Clanton & Lachman
[2022] FedCFamC2F 401
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Clanton & Lachman [2022] FedCFamC2F 401
File number(s): SYC 6156 of 2017 Judgment of: JUDGE MORLEY Date of judgment: 4 April 2022 Catchwords: 1 FAMILY LAW – parenting – final orders - mother seeks sole parental responsibility – father seeks equal shared parental responsibility – mother seeks an order requiring the father to undertake a mental health assessment prior to spending time with the children – pending mental health assessment, mother seeks regime of supervised daytime only weekend time graduated to daytime weekend time without supervision – father seeks immediate alternate weekend overnight time. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 64B, 65D, 65DAA, 65DAB, 67ZC, 68B, 68P, 114 Cases cited: A & A & The Child Representative (1998) 22 FamLR 756
AMS & AIF (1999) FLC 92-852
Bemert & Swallow [2009] FamCA 5
Deiter & Deiter [2011] FamCAFC 82
Eaby & Speelman [2015] FamCAFC 104
Grella & Jamieson [2017] FamCAFC 21
Jacks & Samson [2008] FamCAFC 173
Johnson & Page (2007) FLC 93-344
Keskin & Keskin [2019] FamCAFC 236
Litchfield & Beck [2010] FMCAFam 969
L & T [1999] FamCA 1699
M & M (1988) FLC 91-973
Napier & Hepburn (2006) FLC 93-303
Oberlin & Infeld [2021] FamCAFC 66
Pavli & Beffa [2013] FamCA 144
Sadasivam & Seshan [2019] FamCAFC 76
Division: Division 2 Family Law Number of paragraphs: 363 Date of last submission/s: 11 December 2020 Date of hearing: 18, 19 and 20 November 2020, and 11 December 2020 Place: Sydney Counsel for the Applicant: Mr Hill Solicitor for the Applicant: Inner West Solicitors Pty Ltd Counsel for the Respondent: Mr Strik Solicitor for the Respondent: Mark Whelan Lawyer ORDERS
SYC 6156 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS CLANTON
Applicant
AND: MR LACHMAN
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
4 APRIL 2022
THE COURT ORDERS THAT:
1.That the mother have sole parental responsibility for the children X born 2010 and Y born 2012 (“the children”) in relation to all matters relating to the children’s health and in relation to all matters relating to the children’s education.
2.That the parents have shared parental responsibility for the children in relation to all parental responsibility matters other than those relating to the children’s health and those relating to the children’s education.
3.That the children live with their mother.
4.That the children spend time with their father as follows:
(a)For four successive Saturdays from 9.00 AM until 5.00 PM, the first such occasion to be Saturday, 8 April 2022;
(b)Thereafter for four occasions on alternate weekends from 9.00 AM on Saturday until 5.00 PM on Sunday, the first such occasion to commence on Saturday, 6 May 2022;
(c)Thereafter, each alternative weekend during school term time from the end of school (or 3.00 PM if not a school day) on Friday until the start of school (or 9.00 AM if not a school day) on Monday OR until 6.00 PM on Sunday if the father is not in a position to deliver the children to school on time for the start of school on the Monday if that Monday is a school day, the first such occasion to commence on Friday, 22 July 2022;
(d)During the school holidays at the end of Term 2 in 2022 from the end of school attendance for Term 2 until 5.00 PM on the first Tuesday of that school holiday;
(e)From the school holidays at the end of Term 3 2022 and thereafter for each school holidays, for half of the school holidays being the first half of school holidays that commence in in even-numbered year and for the second half of school holidays that commence in an odd number year, changeovers being at 5.00 PM on the middle day of the school holidays;
(f)That in the event that the children are not otherwise spending time with their father on Father’s Day, from 9.00 AM until 6.00 PM on Father’s Day;
(g)In odd-numbered years from 12 noon on 25 December until 12 noon on 26 December;
(h)At such other times as may be agreed between the parents in writing.
5.That notwithstanding any other order, the children shall be in their mother’s care:
(a)On Mother's Day from 9.00 AM until 6.00 PM;
(b)In even-numbered years from 12 noon on 25 December until 12 noon on 26 December.
6.That any changeovers that do not occur at the children’s school or schools shall occur at Suburb C Park on the corner of D Street and B Street, Suburb C.
7.That each of the parents shall keep the other parent informed of any changes to the parent’s telephone contact details and an email address for communication, and the father shall keep the mother informed of his current residential address at all times.
8.That the mother shall keep the father informed of any health issues affecting either of the children and of the details of the school or schools the children attend and shall authorise the school or schools the children attend to make available to the father copies of all of the children’s school reports and of any correspondence relating to the children or either of them, including as to any behavioural issues, and including the school providing to the father his own access codes for any school website to be accessed to obtain any such information.
9.That each of the parents is restrained from denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household in the presence of, or within the hearing of, either of the children.
10.That each of the parents is restrained from allowing either of the children to remain in the presence of or within either of the children’s hearing of any other person who is denigrating the other parent, any member of the other parent’s family, or any member of the other parent’s household.
11.That the father is restrained from attending any of the children’s extra-curricular activities that occur during time that they are not spending time with their father pursuant to these orders.
12.That the father shall do all things necessary to facilitate the children attending at their scheduled extra-curricular activities during the time that the children spend with him, provided that the father is notified of the said extra-curricular activities no less than 14 days before the date they are scheduled to occur.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Clanton & Lachman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE MORLEY:
INTRODUCTION
The applicant mother, Ms Clanton (“the mother”), and the respondent father, Mr Lachman (“the father”), are the parents of X, born 2010 and Y, born 2012.
The parents began a de facto relationship in either 2006 on the father’s evidence, or September 2008 on the mother’s evidence. They separated in 2013 when X was three years and four months of age and Y was one year and five months of age. The parents ceased to live together in 2012 when the father left the former matrimonial home and a provisional ADVO was issued by authorised police for the protection of the mother from the father, made final by order of the Local Court at Suburb E. X was two years and three months of age and Y was three months of age at the time.
Despite the parents’ physical separation from that time, the mother did not consider the parties to be separated until mid-2013.
At the time of the hearing, X was 10 years and nine months of age and Y was eight years and ten months of age. Each child is now over a year older due to the time that has passed subsequent to the hearing and the regrettable delay in the delivery of these Reasons and the making of final orders.
The main issues for determination are:
(a)The allocation of parental responsibility for the children;
(b)The time that the children should spend with their father and whether such time should be subject to any conditions associated with risks to the children when spending time with the father as asserted by the mother;
(c)In particular in relation to risk, whether or not an order should be made requiring the father to undertake a mental health assessment by one of two named mental health professionals prior to commencement of him spending any time with the children; and
(d)A further issue for each of the parties is travel by the children outside of the Commonwealth of Australia.
