Cambria & Cambria
[2024] FedCFamC2F 904
•12 July 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cambria & Cambria [2024] FedCFamC2F 904
File number(s): MLC 11698 of 2023 Judgment of: JUDGE J YOUNG Date of judgment: 12 July 2024 Catchwords: FAMILY LAW – application for interim parenting orders – where interim parenting orders previously made following contested hearing – where mother asserts 18 month old child having difficulties with drinking, feeding and sleeping – where mother asserts 7 and 8 year old children are struggling to cope with time spent away from mother – where father seeking to further progress spend time with children – where father seeking to align changeover time for children. Legislation: Family Law Act 1975 (Cth), Pt VII, ss 60B, 60CA, 60CC, 60CG, 69ZL(1). Division: Division 2 Family Law Number of paragraphs: 62 Date of hearing: 8 July 2024 Place: Melbourne Counsel for the Applicant: Ms Fisken Solicitor for the Applicant: DCM Lawyers Counsel for the Respondent: Mr Heggie Solicitor for the Respondent: Lander & Rogers Counsel for the Independent Children's Lawyer: Ms Kildea Solicitor for the Independent Children's Lawyer: Walters Family Law ORDERS
MLC 11698 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR CAMBRIA
Applicant
AND: MS CAMBRIA
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE J YOUNG
DATE OF ORDER:
12 JULY 2024
THE COURT ORDERS THAT:
Spend time (Z)
1.The interim orders made on 31 January 2024 are to continue until further order and for the sake of clarity Orders 7 to 10 of the Orders dated 31 January 2024 be varied to read as follows:
(a)Z spend time with the Father during school term periods:
(i)In week 1:
A.Each Friday from 3.00pm until 7.15pm, commencing Friday 19 July 2024; and
B.from 9am on Saturday until 8.45am on Sunday, commencing 20 July 2024 NOTING THAT such time coincides with X and Y’s time with the Father;
(ii)In week 2:
A.3.15pm Wednesday until 9.00am Thursday, commencing 24 July 2024;
B.Each Friday from 3.00pm until 7.15pm, commencing 26 July 2024.
(b)During school holidays, Z spend the following time with the Father during X and Y’s time with the Father:
(i)On Wednesday from 3.00pm until Thursday 3.00pm
(ii)On Friday from 3.00pm until 7.15pm; and
(iii)From 9am on Saturday until 8.45am on Sunday.
THE COURT ORDERS BY CONSENT THAT:
Special occasions
2.The children spend time with the parents on the following special occasions:
(a)With the Father from 3pm on Christmas Eve until 9am on Christmas Day;
(b)With the Mother from 9am on Christmas Day until 3pm on Boxing Day;
(c)From 9am to 6pm with the Mother on Mother’s Day;
(d)From 9am to 6pm with the Father on Father’s Day; and
(e)For each of the children’s birthdays, from 3:30pm to 5:30pm on a school day and 1pm to 5pm on a non-school day with the parent they are not otherwise spending that night with.
THE COURT ORDERS FURTHER THAT:
Spend time (X & Y)
3.The interim orders made on 31 January 2024 are to continue until further order and for the sake of clarity:
(a)During the term 2 2024 school term holidays and pursuant to order 4(b)(iv) of the 31 January 2024 orders, X and Y spend time with the Father from 12.00pm on 8 July 2024 until 12.00pm on 13 July 2024 (being a 5 night block)
(b)During school terms, X and Y spend time with the Father in a fortnightly cycle as follows:
(i)In week one:
A.on Wednesday from the conclusion of school until 7.15pm, commencing 18 July 2024
B.from the conclusion of school (or 3.45pm) on Friday until the commencement of school (or 9am) on Monday and with such time to extend to conclude at the commencement of school (or 9am) on Tuesday if Monday is a public holiday. Commencing 20 July 2024 and
(ii)In week two:
A.from the conclusion of school on Wednesday (or 3pm) until the commencement of school on Thursday (or 9am), commencing 24 July 2024 and
B.from the conclusion of school on Friday (or 3.45pm) until 7.15pm;
(c)NOTING THAT the first week of the school term shall be week one if the children spent the last weekend of the school term holidays with the Mother, and if the children spend the last weekend of the school term holidays with the Father, the first week of the school term shall be week two.
