DELANOY & DELANOY

[2020] FCCA 2512

FEDERAL CIRCUIT COURT OF AUSTRALIA

DELANOY & DELANOY [2020] FCCA 2512

Catchwords:
FAMILY LAW – Parenting Orders – where there are two subject children – breakdown of relationship between parents – where communication between the parents are poor – where the children have meaningful relationships with both parents – where best interests of the children are considered – where mother seeks sole responsibility – where father seeks unsupervised time with the children – sole parental responsibility in favour of the mother following the process of consultation – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 117

Cases cited:

Goode and Goode (2006) 206 FLR 212

M v M (1988) 166 CLR 69

Mazorski v Albright (2007) 37 Fam LR 518

Ramsey & Hays (2017) 318 FLR 45

Sargent and Selwyn [2020] FamCAFC 110

Applicant: MR DELANOY

Respondent: MS DELANOY

File Number: PAC 1012 of 2018

Judgment of: Judge Humphreys

Hearing dates: 17 – 21 August 2020

Date of Last Submission: 31 August 2020

Delivered at: Parramatta

Delivered on: 2 October 2020

REPRESENTATION

Counsel for the Applicant: Mr Blackah

Solicitors for the Applicant: Calabrese Lawyers

Counsel for the Respondent: Mr Cummings

Solicitors for the Respondent: Mills Oakley Lawyers

Counsel for the Independent Childrens Lawyer: Ms Teicher

Solicitors for the Independent Childrens Lawyer: Sarah Bevan Family Lawyers

ORDERS

1. All previous parenting orders in relation to the children, X, born in 2013 and Y, born in 2015 (“the children”) are discharged.

2. The respondent mother is to have sole parental responsibility in relation to the medical, education and religious matters pertaining to the children.

3. In relation to the respondent mother’s exercise of sole parental responsibility:

   (a)the respondent mother must notify the applicant father by email of any proposed decision regarding the long-term care and welfare of the children, together with the reasons for the proposed decision, such notification to be not less than three weeks prior to the proposed decision;

   (b)the applicant father must notify the respondent mother by email of any views concerning the proposed decision from the respondent mother within seven days;

   (c)the applicant mother must take into consideration any views expressed by the applicant father, in relation to the proposed decision, provided she notifies the applicant father of her views, by email within seven days of receiving notice of his proposed decision;

   (d)in the event that the respondent mother elects to make a decision, which is contrary to the applicant father’s views, she must set out the reasons as to why she disagrees with his views, by email, within two days of having received notice of his views;

   (e)the respondent mother must notify the applicant father about the final decision, by email, forthwith upon having made such a decision.

4. In relation to the exercise of the respondent mother’s sole parental responsibility making a long-term medical decisions:

   (a)unless in the event of a medical emergency or hospitalisation, the respondent mother is to ensure that the children are treated by Dr B, as their General Practitioner and any paediatrician recommended by Dr B. In the event this remains opposed to by the applicant father, then the respondent mother invites the applicant father to propose three general practitioners, local to the parents (excluding Dr C) for the respondent mother, to select one from the three and to provide the name and contact details of that medical practitioner, to the applicant father;

   (b)the respondent mother must authorise and do all things, sign all documents and give all consents necessary to enable the applicant father to liaise directly with any doctor, to attend appointments either solely or with the respondent mother (as agreed in writing) at the hospital or other medical appointments with the children, to provide and obtain information and copies of any medical reports about the physical and/or mental health of the children and the progress of any treatment children may be receiving;

   (c)that the respondent mother be guided by any recommendation made by any treating medical practitioner in relation to the children;

   (d)the respondent mother must notify the applicant father of any proposed medical decision regarding the long-term care and welfare of the children, together with the reasons for the proposed decision and such notification to be by way of email not less than three weeks prior to the proposed decision;

   (e)the applicant father must notify the respondent mother by email of any views concerning the proposed decision by the respondent mother within seven days;

   (f)the respondent mother must take into consideration any views expressed by the applicant father, in relation to the proposed decision, provided she notifies the applicant father of her views by email within seven days of receiving the notice of his proposed decision;

   (g)in the event the respondent mother elects to make a decision which is contrary to the applicant father’s views, she must set out the reasons as to why she disagrees with his views, by email within two days of having received notice of her views;

   (h)the respondent mother must notify the applicant father of the final decision, by email, forthwith upon having made such a decision.

5. In relation to the exercise of sole parental responsibility for decisions with greater urgency, the respondent mother must, as far as practicable, follow the same process as set out in Orders three and four, but with timing abridged to allow for the urgent nature of the decision.

6. The children live with the respondent mother.

7. That the children spend time with the applicant father as follows:

   (a)for a period of four weeks from the date of these orders;

   (i)each Saturday from 9:30am until 6:30pm;

   (ii)each Wednesday from the conclusion of school until 7.00pm.

   (b)Thereafter, until 30 June 2021:

   (i)in week one, of the two week cycle from 9:00am Saturday until 5:00pm Sunday;

   (ii)in week two, of the two week cycle on Wednesday from the conclusion of school or 3:15pm if not a school day, until the commencement of school on Thursday or 9:15am if not a school day;

   (iii)in the New South Wales school holiday periods, from 5:00pm Friday to 5:00pm Sunday on each alternative weekend, commencing the second Friday of the school holiday period.

8. From 1 July 2021 until the commencement of school term in 2022:

   (a)in week one, of a two week cycle from the conclusion of school on Friday or 3:15pm if not in the school day until the commencement of school Monday or 9:15am, if not on a school day;

   (b)in week two, of the two week cycle, on Wednesday from the conclusion of school or 3:15pm, if not in school day until commencement of school on a Thursday or 9:15am, if not on a school day;

   (c)in the New South Wales school holiday periods, from 9:00am Saturday to 9:00am Thursday, each alternative week commencing the first Saturday of the holiday period.

9. From the commencement of school in 2022:

   (a)in week one, of the two week cycle from the conclusion of school on Friday or 3:15pm if not on the school day, until the commencement of school Monday or 9:15am, if not on a school day;

   (b)in week two, of the two week cycle, Wednesday from the conclusion of school 3:15pm, if not on a school day until the commencement of school on Friday or 9:15am, if not on a school day;

   (c)for one half of the New South Wales school holiday periods as agreed between the parties, but failing agreement, for the first half of the school holidays in even-numbered years during the second half of the school holidays in odd numbered years.

10. For the purpose of determining half the school holidays:

    (a)the time shall commence at the conclusion of school on the last Friday of school term or 3:15pm, if not a school day and;

    (b)the midpoint shall be 9:00am on the second Saturday the school holidays in the New South Wales Terms 1,2 and 3 school holidays and 9:00am on the third Saturday in the New South Wales Term 4 school holidays.

11. The last day of school holidays is deemed to be the first Monday of the new school year or 9:00am, if not on a school day.

12. Notwithstanding any other order, the applicant father spend the following special occasions with the children:

    (a)On Father’s day from 9:00am to 5:00pm;

    (b)on Father’s Day in 2021 and each year thereafter, from 9:00am until the commencement of school on Monday or 9:15am if not in the school day and if not already in the father’s care;

    (c)during even-numbered years from 1:00pm Christmas Eve until 1:00pm on Christmas Day;

    (d)during odd numbered years from 1:00pm Christmas Day until 1:00pm on Boxing Day;

    (e)during even-numbered years from 1:00pm Good Friday until 1:00pm Easter Saturday;

    (f)during odd numbered years from 1:00pm on Easter Saturday until 1:00pm on Easter Sunday;

    (g)on each of the children’s birthdays, in even numbered years, from 10.00am till 6.00pm, or if a school day from the conclusion of school till 6.30pm.

    (h)at any other times, as agreed between the respondent mother and applicant father in writing.

13. Notwithstanding any other orders above, the children spend additional time with the respondent mother as follows:

    (a)on Mother’s Day from 9:00am until resumption of the applicant father’s time, pursuant to these orders;

    (b)during odd numbered years from 1:00pm on Christmas Eve until 1:00pm on Christmas Day;

    (c)during even-numbered years from 1:00pm on Christmas Day until 1:00pm on Boxing Day;

    (d)during odd numbered years 1:00pm on Good Friday until 1:00pm on Easter Saturday;

    (e)during even-numbered years from 1:00pm on Easter Saturday until 1:00pm on Easter Sunday;

    (f)on each of the children’s birthdays in odd numbered years, from 10.00am until 6.30pm if a school day, from the conclusion of school until 6.30pm.

14. For the purposes of changeover, that does not occur at the children’s school, the applicant father collect the children from the respondent mother’s residence, at the commencement of his time and the respondent mother shall collect the children from the applicant father’s residence, at the conclusion of time.

15. The respondent mother and applicant father must immediately notify the other parent, via text message or telephone call, to the other parents mobile phone of any illness, medical attendance, medical emergency, serious medical problems, hospitalisation or accident, in relation to any of the children, when the children are living with or spending time with them, together with such notice the parent is to provide all details of any medical treatment, treating medical practitioner and/or medical facility or hospital that is providing the treatment for the child/children.

16. The respondent mother must authorise and do all things, sign all documents and give all consents necessary to enable the applicant father to liaise directly with the children’s school principals or teachers, to obtain any information about the children’s progress at school, or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities and to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to parents directly from school.

17. That the parent with whom the children are living, pursuant to these orders, shall take the children to and from and remain with the children, during any schooling or extracurricular activity, in which the children are scheduled to participate and the other parent shall only be at liberty to attend such activities, if the children are participating in an assembly, presentation, sports match or other significant activity.

