Clawfer and Clawfer

[2018] FamCA 429

FAMILY COURT OF AUSTRALIA

CLAWFER & CLAWFER [2018] FamCA 429

FAMILY LAW – CHILDREN – with whom children spend time – orders made for substantial and significant time ‑ best interests decision

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 69ZN(6)

Goode & Goode [2006] FamCA 1346

APPLICANT: Mr Clawfer

RESPONDENT: Ms Clawfer

FILE NUMBER: BRC 1026 of 2015

DATE DELIVERED: 14 June 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATES: 29 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Dr J Brasch QC

SOLICITOR FOR THE APPLICANT: Murdoch Lawyers

THE RESPONDENT APPEARED IN PERSON

INDEPENDENT CHILDREN’S LAWYER: Mr P Dooley, Dooley Solicitors

Orders

1. That all previous Orders and parenting plans be discharged.

2. That the children, X born … 2012 and Y born … 2013 (“the children”) live with the mother.

3. That the parents have equal shared parental responsibility for the children.

4. That except in an emergency situation, the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)The parent proposing to make a decision (“the initiating parent”), will give the other parent (“the responding parent”) two (2) weeks written notice of the decision they propose be made and the reasons for the proposed decision;

   (b)The responding parent will respond in writing if they wish to suggest a variation or alternative proposal within seven (7) days of receiving such notice;

   (c)The initiating parent will consider any feedback given by the responding parent by reference to the best interests of the children;

   (d)If the parents are unable to reach a joint decision, utilising the above steps, then the initiating parent will write to the responding parent to advise them that they intend to initiate family dispute resolution in relation to that matter and shall contact B Group within seven (7) days to arrange for this to occur; and

   (e)The parents shall then use their best endeavours to facilitate their attendance upon B Group for the purposes of family dispute resolution and to bear the costs of same equally.

   Time with the father

   (f)That the children spend time with the father at all reasonable times as may be agreed between the parents and failing agreement as follows:

   (g)From the date of these Orders until term two (2) 2019 during school terms, in the following two (2) week repeating cycle:

   (i)In week one (1) from 7.30am Thursday until after school Friday and each alternate week thereafter; and

   (ii)In week two (2) from after school Friday to before school Monday, extended to before school Tuesday if Monday is a public holiday or pupil free day and each alternate weekend thereafter;

   (h)From the commencement of the first full week of the school term two (2) in 2019 in a two (2) week repeating cycle:

   (i)In week one (1) from after school Thursday until before school Friday in each alternate week; and

   (ii)In week two (2) from after school Thursday until before school Tuesday and in each alternate weekend.

School holiday periods

1. That unless otherwise agreed in writing, commencing with the September 2018 school holidays:

   (a)For each school holiday period excluding the December/January school holiday period with the father to have the second half in 2018 and each alternate year thereafter and the first half in 2019 and each alternate year thereafter;

   (b)For one (1) half of the December/January school holiday period for not more than one (1) week at a time with the father to have the first week in 2018 and each alternate year thereafter and the second week in 2019 and each alternate year thereafter, with the children to remain in the care of the parent with whom they spend the last full week of the school holiday until 5.00pm on the last Sunday of the school holiday period; and

   (c)Commencing December holidays 2020, the week about arrangement shall alter to the children spending time with the father for the first half of the school holidays in 2020 and the even numbered years thereafter and the second half in 2021 and in odd numbered years thereafter.

2. That for the purposes of Order 6 herein:

   (a)School holidays shall commence from after school on the last day of the school term and shall end at 5.00pm on the last Sunday prior to the new school term;

   (b)In the event there is an even number of days in the school holiday period changeovers shall occur at 5.00pm on the day calculated to be the half of the school holiday period; and

   (c)In the event there is an uneven number of days of the school holiday period, changeovers shall occur at 12.00pm on the odd day halfway between the first half and the second half of the school holiday period.

Special days

Easter holidays commencing 2019

1. That notwithstanding any other order herein, and in the event that the Easter break does not fall within the end of term one (1) school holidays, the child shall spend time with the father on the Easter weekend each year as agreed, and in the absence of agreement, at least as follows:

   (a)In even numbered years from the conclusion of school on the Thursday before Good Friday until 5.00pm Easer Saturday, and

   (b)In odd numbered years from 5.00pm Easter Sunday until 5.00pm Easter Monday.

2. That in the event that the Easter break does not fall within the end of term one (1) school holidays, the children shall spend time with the mother on the Easter weekend each year as agreed, and in the absence of agreement, at least as follows:

   (a)In odd numbered years from the conclusion of school on the Thursday before Good Friday until 5.00pm Easter Saturday; and

   (b)In even numbered years from 5.00pm Easter Sunday until 5.00pm Easter Monday.

Christmas Eve/Day and Boxing Day

1. That notwithstanding any other order herein, the children shall spend time with the father over Christmas Eve, Christmas Day and Boxing Day each year as agreed until Christmas 2020, and in the absence of agreement, at least as follows:

   (a)In even numbered years from 2.00pm on 24 December to 2.00pm on 25 December; and

   (b)In odd numbered years from 2.00pm on 25 December to 5.00pm on 26 December.

2. That notwithstanding any other order herein, the children shall spend time with the mother over Christmas Eve, Christmas Day and Boxing Day each year as agreed until Christmas 2020, and in the absence of agreement, at least as follows:

   (a)In odd numbered years from 2.00pm on 25 December to 5.00pm on 26 December; and

   (b)In even numbered years from 5.00pm on 24 December to 2.00pm on 25 December.

Children’s birthdays

1. That notwithstanding any other order herein, on the children’s birthday the children will spend time with the parent with whom they are not living on that day as agreed, and in the absence of agreement at least as follows:

   (a)In even numbered years:

   (i)with the mother from 3.00pm until 8.30am (or the commencement of school) the next day with the mother being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day); and

   (ii)with the father from 3.00pm on the day prior to the birthday until 8.30am (or the commencement of school) the next day with the father being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day).

   (b)In odd numbered years:

   (i)with the father from 3.00pm until 8.30am (or the commencement of school) the next day with the father being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it’s not a school day); and

   (ii)with the mother from 3.00pm on the day prior to the birthday until 8.30am (or the commencement of school) the next day with the mother being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day).

Mother’s Day

1. That notwithstanding any other order herein, the children shall spend time with the mother from 5.00pm on the day before Mother’s Day until 5.00pm Mother’s Day each year.

Father’s Day

1. That notwithstanding any other order herein, the children shall spend time with the father from 5.00pm on the day before Father’s Day until 5.00pm Father’s Day each year.

Communication

1. That the children are at liberty to telephone either parent at any reasonable time and the parent they are with shall facilitate this.

2. That each parent be permitted to telephone the child/ren when they are in care of the other parent, with such calls to occur between 5.30pm and 6.00pm on Tuesdays and Thursdays and all calls are to be in private and unrecorded.

3. That both parents provide to each other a mobile telephone number that the children can be contacted on and will advise the other of any change to the same within 24 hours of such change.

Changeovers

1. That changeovers occur as follows:

   (a)Changeovers occurring before or after school shall occur at the children’s school, with only the parent collecting the children to be present;

   (b)That all other changeovers take place at McDonalds C Town, with such changeovers to be facilitated by the mother and an adult person nominated by the father and known to the children;

   (c)The father is restrained from attending changeovers unless otherwise agreed in writing; and

   (d)The mother’s brother Mr D may facilitate changeovers in place of the mother irrespective of any Domestic Violence Protection Order which may be made against him.

Schooling and extra-curricular activities

1. That unless otherwise agreed between the parents in writing, the children shall remain enrolled at the E School.

2. That the mother and the father shall be at liberty to attend at the children’s school and participate in or observe any school related or extra-curricular activity attended by the children from time to time or in which the children are participating from time to time including sporting activities, irrespective of any Domestic Violence Protection Order which may be made against the father.

3. That the father shall be at liberty to attend at the children’s school and participate in or observe any school related or extra-curricular activity attended by his daughter Z from time to time or in which his daughter is participating from time to time including sporting activities.

4. That these Orders authorise any school that the children may from time to time attend to provide both parents with:

   (a)copies of all school reports, newsletters, photograph order forms, and any other document associated with the children’s school; and

   (b)all information that either parent may from time to time seek in relation to the children’s schooling.

5. That neither the mother nor father will facilitate the children’s participation in any extra-curricular activity or pursuit that may impact on the children’s time with the other parent without first obtaining the other parent’s permission to such participation and such permission is not to be unreasonably withheld.

6. That the mother and father will communicate, in writing, at least two (2) weeks prior to the end of each school term to decide what extra-curricular activities the children will undertake for the next term and to decide their respective responsibilities for facilitating these extra-curricular activities.

7. That the mother and father will be responsible for taking the children to practice sessions and games when the children are spending time with that parent.

8. That the father is to ensure the children’s attendance at any pre-kindergarten or kindergarten programme the children are enrolled in prior to the commencement of preparatory school.

