the presence of the children;
(c)Being naked from below the waist in the presence of the children;
(d)Dressing or undressing the children;
(e)Toileting the children;
(f)Causing or permitting the children to be placed into the care of [Ms D], or for [Ms D] to collect or deliver the children to/from changeover (this includes nominating [Ms D] for the purpose of Order 6).
The ICL sought the following orders as set out in the ICL's Minute of Orders:
[1] That all previous parenting orders made in this matter be discharged.
[2]That, subject to Order 3 below, the mother has sole parental responsibility for the children [X] born [in] 2012 and [Y] born [in] 2016 (“the children”).
[3] That the mother:
(a)Notify the father of any proposed decision relation to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made;
(b)Take into consideration any views expressed by the father, in writing, about the proposed decision; and
(c) Notify the father in writing of her final decision about the issue.
[4] That the children live with mother.
[5]That, unless otherwise agreed between the mother and the father in writing, the children spend time with the father as follows:
(a)For the first 12 weeks following the making of these Orders, each Saturday from 12 noon until 5:00 pm;
(b) Thereafter, for 15 months,
i.each Wednesday from the end of school until 6:30 pm, such time to be in a public place until the father has complied with Order 9 below; and
ii. each alternate Saturday from 10:00 am until 5:00 pm;
(c) Thereafter, for 1 year:
i. each Wednesday from the end of school until 7:00 pm; and
ii.each alternate weekend from 10:00 am Saturday until 5:00 pm Sunday;
(d) Thereafter:
i. during school terms as follows:
a. each Wednesday from the end of school until 7:00 pm; and
b. each alternate weekend from the end of school on Friday until 5:00 pm on Sunday.
ii. during school holiday periods as follows:
a.for the school holidays at the end of Terms 1, 2, and 3 in 2024, from the end of school on the last day of school term until 5:00pm on the 5th day of the school holiday period (4 consecutive nights);
b.for the school holidays at the end of Term 4 in 2024:
i. from 4:00pm on Christmas Day until 6:00pm on 29 December (4 consecutive nights); and
j. from 10:00am on 14 January until 6:00pm on 18 January; and
c.from the commencement of the 2025 school year and thereafter:
i.for the school holidays at the end of Terms 1, 2 and 3:
a. in all years ending in an odd number (eg 2025), from after school on the last day of term until 6:00pm on the second Saturday of the school holiday period;
ii for the school holidays at the end of Term 4:
a. where the school holiday period commences in a year ending in an odd number (eg 2025), from 6:00pm on 24 December until 6:00pm on 10 January; and
b. where the school holiday period commences in a year ending in an even number (eg 2026)
i.from 6:00pm on 23 December until 6:00pm on 24 December; and
ii.from 6:00pm on 10 January until 6:00pm on 26 January; and
(e)If Father’s Day falls on a day that the children would not otherwise be spending with the father pursuant to these Orders, they will spend time with the father as follows:
i.On Father’s Day in 2021 and 2022, from 10:00am until 5:00pm; and
ii.Thereafter, from 5:00pm on Saturday until 5:00pm on Sunday on the Father’s Day weekend.
[6]That the father’s time with the children pursuant to Orders 5(a), 5(b)(ii) and 5(e) is to occur in the presence of an adult who is known to the children until all of the following conditions have been met:
(a)At least 6 months have passed since the making of these Orders;
(b)The father has completed the courses referred to in Order 9 below; and
(c)The Father has provided the mother with a copy of certificate of completion for the courses.
and the father will notify the mother of the name and contact details of the adult who will be present during his time with the children, such notification to be given in writing at least 48 hours in advance.
[7]That the children's time with the father pursuant to Order 5 above shall be suspended on each Mothers' Day weekend, from 5:00 pm on Saturday until 5:00 pm on Sunday.
[8]That handover of the children for the purpose of the father spending time with them will occur by means of the mother delivering and collecting them at the father’s residence unless otherwise agreed in writing.
[9]That the father forthwith take all necessary steps to enrol in and complete, as soon as possible, the following courses:
(a) “Tuning in to Kids”; and
(b) “Taking Responsibility” or an equivalent men’s behaviour change program which is conducted in a group setting.
[10]That the mother and the father are each to keep the other advised at all times of their up to date residential address, contact telephone number and email address.
[11]That communication between the mother and the father about the children is to be conducted by email, other than in the case of an emergency, and all such communication is to be polite and businesslike and relate solely to matters concerning the care of the children.
[12] That the mother and the father are each restrained from:
(a)denigrating or criticising the other parent or members of their families in the presence or hearing of the children
(b)using any form of physical discipline upon the children.
[13]That the mother and the father are to advise each other as soon as practicable of any significant illness or injury that affects either of the children while in their care, including information about the name and contact details of any health professional providing treatment to the children, and the details of any medication prescribed for them.
[14] That, in relation to the children’s health care, the mother is to:
(a)keep the father advised of the names and contact details of the children’s treating GP and any specialists or allied health practitioners providing treatment to the children, and
(b)authorise such practitioners to speak directly to the father to provide information about the children’s treatment,
(c).provide the father with copies of any reports relating to the children provided by any health care provider.
[15] That, in relation to the children’s schooling, each parent is at liberty to:
(a)directly contact the children’s schools to obtain information about their education and wellbeing;
(b)obtain copies of documents relating to the children including school reports and newsletters; and
(c)attend school events to which parents are invited, including parent teacher interviews, concerts, sports events and performances, and the father is to give the mother at least 48 hours’ notice in writing of his intention to attend any such event.
[16]That within 6 weeks of the date of these orders, the father pay to Legal Aid NSW the sum of $4530 by way of contribution to the costs of the ICL.
[17]That within 6 weeks of the date of these orders, the father pay to Legal Aid NSW the sum of $6180 by way of contribution to the costs of the ICL.
NOTATIONS:
A.The court notes that the mother and father agree that the children are old enough to shower, bathe, toilet and dress themselves independently and the parents will allow them privacy to do these things.
Accordingly, the principal issues for determination are:
(a)The time to be spent by the children with their Father and whether such time should be supervised, and, if so, for how long;
(b)How changeovers not occurring at the children's school are to be effected; and
(c)Whether the Father should be ordered to undertake any specific courses, either as a condition of his time with the children, or at all.
The Mother's case was that there was a risk to the children in the Father's unsupervised care consequent upon the Father's propensity for family violence, the risk that he would retain the children from the Mother contrary to orders, and the risk that the Father would denigrate the Mother to the children and so damage her relationship with the children. She proposed that his time continue to be supervised and be daytime only until he completed the "Taking Responsibility" and "Tuning in to Kids" courses and thereafter unsupervised, but still daytime only unless otherwise agreed with the parties to engage in further family dispute resolution mediation to seek agreement on further progress.
The Father's case was that he did not present any risk at all to the children and that his time with them should be unsupervised and increase by stages until they were in his care from Thursday until Monday each alternate weekend during school term and for half of the school holidays.
The evidence
The Father was born in 1956 in the United Kingdom and moved to Australia at 4 years of age. He was 65 years of age at the time of the final hearing. The mother was born in 1971 in Australia and was 50 years of age at the time of the final hearing.
The parties met at a common workplace in 2000 and commenced their cohabitation in 2004 at a home at Suburb U, owned by the Father and his former wife. In 2005 the Suburb U property was sold and the parties moved to a property owned by the Mother at Suburb L, and in 2007 moved into a home they purchased jointly at V Street, Suburb B.
They separated for a period of 10 or 11 months from May 2008 until April 2009 when they reconciled, and they married in 2012.