18. The respondent mother must authorise and do all things, sign all documents and give all consents necessary, to enable the applicant father to attend all school events and co-curricular activities the children are involved in, but not limited to swimming carnivals, sports days, performances, parent/teacher interviews and other educational activities.

19. That the parties engage with the UNIFAM service ‘Keeping Contact’ (also known as the ‘Parenting Orders Program) alternatively, another nominated specialist service, within seven days of these orders being made and do all things required by the service, including but not limited to, attending any individual sessions and making the children available for any appointments as requested by the allocated therapist/s.

20. The parties attend this program for a minimum of 12 months and on at least a monthly basis, from the date of these orders, noting that the purpose of such therapy is to assist the parties to implement the final orders in a child focused manner by:

    (a)establishing guidelines for the parties communication with each other,

    (b)developing strategies for resolving conflict between the parties,

    (c)providing tools (including resource material and psycho education) to enhance parties co-parenting skills,

    (d)a copy of the single expert family report of Ms D to be released to the nominated service provider to assist them in their work with the parents and children.

21. That the parties are restrained from using offensive language, making derogatory comments or denigrating the other parent or the respective families, to the other parent and either of the children schools, providers of extracurricular activities, medical or allied health professionals.

22. Both the applicant father and the respondent mother must each pay the Legal Aid NSW the sum of $1,650.00, being the unpaid contribution towards the costs of the ICL.

Note: The commencement of weekend time spent with the applicant father is to be aligned and be the same weekend as when the children’s older brother, E, spends time with his father. This is to ensure that all three children have an alternate weekend with each other and their mother.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 1012 of 2018

MR DELANOY

Applicant

And

MS DELANOY

Respondent

REASONS FOR JUDGMENT

Introduction

1. This matter involves parenting proceedings commenced by Mr Delanoy (“the applicant father”), against Ms Delanoy (“the respondent mother”) (“the parties”), concerning their two children, X (“X”), aged approximately 7½ years and Y (“Y”), currently five years (“the children”).

2. The matter was heard at the Federal Circuit Court in Parramatta over five days, commencing on 17 August 2020. The hearing was conducted via Microsoft Teams, due to current COVID-19 health restrictions.

Background

1. The applicant father is currently 45 years old and the respondent mother is 42 years old. The respondent mother has a son from a prior relationship, E, who is currently 11 years of age. The respondent mother ended her relationship with the father of E, in approximately late 2009.

2. The applicant father and the respondent mother met in late 2011 and commenced cohabitation shortly thereafter. The applicant father and the respondent mother were married in 2012. X was born in 2013 and Y was born in 2015.

3. During 2013, the parties briefly separated, but subsequently reconciled. The parties separated on a final basis on 12 October 2016, when the respondent mother was asked by the applicant father to leave the former matrimonial home in Suburb F with the two children. The respondent mother moved in with her parents at Suburb G.

4. The applicant father spent some time with the children following the separation. In March 2017, the parties participated in a mediation and reached agreement for the children to live with the respondent mother and the applicant father to spend time with the children as follows:

   a)   Y:

   i) each day from 9:30am to 12:30pm.

   b)   X:

   i) in week one from 11:00pm Sunday to 9:30am Wednesday.

   ii) in week two from 9:30am Monday to 9:30am Tuesday and from 9:30am Wednesday to Friday, at the commencement of preschool.

5. In May 2017, an incident occurred at the respondent mother’s place of residence, in which it is alleged that the applicant father refused to leave and the respondent mother cautioned him that she would call the police. The applicant father admits calling the mother a “dysfunctional cow”.

6. In late June 2017, the applicant father again attended the respondent mother’s place of residence with the paternal grandmother. The maternal grandfather asked the respondent father and paternal grandmother to leave.

7. During the months of July, August and September 2017, the respondent mother alleges that both of the children returned home from spending time with the applicant father complaining of sore bottoms. On 16 November 2017, following time with the applicant father, Y complained of a sore bottom and cried when she urinated. The respondent mother took Y to H Children’s Hospital, where she was examined by the Child Protection Unit. Y was diagnosed with a blunt force trauma to the labia minora. The cause of the injury was unexplained and the matter was referred to the Joint Investigation and Response Team (“JIRT”) for further investigations.

8. The respondent mother advised the applicant father that she would not make the children available to spend time with him, pending the outcome of the investigation. Following being visited by NSW Police officers at his home, he was voluntarily interviewed, under caution by police officers from the Child Abuse Unit at Suburb J Police Station.

9. In January 2018, both the respondent mother and the applicant father were advised that the investigation regarding Y’s injuries was being closed. No criminal charges were laid against any person, however, the injury remains unexplained.

10. The respondent mother continued to raise concerns about the applicant father spending unsupervised time with either of the children. In February 2018, the applicant father spent supervised time with the children, at the Suburb J Community Welfare Services.

11. On 9 March 2018, the applicant father commenced proceedings at the Federal Circuit Court in Parramatta, seeking orders on an interim and final basis. On a final basis, the applicant father sought joint parental responsibility, together with substantial and significant time with the children living with him, on a week about basis. On an interim basis, the applicant father sought unsupervised time in week one, overnight on a Wednesday and in week two, from after school Friday to before school on Monday. In response, the respondent mother sought only supervised time on an interim and final basis.

12. Following an interim hearing before Harman J, on 18 July 2018, consent orders were made, inter alia as follows:

    a)   Applicant father to spend time with the children, supervised by his sisters, Ms K or Ms L, each Monday and Thursday from after school till 6:30pm,

    b)   Each Saturday from 10:00am till 2:00pm,

    c)   Further, the applicant father was permitted to attend X’s sports training during Wednesday afternoon and games on a Saturday.

13. Following this, some issues arose with the applicant father spending time with the children due to the unavailability of a supervisor. It is alleged that the applicant father attended the children’s school to spend additional time with them.

14. The matter was listed before Harman J for a final hearing, commencing on 26 November 2019, but was not reached. The matter was stood over for hearing before me, commencing 17 August 2020, as a special fixture. Further, interim orders were made, by consent, that the children live with the respondent mother and spend supervised time with the applicant father as follows:

    a)   each Saturday from 9:30am until 6:30pm and each Wednesday from conclusion of school until 7:00pm;

    b)   the applicant father’s mother, Ms M, was added as a supervisor;

    c)   the applicant father was restrained from attending X’s school or Y’s pre-school, other than for changeover and X’s assemblies on Monday and Friday, or if otherwise invited.

The Applicant Father’s Application

1. The applicant father’s application at the commencement of the hearing, remained unchanged from that contained within his original application filed with the Court.

The Respondent Mother’s Application

1. At the commencement of the hearing, the respondent mother sought orders inter alia, that the children live with her and that she have sole parental responsibility.  Any time spent with the applicant father until the end of 2021, be supervised. Overnight time with the applicant father would only commence at the end of school in term 4 at the end of 2021. The respondent mother’s position varied by the end of the hearing and she mostly consented to orders proposed by the Independent Children’s Lawyer (“the ICL”).

Parenting Matters

The Law

1. The relevant statutory provisions applicable to the proceedings, in relation to children, are set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. Section 60B of the Act sets out the objects and principles of Part VII of the Act as follows:

   (1) The objects of this Part are to ensure that the best interests of children are met by:

   (a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

1. Section 60B(2) of the Act, relevantly provides as follows:

   (2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a) children have the right to know and be cared for both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d) parents should agree about the future parenting of their children; and

   (e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture

2. Section 61DA of the Act, relevantly provides:

   (1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

   (2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a) abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or

   (b) family violence.

   (3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.

1. Section 60CA of the Act provides that:

   In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

2. This is also confirmed by s 65DAA(2)(d) of the Act which states:

   Consider whether the child spending substantial and significant time with each of the parents is reasonably practicable.

3. Section 60CC of the Act sets out a list of matters that the Court must consider in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all the matters in s 60CC of the Act, the central issue in those proceedings is balancing the primary considerations set out in s 60CC(2) of the Act, against one another.

   Those considerations are as follows:

   (a) the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

4. In balancing these considerations, s 60CC(2)(a) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence (s 60CC(2)(b) of the Act).

5. Section 60CC(3) of the Act, sets out additional considerations in determining what is in the child’s best interest. Broadly, these considerations deal with the following matters:

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

   (b) the nature of the relationship of the child with:

   (i) each of the child's parents; and

   (ii) other persons (including any grandparent or other relative of the child);

   (c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i) to participate in making decisions about major long-term issues in relation to the child; and

   (ii) to spend time with the child; and

   (iii) to communicate with the child;

   (ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i) either of his or her parents; or

   (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f) the capacity of:

   (i) each of the child's parents; and

(ii) any other person (including any grandparent or other relative of the child);

to provide for the needs of the child, including emotional and intellectual needs;

(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

1. The task of applying s 60CC(3) of the Act – Additional Considerations, is an evaluative exercise that necessarily involves the trial Judge determining what weight should be given to each relevant consideration. Each of the considerations found in s 60CC of the Act, must be taken into account and needs to be considered, as regards to each of the two children, who are the subject of these proceedings.

Relevant Case Law

1. The relevant principles in relation to parenting proceedings, are well settled (see Goode and Goode (2006) 206 FLR 212). In Mazorski v Albright (2007) 37 Fam LR 518, Brown J considered the ordinary definitions of the term “meaningful” and observed at [26]:

   … A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child.

2. The High Court in the matter of M v M (1988) 166 CLR 69, set out the relevant test in relation to unacceptable risk. The assessment of unacceptable risk is to be derived from the accumulation of factors proven at a civil standard. In the matter of Blinko v Blinko [2015] FamCAFC 146, the Full Court provides that an unacceptable risk of harm, that is said to be present, needs to be evaluated against the prospect of it actually occurring, as against the protective measures that might be put in place to ameliorate or minimise that risk, to an acceptable level.

