Birchall and Ellingford

FAMILY COURT OF AUSTRALIA

BIRCHALL & ELLINGFORD

[2018] FamCA 539

FAMILY LAW – CHILDREN – Whether an order for equal share parental responsibility should be made – Allegations of family violence – Father retained children without the knowledge or consent of the mother – Apprehended Violence Order (AVO) for the protection of the mother issued on a “without admissions” basis – Father convicted of harassing the maternal grandparents – Father’s mental health – When and under what conditions the children should travel from Sydney to Tasmania to spend time with the father – Which party should bear the cost of the children’s travel to spend time with the father – Orders made for the father to spend time with the children in Sydney progressing to the children travelling to Tasmania.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Birchall

RESPONDENT:

Ms Ellingford

INDEPENDENT CHILDREN’S LAWYER:

KD Holmes

FILE NUMBER:

SYC

7219

2015

DATE DELIVERED:

18 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Stevenson J

HEARING DATE:

21, 22 and 25 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Spain

SOLICITOR FOR THE APPLICANT:

Butler McIntyre & Butler

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

INDEPENDENT CHILDREN’S LAWYER:

Mr Holmes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

KD Holmes

Orders

1.1 The parties have equal shared parental responsibility for making decisions for the long-term care, welfare and development of the children:
●X born in 2011 and
● Y born in 2012
("the children") subject to Order 1.2.
1.2In the event that the parties are unable to agree upon decisions concerning the children's health or education within 28 days of one party putting forward a proposal as to the same in writing to the other party, the mother has sole parental responsibility for making such decisions and the mother shall keep the father informed of all such decisions.
1.3The mother has responsibility for making decisions for the day-to-day care of the children when the children are living with her, and the father has responsibility for making decisions for the day-to-day care of the children when they are spending time with him.
The children live with the mother.
For a period of six months from the date of these Orders, the children spend time with the father from 9.00 am until 4.00 pm on one Saturday or one Sunday in each alternate weekend in Sydney.
Within six months from the date of these Orders, the father will attend, complete and provide to the mother proof of completion of:
4.1 a Circle of Security course
4.2Taking Responsibility – A Course for Men, offered by G Group.
After six months from the date of these Orders, for a further period of three months and subject to the father having complied with Orders 4 and 16 hereof, the children spend time with the father from 9.00 am until 4.00 pm on each of a Saturday and a Sunday in every alternate weekend in Sydney.
Following such a period of three months and subject to the father having complied with Order 4 and continued to comply with Order 16 hereof, the children spend time with the father from 9.00 am Saturday until 4.00 pm on Sunday in each alternate weekend in Sydney.
7.1 On the expiration of the periods of six months, three months and three months prescribed in Orders 3, 5 and 6 hereof the children spend time with the father in Tasmania for one weekend per calendar month from Friday afternoon until Sunday afternoon.
7.2The father will nominate the weekend on which he proposes that the children spend time with him no later than the 15^th day of the preceding month and the mother will respond within five days provided that if the parties are unable to agree upon dates when the children spend time with the father, they will do so on the second full weekend of the month.
During the Christmas 2019 and 2020 school holidays the children spend time with the father for a block period of five days during January 2020 on dates to be nominated by the father and the mother advised no later than 30 November 2019.
During the terms 1, 2 and 3 school holidays in 2020 the children spend time with the father for a block period of five days as agreed or in default of agreement, from approximately 3.00 pm on the first Thursday until approximately 5.00 pm on the following Tuesday.
During the terms 1, 2 and 3 school holidays, commencing in 2021, for a block period of seven days as agreed or in default of agreement from approximately 3.00 pm on the first Thursday until approximately 3.00 pm on the following Thursday.
During the Christmas school holidays, commencing in 2021, the children spend time with the father for a block period of 14 days as agreed or in default of agreement as nominated by the father and the mother advised no later than 30 November each year. This time can include Christmas Eve, Christmas Day and Boxing Day only in 2022 and each alternate year thereafter with the intention that the children spend alternating Christmas periods with each parent.
For a period of three years from the date of these Orders the parties facilitate supervision of changeovers by an agreed person or a member of staff of B Group, with each party to pay half of the cost of any such professional supervision.
The father will pay the whole of the costs of the children's travel to Tasmania.
Each of the parties is permitted to travel outside of Australia with the children for a maximum period of three weeks in every twelve months, subject to the following conditions:
14.1the father may commence such travel with the children in 2021
14.2the travelling parent provides to the other party an itinerary and details of accommodation at least 14 days prior to departure
14.3such travel is limited to countries which are parties to the Hague Convention or are not subject to Department of Foreign Affairs and Trade Smart Traveller warnings against non-essential travel and the other party proffers consent.
Each of the parties do all things necessary to ensure that the children hold a current Australian passport and pay one-half of all necessary expenses, with the mother to hold the children’s passports when not used by the father for travel pursuant to Order 14.
The father continue to consult his treating psychologist Mr C or such other psychologist and/or psychiatrist as may be recommended by Mr C ("treating health professional") and:
16.1comply with all directions made by his treating health professional, including frequency of consultations and
16.2within seven days of the date of these Orders execute an irrevocable authority which directs his treating health professional to notify the mother forthwith in the event that the father:
16.2.1fails to attend a scheduled appointment or submit to recommended treatment
16.2.2suffers a mental health episode which results in his hospitalisation and/or impacts upon his capacity to care for the children without supervision
16.2.3suffers a substantial negative change in his diagnosis or prognosis.
The father is restrained from consuming alcohol for twelve hours prior to and during all periods when the children spend time with him pursuant to these Orders or by agreement between the parties.
The mother facilitate the children communicating with the father by telephone, Facetime, email and Skype on two occasions per week, each of a maximum 15 minutes duration between 7.00 am and 7.30 am.
The father facilitate the children communicating with the mother by telephone, Facetime, email and Skype on two occasions per week while in the care of the father, each of a maximum 15 minutes duration between 7.00 am and 7.30 am.
Each of the parties will advise the other, as soon as reasonably practicable, of any medical emergency involving the children.