Their child, X, was born in 2012 and was 8 years of age at the time of the final hearing, and their child, Y, was born in 2016 and was 5 years of age at the time of the final hearing.
The Father had been married previously in 1978 to Ms W and had a child of that relationship, Ms D, who was 40 years of age at the time of the final hearing and who has 2 children, the Father's grandchildren, Z (16 years of age) and AB (14 years of age). The Father and Ms D divorced in 2004.
The Mother had also previously been married, to Mr AC, around or shortly after 2000 and separated after 6 months and was at some time divorced. There were no children of that marriage.
The Father asserts that the parties had several periods of separation in addition to their long separation in 2008 – 2009, lasting for periods of between a few days and weeks, with the Mother leaving their joint home to live with her mother and then returning at the end of the separation.
The parties separated on a final basis on 2 July 2017 following an incident between them in the family home at Suburb B that is the subject of disputed evidence, to be examined below.
The Father was in full-time employment throughout the relationship and, on his evidence, assisted the Mother with the care of the children when he was not engaged in his employment.
The Mother worked on a full-time basis throughout their relationship except for periods of 12 months maternity leave around the birth of each of the children - returning to work in 2013 after the birth of X, and in 2017 after the birth of Y. On her evidence, the Mother was the primary carer for the children at all times, but concedes some assistance in caring for the children from the Father.
On the Mother's return to work from her first maternity leave, X attended day care from Monday to Wednesday in the City of Sydney, where both parents worked, and was cared for by her maternal grandmother, Ms Q, at the Suburb B home on Thursdays and Fridays.
At some time in 2014 X's day care was changed to AD Early Learning Centre at Suburb AE. On 11 November 2015 the maternal grandmother stopped coming to the Suburb B home to care for X after witnessing an incident of asserted family violence by the Father detailed below when the Father struck a lampstand in the home and caused it to crash loudly into a blind during an argument between the Father, the Mother and the maternal grandmother. Thereafter X attended day care Monday to Friday until she commenced school at L Public School in 2018.
When the Mother returned to work from her second maternity leave in 2017 Y began attending AD Early Learning Centre.
The Mother complains that the Father smoked in the presence of the children including whilst in motor vehicles and in the home and even whilst holding X. The Father denies that he ever smoked in the presence of the children and says that after a difficult battle and the assistance of medication, which often made him irritable, he managed to give up smoking by September 2017.
The Mother asserts that there was a persistent pattern of family violence perpetrated by the Father against her throughout their cohabitation and occurring often in the presence and hearing of the children. Most, but not all, of the asserted incidents of family violence are denied by the Father and it is necessary to examine each asserted incident and the, in almost each case, conflicting evidence of the parties.
The Mother gives much of her evidence in relation to the asserted incidence of family violence perpetrated by the Father in the sub paragraphs of paragraph 99 of her trial affidavit, and the Father's responses are mainly found in the sub paragraphs to paragraph 130 of his trial affidavit, though paragraph 130 refers to making reply to assertions of violent and aggressive behaviour by the Father set out in paragraph 15 of the Mother’s affidavit filed 28 June 2018. However, the Mother’s trial affidavit was filed on 13 March 2020 and the Father's trial affidavit was affirmed by him on 12 February 2021 and it was open to him to respond to all of the evidence in the Mother’s trial affidavit.
The Mother says that in late April 2005, shortly after the parties moved into the Mother's Suburb L property, the Father said to her words to the effect of: "a male person called me today and threatened my life. It was someone from your family". The Mother replied, "my family wouldn't do such a thing" to which the Father responded, "you are naïve to think that. I'll break their legs." The Mother says that she then saw the Father punch a hole in the wall and she attaches a copy of a photo of the hole in the wall to her affidavit as -31A. The Father's evidence is that what he said was words to the effect of, "if your family want to play those games, then I could do the same, maybe go and break their legs." The Father does not give evidence denying that he punched the hole in the wall as asserted by the Mother.
The Mother says that during arguments in about 2012, following the birth of X, the Father on occasions said to her words to the effect of, "if you ever leave again, and especially with our daughter, I will track you down and put a bullet in your head with a gun." The Father denies that he ever made that statement.
On 24 April 2015 the parents and X were on a holiday cruise. The Mother says that the Father wanted to bathe X whilst he was in the shower and so she went to hand X to the Father, but that X accidentally slipped from her hold and fell on her back and started to cry. The Mother says that the Father flew into a rage and grabbed the Mother's arms and pushed her against the wall of the cabin and said to her, "I'll take X and disappear off the ship. You should make your own way home. I want a divorce." She says that the Father then "disappeared on the ship" with X and she was unable to find or contact him on his mobile phone and that she sought the assistance of the cruise security to locate Father and child. The Father returned to the Mother "several hours later".
In his trial affidavit at paragraph 130 (c) the Father says, "I do not recall this incident at all. I deny I pushed Ms Berys to the wall of the cabin and left the cabin with X for several hours." However, during his cross examination by Ms Eldershaw he was referred to the Mother's evidence of the incident and it seemed he had recovered his memory because he agreed that X slipped from the Mother's grasp and fell on her back and cried as she was getting ready for a bath. The Father denied that he grabbed the Mother or pushed the Mother, but agreed that he then disappeared on the ship and said that he, "went up and played Putt Putt Golf with X on the roof deck” and agreed that he was gone for some time though he could not recall the amount of time because he did not "look at my watch".
The Mother says that in 2015 the Father threw a bottle of water at her in X's presence while she was pregnant with Y, causing X to begin crying and say words to the effect of, "daddy, say sorry to mummy", to which the Father responded, "I don't care. Your mother deserved it. She started it. It's all her fault."
The Father's evidence in chief is that he threw the water bottle to the Mother when she asked for it, but that the Mother did not catch the bottle, and he denied saying the words attributed to him. During his cross examination he said that the Mother had asked him to pass the water bottle and rather than getting up and passing it by hand, he did not think and threw the bottle underhand to the Mother and it struck her on her leg. He said, "I should have got up and passed it to her." He said that it was not thrown in anger and was not intended to harm the Mother.
The Mother says that in 2015 the parties argued about whether or not the Father's daughter, Ms D, could occupy the Mother's house at Suburb L, with the Father proposing this and the Mother objecting, and that the Father spoke to her abusively and then said words to the effect of, "I've had enough. I want a divorce. I'll keep X and you can have the unborn baby. You can go live with your fucking family." The Father recalled the argument, but denied that he was abusive to the Mother or that he said the words attributed to him.
The mother says that in 2015, while she was pregnant with Y, the Father and X were setting up a tent in the house and the Father said to the Mother, in the presence of X and the paternal grandmother, words to the effect of, "you are lazy. You won't give things a try and get off your fat arse to help" and "aren't you going to say anything? You are pathetic" and that he then said to X, "don't grow up stupid like your mum."
The Father said in his trial affidavit that he recalled the occasion, but that he had no recollection of making those derogatory comments. When the Mother's evidence was put to him during his cross-examination he denied making those derogatory comments. In paragraph 16 of the paternal grandmother's affidavit she refers to the event as occurring, "in or about early 2015" and says that the Father said words to the effect of, "X your mum is lazy and won't give things a try and get off her fat arse to try and put it together for you" and said to the Mother, "aren't you going to say anything, you are pathetic."
