CANNON & JACKSON

[2015] FamCA 347

FAMILY COURT OF AUSTRALIA

CANNON & JACKSON [2015] FamCA 347

FAMILY LAW – CHILDREN – Best Interests – Where the children have meaningful relationships with both parents – where there is a need to protect the children from being subjected to family violence – where that protection can best be effected by clearly defined parenting orders – children’s views – where the father’s commitment to the children is well established and genuine – where the mother has the capacity to meet the children’s needs in a more comprehensive way than the father –where the mother is assessed to have a greater child focus – where the father has underestimated the significance of the relationship between the children and the mother – where the mother has sought assistance during times of emotional turmoil – children to live with the mother – children to spend substantial and significant time with the father – where the parties agreed that the mother’s surname could be included as a third given name for each of the children  

FAMILY LAW – CHILDREN – Parental Responsibility – Mother to have sole parenting responsibility with reporting obligations to the father

Family Law Act 1975 (Cth), ss 60CC, 64B

APPLICANT: Ms Cannon

RESPONDENT:	Mr Jackson
INDEPENDENT CHILDREN’S LAWYER:	Foat Associates Lawyers

FILE NUMBER: PAC 693 of 2011

DATE DELIVERED: 13 May 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 27, 28, 29 April 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMahon

SOLICITOR FOR THE APPLICANT:     Krstina Wooi

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT:

Not Applicable

Jennifer Blundell & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:	Mr Tully
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Foat Associates Lawyers

Orders

(1)That all prior parenting orders in relation to the children
B born … 2007 and C born … 2008 (known together as “the older children”), and D born … 2013 (“D”) made in this Court and the Federal Circuit Court are hereby discharged.

Residence

(2)That the children live with the mother.

Parental Responsibility

(3)That the mother shall have sole parental responsibility for the children.

(4)That whenever an issue relating to the long term welfare of the children arises the mother shall, other than in a genuine emergency, contact the father in writing and:

(a)Identify the issue;

(b)Set out her proposal;

(c)Invite the father to respond with any alternate proposal within a stated period of time; and

(d)Advise the father promptly of the decision she has taken.

Time and Communication

(5)That each parent shall permit and assist the children or any of them to telephone the other parent at any reasonable time.

(6)That the children spend time with the father as follows:

6.1Until the beginning of the school year in 2018

6.1.1During school terms:

6.1.1.1From after day care/school Friday to before day care/school Monday on each alternate weekend commencing Friday 15 May 2015, with the father to collect D from day care and the older children from school on Friday and to deliver D to day care and the older children to school on the following Monday morning; and

6.1.1.2From after day care/school Wednesday to before day care/school Friday in each alternate week commencing Wednesday 20 May 2015, with the father to collect D from day care and the older children from school at the commencement of the time and deliver them to day care and school on Friday morning at the conclusion of time.

6.1.2During holiday periods:

6.1.2.1For two periods of three days in each school term holiday period;

6.1.2.2For three non-consecutive periods of six days in the Christmas school holiday periods, to include Christmas Day in each alternate year; and

6.1.2.3Failing agreement otherwise:

6.1.2.3.1In the even year (2016) commencing on the first,  third and fifth Saturdays of the holiday period; and

6.1.2.3.2In the odd years (2015 and 2017) commencing on the second, fourth and sixth Saturday of the holiday period.

6.2      From the commencement of school in 2018

6.2.1   During school terms:

6.2.1.1           From after school Thursday until before school Monday on each alternate weekend;

6.2.1.2           On each alternate week from after school Thursday until before school Friday; and

6.2.1.3The father shall collect from and deliver the children to school as per Order 6.1.1.

6.2.2During holiday periods:

6.2.2.1In 2018 and thereafter for one half of each school holiday period, being the first half in odd numbered years commencing on the first Saturday of the period and the second half in even numbered years; and

6.2.2.2Commencing in 2020 on the second Saturday of term holidays and the third Saturday in Christmas school holiday periods.

(7)That changeovers which do not take place at day care/school shall take place at a place agreed between the parties and failing agreement at McDonald’s Restaurant E Town.

Education

(8)That each party is restrained from changing the enrolment of the older children at E Town Public School (other than for progression to High School) without the written consent of the other.

(9)That each party is restrained from enrolling D at any day care service/nursery school/pre-school other than F Pty Ltd without the prior written consent of the other.

(10)That each party shall do all things necessary to ensure that D is booked in for three days of day care on Monday, Wednesday and Friday; and on Thursday in 2018 unless otherwise agreed.

(11)That each party is responsible to the other for one half of day care fees.

(12)That the parties shall enrol D at E Town Public School to commence in 2019 unless enrolment at another school is agreed between them in writing.

(13)That each party shall be entitled to attend events to which parents are invited at the day care centre and school which the children attend (subject to any restriction imposed by those institutions on the parents or either of them).

(14)That the Independent Children’s Lawyer shall provide a copy of these Orders to the day care centre and school which the children attend.

Specific Issues

(15)That WITH THE CONSENT OF BOTH PARTIES and NOTING that the children consult Dr G at H Medical Centre E Town, each of the parties shall ensure that the children attend on Dr G as their general practitioner and failing his/her availability, on a doctor from that centre, unless there is a genuine medical emergency which requires medical advice to be sought elsewhere.

(16)That in the event that one of the children suffers an accident, illness or injury that requires specialist medical advice and/or treatment in hospital, the parent present must advise the other parent as soon as possible.

(17)That the mother shall forthwith arrange for the two older children to consult a child psychologist and in that regard shall provide the name and contact details of the father to the practitioner AND FURTHER each parent shall participate as required by the psychologist in the therapeutic process.

(18)That leave is granted to the mother to provide to the child psychologist who provides therapy for the older children:

(a)A copy of the report of Dr I dated 20 February 2015;

(b)A copy of these Orders and reasons for judgment.

Communication between parents

(19)That each party shall keep the other advised of:

(a)The residential address;

(b)The landline telephone number, if any;

(c)The mobile telephone number; and

(d)The email address;

of that party.

(20)That the parties shall provide information about the health and general welfare of the children to each other by text or email unless another means of communication is agreed between them.

Names

(21)That each parent take all necessary steps to register the birth of D with the NSW Registry of Births, Deaths and Marriages.