Medical issues

1. That the parents will each respectively inform the other forthwith if either of the children receive any medical attention whilst in that parent’s care, including the name and contact details of any person providing such attention.

2. That neither parent shall cause the children to attend upon any counsellor, psychiatrist or psychologist or other allied professional unless otherwise prior agreed to between the parents in writing.

3. That these Orders will act as an authority for either parent to speak to any health care or education provider associated with the children and to obtain from same:

   (a)copies of all reports and any other documentation associated with the children’s health care and wellbeing; and

   (b)all information that either parent may, from time to time, seek in relation to the children’s health care and wellbeing.

Specific issues

1. That unless otherwise provided for in these Orders, the parents shall communicate about issues relating to the care, welfare and development of the children between each other via email.

2. That neither parent will denigrate or make derogatory remarks about the other parent or members of the other parent’s family or their friends, in the presence or hearing of the children.

3. That neither parent will questions the children about the life of the other parent, nor involve the children in any adult issues, including discussing any aspect of the family law proceedings.

4. That the parents will notify each other within twenty fur (24) hours of any change in their residential address and/or contact telephone number and the new details of same.

5. That each parent will provide not less than sixty (60) days’ notice if they intend on relocating the children’s residence to a location which is more than fifteen (15) kilometres from their current location.

6. That neither parent shall consume alcohol in excess of the legal driving limit whilst the children are in their care.

7. That the mother attend and complete the first available Parenting Orders Program offered by B Group in F Town and provide a certificate of completion to the father within seven (7) days of receipt of same.

8. That the parents be restrained from publishing a copy of any of the documents filed in these proceedings including the family report without first obtaining leave of this Honourable Court, with the exception of them being at liberty to provide a copy of any final Orders to Ms G and a copy of the family report of Ms H to their respective counsellors.

Dispute resolution

1. That if the parties are unable to agree about a decision of a significant issue to be made in the exercise of their equal parental responsibility the parties shall submit to the following dispute resolution process:

   (a)The parent with the complaint (“complainant’) will provide written details of the nature and extent of their complaint, and confirmation that the complaint is pursuant to this section of the Order, to the other parent (“recipient”), with a proposal for resolution of the complaint;

   (b)The recipient will provide a written response to the complaint within fourteen (14) days of receipt of the complaint, detailing the elements of the complaint agreed to, and the elements of the complaint with which the recipient disagrees, and if there is disagreement, and counter-proposal for resolution of the complaint;

   (c)The complainant, within fourteen (14) days of receipt of the recipient’s response, will provide written confirmation of whether the complainant considers that there is still a dispute;

   (d)If there is still a dispute after Order 38(b) above, the complainant will contact an accredited mediator, or other mutually agreed mediation service, and the parties will participate in mediation about dispute with that mediator, or other mutually agreed mediation service, as the case may be;

   (e)Both parents are at liberty to attend any mediation about the dispute with that Mediator, or other mutually agreed mediation service as the case may be, by way of telephone; and

   (f)The costs of mediation be shared equally between the parents.

Other

1. That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A.That to the extent it is possible, it is intended that the children will spend time during school holidays/on weekends when the father’s daughter Z is in his care.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 1026 of 2015

Mr Clawfer

Applicant

And

Ms Clawfer

Respondent

REASONS FOR JUDGMENT

Introduction

1. This parenting dispute relates to two young boys – X (born in 2012) and now six years of age and Y (born in 2013) and soon to turn five years of age.

2. The parents separated in January 2015 after a relationship of approximately three and a half years, and parenting proceedings were commenced by the Applicant father, Mr Clawfer (now aged 46 years) shortly after separation, seeking an equal time regime.  The Respondent mother Ms Clawfer (now aged 45 years) filed a Response on 12 March 2015 seeking initially that the children live with her and spend supervised time with the father each fortnight.  Subsequently in July 2015, the mother amended her Response to seek property adjustment relief.

3. Later in these Reasons the Court gives a brief summary of the parenting dispute and regimes which have operated since separation, and which provide the context for the final parenting orders, which appear at the commencement of these Reasons.

4. The hearing of the disputed parenting and property issues took place in the Federal Circuit Court of Australia on 4 and 5 July 2016 (with me being the presiding Judge) and written submissions thereafter were received by the Court from the Independent Children’s Lawyer (on 11 July 2016); the mother (on 9 August 2016) and the father (on 24 August 2016).  The judgment was reserved when it was announced I had been appointed as a Judge of the Family Court of Australia from 11 January 2018.  On 8 January 2018, Reasons were delivered in the Federal Circuit Court of Australia and an order was made dismissing the wife’s property application.

5. At paragraphs 23 to 27 the Reasons for Judgment the Court identified a possible benefit in obtaining further evidence from the parties and, after hearing submissions from all parties on 10 January 2018, the Court made the following order:

   1. That pursuant to Rule 8.02 of the Federal Circuit Court Rules 2001, these proceedings be transferred to the Family Court of Australia at Brisbane to be listed on a date to be advised.

   2.   That the Family Court of Australia, in the determination of any final orders shall be entitled to rely upon:

   a.        the transcript of proceedings relating to parenting when the matter was heard in the Federal Circuit Court of Australia; and

   b.        any parenting submissions made after the hearing in the Federal Circuit Court of Australia so far as they relate to parenting issues.

   3.   That each party shall within twenty one (21) days file an updating Affidavit in respect of issues that have arisen or views they now have as to the future parenting orders, since the hearing in the Federal Circuit Court of Australia.

6. Subsequently, post my appointment to the Family Court of Australia, the parties indicated a desire to file further evidence.  The mother, now unrepresented, filed three further Affidavits she sought to rely upon (on 9 January 2018; 25 January 2018 and 15 February 2018) and the father filed and sought to rely upon a further Affidavit filed 31 January 2018.  The Independent Children’s Lawyer (“ICL”) did not seek to rely upon any further evidence.

1. On 29 March 2018, the parties were given an opportunity to cross examine the other parent.  The father’s Counsel (Dr Brasch QC) and the ICL Mr Dooley did not seek to cross examine either party.  The mother briefly cross examined the father.  The decision was then reserved by this Court.

2. The reasons which follow seek to explain why the orders which appear at the commencement of these Reasons are in the best interests of X and Y.

Statutory principles

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode [2006] FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Competing proposals

1. At the completion of the evidence on 29 March 2018, the parties’ competing proposals were as follows:

   a)The ICL adopted and reiterated support for the submissions made in writing by trial Counsel (before the Federal Circuit Court of Australia – Ms Dart) filed 20 July 2016 and continued to contend that the order then sought (which is Appendix One to these Reasons) are in the children’s best interests.  Importantly, the ICL maintains the submission that the parents have equal shared parental responsibility.  In essence, the orders provided for a graduating increase in time with the children to live with the mother and to spend time, which by the commencement of the 2019 school year, during school term (when both children would be at school) in week one from after school Thursday to before school Monday and in the other week, from before school Tuesday until after school Wednesday.  This, mathematically, equated to the children at that time spending five nights a fortnight with the father;

   b)The father has consistently sought orders for equal time from the start of the 2019 school year when, he contends, it would be in the best interests of the children that a regime of “week about” during school terms should commence.  He seeks an order for equal shared parental responsibility.  The orders he seeks are contained in his Case Outline document filed 1 July 2016 and are still sought at the conclusion of the further evidence on 29 March 2018 (see Appendix Two to these Reasons);

   c)The mother resiles from some of the written submissions made by her Counsel in the written submissions filed 9 August 2016, now contending for an order that she have sole parental responsibility.  I understand her position to be that the events that have transpired since July 2016, many from her perspective set out in her more recent Affidavits, compel an order granting her sole parental responsibility.  The mother resists vigorously any suggestion that an order for equal time is in the best interests of the children.  The orders she now seeks are set out as Annexure A to her Affidavit filed 15 February 2018.  Those proposed orders are annexed to these Reasons as Appendix Three and articulate a position (in addition to the mother having sole parental responsibility) that the children should live with her and spend time with the father during school terms:

   -    Up until 31 December 2018 from 3.00pm Tuesday until 3.00pm Wednesday in week one and from 3.00pm Friday until 4.30pm Sunday in week two (mathematically three nights a fortnight); and

   -    From the commencement of school term 2019 a block of four nights a fortnight from after school Thursday until before school Monday

   d)Additionally, the mother proposes school holiday periods from December 2018 on a week about basis “to coincide with the contact time with their sister [Z]”.

2. It becomes obvious, when these competing proposals are viewed holistically, that:

   a)the father seeks equal time during school terms and school holidays;

   b)whilst the mother seeks primary care, with the children spending substantial and significant time from January 2019 of four nights a fortnight and half of all holidays.