On 11 November 2015, the parents were having a discussion about the paternal grandmother walking X to AD Day Care Centre for photo day the next day, the Mother proposing that they walk and the Father opposing on the basis of his belief that the paternal grandmother was not capable of keeping X safe whilst crossing a busy road on the way to the Centre, and the Mother says that in the presence of the paternal grandmother and herself the Father became "heated and aggressive" and "pushed the lampshade into the blinds, making a very loud bang." The paternal grandmother in paragraph 17 of her affidavit says of the occasion:
I observed [Mr Berys] go into a rage and he was very red in the face. He then pushed the lampshade into the blinds, making a loud bang.
The Father refers to the incident, though asserting that it occurred in "late 2016 about November" and says that following a discussion lasting more than half an hour, he "threw my hands up and hit a lampstand and the bulb came out of the lamp."
During his cross-examination by Ms Eldershaw, the Father was referred to the incident as described by the Mother and he said that he did not push the lampshade, that his hand hit the lampstand and it did not fall into the blinds. When asked why he had hit lampshade he said, "I threw my hands up in frustration" and when asked why he did that he responded that it was a knee-jerk reaction caused by him worrying about X being exposed to traffic.
The Mother says that after the paternal grandmother stopped coming to their home to care for X following the incident 2015, the Father "refused to allow me to spend time with my mother at all" and threatened to track the Mother's movements by her phone and her car odometer reading to make sure she did not see her mother. The Father denies all of the Mother's evidence in this regard.
The Mother says that in 2015, while she was pregnant with Y, the Mother, Father and X were in the car with the Father driving and the Father began to drive erratically and was exceeding the speed limit. She says that the Father said to her whilst driving: "you know I can kill us all in the car right now." The Mother says this statement was made in X's hearing and that X said to the Father was the effect of, "stop daddy. Stop making mummy upset. Stop being angry at mummy", to which the Father replied: "stop crying X this is all your mummy's fault and she started all this."
The Mother says when they returned home the Father kicked and dented the internal garage door several times, punched the fridge door and threw the water filter into the wall, denting the wall. She says that the Father then grabbed her by the neck and said to her words the effect of:
Don't push my buttons any further and you won't have that baby you are carrying, I will have you and the baby dead and put a bullet in your head. This is your entire fault, you deserved what happened.
The Mother says that X witnessed and heard all of this and that when X said to the Father "don't upset mummy" and the Father responded to X: "stop crying X this is your mummy's entire fault." The Mother says that X was very upset and that after the Father left the room, X said to the Mother words the effect of:
I will be a good girl. Stop crying. I want to be good.
In his trial affidavit at paragraph 129(b) the Father denied the Mother's assertion about his manner of driving, and in paragraph 130(i), denied that he made the statements attributed to him, but did not deny that X said "stop daddy. Stop making mummy upset". He does not address the Mother's assertions that he kicked and dented the internal garage door several times, punched the fridge door, threw a water filter into the wall causing a dent, grabbed the Mother by the neck and said the words attributed to him by her amounting to a serious threat. During his cross-examination, Ms Eldershaw put to him the Mother's assertion that he had said on the occasion "you know I can kill us all in the car right now" and he responded that he did not recall saying those words at all.
During that cross examination by Ms Eldershaw the Father denied that he kicked and dented the garage door several times, asserting that he used his shoulder as neither of the parties had a key to the door. He denied that he punched the fridge door, saying "I deny that. I wasn't angry with the fridge". When the Mother's evidence that he threw the water filter into the wall was put to him, his response was "no, I don't recall that". He denied making the threatening statement and denied that X said "don't upset mummy".
The Mother asserted that from about October 2015 the Father would regularly check her phone and her call log to see with whom she had been speaking throughout the day. The Father denied this in his trial affidavit and in cross-examination.
The Mother’s evidence is that on 18 June 2016 she said to the Father: "I am concerned about your smoking in front of me and the children" and that the Father got agitated and threw his coffee cup into the backyard causing it to smash. She says that he then returned inside the home and that "he had balled his fists". In his trial affidavit the Father says "I do not recall throwing a coffee cup into the backyard." However, when the Father was cross examined about the incident by Ms Eldershaw and she put to him that he was frustrated and threw his coffee cup into the backyard and smashed it, he answered "Correct". When the Father was asked why he had thrown the coffee cup he responded that he was "frustrated", though he could not recall what had caused him to be frustrated. He acknowledged that with the benefit of hindsight he realised that the event "might have been" frightening for the Mother and said that he was now remorseful. He denied that he had made a fist when he went inside after the event.
The Mother says that on 9 October 2016 the Father said to her, "you're lucky you're not a guy otherwise I'll knock you to tomorrow" and that he then "flicked my knuckles causing them to bleed" in the presence of X, and that the Father then said to the Mother, "I have the power not you." In the Father's trial affidavit he says that he was demonstrating the game of "knuckles" to the Mother and that, "I recall her saying that I hurt her. I regret that I hurt her."
The Mother gives evidence that in early December 2016 she and the Father were having a conversation about the possibility of moving up north, and that when she expressed a disinclination to move away from her family and friends and her work, the Father said to her, "well if you don't want to go, I'll take the girls and leave" and that he threw his cup of tea at the wall and said to the Mother, “you clean it up. You made me do it" and then hit the Mother on the right arm and the side of her head. The Mother says that she was scared and tried to run away from the Father, but that he followed her throughout the house and grabbed her around the arms and squeezed them tight causing her pain.
In the Father's trial affidavit he refers to the occasion and says: "I did not throw my tea at the wall and tell Ms Berys to clean it up." During the Father's cross-examination, Ms Eldershaw put the incident to him and in response to the assertion that he threw his cup of tea at the wall, the Father responded that he did not recall. In in response the assertion that the Father yelled at the Mother, he responded he did not recall, but he denied that he hit the Mother on the right arm and the side of the head or that he grabbed her around the arms and squeezed them tight.
The Mother says that on 9 December 2016 the Father, "punched a hole in the wall and broke a glass table in the backyard. X was present" and that the Father then demanded that she cleaned it up. The Mother attached a photograph of a hole in the wall and a photograph of the broken glass table to her affidavit.
In paragraph 130 (n) of his trial affidavit the Father admits that on 9 December 2016 he punched the wall and then walked outside into the backyard and kicked a coffee table causing the glass to break, and says:
I was in a bad mood. I was trying to give up smoking and was under the effects of withdrawal. I had been a smoker for a long time. I asked [Ms Berys] to help me sweep up the glass…I regret my actions.
During his cross-examination by Ms Eldershaw, the Father was referred to the incident and after agreeing that he punched a hole in the wall and kicked the table causing it to break, he asserted that he didn't mean to break it. When asked why he had broken the table, the Father responded “it was in my line of movement". When asked why he kicked the table, the Father responded that he was "frustrated". When asked why he kicked the table in frustration, the Father responded “it was there." The Father conceded that X was aware of the incident and had definitely heard the breaking, though he asserted that she was not present when he kicked the table or punched the wall.
During his cross-examination by Mr Ladopoulos, the Father conceded that on the occasions that he punched a hole in the wall and broke the table he had "obviously lost control" of his actions through being frustrated, though he did not recall the cause of his frustration, putting the incidents down to him being "not in a good state" as a result of trying to give up smoking.
The Mother says that on 29 April 2017 during a conversation between herself and the Father concerning the tenants in her Suburb L property, the Father became agitated and grabbed her by the throat and started squeezing, causing her to choke and be unable to breathe. The Father denied the Mother's allegation during his cross-examination by Ms Eldershaw.