(d)During school holidays, X and Y spend time with the Father as follows:
(i)For half of the school holidays as agreed between the parties in writing, and in default of agreement
(ii)During school term holidays which commence in even numbered years, from the conclusion of school on the last day of term until 12.00pm on the middle Saturday
(iii)During school term holidays which commence in odd numbered years, from 12.00pm on the middle Saturday until the commencement of school on the first day of term;
THE COURT ORDERS FURTHER BY CONSENT THAT:
(iv)during the 2024/2025 long summer holiday period:
A.commencing from the conclusion of school on 20th December until 12pm on 27 December 2024
B.From 12.00pm on 3 January 2025 until 12.00pm on 10 January 2025;
C.From 12.00pm on 17 January 2025 until 12.00pm on 23 January 2025.
THE COURT ORDERS FURTHER THAT:
Extra-curricular activities
4.Each parent ensure that X and Y continue to attend their current scheduled activities, whilst the children are in their respective care.
THE COURT ORDERS FURTHER BY CONSENT THAT:
Communication
5.The children be permitted to communicate with either party at any such time as they may request and the other party ensure that they facilitate such communication via mobile telephone and/or video call.
6.That Order 4(c)(iii) of the January 2024 orders continue providing for the children to communicate with the father by telephone/Facetime each alternate Friday between 6.30pm and 7.00pm (on the Friday when the children are not otherwise with the Father).
7.In relation to communication:
(a)the parents use Our Family Wizard as their primary form of communication in relation to matters concerning the children NOTING THAT this order includes but is not limited to sharing or seeking information affecting the children, the implementation of these orders, medical or educational matters affecting the children, child support matters and financial matters concerning children’s expenses (such as sending invoices);
(b)the parents be permitted to reach agreements in writing in relation to alternative modes of communication; and
(c)the parents be permitted to communicate via telephone or SMS in the event of an emergency and/or the unavailability of Our Family Wizard
THE COURT ORDERS FURTHER THAT:
Parenting coordinator
8.The parties forthwith engage an agreed parenting coordinator with the cost to be met equally by the parents.
THE COURT ORDERS FURTHER BY CONSENT THAT:
Intervention orders
9.The parents be permitted to reach agreements in writing in relation to matters affecting the children, including but not limited to attend upon the other parent’s address, events related to the children, and any medical and/or allied health appointment for the children.
THE COURT DECLARES THAT:
10.Pursuant to section 68Q of the Family Law Act 1975 to the extent that any of the following orders are inconsistent with any existing Family Violence Intervention Order made between the parties and/or Ms B and/or Mr C, the listed orders shall take priority:
(a)order 11 of the interim orders made on 31 January 2024 (changeover);
(b)order 12 of the interim orders made on 31 January 2024 (children coming into contact with paternal grandparents);
(c)order 13 of the interim orders made on 31 January 2024 (parental attendance at events);
(d)order 7 of these Orders (communication between parents); and
(e)order 9 of these Orders (variation of these orders).
THE COURT ORDERS FURTHER BY CONSENT:
D Medical Centre referral (by consent)
11.The parents do all acts and things to obtain a referral for the child Z to the Feeding Clinic at D Medical Centre and each parent be authorised to communicate with D Medical Centre as to Z’s welfare, and progress.
12.Each parent follow all lawful directions of D Medical Centre, including but not limited to attending upon them for parent coaching or facilitating Z’s attendance upon them as directed by D Medical Centre.
13.The Father pay the costs of D Medical Centre.
E Centre
14.The parents do all acts and things to forthwith separately attend upon E Centre for the purpose of an in-home baby sleep consultation.
15.The parents follow all lawful directions of E Centre, including but not limited to attending upon them or facilitating Z’s attendance upon them as directed by E Centre.
16.The Father pay the costs of E Centre.
F Therapy
17.The parents follow all lawful directions of F Therapy, including but not limited to each parent attending upon them alone for the purpose of parent coaching as to support Y’s 1:1 occupational therapy sessions.
18.The Father pay the costs of F Therapy.
Programs
19.The parents do all acts and things to enrol in and complete a Triple P parenting program and a G Organisation Parenting After Separation program, with each parent to provide the other parties with evidence of completion of the program within 7 days of receiving same.
AND THE COURT NOTES THAT:
A.The Father intends to seek that the payments made by him towards children’s expenses being E Centre, F Therapy and D Medical Centre be credited as Non Agency Payments against amounts due by him pursuant to the Administrative Assessment. The mother does not agree to such amounts being credited as Non-Agency Payments.
