DENT & MOLINA and MOLINA & LAWRENCE

[2015] FCCA 1573

FEDERAL CIRCUIT COURT OF AUSTRALIA

DENT & MOLINA and MOLINA & LAWRENCE [2015] FCCA 1573

Catchwords:
FAMILY LAW – Complex parenting case – issues about mother’s capacity to care for children – children born to mother but two fathers – assessment of risk issues.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 61DAA, 65DAA

MRR v GR [2010] HCA 4

Applicant: MR DENT

Respondent: MS MOLINA

File Number: BRC 892 of 2007

AND

Applicant: MS MOLINA

Respondent: MR LAWRENCE

File Number: WOC 286 of 2013

Judgment of: Judge Altobelli

Hearing dates: 20 to 23 April 2015

Date of Last Submission: 23 April 2015

Delivered at: Wollongong

Delivered on: 23 July 2015

REPRESENTATION

BRC 892 of 2007

Counsel for the Applicant: Mr Dalzell

Solicitors for the Applicant: Kelly Hardie Solicitors

Counsel for the Respondent: Mr Lo Schiavo

Solicitors for the Respondent: Heaton Law

Counsel for the Independent Children's Lawyer: Mr Maurice

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

AND

WOC 286 of 2013

Counsel for the Applicant: Mr Lo Schiavo

Solicitors for the Applicant: Heaton Law

The Respondent appeared in person

Counsel for the Independent Children's Lawyer: Mr Maurice

Solicitors for the Independent Children's Lawyer: Helen Volk Lawyers

ORDERS

IN RESPECT OF THE CHILD X BORN (omitted) 2000

Parental Responsibility

(1)That the Mother and Mr Lawrence have equal shared parental responsibility for the Child, X born (omitted) 2000 (“X”).

(2)That both parents do all things necessary and sign all necessary documents to:

(a)facilitate X engaging in Counselling to assist her in managing her emotions; and

(b)support her in reaching her potential, including supporting her application for scholarship, in accordance with any wishes expressed by her;

(c)supporting X’s right to identify with and enjoy her Aboriginal culture, including her right to enjoy that culture with her kin and other people who share her culture.

Living Arrangements

(3)That X live with the Mother.

Spending time arrangements

(4)That X spend time with Mr Lawrence in accordance with her wishes.

Communication

(5)That X communicate with Mr Lawrence by telephone at all reasonable times and at any time she expresses a wish to do so and the Mother facilitate such telephone communication by providing X with the means to do so.

(6)That the parents communicate matters pertaining to the care, welfare or development of X:

(a)by telephone in the case of emergency;

(b)for pressing but non-emergency issues, by short factual text message;  

(c)for any other issues, by letter sent by ordinary pre-paid post;

(d)for matters requiring a response, a response is to be provided in respect of communications pursuant to:

(i)order 6a, within 24 hours;

(ii)order 6b, within 48 hours;

(iii)order 6c, within 14 days.

(7)The parents will be courteous and civil towards each other and all other persons significant to X at all times but especially in the presence or within the hearing of X.

(8)That the parents are each to ensure that the other parent is kept informed of:-

(a)serious medical problems or illnesses suffered by X and/or any invasive medical procedure performed on X, with the other parent to be notified as soon as is reasonably practicable;

(b)any medical emergencies involving X, with the other parent to be notified immediately;

(c)any medication that has been prescribed for X that needs to be taken during the time that X is with the other parent, with the other parent to be notified at the time of changeover;

(d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding X, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

(e)any social or religious functions which X is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;

(f)the telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;

(g)any other matter relevant to the welfare of X, with the other parent to be notified as soon as is reasonably practicable.