The final hearing took place from 18 to 20 November 2020 with final submissions being made before the Court on 11 December 2020. The mother was represented on hearing by Mr Hill of counsel, and the father was represented on hearing by Mr Strik of counsel.
As stated above, it is regrettable that more than a year has elapsed since conclusion of the hearing and the making of final orders in consequence of these Reasons. I apologise to the children, to the mother, to the father and to the legal practitioners involved for that delay.
THE PROCEEDINGS
The proceedings were commenced by the mother filing an Initiating Application on 19 September 2017. At the first mention before Judge Harper (as his Honour then was) on 1 November 2017, an interim order was made restraining the father from attending at the children’s schools, the father was directed to file and serve his Response and supporting documents by 8 December 2017, and the matter was adjourned to 15 February 2018. The father did not comply with the direction for filing documents.
On 9 February 2018, the mother filed an Amended Initiating Application (the amendments to orders are detailed later in these Reasons) and the matter was again before the Court on 15 February 2018 when Judge Monahan made orders for the parties to attend a Child Dispute Conference on 23 March 2018. The father was ordered to file and serve his Response and supporting documents within four weeks and the matter was adjourned for a mention on 6 April 2018. Again, the father did not comply with the direction in relation to filing documents.
On 6 April 2018, the matter was again before Judge Harper, and his Honour directed the father to file and serve his Response by 13 April 2018 and adjourned the matter to 3 May 2018 for Call-Over for allocation of hearing dates. On 13 April 2018, the father filed his Response and supporting documents.
On 3 May 2018, the matter was before Judge Henderson (as her Honour then was). There was an exchange between her Honour and the father in Court, the details of which form part of the evidence upon hearing, and her Honour made interim orders that, pending further orders:
(a)The children would live with their mother;
(b)The mother would have sole parental responsibility for them;
(c)The father would be restrained from attending the children’s schools or approaching them in the school grounds at any time during school hours or engaging in any conduct which may disrupt the orderly schooling of the children;
(d)The father would be required to attend F Service and attend any anger management courses and courses to assist in putting the needs of the children before his own or as directed by the staff at F Service; and
(e)The father would be required to pay the mother’s costs in the sum of $278 within 30 days.
Notably, no order was made by her Honour on the interim basis in relation to the father spending time with the children. The matter was adjourned for further mention to 27 September 2018.
On 27 September 2018, the matter came on before Judge Harper, and his Honour made an order under section 62G of the Family Law Act1975 (Cth) (“the Act”) for the preparation of a Family Report for the assistance of the Court on final hearing. Judge Harper adjourned the matter to 3 May 2019 for Call-Over for allocation of final hearing dates.
On 3 May 2019, the matter came on before me for Call-Over and was adjourned to 14 October 2019 as the Family Report preparation process had not begun.
Interviews for the Family Report occurred at the Sydney Registry of the Court on 2 September 2019. The report dated 11 October 2019 was released by order on 14 October 2019, and the proceedings were adjourned to 18 December 2019, at which time the matter was set down for a final hearing from 18 to 20 November 2020 and trial directions were made.
The final hearing proceeded on 18 to 20 November 2020 with final submissions being made before the Court on 11 December 2020.
At no time throughout the course of the proceedings were any interim orders made in relation to the father spending time with the children.
THE PARTIES’ POSITIONS ON HEARING – ORDERS SOUGHT
The orders sought by the mother went through some evolution from the commencement of proceedings with her Initiating Application filed 19 September 2017 and the case outline document presented by her counsel on hearing, which referenced her further Amended Initiating Application filed 24 August 2018. The reasons for that evolution are found in the facts in evidence in the hearing.
In her original Initiating Application, the mother sought in short summary, that:
(a)The parents have equal shared parental responsibility for the children;
(b)The children live with her and that they spend time with their father during school term, each alternate weekend from the end of school on Friday to 4pm on Sunday, or if Monday was a public holiday, until start of school on Tuesday, and at such time during school holidays as may be agreed between the parties in writing from time to time;
(c)Orders for specific time between the children and their father on Father’s Day and at Christmas, and similarly, for the children to be in her care for a specific time on Mother’s Day and at Christmas;
(d)An order restraining the father from consuming alcohol or taking any illicit drugs within 24 hours of the time he is to spend with the children or whilst they were in his care;
(e)A suite of the usual orders in relation to exchange of information between the parties as to contact information, medical matters for the children, and education matters;
(f)For each parent to be at liberty to attend the children’s schools for the purpose of any function or activity normally attended by parents;
(g)For the mother to be at liberty to take the children overseas for a holiday for periods of up to 28 days on certain conditions of notice to the father and make up time for the father; and
(h)An order that “the father refrain from attending the children’s schools or approaching the children other that in accordance with these orders”.
The mother’s Amended Initiating Application of 9 February 2018 varied her final orders sought by contracting the alternate weekend time between the father and children during school term time to 9am Saturday to 3.30pm on Sunday, and such other times as may be agreed between the parties in writing from time to time. The amended orders also sought a widening of the order giving the parents liberty to attend the children’s schools to include extracurricular activities, and added an order in relation to changeovers at the start and end of the father’s time taking place at Suburb C Park.
The orders sought by the mother on final hearing were “radically different to those sought in her Initiating Application and previous Amended Initiating Application. The change being, on the mother’s case, in consequence of events that occurred subsequent to February 2018 and, in particular, in late November 2019”. At hearing, the mother sought the following orders:
(a)That all prior parenting orders in relation to the children be discharged;
(b)That the mother have sole parental responsibility for the children;
(c)That the children live with the mother;
(d)That the father undertake a mental health assessment by either Dr H or Dr G at his own cost, to assess whether the father has cognitive or learning difficulties or a personality disorder that may impact upon his parenting ability;
(e)Within seven days from the date of these orders, the father shall obtain referrals for such assessments;
(f)That forthwith, upon obtaining the said referrals, the father arrange to undertake the first available assessments and inform the mother of the date of those assessments;
(g)That the father provide copies and have leave to provide copies of the Family Report and the judgment to those conducting the said assessments and his GP;
(h)That the father provide the mother with copies of the said assessments within 14 days of receiving same;
(i)That the father do all things necessary to comply with all treatment recommendations made in the said assessments and he shall make all reasonable efforts to ensure that he commences treatment in accordance with the recommendations within 28 days from the date of assessments; and
(j)Upon the father’s completion of treatment, if necessary, then the mother seeks the balance (after the F Service course at order 3) of the orders in her Further Amended Initiating Application filed 24 August 2018.