(22)That in the event that the mother wishes to add the name Cannon to the names of the children, then each party shall sign all things and take all steps necessary to alter the names of the children by the addition of that name, thus B Cannon JACKSON, C Cannon JACKSON, D Cannon JACKSON.

Independent Children’s Lawyer

(23)That the Independent Children’s Lawyer shall explain these Orders to the older children and the mother shall ensure that the children are brought in at a mutually convenient time for that explanation to take place.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: PAC 693 of 2011

Ms Cannon

Applicant

And

Mr Jackson

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1.These are contested parenting proceedings in relation to three children, B aged eight, C aged six and D aged 18 months (“the children”).

2.The Applicant is the mother, aged 36 years.  Her household consists of herself and the children when they are with her.

3.The Respondent is the father.  He is aged 35 years.  His household now consists of himself, the paternal grandparents, and the children when they are with him.

4.Both parties live in E Town on the Coast of New South Wales.

The Applications

The Mother

5.By her Amended Application filed 17 March 2015, the mother proposed that she have sole responsibility for the children and that they live with her. Failing agreement otherwise, she proposed that the children spend time with the father on alternate weekends, Friday to Monday, one additional overnight visit per fortnight, half school holidays, and other special times.

6.As a specific issue, the mother proposed an alteration to the surname of the children from ‘Jackson’ to ‘Cannon-Jackson’ and a change of middle name for the youngest child from ‘J’ to ‘K’. That latter aspect was not pressed and although a hyphenated surname was not pressed, both parties agreed that the mother’s surname ‘Cannon’ could be included as a third given name for each of the three children.

The Father

7.By his Amended Response filed 1 April 2015, the father proposed that he have sole parental responsibility for the children and that they live with him. His proposal for time with the mother was in very similar terms in reverse to the orders sought by her, that is, alternate weekends, one other night per fortnight, half school holidays and other special times.

8.The father also sought various restraints including on the relocation of the children from E Town, on conduct, and in respect of change of name. As stated, he came to a consensual position with the mother about the inclusion of her surname in the names of the three children.

History Of Relevant Events

9.The parties began living together in 2001; both then aged in their very early twenties.  Both parties used drugs and alcohol to varying degrees and also cannabis at times on a daily basis.

10.In 2007 two things happened. The parties’ first child B was born, and the mother sought and received help from L Drug and Alcohol Clinic at L Hospital to give up the use of cannabis.

11.In December 2008 the parties’ second child C was born.

12.In January 2011 the parties separated. The older children were then aged almost four years and just two years.

13.In February 2011 the father filed an Initiating Application in the Federal Magistrates Court (as the Federal Circuit Court was then known) and the mother responded.

14.On 30 November 2012 the parties reached final parenting Orders by consent.   Those Orders provided for the parties to share equal parental responsibility and for the children to live with each of them in a week about shared care arrangement.  Although the Orders provided for changeovers at school, neither of the children were old enough to be at school.

15.In those Orders the parties expressed their intention to participate in relationship counselling.  Within three months they had reconciled and reunited the family.

16.Early in 2013 the parties conceived another child.

17.On 26 April 2013 when she was about four months pregnant, the mother attended M Hospital.  At that time she advised the triage nurse that she used synthetic cannabis daily; about 20 synthetic cones per day.

18.In her oral evidence the mother initially denied having given that information to the hospital.  She was shown the exhibit[1] and continued in denial by agreeing with the proposition that there had been a mistake by the hospital.  Subsequently she gave evidence that she had been “extremely stressed and pressured at that time and did not have a recollection of what she had told the hospital”.

[1] Exhibit 2

19.More importantly the mother said that she had given up smoking synthetic cannabis in 2007, but had begun to smoke again in 2013, when pregnant.

20.In October 2013 the parties’ third child, D, was born.

21.On 2 February 2014 when the children were aged almost seven, five and four months, the parties again separated.

22.The father left the home, taking the older children with him. The father began living in the business where he worked as a manager.  The mother initially remained in the home, keeping D with her.

23.This second separation was very different in its character from the first one. There was no particular hopefulness about reconciliation and there was a very high level of stress and conflict for both parties.

24.One week after separation the mother asked police to conduct a welfare check on the father and children.

25.A further week later the father sought and obtained a Provisional Apprehended Violence Order (“AVO”) against the mother for his protection.

26.The mother says that thereafter she did not smoke cannabis or use synthetic cannabis again. There is no evidence that contradicts her statement.

27.On 6 March 2014 a final AVO was made in the Local Court at E Town for the protection of the father. This order was made without admissions and by consent of the mother.

28.The existence of that AVO and the parties’ own uncertainty about the status of the consent Orders made in the Federal Magistrates Court in November 2012, after their first separation, created chaos and confusion.

29.On 7 April 2014 the mother voluntarily attended at N Town Mental Health Unit for an assessment.  She was diagnosed with situational depression and went home the following day.  She thereafter consulted her general practitioner, Dr G, who has continued to be the family doctor for the children.

30.Dr G advised the court by letter dated 19 May 2014 that:[2]

… I have no concerns regarding [the mother’s] capability of caring for her children and state that her mental health is normal considering her circumstances.

[2] Affidavit of the Mother filed 17/04/2015, Annexure C

Events in mid May 2014

31.On 14 May 2014, despite the AVO, it is common ground that the father came to the mother’s home, although they disagree about the reasons.  The mother says that there was a restoration of their intimate relationship.  The father denies that. The father says that he came to the home for the purpose of repairing the children’s bunk bed.  I conclude that what each of the parties asserted was true.

32.In any event, that development proved to be negative for the children.

33.The father asked the mother to care for the children the next day, the father having a commitment in O Town.  The mother agreed.

34.On 15 May 2014 the mother and D attended at the swimming pool for the swimming lessons for the two older children. 

35.Whilst there, there was a scene between the parties over the significance of what had happened the previous night.  The father then changed his mind about the mother having the children and took them with him. Subsequently the mother drove to the Business where the father lived, saw the children out in the front area and allowed them to get in the car with her to drive home.

36.When she had time to reflect, the mother realised that she would likely be breached in respect of the AVO and would be contacted by the police.

37.That is indeed what occurred and that evening she was charged with a contravention.  The mother was arrested and taken to the police station.

38.All three children were then placed in the care of the father.