Restraints

(9)Each parent is restrained from:

(a)abusing, insulting, belittling, rebuking or criticising or denigrating the other parent or any member of that parent’s household or family in the presence or within the hearing of X and shall forthwith remove X from the presence of any other person who does so;

(b)using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to the X’s care, welfare and development;

(c)using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use);

(d)taking, consuming and/or being affected by any illicit substance while X is in their respective care or for 24 hours preceding such time;

(e)consuming alcohol in excess of the legal driving limit during any time X is in his or her respective care;

(f)permitting X coming into contact at any time with Mr J;

(g)permitting X to come into contact with Mr W unless X is also in the presence of a responsible adult known to her;

(h)exposing X to any form of family violence and shall forthwith remove X from the presence of any person engaging in such behaviour;

(i)using foul language in the presence of X and shall forthwith remove X from the presence of any person who does so;

(j)using physical discipline on X.

Authorities

(10)That these Orders constitute authority of each parent to receive copies of school reports, newsletters, notices and school photograph order forms.

(11)That these Orders constitute authority of both parents, for each parent to liaise with X’s treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to X as he or she may seek.

(12)That these Orders constitute the authority of both parents, for each parent to liaise directly with X’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about X’s progress.

Specific Issues

(13)That the parents facilitate X attending upon the Independent Children’s Lawyer for the purpose of explaining to her the Orders pertaining to herself, Z and Y.

ORDERS PERTAINING TO THE CHILD Y BORN (omitted) 2008

Parental Responsibility

(1)That the Mother and Mr Dent have equal shared parental responsibility for the Child, Y born (omitted) 2008 (“Y”).

(2)That, in the exercise of parental responsibility for the child Y, the Mother and Mr Dent shall do all things necessary to consult with and obtain the opinion of Mr Lawrence and have regard to his opinion in making a decision in exercise of their responsibility.

(3)That for the purpose of ascertaining Mr Lawrence’ views pursuant to Order 15, the Mother shall contact Mr Lawrence and communicate his views to Mr Dent directly.

(4)That each party to do all things to support Y’s right to identify with and enjoy her Aboriginal culture, including her right to enjoy that culture with her kin and other people who share her culture.

Living Arrangements

(5)That Y live with Mr Dent.

Spending time arrangements

(6)That, provided the Mother complies with Order 29 below, Y spend time with the Mother as follows:

(a)At such times as are mutually agreed between the Mother and Mr Dent and in lieu of agreement:

(i)During the New South Wales (“NSW”) Public School holiday terms, each third and seventh weekend of the school term commencing from after school Thursday until 3pm Sunday, provided that the Mother facilitates the Y’s attendance at school on the Friday;

(ii)During the NSW Public School terms 1, 2 and 3 school holiday periods, at such times as are mutually agreed and in lieu of agreement, for not less than 10 days commencing the first Monday of the school holiday period, until 3pm on the last Thursday of the school holiday period;

(iii)During the NSW Public School term 4 (Christmas) holiday period, at such times as are mutually agreed, and in lieu of agreement, for not less than 3 weeks, being:

(A)the first 3 weeks in years where the holiday period commences in odd numbered years, commencing at 10am on the Saturday after school concludes; and

(B)the last 3 weeks in years where the holiday period commences in even numbered years, concluding at 3pm on the Sunday prior to the resumption of school;

(iv)on the following special occasions:

(A)on the weekend including Mother’s day and provided the Mother facilitates Y’s attendance at school, commencing from after school Thursday and concluding at 3pm Sunday; and

(B)on the weekend closest to the child X’s birthday (being (omitted)) and provided the Mother facilitates Y’s attendance at school, commencing from after school Thursday and concluding at 3pm Sunday;

(C)on the weekend closest to Mr Lawrence’s birthday (being (omitted)).