On 2 July 2017 the parties were at home at the Suburb B property and an argument developed between them about maintenance work needed to be carried out for the tenants of the Mother’s Suburb L property. At the end of the argument the parties ended up in the bedroom with the Mother giving to the Father a sum of $1,000 that she had removed from his wallet earlier in the day and the Father counting the money. The Mother asserts that the Father was standing blocking her path to the bedroom door so that she was unable to pass him to leave the room and felt trapped in the bedroom. She says that she said to the father, "can I please get through?" When he did not respond she repeated her request and touched his lower torso. She says that the Father "immediately swung around and hit me in the chest with his right fist. He then left the room."
The Mother then called the police. She says that the Father said to her whilst waiting for police attendance and with X present:
If we separate, I will make your life hell and you know if I kill you, I will be better off in jail. At least I won't have any stress from work or home
And:
How do you want to split up the children? One for you and one for me?
The Father's evidence is that whilst both parents were in their bedroom, the Mother threw the money she had removed from the Father's wallet on the bed and that while he was counting it and walking out of the room the Mother pushed him in the back and said, "can you get out of the way?" to which he responded, "don't push me" and that as he spun around:
My right-hand clipped [Ms Berys's] hand. I did not intend to make contact or hurt her.
The police attended the home and the Father was arrested and taken to Suburb AF police station. An authorised police officer issued a Provisional Apprehended Domestic Violence Order on that day with only the statutory order prohibiting the Father from assaulting or threatening the Mother, stalking, harassing or intimidating the Mother and from intentionally or recklessly destroying or damaging any property that belong to a was in the possession of the Mother, and requiring his attendance at the Region AG Local Court on 5 July 2017. The provisional order was served on the Father at the police station. The Father was not charged with any offence.
While the Father was at Suburb AF police station the Mother telephoned her brother-in-law, Mr S, and he went to the Suburb B home. The Father returned to the Suburb B home from the police station at about 4:00PM on 2 July 2017 and then left the home to take X shopping. Though the Mother was concerned at the time that the Father may retain X away from her, the Father and child returned to the home later that afternoon.
At about 6:00PM Mr S was leaving the Suburb B home and the Mother said to him words to the effect of:
I don't feel safe staying here with [Mr Berys].
Mr S left and drove to Suburb AH police station and spoke to police and as a result police again attended the Suburb B home and on their attendance the Mother gathered some personal effects for herself and each of the children and left the home and stayed with her sister and brother-in-law, the S Family, for about a week. The Mother then moved to her brother's residence in Suburb L where the paternal grandmother also lived, and was able to then move to her Suburb L property when it was vacated by the tenants in early December 2017.
Since the parties' separation on 2 July 2017, the Father continued to reside in the Suburb B home up to the final hearing, and he retained that home pursuant to the final property settlement orders made by consent on the first day of the final hearing. The children have at all times lived with the Mother since the parties' separation.
On 5 July 2017 an Interim Apprehended Domestic Violence Order was made on police application on behalf of the Mother in the Region AG Local Court, containing the statutory order referred to in the provisional order and an additional order that the Father must not go into any place where the Mother lives or any place where she works and in particular, AJ Street, Suburb L. On 30 August 2017 a further interim order was made in the Region AG Local Court in the same terms but adding the address AK Street, Suburb L.
Due to a series of procedural matters the AVO proceedings did not go to conclusion of final defended hearing until 1 February 2019, when a Final Apprehended Domestic Violence Order was made in the same terms as the last interim order, for a period of only four weeks until 28 February 2019. I note this bearing in mind that the Mother had been protected from the Father by provisional interim orders from 2 July 2017, totalling one year and 8 months, by that time.
The Mother had attended at the Suburb B home accompanied by police on either 9 July 2017, according to Mother's affidavit in paragraph 113, or 16 July 2017 according to Father's affidavit in paragraph 67, to collect more of her belongings under a property recovery order.
The parents have not spoken to each other since 2 July 2017.
The children spent no time at all with the Father between 2 July 2017 and 10 February 2018. The Father began to have telephone calls with X each Wednesday night in late 2017.
It is the Mother's case that the Father did not seek to arrange any time with the children from 2 July 2017 until 10 February 2018, despite the Mother instructing her solicitors to propose that supervised time between the Father and the children be arranged. A letter to that effect was forwarded on the Mother’s behalf to solicitors than acting for the Father on 20 July 2017 proposing that on an interim basis, the children spend time with their Father each Saturday from 12 noon until 3:00PM supervised by "a third-party supervisor" as agreed between the parties or a commercial agency "such as H Contact Centre".
The first response to that proposal was in a letter from the Father’s solicitors dated 8 December 2017, agreeing to the children spending time with their Father each Saturday or Sunday from 12 noon until 3:00PM supervised by a third party or a commercial agency. The Mother's solicitors responded by letter dated 22 December 2017, addressing the five-month gap since the children had spent any time with their Father and proposing that they spend time with him on a graduating basis each Sunday, the first occasion from 12 noon until 1:00PM, the second occasion from 12 noon until 2:00PM and thereafter, from 12 noon until 3:00PM supervised by H Contact Centre for Children at the Father's expense. By letter dated 9 January 2018, the Father's solicitors advised the Mother's solicitors that the Father accepted the proposal and the parties began making their arrangements with H Contact Centre.
The Father spent time with the children for one hour on 11 February 2018, two hours on 18 February 2018 and then three hours on 25 February 2018, but then did not spend any time with the children between 25 February 2018 and 15 April 2018. In her trial affidavit, the Mother refers to this hiatus as "inexplicable", whilst in his trial affidavit the Father says that "after the 3 occasions which were supervised by H Contact Centre there was no proposal for any more to occur", blaming the Mother for failing to approach H Contact Centre to arrange further dates.
These proceedings were commenced by the Father filing his Initiating Application seeking interim and final parenting orders on 13 March 2018 and the first return date before the Court was on 16 May 2018 and orders were made for the parties to attend a Child Dispute Conference on 6 July 2018 and appointing an ICL to represent the children in the proceedings. However, no interim orders were made for time between the Father and the children.
The Mother had initiated arrangements for further time between the children and the Father by instructing her solicitors to write to the Father's solicitors on 16 March 2018 proposing further time supervised by H Contact Centre at the Father's expense each Sunday from 12 noon until 3:00PM and also advising that the Mother was attempting to make arrangements for children to be able to spend time with the Father at the F Children's Contact Centre run at Suburb G.
The Father recommenced spending supervised time with the children on 15 April 2018 and from that date until September 2018, time occurred each Sunday for three hours except for the Mother's Day Sunday.
On 27 September 2018 the interim orders were made that are detailed in paragraph 14 of these Reasons. There had been some significant negotiation between the parties through their solicitors to identify suitable supervisors amongst their friends and relatives so that the orders could be made for the Father's time with the children to be on Sundays from 12 noon until 3:00PM, in weeks 1, 2 and 4 supervised by H Contact Centre at the equal expense of the parties and in week 3 by Ms J, a friend of the Father's, and Ms K, a friend of the Mother’s. This regime was to alter once a place was available for the family at F Children's Contact Centre at Suburb G on Sunday at 12 noon to 3:00PM at the centre in weeks 1 and 3, with supervision by H Contact Centre in week 1, and supervision in the presence of Ms J and Ms K or a delegate of Ms K’s in week 2.
In any event, Ms K was only able to supervise on one occasion, on 9 December 2018, and thereafter her place was taken by the Mother's brother-in-law, Mr S. The occasions at F Children’s Contact Centre commenced on 16 December 2018 for a two hour duration.