B.Orders 11, 12, and 13 of the orders made on 31 January 2024 and order 3 above are inconsistent with the family violence orders made in Court at Suburb H in that they provide for the mother to come into contact with Mr C and Ms B (the paternal grandparents) for the purpose of attending changeover and extra-curricular activities in which the children participate. The dates and proceeding numbers are:
(a)Proceeding … dated mid-2024;
(b)Proceeding … dated late 2023;
(c)Proceeding … dated early 2024
(d)Proceeding … date unknown.
C.The family violence orders prohibit:
(a)Mr C from coming into contact with; communicating with; and approaching or remaining within 5 metres of Ms Cambria;
(b)Ms B from coming into contact with; communicating with; and approaching or remaining within 5 metres of Ms Cambria;
(c)Ms Cambria from coming into contact with; communicating with; and approaching or remaining within 5 metres of Ms B;
(d)Ms Cambria from coming into contact with; communicating with; and approaching or remaining within 5 metres of
Ms BMr C.
D.Pursuant to section 68Q of the Family Law Act 1975 (Cth), to the extent of the inconsistency, the family violence order is invalid.
E.The Court is satisfied the parenting orders are in the best interest of the children given the lack of alternative handover options and given both parties consent to the arrangements.
F.The Court is satisfied that the orders do not subject the children or any party to any unacceptable risk of harm.
G.In accordance with section 68P(3) of the Family Law Act 1975 (Cth), the Court will provide a copy of these orders to:
(a)Victoria Police;
(b)The Department of Family, Fairness and Housing; and
(c)The Registrar of the Court at Suburb H.
H.Amended pursuant to r 10.13(1)(h) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 17 July 2024.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE J YOUNG:
Before the Court is an Application by the mother for interim parenting arrangements.
The parenting proceedings relate to X, born in 2015 and aged 8 years, Y, born in 2017 and aged 7 years, and Z, born in 2023 and aged 18 months.
The respondent mother and wife filed the interim application with respect to parenting on 25 June 2024.
Pursuant to subsection 69ZL(1) of the Family Law Act 1975 (Cth) (Act) these reasons are in short form with respect to the issues in dispute.
CONTEXT
The father is 36 years of age and is a managing director in a business established by his father, J Business. He lives in a house approximately 15-minutes’ drive from the former matrimonial home.
The mother is 40 years of age and is currently unemployed. She lives in the former matrimonial home with the children.
The parties met in 2012 and commenced co-habitation in 2014.
The parties married in 2017.
X, Y and Z are the children of the relationship.
The parties separated in September 2023.
Both parties make mutual allegations of family violence both during and after the relationship.
A Final Family Violence Intervention Order was made in late 2023 with the mother as the respondent and the father and the children listed as protected persons. That Order was made by consent without admissions. The mother has made an application to revoke the Order. The father deposes to the Court refusing to revoke the Order on an interim basis, and that there is a hearing listed in mid-2024. The father further deposes to the mother breaching the Order when she came up to him during a sports game.
A Final Family Violence Intervention Order was made in late 2023 with the father as the respondent and the mother and the children listed as protected persons. That Order was made by consent without admissions.
A Final Family Violence Intervention Order was made in late 2023 with the mother as the respondent and the paternal grandfather and the father’s step-mother listed as protected persons. That Order was made by consent.
An Interim Intervention Order was made in late 2023 with the father’s step mother as the respondent and the mother and the children listed as protected persons.
Current parenting arrangements
Interim parenting orders were made by the Court and by consent on 31 January 2024 (January Orders) following a contested defended hearing.
In summary, the January Orders provided a progression of spend time with the father and, as they are presently relevant, provide as set out below.
By order of the Court, X and Y currently spend time with the father:
·each Wednesday from the conclusion of school until 6.45pm; and
·each alternate weekend from the conclusion of school on Friday until 6.45 pm on Sunday; and
·for a 5 night block in Term 2 school holidays as agreed, and in the event of no agreement, from 12 noon 8 July 2024 to 12 noon on 12 July 2024.
By consent, Z currently spends time with the father:
·each Wednesday from 3.15pm until 7.15pm;
·each Friday from 3.15pm until 7.15pm; and
·each alternate Saturday from 9.00am until 5.00pm, coinciding with the time X and Y spend with the father.