(7)That Y spend time with Mr Lawrence, as follows:

(a)At such times as are mutually agreed between the parties and in lieu of agreement:

(i)During the NSW public school terms during such times that Y is spending time with the Mother pursuant to these Orders and in lieu of agreement, not less than 5 hours during the time Y spends time with the Mother pursuant to Order 19(a)(i);

(ii)During the NSW public school terms 1, 2 and 3 holiday periods, at such times as are mutually agreed between the parties and in lieu of agreement, during such times as Y is spending time with the Mother pursuant to Orders 19(a)(ii), for not less than 3 blocks of 5 hours and in lieu of agreement over 3 consecutive days; and

(iii)During the NSW public school term 4 (Christmas) holiday period, at such times as are mutually agreed between the parties and in lieu of agreement, for not less than 4 blocks of 5 hours during such times that the child spends time with the Mother pursuant to Order 19(a)(iii) and in lieu of agreement, over 4 consecutive days;

(iv)On the following special occasions:

(A)on the weekend closest to Mr Lawrence’s birthday (being (omitted)) and in lieu of agreement for 5 hours;

(B)during the Christmas period each odd numbered year, at such times as are mutually agreed between the Mother and Mr Lawrence and in lieu of agreement, from 3pm Christmas day until 3pm Boxing Day.

Suspension of Time

(8)That the time Y spends with the Mother and Mr Lawrence on Mr Lawrence’s birthday pursuant to these Orders, shall be suspended on the weekend closest to Mr Dent’s birthday being (omitted).

Communication

(9)That Y communicate with the Mother by telephone:

(a)each Tuesday, Thursday and Sunday, at such times as are mutually agreed and in lieu of agreement, between 6.30pm and 7.30pm; and

(b)on the Mother’s birthday, being (omitted);

(c)on each of Y’s siblings birthdays, with the Mother to use her best endeavours to facilitate Y communicating with her brother or sister on their birthday;

(d)on Y’s birthday;

(e)on Christmas day at 10am;

(f)At such times as Y expresses a wish to communicate with her Mother; with the Mother to telephone Mr Dent’s mobile or landline telephone number for the purposes of facilitating the communication pursuant to Order 22(a)-(e) and with Mr Dent to telephone the Mother’s mobile for the purpose of facilitating the communication pursuant to Order 22(f).

(10)That Y communicate with Mr Lawrence by telephone as far as is practicable, at such times as she also communicates with the Mother but in lieu of that occurring:

(i)each Tuesday, Thursday and Sunday, at such times as are mutually agreed and in lieu of agreement, between 6.30pm and 7.00pm and 8pm; and

(ii)on Mr Lawrence’s birthday being (omitted);

(iii)on the child’s birthday;

(iv)on Christmas day at 10.30am;

(v)at such times as the child expresses a wish to communicate with her father, Mr Lawrence.

(11)That Y communicate with Mr Dent by telephone each Tuesday, Thursday and Sunday between the hours of 6.30pm and 7.30pm during the time Y is spending time with the Mother pursuant to Order 19(a)(ii)-(iv) and each Saturday between the hours of 6.30pm and 7.30pm during the time Y spends with the Mother pursuant to Order 19(a)(i).

(12)That the parties communicate matters pertaining to the care, welfare or development of Y:

(a)by telephone in the case of emergency;

(b)for pressing but non-emergency issues, by short factual text   message;

(c)for any other issues, by letter sent by ordinary pre-paid post;

(d)for matters requiring a response, a response is to be provided in respect of communications pursuant to:

(i)order 25a, within 24 hours;

(ii)order 25b, within 48 hours;

(iii)order 25c, within 14 days.

(13)The parties will be courteous and civil towards each other and all other persons significant to Y at all times but especially in the presence or within the hearing of Y.

(14)That the parties are each to ensure that each other party is kept informed of:-

(a)serious medical problems or illnesses suffered by Y and/or any invasive medical procedure performed on Y, with the other parent to be notified as soon as is reasonably practicable;

(b)any medical emergencies involving Y, with the other parent to be notified immediately;

(c)any medication that has been prescribed for Y that needs to be taken during the time Y is with the other parent, with the other parent to be notified at the time of changeover;

(d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding Y with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

(e)any social or religious functions which Y is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;

(f)the telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;

(g)any other matter relevant to the welfare of Y, with the other parent to be notified as soon as is reasonably practicable.