The orders sought by the mother then resume in line with those sought in her further Amended Initiating Application filed 24 August 2018 at Order 3, as follows:
3.That upon the Father complying with Order 6 of the orders made by her Honour Henderson J at this honourable Court on 3 May 2018 by attending [F Service] and any anger management courses and courses to assist him with putting the needs of his Children before his own or as directed by the staff at [F Service], and upon providing the original copy of the completion certificates together with letter from [F Service] confirming that he has attended and successfully completed all such courses to the Mother, then the following shall apply:-
(a)For a period of at least 24 months from the date of these orders and subject to Order 5 herein:-
(i)Each alternate Sunday from 9 am until 1 pm on a supervised basis at [J Service] or such other recognised Children’s Contact Centre as may be agreed between the parties in writing:
(ii)On special occasions, in accordance with Order 4 herein on a supervised basis at [J Service] or such other recognised Children’s contact centre as may be agreed between the parties in writing: and
(iii)Such other times as may be agreed between the parties in writing from time to time.
(b)After the Father has attended 50 such visits in accordance with Order 3 (a) and subject to orders 5, 9, 10, 11 and 12 herein:-
(i) Each alternate Sunday from 9 am until 1 pm;
(ii) On special occasions, in accordance with Order 4 herein: and
(iii) Such other times as may be agreed between the parties in writing from time to time.
4.That in addition to Order 3 herein, the Children shall spend time with the Father during the following periods:
(a) From 2 pm until 5 pm on Christmas Day: and
(b) From 2 pm until 5 pm on Father’s Day.
5.That subject to Order 4(a) herein, the Father's time with the Children pursuant to these orders shall be suspended during the Children’s school holiday periods.
6. That for the purposes of Order 3(a) herein, each party must:
(a)Contact [J Service] or such other recognised Children’s contact centre as the parties may agree in writing (“the Contact Service) within seven days and arrange an appointment for assessment for suitability for the Children’s supervised time with the Father pursuant to these orders:
(b) Attend the assessment;
(c)Comply with any appointments made by the contact service of the Children’s supervised time with the Father pursuant to these Orders;
(d) Comply with all reasonable rules of the Contact Service;
(e)Comply with all reasonable requests or directions of the staff of the contact service; and
(f)Provide the contact service with a copy of all documents prepared and/or filed in these proceedings including but not limited to a copy of all the documents filed by each party and all court memoranda and/or orders.
7. That also for the purposes of Order 3(a) herein:
(a)The Father shall pay the fees for the supervision charged by the contact service on each occasion of supervision;
(b)The Mother shall deliver the Children to the location at which the Father is to spend supervised time with the Children and shall collect the Children from such location at the conclusion thereof:
(c)In the event that the Contact Service offers supervised time in relation to the time which the Children are to spend with the Father, only at times which are less regular than specified in Order 3(a) herein, then the visit shall occur at the times which are offered by the Contact Service;
(d)The period of the time the Children spend with the Father pursuant to these orders may vary by reason of the closure of the contact services during school and public holiday periods, and in such event, the next occasion for the child to spend time with the parent or person/s shall occur at times when the services can be provided by the Contact Service; and
(e)The Contact Service may recommend the parties or either of them to participate in the program or programs, and in that event, either party must take all reasonable steps to comply with much recommendation.
8.For the purposes of Order 3(b) herein, the Father shall collect the Children from the Mother's care at [Suburb C Park] located at the corner of [D Street] and [B Street] at the commencement of each such period, and shall return the Children to the Mother’s care at the said park at the conclusion of each such period, or otherwise as may be agreed between the parties in writing.
9.That the Father refrain from consuming any alcohol or taking any illicit drugs within 24 hours of the time when he is to spend time with the Children or whilst the Children are in his care.
10.That the Father keep the Mother informed of his current residential address, mobile and landline telephone numbers and any available email addresses and advise the Mother of any change thereto within seven days of such change.
11.That in the event of childhood illness or emergency, during the time the Father spends with the Children pursuant to these orders, the Father shall contact the Mother forthwith to inform her.
12.That the Father, his servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the Mother; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Children, or any of them, and from permitting any other person to do so.
13.That the Mother be at liberty to approach the Australian Passport Office and/or other relevant authority to apply for and obtain a passport for the Children, namely [X] born … 2010, and Y born … 2012.
14.That the Mother shall be at liberty to take the children overseas for holiday purposes.
15.That for the purposes of Orders 13 and 14 herein:
(a)The Father’s time with the Children pursuant to these orders shall be suspended for the duration of the Children’s overseas holiday and such time foregone shall be duly made up to the Father by the Mother upon the Children’s return from the overseas holiday; and
(b)That the Mother be entitled to keep the Children’s passports in her possession and control.
16.That Order 4 of the orders made by Her Honour Judge Henderson at this Honourable Court on 3 May 2018 injuncting and restraining the Father from attending the Children’s school or approaching them on the school grounds at any time during school hours or engaging in any conduct which may disrupt the orderly schooling of the Children be made on a final basis.
17.That the Father be injuncted and restrained from attending any of the Children’s extracurricular activities.
18.That for the purposes of these orders, ratification or agreement in writing shall be deemed to include text messages and/or email.
The orders sought on hearing by the Father are those contained in his Amended Response of 23 October 2020, as follows:
1.That the parties have equal shared parental responsibility for the care, welfare and development of the children, namely [X] born … 2010, and [Y] born … 2012 (hereinafter called “the Children”).
2. That the Children shall live with the Mother.
3. That the Children shall spend time with the Respondent Father as follows:
(a) During school term:
(i)Subject to orders 3(b) and 3(c), 4, 5, and 12(a) herein, each alternate weekend from 3 pm Friday to 5 pm on Sunday commencing the first Friday after the making of these Orders, and
(ii)Such other times as may be agreed between the parties in writing from time to time.
(b)During school holidays, half of the school holiday period commencing from 3 pm Friday of the weekend that the school holiday period starts and continuing until 5pm on the middle Saturday or Wednesday of the school holiday period (whichever is nearest to the middle day of the school holiday period).
(c)On other days of significance:
(i)If Father’s Day falls on a weekend when the Children are not already spending time with the Father, then the Children are to spend time with the Father on Sunday from 9am to 5pm;
(ii)At Christmas, in even years, commencing 2020, from 12pm on 24 December until 12pm on 25 December; and in odd years, commencing 2021, from 12 pm on 25 December until 12 pm on 26 December;
(iii)New Year, in even/odd numbered years commencing 2020/2021 from 12 pm on 31 December to 12pm on 1 January; and in odd/even numbered years commencing 2021/2022 from 12 pm on 1 January until 12 pm on 2 January;
(iv)On [Y]’s birthday … in odd numbered years commencing 2021 from 3pm on … until 3pm …; and in even numbered years commencing 2022 from 3pm on … until 3 pm …;
(v)For [X]’s birthday, …, in odd numbered years commencing 2021 from 3pm or the conclusion of school on … until 3pm or the commencement of school on …; and in even numbered years commencing 2022 from 3pm or the conclusion of school on … until 3pm or the commencement of school on …;
(vi)For the Father’s birthday, …, if the Father’s birthday falls on a weekend (including a Friday) from 3pm on the Friday until 5pm on the Sunday; otherwise if the Father’s birthday falls on a weekday, for the weekend immediately following the Father’s birthday, from 3pm on the Friday until 5pm on the Sunday.