39.The condition of the mother’s bail was such that she was unable to contact the father directly.  The maternal grandmother attempted to collect at least D to ensure her return to the mother.  The father did not permit her to do so.

40.On 16 May 2014 the mother attended at the school of the two older children to collect them.  There was a horrible scene in front of the children with both parties panicking and losing control.

41.The father shouted at the mother in the presence of the children words to the effect:[3]

What is she doing here?  She’s been arrested.  She can’t have the children.  She’s been arrested!  She’s unfit.

[3] Affidavit of the Mother filed 17/04/2015, par 85

42.

The father left with the three children and there followed a period of about

10 days where D spent no time at all with the mother.

43.The mother asked her general practitioner to refer her to a psychologist or a psychiatrist and her general practitioner did both.

44.The report of Dr P, consultant psychiatrist,[4] strongly asserted that the mother did not suffer from any psychiatric illness or disorder:

She is much better seen as a lady who is struggling with an appalling marital breakdown, in which she feels that her children are not being adequately cared for and supported by her previous partner.

[4] Affidavit of the Mother filed 17/04/2015, Annexure D

45.In retrospect, I accept that this was an accurate explanation for the mother’s conduct and distress.

46.

On 21 May 2014 the mother filed an Initiating Application in the

Federal Circuit Court.

47.On 26 May 2014 the father filed his Response.

48.On that day, interim Orders were made:

a)

That D return to live with the mother and thereafter spend time with the father on three week days and every second Saturday between

9.00 am and 3.30 pm; and

b)That the older two children be returned to the mother and thereafter revert to the pattern of shared care.

49.A raft of other Orders was also made.

50.On 26 June 2014 the parties attended for a Child Inclusive Conference.

51.In that conference the Family Consultant was concerned about the mother’s presentation:[5]

… she presented with pressured speech, disorganised thought patterns and labile affect - vacillating between being very friendly towards the Family Consultant and accusing her of being against her.  She was also very loud.

[5] Child Inclusive Memorandum dated 26/06/2014, page 2

52.The Family Consultant described the relationship between the parties as:[6]

… fairly toxic at the current time.  Communication between the parents is extremely poor and both seem to undermine the other with regards to parenting the children.  The conflict has extended to both sets of grandparents and the relationship between the mother and the paternal grandmother is also extremely poor. 

[6] Child Inclusive Memorandum dated 26/06/2014, page 3

53.That observation accurately reflects the state of affairs current when the matter was heard before me.

54.

It is apparent that the Family Consultant was unaware of the turmoil in

May 2014 arising from the parties taking what each considered to be reasonable positions arising from 2012 Orders from the Federal Magistrates Court and the AVO from the Local Court.

55.In her oral evidence before me the Chapter 15 Expert (“Single Expert”) noted that having read the Child Inclusive Memorandum, she had anticipated somebody very different than the mother as she presented.

56.Whilst I do not doubt the accuracy of the observations of the Family Consultant, I conclude that the mother’s presentation on that day does not reflect her past and subsequent behaviour and presentation.  Her general practitioner, psychiatrist to whom she was referred, and the Chapter 15 Expert, have all been very clear to say that the mother remained remarkably composed and child focused in a variety of different, difficult circumstances and that there was no evidence of mental illness.

57.On 17 July 2014 the court proceedings were adjourned for the mother to provide the Child Inclusive Memorandum to her general practitioner and psychologist.   This led to the generation of two further reports.  One by her psychiatrist, Dr P, dated 16 July 2014[7], and one by her psychologist, Ms Q, dated 29 July 2014.[8]  Both of them yet again confirming a positive observation of the mother’s ability to manage the children and her mental health.

[7] Affidavit of the Mother filed 17/04/2015, Annexure H

[8] Affidavit of the Mother filed 17/04/2015, Annexure G

58.

On 1 August 2014 an interim hearing was commenced in the

Federal Circuit Court and adjourned for three days.

59.On 4 August 2014 the interim hearing continued and Orders were made as follows:

a)That the children live with the father and spend time with the mother on a one day on, one day off basis, with the parties to deliver and return the children to school at 8.45 am each day.

b)The weekends were likewise shared.

c)The mother’s time was to be supervised by a named person who was to notify the father if the mother became “emotionally disregulated or otherwise exhibiting signs of depression, emotional instability or mental illness.”

60.There was no evidence before me to suggest that the named supervisor had qualifications which would enable her to reach such conclusions.

61.A Chapter 15 Expert was commissioned and the matter was then transferred to this Court.

62.On 29 August 2014 the Independent Children’s Lawyer filed a Notice of Appeal in relation to the Orders made 4 August 2014.  The supervisor ceased being available and for a period of weeks the children did not see the mother at all.  In October 2014 apparently time began at a contact centre.

63.On 27 October 2014 the Chapter 15 Expert interviewed all parties and the children.

64.On 7 November 2014 the Appeal was upheld by the Full Court of the Family Court of Australia and Orders were made for the children to spend time with the mother at a named contact centre, not less than once per week.

65.On 12 December 2014 there was an incident where the paternal grandmother would not permit the mother to see the children at the school concert.

66.On 20 December 2014 there was a scene at the contact centre where the maternal grandmother expressed her frustration with current arrangements.

67.In February 2015 the father broke up the relationship with his partner who had been interviewed for the Chapter 15 Expert Report (“Expert Report”).

68.On 20 February 2015 Expert Report was released.  The recommendations referred to the need for the children to be “in a stable situation where they can be protected from further exposure to these severely disruptive circumstances”.[9]

[9] Expert Report, page 59,  par 12

69.The Single Expert set out in some detail the following:[10]

a)   The “traumatic shock” which D appeared to experience when she caught sight of the mother and was thereafter unwilling to let her go;

b)     The extreme emotional distress of B when reintroduced to the mother, who likewise clung to the mother and could not be separated from her;

c)     The defiance and stand-off attitude of C to the mother, which in her oral evidence, the Single Expert said was a similar level of distress, expressed differently.

[10] Expert Report, pages 39-42

70.On 27 February 2015 interim Orders were made providing for the children to spend three full days with the mother in each eight day cycle, unsupervised.

71.On 5 March 2015 the matter was expedited and listed for four days hearing commencing on 27 April 2015.