3. In these circumstances, the Court is mindful of the principles which are prescribed by the Act for conducting child related proceedings and, in particular, the need “that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child focused parenting by the parties) (s.69ZN(6))

4. In my view, reasons for judgment form part of the proceedings, in which they are prepared and delivered.  Thought needs to be given to the findings made and about the way in which things said in reasons can affect negatively cooperative parenting.  This becomes more stark where, as in this case, the parents are both very capable, intelligent and articulate; where neither party asserts the other parent’s capacity to parent as compromised by illicit substances or diagnosed mental illness and where both parents seek the other parent have at least substantial time if not, as the father contends, equal time.

5. In this respect, the delay in finalising proceedings has added to the tensions and uncertainties and is regretted.

6. Before considering the competing proposals within the matrix of the relevant section 60CC(2) and (3) considerations, I provide a succinct contextual history and then make some observations and findings about the only expert evidence offered to the Court, namely the family report dated 22 June 2016 (filed 30 June 2016) and arising from observations made by Psychologist Ms H on 2 June 2016.

Contextual history

1. Statements of fact hereafter shall be construed as findings of fact.

2. When the parties commenced their relationship in July 2011 the father had a daughter from an earlier relationship, Z born in 2004.  She is soon to turn 14 years.  The father has had Z live in his home on a regular basis.

3. At cohabitation (the parties married in 2011), the father managed his own commercial business and the mother was, and remains, a public servant.  Their first child X was born in 2012.

4. The mother asserts that from late 2012 the father began to verbally abuse her and despite attempts of marriage counselling in March 2013 and the subsequent birth of their second son Y in 2013, tensions in the relationship continued to increase, such that the mother left the then family home with the children on 15 January 2015.  She went to the nearby home of her brother Mr D.

5. At separation X was two years eight months and Y was approximately 17 months of age.

6. Regrettably, on 16 January 2015 at the home of Mr D, a physical altercation developed between the father and the mother’s brother.  I am satisfied, on the evidence, during the course of this incident the mother “kicked” the father whilst he was on the ground.

7. Their very young children were present during the scuffle and not surprisingly were distressed.  The incident does no credit to any of the adults involved.

8. On 19 January 2015, the mother applied for a Protection Order against the father (granted temporarily on 20 January 2015) and despite attempts at mediation on 28 January 2015 (where it is alleged an agreement was reached), the following day the mother sought Police support to accompany her to the family home to collect some belongings.  There is evidence before the Court that the father was abusive and aggressive towards the Police accompanying the mother.  For reasons not adequately explained by her to the Court, the mother felt it was appropriate to have the children with her on 29 January 2015 when she went to the home.  I accept that the children became distressed when they apparently witnessed adult verbal conflict at their family home.

9. The father was charged in early 2015 with a breach of the Temporary Protection Order.  The father pleaded guilty to a breach in mid 2015.  For context, I also record that on 23 January 2015 a Temporary Protection Order in favour of the father was made against the mother’s brother Mr D arising from the incident on 16 January 2015.

10. As previously noted in the introduction to these Reasons, the father commenced parenting proceedings on 6 February 2015 and on 26 March 2015 the Federal Circuit Court of Australia made orders (some by consent) for the children to live with the mother and spend time with the father alternate Tuesdays (7.30am to 4.30pm) and between 7.30am and 3.30pm alternate Saturdays and Sundays, with all time to be supervised by the paternal grandmother, with this condition removed by Order made 3 June 2015.

11. On 19 May 2015 a Domestic Violence Order was made naming the mother and the children as protected persons for two years.  The Order was made without the father making any admissions and without the necessity of a trial.

12. Further orders were made by consent on 14 September 2015, and after the parents had received a family report prepared by Ms J, increasing the father’s time essentially to alternate weekends from Saturday 7.30am to Sunday 4.30pm and each alternate Tuesday and Wednesday.

13. On 4 February 2016, further interim orders by consent were made, increasing the time the children spend with the father alternate weekends from 7.30am Saturday to 4.30pm Sunday and alternate Tuesdays and Wednesdays (but not overnight).  All conditions for the father to have his mother present ceased.  These orders continued to the hearing in July 2017, referred to earlier.

14. At the conclusion of the hearing, by consent on 5 July 2016, the Court made orders further varying the parenting arrangements in the following way:

    1.        That the Orders of 4 February 2016 (amended 18 February 2016) be varied as provided in these Orders.

    2.        That the children, [X] born … 2012 and Y born … 2013 (“the children”) spend time with the father in the following two week repeating cycle, with such cycle continuing the current cycle:

    Week 1:

    a.        from 7.30 am on Saturday to 4.30 pm on Sunday and each alternate weekend thereafter; and

    b.        from 3.00 pm on Tuesday until 4.30 pm on Wednesday, and each alternate Tuesday and Wednesday thereafter; with changeover at the Early Learning Centre on Tuesday and McDonald’s, [C Town], on Wednesday, unless otherwise agreed.

    Week 2:

    c.        from 3.00pm on Tuesday to 4.30pm on Wednesday, and each alternate Wednesday thereafter with changeover at the Early Learning Centre on Tuesday and McDonald’s, [C Town], on Wednesday, unless otherwise agreed.”

    effectively creating a regime where the children spend each alternate weekend and each Tuesday night and Wednesday with the father (noting that X did commence school in 2017).

Report of Ms H

1. As the history recorded above reveals, during the early stages of these proceedings, the parties engaged with Ms J (a family report writer engaged by the ICL), however at the hearing in the Federal Circuit Court of Australia, the ICL only relied upon the evidence of H.  No other party sought to call Ms J for cross examination.  As a result, the opinions and recommendations of Ms J have not been tested and are of historical impact only.

2. Ms H interviewed and observed the parents on 2 June 2016.  The report of Ms J was background information provided to Ms H by the ICL.  Arising from her report dated 27 June 2016 and her brief cross examination at the hearing, I make the following findings and observations:

   a)Ms H conducted formal interviews of the parents but not X and Y, due to their young age;

   b)Ms H did not interview or observe the father’s daughter Z as she said “it was not in dispute that the boys get on well with Z” and further that she has a good relationship with her father with whom he shares a week about relationship with her mother;

   c)The mother asserted to Ms H that the father “had a drinking problem” and when he would drink he would become “nasty and argumentative” (paragraph 3.9).  She claimed that there were “plenty of times she tried to leave the relationship but [Mr Clawfer] would pull [X] off her and hurt him”.  I am not satisfied, on the evidence, that the father ever “hurt” X as the mother alleges;

   d)At paragraph 3.28, Ms H records the mother stating that since she has separated “X has expressed how happy he is and told her he is sorry for not protecting her and that he is fearful of his father.”  The mother said Y “wasn’t exposed to the same abuse and violence that [X] was” and as such “he doesn’t display the same types of behaviour”;

   e)The mother told Ms H that “she had been diagnosed as having Post Traumatic Stress Disorder (PTSD) in the past from general exposure to the abuse and violence in the relationship with [Mr Clawfer]” (paragraph 3.33).  However no reliable evidence was produced by the mother to establish this diagnosis.  In particular, the mother did not offer any evidence from the Psychologist she said she was consulting (Ms L from M Group at C Town).  I cannot be satisfied that such a diagnosis has been made or, if made, the basis for such diagnosis;

   f)The mother stated to Ms H she wants sole parental responsibility as the father “uses every opportunity to attack her and he cannot consider what is in the children’s best interests” (paragraph 3.40);

   g)Mr Clawfer the father said the parents “had agreed to share the children if the relationship didn’t last” and that if the mother had not agreed to this “he would never have had the children with her”.  I accept these statements were made and that the father’s proposal for equal time is partly founded on this arrangement.

   The limited relationship between meeting and the birth of X (a planned pregnancy) followed by the quick conception of Y and their separation (all happening within three and a half years), in my assessment, gave only limited opportunities to these parents to form a solid adult relationship, shaped by knowing more about each other, from which a shared parental regime could be created easily;

   h)At paragraph 5.32, Ms H records the following:

   5.32    Throughout the interview for this report, Mr Clawfer spoke of the arguments that the parents engage in.  He was open about how these would occur but he denied he had ever physically assaulted or intimidated or threatened Ms Clawfer and he totally denied Ms Clawfer’s allegations that he had used X as a ‘hostage’ to get to Ms Clawfer.

   The father’s vigorous cross examination by Mr O’Meara for the mother during the hearing, elicited a concession that he had called the mother names at times during arguments; denied other allegations of abuse but acknowledged at times he had used alcohol to excess; alleged the mother in 2011 said words to the effect she “would stab me to death” but denied consistently any physical abuse of the mother.  As the issue of family violence is a critical aspect of the mother’s case (although not, it seems, now shaping the final orders she seeks where the father is to have unsupervised time with the children), I make findings about this issue later in these Reasons.