3. A consideration of the relevant case law and the statute law, makes it clear that the paramount consideration making parenting orders is for the best interests of the children (see s 60CA of the Act). There is a presumption that it is in the best interests of the children, for the children’s parents, to have equal shared parental responsibility (see s.61DA of the Act). However, that presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (see s 61DA(2) of the Act).

The Applicant Father’s Case

Evidence of the Applicant Father

1. The applicant father’s evidence in chief, consisted of two affidavits sworn on 5 October 2018 (“first affidavit”) and 4 August 2020 (“second affidavit”).

2. At the second paragraph of the applicant father’s first affidavit, he raised concerns as to the respondent mother’s mental well-being. At paragraph 26 of the first affidavit, the applicant father sets out an interim parenting arrangement that was agreed to in 2017. The applicant father notes that since then, communication between himself and the respondent mother had broken down.

3. Arguments would occur between the respondent mother and applicant father during changeover of the children. The applicant father states that he found it incredibly hard to make the parenting agreement work, due to the respondent mother’s conduct. The applicant father admits that in May 2017, he called the mother a “dysfunctional cow”. The applicant father states he regrets saying those words, especially in the presence and hearing of the children.

4. In June 2017, the applicant father states that the respondent mother towed a vehicle from her premises to his home. The applicant father states that he gave the respondent mother the registration papers, green slip and insurance papers to register the car. No agreement could be reached between the parties as to what was to happen to the vehicle.

5. In late June 2017, the applicant father admits to sending a text message to the respondent mother that included words to the effect of:

   “You are controlling of our children and their time with me, is hurting them and will only ever hurt you in the long run Ms Delanoy…. You create misery in confrontation then use it to pretend you are a victim. ..Your parents are the only ones that buy and enable your behaviour…”

6. The applicant father admits sending other disparaging text messages in July 2017, in respect of the arrangements for time spent with the children being disrupted. This included one text message where the applicant father accused the respondent mother of unbelievable negligence, in taking sick children out in the cold to play sports, whilst asthmatic and on antibiotics.

7. In August 2017, the respondent mother advised the applicant father that Y had complained of a sore bottom. The applicant father’s concerns continued when the respondent mother kept asking whether or not, there was any blood in Y’s underwear. In September 2017, after what the applicant father describes as antagonistic text messages, he responded stating:

   “I was going to write more but will only end in conflict as we can’t speak… I personally think we need to see a counsellor to work on our communication moving forward.

8. In October 2017, an incident occurred when the applicant father attended the respondent mother’s home residence and found X outside on the road. Words were exchanged with the maternal grandfather of the children. Both the respondent mother and the applicant father, contacted Suburb J Police Station regarding the incident.

9. The applicant father admits contacting Family and Community Services (“FACS”), as he was concerned about the safety of the children and because:

   “Any respectful communication with Ms Delanoy was impossible”.

10. The applicant father proceeds to set out, in great detail, his version of events that led to Y being taken to H Children’s Hospital and being examined by the Child Protection Unit. The applicant father vehemently denies causing any injury to Y, either deliberately or accidentally. On 24 November 2017, the NSW Police attended the applicant father’s premises and told him that Y had been “tampered with”. The applicant father voluntarily attended Suburb J Police station and was interviewed under caution. The applicant father also voluntarily provided a DNA sample.

11. The applicant father states he was contacted in December 2017, by the lead detective and was advised that the case was being closed. The applicant father deposes that the detective said to him:

    “There’s no reason you can’t see the children and thank you again for respecting my request while we have been investigating”.

    Notwithstanding this, the respondent mother refused to allow the applicant father to see the children.

12. The applicant father commenced supervised time with the children at the Suburb J Community Welfare Centre on 30 January 2018. The applicant father spent further time with the children in early 2018, from 11:00am until 3:00pm, during which he organised a birthday party for X at his home. Members of his extended family attended, together with the husbands and children. E, the children’s older half-brother from a previous relationship of the mother, also attended.

13. The applicant father deposes that he has been seeing a psychologist since February 2018. In 2018, on the applicant father’s birthday, he deposes that the respondent mother sent him a text saying that she booked a space at the Suburb J Community Centre at 3:30pm, so that the kids could safely celebrate his birthday with him. The applicant father deposes that he replied saying he would:

    “See the children at home, with their grandmother, as they deserve.”

14. It is alleged that the respondent mother replied saying that:

    “They deserve to be safe. Y was injured whilst in the care of you and your mother. I’ll be taking them home.”

15. The applicant father admits sending a text message saying words to the effect of:

    “Lies and unaddressed mental health issues are what make them unsafe.”

16. Following attending a hearing before Judge Harman, the applicant father deposes that he attended counselling through N Counselling and completed the online parenting course “Up to Parents”. The applicant father further deposes that he started having counselling sessions with a member of staff at N Counselling.

17. Further details are shared in relation to difficulties that were experienced to time spent with the applicant father, in compliance with the orders made by Harman J. In August 2018, there was a dispute over a water bottle that X had not returned home to the applicant father’s residence. The respondent mother replied saying words to the effect that “it is broken” and there was a further disagreement over gifts that have been given to the children. It is alleged that the respondent mother replied that:

    “Anything the kids have here that has been gifted to them, will stay here.”

18. In August 2018, there was a dispute regarding school photographs. There was also a dispute over the attendance of the applicant father at school activities and sports training. In September 2018, there was a dispute regarding the need for make-up time, as a result of the children being ill. The respondent mother advised that she did not consent to any amendments or variations to the interim orders, unless otherwise agreed. The applicant father states that:

    “To me, these are the clear ranting of a troubled and spiteful mind and I’m concerned for my children’s mental well-being because of their mother’s unaddressed mental health conditions which were never addressed throughout our marriage.”

19. The applicant father states that the children are very musical and he encourages them, while they are with him, to both sing and play with the musical instruments that he has at home. The applicant father expresses the desire to spend significant amounts of time with the children and to have meaningful involvement within their lives. The applicant father is concerned of the effect on the children, with spending very little time with him. The applicant father believes that the respondent mother’s actions, in not allowing him to spend significant and meaningful time with the children, is having a detrimental effect on their well-being and on their relationship with him.

20. In the applicant father’s second affidavit, he deposes that he was unaware that for some time, the respondent mother had been taking the children to see psychologists in Suburb F, without his knowledge and consent, contrary to the July 2018 interim orders. The applicant father alleges that the respondent mother told the therapist that he did not want to be involved and did not want the kids going to therapy. This was incorrect.

21. In February 2019, there was a dispute between the parties about Y’s preschool. The applicant father alleges that the respondent mother put Y’s name on a waitlist, at the Suburb F kindergarten and O kindergarten, without his consent. The applicant father also alleges that the respondent mother arranged for medical treatment for X, in relation to bowel issues, again without his knowledge or consent.

22. The applicant father deposes that he has met with the father of E, the children’s half-brother and his partner Ms P. The applicant father states that they have become close and they share birthday parties together as a family and that the he visits E, when E is with his father. The applicant father denies the suggestion made by the respondent mother that he has washed his hands of E.

23. In March 2019, the applicant father alleges that the respondent mother stopped taking X and Y to music lessons, without consulting or notifying him, contrary to interim orders. The applicant father alleges that from November 2019 to July 2020, due to increasing difficulty for his sisters to supervise the children, due to their own work and family commitments, he missed approximately 60 days with the children. The applicant father alleges that the respondent mother formally refused, through her lawyers, to add his mother as a supervisor.

24. The applicant father states that he started seeing Ms Q in mid 2019. Ms Q was introduced to the children in December 2019 and attends the applicant father’s home on Wednesday’s and Saturday’s to spend time with the children.

25. At paragraph 78 of the applicant father’s second affidavit, he states that while communication with the respondent mother was still laboured and somewhat difficult, they had managed to make joint decisions in regards to the following:

    ·X’s school sports program in early 2020;

    ·X’s participation in after-school sports each Wednesday;

    ·Y’s placement attendance at Suburb F Kindergarten from mid-2019 through 2020;

    ·X’s participation in Saturday sports program, and

    ·Y’s future attendance at R School as of 2021.

26. The applicant father is of the view, that if he and the respondent mother could be more transparent about details and information, they could easily avoid future problems in the future.

27. The applicant father was extensively cross-examined by Counsel for the respondent mother, over approximately one and a half days. This included cross-examination in relation to the electronically recorded interview that took place with NSW Police in late 2017. The applicant father agreed that before separating, the respondent mother primarily cared for the children. This continued post-separation. The applicant father agreed that the arrangements that have been put in place, following the mediation in March 2017, were difficult. The applicant father agreed that the relationship between himself and the respondent mother deteriorated in 2017, but he disagreed that it remained as bad, as it had ever been.

1. The applicant father was not sure whether or not it was correct to say that he did not take any responsibility, for the breakdown of the relationship. The applicant father agreed that he had called the respondent mother a dysfunctional cow. The applicant father said that he was angry at the respondent mother, who liked to provoke conflict. The applicant father thought the respondent mother was dysfunctional, but not a cow and did regret saying it. The applicant father agreed that he had concerns for the respondent mother’s mental health. In relation to text messages, the applicant father conceded that he reacted to what was contained before him. The applicant father agreed that he had called the respondent mother an idiot and a moron.

2. The applicant father agreed that his approach in respect of communication via text messages, had not worked because the respondent mother was unreasonable and combative. The applicant father was asked if he ever tried to change the way he did business with the respondent mother and he replied:

   “Yes, I limit my conversation and do not speak to her as she has no control over her temper”.