72.On 27 April 2015 when the matter came before me there was an application by the father for adjournment, which was declined for reasons given at the time.

73.The matter proceeded to conclusion.

Evidence

74.The documents relied on in respect of the application were as follows: 

(a)Mother’s Amended Initiating Application filed 17/03/2015;

(b)Mother’s Affidavit filed 17/04/2015;

(c)Father’s Amended Response to Initiating Application filed 01/04/2015;

(d)Father’s Notice of Child Abuse filed 24/10/2014;

(e)Father’s Affidavit filed 15/04/2015;

(f)Independent Children Lawyer’s Notice of Child Abuse filed 17/10/2014;

(g)Chapter 15 Single Expert Report dated 20/02/2015; and

(h)Child Inclusive Memorandum dated 26/06/2014.

The Mother

75.The mother presented in the calm, composed way commented on by the Single Expert.[11]

[11] Expert Report, page 54

76.The first area of cross examination was in relation to the mother’s use of synthetic cannabis during her pregnancy with D.  The mother denied having made statements to M Hospital in about April 2013 to the effect that she was smoking 20 cones of synthetic cannabis daily at that time.

77.The mother was untruthful about this and defensive, however the balance of her evidence was given in a straight forward way with appropriate concessions being made.

78.I asked her at the conclusion of her evidence why she had given those untruthful answers.  Her response was that in April 2013 she and the father had not been getting along at all and the mother had come to the realisation that reconciliation had been a mistake.  She was particularly distressed about bringing another child into the relationship in those circumstances.  She was also reflecting on “drinking and drug use on both our parts.  Not a nice time.”

79.I accept that evidence as the explanation both for the mother’s conduct in 2013 and for her untruthfulness at the commencement of her evidence in relation to her drug use.

80.I am supported in this conclusion by the fact of the mother having referred in her affidavit to having used illicit drugs during her pregnancy[12] and to having ceased use of all drugs, including synthetic cannabis, after February 2014.

[12] Affidavit of the Mother filed 17/04/2015, par 161

81.It was apparent that the mother has attempted to focus on the children exclusively, for instance, she attended a “Parenting After Separation” course which was of assistance and has continued to consult with a psychologist. However I do not consider that she or the father fully appreciate the impact of the conflict between them on the children.

82.The mother sought assistance from the N Town Mental Health Unit in April 2014 and has continued to seek assistance as she struggled with anxiety and depression in the context of separation from the children and destructive conflict with the father at an intense level.

83.The mother attended on the Single Expert together with the maternal grandmother, who was also interviewed.  The expectation when directions were made was that the maternal grandmother would provide an affidavit.  There was no explanation for the fact that she did not. 

84.The mother conceded that the maternal grandmother had been angry and confronting on the topic of the mother having to see the children in a contact centre, however I have no reason to doubt the mother’s statement that she has been greatly assisted by the support provided by the maternal grandmother to herself and the children.

85.The Single Expert described the maternal grandmother as strongly aligned with the mother but there was nothing to suggest that the relationship between the maternal grandmother and the children was anything but positive.

86.The mother had learned through the father’s affidavit that D was attending a particular day care centre.  The father conceded that he had not consulted with the mother about that. Nevertheless, the mother appeared genuinely supportive of the child continuing at that day care centre given the positive nature of the report about her attendance.  This was very much to her credit. 

87.Likewise, the mother was genuinely supportive of both parties being able to attend events at the children’s school and day care and the two older children remaining at their current school.

88.I am satisfied the mother understood the implications of those concessions, namely, that she was committing herself to remaining in the E Town area.

Mental Health

89.The mother was asked what triggered her depression in her own view.  She volunteered that separation, limited money at that time, becoming homeless for a period and staying with a friend when she had a four month old baby, had been the most recent triggers.

90.In relation to anxiety, she identified that the litigation itself made her anxious.   She has undertaken a stress management course in an attempt to regulate her emotions and to remain composed.

91.However I accept her evidence that she does not find dealing with the father to be a trigger for depression and anxiety.

92.The mother considered the proposition that there should be a supervisor for handovers of the children but rejected it, noting that the parties had already reached a point where swift handovers and notes of relevant matters were quite effective between them.

93.I formed the impression that the parties may have begun to draw on the early years of their relationship, which were largely positive emotionally.

Change of Name

94.The mother was keen to hyphenate the children’s surnames to include her own surname.  Her stated purpose was to reassure the children that they were connected to both parents.  Subsequently the mother stepped back from this position and the parties agreed that her surname could be included as a third name for the children but not as a hyphenated surname.

95.I accept that this was an insight by the mother into the fact that the children would draw less benefit from her proposal that she herself would.

The Father

96.The circumstances of the father had very much changed in the week prior to hearing.  He had handed in his notice as the manager of the business where he had been living and working.  The owner of the business intended to take over that position and offered the father work as a casual hand.  His evidence was that he had accepted that position and intended to work casually from 9.00 am to 3.00 pm a couple of days per week.

97.The father and the paternal grandparents had secured rental accommodation which they were due to move into during the course of the hearing.  The new accommodation was a three bedroomed home in the local area: one bedroom for the paternal grandparents; one for the father, possibly with a cot for D; and one for the two older children.

98.The father had previously applied for Legal Aid and had been rejected.[13]  He had applied again for Legal Aid after this change of circumstances in the week prior to the hearing and had been successful but with only one day in hand, his solicitor had been unable to find available counsel. The adjournment application having been made on that basis and rejected, the father’s solicitor represented him throughout.

[13] 5 March 2015

99.The father had not included in his affidavit filed 15 April 2015 any reference to his change of circumstances relating to employment or residence because “he didn’t see the relevance”.

100.The father presented as rather flat, consistent with the evidence that he too has suffered from depression and anxiety.

101.The father presented for interview with the Single Expert together with the paternal grandmother and his then partner.  The paternal grandmother did not go on to provide an affidavit as had been foreshadowed at the time directions were made and the father had ended his relationship with that partner in February 2015.

102.I have formed the impression that the father had genuinely held the view that he needed to take a strong stand to protect the children from the perceived misconduct of the mother, however he appeared to have not understood the traumatic impact on the children, particularly D but also the older children, of being separated from the mother.

103.C has told all members of the family, including the father and his brother that he wanted to kill them.  The father was hurt by it, however it is apparent that he has regarded C as a “naughty child” rather than the “severely distressed child” identified by the Single Expert.