   The father is recorded by Ms H, at paragraph 5.36, that he “appeared to understand the limits to joint parenting arrangements while the children are young and he said he could also appreciate that joint parenting arrangements work best when there is a level of cooperation between the parents and good communication about the children.  [Mr Clawfer] confirmed these factors are not currently present in the relationship between he and [Ms Clawfer]”.  In my view, that insight, at that time (June 2016) demonstrated by the father was appropriate.  Sadly, as I explore below, I am not satisfied that the communication between and relationship of these parents has improved greatly since then.  The mother’s cross examination on 29 March 2018 of the father demonstrated yet again the prevailing tensions;

   i)The observations made by Ms H in June 2016 of the parents (individually) with the boys were unremarkable but warm and natural.  Ms H opined in cross examination that she saw “equal relationship with both parents”.  I accept that was her observation over the short assessment event;

   j)She described the father as “incredibly focused and frustrated” and I accept that he presented that way in his evidence.  In circumstances where he has been very keen to progress time to an equal time arrangement, the delays in these proceedings have, I accept, added to his frustration;

   k)Ms H, in cross examination opined that the mother “struggled” to identify any positives about the father (although I note at paragraph 3.40 the mother said she knows “the boys love their father and that they idolise him”), but that the mother “is dealing with what she feels was a domestically violent relationship”.  I accept this evidence and, in my assessment, the mother’s recent Affidavits reveal she feels she is now the subject of financial abuse by the father through her failed property proceedings and difficulties with child support assessments, processes and collection;

   l)Critically, as the earlier written submissions of the father’s Counsel (at paragraph 67) contend, Ms H expressed an opinion to move to “equal time” on a week about basis in 2019, when both children would be at school although there was “no magic” in 2019.

   Clearly an opinion expressed by the report writer, on evidence available to her in June 2016, about what might be in the best interests of the children two and a half years later involved, in my view, a component of speculation.  Nonetheless, she opined in cross examination that she held some “confidence” that the father can make equal time work.  In my view, on the basis of the additional evidence offered to the Court recently, and regrettably, the concerns about equal time working well in six months’ time (start of 2019) are the same as those identified by Ms H in her report at paragraph 8.11.

3. I note that it was open to the parties, once the proceedings were effectively re-opened, to seek a further report - although the costs of doing so (and the further delay) I am sure played a part in not seeking further expert evidence being put before the Court.

4. I now deal with the competing proposals and make further findings within the matrix of the relevant s.60CC(2) and (3) considerations.  In doing so, I rely upon but do not always repeat, earlier findings made in these Reasons.

Primary considerations

1. The proposals of both parents make it obvious that they both acknowledge that the children will benefit from having a meaningful relationship with each parent.  I do not accept the inference from the father’s evidence, that a meaningful relationship for him can only be achieved by an equal time order.

1. The Court is required to consider and give greater weight to “the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence” (s.60CC(2)(b)).  In this respect, on all the evidence, I agree with the submissions of the ICL that the greatest risk of harm to these children arises from them being exposed to further conflict between the parents.  The evidence reveals that X (in particular) was exposed to this conflict (the incident on 16 January 2015 is most concerning involving as it did also, the child’s uncle as well).  That the child’s school has been involved is unacceptable.  Children are entitled to enter the school ground knowing they are safe and will have some respite from the parents’ conflict.  In my view, both parents took actions which unfairly engaged the school – the father through his emails and complaints about the mother (who teaches there) and the mother who demonstrates poor judgment around the public event at school and the lack of insight about the understandable engagement by the father with Z (also a student at the school).

2. I accept that these unresolved parenting proceedings, coupled with the financial impacts on the mother of child support and unsuccessful property proceedings, have increased tensions.  However, both of these mature, articulate and intelligent parents have at times made hurtful remarks about the other parent, and perhaps unintentionally, involved the children in the dispute.  This must stop as the children, now older than they were at separation, are likely to become more anxious and aware of negative comments directed to or about the other parent.

3. It is, at one level, comforting that there is no evidence that the children have been sexually abused or physically abused by their parents.  Sadly, the emotional torment which these children will be forced to endure if the parents are not able to contain their emotional actions, can have a similar destructive effect on them.

Additional considerations

1. I could not attach any significant weight to any wishes or views expressed by these quite young children, although as the mother’s submissions (at paragraph 18) fairly observe “there is evidence of affection and enjoyment when with each parent”.

2. With the history of care since separation, I would not have been surprised if the only independent assessment and observation of the children’s relationships with each parent (conducted by Ms H), revealed a stronger attachment to the mother.  However that was not the case – which I regard as at least likely to be partly attributable to the mother not actively undermining the children’s relationship with the father or share her negative views of him.  The limited evidence available is that the boys have a happy and warm relationship with their sister Z, and to other extended family to whom they have contact.

3. Considering the at times strained and difficult communication between the parents, the evidence demonstrates, in my view, the parents have taken most opportunities to make decisions about and spend time with the children.  I accept a dispute existed, at the time the trial completed in July 2016, about whether X would move to the next grade in 2017 or reman in child care, because of his asserted developmental needs.  Although I accept the issue caused conflict, in the end it seems the right decision for X was made.  Certainly the email from grade one teacher Ms K of 7 February 2018, whilst noting that he seemed to be “settling in well”, raise some concerns about his work load in class; reading level and his writing were shared with both parents.  The parents met the teacher on 14 February – the mother having earlier responded through her internal email expressing her “upset” at X being in grade one (“does not belong in year 1”) and that his father “refused to listen”.  I think the mother’s denigration of the father in this way was both unhelpful and provocative.  The mother exhibited to her Affidavit filed 25 January 2018 a copy of the communication book, and overall the communication was appropriate, although the mother’s cross examination of the father on 29 March 2018 highlighted some issues.  I did not regard them as significant – rather examples of tensions still existing and capable of quick over reaction.

4. When dealing with my conclusions below, I deal with s.60CC(3)(d), being the likely effect of change to the children’s circumstances.

5. There are no practicable difficulties in the children spending time and communicating with the parents.  The issue of the venue for non-school day changeovers raises some past issues.  At one time, the mother felt it necessary to take a friend (who was also a teacher and at least known to X) to changeovers at McDonalds Restaurant.  Involving such a person was likely to be confusing for X and not helpful.

6. In my view, these parents have different personalities and backgrounds, and not surprisingly, do parenting differently at times.  However Ms H made no significant criticisms of either parent, nor do I find that their capacity and attitude to parenting has been compromised or is, on balance, ineffective.  The submissions of the mother raises concerns about the father’s attitude to payment of child support.  The father was entitled to seek to review the assessment made, as the law permits, and I have no lingering concerns that once all reviews are exhausted, the father will pay the ultimate assessment.  Clearly the parenting orders and the fact that both parents have an income will shape the assessment.  However it is to be hoped that consistent with the obligation of all parents to contribute to their children’s needs equitably, that these parents will support the needs of these children in their education, health and sport.  Certainly, X and Y will be the beneficiaries of this support if it occurs, as I expect it ultimately will.

7. The mother’s case raised many examples of alleged family violence.  Events prior to separation are difficult to assess with a lack of genuine corroborative evidence.  In this regard, the submissions of Counsel for the father (at paragraphs 29 to 57) are, on all the evidence, broadly persuasive and accepted.  The situational events around the time of separation on 16/17 January 2015 and the event on 20 January 2015 seem not to have been repeated.  I have, in this respect, taken into account the agreed statement of facts tendered in respect of the father’s breach of the Domestic Violence Order on 20 January 2015 (Exhibit 3).  I accept the submissions of Counsel for the ICL at paragraphs 54 to 57 as follows:

   54.      It is submitted that it is not necessary for the Court to make findings about each specific event raised above.  However, it is open to the Court, it is submitted, on the basis of the Father’s admissions alone, to find that family violence has occurred in the past.

   55.      It is further submitted that the Court would find that the Father has minimized his role in what was, on either party’ s case, a highly conflictual relationship, and one in which there were numerous acts of domestic violence committed.

   56.      The Mother has made a number of allegations of breaches of her Domestic Violence Order.  Whilst the Father gave oral evidence to the effect that the Police had been called out on about half a dozen occasions, the subpoenaed material available to the Court does not reflect this.

   57.      It is submitted that the mother has been quick to call the Police and involve the school in order to try and have the Father removed from the school.  It is submitted that this is not helpful and certainly not in the children’s best interests.

8. The Domestic Violence Order due to expire in 2017, has been enlarged for a further two years until 2019.  The father, in his recent Affidavit at paragraphs 22 to 29 explains how some “inappropriate emails exchanged between [Ms Clawfer] and I”, resulted in him being charged and pleading guilty to a breach of the Domestic Violence Order for such communications.  He accepted what he did was “wrong”.

9. Section 60CC(3)(b) requires the Court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings”.  I am satisfied that although the father expressed to Ms H that he would accept the recommendations of the Court, for the reasons articulated by his Counsel at paragraphs 84 to 86 inclusive, the father seeks equal time.  He is likely to be dissatisfied with any result other than equal time.  That was, from his perspective, the arrangement the parents reached before they had the boys; equal time works well for his daughter Z (although she is much older at age 13 years) and he is every bit the equal as a parent to the mother.  These issues, although important to the father, are not the test the law demands to be applied, however I cannot ignore the likelihood that at some time in the future the father will seek equal time if the mother, at that time, does not agree.