3. The applicant father agreed that the injury to Y remains an un-resolved mystery. The applicant father felt that Y’s injury was possibly caused when she was at the playground, prior to spending time with him. The applicant father agreed that the respondent mother believes the injury occurred whilst Y was in his care.

4. The applicant father agreed that the respondent mother was directed initially by FACS, not to allow the children to spend time with him until he was questioned extensively. The applicant father stated that he was in complete shock at the suggestion that Y had been sexually assaulted. It was suggested to the applicant father that he had given different versions of events, as to what happened on the day before and the day of, either being taken to the hospital and the injury been diagnosed.

5. It was put to the applicant father that his application to commence immediate unsupervised overnight time, was not an appropriate application. The applicant father stated that it had never been suggested to him that the stated approach, would have not have been beneficial.  Had it been put to the applicant father, he would have considered an alternate approach and believed that a 50/50 split is what the children need and deserve.

6. In relation to the applicant father’s message that the respondent mother had unaddressed mental health issues, he explained that he based this on his own experiences, along with her first husband’s experiences. The applicant father agreed that the issue regarding the water bottle became an argument and following that, communication was abandoned as:

   “Ms Delanoy does not communicate in a reasonable fashion”.

7. It was put to the applicant father that the family consultant, Ms D, said the parents have a toxic relationship and whether or not he agreed with this. The applicant father’s response was yes. The applicant father was asked if it is appropriate to act in a disrespectful way towards the respondent mother and he replied that if it was justified, then it was okay.

8. The applicant father agreed that he had accused the respondent mother of a disgraceful act in a communication and that it was not a helpful way to communicate with her. The applicant father agreed that in the interview he had with the police, he told them that the respondent mother was a sociopath and that this was because he believes she was. The applicant father agreed that his attendance at X’s school was technically in breach of the interim orders, however, he responded that if he was there in a capacity that allowed him to be there, such as assisting in a reading program, it would not be a breach.

9. During cross-examination by Counsel for the ICL, the applicant father agreed that the children were physically distressed when arguments took place in front of them. In relation to not communicating with the respondent mother and the suggestion that this was not child focused, he stated he found it difficult, as the respondent mother was passive-aggressive. The applicant father was not sure what he could do without more co-operation. The applicant father stated he is trying not to get as anxious and tries to be more measured in his responses to the respondent mother. In relation to the applicant father calling the respondent mother disgraceful, he replied that it was a long time ago.

10. The applicant father was taken to the family report and the recommendations for a staged approach to resuming unsupervised time with the children. The applicant father said he was happy to have a staged approach, but would still like to have the children fifty percent of the time. The applicant father was asked if he was wanting it now, or when the children were ready for secondary school and he replied with no, he simply wants supervision to stop and overnight access to start.

11. The applicant father was asked whether or not he thought that an increase in time should firstly be dependent upon the relationship with the respondent mother improving and he replied with no, as this has been dragged out for three years since the initial reason for supervision had ceased and the respondent mother has been combative since.

12. The applicant father was asked questions in relation to his negativity and hostility, in respect of the respondent mother and how he tried to insulate the children from that. The applicant father stated he was always positive about the respondent mother with the children.

13. As all the legal representatives had not viewed the electronically recorded interview of the father by police, cross-examination of the applicant father was suspended until this took place. The applicant father agreed that he was upset by the fact that police had suspicions, in relation to the injury sustained to Y and that he was confused and worried. The applicant father agreed that the injury would have been distressing for the respondent mother. It was again put to the applicant father that he had a different version of events, as to what took place on that day and the day before. The applicant father said it was difficult to recall with certainty what had happened, given effluxion of time and agreed that he had never entertained the thought that the respondent mother had deliberately injured Y. The applicant father agreed that he entertained the thought that Y was interfered with and that it is possible she was abused.

Evidence of Ms M

1. Ms M is the mother of the applicant father. Ms M’s evidence is contained in an affidavit dated 12 July 2018. Following the separation of the applicant father and respondent mother, Ms M would initially visit her son’s home on a Tuesday morning and leave on Thursday morning. Ms M’s assistance was to support her son as a single parent. Ms M was present at the applicant’s house on 15 November 2017 and noticed Y was crying on the toilet when she urinated. Ms M saw the applicant father put some cream on Y’s genital area. Ms M is aware that the applicant father sent a text message to the respondent mother that day, regarding Y’s issues with urinating. Ms M was present at the applicant father’s home on 16 November 2017 and saw nothing unusual. As a result of the interim orders made in November 2019, Ms M was added as a supervisor for time spent by the applicant father, with the children.

2. Ms M impressed as a person who was telling the truth and was only concerned for the welfare of her grandchildren. The Court formed the view that if Ms M had witnessed anything inappropriate, as regards to the applicant father and Y, she would have taken action and spoken up about it.

Evidence of Ms Q

1. Ms Q is the current partner of the applicant father. Ms Q has been seeing the applicant father since mid 2019. Ms Q is aware of his current situation regarding the children and was introduced to them in January 2020. Since then, Ms Q spends time with the children on Wednesday afternoons and Saturdays. Ms Q believes she has a good relationship with the children and is supporting the applicant father with his time with the children.

2. Ms Q impressed as an honest and forthright witness, who would be a calming influence on the applicant father. Ms Q would be a positive influence on the children and be a female presence for Y, when she is spending time with the applicant father.

Evidence of Ms K

1. Ms K’s evidence is contained in two affidavits, the first dated 27 September 2018 and the second dated 3 August 2020. Ms K is the sister of the applicant father. Since 16 July 2018, Ms K has been a supervisor, for time spent by the children with the applicant father, as an alternative to him spending time with the children at a community centre.

2. Ms K was present on 6 August 2018, when the respondent mother refused to allow Y to go with the applicant father after school until 3.30pm, which was the time she incorrectly believed was the time set out in Court orders. Ms K deposes that both the children have asked for sleepovers with the applicant father. Ms K has been present when there have been disagreements between the parties’, which have occurred in front of the children.

3. Ms K deposes that there is a strong and loving relationship between both of the children and the applicant father. Ms K deposes that both of the children are excited and pleased to spend time with the applicant father. In Ms K’s opinion, the children are well looked after, when spending time with the applicant father.

4. Ms K impressed as an honest and truthful witness, who had given up considerable time to assist her brother as a supervisor, to allow him to spend time with the children. Ms K impressed as a person who would have spoken up, had she witnessed anything inappropriate, between the applicant father and the children.

The Respondent Mother’s Case

Evidence of the Respondent Mother

1. The respondent mother’s evidence is set out in two affidavits dated 5 October 2018 (“first affidavit”) and 4 August 2020 (“second affidavit”). Following the parties relationship commencing on the birth of the children, the respondent mother stated that she predominantly attended to the family’s daily needs which included the house work and taking care of the children.

2. Following the parties separation in October 2016, the children spent time with the applicant father sporadically. This was due to the applicant father’s varied availability, due to his work commitments as an artist. The respondent mother alleges that on or about January 2017, the applicant father physically pushed her, as he attempted to move Y out of her car, when the applicant father was due to spend time with the children, as had been informally agreed.

3. In February 2017, there was an incident when the applicant father attended the respondent mother’s residents unexpectedly. When the respondent mother asked the applicant father to leave, he allegedly replied:

   “I’ll teach you, I’ll show you. You’ll learn to respect me”.

4. The respondent mother alleges that after the children had spent time with the applicant father, they would be unsettled and exhibited behaviour that was unusual. Further, disagreements took place during the year of 2017. In August 2017, X returned home from visiting the applicant father with a bruise on his left forearm, which appeared to be in the shape of large fingers. The respondent mother alleges that there were difficulties with the children toileting after spending time with the applicant father, including them complaining of sore bottoms.

5. On 16 November 2017, Y spent time with the applicant father from 9:30am until 1:00pm. Following Y’s return at about 2:40pm, Y woke-up crying loudly. Y complained of having a sore bottom and cried in pain when she urinated. As a result, the respondent mother took Y to the emergency department at H Children’s Hospital, where she was examined by a doctor from the Child Protection Unit.

6. The respondent mother alleges that she was advised not to allow the children to spend time their father and did not do so until after 16 November 2017. Following the commencement of proceedings, consent orders were made for the children to spend time with the applicant father, supervised by their maternal aunt, Ms K. The respondent mother describes a dispute that occurred between the parties in September 2017, over a drink bottle belonging to X.

7. Contained in the respondent mother’s second affidavit, she gives examples of inappropriate language used by the applicant father in front of the children and others. This included an incident in January 2019, in relation to time spent with the children, where the applicant father said the following:

   “No, I can’t because of you. It’s your fault I’m not having them”.

8. The respondent mother alleges that she continues to encounter significant difficulties in co-parenting with the applicant father, as he is often accusatory and nasty and refused to provide his agreement to the children participating in activities, which they wished to enrol in.

9. The respondent mother alleges in January 2020, a dispute occurred in relation to a change over. The respondent mother alleges she became extremely uncomfortable with the applicant father in her personal space and politely asked him to remove himself from the car, during which he replied to her:

   “You know what Ms Delanoy, don’t address me. Don’t speak to me at all”.

10. In cross-examination by Counsel for the applicant father, it was put to the respondent mother that she had no evidential basis for accusing the applicant father of interfering with her iPhone. The respondent mother also denied that she had a positive belief that Y was sexually assaulted in November 2017. The respondent mother stated that she was prepared to accept that Y could have accidentally injured herself, such as to sustain the injury noted by the Child Protection Unit. Notwithstanding that the respondent mother still had concerns as to Y’s safety.