104.The father agreed with the analysis of the Single Expert that B was inclined to show his distress and C was not, but in my view, had not understood the cause of their behaviour.

105.Likewise, I consider that the father misunderstood the significance of the following passage in the Expert Report.  The context was the children being brought in to be interviewed with the mother, whom they had not seen for several weeks.  D was at this time almost 12 months old:[14]

The children joined us now.  [D] immediately put her arms out and then clung to her mother.  The boys too immediately cuddled their mother. 

After a few minutes, [C] returned to the game he had been playing earlier and [the maternal grandmother] sat on the floor with him and joined in.  [B] did not move away; he maintained close physical contact with his mother.  [D] was very quiet and continued to cling to her mother; it was obvious that the reunion was having a very powerful emotional effect on her.  Both the mother and [maternal] grandmother were weeping quietly as they too could see the intensity of [D’s] response.  [D] remained very still and simply clung to her mother; the stillness indicating that she was experiencing a traumatic shock.

[14] Expert Report, page 39

106.In his affidavit the father says this:[15]

There are references in the [Expert Report] that … [D] was traumatised during the interview session, I state that the children were out of their routine and had been in and out of the car several times on a hot day due to the session agenda.  [D’s] regular day sleep … was not possible and she was very tired.  I attach a report from the child care centre dated 4 March 2015 that notes that [D] is a very settled child and appears not to show signs of trauma to the carers.

[15] Affidavit of the Father filed 15/04/2015, par 8

107.I consider that the father genuinely failed to understand that the traumatic shock being referred to was D experiencing a reunion with the mother, which was a powerfully positive experience for her but still a shock after long separation.

108.The father was being defensive in referring to D not showing signs of trauma to the carers at day care, but I do not consider he was covering up true knowledge.    The father simply did not understand the psychological impact of a child D’s age having a disruptive pattern of time followed by separation from the mother who had been her primary carer all her life.

109.The father conceded that he had not discussed enrolling D in the day care centre which she attends.  It is probable he finds it difficult to speak to the mother.  His evidence was that the mother “rings and taunts me before court events, laughing”. To the extent that the mother has been scornful of the father at times, the father has been hurt by it.

110.It became apparent that although the orders sought in the father’s Response document did not refer to supervision, he continued to wish to have supervision reinstated.

111.The father could see the impracticability of his proposal of alternate weekends, other days and half school holidays being supervised but did not entirely step back from it. 

112.Ultimately he made the statement, “the last 13 months have destroyed all of us”. I accept that is a reasonably accurate statement of the impact on both parties and the three children of the period since the parties’ second separation.

113.In the same way as the mother, the father has suffered from what he describes as “situational depression” and has responsibly taken anti-depressants.  He has also attended courses with Interrelate.

114.It is probably the case that he has occasionally abused alcohol.  Certainly there was evidence of the father having been removed from a location due to intoxication in April 2014.  The father conceded it, but was inclined to excuse his conduct as a result of the conflict between himself and the mother. I accept that he was under pressure, just as the mother was. 

115.There is nothing to suggest that the father has put the children at risk when they are in his care by abuse of alcohol.

Incidents in mid May 2014

116.When the mother drove to the father’s business after their argument, I have no doubt that the children willingly got in the car with her.  When he saw this, the father, to use his own words, “went after her” in his car.  The mother drove up on the nature strip.   Ultimately the mother was arrested and was dealt with for breach of the AVO because she had approached the father’s home.

117.However the harm which came to the children was as a result of the parties’ conduct with each other.

118.The mother should not have attended the business and taken the children, no matter how willingly they came. It having happened, the father should have considered allowing the children to go and then spoken to the mother when emotions had cooled down, or at least considered asking the police to intervene rather than taking direct action, which could have led to an accident with all the children involved.

119.The father seemed to me to genuinely hold the view that D needed to be withheld from the mother after that incident because the mother had mounted the nature strip with her car.  He did not appear to take into account the fact that he was pursing her at the time in his car.

120.The scene which followed at the children’s school the next day was a dreadful one for the two boys who witnessed it.  As previously stated, confusion over the current state of court Orders both Family Law Orders and State AVO created the intensity in that situation.

121.The father made this statement, “I basically stopped her from getting into worse trouble”.

122.I am satisfied that he believed that the mother was in breach of the AVO when she attended at the school, although I am also satisfied that in fact she was not.  Having said that, there may have been bail conditions imposed on the mother after her arrest but if so, they were not put in evidence in the proceedings.

123.In relation to communication the father said he sometimes permitted the children to make telephone calls to the mother in 2014, when they were exclusively in his care.  He also said when the mother rang to speak to the children, he took the view that the court had said that he did not have to allow telephone calls and they were going to see her soon in any event.

124.In that matter the father was putting his own comfort and convenience ahead of the children’s emotional needs.

125.Likewise, the father made a decision to stop feeding D formula and moved her on to cow’s milk.  He did not discuss that change with the mother, merely told her.  The father was quite airily dismissive of the significance of that change.  A reflection of an apparent view that he had a right to take the decision because the child was in his care.

126.In a similar way, the father arranged for the older children to have counselling at an organisation called R Org.  Appropriately the father was concerned about the impact of separation on the children, but he said he had asked the counsellor if she wanted to see the mother and did not press when the answer was no.

127.Overall the father appeared to be bitterly critical of the mother, although he simply may have been bitter about the events since separation.

128.The father clearly has a lot to offer the children.  In relation to their education he said, and I accept, “I’m fully behind them”.  He assists with the homework for the older children and has a policy of “pushing their strengths and building up their weaknesses”.

129.On a positive note, the father agreed with the mother’s position that changeovers at school or at a McDonald’s Restaurant had worked well for months and could continue.

Single Expert

130.

The Single Expert saw the children, the parties and other relevant adults on

27 October 2014.  There were some follow up interviews.

131.The circumstances of the parties had changed by the date of hearing.

The Father

132.At the time of interview, the father was working full time as a manager in a Business, where he was also able to live with the children and the paternal grandparents.  The father was working at least full time hours.

133.The Father had a relationship about which he was cautiously optimistic about continuing.  His partner and her 13 year old daughter had been involved with the children throughout the period of that relationship.