Conclusion on parental responsibility

1. It is arguable that the incidents of domestic violence which have occurred rebut the presumption of equal shared parental responsibility applying.

2. However I agree with the submissions of the ICL and the father that it is in the best interests of X and Y that the mother and father have equal shared parental responsibility.  It would be contrary to the children’s best interests to remove either parent from major decisions about them, and although communication between them is far from perfect, I find that communication on major issues can occur.

3. The legislative pathway requires the Court to consider, in such circumstances, whether it is in the best interests of the children and reasonably practicable, for the parents to have equal time care of their children.  In my view, on all the evidence at this time, I am not satisfied that at their age and with the history of care and conflict it is in the best interests of the children for an equal time order to be made.  At paragraph 89, Counsel for the father contends that the pathway leads the Court back to “shared care” (which I infer is meant to mean equal time) “sooner rather than later”.

4. In my view, I cannot share the confidence of Ms H, on the evidence before me now, that the time for equal time during school terms has arrived.  I do not suggest it may not be appropriate “later rather than sooner”, but with X still settling into his school and Y yet to commence in 2019, the theory of equal time being in these children’s best interests cannot override the evidence.

5. However, I do regard it as in the best interests of X and Y to live with the mother and spend substantial and significant time with the father.  It is, in my assessment, also reasonably practicable.

6. Accordingly, I pronounce the orders today which appear at the commencement of these Reasons and in respect of the form of order (noting the Court is not bound to follow either of the parent’s proposals) I make these additional observations:

   a)I will order an immediate change to the existing Orders, with a further change to commence at the commencement of the second term in 2019.  In this way Y will not have to adjust to a significant change to parenting arrangements at the same time as commencing school;

   b)I have no concerns about the children spending overnight time with their father, and for mid-week overnight time to be part of the regime in the future.  This will give the father every opportunity to be involved in their schooling activities;

   c)The current number of changeovers per fortnight are not optimal, requiring the children to undertake multiple adjustments from one household to another.  It is better for as many changeovers as possible to occur at the children’s school, to reduce the parents coming into direct contact until their level of trust and mutual respect is repaired over time, which I believe will occur gradually;

   d)I assess that by the 2020 December school holidays, X (then aged eight and a half) and Y (then aged seven and a half) will be able to cope with spending half of the longer holiday vacation with each parent as a block.  By so doing, this will allow each parent to undertake, with the children, a more extensive holiday than can be achieved in one week;

   e)I do not propose to make any orders for the children to spend time with the parents on their parents’ birthdays.  The regime for time is substantial and I am satisfied the parents will be able to organise celebrations proximate to the time of their birthdays (if they wish) within the usual regime; and

   f)The arrangements for how changeovers are to occur are generally in line with the proposal of the ICL save that it is inappropriate to order the paternal grandmother and/or paternal grandfather to facilitate non-school based changeovers.  I am satisfied that on the rare occasions each year when changeovers will be taking place at McDonalds C Town, the father can nominate an adult known to the children.  In time it would, of course, be better for the children to witness their parents courteously attending changeovers, and the orders allow that occur, in the future, by agreement.

7. I include the ICL’s proposed special day and specific issues orders.

8. I find the orders appearing at the commencement of these Reasons are in the best interests of the children.

I certify that the preceding fifty-seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 14 June 2018.

Associate:

Date:  14 June 2018

APPENDIX ONE

1. That all previous Orders and Parenting Plans be discharged.

Where the children shall live and parental responsibility

1. That the children X born … and Y born … 2013 (“the children”) live with the mother.

2. That the parents have equal shared parental responsibility for the children.

3. Except in an emergency situation, the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   a)The parent proposing to make a decision (“the initiating parent”), will give the other parent (“the responding parent”) two (2) weeks written notice of the decision they propose be made and the reasons for the proposed decision;

   b)The responding parent will respond in writing if they wish to suggest a variation or alternative proposal within seven (7) days of receiving such notice;

   c)The initiating parent will consider any feedback given by the responding parent by reference to the best interests of the children;

   d)If the parents are unable to reach a joint decision, utilizing the above steps, then the initiating parent will write to the responding parent to advise them that they intend to initiate Family Dispute Resolution in relation to that matter and shall contact B Group within seven (7) days to arrange for this to occur; and

   e)The parents shall then use their best endeavours to facilitate their attendance upon B Group for the purposes of Family Dispute Resolution and to bear the costs of same equally.

Time with the father

1. That the children spend time with the Father at all reasonable times as may be agreed between the parents and failing agreement as follows:

   a)From the date of these Orders until 26 September 2016 in the following two week repeating cycle;

   i)In week one:

   a.from Tuesday 7.30am until Wednesday 4.30pm and each alternate week thereafter; and

   b.from 7.30am Saturday to 4.30pm Sunday and each alternate weekend thereafter;

   ii)In week two - from 7.30am until 3.30pm each alternate Wednesday thereafter;

   b)From and including 27 September 206 until the commencement of the first full week of the school term in 2017 in the following two week repeating cycle:

   i)In week one:

   a.from Tuesday 7.30am until Wednesday 4.30pm and each alternate week thereafter; and

   b.from 4.30pm Friday until 4.30pm Sunday and each alternate weekend thereafter;

   ii)In week two - from 7.30am until 3.30pm each alternate Wednesday;

   c)From the commencement of the first full week of the school term in 2017 until the commencement of the first full week of the school term in 2019, in a two week repeating cycle:

   i)In week one:

   a.From after school/4.30pm Friday until before school/7.30am Monday each alternate weekend; and

   b.From 7.30am until 4.30pm each alternate Wednesday for any child/ren not yet attending preparatory school;

   ii)In week two:

   a.From 7.30am/before school Tuesday until after school/4.30pm Wednesday each alternate week.

   d)From the commencement of the first full week of the school term in 2019 in a two week repeating cycle:

   i)In week one - from after school Thursday until before school Monday and in each alternate weekend;

   ii)In week two - from before school Tuesday until after school Wednesday in each alternate week.

School holiday periods

1. That unless otherwise agreed in writing, commencing with the Easter 2017 school holidays:

   a)For each school holiday period excluding the December/January school holiday period with the Father to have the first half in 2017 and each alternate year thereafter and the second half in 2018 and each alternate year thereafter;

   b)For one half of the December/January school holiday period for not more than one (1) week at a time with the Father to have the first week in 2017 and each alternate year thereafter and the second week in 2018 and each alternate year thereafter, with the children to remain in the care of the parent with whom they spend the last full week of the school holiday until 5.00pm on the last Sunday of the school holiday period;

2. That for the purposes of paragraph 6 of these Orders:

   a)School holidays shall commence from after school on the last day of the school term and shall end at 5.00pm on the last Sunday prior to the new school term;

   b)In the event there is an even number of days in the school holiday period changeovers shall occur at 5.00pm on the day calculated to be the half of the school holiday period; and

   c)In the event there is an uneven number of days of the school holiday period, changeovers shall occur at 12.00pm on the odd day halfway between the first half and the second half of the school holiday period.

Special Days

Easter Holidays Commencing 2017

1. That notwithstanding any other Order herein, and in the event that the Easter break does not fall within the end of Term 1 school holidays, the child shall spend time with the Father on the Easter weekend each year as agreed, and in the absence of agreement, at least as follows:

   a)In even numbered years from the conclusion of school on the Thursday before Good Friday until 5.00pm Easer Saturday, and

   b)In odd numbered years from 5.00pm Easter Sunday until 5.00pm Easter Monday;

   c)2020 is to be regarded as an ‘even’ year, 2021 as an ‘odd’ year and so on.

2. In the event that the Easter break does not fall within the end of Term 1 school holidays, the child shall spend time with the mother on the Easter weekend each year as agreed, and in the absence of agreement, at least as follows:

   a)In odd numbered years from the conclusion of school on the Thursday before Good Friday until 5.00pm Easter Saturday;

   b)In even numbered years from 5.00pm Easter Sunday until 5.00pm Easter Monday; and

   c)2020 is to be regarded as an ‘even’ year, 2021 as an ‘odd’ year and so on.

Christmas Eve/Day & Boxing Day

1. That notwithstanding any other order the children shall spend time with the Father over Christmas Eve, Christmas Day & Boxing Day each year as agreed, and in the absence of agreement, at least as follows:

   a)In even numbered years from 2.00pm on 24 December to 2.00pm on 25 December;

   b)In odd numbered years from 2.00pm on 25 December to 5.00pm on 26 December; and

   c)2016 is to be regarded as an ‘even’ year, 2017 as an ‘odd’ year and so on.

1. That notwithstanding any other order the children shall spend time with the mother over Christmas Eve, Christmas Day & Boxing Day each year as agreed, and in the absence of agreement, at least as follows:

   a)In odd numbered years from 2.00pm on 25 December to 5.00pm on 26 December;

   b)In even numbered years from 5.00pm on 24 December to 2.00pm on 25 December; and

   c)2016 is to be regarded as an ‘even’ year, 2017 as an ‘odd’ year and so on.