11. The respondent mother agreed that she had provided the child psychologist, Dr S, with a picture drawn by Y, in which she described a person as having a “giant willy’. The respondent mother denied having made a report to FACS and did not know if it was Dr S who had made the report.

12. The respondent mother denied that she had made trivial reports to NSW Police, stating that she did not believe the incidents were trivial. The respondent mother agreed that X had a history of rectal bleeding from June 2017. The respondent mother denied blaming the applicant father for this.

13. The respondent mother agreed that she and the applicant father do not communicate during the changeovers, as this lessens the potential for conflict. The respondent mother agreed that any arrangements that did not require any interaction during changeover, would be helpful. The respondent mother agreed that if the applicant father had received a message that he had sexually assaulted Y, that it would have been distressing.

14. The respondent mother was asked what she had done to contribute to the toxic relationship between herself and the applicant father. The respondent mother replied:

    “It takes two, I have tried really hard not to trigger or anger him.”

15. The respondent mother was asked if she was prepared to say that the applicant father did not sexually assault Y. The respondent mother’s response was:

    “I don’t know what happened.”

16. The respondent mother was asked if she was prepared to say that the applicant father did not intentionally injure Y. The respondent mother’s response again was:

    “I don’t know.”

17. The respondent mother was prepared to concede that the applicant father did have some good qualities and that when the children are with him, he gives them his time and attention, engages in things that they enjoy and they have fun with him. When asked what the purpose was for delaying unsupervised time till the end of 2021, the respondent mother’s response was that things were working well. Y was starting school next year and this would be year of some change. The continuation of supervision would remove one less variable in the children’s lives. The respondent mother also felt that the children will be a little bit older and they would be able to assert themselves and communicate better.

18. The respondent mother agreed that notwithstanding the family consultant’s recommendation, neither child had undertaken a paediatric review. The respondent mother agreed that she had changed doctors from Dr C to Dr B, as she felt Dr C’s attitude was dismissive. This was done without consultation with the applicant father. The respondent mother agreed that it was important that both parties be involved in medical issues, so that a full history could be given in relation to the children. The respondent mother also agreed she had taken the children to a group of psychologists  named ‘U Psychology’ without the applicant father’s knowledge and consent and stopped taking them in October 2019, again without his knowledge and consent.

19. The respondent mother conceded that she was aware that under the interim orders, both she and the applicant father were to be involved in all medical matters. The respondent mother also agreed that she had commenced Y in extracurricular lessons without the applicant father’s permission and knowledge. The respondent mother agreed that the applicant father had spent time with E, her eldest child, when E was spending time with his father.

20. In terms of what was needed to improve in order for the parties to be able to co-parent, the respondent mother replied that the applicant father needed to tone down his communication and not refer to her as having mental health issues. The respondent mother denied she was placing obstacles in the way of the applicant father spending more time with the children and that she had taken every opportunity to hinder and frustrate his time.

21. In cross-examination by Counsel for the ICL, the respondent mother denied that she had been on the lookout for things wrong with Y or X, during the period August to November 2017. The respondent mother said that she was not on the lookout but became aware of incidents that caused concern. The respondent mother denied that she had gone straight to the possibility that X had been interfered with, due to blood in his stool, rather than having a medical condition. The respondent mother was asked if she had told the applicant father of her concerns and she replied no.

22. When asked why he respondent mother did not seek information from the applicant father, as to whether or not X had been interfered with, her response was that she had issues communicating with him and that there had been long lasting poor communication between them and that she felt scared to raise it. The respondent mother did not want the applicant father to think that she was blaming him. The respondent mother agreed that it would have been beneficial if she had raised her concerns with the applicant father.

23. The respondent mother was asked if she agreed that communication with the applicant father had decreased after his time with the children was suspended. The respondent mother disagreed, stating that there had been many examples of difficult communication between them and did not think the communication was any worse or better, before or after Y’s injuries, saying it was constantly horrendous. The respondent mother agreed that it was important for both parties to communicate effectively and that she should have taken the children to be seen by a paediatrician. The respondent mother denied that she operated from a basis of suspicion.

24. It was put to the respondent mother that she was operating out of a sense of fear and that this was causing her to have difficulties in relating to the applicant father. The respondent mother stated she accepted she would never know what happened with Y. The respondent mother stated she was seeing a psychologist and the psychologist thought that her relationship with the applicant father was highly abusive. The therapy had created an awareness that the respondent mother did not hate the applicant father and denied that she was continuing to be concerned, that something would happen to the children, if they spent unsupervised time with their father.

1. In response to a proposal for supervision to continue until 2021, the respondent mother’s said that supervision was working. If the respondent mother was concerned about Y, she was asked why it was not possible for X to have unsupervised time. The respondent mother replied that she was not sure. The respondent mother was then asked if she was holding onto some fears and she responded that she had reservations. The respondent mother’s concerns, in relation to X spending time with the applicant father, were in the context of Y’s injury. It was put to the respondent mother that it was reported that she had made comments that she would never allow Y to have a sleepover with her father. The respondent mother denied making that statement, stating that the children would benefit from more time with their father, as long as it was safe.

Evidence of Ms V

1. Ms V is the mother of the respondent mother and the maternal grandmother of the children. Ms V’s evidence is contained in an affidavit sworn on 3 October 2018. Following the party’s separation, the respondent mother and the children lived with the maternal grandparents at their home in Suburb G. Ms V has provided financial support to the respondent mother and assisted with the care of the children. Ms V deposes that the children would display difficult behaviour, upon return from spending time with the applicant father.

2. During cross-examination, the Court formed the view that Ms V was very supportive of her daughter, as regards to her daughter’s fears that the applicant father had interfered with Y. Ms V denied ever speaking to the respondent mother about her view, that the children should not have sleepovers with the applicant father, especially Y. While Ms V said she was supportive of the children having a relationship with their father of some sort, she could not indicate what that relationship might involve.

3. Ms V said it was a matter for the Court to determine how much time and under what conditions that took place. Ms V stated that supervision was needed so that the respondent mother would know the children were safe. Ms V agreed that the children were very articulate and had a good time when they were with their father. The Court formed the view that Ms V was avoiding answering questions and had very firm views, which aligned with her daughter’s views, that the applicant father should only have supervised time with the children.

4. The Court formed the view that Ms V has been an enabler to the dispute between the parties and had reinforced the respondent mother’s decision making processes. The Court was informed that Ms V had financed the legal costs associated with the proceedings for the respondent mother, at significant detriment to Ms V’s own financial position. This accorded with the Court’s view that the Ms V was very much aligned with and reinforced the respondent mother’s views.

Evidence of Mr W

1. Mr W is the father of the respondent mother and the maternal grandfather of the children. In mid-2017, Mr W asked the applicant father to leave his home at Suburb G. In late 2017, Mr W had another disagreement with the applicant father when the children were outside his home on the street. As result of the incident, the respondent mother telephoned Suburb J Police station.

2. Mr W was home on 16 November 2017, after the children were returned from spending time with the applicant father. Mr W recalls Y crying out in pain and complaining that her bottom was sore. Mr W is aware that the respondent mother took Y to H Children’s Hospital that afternoon.

Evidence of the Family Consultant

1. Pursuant to orders made on 16 July 2018, a single expert family report was prepared by Ms D. That report is dated 22 November 2018 and was 21 months old, as at the date of the final hearing. For the purposes of the report, Ms D interviewed both the applicant father and respondent mother, observed both children with each of their parents separately and also interviewed Ms K and Ms M.

2. Following their separation, Ms D noted that the children lived with the respondent mother and spent time with the applicant father on a regular, but ad hoc basis. In March 2017, following a mediation, it was agreed that X would spend time with his father in week one, from 11:00am on Sunday, until 9:30am on Wednesday. In week two, from 9:30am on Monday until 9:30am on Tuesday and 9:30am on Wednesday until 9:30am Friday. This equated to six nights per fortnight.

3. The agreement also specified that Y would spend time with her father in week one Sunday from 11:00am until 4:00pm and on Mondays and Tuesdays from 9:30am to 12:30pm and in week two, on Monday Wednesday and Thursday from 9:30am until 12:30pm. These arrangements continued until the incident involving Y, in November 2017.

4. The applicant father did not spend any time with the children from the date of the incident in 2017, until the commencement of the school year in 2018. The applicant father in mid-December 2017, formally requested, through his legal representatives, that time with the children recommence, following the closure of the JIRT investigation, but this was declined.

5. Following interim orders in July 2018, the applicant father spent supervised time with the children each Monday and Thursday after school until 6.30pm and each Saturday from 10.00am until 2.00pm. The applicant father told Ms D that the respondent mother is routinely obstructive of him spending time with the children and inflexible as regards to arrangements, except when it suits her. The respondent mother denies these allegations. Ms D noted that the respondent mother was unable to articulate a clear position on either final or interim orders and would prefer some form of supervision to remain in place.

6. Ms D noted that the applicant father alleged the respondent mother was a “very angry person” during the relationship. The respondent mother emphatically denies this. Neither party has alleged the other, as having a diagnosed mental health issue, however, the applicant father made numerous references to the respondent mother being an “unstable person”, as a result of what he alleges to be a “poisonous and co-dependent relationship” with the maternal grandmother.

7. Ms D noted that the primary risk in this matter pertains to whether or not Y is at risk in the care of her father, or possibly someone known to the applicant father. The applicant father alleges that the facts of the matter are such that Y could potentially be at risk in either his care or the respondent mother’s care.