(d)Changeover shall occur outside McDonald’s at [Suburb K Shopping Centre], except when the Children are being collected or returned on a school day, in which case the Father will collect the Children from school or deliver them to school as the case may be.
4.That the provisions of Order 3 be suspended so far as they conflict with the following provisions of this order, to allow the Mother to spend time with the Children as follows:
(a)If Mother’s Day falls on a weekend when the Children are not already spending time with the Mother, then the Children are to spend time with the Mother on Sunday from 9am to 5pm.
(b)At Christmas, in even numbered years commencing 2020 from 12 pm on 25 December until 12pm on 26 December; and in odd numbered years commencing 2021 from 12pm on 24 December until 12pm on 25 December.
5.That each parent refrain from consuming any alcohol or taking any illicit drugs within 12 hours from the time that he/she is to spend with the Children or while the Children are in his/her care.
6.That each parent keep the other informed of their current residential address, mobile number, and landline telephone numbers (where applicable) and any available email addresses and advise the other parent of any change thereto within seven days of such change.
7.That in the event of a Child’s illness or emergency, the parent with whom the Child or Children are with shall contact the other parent forthwith to inform them. That each parent shall be entitled to have full access to all medical records of each Child and be informed of any proposed medical procedure not less than 60 days before the procedure is due to take place, and that any such procedure that requires the consent of a parent shall not proceed unless both parents give their written consent. That each parent shall be informed of any counselling or psychology or psychiatric appointments made for either of the Children no less than 14 days before the appointment including contact details of the practitioner.
8.That the parents, their servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party; and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the Children, or any of them, and from permitting any other person to do so.
9.That both parents be permitted to liaise directly with the Children’s school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the Children’s progress.
10.That each party is at liberty to attend the Children’s school(s) and extracurricular activities for the purposes of any function or activity normally attended by parents.
11.That each parent shall be at liberty to take the Children overseas for holiday purposes for a period of up to 28 days on one occasion in any calendar year, provided that the parent gives the other parent advance notice in writing of such travel of not less than 60 days, including a copy of the itinerary, travel destinations and contact telephone numbers for the Children during their holiday overseas.
12.That for the purposes of Order 11 herein:
(a)The other parent’s time with the Children pursuant to these orders shall be suspended for the duration of the Children’s overseas holiday and such time forgone shall be made up to the other parent within 45 days of the Children’s return from the overseas holiday; and
(b)Upon the Mother providing to the Father appropriate completed passport application forms for the Children, the Father shall consent to, sign and return said forms to the Mother within 14 days of being provided with the forms; and
(c)The Father shall give all necessary consents and do all things necessary to ensure that the Children have valid passports at all times subject to providing any required documentation to the Father no less than 14 days before it is required; and
(d)The Mother be entitled to keep the Children’s passports in her possession and control subject to order 12(e); and
(e)That when the Father gives the Mother notice of his intention to take the Children overseas for holiday purposes, the Mother shall make the Children’s Passports available to the Father no less than 45 days before the Father’s travel with the children is due to commence, and the Father shall have possession and control of the passports for the period until the travel starts, the period of the travel, and up to seven days following the travel whereupon the Children’s Passports shall be returned by the Father to the Mother;
(f)However, this Order 12 does not come into effect until the Mother has given the Father the original … hospital birth certificate for the Father to retain in his possession and control.
13.That the parties notify each other in writing, namely by text message or by email, if either party intends to take the Children interstate at least 72 hours prior to intended travel, and the travelling party is to provide to the non-travelling party the suburb and telephone number(s) where the Children will be staying.
14.That the parties notify each other in writing, namely by text message or email, if either party intends to take the Children intrastate for a period in excess of 48, prior to the intended travel, and the travelling and the travelling party is to provide to the non-travelling party the suburb and telephone number(s) of where the Children will be staying.
15.That for the purposes of these orders, notification or agreement in writing shall be deemed to include text message or email.
16.Changeovers shall occur outside McDonald’s at [Suburb K Shopping Centre], except when the Children are being collected or returned on a school day, in which case the Father will collect the Children from school or deliver them to school as the case may be.
17.During the time that the Father spends with the Children pursuant to these Orders, the Father shall do all things necessary to facilitate the Children’s attendance at their scheduled extracurricular activities during such time, provided that the Father is notified of the said extracurricular activities no less than 14 days before the date they are scheduled to occur.
THE MATERIALS RELIED UPON AT HEARING
The mother relied upon the following material:
(a)A case outline document prepared by her counsel Mr Hill dated 15 November and filed 16 November 2020;
(b)Her Further Amended Initiating Application filed 24 August 2018;
(c)Her affidavit affirmed 21 October 2020;
(d)Notice of Risk filed 19 September 2017;
(e)Exhibit A1, being a medical certificate for the father addressed “to the [Suburb E] Magistrate” provided by Dr L on about 25 June 2020;
(f)Exhibit A2, being a copy of page 659 from DSM-5 in relation to the material under the heading “Antisocial Personality Disorder” and before the heading “Diagnostic Features.”; and
(g)A transcript of proceedings on 18 May 2020 before Her Honour Judge Henderson.
I have included the transcript in this list on the basis that the transcript was admitted before the Court in hard copy upon hearing and referred to in cross-examination of the father, cross-examination of the mother, cross-examination of Ms M and in submissions. I read the transcript in full on the Bench during the hearing.
The mother was cross-examined by Mr Strik for the father, and re-examined as to one matter only by Mr Hill.
Mr Hill made submissions for the mother, being written submissions in his case outline document and oral submissions on 11 December 2020. In the course of those oral submissions, Mr Hill referred the Court to two particular authorities that relate to the orders sought by the mother in the case outline document for the father to undergo a mental health assessment and comply with any treatment recommendations made in the assessment. Those authorities will be referred to hereunder in discussion of the matter.
Mr Hill provided to the Court for the Court’s assistance, but did not tender into evidence, a full copy of an article, “Unacceptable risk: a return to basics” by the Honourable John Fogarty AM.[1] The provision of the article to the Court was not objected to in any manner on behalf of the father. Accordingly, I have read the whole of that article, not as forming part of the evidence in the case, but as part of the submissions on behalf of the mother.
[1] John Fogarty AM, ‘Unacceptable risk: a return to basics’ (2006) 20 Australian Journal of Family Law 249.