AND IT IS ORDERED BY CONSENT THAT:

Each of the parties pay to the Independent Children's Lawyer a sum of $5,813.50, being one-half of the costs of the ICL in a total amount of $9,427 and the professional fees of Dr D in a total amount of $2,200.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Birchall & Ellingford has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7219 of 2015

Mr Birchall

Applicant

And

Ms Ellingford

Respondent

And

Independent Children's Lawyer

KD Holmes

REASONS FOR JUDGMENT

The proceedings

Mr Birchall (“the father”) and Ms Ellingford (“the mother”) are the parents of two children:
·X born in 2011 (aged 7) and
·Y born in 2012 (aged 5).
These proceedings concerned parenting orders. Essentially, the issues in dispute were as follows:
1.Should the parties have equal shared parental responsibility or should the mother have sole parental responsibility for the children?
2.At what time and under what conditions should the children begin to travel to Tasmania to spend time with the father at his home?
3.Should the parties share equally in the costs of the children spending time in Tasmania with the father or should he bear all of these expenses?
The applicant father sought orders which may be summarised as follows:
1.the parties have equal shared parental responsibility for the children
2.until October 2018 the children spend time with the father in Sydney on Saturday and Sunday for one weekend per month
3.the children spend time with the father in Sydney from 9.00 am on Saturday 10 November 2018 until 4.00 pm on Sunday 11 November 2018
4.the children spend time with the father in Tasmania for one weekend per month commencing on 30 November 2018
5.the children spend time with the father in Tasmania from 8.00 am on 24 December 2018 until 12 noon on 27 December 2018
6.the children spend time with the father for five nights in each school holiday in 2019 and for one week commencing in 2020
7.the children spend time with the father for five additional nights during the Christmas period in 2019 and for seven additional nights from 2020/2021
8.the children spend time with the father for specified periods at Christmas, Easter, Father's Day and on their birthdays
9.each parent is permitted to travel internationally with the children for a maximum of 14 days per year
10.the parties arrange for all handovers to be supervised by an agreed person or a staff member of B Group
11.the children communicate with the father three times per week for a maximum of 15 minutes.
The father did not propose a specific order that the children otherwise live with the mother. I would infer that such an order is implicit in his Amended Initiating Application filed on 20 April 2018.
The respondent mother sought orders which may be summarised as follows:
1.the mother have sole parental responsibility for the children and they live with her. In the alternative, the parties have equal shared parental responsibility for decisions in relation to the long-term care, welfare and development of the children and that the mother have sole parental responsibility in the event that the parties are unable to agree on an issue concerning health and education
2.the children spend time with the father from 9.00 am until 4.00 pm on one Saturday or Sunday per month in Sydney for a period of six months
3.within six months the father attend two specified courses and provide the mother with evidence of completion
4.the father continue to attend upon his treating psychologist Mr C and authorise his health care practitioners to advise the mother of any hospitalisation due to a mental health episode and/or a change in his condition which impacts upon his capacity to care for the children
5.after six months and for a period of eighteen months the children spend time with the father from 9.00 am until 4.00 pm on each of Saturday and Sunday on alternate weekends in Sydney
6.thereafter the children spend time with the father from 9.00 am on Saturday until 4.00 pm on Sunday on each alternate weekend in Sydney for a further period of 18 months
7.from 16 November 2020, in an eight week time cycle, the children spend time with the father for three weekends in Sydney and one weekend in Tasmania
8.the children spend time with the father for seven days during the Christmas school holidays in 2020
9.the children spend time with the father for a seven day block period during the short school holidays from Term 1 in 2021 and for 14 days during the Christmas vacation
10.the children spend time with the father from 11.00 am until 4.00 pm on Christmas Day in Sydney in 2018
11.changeovers are supervised by an agreed person or a member of staff of B Group
12.the mother is permitted to travel outside Australia with the children immediately and the father from 2021
13.the father is restrained from consuming alcohol for 12 hours prior to and during the children's time with him.
The Independent Children's Lawyer ("ICL") proposed orders in the following general terms:
1.the parties have equal shared parental responsibility for decisions concerning the long-term care, welfare and development of the children and that the mother have sole parental responsibility in the event that they are unable to agree on an issue concerning health and education
2.the children live with the mother
3.the children spend time with the father in Sydney until the end of 2018, on a graduated basis leading to full weekends from Friday to Sunday
4.the children commence spending time with the father in Tasmania from late 2018/early 2019.