Those spend-time arrangements are due to change as of the commencement of school term 3, on 15 July 2024.
By order of the Court, commencing on 15 July 2024 X and Y will spend time with the father:
·in week one:
·on Wednesday from the conclusion of school until 6.45pm;
·from the conclusion of school on Friday until the commencement of school on Monday
·in week two:
·from the conclusion of school on Wednesday until the commencement of school on Thursday;
·each Friday from the conclusion of school until 6.45pm; and
·for half of the Term 3 school holidays (or failing agreement the first half).
By order of the Court, commencing on 15 July 2024 Z will spend time with the father:
·from 3.15pm on Wednesday until 9.00am Thursday in week one.
By consent, commencing on 15 July 2024, Z will spend time with the father:
·each Friday from 3.00pm until 7.15pm; and
·in week two from Saturday 9.00am until 8.45am Sunday, coinciding with the time X and Y spend with the father.
ISSUES IN DISPUTE
The issues in dispute are whether:
·the progression of spend time with Z ought be suspended;
·the progression of time to include extended weekends and block time during school holidays for Y and X be suspended;
·the parties should alternate taking Y and X to extra-curricular activities where they occur at the same time and during the father’s time with them;
·the father ought take Z to the mother to be breastfed during the father’s time with him; and
·there ought be an order which provides the parties with a first option for care if the other is unavailable for a period of more than 4 hours.
The competing positions of the parties
The mother seeks to alter the January Orders with respect to Z’s spend time with the father commencing on 15 July 2024.
The mother states that Z is currently experiencing developmental issues with respect to drinking, feeding and sleeping, and continues to rely on breastfeeding. It is the mother’s case that Z is not ready to commence overnight spend-time with the father and this ought be delayed until it is confirmed by Z’s general practitioner that he can take fluids from a cup or bottle. For the same reasons, the mother says that when Z is with the father on a Saturday Z ought be returned to her at 1.00 pm to be breastfed, or alternatively, Z’s time with the father on alternate Saturdays be varied to 9.00 am to 1.00 pm on Saturday and Sunday in that week.
Additionally, the mother seeks to alter the January Orders with respect to X and Y’s spend time with the father commencing on 15 July 2024.
The mother states that Y is currently experiencing anxiety-related behaviours, and that both Y and X are reluctant to be away from her for long periods of time. It is the mother’s case that X and Y’s upcoming increased time with the father on alternate weekends and block time in the Term 2 and Term 3 school holidays be suspended. Alternatively, the mother says that during school holidays a 5/5/2/2 arrangement ought be put in place. She also seeks that Y and X’s spend time with the father in the Term 2 school holidays for a 4 night block from 8 July 2024 to 12 July 2024.
Further, the mother states that there have been occasions where X and Y have either missed or been late to their extracurricular activities when they fall on the same day as the father has refused the mother’s assistance. It is the mother’s case that the parties alternate taking X and Y to their extracurricular activities when they fall on the same day and seeks a declaration with respect to the current Intervention Orders to enable this. Further, the mother states that there have been occasions where the father has attempted to leave the children with his parents when he has interstate or international work commitments, despite the mother being unemployed and available to care for the children. It is the mother’s case that if either party is unable to care for the children for more than 4 hours, that the other party be given first opportunity to do so.
Additionally, the mother contends that the Report Writer misunderstood the mother’s position as being that she sought equal shared care in the Child Impact Report dated 9 January 2024 (CIR).
It is the father’s case that Z is sufficiently hydrated when in his care and neither X or Y demonstrate anxiety or distress when they are away from their mother. The father seeks that his progression of time proceed in accordance with the January Orders. The father seeks to amend the changeover time for each of the children to 7.15pm for consistency, as currently X and Y’s changeover is at 6.45pm whereas Z’s changeover is at 7.15pm. Otherwise, the father generally seeks that the January Orders be maintained, with some clarifying amendments and to include certain matters agreed between the parties.
The Independent Children’s Lawyer seeks orders as sought by the father (other as to the costs of the engagement of a parenting coordinator, in respect of which she made no submissions.)
APPLICABLE LEGAL PRINCIPLES
I am guided by the objects of Part VII of the Act as specified in s 60B. The children’s best interests are the paramount consideration: s 60CA. In determining those best interests, I am to consider the matters prescribed by s 60CC of the Act.