Due to the COVID-19 pandemic, the supervised time at F Contact Centre at Suburb G was suspended from mid-March 2020, and from 31 March 2020 H Contact Centre introduced protective restrictions in relation to their supervisory services and no outdoor venues, such as had been used by the Father and the children until then. The Father proposed that the supervised occasions occur in his backyard at the Suburb B home and that H Contact Centre take over the supervision previously done by F Contact Centre. The Mother agreed to this arrangement and since April 2020 the children's time with the Father under the interim orders has taken place at his home at Suburb B, originally confined to the outdoors at the Mother's insistence, but eventually including the interior of the home from August 2020.
Due to some behavioural issues that X was displaying both at home with her Mother and at school, the Mother arranged for her to have some counselling with a psychologist, Ms AL, at Region AG from August 2017 until December 2018.
The Mother arranged for Y to attend a speech pathologist in late 2019 and as a result, it was recommended by the speech pathologist and a dental specialist that Y have surgery for a tongue tie release operation. The surgery took place at Suburb AF Private Hospital on 13 December 2019 and by arrangement between the parents, the Father was able to spend time with Y at the hospital while she was recovering, supervised by one of the Mother's sisters.
In 2020, Y was attending AM Early Childhood Care Centre at Suburb L five days a week and in 2021, she commenced in kindergarten at Suburb L Public School, where X was in Year 3.
In her evidence in chief, the Mother expressed some concerns about what she regarded as inappropriate behaviour by the Father in the presence of the children - showering with the children and references to genitals - but in the course of the cross-examination of each party that issue was dealt with; the Father confirmed in his evidence that he would not repeat any such conduct with either of the children, and I do not consider those matters as considerations when assessing risk in relation to the children.
During the proceedings the Father has asserted that the Mother suffers from undiagnosed and unspecified mental health issues, particularly as reported by Ms M in the Family Report in relation to her interview with the Father. The Mother denies in her trial affidavit at paragraphs 131 to 137 that she suffers from, or has ever been diagnosed with, any mental health conditions. On the state of the evidence there is no issue. Further, during cross-examination by Ms Eldershaw, the Father was asked if he had any concerns that the Mother may be suffering from delusions or anxiety and he responded that he had no such concerns.
The Mother had concerns that following separation the Father was attempting to track her whereabouts through a service named 'Track Any Phone" using an "ilocateMobile app". Attachment -49 to the Mother’s trial affidavit is a copy of an email dated 3 July 2017 at 4:41PM from [email protected] to the parties' joint email address (still operating at the time). The email addressed the Father as "Dear User", thanked him for registering with "Track Any Phone -ilocateMobile app!", and stated a username and password and provided directions for the next step in adding a phone number to track, ultimately wishing him "Happy Locating!".
In paragraph 33 of the Family Report, Ms M notes that "Mr Berys said that shortly after separation he did buy a device to track Ms Berys' mobile phone, "but only because I had no idea where my children were!"” The Father was cross-examined about the issue by Ms Eldershaw and asserted that he did not register the service but only made an enquiry, and that he did not use the service to track the Mother. He prevaricated and quibbled over the proper meaning of the reference to "registering" in the email.
The Father was also taken in cross-examination to the text of an email he sent to the Mother on 6 September 2017 with the subject "Very Important Please read". One paragraph thereof reads:
Also as you know I came from a broken and violent childhood…not that it is an excuse for the way I vent my frustrations but as I have seen violence and been part of violence my perception is a lot different to your perception, for this I apologies [sic] profusely and I had not realise [sic] this until now. The way I display frustration to me is just venting albeit it to you it would come across as violent, I sincerely understand this now which is why I have been begging you to give our family just one chance so I can demonstrate to you I can turn this into a positive outcome for us all, we all deserve a second chance, like I have given you in the past.
The Father was cross-examined about this passage in the email by Ms Eldershaw and asked what he meant, and he explained that the Mother's upbringing was different to his and his perception, his view, of violence was different to the Mother’s. He said that as he was brought up in a violent environment, he sees violence as being thrown across the room or whipped with a cane, and he did not see his father punching a wall as violence, but that the Mother did see punching the wall as violence. He was asked if he saw his action in punching the wall in 2016 as a violent act and he responded that he did not see it as a violent act, and that similarly he did not see kicking and breaking the coffee table as a violent act, or pushing the lampshade into the blinds as a violent act.
There have been occasions reported in the supervision reports provided by H Contact Centre and in the affidavit of Ms K where the Father has objected to his conduct during his supervised time with the children being commented upon or criticised by the supervisor, including an occasion when he rode with each of the children in turn out of view of the supervisor on an electric scooter at a park, despite having been told that he should not do so after the first ride with Y and then doing the same with X. I find that such evidence is indicative of the Father's determination to follow his own course and his frustration with anyone who attempts to thwart or criticise him.
Paragraph 18 of the Mother’s updating affidavit refers to an occasion on 20 December 2020 when the Father was being supervised in his time with the children by this an operative from H Contact Centre and attaches a copy of the report wherein the supervisor notes :
[X]and [Y] played shops together, while [Mr Berys] appeared to look for something. [Mr Berys] asked in what seemed a frustrated tone where a charger was for a remote -controlled car. They said they didn't know, and [Mr Berys] said, "the charger is missing throw everything in the bin" [X] responded in a concerned tone, "No".
And:
[X] demonstrated to her father how the Beyblades worked. [Mr Berys] put down the communication book and asked [X] for the Beyblade, she didn't respond and gave it to [Y]. [Mr Berys] threw rubbish papers in the direction of the girls, in what appeared to be angry manner. [X] asked in a surprised tone, "why did you do that?" and he said, "because I asked for it and you gave it to [Y] ". [Mr Berys] walked out of the room and the girls continued to play quietly.
The Father was cross-examined about the report by Mr Ladopoulos for the ICL and the Father said that he was feeling depressed and he got frustrated - more disappointed than frustrated - and said he was collecting the paper from the children unwrapping their Christmas presents and that he threw it down on the carpet and walked outside to have a breather, specifically denying that he threw the papers or that he threw the papers at the children and insisting that he dropped them on the carpet.
The Mother also refers to an occasion in 2021 when the Father gave Y a quad bike for her birthday. X already having a quad bike which was kept at the Father's home at Suburb B. Both children rode their bikes resulting in a collision between them when riding downhill that caused X to suffer from bleeding grazes to her finger and foot. Despite this, the H Contact Centre report for the occasion notes that the children enjoyed themselves. The Mother sought an order that the Father be restrained from permitting the children to ride a motor bike or quad bike whether as a rider or as a passenger/pillion. Neither the Father nor the ICL sought any order in relation to the children and quad bikes.
The Father gives evidence that following separation he:
(a)Had one-on-one counselling through T Families Counselling and Mediation weekly from 22 August 2018 to 10 October 2018;
(b)Completed the New Families Post Separation Parenting Program and received a certificate of completion;
(c)Completed the Triple P Online course in positive parenting (consisting of eight modules) on 22 May 2019 and received a certificate of completion; and
(d)Completed the Circle of Security Parenting Course with AN Family Centre over eight weeks and received a certificate of completion dated 3 December 2020.
The Father gives evidence in paragraph 198 of his trial affidavit that between 17 May 2019 and 10 September 2019 he completed the Enough is Enough "Stress and Anger Management Course" over 10 individual sessions. The Father annexes to his trial affidavit as AH46 a letter dated 7 October 2019 from Enough is Enough Anti-Violence Movement Inc addressed to ‘whom it may concern’ from Mr AO, a registered psychologist, in relation to the Father's completion of the course.