The father relied on the following material:
(a)Case outline document prepared by his counsel, Mr Strik, dated and filed 11 November 2020;
(b)His Amended Response filed 23 October 2020;
(c)His affidavit affirmed and filed 23 October 2020;
(d)The affidavit of Ms M, the father’s non-cohabitive partner, affirmed 22 October and filed 23 October 2020;
(e)Exhibit R1, being a screenshot of text messages between the parents dated 17 November 2019;
(f)Exhibit R2, being a bundle of six photographs, the first dated 5 October 2019 the others dated 6 October 2019;
(g)Exhibit R3, being a screenshot of text messages between the parties on 22 November 2019;
(h)Exhibit R4, being a screenshot of text messages between the parties on 23 and 24 November (not dated on the document but upon the evidence on hearing dated 2019); and
(i)Exhibit R5, being nine photographs depicting variously the father and the children dated 2, 3 and 4 November 2019.
The father was cross-examined by Mr Hill for the mother and re-examined by Mr Strik. At the end of that re-examination, and by leave, there was a further examination-in-chief of the father by Mr Strik in relation to certain documents that were thereafter tendered on behalf of the father and became exhibits R1 to R5 inclusive.
The husband’s witness, Ms M, gave oral evidence-in-chief in addition to her affidavit evidence and she was then cross-examined by Mr Hill for the mother.
A Family Report was prepared pursuant to the order made by Judge Harper on 27 September 2018. That Family Report dated 11 October 2019 was prepared by family consultant Ms N. Prior to cross-examination of Ms N by Mr Hill for the mother and Mr Strik for the father, the Family Report was marked as Exhibit C1 by the Court’s own volition because the document was not tendered on behalf of either party.
In preparing these Reasons, I have reviewed all of the materials relied upon by each of the parties including the exhibits, the oral evidence of each of the parties and of Ms M as the father’s witness, the Family Report (Exhibit CT1), and the whole of the oral evidence of Ms N. I have also reviewed the submissions both written and oral made on behalf of each of the parties.
THE EVIDENCE
The mother was born in 1975 and was 45 years of age at hearing. The father was born in 1978 and was 42 years of age at hearing.
The mother works part-time as a professional. The father is unemployed though is qualified as a tradesman.
The parties commenced cohabitation in either 2006 on the father’s evidence or 2008 on the mother’s evidence. X was born in 2010 and Y in 2012.
The parties initially commenced their cohabitation living together in a rental accommodation at Suburb O in New South Wales and then moved to a rental apartment in Suburb P in 2009. Sometime thereafter but before mid-2010, the parties moved to another rental property at Suburb C. In mid-2010, the parties and X moved in to reside at the mother’s parent’s home in Q Street, Suburb C on a rent-free basis.
On 15 May 2012 a final Apprehended Domestic Violence Order (“ADVO") was made in the Local Court at Suburb E for the protection of the mother from the father and provided in addition to the “statutory orders” that the father:
Must not reside at the premises at which the [mother] may from time to time reside, or other specified premises: home – [Q Street, Suburb C], NSW.
And further that the father:
Must not approach the [mother] or any such premises or place at which the [mother] from time to time reside or work within 12 hours of consuming intoxicating liquor or illicit drugs.
Despite the terms of the order, the parties continued to live together at the mother’s parent’s home at Suburb C until they moved as a family to reside in rental accommodation at Suburb R in the S Region in Queensland in 2012.
Shortly after the family moved to the S Region, they received some legal advice in relation to the terms of the ADVO. The father moved out of the home occupied by the mother and the children and began residing with his older brother in Suburb T. On the evidence, neither party considered the de facto relationship ended at that time.
Both parties consider that the de facto relationship ended in mid-2013 when the mother and children moved back to New South Wales to reside at her parents’ home at Suburb C.
When the family moved to the S Region in 2012, the father had been assigned a local parole officer at Suburb T in the S Region in consequence of the Local Court proceedings in 2012, and as part of the terms of his conviction for what I presume were domestic violence offences at that time, although it was not made explicit in any of the evidence. He continued on a 24-month good behaviour bond, one of the terms of which was a requirement that he complete a 24-week domestic violence program in Queensland. At the time the mother and children returned to reside in New South Wales in mid-2013, the father had not completed the required course and in consequence, he stayed in Queensland residing with his brother at Suburb T until he completed the course.
The principal cause of the mother’s return to reside in New South Wales in mid-2013 was taking up a job opportunity as a senior professional at U Company in Sydney. At this time, and throughout the parties’ separation up to the time of the hearing, the mother was solely responsible as between the parties for the financial support of the children. Further, she required the support that was provided to her by her family in New South Wales, particularly in residing with her parents at Suburb C.
After the mother and children returned to Sydney, on the mother’s evidence the father travelled to Sydney by airplane “on average once each month”,[2] staying at his parents’ home in Suburb V. The father spent time with the children from 5pm on Friday, until sometime between 11am and 4pm on Sunday, then returned to the S Region.
[2] Mother’s affidavit at paragraph 42.
Having completed his required domestic violence program in Queensland, the father returned to reside in Sydney sometime in mid-2014 on the mother’s evidence, or “just before Christmas 2014” on the father’s evidence.
On the father’s return to residing in New South Wales, the parents reached agreement that the father would spend time with the children each alternate weekend from Friday afternoon until 4.30pm on Sunday afternoon and that he would speak to the children by telephone once each week. During the alternate weekends, the children resided with their father at the paternal grandparents’ home at Suburb V.
The father gives evidence that his calls to the children during the week were sometimes unanswered.
The mother gives evidence that the father displayed aggressive and violent behaviour toward the mother verbally during phone calls and on occasions of changeovers.
It is beyond dispute in the evidence of both parties that the mother has been the primary caregiver for the children since the time of their birth. For most of the time since the parties began living at different homes in 2012 the mother has been the children’s sole caregiver.
When X was born, the mother took four months maternity leave and then returned to work full-time in mid-2010, placing X into long day care at Suburb E and thereafter at W Kindergarten at Suburb C. When Y was born, the mother took five months maternity leave and then when she returned to work, both X and Y were placed in long day care from 7.30am until 5.30pm to 6pm each weekday.
The father asserts in his evidence that both parents consumed alcohol to excess during their domestic relationship and that there were incidents of family violence perpetrated by each party against the other. In 2012, the father attended a course to address his issues of alcohol. The mother asserts that both parties consumed alcohol together during their relationship and that while her consumption was “not problematic”, she told the Family Report writer that she used alcohol as an “escape” due to being a victim of family violence and her feelings of isolation when residing in Queensland.[3] She asserts that the father on the other hand “was frequently intoxicated and drank excessively in their relationship” [4], and that he:
…regularly drank between six to eight beers approximately four to five times per week. On average, I observed [Mr Lachman] to be intoxicated approximately four times per week.[5]
[3] Family Report at paragraph 33.