Children’s Birthday

1. That notwithstanding any other Order, on the children’s birthday the children will spend time with the parent with whom they are not living on that day as agreed, and in the absence of agreement at least as follows:

   a)In even numbered years:

   i)With the mother from 3.00pm until 8.30am (or the commencement of school) the next day with the mother being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day); and

   ii)With the Father from 3.00pm on the day prior to the birthday until 8.30am (or the commencement of school) the next day with the Father being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day).

   b)In odd numbered years:

   i)With the Father from 3.00pm until 8.30am (or the commencement of school) the next day with the Father being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it’s not a school day);

   ii)With the mother from 3.00pm on the day prior to the birthday until 8.30am (or the commencement of school) the next day with the mother being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day); and

   iii)2016 is to be regarded as an ‘even’ year, 2017 as an ‘odd’ year and so on.

Parents Birthday

1. That notwithstanding any other Order, the children will spend time with each parent on their respective birthdays as agreed and, in the absence of agreement, at least as follows:

   a)If the day falls on a school day, then from after school until 8.30am (or the commencement of school) the next day, with the parent having the birthday to be responsible for collecting the children from school and returning the children to school (if the next day is also a school day). In the event that the next day is not a school day, changeovers will occur at 9.00am the next day at the changeover location; and

   b)If the day falls on a non-school day, then from 3.00pm to 8.30am (or the commencement of school) the next day with the Father to deliver the children to school. In the event that the next day is not a school day, changeovers will occur at 9.00am the next day at the changeover location.

Mother’s Day

1. That notwithstanding any other order, the children will spend time with the mother from 5.00pm on the day before mother’s Day until 5.00pm mother’s Day each year.

Father’s Day

1. That notwithstanding any other order, the children will spend time with the Father from 5.00pm on the day before Father’s Day until 5.00pm Father’s Day each year.

Communication

1. That the children are at liberty to telephone either parent at any time and the parent they are with shall facilitate this.

2. That each parent be permitted to telephone the child/ren when they are in care of the other parent with such calls to occur between 5.30pm and 6.00pm on Tuesdays and Thursdays.

3. That both parents provide to each other a mobile telephone number that the children can be contacted on and will advise the other of any change to the same within 24 hours of such change.

Changeovers

1. That changeovers occur as follows:

   a)Changeovers occurring before or after school shall occur at the children’s school;

   b)That all other changeovers take place at McDonalds C Town with such changeovers to be facilitated by the Paternal Grandmother who may, if her health requires, be accompanied by the Paternal Grandfather provided the Paternal Grandfather does not leave the vehicle or attempt to contact or approach the mother;

   c)The Father is restrained from attending changeovers unless otherwise agreed in writing;

   d)In the event that the Paternal Grandmother is not available to facilitate changeovers, then changeovers shall occur at or be facilitated by Ms G on the basis that the parties shall bear any costs related to same equally.

   e)The mother's brother D may facilitate changeovers in place of the mother irrespective of any Domestic Violence Protection Order which may be made against him.

Schooling & extra-curricular activities

1. Unless otherwise agreed between the parents in writing, the children shall remain enrolled at the E School.

2. That the mother and the Father shall be at liberty to attend at the children’s school and participate in or observe any school related or extra-curricular activity attended by the children from time to time or in which the children are participating from time to time including sporting activities, irrespective of any Domestic Violence Protection Order which may be made against the Father.

3. That the Father shall be at liberty to attend at the children’s school and participate in or observe any school related or extra-curricular activity attended by his daughter Z from time to time or in which his daughter is participating from time to time including sporting activities.

4. That these Orders will authorize any school that the children may from time to time attend to provide both parties:

   a)Copies of all school reports, newsletters, photograph order forms, and any other document associated with the children’s school; and

   b)All information that either party may from time to time seek in relation to the children’s schooling.

5. Neither the mother or Father will facilitate the children’s participation in any extra-curricular activity or pursuit that may impact on the children’s time with the other parent without first obtaining the other parent’s permission to such participation and such permission is not to be unreasonably withheld.

6. The mother and Father will communicate, in writing, at least two (2) weeks prior to the end of each school term to decide what extra-curricular activities the children will undertake for the next term and to decide their respective responsibilities for facilitating these extra-curricular activities.

7. That the mother and Father will be responsible for taking the children to practice sessions and games when the children are spending time with that parent.

8. The Father is to ensure the children’s attendance at any pre-kindergarten or kindergarten programme the children are enrolled in prior to the commencement of preparatory school.

Medical issues

1. That the parties will each respectively inform the other forthwith if the child/ren receives any medical attention whilst in that party’s care, including the name and contact details of any person providing such attention.

2. That neither parent shall cause the children to attend upon any counsellor, psychiatrist or psychologist or other allied professional unless otherwise prior agreed to between the parties in writing.

3. That these Orders will act as an authority for either parent to speak to any health care or education provider associated with the child/ren and to obtain from same:

   a)Copies of all reports and any other documentation associated with the child/ren’s health care and wellbeing; and

   b)All information that either parent may, from time to time, seek in relation to the child/ren’s health care and wellbeing.

Specific issues

1. That unless otherwise provided for in these Orders, the parties communicate about issues relating to the care, welfare and development of the children between each other via e-mail.

2. That neither party will denigrate or make derogatory remarks about the other party or members of the other party’s family or their friends, in the presence or hearing of the child/ren.

3. That neither parent will questions the child/ren about the life of the other parent, nor involve the child/ren in any adult issues, including discussing any aspect of the family law proceedings.

4. That the parents will notify each other within 24 hours of any change in their residential address and/or contact telephone number and the new details of same.

5. That each parent will provide not less than 60 days notice if they intend on relocating the children’s residence to a location which is more than 15kms from their current location.

6. That neither party shall consume alcohol in excess of the legal driving limit whilst the children are in their care.

7. That the mother attend and complete the first available Parenting Orders Program offered by B Group in F Town and provide a Certificate of Completion to the Father within seven (7) days of receipt of same.

8. That the parties be restrained from publishing a copy of any of the documents filed in these proceedings including the Family Report without first obtaining leave of this Honourable Court, with the exception of them being at liberty to provide a copy of any final Orders to Ms G and a copy of the Family Report of Ms H to their respective Counsellors.

Dispute resolution

1. If the parties are unable to agree about a decision of a significant issue to be made in the exercise of their equal parental responsibility the parties shall submit to the following dispute resolution process:

   a)The party with the complaint (complainant) will provide written details of the nature and extent of their complaint, and confirmation that the complaint is pursuant to this section of the Order, to the other party (recipient), with a proposal for resolution of the complaint;

   b)The recipient will provide a written response to the complaint within 14 days of receipt of the complaint, detailing the elements of the complaint agreed to, and the elements of the complaint with which the recipient disagrees, and if there is disagreement, and counter-proposal for resolution of the complaint;

   c)The complainant, within 14 days of receipt of the recipient’s response, will provide written confirmation of whether the complainant considers that there is still a dispute;

   d)If there is still a dispute after Order 31(b) above, the complainant will contact an accredited mediator, or other mutually agreed mediation service, and the parties will participate in mediation about dispute with that mediator, or other mutually agreed mediation service, as the case may be;

   e)Both parties are at liberty to attend any mediation about the dispute with that mediator, or other mutually agreed mediation service as the case may be, by way of telephone; and

   f)The costs of mediation be shared equally between the parties.

Other

1. That the Independent Children’s Lawyer be discharged.

AND IT IS NOTED:

1. To the extent it is possible, it is intended that the children will spend time during school holidays/on weekends when the father’s daughter Z is in his care.

APPENDIX TWO

Parental responsibility

1. That both the mother and Father have equal shared parental responsibility for:

   ·X born … 2012 and

   ·Y born … 2013 (the children)

   including but not limited to decisions relating to major long-term issues as the term ‘major long term issues’ is defined in the Family Law Act 1975 (Cth), section 4, and:

   a)They will inform the other parent about the decision to be made;

   b)They will consult each other about terms agreed;

   c)They will make a genuine effort to come to a joint decision;

   d)In particular, but not limited to, the parties will:

   i)consult about medical treatment for the child/ren;

   ii)consult about dental treatment for the child/ren; and

   iii)consult about the school in which the child/ren is to be enrolled.

2. That the mother and Father each have responsibility for the day to day care, welfare and development of the child whilst the child is in their care.

Time with the children

1. That unless otherwise stated the child live with the mother.

2. That the child spend time with the Father as agreed, and in the absence of agreement at least as follows:

   a)For the first three (3) months following the date of these Orders, in the following two-week repeating cycle:

   Week 1

   (1)from 7.30am Tuesday until 4.30pm on Wednesday and each alternate Tuesday/Wednesday thereafter; and

   (2)from 7.30am Saturday to 4.30pm Sunday and each alternate weekend thereafter.