8. Ms D noted that shortly after the report interviews were conducted in the matter, FACS received further two reports indicating X and Y, were at risk of serious harm. These reports said, inter-alia that the children had demonstrated some sexualised play; X had requested his need to be assisted with toileting and that he was wanting to be breastfed by his mother; both children were having nightmares and Y had drawn a picture of what she said was a “big willy”. Ms D noted that FACS determined that the reports were not substantiated, in that both parents, described the reported sexualised play and behaviours “in a way that appeared they were playful and innocent and age-appropriate”.

9. Another issue in the matter was firstly, whether or not the requirement for supervision of the applicant father’s time with the children, should be dispensed with and secondly, how much time the children should spend with their father and if an equal time arrangement would be in their best interests.

10. The applicant father expressed concern that the respondent mother had been “extremely controlling” of his time with the children and would do anything to limit and restrict his time. Whilst the applicant father stopped short of accusing the respondent mother of orchestrating what happened to Y, he nevertheless was strident in his view that the injury provided the respondent mother with an excuse, in in order to marginalise him from the children.

11. The respondent mother expressed concerns that something happened to Y while she was in the care of the applicant father, although she cannot be certain who the perpetrator was, or how the injury might have occurred. The respondent mother denied that she had acted unreasonably in suspending the children’s time with their father, between November 2007 and July 2018 and presented instead, the view that she acted proactively and protectively and was advised to do so by professionals. Ms D noted that the party’s positions in respect of what happened to Y, whilst understandable, were also irreconcilable, in regards to the future parenting arrangements of the children.

12. When the children were with their father, they were spontaneously and genuinely joyful and excited, characterised by complete absence of fear anxiety or wariness. The applicant father’s views about the respondent mother, were uniformly and unremittingly negative. In contrast, the respondent mother presented as an articulate, thoughtful and reflective woman, measured and calm in her manner and in direct contrast to how the applicant father described her.

13. The applicant father stated that it was in the children’s best interest to spend at least half of the time with him and there is absolutely no need for this time to be supervised. The applicant father did not think there needed to be any lead time before a new arrangement because of how much the children love him and how close they are to him. The applicant father stated that there would need to be orders in place, about how he and the respondent mother communicated in the future, because they are unable to speak to each other.

14. In relation to the relationship between E and the applicant father, the respondent mother stated that it saddened her that the applicant father:

    “He has now completely wiped his hands of E”.

    Ms D noted that this statement is not borne out by material attached to both parties’ affidavits, in which the applicant father constantly asked to spend time with E.

15. In terms of supervised access taking place following the interim orders made in July 2018, Ms D noted that the respondent mother expressed concerns that Ms K, is dismissive of the potential risks to the children and is not closely supervising the applicant father’s time with the children. The respondent mother denied that there was anything controlling or anger, in respect of her communication with the applicant father. In terms of any future parenting proposals, Ms D noted that the respondent mother said:

    “How can I offer unsupervised time when I question their safety?”

16. In Ms D’s interview with the paternal grandmother, Ms M, she noted that Ms M was always adamant that she would have noticed if there was anything “sinister” going on with Y. Had Ms M seen anything that was not okay, she would have spoken up.

17. In Ms D’s evaluation, she noted that the parenting agreement made by the parties in March 2017, was a curious one. While it separated the children’s time with each of their parents into short blocks, it also made for multiple transitions. Both parties admitted that Y struggled, at times, to separate from the other.

18. While the parties struggled to communicate respectfully with each other in 2017, when the respondent mother declined to allow the children to spend time with their father after January 2018 and the JIRT investigation concluded, with no clear perpetrator identified, the co-parenting relationship deteriorated remarkably and could now be described as toxic. Ms D noted that the applicant father was very frustrated by what he saw of the respondent mother’s complete control over his access to the children and in the circumstances, which in his view, were not warranted.

19. The applicant father’s text messages to the respondent mother over the early part of 2018, were described by Ms D as lengthy, angry and hectoring, bordering on intimidating. At times the applicant father was sneeringly sarcastic and pejorative in his comments. The respondent mother deposed that when the applicant father spent time with the children, he would not filter or otherwise put any limitations of the things he said to the respondent mother, in front of the children.

20. Ms D noted that an analysis of the material before the Court, indicates that the respondent mother’s approach to the children spending time with their father, in the period from January 2018 until July 2018, was “highly conservative”. For example, the respondent mother declined to allow the children to spend time at a paternal extended family function, when the risk to the children could be considered very low. On one occasion, the respondent mother refused to allow the children to be alone with their father in a car. By contrast, the respondent mother stated she was always prepared for the applicant father to spend time with the children, however, this needed to be in a “safe” supervised environment and prior to July 2018, it seems apparent that this did not include in the company of paternal family members.

21. The respondent mother expressed concerns as to whether or not the supervision agreed to in July 2018, is as strict as she believes it needs it to be. Ms D described the respondent mother’s approach as highly conservative, rigid and mostly uncompromising. Ms D was of the view that the restrictive parenting behaviour of the respondent mother is fear-based, which was rational under the circumstances, but there was also a strong element of deliberate and maladaptive control, in that she used the circumstances of November 2017, for leverage, that she previously did not have with the applicant father.

22. This is why the applicant father is so angry and frustrated about the respondent mother’s sudden and largely immovable implacability. In Ms D’s view, both parties have played their part in engaging behaviours that are not child focused, as they have struggled to assert control over each other. Ms D expressed concerns that the respondent mother is hyper vigilant, in relation to behaviour that may be indicative of sexual abuse.

23. Ms D opined that both the applicant father and the respondent mother had put forward parenting proposals that were not in the children’s best interests. The respondent mother’s initial proposal, for the applicant father’s time with the children to be professionally supervised indefinitely, would see his time with the children reduced to as little as two hours per fortnight or (if you pay privately, which is very expensive) several hours per week, at best.

24. While this would keep the children safe from physical and sexual harm, it will be psychologically harmful for the children to have a diminished relationship with someone who, in Ms D’s view, is clearly so important to them. The respondent mother was not able to articulate what, if anything, would reassure her that the children would be safe in their father’s care. In fact, the respondent mother’s view was restricted to the point that since July 2018, she no longer considers the paternal extended family to be vigilant enough to provide supervision of the applicant father’s visits.

25. The applicant father’s proposal for both children to live with him, on an equal time basis, appears to be more about reasserting control of the parental dynamic. Ms D was of the view that it was eminently possible that the children could still enjoy a strong and positive relationship with their father, without this happening on a full-time basis.

26. Ms D recommended that the parties share equal parental responsibility for the children and that they should live with their mother. For the first three months, time spent with the applicant father be the same as previously ordered, but unsupervised. Thereafter, for a period of nine months, each alternative weekend from 10:00am on Saturday until 4:00pm on Sunday and each Wednesday from after school/childcare until 7:00pm. Thereafter, for a period of six months, each alternative weekend from after childcare/school on Friday until 4:0pm on Sunday and each Wednesday, from after school/childcare until 7:00pm.

27. It was recommended that in July 2020 (noting the report is dated July 2018) or shortly thereafter, the parties’ attend mediation to modify the arrangement, with the aim that by the end of 2021, when Y will be six years old, the children spend five nights per fortnight with their father and that any increase in nights occur incrementally, in a developmentally appropriate manner and the parties agree to take professional advice about what this would look like for the children.

28. Ms D confirmed that she had read the parties’ most recent affidavits. Ms D stated that the respondent mother’s proposal to limit time spent by the applicant father, to supervised time till the end of 2021, was very conservative. Ms D noted that Y was to start school in 2021 and that as a result, it was important to have something in place before she started school, so that additional changes could be put in place in the middle of the school year. If it was assumed that Y was articulate, verbal and able to communicate her thoughts and feelings, going to school would be another form of oversight of her behaviour. It was put to Ms D that the respondent mother said that the current arrangements were working well and that there was no need for change. Ms D replied that she felt curious as why it was working well, as it is quite restrictive and does not allow for the parties to see if something else might work better in the future.

29. Ms D noted that there were enormous trust issues between the parties. Whilst the respondent mother had a realistic basis for fears at the beginning, unless the applicant father was given a chance, there could be no gains. Ms D stated that the respondent mother needs to take a leap of faith and mind shift, for the children to go forward. Ms D stated that it would be of benefit, for both parties to attend a single family therapist, who has a detailed understanding of these sort of matters, so that the issues between the parties could be addressed. Ms D commented that the respondent mother seemed to be viewing all the issues that arose during that particular period, through the lens of what happened to Y. This was a view that the respondent mother found very hard to let go of.

30. Noting that Ms D’s recommendations were made some time ago, Ms D was asked what she would now recommend. Ms D stated that time spent with the applicant father should be moved to unsupervised time immediately, or some greater period of time. One needed to be cautious due to the respondent mother’s anxiety and the possibility of transference of the same onto the children, but is also important not to be too conservative and to send a wrong message to the children.

31. Ms D was concerned that the parties have not shifted from the positions of when she saw them two years ago and that the level of antipathy was such that both parties needed help, as to how they view each other. How they view each other is important, as it will affect the children and it needed to change.

32. It was put to Ms D by Counsel for the applicant, that an option was for the children to spend equal time with each of the parents, in effect ‘parallel parenting’, if the parents could not communicate in an effective way. Ms D stated that one of the things that makes equal time workable, is if the parents get on well. This was not the situation in the current matter. Further, the children are very young and they would struggle with a 50/50 split. Whilst parallel parenting is an option, it might work in this case as an endpoint. Ms D said it is a depressing scenario however, with the children moving between, in effect, enemy states. Ms D felt that the children were at the moment, a long way from equal time. A better option at this point of time would be, after an introductory period, five nights per fortnight, consisting of Friday afternoon to Monday morning, each alternative weekend and overnight on Wednesday night each week.