However, the Father was cross-examined about that course by Mr Ladopoulos. The Father was referred to the recommendation contained in paragraph 100 of the Family Report that he undertake and complete the course, "Taking Responsibility" run by C Counsellors, the recommendation in consequent upon the opinion expressed in paragraph 93 of the Family Report by Ms M that the risk:
…that [Mr Berys] might lose his temper with the children and verbally and/or physically abuse them, is a very real one and the most compelling in this matter. To ameliorate both these risks, [Mr Berys] should complete a comprehensive anger management course that focuses on accepting responsibility for his behaviour, acknowledging the impact of his anger on others and committing to sustained and positive change in the future.
This is an important consideration in this matter where the orders proposed by the Mother take the matter only so far in relation to the time to be spent by the children with their Father, going from:
(a)Each Thursday 3:00PM until 6:30PM and alternate Sundays from 10:00AM until 3:00PM in the presence of a person already known to the children and approved by the Mother; to
(b)The same amount of time but not required to be within the presence of another adult; and then
(c)Requiring the parties to engage in Family Dispute Resolution with an FDR practitioner “to discuss further parenting arrangements for the children with a view to entering a Parenting Plan or making an Application for Consent Orders to vary these [final orders]”. In the absence of agreement between the parties, there would be no parenting plan and no Application for Consent Orders, but the Father would be left with the time provided in the orders and the matter would almost certainly return to Court.
The orders proposed by both the ICL and the Father, though differing in their endpoints and speed of graduation, envisage those endpoints as being the appropriate endpoint for definition of time between the children and their Father without the necessity for further discussion and agreement, and so do not contemplate circumstances where failing agreement the matter would return to Court.
The proceedings have been before the Court since March 2018 - that is four years and six months (the last 15 months being entirely at my fault, for which I apologise to the parties, their legal advisers and, most of all, the children). I find that it is, as submitted by the ICL, definitely in the best interest of the children that this matter be given finality by the making of final orders that carry the progression of the children’s time with their Father through to what I will determine to be the appropriate endpoint in the best interests of the children, with their interests as the paramount consideration, and to not make final orders that set these parents up almost certainly for a return to Court.
Parental Responsibility
In relation to the issue of parental responsibility there is a consent position between the parties and the ICL that the Mother will have sole parental responsibility for the children. The Mother and the ICL also seek an order be made in relation to the Mother notifying the Father of any proposed decision relating to the children’s long-term care, welfare and development and take into account any views expressed by the Father.
The orders proposed by the Father, whilst conceding sole parental responsibility for the children to the Mother, would then still require that the parties engage in the process of consultation and the making of a genuine effort to reach a decision about any major long-term issue involving the children as to education, health, their names, and any change to the children’s living arrangements that make it significantly more difficult for the children to spend time with either parent – imposing on the Mother the same obligation as is found in section 65DAC(3) of the Act that would apply if these parents had shared parental responsibility for the children. I do not consider that the imposition of that statutory requirement through an order is appropriate if an order is made that the Mother have sole parental responsibility for the children.
Despite the consent position of the parents and the ICL, I am required to determine what order, if any, in relation to parental responsibility is proper be made in the best interests of the children with their interests being the paramount consideration.
I find that the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility for them does not apply in this matter as I have found that the Father has engaged in family violence.
The parents have not spoken to each other since 2 July 2017 and it was plain in cross-examination of each of the parties that they would have great difficulty in communicating sufficiently to consult and make a genuine effort to reach agreement in relation to any issue going to either or both of the children’s major long-term issues (major long-term issues been defined in section 4 (1) of the Act).
In paragraph 96 of the Family Report Ms M expressed the opinion that “the possibility that the parties could co-parent in a respectful and collaborative manner is a remote one, based on the history of the marital relationship prior to separation and Mr Berys’ views about Ms Berys. It would also not be emotionally safe for Ms Berys to be in a position where she has to negotiate about aspects of the children’s care with Mr Berys.”
Further, there is the evidence making it plain, as clearly identified by Ms M and discussed in her evidence, that the Father considers himself the superior parent to the Mother, and that must infect with difficulty any consultation and effort to reach agreement in relation to any major long-term issue for the children upon which there is a difference of views between the parents.
For those reasons I find that it is in the children’s best interests with those interests as the paramount consideration to accept the consent position of the parents and the ICL and make an order that the Mother have sole parental responsibility for the children and also make an order in relation to the Mother informing the Father of upcoming decisions and taking into account any views expressed by him and then informing the Father of the outcome of the decision. I prefer the orders as set out in the ICL’s minute as I consider six weeks a suitable time unit.
What orders are proper in relation to the time the children will spend with their father?
As an order will not be made providing for the children’s parents to have equal shared parental responsibility for them I am not required to consider specifically the matters referred to in section 65DAA of the Act. I must determine in the light of the findings that I have made in considering the primary and additional considerations what orders are proper in relation to the time to be spent by the children with the Father.
In line with the findings I have already made relating to unacceptable risk, I find that the first step for orders in relation to the Father spending time with the children must be that:
(a)The time is daytime only;
(b)Occurs once each week;
(c)Is in general presence of an adult person agreed between the parties and known to the children; and
(d)Continues for such time as it takes for the Father to complete an appropriate anger management course and an appropriate parenting course or for six months, whichever is longer.
I find on the evidence, particularly the evidence of Ms M, and also on the basis of order 17 proposed in the Mother’s Minute of Order and orders 6 and 9 proposed in the ICL’s Minute of Order, which were consented to by the Father in submissions (order 9 through his express consent to order 6), that the appropriate anger management course to be undertaken by the Father is the “Taking Responsibility” men’s behavioural change course operated by C Counsellors.
I find that the appropriate parenting course to be undertaken by the Father during the initial stage is “Tuning into Kids”, also operated by C Counsellors.
In relation to the one occasion each week in the initial stage, I find that the proposal by the Mother that in one week the children’s time be from after school until 6:30PM if a school day or 10:00AM until 3:00PM if a non-school day, and in the other week on Sunday from 10:00AM until 3:00PM is appropriate. In line with the findings that I have already made in these Reasons, the initial stage of the children’s time with the Father will be for six months or until the Father has completed the courses, and should take place in the general presence of an adult person known to the children, being in line generally with order 6 as proposed by the Mother in her Minute of Order, and order 6 as proposed in the ICL’s Minute of Order. No such safeguard addressing what I have found to be an unacceptable risk at present is found in the orders proposed by the Father, but he gave his consent to the ICL’s order 6 during submissions.
A point of difference between the order proposed by the Mother and the order proposed by the ICL and consented to by the Father is the identification of the adult person known to the children to be generally present during the initial stage. The Mother proposes that the adult person be a person nominated by the Father and consented to by the Mother on the basis that she not unreasonably withhold consent. The ICL proposes that it be a person nominated by the Father with a power of veto to the Mother. As I have already found, the proper order to be made in the children’s best interest with those interests as the paramount consideration, is that the adult person be a person approved by both of the parties – each of the parties may nominate and each of the parties may veto – on the basis that they have shown since 27 September 2018 that they are capable of agreement as to suitable persons and they already have a range of suitable persons who have undertaken that role in the past, albeit as supervisors rather than as a person generally present. Accordingly, I propose to make an order in line with the Mother’s minute, but without specifying the procedure for selecting such person.
On the basis of the expert evidence provided by Ms M, with which on a consideration of the whole of the evidence in this matter I agree, I find that the progression through stages of increasing time between the Father and the children proposed by the Father in order 9 of his Minute of Order are not appropriate, being too rapid. On the other hand, I find that the progression proposed by the ICL in order 5 in the ICL’s minute of order is too slow in relation to the second step progressing to the third step, and I prefer to follow the suggestion of Ms M that the second step be over a period of 12 months daytime only time for the children with the Father without the necessity for any other adult to be present and involving some increases in time during that period, rather than the 15 month period without increases proposed by the ICL.