   Week 2

   (3)from 7.30am Tuesday until 4.30pm on Wednesday and each alternate Tuesday/Wednesday thereafter.

   b)At the conclusion of the three (3) months referred to at Order 4(a) herein, and for a further three (3) months following the date of these Orders, in the following two-week repeating cycle:

   Week 1

   (1)from 7.30am Tuesday until 4.30pm on Wednesday and each alternate Tuesday/Wednesday thereafter; and

   (2)from 4.30pm Friday until 4.30pm on Monday each alternate weekend thereafter.

   Week 2

   (3)from 7.30am Tuesday until 4.30pm on Wednesday and each alternate Tuesday/Wednesday thereafter;

   c)At the conclusion of the three (3) months referred to at Order 4(b) herein, and continuing until the child, X commences school, in the following two-week repeating cycle:

   Week 1

   (1)from 3.00pm Tuesday until 3.00pm on Thursday and each alternate Tuesday/Thursday thereafter.

   Week 2

   (2)from 3.00pm Sunday until 3.000pm on Tuesday and each alternate Sunday/Tuesday thereafter and;

   (3)from 3.00pm Thursday until 3.00pm Sunday.

   d)Upon the child X commencing school:

   (1)Each alternate week from the conclusion of school Friday until the commencement of school the following Friday.

Communication

1. That the child/ren be permitted to call either parent at any time.

2. That each parent be permitted to telephone the child/ren when they are in the care of the other parent with such calls to take occur between 5.30pm and 6.00pm Tuesday and Thursday.

3. That both parents provide to each other a mobile number that the children can be contacted on.

School holidays until the 2020 end of year school holidays

1. That unless otherwise provided for herein, upon the child X commencing school the arrangements set out at 4(d) herein shall continue throughout school holidays up until the commencement of the end of year school holidays in 2020, save for the changeover times which shall be 4.00pm each Friday.

School holidays from the commencement of the end of year holidays in 2020 onwards

1. That the children will spend one half of all school holidays with each parent as follows:

   a)With the Father in the first half of the school holidays in even numbered years and in the second half of the school holidays in odd numbered years.

   b)With the mother in the second half of the school holidays in even numbered years and in the first half of the school holidays in odd numbered years.

   c)Where there is an even number of days in any school holiday period the handover is to occur at 9am on the morning of the first day of the second half of the holiday period;

   d)Where there is an odd number of days in any school holiday period the handover is to occur at 9am on the morning of the middle day of that school holiday period;

   e)For the purposes of calculating the number of days in a holiday period the first day after the break up of school is to be regarded as ‘day 1’, and the day the child recommences school as the final day;

   f)The parent with whom the child will be spending the first half of the school holidays is to be responsible for the collection of the child from school on the afternoon they break for holidays;

   g)2020 is to be regarded as an ‘even’ year, 2021 as an ‘odd’ year and so on.

Changeover locations

1. Unless otherwise agreed, all changeovers shall take place at:

   a)The children’s kindergarten/pre-prep/school (once X commences school) and when the changeover time is before/after school.

   Otherwise

   b)McDonald’s, C Town.

Education

1. That these Orders will authorise any school that the children may from time to time attend to provide both parties:

   a)Copies of all school reports, newsletters, photograph order forms, and any other document associated with the children’s school; and

   b)All information that either party may from time to time seek in relation to the children’s schooling.

2. That both parties be at liberty to attend and be involved in any and all school events.

Extra-curricular activities

1. Neither the mother or Father will facilitate the children’s participation in any extracurricular activity or pursuit that may impact on the children’s time with the other parent without first obtaining the other parent’s permission to such participation and such permission is not to be unreasonably withheld.

2. The mother and Father will communicate, in writer, at least two (2) weeks prior to the end of each school term to decide what extracurricular activities the children will undertake for the next term and to decide their respective responsibilities for facilitating these extracurricular activities.

3. That the mother and Father will be responsible for taking the children to practice sessions and games when the children is spending time with that parent.

Medical issues

1. That the parties will each respectively inform the other forthwith if the child/ren receives any medical attention whilst in that party’s care, including the name and contact details of any person providing such attention.

2. That neither parent shall cause the children to attend upon any counsellor, psychiatrist or psychologist or other allied professional unless otherwise prior agreed to between the parties in writing.

3. Both parents are at liberty to present at any medical appointment in relation to the child/ren regardless of when that appointment is, and the parties will each respectively give the other reasonable notice of any such appointment.

4. The parents will each respectively authorise and direct any person providing medical attention to the child/ren to provide any documentation in relation in relation to such treatment to the other parent.

5. That these Orders will act as an authority for either parent to speak to any health care or education provider associated with the child/ren and to obtain from same:

   a)Copies of all reports and any other documentation associated with the child/ren’s health care and wellbeing; and

   b)All information that either parent may, from time to time, seek in relation to the child’/rens health care and wellbeing.

Special days

Easter Holidays (to commence once X commences school)

1. That notwithstanding any other Order herein, and In the event that the Easter break does not fall within the end of term 1 school holidays, the child shall spend time with the Father on the Easter weekend each year as agreed, and in the absence of agreement, at least as follows:

   a)In even numbered years from the conclusion of school on the Thursday before Good Friday until 5.00pm Easter Saturday;

   b)In odd numbered years from 5.00pm Easter Saturday until 5.00pm Easter Monday;

   c)2020 is to be regarded as an ‘even’ year, 2021 as an ‘odd’ year and so on.

2. In the event that the Easter break does not fall within the end of term 1 school holidays, the child shall spend time with the mother on the Easter weekend each year as agreed, and in the absence of agreement, at least as follows:

   a)In odd numbered years from the conclusion of school on the Thursday before Good Friday until 5.00pm Easter Saturday, and

   b)In even numbered years from 5.00pm Easter Saturday until 5.00pm Easter Monday.

   c)2020 is to be regarded as an ‘even’ year, 2021 as an ‘odd’ year and so on.

Christmas Eve/Day & Boxing Day (to commence immediately)

1. That notwithstanding any other order the children shall spend time with the Father over Christmas Eve, Christmas Day & Boxing Day each year as agreed, and in the absence of agreement, at least as follows:

   a)In even numbered years from 9.00pam on 27 December 2016 to 9.00am on 21 December 2016;

   b)In odd numbered years from 9.00am on 23 December 2016 to 9.00am on 27 December 2017;

   c)2016 is to be regarded as an ‘even’ year, 2017 as an ‘odd’ year and so on.

2. That notwithstanding any other order the children shall spend time with the mother over Christmas Eve, Christmas Day & Boxing Day each year as agreed, and in the absence of agreement, at least as follows:

   a)In odd numbered years from 9.00pam on 27 December 2016 to 9.00am on 21 December 2016;

   b)In even numbered years from 9.00am on 23 December 2016 to 9.00am on 27 December 2017;

   c)2016 is to be regarded as an ‘even’ year, 2017 as an ‘odd’ year and so on.

Children’s birthday (to commence immediately)

1. That notwithstanding any other Order, on the children’s birthday the children will spend time with the parent with whom they are not living on that day as agreed, and in the absence of agreement at least as follows:

   In even numbered years:

   a)With the mother from 3pm until 8.30am (or the commencement of school) the next day with the mother being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day), and

   b)With the Father from 3pm on the day prior to the birthday until 8.30am (or the commencement of school) the next day with the Father being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day).

   In odd numbered years:

   c)With the Father from 3pm until 8.30am (or the commencement of school) the next day with the Father being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it’s not a school day); and

   d)With the mother from 3pm on the day prior to the birthday until 8.30am (or the commencement of school) the next day with the mother being responsible for collecting the children from school or the changeover location and returning the children to school the next day (or the changeover location if it is not a school day).

   e)2016 is to be regarded as an ‘even’ year, 2017 as an ‘odd’ year and so on.

Father’s birthday (to commence immediately)

1. That notwithstanding any other Order, the children will spend time with the Father on the Father’s birthday as agreed and, in the absence of agreement, at least as follows:

   a)If the day falls on a school day, then from after school until 8.30am (or the commencement of school) the next day, with the Father to be responsible for collecting the children from school and returning the children to school (if the next day is also a school day). In the event that the next day is not a school day, changeovers will occur at 9am the next day at the changeover location; and

   b)If the day falls on a non-school day, then from 3pm to 8.30am (or the commencement of school) the next day with the Father to deliver the children to school. In the event that the next day is not a school day, changeovers will occur at 9am the next day at the changeover location.

Mother’s birthday (to commence immediately)

1. That notwithstanding any other Order, the children will spend time with the mother on the mother’s birthday as agreed and , in the absence of agreement, at least as follows:

   a)If the day falls on a school day, then from after school until 8.30am (or the commencement of school) the next day, with the mother to be responsible for collecting the children from school and retuning the children to school (if the next day is also a school day). In the event that the next day is not a school day, changeovers will occur at 9am the next day at the changeover location; and

   b)If the day falls on a non-school day, then from 3pm to 8.30am (or the commencement) the next day, with the mother to deliver the children to school. In the event that the next day is not a school day, changeovers will occur at 9am the next day at the changeover location.