Background

The mother and the father, who are both aged 43, began to cohabit on 28 October 2008 and married in 2009. Initially they lived in Tasmania but moved to Sydney in October 2009.
For the first twelve months of the marriage the father spent three days per week in Tasmania for work purposes, before taking on employment in Sydney in January 2011. In March 2015 the father settled litigation against a company known as E Ltd, which had employed him as a manager. The father was unemployed between March 2015 and the parties' separation in August 2015.
The mother alleged that the father has difficulty with anger management and frequently subjected her to verbal abuse and physical intimidation during the relationship. On 16 September 2010 the mother wrote to the father after an argument/confrontation between the parties and made reference to his physical intimidation of her. She referred also to her attempts to kick him and to the fact that she threw a set of keys in his direction.
In October 2010 the mother wrote to the father's psychiatrist, Dr F, in similar terms (Exhibits 39 and 40 to the affidavit of the mother sworn on 16 April 2018). The father attended an anger management course conducted by G Group in 2013.
On 22 March 2014 Dr F reported to the father's general practitioner as follows, inter alia:
I formed the view that [Mr Birchall] was suffering from a long-standing personality disorder with narcissistic features. He was easily injured by others who failed to recognise fully for what he was. At the same time he was vulnerable to fragmentation, anger and withdrawal when disappointed by the acknowledgment of those around him. He demonstrated a history of alcohol dependence which is now partially in remission.
I have recommended psychotherapy to treat this personality disturbance and we have been meeting on a regular (sic).
There have been broad areas of improvement during these last years. [Mr Birchall] has largely stopped his alcohol use and has been actively losing weight through a program of physical fitness. Last year he ran a marathon which invoked a sense of pride. ...
The marriage has been difficult at times, especially when he is disrupted by some sense of disappointment in his partner that leads to angry outbursts. Although the gains have been quite striking, some elements of the narcissistic vulnerability remain. ..."
On 1 May 2015 Dr F advised the father's general practitioner that he had attended therapy on a regular basis but ceased treatment "precipitously" "as a cost saving measure". The father's decision appears to have been prompted by financial stress arising from the litigation with his ex-employer. The father had no further therapy until 1 November 2016, when he first consulted a psychologist Mr C.
On 25 August 2015 an incident occurred between the father and Y, who was then almost three years of age. The mother deposed that Y kicked the father's head while he was attempting to pull up the child's nappy. The mother deposed further that the father became angry and struck Y on the side of his head. The father deposed that Y was "mucking around" while he was putting on his pyjamas and that the child kicked his head. The father maintained that he smacked Y lightly on his leg "as a warning".
On the following day the mother attended a police station and two officers then went to the former matrimonial home. The mother claimed that she intended only "to seek information that may be available on corporal punishment and the law" when she attended the police station. Unconvincingly, in my view, the mother contended that she "didn't realise the police would then undertake a home visit to check on the children and speak to [Mr Birchall]".
On the evening of 26 August 2015 the father moved into a spare bedroom at the family home and the parties and the children then remained under one roof until 24 September 2015. The mother then took the children to stay at the home of the maternal grandmother in the southern outskirts of Sydney.
On the evening of 24 September 2015 the father was arrested by two police officers, who issued a provisional Apprehended Violence Order ("AVO") for the protection of the mother. On 29 September 2015 a police officer contacted the father and informed him that the mother alleged that he had breached the provisional AVO.
On 29 September 2015 the mother and the children vacated the former matrimonial home. In his affidavit the father alleged that he "had no idea where the children were" during this period. In cross-examination, however, he conceded that during this time the mother sent a number of videos to him which featured the home of the maternal grandmother.
Between 23 October 2015 and 4 November 2015 the father spent unsupervised time with the children from 9.00 am until 4.00 pm on two occasions per week. On 4 November 2015 the father failed to return the children to the mother in the afternoon and retained them until 9 November 2015. Without the knowledge or consent of the mother, he took the children to the home of the paternal grandparents in Queensland. It appears that the paternal grandparents had never before met Y and had last seen X when she was a baby.
On 15 October 2015 the application for an AVO was withdrawn after the father gave an undertaking to vacate the former matrimonial home. The mother and the children returned to the premises on 17 October 2015.
In late 2015 an incident involving the father and the mother occurred at the children's day care centre. The father attended the centre in order to give Y a birthday present. The parties gave contrasting accounts of this incident, for which each essentially attributed blame to the other. The manager called police and, ultimately, the father left the premises on their advice.