In considering the arrangement that would promote the safety of the children and of each person who has care of the children, I must consider any history of family violence, abuse or neglect involving the children or a person caring for the children, together with any family violence order that current or has previously applied to the children, or a member of the children’s family: s 60CC(2A) of the Act.
Section 60CG of the Act further requires that when considering what parenting order to make, I must ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence and is consistent with any family violence order.
CONSIDERATION
Safest arrangement for, and the development needs of, the children
Z
The mother’s evidence is that Z refuses to drink water from a bottle or cup when in her care. Her evidence is that Z is waking about twice per night at which time she breast feeds him. She says that she is extremely concerned for Z’s welfare as she does not consider that the father can adequately tend to Z overnight when he will not take a bottle or a cup and that he will not be adequately hydrated or receive enough fluids when otherwise in the father’s care.
In support of this contention, the mother provided:
·two letters from her General Practitioner, Dr K, dated 29 May 2024 and 6 July 2024, respectively;
·an affidavit from her mother, Ms L, in which Ms L deposes that Z refuses to drink all liquids from a bottle or a cup when in the mother’s care and expressing the view that this was due to Z teething;
·a letter from Z’s maternal and child health nurse, dated 4 July 2024 (MCH letter).
For the reasons that follow, I do not consider the January Orders require amendment to promote Z’s safety from harm or his development needs.
Firstly, the January Orders were made following a contested defended hearing. Each party filed material prior to the January Orders being determined. The CIR was also before the Court. The January Orders were not subject to any Application for review.
Secondly, it is clear from the CIR that the Report Writer was cognisant of Z’s young age and that he was breast fed, yet considered that overnight time could commence. The Report Writer’s fifth recommendation at page [24] of his report is as follows:
As indicated, both parents are committed to [Z] continuing to breastfeed. To date the mother has been able to provide expressed breastmilk for the time that [Z] spends. Overnight time could begin in the next six months between [Z] and the father.
At paragraph [19] of the CIR the Report Writer says:
The mother proposes the parents spending equal time with the children with a graduated progression for [Z] as he is under age one year, with overnight time gradually progressing from around mid-2024
It is uncontested that this is not an accurate statement of the mother’s position. The mother seeks to impugn the CIR on this basis. I reject that submission. Irrespective of the misunderstanding of the mother’s position, the Report Writer made recommendations for spend time that he considered were in the children’s best interests. That included a progression to overnight time for Z with the father. Further, in her affidavit of 25 January 2024 the mother addresses the CIR and says at paragraph 26(b):
At no stage throughout these proceedings or in my discussions with [Dr M] have I suggested that it would be appropriate for the children to live equally between me and [Mr Cambria]. My position has been, and remains, to allow [Mr Cambria] to progress slowly to overnight time, after which I will formulate a position with respect to how many nights in any given week or fortnight I think would be appropriate. [Dr M] has said, at paragraph 19 of his report, that I had proposed that the care arrangements for the children should ultimately progress to an equal shared care arrangement. I am unsure how it is that [Dr M] has found reason to say this and I have instructed my lawyers to clarify with [Dr M] the basis for that statement.
Accordingly, the mother’s evidence as to paragraph [19] of the CIR was before the Court at the time of the hearing and prior to the January Orders being made. In those circumstances, I am unable to see how the inaccurate statement in paragraph [19] of the CIR is presently relevant or in any way supports the mother’s contentions.
Thirdly, Dr K’s letter of 29 May 2024 does not provide any independent observation of Z refusing to drink milk or fluid from a bottle or cup. Rather, it is reliant on information provided by the mother. The father’s evidence is that it has not been his experience that Z is dehydrated or struggles to take fluids. He says that Z consumes water, milk and solids when with him. He has filmed evidence of Z eating and drinking whilst in his care. He says he will have no issue attending to Z if he wakes during the night. The father also relies on a letter from Dr K dated 28 June 2024. In that letter Dr K says, amongst other things, that:
[Mr Cambria] has observed [Z] eating solids and drinking liquids very readily and without difficulty while under his care. He showed me several videos of [Z] drinking that demonstrated this. He reports that [Z] will drink water mostly but has also started to drink cow's milk from a cup.