Mother’s Day (to commence immediately)

1. That notwithstanding any other order, the children will spend time with the mother from 5pm on the day before mother’s Day until 5pm mother’s Day each year.

Father’s day (to commence immediately)

1. That notwithstanding any other order, the children will spend time with the Father from 5pm on the day before Father’s Day until 5pm mother’s Day each year.

Passports and overseas travel

1. That upon receiving a written request to do so, each parent will sign any and all documents necessary to facilitate the production of an Australian passport for the children and any renewal for such passport.

2. That either parent will be permitted to travel overseas with the children during the periods of time that the children is living or spending time with that parent provided that:

   a)The parent wishing to travel provides written notice of the intention to travel to the other parent;

   b)For overseas travel such notice to be provided not less than forty-five (45) days prior to the intended date of departure;

   c)All notices contain a detailed itinerary in relation to the planned travel including flight times and a copy of a return flight confirmation and contact details, including address details and telephone contact details, for the children during the travel;

   d)That any proposed overseas travel with the children is limited to countries which are signatories to the Hague Convention on the Civil Aspects of International Children Abduction, and which are not the subject of a travel warning issued by the Australian government;

   e)Should either parent wish to travel with the children overseas to a country which is not a signatory to the Hague Convention on the Civil Aspects of International Children Abduction, then that parent is to put their request in writing to the other parent not less than 90 days prior to the intended date of departure with such permission to not be unreasonably withheld by that parent should they be satisfied that the travel is for the children’s educational and/or sporting benefit, general advancement or wellbeing; and

   f)That any travel will not be taken during any school term excerpt where expressly agreed to by the parents (which should not be unreasonably withheld) or where the travel is for the children’s educational and/or sporting benefit, general advancement or wellbeing.

Dispute resolution

1. If the parties are unable to agree about a decision of a significant issue to be made in the exercise of their equal parental responsibility the parties shall submit to the following dispute resolution process:

   a)The party with the complaint (complainant) will provide written details of the nature and extent of their complaint, and confirmation that the complaint is pursuant to this section of the Order, to the other party (recipient), with a proposal for resolution of the complaint;

   b)The recipient will provide a written response to the complaint within 14 days of receipt of the complaint, detailing the elements of the complaint agreed to, and the elements of the complaint with which the recipient disagrees, and if there is disagreement, and counter-proposal for resolution of the complaint;

   c)The complainant, within 14 days of receipt of the recipient’s response, will provide written confirmation of whether the complainant considers that there is still a dispute;

   d)If there is still a dispute after Order 31(b) above, the complainant will contact an accredited mediator, or other mutually agreed mediation service, and the parties will participate in mediation about the dispute with that mediator, or other mutually agreed mediation service, as the case may be;

   e)Both parties are at liberty to attend any mediation about the dispute with that mediator, or other mutually agreed mediation service as the case may be, by way of telephone; and

   f)The costs of mediation be shared equally between the parties.

Specific issues

1. That unless otherwise provided for in these Orders, the parties communicate issues relating to the care, welfare and development of the child between each other via email.

2. That neither party will denigrate or make derogatory remarks about the other party or members of the other party’s family or their friends, in the presence or the child.

3. That the parent upon receiving an email, phone text message and/or phone voicemail message from the other parent concerning the child is to acknowledge receipt of same within a reasonable period of time.

4. That the parents will notify each other within twenty-four (24) hours of any change in their residential address and/or contact telephone number and the new details of same.

5. That neither parent will question the child/ren about the life of the other parent, nor involve the child/ren in any adult issues, including discussing any aspect of the family law proceedings.

6. That each parent will provide not less than sixty (60) days notice if they intend on relocating the children’s residence to a location which is more than 15 kilometres from their current location.

7. That if one party cannot care for the children for a period of twelve (12) hours, or longer) that the other party is to be given first option to care for the children during the period of time that the first party cannot care for them, with the first party to provide a reasonable period of notice to the other party in relation to same.

APPENDIX THREE

1. That all previous Orders and Parenting Plans be discharged.

Where the Children Shall Live and Parental Responsibility

1. That the children X born … 2012 and Y born … 2013 (“the children”) live with the mother.

2. That the mother has sole parental responsibility

Time with the father

1. That the children spend time with the Father at all reasonable times as may be agreed between the parents failing agreement as follows:

   a)From the date of these Orders until 31 December 2018 in the following two week repeating cycle:

   i)In week one:

   a.from Tuesday 3pm until Wednesday 3pm and each alternate week thereafter

   b.from Friday 3pm until Sunday 4.30pm and each alternate weekend thereafter

   ii)In week two – from 3pm Tuesday to 3pm Wednesday and each alternate weekend thereafter

   b)From the commencement of the first full week of the school term in 2019 in a two weekly repeating cycle:

   i)In week 1 from after school Thursday 3pm until Monday 8:30am.

School holiday period

1. That unless otherwise agreed in writing, commencing with the Easter 2018 school holidays until the December school holidays in 2018.

   a)For each school holiday period the father shall spend time with the children from Wednesday 7.30am until the following Sunday at 4.30pm on an alternate weekly cycle to coincide with the contact time with their sister Z.

2. From December school holidays 2018 the father shall spend time with the children as follows:

   a)For each school holiday period the father shall spend time with the children from Sunday 4.30pm until the following Sunday at 4.30pm on an alternate weekly cycle to coincide with the contact time with their sister Z.

Special days

Christmas Eve/Day and Boxing Day

1. That notwithstanding any other order the children shall spend time with the mother over Christmas Eve, Christmas Day and Boxing Day each year as agreed, and in the absence of agreement, at least as follows:

   a)In odd numbered years from 2.00pm on 25 December to 5.00pm on 26 December;

   b)In even numbered years from 5.00pm on 24 December to 2.00pm on 25 December; and

   c)2018 is to be regarded as an ‘even’  year and 2019 an ‘odd’ year and so on

Children’s Birthdays

1. That notwithstanding any other Order, on the children’s birthday the children will send time with the parent with whom they are not living on that day as agreed, and in the absence of agreement at least as follows:

   a)With the parent that they are not living with from3pm until 8:30am the next day.

Parent’s Birthdays

1. That notwithstanding any other order, the children will spend time with each parent on their respective birthdays as agreed and, in the absence of agreement, at least as follows:

   a)If the day falls on a school day then from after school until 8.30am the next day, the parent having the birthday to be responsible for collecting the children from school and returning the children to school (if the next day is also a school day). In the event that the next day is not a school day changeovers will occur at 8:30am the next day at the changeover location; and

   b)If the day falls on a non-school day, then from 3.00pm until 8.30am with the parent having the birthday to be responsible for delivering the children to school (if a school day) or at the changeover (if not a school day).

Mother’s Day

1. That notwithstanding any other order, the children will spend time with the mother from 5.00pm on the day before mother’ Day until 5.00pm mother’s Day each year.

Father’s Day

1. That notwithstanding any other order, the children will spend time with the Father from 5.00pm on the day before Father’s Day until 5.00pm Father’s Day each year.

Communication

1. That the children are at liberty to telephone either parent at any time and the parent they are with shall facilitate this.

Changeover

1. That changeovers occur as follows:

   c)Changeovers occurring before or after school shall occur at the children’s school;

   d)That all other changeovers take place at McDonalds at C Town with changeovers to occur with the mother to arrive first and the father to remain outside the entrance to collect the children to minimise contact;

   e)The paternal grandmother may facilitate changeovers when necessary;

   f)The mother’s brother may facilitate changeovers when necessary.

School & extra-curricular activities

1. Unless otherwise agreed between the parties in writing, the children shall remain enrolled at E School.

2. That these orders will authorise the school that both parties are to receive all communications from the school in regards to the children.

3. Neither the mother or father will facilitate the children’s participation in any extra-curricular activity or pursuit that may impact on the children’s time with the other parent without first obtaining permission to such participation and such permission is not to be unreasonably withheld.

4. That the mother and father be responsible for taking the children to practice sessions and games when the children are spending time with that parent.

Medical issues

1. That the mother will inform the father about all medical care that is undertaken and supply reports as required.

Specific issues

1. The parents communicate by means of a contact book in the majority and use email when necessary.  Communication should be limited to important issues concerning the children.

2. That neither party will denigrate or make derogatory remarks about the life of the other parent, nor involve the children in any adult issues, including discussing any aspect of the family law proceedings.

3. That the parents will notify each other within 24 hours of any change in their residential address and/or contact details and the new details of the same.

4. That each parent will provide not less than 60 days notice if they intend on relocating the children’s residence to a location which is more than 25 kms from the current locations.

5. That neither parent shall consume alcohol in excess of the legal driving limit whilst the children are in their care.