The director and a member of staff of the child care centre gave statements to police in relation to this incident (Exhibit 9). The director stated that the father swore and made derogatory comments about the mother in her presence. She stated further that she called police because she was concerned for the safety of the 25 children who were at the centre. The staff member stated that the father was "aggressive and speaking in a very strong and overbearing manner." She stated further that she "felt powerless against him and was intimidated by his demeanour during the whole incident.
When taken to these statements in cross-examination, the father said that he "did not accept" these versions of the incident. The statements were untested but I can see no reason why the director and staff member would see fit to provide an untrue account of the incident to police officers.
During this incident the mother informed police officers that she observed sexualised behaviour on the part of X after her return from Queensland on 9 November 2015. The father deposed:
80.A [Sergeant H] then arrived and advised me that [Ms Ellingford] had accused me of sexually abusing [X].
The mother said that she provided this information in response to a request by a police officer for an explanation why she "would not let the children go with the father". It was regrettable that X's alleged sexualised behaviour was raised at all during this incident.
Correspondence between the parties' solicitors in January 2016 in fact clarified that the mother did not allege any "impropriety" toward X on the part of the father. In a letter dated 20 January 2016 the father's solicitor wrote to the mother's lawyer, inter alia, as follows:
I am aware that my client's previous solicitors requested particularisation of your client's concerns about [X's] sexualised behaviour but that no particularisation has yet been received. If it is your client's position that she does allege any impropriety on the part of my client then her motives in raising the issue in the context of the court process are questionable.
What is your client's position as to those allegations?
The mother's solicitor responded as following by letter dated 28 January 2016:
... It was made clear to your client on several occasions at the interim hearing on 22 December 2015 by counsel appearing for the wife and Judge Henderson that our client does not alleged "impropriety" by your client towards [X]. Our client's concerns are that [X] is exhibiting overtly sexualised behaviour that was not present prior to the parties' separation. ..."
(Exhibit 7 to the affidavit of the father).
On 28 November 2015 the mother left the former matrimonial home with the children and the father moved into the premises. The mother and the children returned to the property on 1 January 2016, after the father relocated to Tasmania for employment purposes.
On 4 December 2015 the father left abusive telephone messages for the maternal grandfather and the mother. One of these recordings was played during the cross-examination of the father and he could be heard screaming "you fucking nutter" at the mother. The father conceded that he could not control his anger on this occasion. On 16 December 2015 a provisional AVO was issued against the father for the protection of the mother and the maternal grandparents. A final AVO for the protection of the mother for two years was issued on 4 February 2016 on a "without admissions" basis.
On 22 December 2015 the Federal Circuit Court made interim orders which provided that the children spend supervised time with the father. The father elected not to see the children under supervision until 22 February 2016, by which time he said that he had "swallowed his pride".
On 25 February 2016 the parties and the children attended a Child Dispute Conference. The Family Consultant noted in her memo, inter alia:
Throughout the Child Dispute Conference interview, [Mr Birchall] became increasingly less able to keep control of his emotions, becoming aggressive in the manner and tone he used with the Family Consultant.
The father explained this conduct by stating that "I was on the back foot from the time I walked into the family consultant's office."
On 30 June 2016 further interim orders were made by the Federal Circuit Court. These orders removed the requirement for supervision, other than at changeovers, and transferred the proceedings to the Family Court of Australia.
In late 2016 the father was charged with harassing the maternal grandparents. An audio recording of one of these communications to the maternal grandfather was played during the trial and transcripts were in evidence as Exhibit 49 to the affidavit of the mother sworn on 16 April 2018. There is no doubt that these communications were highly offensive, expressed in vulgar language and clearly intended to intimidate the maternal grandfather.
The father was convicted of these two offences in mid 2017 and lodged an appeal. These convictions were upheld on appeal in early 2018.
The father attempted suicide, following his criminal convictions in 2017. He was taken by ambulance to hospital and deemed to be a person with "lack of decision-making capacity" pursuant to the mental health legislation of Tasmania.
In a proof of evidence dated 21 May 2018 (Exhibit 2) the father gave this account of his suicide attempt:
5.On [a day in] 2017, at approximately 5:30am, I woke to a call from [radio] news inviting me to comment on [a] newspaper story that I had been convicted of a felony and asking whether I intended to resign or had been sacked from my position. Whilst waiting in the [airline] lounge at Melbourne airport for my flight, I received several other similar messages from media outlets, as well as messages of support. I did not respond to any messages.
6.Arriving home, at approximately 10am, and overcome with despair, I made the decision that I would take a shower and slit my wrists.
7.Having reached this point, I decided the best way to dull any potential pain would be to inebriate myself with gin and tonics.
8.Whilst drinking the G & T's, I spoke with family members and returned some calls to those who had left messages of support. While on the telephone, I was interrupted by my friends, [Ms K] and [Ms J], who arrived on my doorstep as they had detected that I wasn't myself. They were concerned about me and called the ambulance.
9.I was then taken to [L Hospital]. I was admitted to one of the Emergency beds and placed under observation. Following a rest period, I was visited by my partner [Ms N] and my sister [Ms M], who is a [health professional] based in Canberra who, having been contacted by my mother following my earlier conversation with her, had flown to [Tasmania].
10.The following day I was interviewed by specialist psychological doctors and discharged into [Ms M's] care. My mother (who lives with my father in O Town, Queensland) had by this time also arrived in [Tasmania]. My friends, [Ms K] and her husband [Mr P], generously offered us the use of their holiday beach house at [Q Town] and I stayed there with mum and [Ms M] for the next five days, returning to [Tasmania] for appointments with my GP,
[Dr R] and Psychologist, [Mr C]. On Saturday, I departed for Sydney to spend time with the children.
11.I have continued to see [Mr C] approximately fortnightly since this time."
Records produced on subpoena by L Hospital (Exhibit 9), however, demonstrated that the father consumed prescription medication in addition to alcohol and that he was "unrousable" when the two friends arrived at his home. The hospital records also recorded a history from the father's mother, which was summarised as follows:
Collateral hx from [Mr Birchall]'s mother, who expresses significant concerns re [Mr Birchall]'s mental state, suicidality and alcohol intake. ... [Mr Birchall]'s sister is flying down from Canberra, however his mother feels [Mr Birchall] is likely to reject offers of help and support from family members.

Approach To These Proceedings

In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings. Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out “primary” and “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.
The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2). Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.
Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.
If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (s 65DAA(1)). If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent. The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3),(4) and (5) of the Act. There is no temporal definition of “substantial and significant time”.
In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:
8.Sub-section (1) of s 65DAA is headed “Equal time” and provides:
“If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.”
Sub-section (2) makes provision for where a parenting order provides that a child’s parents are to have equal shared parental responsibility for the child (para (a)) but the Court does not make an order for the child to spend equal time with each of the parents (para (b)). In such a circumstance the Court is obliged to:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
Subsection (3) explains what is meant by the phrase “substantial and significant time.”
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question.
Sub-section (5) provides in that respect that the court “must have regard” to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and “such other matters as the court considers relevant”, “[i]n determining for the purposes of subssections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents”.
…
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. The words with which par (c) commences (“if it is”) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made,
sub-ss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That sub-section follows the same structure as sub-s (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.
…
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible. …
(footnotes omitted)