[4] Family Report at paragraph 33.
[5] Mother’s affidavit at paragraph 20[b].
Both parties assert in their evidence that alcohol was not in any way a problem for them at the time of hearing and neither party was able to present evidence that there was a misuse of alcohol by the other parent in the years leading up to the hearing, or at the time of the hearing, or that misuse of alcohol by either parent represented a risk to the children.
The mother gives evidence of family violence perpetrated by the father against her, leading to a chain of ADVO applications and orders throughout their relationship. The father largely evades the issue of his family violence in his affidavit evidence, referring to the mother’s applications for ADVOs and such orders being made, but not going into any detail of any of the alleged incidents.
The Court was not provided with any documentation providing criminal history records for the father and there is very little explicit detail in the admitted evidence in relation to any charges or convictions. However, it is a necessary implication in the evidence of both of the parties that there were charges and convictions against the father during the parties’ relationship for domestic violence offences. This includes the father being placed on a 24-month good behaviour bond in 2012 at the time that a final AVDO was made for the protection of the mother from the father, leading to the requirement that he complete the 24-week domestic violence program in Queensland. There are other such implications further in the evidence that will be detailed below.
The mother gives evidence in relation to particular incidents of family violence, summarised as follows below.
(a)In 2007, prior to the parties’ cohabitation commencing, the father stamped on the mother’s hands and fingers, causing bruising.
(b)In 2009, the father broke a bag belonging to the mother and then wrapped a T-shirt around her neck and pulled it tight, causing her to be unable to breathe consistently. After about two minutes, the mother broke free, having sustained injuries to her neck, causing redness and inflammation.
As a result of this occasion in 2009, the police were called and the father was taken by police to the Z Hospital psychiatric ward. The police took out a provisional ADVO for the mother’s protection from the father. The provisional ADVO caused the father to move to reside at his parents’ home until the ADVO matter had been heard before a Court. Following this event, the mother requested that police not pursue a final ADVO before the Court and the proceedings were terminated.
The father does not mention this incident in his affidavit evidence and the mother was not cross-examined about her evidence in relation to either the 2007 or the 2009 incidents of domestic violence by the father, although she was specifically cross-examined about other assertions made against the father by her in her affidavit.
I accept the mother’s evidence in relation to these incidents.
On 11 May 2012, during an argument between the parties at a time when the mother asserts the father was affected by alcohol, the father pushed the mother into surround sound speakers causing her to fall to the floor. The father then stamped his feet on her hands and chest, bit through a landline telephone cord and hit the mother on her head with his closed fist causing her to fall against a wall and then to the floor on her back. The father then went to the children’s bedroom and took X out of bed. The mother followed the father and grabbed X from the father. The father then left, and the mother called the police. The father then returned to the home and took hold of the maternal grandfather’s mobile phone and smashed it and then left the home again.
Following this incident, the police issued a provisional ADVO for protection of the mother from the father. On 15 May 2012, the final ADVO for the protection of the mother from the father was made at the Local Court at Suburb E (referred to earlier in these Reasons) to continue for a period of one year. The father was also placed on a 24-month good behaviour bond, which does not form part of an apprehended domestic violence proceeding alone and, accordingly, must relate to a conviction for an offence.
The only cross-examination of the mother about her evidence of this incident was a question by Mr Strik referring to paragraphs 22 to 29 of the mother’s affidavit and asking the mother why she called the police, to which the mother replied:
I knew where that ends up, it never ends up well.
During cross-examination of the father, Mr Hill put to him that in 2012 an ADVO had been taken out against him for the protection of the mother, which the father agreed to. Mr Hill then put to the father that the ADVO order was issued as a result of an assault on the mother by the father, to which the father replied:
Supposedly there was an assault. I don’t remember.
He was asked how he ended up doing the 24-week course in Queensland, to which the father responded that it had been part of a Court order associated with his two-year good behaviour bond. It was then put to him by Mr Hill that such order came about due to an assault by the father of the mother, and the father responded by admitting that he had been convicted of an assault, but that he did not recall the assault occurring. The father said he agreed to the conviction on the basis that he believed that the mother would not tell a lie.
When questioned about the 24-week domestic violence course he undertook in Queensland as a result of the condition of his bond, the father asserted that once he had completed the course in 2013, he was “a different person”. When questioned further about what he had learned from the course and how the course had changed him, the father indicated that he accepted that he had committed the assaults referred to by the mother.
The father’s future conduct, following his completion of the course in Queensland in 2013, indicates that he did not learn to regulate his conduct from the course.
On 16 June 2017, the children went into the father’s care for his ordinary weekend time pursuant to the arrangement between the parents. On 18 June 2017, he sent a message to the mother informing her that he would not be returning the children to the paternal grandfather, whom the mother had arranged to attend the changeover on her behalf, but would only return the children to her. As a result of this circumstance, the children were eventually returned to the mother by being delivered to the maternal grandfather at 5pm on Monday 19 June 2017. This date was incorrectly referred to as “19 July 2017” by the mother in paragraphs 56 and 57 of her affidavit.
There were no Court orders in place at the time, proceedings not having been commenced.
As a result of this occasion, the mother sent the father a text message on 7 July 2017 informing him that she would be withholding the children from spending time with him until there were Court orders in place regulating their arrangement.
These Court proceedings were commenced by the mother filing her Initiating application on 19 September 2017.
Meanwhile, a period of six weeks elapsed during which the father did not spend any time with the children. On 10 August 2017, he sent a text message to the mother informing her that he intended to collect the children from school at the end of the next day being Friday 11 August 2017.
The mother responded by text message telling the father that she did not agree with him collecting the children “until there are some orders in place”.
At 7.50pm on 10 August 2017, the father attended the mother’s home and demanded to see the children outside the home. The mother refused and told the father to leave the premises. The father went to the backyard of the property, opened the kitchen window, removed the flyscreen, lifted the blinds, and climbed through the kitchen window. He then walked down the hallway to the children’s bedroom. The mother called the police and then told the father “Get out of my house” upon which, the father left the children’s bedroom and left the house through the front door. The police attended after the father had left, and on 12 August 2017, the father was served with a provisional ADVO against him for the protection of the mother issued by an authorised police officer from AA Region Police Station.
The matter was listed in the Local Court at Suburb E on 15 August 2017. The father opposed the making of a final order, and the matter was listed for hearing. On 19 December 2017, a final ADVO was made for the protection of the mother from the father in the Local Court at Suburb E. The ADVO was enforced for a period of 12 months and, in addition to the statutory orders, included an order that the father “must not go within 50 metres of any place where Ms Clanton lives or any place where she works or any place listed that CC Street, Suburb C, Q Street, Suburb C”.