Changeover

(15)Unless otherwise agreed:

(a)That the Mother collect Y from school or Mr Dent’s home at the commencement of the time Y spends with the Mother pursuant to Order 19(a) and Mr Dent collect Y from the Mother’s home at the conclusion of such time; and

(b)That Mr Lawrence collect Y from and return her to the Mother’s home at the commencement and conclusion of the time the Y spends with him pursuant to these Orders.

Restraints

(16)Each party is restrained from:

(a)abusing, insulting, belittling, rebuking or criticising or denigrating any other party, or any member of that party’s household or family in the presence or within the hearing of Y and shall forthwith remove Y from the presence of any other person who does so;

(b)using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to Y’s care, welfare and development;

(c)using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use);

(d)taking, consuming and/or being affected by any illicit substance while Y is in their respective care or for 24 hours preceding such time;

(e)consuming alcohol in excess of the legal driving limit during any time Y is in his or her respective care;

(f)permitting Y coming into contact at any time with Mr J;

(g)permitting Y to come into contact with the following persons unless Y is also in the presence of a responsible adult known to the child:

(i)Ms T;

(ii)Mr A;

(iii)Mr W.

(h)exposing Y to any form of family violence and shall forthwith remove Y from the presence of any person engaging in such behaviour;

(i)leaving Y unsupervised by a responsible adult for a period in excess of 5 minutes;

(j)using foul language in the presence of Y, and shall forthwith remove Y from the presence of any person who does so;

(k)using physical discipline on Y.

Authorities

(17)That these Orders constitute authority of the Mother and Mr Dent for each party to receive copies of school reports, newsletters, notices and school photograph order forms.

(18)That these Orders constitute authority of the Mother and Mr Dent for each party to liaise with Y’s treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to Y as he or she may seek.

(19)That these Orders constitute the authority of the Mother and Mr Dent for each party to liaise directly with Y’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about Y’s progress.

(20)That the parties do all things necessary to facilitate Y attending upon the Independent Children’s Lawyer for the purpose of explaining these Orders to Y.

ORDERS PERTAINING TO THE CHILD Z BORN (omitted) 2006

Parental Responsibility

(1)That the Mother and Mr Dent have equal shared parental responsibility for the Child, Z born (omitted) 2006 (“Z”).

(2)That both parents do all things necessary to support Z’s right to identify with and enjoy her Aboriginal culture, including her right to enjoy that culture with her kin and other people who share her culture.

Living Arrangements

(3)That Z is to live with the father, Mr Dent.

Spending time arrangements

(4)That, provided the Mother complies with order 45 below, Z spend time with the Mother:

(a)At such times as are mutually agreed between the parents and in lieu of agreement:

(i)During NSW Public School terms, each third and seventh weekend of the school term, commencing from after school Thursday until 3pm Sunday, provided that the Mother facilitates Z’s attendance at school on the Friday;

(ii)During NSW Public School terms 1 and 3 school holiday periods, at such times as are mutually agreed and in lieu of agreement, for not less than 10 days commencing the first Monday of the school holiday period, until 3pm on the last Thursday of the school holiday period;

(iii)During NSW Public School term 2, for one week, commencing at 10am on the middle Saturday until 3pm on the last Sunday of the holiday period;

(iv)During NSW Public School term 4 (Christmas) holiday period, at such times as are mutually agreed and in lieu of agreement, for not less than 3 weeks, being:

(A)the first 3 weeks in years where the holiday period commences in odd numbered years, commencing at 10am on the Saturday after school concludes; and

(B)the last 3 weeks in years where the holiday period commences in even numbered years, concluding at 3pm on the Sunday prior to the resumption of school.