The evidence and witnesses

The applicant father relied on his affidavit sworn on 19 April 2018 and a proof of evidence in relation to his suicide attempt in 2017 (Exhibit 2). He swore a Financial Statement on 19 April 2018.
Generally the father was an unimpressive witness, who gave his oral evidence in a belligerent and argumentative manner. His written evidence was demonstrated to be untrue or inaccurate in a number of instances, particularly in relation to his suicide attempt. Notably, the father did not disclose his suicide attempt to the mother, the ICL, Dr D or the court until documents were produced on subpoena by the Tasmanian Ambulance Service and L Hospital. I refer in greater detail to the father's evidence concerning his suicide attempt later in these reasons. The father made numerous comments which were critical of the mother during his oral evidence. I refer to some such statements below in these reasons.
The respondent mother relied on her affidavit of 16 April 2018 and Financial Statement of 10 May 2018. The mother gave her oral evidence in a calm and considered manner. She was prepared to make some concessions in relation to the father's positive qualities as a parent. For example, the mother said "he is fun – lot of energy – the kids love him and jump on him." The mother also made some critical remarks in relation to the father, such as "he performs well with an audience".
I had the benefit of two reports from a single expert psychiatrist,

Dr D, dated 15 May 2017 and 16 May 2018. Dr D also gave helpful oral evidence by way of cross-examination.
The ICL sought an order that each of the parties pay one-half of his costs in a total sum of $9,427 and fees of $2,200 for the attendance of Dr D for cross-examination on 25 May 2018. Each of the parties consented to this proposed order.

The best interests of X and Y, Section 60CC considerations

Primary considerations

Section 60CC(2) The primary considerations are: (a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and (b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

Section 60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

There is no issue that the children currently enjoy a meaningful relationship with both of their parents. As submitted by the ICL, credit is due to the mother for the fact that the children enjoy a very strong, positive and loving relationship with the father despite the history of limited time in his care. Equally, the father has made multiple trips to Sydney over a considerable period in order to facilitate the children's time with him.

Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

At the commencement of the trial the ICL indicated his position in terms which may be summarised as follows:
1.the children "are not at risk at all" in the care of the father
2.the mother should have sole parental responsibility but be required to advise the father of proposed decisions and take into account his views
3."the real issue" is the timing and conditions of introduction of visits by the children to Tasmania
4.visits to Tasmania should commence by the end of 2018.
The position of the ICL, to the effect that the father poses no risk to the children, was supported by Dr D in his report of 16 May 2018. At page 25 Dr D opined as follows:
In relation to contact I found no reason to believe that the children were in danger or at an unacceptable risk from the father. I believe [the father] is [a] highly capable caring parent. I believe that he does want to put the best interests of the children as paramount consideration. Therefore I don't believe there should be any restriction and there should be a move towards substantial contact in the future. I don't believe that postponing substantial contact for any later than this year is necessary. I would support that move towards 2 whole-day contact over several months and then overnight contact over several months on a fortnightly basis to then ultimately having monthly weekend contact in [Tasmania] by the end of the year would be appropriate.
Significantly, Dr D expressed these views before he was made aware of the father's suicide attempt in 2017.
When Dr D was informed of this incident, however, he expressed these opinions:
The father gave no hint of the suicide attempt, that he had been scheduled overnight, diagnosed with major depressive disorder and alcohol abuse.
If the father had done this for strategic reasons, there is a real risk that the mother may never have become aware of the difficulties.
It is correct that this may be an isolated one-off or it may be a pattern.
The father deceived me, the mother and the court and there was no opportunity for proper investigation. I agree that a more cautious approach is warranted.
Absolutely the mother's comfort and concern have to be taken into account. Her concerns could impact on the children."
In various reports to the father's general practitioner, his psychiatrist Mr C offered this diagnosis:
My current diagnosis is major depressive disorder, generalised anxiety disorder, and alcohol use disorder, all of which are currently in remission.
In a report dated 25 April 2018 Mr C repeated this diagnosis and added:
He has become somewhat anxious as his court appearance approaches. My current provisional diagnosis is unspecified anxiety disorder. An alternative provisional diagnosis would be adjustment disorder.

In my view, it is of considerable concern that the father kept this diagnosis and his suicide attempt from the mother, the ICL, Dr D and the court. In cross-examination the father said words to the effect:
I did not tell [Dr D] about the suicide attempt. I don't believe I should have, I don't believe it should have been in my affidavit."
He then agreed:
I accept that I should have told [Dr D] and the court. The only reason I did not was that I would get a strategic advantage.
I still think it was a good idea not to tell the mother about it. I knew it would come out. It was better that it came out now than in […] 2017 as it would have meant ten months of the children not seeing their father."
In contrast to the contents of his proof of evidence, the father made the following concessions in cross-examination:
●There was no reference in the proof of evidence to his suicidal ideation for several days leading up to [the day in] 2017. The notes of Mr C contained an entry "made up my mind on Monday", with the suicide attempt occurring on the following Friday.
●The proof of evidence contained no reference to the father having consumed prescription medication as well as alcohol on the day of the suicide attempt.
●The proof of evidence incorrectly stated that the father has "continued to see [Mr C] approximately fortnightly since this time". The notes of Mr C demonstrated that he has not seen the father on a fortnightly basis, with his unconvincing explanation being "that is the intention but it is not always possible".
In these circumstances, the mother proposed various orders which were designed to minimise the risk to the children while they are in the unsupervised care of the father. She sought orders to the effect that the father undertake ongoing psychological treatment and complete a "Circle of Security" and "Taking Responsibility" course.

Additional considerations

Section 60CC(3) provides as follows:
"(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b)the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child;
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following: (i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order; (iv) any findings made by the court in, or in proceedings for, the order; (v) any other relevant matter;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant."
I will refer only to those considerations which are relevant to the present proceedings.