I find that it is appropriate that after the second step over a 12 month period, that the Father’s time with the children progress to overnight time and that such overnight time increase by appropriate steps to the “endpoint”. What should that “endpoint” be? The Mother leaves determination of the endpoint to further discussion and agreement between the parties and I determined that that is not the appropriate approach. The ICL proposes in order 5(d)(i) of the ICL’s minute of order that the endpoint be each Wednesday from the end of school until 7:00PM, and each alternate weekend from the end of school on Friday until 5:00PM on Sunday. The Father proposes that the endpoint be each alternate weekend from the end of school on Thursday until the commencement of school on Monday.
That the children spend equal time with each of their parents is patently not in the best interests of the children and is not sought by either parent or the ICL, having been abandoned by the Father for the final hearing, wisely, on the evidence.
As I mentioned earlier, I find that it is appropriate that the children have the opportunity to spend substantial and significant time with their Father, in keeping with the definition of substantial and significant time found in section 65DAA(3), as an endpoint of the progression of the children’s time with the Father, so as to afford the children a proper opportunity to develop and maintain a meaningful relationship with their Father once the unacceptable risk that I have identified has been removed through the first stage of such time under the final orders. On that basis, I consider the endpoint proposed by the Father of his time with the children being each alternate weekend from end of school on Thursday until the start of school on Monday is the appropriate order to be made as the endpoint, the graduations adding one night at three monthly intervals after the commencement of overnight time.
In relation school holidays:
(a)The Father proposes that he have half of all school holidays commencing on the second lot of school holidays after making of final orders;
(b)The ICL proposes that the Father not have specific school holiday time with the children until some two and a half years after the making of final orders (the final hearing having taken place in May 2021 and the ICL’s proposal for school holiday time commencing with the Term 1 school holidays in 2024); and
(c)The Mother makes no proposal for school holiday time for the children with the Father, but orders 14 and 15 in her Minute of Order makes provision for suspension of the Father’s time during school holidays with the requirement for make-up time.
I find that once the Father has reached the stage of having two consecutive overnights with the children on a fortnightly basis it is in their interest that special arrangements be made in orders for school holidays by suspending the Father’s regular weekly time during school holidays and providing for the children to spend time with the Father during school holiday periods on an increasing basis until arriving at half the school holidays. It may seem that my proposed order is not to be found in the orders proposed by either of the parents or the ICL. The Mother proposes there be no final order relating to school holidays – in effect no school holiday time in the orders – and the Father proposes an immediate order that within at the most four months of final orders he commence having one half of all school holiday periods with the children. I posit that an order that lies between them and moves on a graduating basis to the Father’s position is an order that was open to the parties and the ICL to make submissions upon in the final hearing.
I find that until the Father is spending specific time with the children during school holidays (as opposed to a continuation of his week to week time through the school holidays as in the early stages of graduation), the making of orders as sought by the Mother in orders 14 and 15 of her Minute of Order is proper in the best interests of the children to enable them to have some holiday time with their Mother.
The Mother proposes that the Father have specific time with the children on each of their birthdays and his birthday from 3:00PM to 6:30PM, on Father’s Day from 10:00AM to 3:00PM and from 10:00AM until 3:00PM on Christmas Day in odd-numbered years and 10:00AM until 3:00PM on Christmas Eve in even-numbered years – noting that order 12 and in its literal terms would provide for the Father to have the children with him from 10:00AM until 3:00PM every Christmas Day, but the Court was advised that order 12(d) referred to Christmas Day in 2022 by error and should have referred to Christmas Eve in 2022. The Mother’s order 13 provides for the Father’s time to be suspended if it coincides with Mother’s Day.
Orders 5(e) and 7 in the ICL’s Minute of Order dealt with the Father having time with the children from 10:00AM until 5:00PM on Father’s Day for two occasions following final orders and thereafter, from 5:00PM on the Saturday until 5:00PM on the Sunday of the Father’s Day weekend, and for the children to be in their Mother’s care despite any other order from 5:00PM on Saturday to 5:00PM on Sunday on the Mother’s Day weekend. The ICL’s Minute of Order did not address any other specific special occasions.
The Father’s Minute of Order proposes that the children be in his care on Father’s Day from 10:00AM until 5:00PM, on the Father’s birthday and each of the children’s birthdays from 5:00PM until 7:00PM if not otherwise spending time with him, and from 10:00AM on Christmas Day until 5:00PM on Boxing Day in odd-numbered years and from 10:00AM on Christmas Eve until 10:00AM on Christmas Day in even-numbered years, with the Father’s time to be suspended from 10:00AM to 5:00PM on Mother’s Day, and from 5:00PM to 7:00PM on the Mother’s birthday.
In the interest of minimising the necessity for changeovers between the parties, I find that it is appropriate to make specific orders dealing with the children’s time with the Father on Father’s Day and over Christmas, and to make specific orders dealing with the children’s time with their Mother on Mother’s Day and over Christmas, but not in relation to birthdays. Each parent is able to celebrate birthdays when the children are next with them.
Neither the Mother nor the ICL sought any order in relation to the Father communicating with the children while they are in the Mother’s care or the Mother communicating with the children while they are in the Father’s care. The Father did not seek an order in that regard, but in paragraph 15 of his Minute of Orders he sought a notation “that each parent will facilitate the children having telephone communication with the other parent whilst the children [are] in their care.” I do not find that it is appropriate to make any order relating to telephone communication between the children and the parents.
Consideration of other orders sought
The Mother proposes in her order 16 that any changeovers not occurring at the children’s school is to occur by the Father collecting the children from the Mother’s residence at the start of his time and the Mother collecting the children from the Father’s residence at the end of his time, with neither party entering upon the other party’s property “past the line of the letterbox”.
In his order 11 the Father proposes that changeovers not occurring at the children’s school occur by the Mother delivering the children to the Father’s residence at the start of his time and the Father delivering the children to the Mother’s residence at the end of his time.
The ICL proposes in order 8 in the ICL’s minute that changeovers occur by the Mother delivering the children to, and collecting the children from, the Father’s residence unless otherwise agreed in writing.
It is inherent in the order for changeover sought by the Mother that she does not oppose the Father attending at her residence for the purpose of the changeover at the start of the Father’s time provided he does not enter onto her property past the line of the letterbox. Where both parties propose that they each take responsibility for one of the journeys to changeover for the children’s time with the Father, I find it is appropriate to reject the ICL’s view that the Mother undertake all such journeys to make an order providing for each of the parents to participate in travel.
I prefer the changeover pattern proposed in the Mother’s orders, that the Father collect the children from the Mother’s residence at the start of his time and the Mother collect the children from the Father’s residence at the end of his time, unless otherwise agreed between them as to parent travel and place of changeover. If the parent into whose care the children are moving is doing the travelling, but through traffic or other cause is delayed, then the children will be in the other parent’s care for longer than the orders anticipate but through no fault of that other parent and so there are no grounds for an argument.
In practical terms, if the Father travels to collect the children at the start of his time and is delayed and so they come into his care late it is not the Mother’s fault and there are no grounds for accusation by the Father and an argument. If the Mother travels to collect the children at the end of the Father’s time and is delayed and so the children in the Father’s care for longer than contemplated in the orders it is not the Father’s fault and there are no grounds for accusation by the Mother and an argument.