The Mother

134.The mother was, at the time of interview, living in E Town and the maternal grandmother was living with her for support (returning home to the maternal grandfather at weekends).  At the time of hearing, the mother had obtained a suitable rental property for 12 months and was living alone.

135.She had not formed another relationship and had no present intention to do so.

Concerns identified

136.The Single Expert identified concerns about damage to all the children.

137.First the Single Expert focused on C.  It was her very strong view that C internalises his distress and “acts tough” as a way of coping.  C had been involved in a fight with an older child.  He had been found lying and had hit a girl in his class “because she annoyed him”.

138.The Single Expert described C as having an ambivalent attachment to his parents and was showing anger and aggression.

139.I accept the analysis that if C continued without intervention he would likely become identified as a behavioural problem and end up in anti-social activity.

140.B on the other hand was described as having an insecure attachment to his parents, which was revealed by his clinging and showing distress. B in the Single Expert’s view externalised his distress.

141.The Single Expert described D as a resilient and sturdy child who nevertheless had been traumatised by separation from the mother.

142.The Single Expert was unshaken in her view that the mother had a greater degree of child focus than the father and that the children urgently needed stability in their arrangements with one parent primarily responsible for them. In her view, the mother should be the parent who had that primary responsibility, but the children very much needed to spend as much time as possible with both parents.

143.For that reason there was quite a discussion through cross examination on behalf of the mother about time with the father, in the event that the children lived with her.

144.The Single Expert was adamant that an alternate weekend from Friday to Monday and one other overnight in a fortnight cycle was simply insufficient for D’s needs, acknowledging of course the very different developmental stage of D compared to her older siblings.

145.Helpfully, the Single Expert also identified that until about age four, D would need regular time with both parents, not only through school terms but in school holiday periods. But after age four, being the youngest sibling, she was likely to be able to maintain a healthy relationship with longer periods of time with and away from each parent.

146.The possibility of having differential arrangements for the older children and D was strongly recommended against on the basis that complex arrangements would be unhelpful to all the children and although the older children could manage with a different regime, the benefit of keeping the children together as a group should be the determining factor.

147.The Single Expert expressed it this way, “the children all have strong attachments to both parents and shouldn’t have their time with either parent reduced.  That would not be ideal”.

148.Further on the basis that she was not confident of collaborative parenting, the Single Expert strongly recommended that one parent take on parental responsibility, even if there was reporting or consulting with the other parent. I agree.

149.Another observation made by the Single Expert was that there was antipathy from each set of grandparents to the other family and that the children had picked up on that animosity.

150.Having had the opportunity to interview and observe him, the Single Expert concluded that the paternal grandfather was rather punitive in his disciplining of the children which was of some concern.  However he was also more inclined to understand the children’s need for time with the mother.

151.Despite identifying the tribal nature of the conflict between the two families, the Single Expert did not identify anything that would disqualify any grandparent from actively participating in the lives of all the children.

152.The Single Expert expressed the surprise she had felt at meeting the mother, who she had expected to be more disorganised and perhaps mentally unwell after reading the Child Inclusive Memorandum written in June 2014.

153.She described the mother as remaining calm and contained throughout a very difficult interview (with the Single Expert) and had done “surprisingly well in the circumstances”.

154.Her observation of the father was that he did not handle it so well, noting that it was a very extreme situation for any parent and that B was beside himself, “he was really distraught”.  The mother was able to cope with that but the father was overwhelmed.

155.Another aspect which was highlighted was that in the Single Expert’s view, the children needed a proper home to live in, which they have not had for some time.  This is a reference to the fact that the children have lived in the business where the father has lived and worked, sometimes changing rooms as needed.

156.By the date of hearing, both parents had arranged for suitable rental accommodation in the local area, with perhaps a little more pressure for space in the father’s home.

157.The Single Expert was asked about her view of the father expressing ongoing concerns about the mother with a preference for her to be supervised.  She said that it was understandable given the volatility of the mother at times but confirming “my own observation is that she is a capable parent”.

158.In response to questioning, the Single Expert added that if the mother was, despite her denials, continuing to use synthetic cannabis at a high level, she would be showing the effects of it in outbursts or other ways.

159.The Single Expert made this comment:

Twenty cones per day is really heavy use, an occasional cone to settle is not remarkable in our culture.

160.Her ultimate recommendation was that the children live primarily with the mother and she was confident that the children would cope with such a change.

The Law

161.The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

b)Children are protected from physical and psychological harm;

c)Children receive adequate and proper parenting to help them achieve their full potential; and

d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

162.These are applications for parenting orders pursuant to s 64B(2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

163.There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child.  The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

164.I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

165.I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Primary Considerations

166.There is a benefit to the children of having a meaningful relationship with both of their parents.  I have accepted the evidence of the Single Expert that the children are well attached to both their parents and will benefit from significant time with both of them.

167.However, there is a need to protect them from physical or psychological harm and from being subjected to family violence.  That protection can best be effected by clear cut arrangements; clearly defined parenting orders with minimum exposure of the children to the parties together at the same place.

168.The greatest risk to the children has been the level of conflict between their parents, which has at times rapidly escalated. Examples are the mother removing the children from the father’s home at the business and the car chase that followed; both parents being at school and the father loudly and angrily protesting the mother being present there, believing that an AVO was being breached; and the incident where the mother attended on the older children’s swimming lesson and was subsequently arrested, with all three children being placed in the father’s care and thereafter not seeing the mother.

169.Those have been no doubt frightening, destabilising incidents for the children.

170.However more recently the situation has begun to settle, both parents say that changeovers have been effected successfully.

171.The children have been spending three days at a time with the mother which has taken a little of the urgency out of the distress of separation.

172.I am satisfied that meaningful relationships can be maintained without the children being exposed in future to family violence if contact between the parties is minimised.

Additional Considerations

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

173.The children are B, a boy aged eight; C, a boy aged six; and D, a girl aged 18 months.

B

174.B said he was sad because “the court said we have to stay with dad forever and I want to see mum”.[16]  He also expressed the view that when there was a one week turnaround he did not like it because there were a lot of “backwards and forwards”.

[16] Expert Report, page 46

175.B expressed positive views about being in the care of both parents.

176.He identified both his grandmothers as people who are fun to be with.

177.B had not enjoyed living in the business and had felt frightened there.