33. In relation to the issue of sole or joint parental responsibility, Ms D was of the view that it was always better if the parents exercised joint parental responsibility. It would give them a vested interest in learning how to work out how to communicate with the each other and make joint decisions.

1. Based on the material contained within the Family Report, together with the evidence of both parents, the maternal and paternal grandmothers, and the paternal aunt, the Court is satisfied that each of the children enjoy a strong and loving relationship with each parent. Further, the children have been exposed to the wider family of the applicant father and enjoy a strong relationship with their paternal grandmother and aunts.

2. The Court is also satisfied that the children enjoy a strong relationship with their maternal grandparents. The involvement of the paternal extended family in the children’s lives will act as a safeguard, particularly in relation to Y as she grows older and matures. The Court is also satisfied that the applicant father’s new partner, Ms Q, has formed a good relationship with the children, which will assist the applicant father in the future in maintaining a positive relationship with each of the children. Ms Q will also act as a reassurance for the respondent mother, as regards to Y.

Section 60CC(3)(c) of the Act: The extent to which each of the children’s parents has taken, or failed to take the opportunity to participate in making decisions about long-term issues, in relation to the children and spending time with the children and communicating with the children

1. The Court is satisfied that the applicant father in particular, has sought every opportunity to participate in making decisions about the long-term future of the children. The applicant father has been adamant in his need and desire to spend as much time as he can with the children and to communicate with them at every opportunity. The applicant father’s capacity to do so has been frustrated by a very conservative and at times, obstructive approach by the respondent mother, with whom the children reside on a day-to-day basis. The orders proposed by the Court will ensure that the applicant father has a substantial and meaningful relationship with the children, through the extension of time spent with them to overnight unsupervised time. In addition, the applicant father will be able to spend blocks of time with the children, during the school holidays.

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

1. It was submitted by Counsel for the respondent mother, that the applicant father’s declared child-support income of $35,696.00 does not add up, given he pays rent of $650.00 per week. It is not alleged however that the applicant father has failed to make relevant assessed child support payments. The Court is not in a position to make any adverse inferences, in terms of any obligation on the applicant father’s part, to maintain child support payments and it does not do so.

Section 60CC(3)(d) of the Act: The likely effect of any changes in the child circumstances, including the likely effect on the child of any separation from either of his parents or any other child or other person, with whom they have been living

1. The children currently reside with the respondent mother and spend time with the applicant father. This will not change under the orders proposed by the Court. The only thing that will change, is that the amount of time will increase incrementally, to include overnight time on each alternative weekend and overnight time each alternate Wednesday. The children will continue to reside with their older half-brother, E and their mother.

2. The Court proposes that the weekend time spent with applicant father will be on the same weekend as their older half-brother, E, spends with his father. This will ensure that the children are not separated. The Court notes that the father is keen, whenever possible, for the children to be able to spend joint time with their older half-brother and his father, when spending time with the applicant father. The Court encourages this to take place. The Court is satisfied, based on the strong relationship exhibited by the children, towards their father, as outlined by Ms D in her report and the incremental nature of the Court orders, in relation to time spent with the applicant father, that the children will not experience significant difficulties in spending time away from their mother, including overnight time and eventually each alternative weekend.

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

1. Given the parties reside reasonably close to each other and there have been no difficulties with supervised time with the applicant father occurring, the Court is satisfied that the proposed arrangements will not cause any practical difficulties or additional expense to the parents. The proposed orders will increase the amount of direct time spent with the applicant father, which the Court is satisfied is in the best interests of the children.

Section 60CC(3)(f) of the Act: The capacity of each of the children’s parents and any other person to provide for the needs of the child including emotional and intellectual needs

1. The Court has considerable concerns over the capacity of both parents to adopt a child focused approach with each other, to ensure the best interests of the children. The orders that have been adopted, seek to minimise any points of conflict between the parents, by granting sole parental responsibility in relation to medical, education and religion matters to the respondent mother and as far as possible, limiting changeover to a circumstances to where the parties will not need to interact with each other.

2. The Court also proposes to make orders consistent with those proposed by the ICL, that both parents engage with UNIFAM service ‘Keeping Contact’, to assist the parties in establishing guidelines for communication with each other, develop strategies for resolving conflicts and to provide tools to enhance their co-parenting skills.

3. The Court has been advised this service is available at little or no cost to the parents. It is to be hoped that with the completion of Court proceedings, each parent will be able to focus on the best interests of the children, as compared to promoting their own agendas in relation to the other parent.

Section 60CC(3)(g) of the Act: The maturity, sex lifestyle and background of each of the children’s parents and any other characteristics of the child that the court thinks are relevant

1. The Court notes the applicant father’s artistic occupation and the fact that he is keen to ensure that his children have music as part of their lives. The Court notes the applicant father’s capacity to vary his work to suit his parental obligations, in terms of being available when the children are to spend time with him. The Court is not satisfied there are any other matters that are relevant under this subsection.

Section 60CC(3)(h) of the Act: Aboriginal or Torres Strait Background Considerations

1. The Court notes that the children are not from an Aboriginal or Torres Strait Islander background.

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

1. The Court is of the view that each of the parents has behaved in a manner which indicates that they have prioritised their needs, over those of the children. The applicant father has been inappropriate in his communication with the respondent mother, which has exacerbated the already difficult relationship between them. The respondent mother has been rigid and inflexible in her need to promote the requirement to protect the children from the risk of being interfered with, in an inappropriate way, whilst with the applicant father. This desire and accompanying anxiety, to protect the children, has seen the respondent mother adopt an unreasonable attitude, in relation to the ongoing requirement of supervision of time spent with the applicant father. Both parents need to adopt a child focused approach and put behind them, the difficulties that have resulted in entrenched behaviour by both parents, to the detriment of the children.

2. It is for this reason, the Court has ordered both parents and the children participate in therapy, designed to improve their communication and allow for the greatest extent possible, joint decision-making given that the orders proposed require the respondent mother to consult with the applicant father and take account of his wishes, prior to making any decision. Whilst it will be ultimately the respondent mother’s decision, the more she is seen to be taking account of the applicant father’s wishes and is able to accommodate them, the greater the likelihood the current distrust and conflict between the parents can be diminished.

Section 60CC(3)(j) and (k) of the Act: Any family violence involving a child or members of the child’s family

1. The Court notes it has not been asked to make any finding in respect of any issue of family violence between the parents or any other person. The Court has not been advised of any apprehended domestic violence orders that are in place, between the parents or any other person. The Court notes that the JIRT investigation into the injury suffered by Y, did not result in any criminal charges being laid, or any action being taken by FACS either as a result of the injury, or subsequently as a result of further reports.

Section 60CC(3)(l) of the Act: whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children

1. The Court has carefully considered the various proposals of the parties, in relation to what parenting orders should be made. Consideration has been given to the views of the Family Consultant and the ICL. Given the high level of conflict between the parties and the entrenched behaviours exhibited by each of the parents, the Court is satisfied that the decision to give sole parental responsibility in relation to education, medical and religion issues to the respondent mother will provide a circuit breaker to the ongoing conflict between the parties.

2. The Court is satisfied that an order for joint parental responsibility would very likely lead to further disputation between the parties and the likelihood of further litigation. The prescriptive scaffolding that has been erected around the parties, by the very detailed orders ordered by the Court, should assist in diminishing the potential for conflict between them. This includes limiting as far as possible contact between the parties at changeover and providing a mechanism for communication between the parties, that avoids face-to-face interchanges.

Other matters

1. The Court has considered the proposed order of the ICL that the parties each pay an amount of $10,062.75 for the ICL’s costs, which includes an unpaid contribution of $1,650.00. Costs payable by parties are governed by s 117 of the Act and in particular s 117(3) and s 117(4) of the Act.

2. The Court has taken account of the matters contained in s 117(2) of the Act, including the limited financial circumstances of both parties. The respondent mother is currently on Centrelink benefits. The respondent mother’s legal costs have been funded by her mother. The applicant father indicates that he has an income of $37,000.00 per annum, however this has been affected severely as a result of the pandemic health restrictions.

3. The Court is satisfied, pursuant to s 117(4)(b) of the Act, that both parents would suffer financial hardship if ordered to pay the full costs claimed by the ICL. The Court is of the view however, that it is appropriate for the parents to pay some amount towards the ICL costs. This is in recognition of the fact that the parents have each adopted a position that has not been amenable to settlement, by other than a five day hearing. The matter was very hard fought, with little in the way of concession by either party. Cross-examination was extensive and detailed. The Court is satisfied it is appropriate that the parents each pay the initial contribution set by Legal Aid of $1,650.00. It will be a matter for Legal Aid as to how it is paid and if it is paid in full.

Conclusion

1. These proceedings have no doubt been difficult for the parents. Each has been the subject to intense cross-examination. The matters set out above will no doubt make unpleasant reading for both parents, as they involve a critical analysis of their behaviour and actions. As indicated to the parents during the course of the hearing, while they may not be able to live together as a married couple, the children will bind them to each other for the rest of their lives. These proceedings have not been about parent’s rights or a critique of their respective behaviour to find fault and apportion blame. Rather they have been about finding a solution as to what is in the best interest of their two children.

2. There is a stark choice open to the parents. They can try to draw a line in the sand and move on, focussing on the best interests of their children or they can continue to devote significant time, money and emotional energy in fighting with each other. If the latter course if pursued, then both the parents and more particularly the children, will be the losers.

Orders

1. The orders of the Court are as follows:

2. All previous parenting orders in relation to the children, X, born in 2013 and Y, born in 2015 (“the children”) are discharged.

3. The respondent mother is to have sole parental responsibility in relation to the medical, education and religious matters pertaining to the children.