(v)On the following special occasions:

(C)on the weekend including Mother’s day and provided the Mother facilitates Z’s attendance at school, commencing from after school Thursday and concluding at 3pm Sunday; and

(D)on the weekend closest to the child X’s birthday (being (omitted)) and provided the Mother facilitates Z’s attendance at school, commencing from after school Thursday and concluding at 3pm Sunday.

Suspension of Time

(5)That the time Z spends with the Mother pursuant to these Orders shall be suspended on the weekend which includes Father’s Day and on the weekend closest to the Father, Mr Dent’s birthday being (omitted).

Communication

(6)That Z communicate with the Mother by telephone:

(a)each Tuesday, Thursday and Sunday, at such times as are mutually agreed, and in lieu of agreement, between 6.30pm and 7.30pm; and

(b)on the Mother’s birthday, being (omitted);

(c)on each of Z’s siblings birthdays with the Mother to use her best endeavours to facilitate Z communicating with her brother or sister on their birthday;

(d)on Z’s birthday;

(e)on Christmas day at 10am;

(f)at such times as Z expresses a wish to communicate with her mother; with the Mother to telephone the Father’s mobile or landline telephone number for the purposes of facilitating the communication pursuant to Order 39(a)-(e) and with the Father to telephone the Mother’s mobile for the purpose of facilitating the communication pursuant to Order 39(f).

(7)That Z communicate with the Father by telephone each Tuesday, Thursday and Sunday between the hours of 6.30pm and 7.30pm during the time Z is spending time with the Mother pursuant to Order 37(a)(ii)-(iv) and each Saturday between the hours of 6.30pm and 7.30pm during the time Z spends with the Mother pursuant to Order 37(a)(i).

(8)That the parents communicate matters pertaining to the care, welfare or development of Z:

(a)by telephone in the case of emergency;

(b)for pressing but non-emergency issues, by short factual text message;

(c)for any other issues by letter sent by ordinary pre-paid post;

(d)for matters requiring a response, a response is to be provided in respect of communications pursuant to:

(i)order 41(a), within 24 hours;

(ii)Order 41(b), within 48 hours;

(iii)Order 41(c), within 14 days.

(9)The parents will be courteous and civil towards each other and all other persons significant to Z at all times but especially in the presence or within the hearing of Z.

(10)That the parents are each to ensure that the other parent is kept informed of:-

(a)serious medical problems or illnesses suffered by Z and/or any invasive medical procedure performed on Z, with the other parent to be notified as soon as is reasonably practicable;

(b)any medical emergencies involving Z, with the other parent to be notified immediately;

(c)any medication that has been prescribed for Z that needs to be taken during the time Z are with the other parent, with the other parent to be notified at the time of changeover;

(d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding Z, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

(e)any social or religious functions which Z is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;

(f)the telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;

(g)any other matter relevant to the welfare of Z, with the other parent to be notified as soon as is reasonably practicable.

Changeover

(11)Unless otherwise agreed:

(a)That the Mother collect Z from school or the Father’s home at the commencement of the time Z spends with the Mother pursuant to Order 37(a)(i), (ii), (iv) and (v) and the Father collect Z from the Mother’s home at the conclusion of such time; and

(b)That the Mother collect Z from the Father at (omitted) Railway Station at the commencement of the time Z spends with the Mother pursuant to Order 37(a)(iii), with the Father to collect Z from the Mother’s home at the conclusion of such time.

Restraints

(12)Each parent is restrained from:

(a)abusing, insulting, belittling, rebuking or criticising or denigrating the other parent, or any member of that parent’s household or family in the presence or within the hearing of Z shall forthwith remove Z from the presence of any other person who does so;

(b)using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to Z’s care, welfare and development;

(c)using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use);

(d)taking, consuming and/or being affected by any illicit substance while Z is in their respective care or for 24 hours preceding such time;

(e)consuming alcohol in excess of the legal driving limit during any time Z is in his or her respective care;

(f)permitting Z coming into contact at any time with Mr J;

(g)permitting Z to come into contact with the following persons, unless Z is also in the presence of a responsible adult known to Z:

(i)Ms T;

(ii)Mr A;

(iii)Mr W.