178.Not unusually, B wanted his parents to be together, but primarily he expressed sadness, he wanted to see the mother.  In the contact service reports in December 2014 and January 2015, B was at all times happy to see the mother and enjoyed spending time with her.[17]

[17] Exhibit 5

C

179.To the Single Expert, C was positive about both his parents and all four of his grandparents.

180.He was overstated in his view, which the Single Expert explained as his way of diffusing the tension he felt at the time:[18]

If [C] is naughty with dad, ‘he swears at you’; if he is naughty with mum, ‘she kicks my butt’; with nanny, ‘she chucks us into the water’; grandma calls the police and pa kicks my butt and kicks me out…

[18] Expert Report, page 48

181.Notably, C said that what makes him happy is “seeing mum”, although there was a critical story about her told as well.  C said that there had previously been a week about arrangement and that was good.

182.I infer that at the time of interviews in October 2014 C would have liked to have spent a lot of time with both parents.

183.Later in the children’s contact reports C was strongly ambivalent.  He asked to go home.  He spoke rudely to the mother for example, “you’re a meanie, I hate you, you’re stupid, I’m not listening to you and I can’t hear you”.

184.When a worker asked C to stop name calling, he responded by saying that he was going to tell the father, that he is going to “tell dad on mum”.

185.When it was time for the mother to leave and she asked C for a hug goodbye, he said he was not hugging her as he hated her and he stormed out of the room.  He told the father that he hated the mother and wanted nothing to do with her.[19]

[19]  Exhibit 5

186.Accepting the Single Expert’s evidence, C’s conduct towards the mother, and indeed his aggressive attitude to his siblings during these supervised visits, was an outward sign of inward distress. I do not take literally his expressed negative views about the mother, although I accept that he may have blamed her for a situation where the children were seeing her on a very limited supervised basis.

D

187.At 18 months of age, D has clearly not expressed views, but the observation of her reunion with the mother is a powerful statement of the significance of that attachment. 

188.In the contact service reports D is observed at all times to be delighted by being in the mother’s presence, sitting on her lap, cuddling her and generally being overtly happy.

Conclusion on the Children’s views

189.Reflecting on what has happened from the children’s perspective since the separation of the parties in February 2014, it is hardly surprising that their views are so differently expressed and conflicting.

190.At first the children were separated, the older children with the father and D with the mother.  After three months the mother was arrested and all children were handed to the father and they did not see the mother for about 10 days.  Thereafter there was time with both parents until August 2014 when one day on, one day off time began.

191.From October 2014 the children spent no time with the mother for at least a month. Thereafter there was a period of supervised time, once a week for two hours in a contact centre with the mother.

192.From March 2015 there was an eight day cycle, three days of which were with the mother and five with the father.

193.It is hard to imagine a more disruptive period than what these three children have experienced.  In the circumstances I interpret their views to have been an expression of love for both their parents and a desire for certainty of regular time with both of them.

Nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

194.Each of the children has a loving relationship with each of the parents and all of their grandparents.

195.The paternal grandfather may be a stricter disciplinarian than the others but that is not to say that he does not love the children or bring benefit into their lives.

196.The difficulty is that they are operating, trying to function, with high stress levels caused by their parents’ conflict so that behaviour is a reflection of their situation rather than, especially in the case of C, pure naughtiness.

197.Both parents have wished to take parental responsibility and participate in the making of decisions. 

198.Each has made decisions excluding the other when the opportunity was there to do so. The father in particular enrolled D in day care and changed her diet from formula to cow’s milk without prior reference to the mother, when her input would have been helpful to the child.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

199.There was some small amount of evidence in relation to child support.  If there was a child support assessment in favour of the father for about $36 per month payable by the mother, the documentary proof of it was not supplied during the course of this hearing.

200.It would have likely been difficult for the Child Support Agency to keep up with the changes in the children’s arrangements and the varying financial circumstances of the parties.

201.Both parents have a strong work history and it is likely that each of them will engage in at least part time work and when it is possible, full time work. There is nothing to suggest that they will not meet the financial needs of the children.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

202.For the last two months the children have been spending three days in each eight day cycle with the mother.  Changeovers have been at school or at a McDonald’s restaurant and have begun to work well.

203.A further change to this arrangement is likely to cause some disruption, especially for children who are as sensitised to change as these three are. However I accept the evidence of the Single Expert that a change into the primary care of the mother effectively for nine days in each fortnight will be something they can readily adjust to.

204.This is on the basis that they will be spending regular substantial time with the father in a pattern which slowly becomes predictable.

The practical difficulty and expense of a child spending time with and communicating with a parent

205.Fortunately both parties live in the same town and are committed to remaining there.  Each of them has a driver’s licence and a car and the majority of changeovers will be effected at D’s day care and at the older children’s school.

206.In 2019 D will start formal schooling and that is likely to be the year that B progresses to high school.  There will be no practical difficulty and very little expense involved.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

207.Both the parents in the early days of their relationship used drugs and alcohol to varying degrees.

208.Each of them has suffered and continues to suffer from episodes of depression and anxiety. Each has a different response to managing their mental health.

209.The father has made a point of maintaining high levels of fitness and attends the gym to do so. He takes prescription drugs for depression and anxiety, as necessary.  At least on occasions, he also uses alcohol in a social setting, but not to excess when the children are in his care.

210.The mother has sought appropriate therapeutic interventions, has attended the hospital when she has felt overwhelmed in 2013 and 2014 and has an ongoing relationship with a psychologist. She attempts to avoid anti-depressants if she can, focusing more on health and mindfulness. She has made a commitment to cease using drugs, particularly synthetic cannabis, and has been apparently successful at least for the last 12 months.

211.The parents each have the capacity to meet the children’s needs.

212.The mother is assessed to have a greater child focus, that is, to understand the needs of the children and to be willing to meet those needs even over her own needs.

213.Both are intelligent people who will be able to assist the children at school and will likely actively support extra-curricular activities.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

214.There is a considerable disparity in age between the older children and D.  There is a five year gap between the second and third child.  To some extent that means that the needs of D for limited separation from both of her parents must dictate the arrangements until she reaches at least the age of four.

215.Fortunately D is assessed to be an emotionally hardy child with an extroverted outlook.