Section 60CC(3)(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

There was no issue that the children want to spend time with the father and that they love and miss him. The mother made no suggestion that the children should not spend time and communicate with the father; rather, she sought orders which she perceived to be necessary to ensure their well-being in his sole care.

Section 60CC(3)(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)

Dr D reported as follows concerning the nature of the relationship between the children and the mother:
Overall I believe that [the mother] is a capable caring parent and that she can continue to care for the children competently. There is appropriate concern about [Y's] behaviour and his immaturity, poor focus and anxiety levels. [Y] does need some professional assistance I believe. [The mother] does want to retain control of the children and this creates enormous ambivalence as she also wants to act in the children's best interests by promoting a relationship between the children and [the father]. Although not clearly enunciated this ambivalence of wanting to retain control of the children is I believe being transmitted to the children. The children therefore are receiving a confused message from their mother about the father. [Y's] anxiety and erratic behaviour during the assessment where he was passing between both parents and excessively clinging to both parents demonstrated his emotional confusion and anxiety I believe."
Dr D expressed these opinions as to the nature of the relationship between the children and the father:
There has been significant emotional cost in addition to the financial cost to accepting what he perceives as disgusting and outrageous restrictions on his time with the children and the interruption to his relationship with the children. [The father]'s anger and vitriol towards [the mother] is intense and appears to be eating him away inside. Nevertheless to [the father]'s credit there as far as I could determine there has been no attempt to undermine the children's relationship with the mother. The children do not appear to have been used directly as an instrument of undermining the mother. However the children are aware of the father's intense anger and distress I believe which was clearly impacting on both children. I do believe [the father] cares enormously about the children and is able to place the children's needs above his own but this has been at an enormous emotional cost to him."

Section 60CC(3)(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) to participate in making decisions about major long‑term issues in relation to the child; and (ii) to spend time with the child; and (iii) to communicate with the child

The mother described certain of the father's interactions with her in relation to the children's treating health professionals as "criticism dressed up as input". The father directed hostility at medical staff of the V Paediatrics Clinic and objected to X continuing to see Mr S, a psychologist with whom she began to consult in November 2015.
Presumably upon his instructions, the father's solicitor wrote on 10 November 2017 to Dr T and Dr U of V Paediatrics (Exhibit 22 of the mother’s affidavit). Inter alia, this letter stated as follows:
●your assertion that "[the mother] reports her experience of domestic violence, and [Y's] exposure to regular physical and verbal abuse of his mother by his father in the first two years of his life."
This statement is not supported by fact and is highly defamatory of my client. Further, as this statement was not included in the copy of [the mother]' questionnaire provided to [the father] by [the mother’s solicitors] I presume [the mother] indicated that during a verbal interview and as such it ought not be presented as fact.
This letter continued as follows:
●Disturbingly, in paragraph 3 of the summary, you see fit to make the outrageous statement that "[Y's] experience of emotional safety is impacted by his history of trauma and continued unsupervised contact with the perpetrator of violence against this mother". With respect, on my unequivocal instructions, that is factually incorrect. Again, it is defamatory of my client in that it presents what, presumably, [the mother] told you as a fact. ..."
The letter from the father's solicitor stated further:
My client requires immediate mitigation of the defamation contained in the reports following which he will consider his options.
…
It is also required that you withdraw the reports from those to whom they have been distributed (which I understand to be the two educational institutions to which they were addressed as well as [the mother] and her solicitor).
As appears below, the principal of the children's school denied that the V Paediatrics report was forwarded to himself or his staff.
Significantly, this letter from the father's solicitors to Dr T and Dr U stated that the father "was also availed of the opportunity to complete and provide a questionnaire" but that he elected not to do so. Accordingly, the father was afforded a full opportunity to present to V Paediatrics any information concerning Y which he considered to be significant and relevant for their purposes.
The father confirmed in his oral evidence that he regarded the reports of V Paediatrics as "highly defamatory of me and self-serving for the mother". The father stated that he used words to that effect in his correspondence concerning these reports with staff of W School late in 2017/early 2018.
In his affidavit the father deposed: "I was horrified to be informed by the school that [the mother] had forwarded to them a copy of the [V Paediatrics] reports." In cross-examination, however, the father conceded that he could point to no evidence that school staff had ever received these reports. In fact, on 20 November 2017 the school principal advised the father that no report in relation to Y had been provided to the school. Nonetheless, the father insisted that "highly defamatory reports of [V Paediatrics]" were forwarded to the school in 2017 in an email to the principal dated 18 April 2018, which enclosed copies of the assessments of Dr Z.
The father deposed that he is in regular contact with the teachers of both children and that he has attended interviews with staff at W School. I accept that the father has a deep interest in all issues concerning the children but, regrettably, he has elected to engage confrontationally with education and health professionals on occasions. I have referred to the father's comments communications with staff at W School in relation to the report of V Paediatrics. I have referred also to the father's communications with Dr T and Dr U.

Section 60CC(3)(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

In 2017 the parties entered into a binding Child Support agreement, which provides that the father pay to the mother a sum of $900 per child per month. It seems to me that it is not open to the mother to advance the proposition that she is required to assume the burden of most of the financial support of the children in order to bolster her parenting case. She entered voluntarily into the Child Support agreement with the benefit of legal advice. The question of apportionment between the parties of the cost of the children's travel to Tasmania is a separate issue.

Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

It seems to me that the children will benefit from an opportunity to spend time with the father in his home environment in Tasmania in due course. In my view, they should become familiar with their father's home and his lifestyle in Tasmania. To this point they have been able to interact with the father only at a contact centre and for later limited periods in Sydney. As noted above, the real issue is at what time and under what conditions the children should commence to travel to Tasmania for that purpose.