(h)exposing Z to any form of family violence and shall forthwith remove Z from the presence of any person engaging in such behaviour;

(i)leaving Z unsupervised by a responsible adult for a period in excess of 5 minutes;

(j)using foul language in the presence of Z and shall forthwith remove Z from the presence of any person who does so;

(k)using physical discipline on Z.

Authorities

(13)That these Orders constitute authority of each parent to receive copies of school reports, newsletters, notices and school photograph order forms.

(14)That these Orders constitute authority of both parents for each parent to liaise with Z’s treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to Z as he or she may seek.

(15)That these Orders constitute the authority of both parents for each parent to liaise directly with Z’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about Z’s progress.

Specific Issues

(16)That each parent do all things necessary to facilitate Z attending upon the Independent Children’s Lawyer for the purpose of explaining these Orders to her.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

BRC 892 of 2007

MR DENT

Applicant

And

MS MOLINA

Respondent

AND

WOC 286 of 2013

MS MOLINA

Applicant

And

MR LAWRENCE

Respondent

REASONS FOR JUDGMENT

Introduction

1.These reasons for judgment explain the orders that I have made in relation to three children:  X, 14 years old, Z, 9 years old and Y, 7 years old.  The circumstances of these three children is quite complex and the following table, which was prepared by the Independent Children’s Lawyer, summarises the relationships of the parents and children in this case:

Ms Molina

Mr Lawrence  Mr Dent  Mr J

X (14) & Y (7)  Z (9)  A (22)

B (19)

C (18)

D (16)

2.In short, and at a relatively simple level, this is a dispute between the childrens’ parents about where they will live and how much time they will spend with the other parent.  The children have the same mother, Ms Molina.  Z’s father, however, is Mr Dent whereas X and Y’s father is Mr Lawrence.  The Mother has four other children as a result of a relationship with Mr J:  A who is 22, B is 19, C is 18, and D is 16.  These other children, as well as Mr J, are all relevant people to take into account in making decisions about X, Y and Z.

Background

3.Whilst this case is essentially two separate cases, Molina & Dent and Molina & Lawrence, during their history before this Court, they have been treated as the one matter and run parallel to each other.  There have been two previous judgments of any significance in each of the cases (Molina & Lawrence [2014] FCCA 2044; Dent & Molina [2014] FCCA 2045). Matters of background and history are set out in those reasons for judgment and it is not intended to set out those details at length in these reasons, but only to summarise them.

4.The Mother, Ms Molina, is 38 years old.  She currently lives in (omitted), in the NSW (omitted), together with her daughter X.  Her other five children do not currently live with her, though they have lived with her at times in the past.

5.Mr Dent, who is Z’s biological father, lives in (omitted) together with Z and Y, even though Y is not his biological daughter.  This came about as a result of the orders that this Court made on 26 February 2014, the reasons for judgment of which are cited above.

6.Mr Lawrence, who is the biological father of X and Y, lives in (omitted), in the (omitted) of New South Wales, relatively close to the home of the Mother.  He is nearly 45 years old.  He currently spends time with X, Y and Z, though this is sometimes on an ad hoc basis.

7.At the moment X lives with her mother and Y and Z live with Mr Dent in (omitted), pursuant to orders of this Court on 26 February 2014, modified on 12 August 2014.  The current orders are reproduced in the first schedule to these reasons.

8.This is a complex case.  It was heard over four days commencing on 20 April 2015.  During his final submissions, Counsel for the Independent Children’s Lawyer, Mr Maurice openly acknowledged that the Independent Children’s Lawyer’s proposal was the “least worst alternative”.  The Court agrees.  Even though this was a final hearing, the risk assessment and management issues that so characterised the interim decisions in this case, continued to prevail in the context of the final hearing.