…
[Z] is not as keen to take breastmilk from a cup or bottle. [Mr Cambria] will mix this in with other foods such as [cereal]. Today we discussed [Z]'s nutritional requirements and how best to support this. While breastfeeding is encouraged until the age of two years, other sources of nutrients are available through food and drink if [Z] is refusing to drink breastmilk while under his father's care. [Mr Cambria] may like to seek addition advice regarding toddler nutrition [from a specific website] which is a very good source of information.
Dr K concludes by saying:
I had previously recommended [Z] see a speech pathologist at [N Centre] to assist with this bottle and cup feeding refusal and that he may need to have scheduled breastfeeds with his mother to ensure he maintains adequate hydration. In light of [Mr Cambria’s] reports today, I no longer feel this will be necessary.
Accordingly, Dr K saw evidence of Z eating and drinking whilst in the father’s care. As set out above, Dr K provided a further letter to the mother dated 6 July 2024 in which she says that in an appointment on 29 May 2024 the mother
…disagrees with his father’s recent observations and reports [Z] has ongoing refusal of all cups and bottles and will only drink when breastfed.
This is consistent with the MCH letter in which the nurse says that he observed Z refusing four drink bottles and also Ms L’s evidence. I accept that it may be that when Z is in the mother’s care he refuses to drink from a cup or a bottle. In circumstances where he is being breast fed up to 6 times per day when in the mother’s care, that is perhaps unsurprising. I do not consider that there is any persuasive evidence before the Court that when in the father’s care Z is inadequately fed or hydrated or that he refuses fluid from a bottle or cup. To the contrary, there is evidence before the Court, which is confirmed by Dr K’s observations of the footage shown to her, that when in the father’s care Z eats solids and drinks liquids readily and without difficulty.
Fourthly, there is nothing before the Court that indicates that the father would place Z at risk, should there be a concern that he is not eating and drinking adequately. The CIR says at paragraph [26] that “neither parent presents with significant parental risk” and at paragraph [40] that there appears to be “a sound relationship between the father and [Z].”
Y
The mother’s evidence is that after separation Y was referred to a paediatrician who confirmed that he was showing signs of anxiety related behaviours and referred him to a psychologist and an occupational therapist. Y has attended F Therapy weekly since early 2024. The mother’s evidence is that throughout his sessions Y has talked about issues causing him stress at the father’s house including the food he eats, brushing his teeth and feelings of hurt due to his perception that the father favours X. The mother’s evidence is that X and Y have expressed reluctance to be away from her for long periods but says that Y in particular becomes quite distressed about being away from the mother and Z. The mother seeks that the increase in X and Y’s time with the father be suspended pending a full report and in circumstances where she says Y in particular is not coping well with the increase in time and time spent away from the mother. The mother relies upon a short form report prepared by Y’s occupational therapist, dated 4 July 2024 (OT Report).
For the reasons that follow, I do not consider that January Orders require amendment to promote Y (or X’s) safety from harm or developmental needs, by suspending or reducing spend time with the father as proposed by the mother.
Firstly, it appears uncontested that there are anxiety related concerns with Y. This is reflected in the CIR. Y is attending F Therapy and the parents have agreed to engage a parenting co‑ordinator in line with the recommendations in the CIR. It appears common ground that both parents will and are participating in therapy.
Secondly, the OT Report provides that Y was referred by his paediatrician “for assessment to understand his sensory profile.” The OT Report further provides that Y will be supported in managing his tactile sensory challenges when brushing his teeth and wearing shoes and socks. The OT Report therefore does not appear to be consistent with the mother’s view as to Y’s stress arising from issues in the father’s house or from being apart from the mother.
Thirdly, the OT Report provides as follows:
Through our sessions, [Y] has developed an understanding of his anger triggers. His triggers are centred around his relationship and frequent conflict with his brother, being interrupted during tasks and brushing his teeth, [Y] has made some progress through his engagement in OT, targeting these specific challenges and problem solving these to find proactive strategies that prevent feelings of anger occurring in the first place, in which he identifies that he will often compromise for his brothers needs/wants. We have also developed reactive strategies to help calm his body when feeling angry (drawing, reading, [and games]). [Y] continues to present with regular anxiety, however it has been pleasing to note some progress with his regulation during transitions between mum and dad’s house.
Accordingly, the OT Report records progress by Y and is not therefore supportive of a suspension or reduction in time with the father from that which was provided for in the January Orders.