Section 60CC(3)(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis

The father's relocation to Tasmania has given rise to substantial practical difficulties and expense in the children being able to spend time with him. The mother estimated the cost of the children's travel to Tasmania, with an accompanying person, would be approximately $1,200 if tickets were booked one month in advance.

Section 60CC(3)(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs

and

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

Dr D opined as follows concerning the parenting capacity of the mother:
[The mother] clearly is very competent and intelligent. The children appeared to be well cared for. She understands how to provide for their biological needs. In terms of their psychological and social needs, the children appear to be developing well ...
Dr D opined further in relation to the mother:
The area of particular difficulty for [the mother] has been how to promote the relationship between the children and the father and how to also retain a sense of control and provide well for the children. I believe that she does understand that the children need to have a close relationship with the father. Her statements about the children at this age needing shorter contact more often are probably in essence, reasonable. The concern about possible sexual inappropriateness or concerns about pornography on the iPad and claims of potential physical abuse of [Ys] did not seem to ring true with her position about [the father]. It seemed to me that [the mother] needed some support such as from the police to remove or undo the deadlock that she and [the father] were in so she could extricate herself from the relationship.
Overall, I do believe that she cares a great deal about the children and wants to act in their best interests. I do believe she sees [the father] as their father and wants to maintain their relationship with him. [The mother] does feel somewhat intimidated by his anger and chagrin. I found her to be a capable caring parent and there was no indication that she was an unacceptable risk to the children. I do believe that she will be able to continue caring for the children well and that she is capable of supporting and promoting a relationship with the father. However, it is also clear that she is prepared to take threatening action to undermine the father when she felt the need to try and maintain control of the children, such as when she reported the smacking of [Y] to the police and when she raised concerns about sexual abuse after [the father] took the children to Queensland."
In relation to the parenting capacity of the father, Dr D reported as follows:
I formed the view that [the father] understood how to provide well for the biological needs of the children. He was clearly able to entertain them and interact well socially with them. The children enjoyed a lot of the activities that he provided for them and he was able to engage them well.
In terms of understanding some of their psychological needs it was of concern to me that without informing [the mother] he took the children to Queensland to see his parents. It was more important for the children to meet their grandparents from [the father]'s perspective at the appropriate time. However they hadn't seen the grandparents before and the move was more an attempt to meet his and his parents' needs. Not only was this likely to upset [the mother] greatly but to separate the children of a young age when in 2015 the children were four and three. Separating them from their mother did not show a great deal of understanding or insight into how children of this age could react to being away from their primary attachment figure. [The father] then seemed to take great offence at [the mother] being extremely angry and distressed about the children being with him as if this was an over-reaction on her part but showed little understanding of the developmental issues for children of this age.
In his second report Dr D noted that the father "looked aghast" at his enquiry whether "there was any opportunity for him to sometimes come to Sydney". Dr D reported that the father replied "I bought a five-bedroom house. It's all set up. They can come monthly and half the school holidays." Again, this response suggested a focus on his needs on the part of the father.
As outlined above in his oral evidence Dr D advocated for greater caution after he was made aware of the father's suicide attempt, his concealment of that incident and Mr C's diagnosis of "major depressive disorder, generalised anxiety disorder and alcohol abuse disorder in remission." In my view, this incident and the father's concealment of his suicidal ideation from the mother, the ICL, Dr D and the court weigh significantly in favour of a lengthier period of time in Sydney before the introduction of travel to Tasmania.

Section 60CC(3)(j) any family violence involving the child or a member of the child’s family

The history of AVOs between the parties is set out above in these reasons. Notably, some of these orders were made on a "without admissions" basis. In my view, the evidence does not permit a finding on the balance of probabilities that the father directed family violence at the mother in the terms of the statutory definition. In the absence of independent evidence, I cannot make factual findings in relation to the incident between the father and Y.
The parents have had little interaction with each other since their separation in August 2015 and the father's relocation to Tasmania in January 2016. I am inclined to the view that the mother tends to experience the father as overbearing and intimidating in her dealings with him concerning the children.

The father, both personally and via his solicitor, has directed aggression at staff of V Paediatrics, W School, a family consultant, the mother and the maternal grandparents. His aggressive, belligerent demeanour was demonstrated during the course of his cross-examination. With the consent of senior counsel for the mother I invited the legal representatives of the father to consult with him in relation to his presentation in the witness box, in the interests of the trial progressing efficiently.

Parental responsibility

I have referred above to comments of the father which were critical of the mother during his cross-examination. Examples of such comments were as follows:
●I do not think it is reasonable for her to be concerned about the children coming to Tasmania. I think she is just doing it to be nasty.
● I still think she has fragile mental health.
●she is making up that [X] acted out in a sexualised manner. This is a disgraceful slur. What I'm saying is that she is a liar. I know she will say or do anything.
●I said in a message to [the maternal grandfather] that she is a fuckwit. I still think she is.
●I would not agree to overseas travel [for the children] with her because she has a track record of parental child abduction.
The father said in his oral evidence that "it is very correct that our relationship is characterised by deep animosity." He agreed that "our texts have not been successful." He said also, however: "We are both intelligent. There is a lot of bad blood but I am confident that we can move on for the best interests of the children." I am inclined to the view that the father has a genuine desire to improve communication between the parties but I have real doubts about his capacity to move beyond his hostility toward the mother.
I accept the submission of the ICL, to the effect that "there is not much evidence of a prospect that [the parents] will be able to consult and reach a joint decision." It may be that their separated parent relationship will become more constructive and cooperative in the future, once the children settle into a pattern of time with the father and the parties are freed of the stress of these proceedings. At this point, however, I can see no realistic outcome other than the alternative proposal of the mother and the ICL in relation to allocation of parental responsibility.
I will order that the parties have equal shared parental responsibility. This order will be conditional upon the mother having sole parental responsibility in the event that the parties are unable to reach a decision concerning the children's health and education within 28 days and that she is required to keep the father informed of all such determinations on her part.