4. In relation to the respondent mother’s exercise of sole parental responsibility:

   (a)the respondent mother must notify the applicant father by email, of any proposed decision regarding the long-term care and welfare of the children, together with the reasons for the proposed decision, such notification to be not less than three weeks prior to the proposed decision;

   (b)the applicant father must notify the respondent mother by email, of any views concerning the proposed decision from the respondent mother within seven days;

   (c)the applicant mother must take into consideration any views expressed by the applicant father, in relation to the proposed decision, provided she notifies the applicant father of her views, by email within seven days of receiving notice of his proposed decision;

   (d)in the event the respondent mother elects to make a decision which is contrary to the applicant father’s views, she must set out the reasons as to why she disagrees with his views, by email within two days of having received notice of his views;

   (e)the respondent mother must notify the applicant father about the final decision, by email, forthwith upon having made such a decision.

5. In relation to the exercise of the respondent mother’s sole parental responsibility making a long-term medical decisions:

   (a)unless in the event of a medical emergency or hospitalisation, the respondent mother is to ensure that the children are treated by Dr B as their General Practitioner and any paediatrician recommended by Dr B. In the event this remains opposed by the applicant father, then the respondent mother invites the applicant father to propose three general practitioners local to the parents (excluding Dr C) for the respondent mother to select one from the three and to provide the name and contact details of that medical practitioner, to the applicant father;

   (b)the respondent mother must authorise and do all things, sign all documents and give all consents necessary to enable the applicant father to liaise directly with any doctor, to attend appointments either solely or with the respondent mother (as agreed in writing) at the hospital or other medical appointments with the children, to provide and obtain information and copies of any medical reports about the physical and/or mental health of the children and the progress of any treatment children may be receiving;

   (c)that the respondent mother be guided by any recommendation made by any treating medical practitioner in relation to the children;

   (d)the respondent mother must notify the applicant father of any proposed medical decision regarding the long-term care and welfare of the children, together with the reasons for the proposed decision, such notification to be by way of email not less than three weeks prior to the proposed decision;

   (e)the applicant father must notify the respondent mother by email of any views concerning the proposed decision by the respondent mother within seven days;

   (f)the respondent mother must take into consideration any views expressed by the applicant father, in relation to the proposed decision, provided she notifies the applicant father of her views, by email within seven days of receiving the notice of his proposed decision;

   (g)in the event the respondent mother elects to make a decision which is contrary to the applicant father’s views, she must set out the reasons as to why she disagrees with his views, by email within two days of having received notice of her views;

   (h)that the respondent mother must notify the applicant father of the final decision, by email, forthwith upon having made such a decision.

6. In relation to the exercise of the sole parental responsibility for decisions with greater urgency, the respondent mother must, as far as practicable, follow the same process as set out in Orders three and four, but with timing abridged to allow for the urgent nature of the decision.

7. The children live with the respondent mother.

8. That the children spend time with the applicant father as follows:

   (a)for a period of four weeks from the date of these orders;

   (i)each Saturday from 9:30am until 6:30pm;

   (ii)each Wednesday from the conclusion of school until 7.00pm.

   (b)Thereafter, until 30 June 2021:

   (i)in week one, of the two week cycle from 9:00am Saturday until 5:00pm Sunday;

   (ii)in week two, of the two week cycle on Wednesday from the conclusion of school or 3:15pm if not a school day, until the commencement of school on Thursday or 9:15am if not a school day;

   (iii)in the New South Wales school holiday periods, from 5:00pm Friday to 5:00pm Sunday on each alternative weekend, commencing the second Friday of the school holiday period.

9. From 1 July 2021 until the commencement of school term in 2022:

   (a)in week one, of a two week cycle from the conclusion of school on Friday or 3:15pm if not in the school day, until the commencement of school Monday or 9:15am, if not on a school day;

   (b)in week two, of the two week cycle, on Wednesday from the conclusion of school or 3:15pm, if not in school day until commencement of school on a Thursday or 9:15am, if not on a school day;

   (c)in the New South Wales school holiday periods, from 9:00am Saturday to 9:00am Thursday, each alternative week commencing the first Saturday of the holiday period.

10. From the commencement of school in 2022:

    (a)in week one, of the two week cycle from the conclusion of school on Friday or 3:15pm if not on the school day, until the commencement of school Monday or 9:15am, if not on a school day;

    (b)in week two, of the two week cycle, Wednesday from the conclusion of school 3:15pm, if not on a school day until the commencement of school on Friday or 9:15am, if not on a school day;

    (c)for one half of the New South Wales school holiday periods as agreed between the parties, but failing agreement, for the first half of the school holidays in even-numbered years during the second half of the school holidays in odd numbered years.

11. For the purpose of determining half the school holidays:

    (a)the time shall commence at the conclusion of school on the last Friday of school term or 3:15pm, if not a school day and;

    (b)the midpoint shall be 9:00am on the second Saturday the school holidays in the New South Wales Terms 1,2 and 3 school holidays and 9:00am on the third Saturday in the New South Wales Term 4 school holidays.

1. The last day of school holidays is deemed to be the first Monday of the new school year or 9:00am, if not on a school day.

2. Notwithstanding any other order, the applicant father spend the following special occasions with the children:

   (a)on Father’s day from 9:00am to 5:00pm;

   (b)on Father’s Day in 2021 and each year thereafter, from 9:00am until the commencement of school on Monday or 9:15am, if not in the school day and if not already in the father’s care;

   (c)during even-numbered years from 1:00pm Christmas Eve until 1:00pmon Christmas Day;

   (d)during odd numbered years from 1:00pm Christmas Day until 1:00pm on Boxing Day;

   (e)during even-numbered years from 1:00pm Good Friday until 1:00pm Easter Saturday;

   (f)during odd numbered years from 1:00pm on Easter Saturday until 1:00pm on Easter Sunday;

   (g)on each of the children’s birthdays, in even numbered years, from 10.00am till 6.00pm, or if a school day from the conclusion of school till 6.30pm.

   (h)at any other times as agreed between the respondent mother and applicant father in writing.

3. Notwithstanding any other orders above, the children spend additional time with the respondent mother as follows:

   (a)on Mother’s Day from 9:00am until resumption of the applicant father’s time, pursuant to these orders;

   (b)during odd numbered years from 1:00pm on Christmas Eve until 1:00pm on Christmas Day;

   (c)during even-numbered years from 1:00pm on Christmas Day until 1:00pm on Boxing Day;

   (d)during odd numbered years 1:00pm on Good Friday until 1:00pm on Easter Saturday;

   (e)during even-numbered years from 1:00pm on Easter Saturday until 1:00pm on Easter Sunday;

   (f)on each of the children’s birthdays in odd numbered years, from 10.00am until 6.30pm if a school day from the conclusion of school until 6.30pm.

4. For the purposes of changeover, that does not occur at the children’s school, the applicant father collect the children from the respondent mother’s residence, at the commencement of his time and the respondent mother shall collect the children from the applicant father’s residence, at the conclusion of time.

5. The respondent mother and applicant father must immediately notify the other parent via text message or telephone call, to the other parents mobile phone of any illness, medical attendance, medical emergency, serious medical problems, hospitalisation or accident, in relation to any of the children when the children are living with or spending time with them, together with such notice the parent is to provide all details of any medical treatment, treating medical practitioner and/or medical facility or hospital that is providing the treatment for the child/children.

6. The respondent mother must authorise and do all things, sign all documents and give all consents necessary to enable the applicant father to liaise directly with the children’s school principals or teachers, to obtain any information about the children’s progress at school, or information about events such as swimming carnivals, sports days, parent/teacher interviews and other educational activities and to arrange for the sending out of newsletters, school photos and academic report cards and any other documents provided to parents directly from school.

7. That the parent with whom the children are living, pursuant to these orders, shall take the children to and from and remain with the children during any schooling or extracurricular activity, in which the children are scheduled to participate and the other parent shall only be at liberty to attend such activities, if the children are participating in an assembly, presentation, sports match or other significant activity.

8. The respondent mother must authorise and do all things, sign all documents and give all consents necessary to enable the applicant father to attend all school events and co-curricular activities the children are involved in, but not limited to swimming carnivals, sports days, performances, parent/teacher interviews and other educational activities.

9. That the parties engage with the UNIFAM service ‘Keeping Contact’ (also known as the ‘Parenting Orders Program) alternatively, another nominated specialist service, within seven days of these orders being made and do all things required by the service, including but not limited to, attending any individual sessions and making the children available for any appointments as requested by the allocated therapist/s.

10. The parties attend this program for a minimum of 12 months and on at least a monthly basis, from the date of these orders, noting that the purpose of such therapy is to assist the parties to implement the final orders in a child focused manner by:

    (a)establishing guidelines for the parties communication with each other,

    (b)developing strategies for resolving conflict between the parties,

    (c)providing tools (including resource material and psycho education) to enhance parties co-parenting skills,

    (d)a copy of the single expert family report of Ms D to be released to the nominated service provider to assist them in their work with the parents and children.

11. That the parties are restrained from using offensive language, making derogatory comments or denigrating the other parent or the respective families, to the other parent and either of the children schools, providers of extracurricular activities, medical or allied health professionals.

12. The both the applicant father and the respondent mother must each pay the Legal Aid NSW the sum of $1,650.00, being the unpaid contribution towards the costs of the ICL.

Note: The commencement of weekend time spent with the applicant father is to be aligned and be the same weekend as the children’s older brother, E, spends time with his father. This is to ensure that all three children have an alternate weekend with each other and their mother.

I certify that the preceding two hundred and twenty-six (226) paragraphs are a true copy of the reasons for judgment of Judge Humphreys

Associate:

Date: 2 October 2020