216.The Single Expert identifies C as a child who will need most careful consideration and the mother is more likely to be intuitive about that and to withstand bouts of hostility directed at her by the child.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

217.The father may have underestimated the significance of the children’s relationship with the mother and was assessed by the Single Expert to be overwhelmed by B’s unravelling emotionally during observations, whilst the mother was able to cope with all three children throughout that difficult experience.

218.Both parents wish to take responsibility for the children and to do all that is necessary to repair damage done.  I am confident that given the opportunity, each of the parties will engage with the child psychologist to assist both B and C in a way that moderates their behaviour and allows them to progress with their learning and emotional stability.

219.After their first separation in 2012 the parties were quickly able to come to a set of consent Orders in respect of the older children, which provided for share care on a week about basis. It is evidence of their positive regard for each other as parents at that time.

Any family violence involving the child or a member of the child’s family and 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

220.A final AVO was made on 6 March 2014 for a period of 12 months.  That AVO has now expired.  The Order was for the protection of the father against the mother.  It was made by consent and without admissions.

221.There is no evidence before me to suggest that the father was fearful of the mother but was concerned, by what he perceived, as her irrational conduct.

222.There is no doubt that both parties, but especially the mother, were immensely distressed by the second separation in circumstances where they had a four month old baby as well as the two older children.

223.One of the consequences of that AVO being made was that when the mother went to the father’s home, the Business where he worked and lived, she put herself in breach of the AVO which restrained her from going within 50 metres of those premises. The circumstances of her doing that and taking the children with her caused the father to react by driving after her and becoming genuinely concerned that she was unstable.

224.I conclude that May 2014 was a very low point for both parties and the children and the father’s statement that the events after separation had ruined all of them is a reflection of just how out of character the events at that time were for both parties.

225.Another consequence of the breach of the AVO was that the mother was placed on a Good Behaviour Bond which will expire in June 2015.

226.There is no reason to think that either of the parties will expose the children to family violence in future.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

227.Neither of these parties wishes to have any further litigation almost as much as the children are; they are longing for certainty and stability.

Any other fact or circumstance that the court thinks is relevant

228.I note that there are three occasions when the mother has sought help for drug use. 

229.In 2007 she went to a rehabilitation clinic in order to give up cannabis, which was the year that B was born.  It may have been when she was pregnant or shortly after B’s birth.

230.In 2013 the mother was using synthetic cannabis at a high level. She was at that time pregnant with D and coming to terms with a recognition that the restoration of the relationship had been unsuccessful.

231.In April 2014 when the parties were separating the mother again sought help for the use of synthetic cannabis and then ceased.

232.These matters are of genuine concern to the father, however I am reasonably satisfied that the mother was reacting to events, and on a positive note, seeking help at times of emotional turmoil.

Conclusion

233.Taking all these matters into account I have concluded that the mother has the capacity to meet the children’s needs in a more comprehensive way than the father, but that the father’s commitment is well established and genuine.  His emotional feelings about the separation and the mother have somewhat impaired his capacity to identify the children’s needs, at least since the second separation.

234.I accept that both parents need to be engaged with decision making about the children and for that reason have discharged all prior Orders.

235.The mother is to have sole parental responsibility with the implementation of a system whereby she lets the father know of a long term issue for decision, advises him of her own approach to the matter, invites him to let her know of any different approach he favours and then reports back to him on the decision taken.

236.For stability, an Order is made that the children will live with the mother and spend alternate weekends from Friday after school until Monday before school and two further overnights each fortnight with the father.

237.Although an extended alternate weekend might have been preferable for the older children, I accept that such an arrangement would mean D was separated for too long from the father. Accordingly the Orders provide that until D is four years of age, the children are to spend time with the father on alternate weekends (Friday to Monday) and Wednesday and Thursday night in each fortnight.

238.At the commencement of the school year in 2018, that arrangement will change to an extended weekend from Thursday after school to Monday before school each alternate weekend and Thursday overnight in the other week. That provides the added benefit of the children knowing that they will be spending periods of time with the father commencing every week on Thursday alternately for a weekend and an overnight.

239.That pattern will continue on a permanent basis.

240.Likewise, holiday arrangements have been structured to meet D’s developmental needs with two periods in each term holiday and three periods in each Christmas holiday for the children with the father.

241.Again in 2018, the pattern will revert to the more familiar one of half school holidays with each parent. D may or may not attend at pre-school during those holiday periods.

242.No particular submissions were made about special times and it will be a matter for the parties to negotiate additional time at Christmas, Easter and birthdays if they wish to do so. The thrust of these Orders is for a straight forward and predictable arrangement with minimal changeovers. Of course if the parties can agree on additional and/or special times that will be a benefit for the children.

243.The parties have agreed that the older children will continue at their current school and that D will remain at her day care centre. Those arrangements have been implemented as restraints in the Orders, with any change of school or a different school for D when she starts in 2019 to occur only by agreement between them.

244.Given the optimism of the parties that attendance at events to which parents are invited should operate for both of them, an Order has been made accordingly, subject however, to the authority of the school and day care to impose whatever restriction the school sees fit on either of the parties in particular circumstances.

245.The parties agreed that the children should continue to see their current general practitioner and by consent, an Order has been made about such attendance other than in a genuine medical emergency.

246.There are also Orders for the parties to immediately advise each other in the event of accident, illness or injury and for both to participate as required in the therapeutic process undertaken by the psychologist appointed for the older children.

247.Leave has been granted on the request of the Independent Children’s Lawyer for a copy of the Expert Report to be provided to that child psychologist. The Order has also made provision for a copy of these Orders and reasons for judgment to be provided.

248.There are Orders requiring the parties to keep each other advised of contact information and generally in regard to the health and welfare of the children.

249.In relation to names, the parties came to a common position that the children’s surnames should remain unchanged but that the mother’s surname could be included in the name of all the children. The parties agreed that all children should have the same surname. It will be a matter for the mother to initiate that change if she wishes to do so and for the father to sign relevant documents. No doubt it can be coordinated with the registration for the issue of a Birth Certificate for D.

250.Finally an Order has been made for the Independent Children’s Lawyer to explain these Orders to the older children at a mutually convenient time.

251.Orders are made accordingly.

I certify that the preceding two hundred and fifty one (251) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 13 May 2015.

Associate:

Date:  11 May 2015