Equal or substantial and significant time

As there will be an order for equal shared parental responsibility I am required to carry out the artificial exercise of considering whether it is in the best interests of the children, and reasonably practicable, that they spend equal or substantial and significant time with each parent. The fact that neither party sought such orders does not relieve me from this requirement.
The distance between the homes of the parties militates strongly against orders for equal or substantial and significant time for the children with each parent. I can envisage no regime for equal or substantial and significant time between Sydney and Tasmania which would meet the best interests of the children and be capable of reasonably practicable implementation. Accordingly, there will be no such order.

Conclusion

It seems to me that there should be a compromise between the proposals of the mother and the father, in terms of the timing of the introduction of visits by the children to Tasmania. I consider that the proposals of the father and the ICL do not permit sufficient time before such visits commence but, on the other hand, the orders proposed by the mother would extend the process unnecessarily. I am conscious of the opinion of Dr D that "the mother's Minute drags it out more. There are more chances for hiccups and anxiety for the children." Dr D said further "I could be persuaded that another six months delay would be of benefit."
I am of the view that an additional period of six months, before the introduction of travel to Tasmania, would be in the best interests of the children. They would have the opportunity to become accustomed to overnight stays with the father, while in close proximity to the mother, during this period. In my view, it is likely that the mother will develop more confidence in their security with the father in Tasmania during this introductory period.
Given that I will not make orders that the children travel to Tasmania until mid-2019, I will not accede to the father's proposal that they spend a block of three nights in Tasmania in December 2018. I appreciate that the father wishes for the children to spend this period with his family but the children's interests must be the paramount consideration.
The proposal of the mother, that the father complete two specified courses and continue to consult with Mr C, was supported by Dr D. No consent to this proposal was forthcoming from the father. Nonetheless, it seems to me that I am able to impose these requirements as a condition of a parenting order. I am satisfied that completion of these courses and continued attendance upon a psychologist by the father would be in the best interests of the children. I take the same view in respect of the proposal of the mother that the father execute an irrevocable authority to his treating mental health practitioners to advise her of a hospitalisation, a substantive in his diagnosis or prognosis or an episode which impacts upon his capacity to provide unsupervised care for the children.
An issue arose as to the funding of the children's travel between Sydney and Tasmania. The father sought that the mother pay half of these costs and she proposed that he meet the whole of these expenses.
The Financial Statement of the father indicated that he receives a gross weekly salary of $3,154 and has recurring expenses as follows, excluding loan and credit card repayments:

($)

1.        Income tax 993

2.        Mortgage payments 687

3.        Rates 74

4.        Health insurance 40

5.        Other insurance policies 55

6.        Car Registration 45

7.        Child support 415

$2,309

As submitted by senior counsel for the mother, the father gave confusing evidence as to his financial position. For example his Financial Statement indicated that he spends about $384 per week on the costs of contact with the children, yet he deposed in his affidavit to a figure of $1,291 per month. This figure exceeds $384 per week by $86. The amounts for bank loan repayments correspond in the two documents ($663 per week) but the Financial Statement contains no reference to a "car repayment" of $700.67 per month.
The father stated that he received a payment of $230,000 by way of property settlement, and has $48,365 by way of bank funds. He said further that he has taken out bank loans in a total sum of $100,000. In my view, he could not account adequately for his use of these funds. He said that he paid legal fees, credit card debts and a car loan and "used the rest to keep my head afloat." He agreed that "possibly I have been living by beyond my means".
In her Financial Statement the mother deposed to a total net weekly income of $1,164, which includes $415 per week by way of child support. She deposed that her father provides financial assistance of approximately $594 per week to her and the children. She deposed further that her stepmother loaned to her sufficient funds to discharge the mortgage on the Suburb AA property.
It seems to me that the mother's financial position does not permit her to contribute to the cost of the children's travel to Tasmania. Additionally, the father moved interstate on a unilateral basis with full knowledge that the children would continue to live in Sydney. In my view, another consideration which mitigates against the mother being required to contribute to travel costs is the way in which the father has opted to manage his financial situation. For example, it was open to him to make advance provision for the travel costs from his property settlement. For these reasons, I will order that the father is solely responsible for the cost of the children's travel to Tasmania.
It was common ground that there should be supervision of changeovers. To date, this role has been undertaken by staff of B Group. The parties were prepared to introduce supervision by an agreed person in lieu of or in addition to staff of B Group. In my view, the parties should share equally in payment of the cost of supervision by B Group staff if they are unable to agree upon a person to fulfil that role from time to time.
I will not make detailed orders which specify flights between Sydney and Tasmania as sought by the mother. Of necessity, flight times may need to be varied in particular circumstances. I would expect that the parties would consider the ages and needs of the children when selecting flight times.

I certify that the preceding ninety-two (92) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 18 July 2018.

Associate:

Date: 18 July 2018

[2018] FamCA 539

18 July 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Procedural Fairness

($)
1. Income tax	993
2. Mortgage payments	687
3. Rates	74
4. Health insurance	40
5. Other insurance policies	55
6. Car Registration	45
7. Child support	415
$2,309