The mother does not refer to any charge matters against the father, but in the father’s affidavit at paragraph 49 when giving evidence in relation to this particular occasion, he asserts:
[Ms Clanton] called the police, and I was made subject to an AVO which was subsequently dropped. Two months after the incident, I was charged with trespassing.
This evidence is contradicted by the copy of the final ADVO made in the Local Court at Suburb E on 19 December 2017, with a duration of 12 months.[6]
[6] A copy of the final ADVO is found in Annexure “AA” to the wife’s affidavit. It is also referred to in paragraph 96 of the wife’s affidavit.
During cross-examination of the father, it was put to him by Mr Hill that in August 2017 an ADVO was issued where he was listed as the defendant, with which the father agreed. It was put to him that same was issued “after an incident where you trespassed into the mother’s home”. The father responded:
I was charged with trespassing, yes, but a section 9 or section 10 was taken out.
It was then clarified between the father and myself that he was referring to what is known as a “section 10 bond” where the Court finds an offence proved but does not proceed to record a conviction, and imposes a good behaviour bond.
Then on 29 November 2019, the father telephoned the mother at a time when she was driving in her motor vehicle with the children and was unable to take the call. This date was incorrectly stated by the mother as 18 December 2019 in her affidavit. The phone call was answered by X who spoke to the father. The mother and children arrived for a weekend stay at the maternal grandparents’ home at Suburb C and at 4.30pm on that day the father attended that home – either uninvited according to the mother, or by arrangement with the mother according to the father – and demanded that the children be given into his care. The mother refused and locked the doors of the property.
The father then began banging on a window with a key and the mother advised him that if he continued she would call the police. The father continued and the mother called the police for assistance. X pleaded with her father to stop banging on the house, whereupon the father climbed over the side gate of the property and removed the flyscreen from the bathroom window, protruded his head in through the window space and yelled at the mother:
Give me my fucking children, [Ms Clanton].
The mother told the father that she had called the police and the father left the property at about 4.45pm. Shortly after the father left, the police arrived. They took statements from the mother and the paternal grandfather and a photograph of the state of the bathroom window that had been interfered with by the father. A provisional ADVO was issued for the protection of the mother from the father by an authorised police officer.
The father was spoken to by police at his home on 3 December 2019 at which time they served the provisional ADVO order upon him and arrested him. He was then charged with malicious damage to property. The father mentions in his affidavit evidence that upon receiving the service copy of the original ADVO:
In the heat of the moment, I ripped up the paperwork and threw it behind my head and said “that’s what I think of that, mate”.[7]
[7] Father’s affidavit at paragraph 63.
The father details his version of the events in paragraphs 60 to 63 of his affidavit and nowhere gives evidence of interfering in any way with a window at the property but only of “knocking on the door and window”. Further, he refers to the charges of malicious damage to property relating to the flyscreen at the maternal grandparents’ home and says:
I deny damaging the flyscreen or anything else when I attended their home to pick up my children. When I left the premises, nothing was damaged.
As a matter of law, the offence of malicious damage to property can be committed by changing the nature of a material object from the state in which it is found, such as the letting down of a tyre on a motor vehicle by manipulating a valve so that the air is expelled. The father did not admit removing the flyscreen from the bathroom window at the maternal grandparents’ home, but nor did he deny saying it anywhere in his written or oral evidence. He said he was convicted of “intentionally or recklessly destroying property” on 17 August 2020 in the Local Court at Suburb E.
The mother annexes to her affidavit as annexure “AE”, referred to in paragraph 121, a copy of the final ADVO made in the Local Court at Suburb E on 17 August 2020, with the duration of two years and providing in addition to the statutory orders, that the father:
Must not approach [Ms Clanton], [X] or [Y] or contact them in any way, unless the contact is through a lawyer.
Must not approach the school or any other place [Ms Clanton], [X] or [Y] might go to for study, any place they might go to for childcare, or any place listed here: [BB Street, Suburb DD], [Suburb DD Primary School].
Must not go within 100 metres of any place where [Ms Clanton], [X] or [Y] live or any place where they work or any place listed here: [BB Street, Suburb DD].
The order notes that the father was not present in Court when the order was made. The father gives evidence in paragraph 64 of his affidavit that:
I was not present on that day, and due to medical reasons was not fit to explain this to the Magistrate.
The matter had been listed for hearing on 26 June 2020 but it was adjourned first to 13 July 2020 and then again to 17 August 2020 on the basis that the father provided to the Court a medical certificate from Dr L, his General Practitioner. [8] The letter indicated that the father had attended that doctor’s rooms on 25 June 2020 and he was unfit to attend court on 26 June 2020:
Due to severe depression and anxiety plus hypertension, put on by not being able to see his two children.
[8] Exhibit A1.
That would seem to be a rash diagnosis made by the doctor as to causation on the basis of a single consultation with a General Practitioner.
In relation to the medical certificate referred to above provided to the father on 25 June 2019, the following took place during the father’s cross-examination by Mr Hill:-
Hill: Did you ask [Dr L] for a referral to a psychiatrist and for a mental health plan?
Father: Yes.
Hill: Have you got that referral?
Father: I’m getting this out of the way first.
Hill: Did you get a referral?
Father: I got some numbers to call, not a referral to a person or place. I didn’t want to get too involved because of a simple status of “you are not fit enough to have the children”.
Hill: Did [Dr L] not give you a referral?
Father: He gave me paperwork, yes.
Hill: Have you attended a psychologist for a diagnosis of depression or anxiety?
Father: No, I have not seen someone.
Hill: Do you think it would be helpful to see someone in relation to anxiety and depression?
Father: He’s given me tablets to help bring the anxiety down.
Hill: Do you think it would be helpful to attend a professional to get help in relation to your anxiety?
Father: After the case, yes.
Hill: Do you think the same in relation to severe depression?
Father: Maybe I could go with my boy. It’s purely because I can’t see my children.
Further during the cross-examination the father admitted that he attended the Local Court at Suburb E for the final hearing of the ADVO proceedings and the malicious damage to property charge on 17 December 2019. During these proceedings there was what I will call “an exchange of words” between the father and the learned presiding Magistrate. The father left the Court before the matters were dealt with.
At some time between the making of the order and recording of conviction on 17 August 2020 and October 2020 the father made an application to vary or revoke the ADVO order and to annul the conviction recorded in his absence on 17 August 2020. That matter was set down for hearing on 25 February 2021, after the conclusion of the final hearing.
There has been no application by either party to reopen the evidence subsequent to the closing of the evidence on 20 November 2020 and the making of final submissions on 11 December 2020.
In March 2016 the mother arranged for X to commence seeing a child psychologist, Ms FF. In April or May 2016, she arranged for Y to also have some consultation with Ms FF. From 13 July 2017, the children were having consultations with psychologist Ms GG for one hour each fortnight.