In the reverse circumstances as proposed by the Father, where the Mother is to deliver the children to him at the start of his time, if the Mother is delayed by traffic or any other cause, the Father has lost time and the ground is tilled fertile for accusation and argument, and vice versa, if the Father is to return the children to the Mother at the end of his time. The proposal of the Mother is, for the reasons I have laboriously sought to illustrate, known in family law practice as “the argument blocker” for changeovers. I will make the changeover arrangements as proposed by the Mother including her stipulation that “neither party may enter onto the other party’s property (that is, they shall not go past the line of the letterbox).”
Each of the parents and the ICL seek a range of orders in relation to the parents being advised in relation to medical and education matters for the children and on consideration of the competing proposals, I prefer such orders as proposed in the ICL’s Minute of Order.
The Father and the ICL propose an order in relation to the parties keeping each other informed of their contact details and in that regard I prefer order 10 in the ICL’s Minute of Order.
The Father seeks in order 5 of his Minute of Order that each parent be entitled to attend all events involving the children including, but not limited to, sporting fixtures, extracurricular activities that allow for parent attendance or participation and school functions and events that allow for parental attendance or participation, and then again in his proposed order 14 he seeks an order that neither party will be precluded from attending any school function or activity involving either child in the event that such function or activity occurs when the children are in the care of the other parent. Not surprisingly, the Mother seeks no such orders. The ICL at 15(c) of the ICL’s minute seeks an order that each parent is at liberty to attend school events to which parents are invited, including parent teacher interviews, concerts, sport events and performances, with the Father to give the Mother at least 48 hours notice in writing of his intention to attend any such event.
I find that the order as proposed by the ICL is an appropriate order, but with the addition there to of an order restraining the Father from approaching and attempting to communicate with the Mother at any such event unless specifically invited to do so by the Mother. I say here for the benefit of the parties that in the event that both are attending a school event for the children it would be very much in the children’s interest if the parties can appear to at least acknowledge each other in a friendly manner, commencing with the Mother as her invitation to the Father in view of the terms of the injunctive order I propose, without the necessity for anything more between them.
Each party and the ICL propose an order in the nature of a “non-denigration order” and I intend to make such an order in my own terms as a mix of the concepts put forward in the competing proposals of the parties and the ICL, and also to make the injunctive order proposed by the ICL and the Mother, and specifically accepted by the Father in the course of his cross-examination, restraining the parties from physically disciplining the children and including in such order the additional wording in the Mother’s proposed order relating to “throwing any item at [the children] or in their direction” in view of the matter contained in the evidence from 20 December 2020.
As I have already indicated in findings earlier in these Reasons, I propose to make each of the injunctive orders as sought by the Mother in order 24 relating to each of the parents and order 25 relating to the Father only, except for 25(e) relating to the Father toileting the children.
I will make order 22 as proposed by the Mother in relation to the Mother providing the Father with updating information and any exercises that Y is required to undertake by a speech therapist, and also order 23 as proposed by the Mother in relation to the parties communicating with each other about the care, welfare and development of the children by using the Family Wizard application or such other application as is agreed between them, and to add to it the order found in the ICL’s proposed order 11 relating to communication between the parents that “all such communications be polite and businesslike and relate solely to matters concerning the care of the children.”
In line with the findings I have made earlier about the Father’s previous conduct of exposure around the children, I will make the notation sought as notation A in the ICL’s minute of order.
In conclusion
I have determined the orders proper to be made in the best interests of the children with the children’s interests as the paramount consideration. I have made those determinations on the basis of all of the evidence on hearing and the submissions on behalf of the parties and the ICL and the application thereto of the applicable law on the legislative pathway.
Having done that the reality of how things proceed from here is up to the parents, and more specifically to the Father. As I have determined, the orders are being made on the basis that there is an unacceptable risk, but that such unacceptable risk can be addressed by his undertaking and completing the “Taking Responsibility” course with the children’s time with him thereafter proceeding to substantial and significant time over a lengthy period of graduation. If, despite compliance with the orders and completion of the course, the Father finds himself unable to curb his propensities that have given rise to the unacceptable risk, then the matter will surely find its way back to the Court with possible unfortunate consequences for the relationship between Father and children. It is to the greatest degree in the Father’s hands. The Father and children have waited long enough for the finalisation of these proceedings. It is up to the Father to make sure that he takes full advantage of the possibilities that the final orders open up for his relationship with his children.
The ICL’s costs application
The ICL made an application that each of the parties pay the costs of the ICL of the proceedings. Orders 16 of the ICL’s Minute of Orders sought that the Mother pay to Legal Aid NSW $4,530 by way of contribution the costs of the ICL, and at order 17 that the Father pay Legal Aid NSW $6,180 by way of contribution to the cost of the ICL, and that such payments to be made within six weeks of final orders.
The difference in amount sought from the parties is in consequence of the Mother having paid a sum $1,650 to Legal Aid NSW as notified to her solicitors by the ICL upon appointment and the Father not having paid that sum.
At the end of submissions, Ms Eldershaw indicated the Mother’s consent to the costs orders as sought by the ICL and Mr Jackson indicated that the Father left consideration of the matter to the Court, without any other submissions being made on the matter.
The question of costs in proceedings under the Act is dealt with in section 117 of the Act, which provides as a general rule that each party to proceedings shall bear his or her own costs, but that if in proceedings under the Act the Court is of the opinion that there are circumstances that justify it doing so, the Court may, subject to certain subsections and the Rules of Court, make such order as to costs as the Court considers just. The ICL is not a party to the proceedings and so not covered by the general rule, but subsection (3) makes clear that a costs order can be made requiring a party or parties to pay costs of the ICL.
In considering what order (if any) should be made in relation to costs the Court must have regard to the matters set out in (a) to (g) of section 117(2A), (a) to (f) being specific matters and (g) covering “such other matters as the court considers relevant”.
Pursuant to section 117(4), the Court must not make an order for a party to pay or contribute to of the costs of an ICL if the party “has received Legal Aid in respect of the proceedings” or the Court considers that the party would suffer financial hardship in consequence of that order.
Under section 117(5), the Court must disregard the fact that the Independent Children’s Lawyer is funded under a Legal Aid scheme or service established under a Commonwealth, State or Territory Law or approved by the Attorney-General.
Pursuant to Full Court authorities, I must regard the ICL as unfunded.
I have some evidence of the financial circumstances of each of the parties drawn from their evidence in the proceedings and I have had recourse to the Financial Statements of each the parties that I referred to in these Reasons in consequence of the matter arriving before the Court on the first day of the final hearing as set down for hearing on both parenting and property settlement proceedings. I find that each of the parties are in such financial circumstances that the making of the orders as sought by the ICL for contribution to costs will not cause either party to suffer financial hardship and that they are in a financial position to meet the orders as sought by the ICL.
On the evidence before me neither party was in the final hearing, or previously, in receipt of a grant of Legal Aid for the proceedings.
There is nothing in the conduct of the parties that would provide of itself a basis for the making of the costs orders sought by the ICL. The proceedings were not necessitated by the failure of either party to comply with a previous order of the Court and neither party nor the ICL has been wholly unsuccessful in the proceedings.
On the basis of my consideration of the financial circumstances of each of the parties, and taking into account that the Mother consented to the costs order sought by the ICL and the Father made no submissions against the application and left the matter to the Court, I find that there are circumstances that justify the Court in making the orders for contribution to the ICL’s costs as sought.
I make the orders as set out at the start of these Reasons.
I certify that the preceding two hundred and ninety-eight (298) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 5 September 2022
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