Extra-curricular activities
The mother’s evidence is that she, as the children’s primary carer, was actively involved in arranging and attending the children’s extra-curricular activities. She says she is keen to be part of the children’s activities and assist the father on nights when the children’s activities clash. To that end, she seeks orders providing for the parties to each take one child on an alternating basis when the children’s activities fall on the same day.
The relationship between the parties is one of high conflict. The CIR at paragraph [27] notes that “communication between the parent is currently poor…” and at paragraph [30] that the parents conduct “points to parental conflict, lack of cooperation and parental antipathy…” Although the CIR expressed optimism that the parties communication would improve, this is not the case. The parties each have final Family Violence Intervention Orders against them in respect of which the other and the children are the protected persons. The mother also has a final Family Violence Intervention Order against her in respect of which the father’s father and step-mother are the protected persons. The mother has pending charges for breach of the Family Violence Intervention Order protecting the father.
In light of the above, the arrangements which would promote the safety of the children and the parents from being subject to or exposed to family violence or other harm and best support the psychological needs of the children, are those which minimise parental contact, communication and interaction. The mother’s proposal in relation to extra-curricular activities is contrary to this as it increases contact and communication between the parties, increasing the potential for conflict and the children (and the parties) to be exposed to family violence or psychological harm.
School holidays
The mother’s proposal for school holidays, if time with the father is not suspended, is that each party spend time for half the school holidays by agreement or in absence of agreement time with the father commencing at 9am on the first Monday of the school holiday period until 9am on the following Monday (alternating by weeks depending on the year).
As set out above, the arrangements which would promote the safety of the children and the parents from being subject to or exposed to family violence or other harm and best support the psychological needs of the children, are those which minimise parental contact, communication and interaction and thereby reduce conflict between the parties and the children being exposed to this. The mother’s proposal in relation to school holidays is contrary to this as it increases contact and communication between the parties. The father’s proposal would require only one face to face changeover in the middle of the school holidays and minimises contact and communication between the parties.
First care option
The mother’s evidence is that the father has a “rigorous travel schedule” both interstate and internationally and when the father is travelling it is in the children’s best interests for them to stay with the mother. To that end, the mother seeks orders that she have the first right of care should the father not be able to care for the children for a period of more than 4 hours.
The father’s evidence is that he has had to travel a handful of times.
The mother’s proposal would result in increased contact, communication and interaction between the parties. For the reasons already set out above, such a proposal is not the arrangement which best promote the safety of the children and the parents from being subject to or exposed to family violence or other harm and best support the psychological needs of the children.
Benefit of relationship with the parents
Both the mother and father are loving parents, and X, Y and Z will benefit from having a relationship with both of them. The mother seeks to significantly reduce the father’s time with the children, in particular with Z. This is in circumstances where her own evidence is that Y is distressed when separated from Z. The CIR observed that the parents’ applications (at that time) “presented as influenced by parental wishes and presented as rather parent-focused rather than child-focused.” Accordingly, there is a concern that the mother is not supportive of the children having a relationship with the father. The father’s proposal best supports this and there is no persuasive evidence before the Court that it is not safe to do so.
Payment for parenting coordinator
The father’s Financial Statement deposes to a weekly income of $4,027.50 and expenses of $6,532.50, noting that this includes $1422 per week in mortgage repayments which on the evidence before the Court are not being paid. By consent the father has agreed to pay the costs of D Medical Centre, E Centre and F Therapy (Children’s Expenses). The mother receives $724 per week child support and $750 per week spousal maintenance. The mother’s evidence is that the spousal maintenance payments are mostly spent on groceries and general living expenses for her and the children. Whilst the mother says that she incurs costs of the children’s extra-curricular activities and medical appointments there is no specific evidence before the Court of the quantum of these costs and the father’s Financial Statement also includes costs of children’s activities. Whilst I accept that the father has a greater income than the wife, on the evidence before the Court the father’s expenses significantly exceed his income. There is no evidence before the Court of the mother’s expenditure. Given the shortfall in the father’s income relative to his expenses, the payment by him of the children’s expenses and that the nature of the role of a parenting coordinator, I shall order that the costs of the parenting coordinator be borne equally between the parties.
CONCLUSION
For the reasons set out above, the Court considers it appropriate and in the best interests of the children to make the orders sought by the father and as set out at the commencement of these reasons.
I certify that the preceding sixty-two (62) numbered paragraphs are a true copy of the Reasons for Judgment of Judge J Young. Associate:
Dated: 12 July 2024
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