Following the events of the weekend of 16 to 18 June 2017, after which the mother withheld the children from spending time with the father, and thereafter the event of 10 August 2017 and the resultant final ADVO made on 19 September 2017, the father spent some time with the children by attending at their school on three occasions between August and December 2017.
There was a good deal of cross-examination of the father by Mr Hill for the mother and of the mother by Mr Strik for the father about these events of the father attending at the children’s school.
I note that the first return date of the mother’s Initiating Application was 1 November 2017. On this date the father attended before the Court as respondent-in-person and having not filed his Response. An order was made by his Honour Judge Harper in these terms:
Between now and the end of Term 4 2017, the father be restrained from attending the children’s school or approaching them on the school grounds at any time during school hours or engage in any conduct which may disrupt the orderly schooling of the children.
I also note an order in the same terms was made by her Honour Judge Henderson on 3 May 2018 on the interim basis but without being time-limited.
In the father’s evidence in paragraph 50, he asserts that the three occasions on which he attended the children’s school to spend time with them occurred “between August and December 2017”. Obviously, any occasions occurring in December were after the injunctive order made by his Honour on 1 November 2017 and in breach of the order as the children were necessarily not able to be visited during their school hours after “the end of term 4 2017”.
During the cross-examination of both the father and the mother, it was unclear if the visits to the children’s school by the father were in breach of his Honour’s order.
On the mother’s affidavit evidence, the occasions occurred on:
(a)15 August 2017 following the parties’ attendance at the Local Court at Suburb E on that day;
(b)8 September 2017 when the father spent the second half of the school lunch period with the children; and
(c)15 September 2017 when the father took the children outside the school grounds for half an hour during the second half of their school lunch period and went to a park to have ice cream and chocolate.
On the mother’s said evidence, there was no breach of the order. The mother’s Initiating Application was filed after these occasions on 19 September 2017.
The father did not spend any time with the children between the last occasion at the school on 15 September 2017 and the release of the Family Report, which occurred on 14 October 2019, other than at the interviews conducted for preparation of the Family Report and the observations on 2 September 2019.
The father definitely had a problem with misuse of alcohol up to at least 2012, and the father asserts that the mother had a problem with alcohol, but there is nothing in the evidence to show that either parent has a problem with alcohol, or is a user of illicit drugs, in the recent past or at the time of the hearing.
I do not intend to make either order.
It is appropriate to make an order providing for the children to be in the mother’s care for Mother’s Day and provide for the mother’s time with the children at Christmas given that school holidays, by December 2022, will be shared between the parties.
I find it is in the children’s best interest that the parents keep each other informed in relation to their telephone contact details and an email address for communication, and that the father keep the mother informed of his residential address at all times, but not that the mother keep the father informed of her residential address.
I find that it is appropriate, given that I will make an order that the mother have sole parental responsibility for the children in relation to matters going to their health and education, that she keep the father informed of any health matters affecting either child and in relation to the details of their schooling and education, including as to their reports and any individual school issues affecting either child, such as behavioural issues.
The mother seeks an order restraining the father from using abusing, insulting, belittling, rebuking or otherwise denigrating words about the mother and from discussing the proceedings or any documents filed or intended for use in the proceedings with the children and the father seeks an order in similar terms but binding on both parents. I find that it is in the best interests of the children for an order, in the common term sought by the parties, to be made in relation to both parents.
There was no evidence presented on the hearing in relation to an intent by either parent to take or send the children outside the Commonwealth of Australia or to go on an overseas holiday with the children and I find that it is not in the best interests of the children to make an order enabling either or both parents to take or send the children outside the Commonwealth of Australia for purposes of a holiday, or for any other purpose, at the present time.
In the event that either party seeks to travel overseas with the children, then they shall comply with the requirements of section 65Y of the Act and Regulation 13 of the Family Law Regulations 1984 (Cth) in relation to the consent of the other parent, and the applicable legislation in relation to issue of a passport for each of the children, and in the absence of consent in relation to any of those matters, bring proceedings before the Court. In the event that any such proceedings are rendered necessary by the withholding of a consent, then of course, costs may be a live issue for consideration by the Court.
The mother seeks an order that:
The father be injuncted and restrained from attending any of the children’s extracurricular activities.
Given the state of the relationship between the parents and the attitudes expressed by the father in his evidence, I consider it is in the best interests of the children that the parents not come together at the same place at the same time in the children’s presence any more than is absolutely necessary, pursuant to orders. Accordingly, I consider it is in the best interests of the children to make an order of the nature sought by the mother but that such order be confined to extracurricular activities engaged in by the children whilst in the mother’s care, as opposed to any such activities they may engage in while spending time with the father.
In relation to the balance of the orders sought by the father not already addressed in relation to those sought by the mother, the father seeks an order the parties notify each other in writing if they intend to take the children interstate at least 72 hours prior to the intended travel and for the travelling party to provide to the non-travelling party the suburb and telephone numbers where the children will be staying.
I do not consider such an order is in the best interests of these children, and unless there are some exceptional circumstances in the matter, I do not see that such an order is commonly necessary in any proceedings as where a parent travels with children whilst the children are in their care, pursuant to orders (or mutual agreement), it is a matter for that parent. Further, the mere crossing of State or Territory borders is something that can happen in a day’s drive from Sydney to Canberra and back, and there is nothing in the evidence in these proceedings to justify such an order.
I will not make that order.
Similarly, in relation to the orders sought by the father that 48 hours’ notice be provided to the other parent in the event that either parent intends to take their children intrastate for a period in excess of 48 hours. I find no justification in this matter for such an order.
The father seeks an order that he must do all things necessary to facilitate the children attending at their scheduled extracurricular activities during time they spend with him, provided he has been notified of the extracurricular activities no less than 14 days before the date they are scheduled to occur. I find it is in the children’s best interests to make such an order, particularly as it will probably relate to weekend sporting activities.
CONCLUSION
On the evidence, the father and the mother do not like each other. They both love their children very much. Each of the children love their father very much and love their mother very much.
The children’s relationship with their father has been disrupted for a number of years, and to a large extent, based on my findings in these reasons, the father is to blame.
The orders that I will make give the children the opportunity to resume their relationship with their father and to grow and develop that relationship as they work towards their teenage years and young adulthood. Any continuation of the conduct that has marred these children’s lives, any “walking away” out of some feeling of personal slight, dishonestly justified as representing the children’s best interests, will hurt these children deeply in many ways - ways that may last throughout their lives.
When parents actually and honestly consider the best interests of their children as the paramount consideration, the way forward is plain. Please follow it.
I certify that the preceding three hundred and sixty-three (363) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Morley. Associate:
Dated: 4 April 2022
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