9.The children were represented by their Independent Children’s Lawyer, Ms Volk, and their Counsel.  Ms Molina was represented by her solicitor, Ms Heaton and at hearing her Counsel, Mr Lo Schiavo.  Mr Dent was represented by his solicitor, Ms Hardie and at hearing by his Counsel, Mr Dalzell.  Mr Lawrence at all relevant times represented himself in this case.  He did so capably under the circumstances.  He is an intelligent and articulate man capable of stridently advancing his views to the Court, though not necessarily with any objectivity.

10.By the time the evidence had concluded and closing submissions had commenced, the Independent Children’s Lawyer’s proposal was, in effect, that the existing parenting arrangements continue with some modification, including prescriptive detail about spends time with and communication arrangements.  This meant that X would remain living with her mother and that Z and Y would continue to live with Mr Dent, even though in respect of Y was a non-biological parent.  The Minute of Order proposed by the Independent Children’s Lawyer in relation to the children is reproduced in the second schedule to these reasons.

11.The Mother’s proposal shortly stated, was for the children to be reunited into her sole care thus joining X, but that orders be made for each of the children to spend time with their respective fathers.  The Minutes of Order sought by the Mother are set out in the third schedule to these reasons.

12.Mr Dent’s proposal was consistent with that advanced by the Independent Children’s Lawyers, that is, that Z and Y would remain in his care.  The orders proposed by him are set out in the fourth schedule.

13.Finally, the orders proposed by Mr Lawrence provided for all of the children to be reunited into their mother’s care, that the children spend time with him but that there be no contact or communication between Y and Mr Dent.  In the alternative, however, and should the Court find that the children not live with their mother, he proposed that Y and Z live with him.  Mr Lawrence made it clear that the alternative proposal was not his main proposal but he argued that he was a far safer alternative for the children than Mr Dent.

The Evidence

14.The evidence in this case consisted of the following.

15.Ms Molina relied on the following documents:

·Case Outline;

·Affidavit of Ms Molina filed 16 April 2015;

·Affidavit of Ms Molina filed 18 September 2013; and

·Affidavit of Ms Molina filed 19 September 2013.

16.Mr Dent relied on the following documents:

·Affidavit of Mr Dent filed 7 April 2015;

·Affidavit of Ms J filed 10 August 2014; and

·Amended Response filed 11 August 2014.

17.Mr Lawrence relied on the following documents:

·Affidavit of Mr Lawrence filed 17 March 2014; and

·Response filed 17 March 2014.

18.The Independent Children’s Lawyer relied upon her Case Outline and tendered documents as set out below (being, ICL1, ICL2, ICL3, ICL4 and ICL5).

19.The following further documents were provided as evidence:

·Exhibit ICL2 being the Family Report in the matter of Dent & Molina BRC892/2007 of Ms S dated 4 August 2014;

·Exhibit ICL3 being the Family Report in the matter of Molina & Lawrence WOC286/2013 of Ms S dated 4 August 2014;

·Exhibit ICL4 being the Expert Report of Mr S in the matter of Dent & Molina BRC892/2007 released 14 April 2015;

·Exhibit ICL5 being the Expert Report of Mr S in the matter of Molina & Lawrence WOC286/2013 released 14 April 2015;

·Exhibit R1-1 being a Letter of Concern from (omitted) High School dated 31 July 2014;

·Exhibit R1-2 being school reports;

·Exhibit A1 being documents produced pursuant to subpoena to the Department of Family & Community Services;

·Exhibit A2 bring documents produced pursuant to subpoena to the Police;

·Exhibit A3 being documents produced pursuant to subpoena to (omitted) Public School; and

·Exhibit ICL1 being a packet of ‘Wart-off’ medication.

20.The following witnesses were cross-examined on their affidavits: 

·Ms Molina;

·Mr Dent;

·Mr Lawrence;

·Ms J (Mr Dent’s sister); and

·Ms S, the Family Consultant.

21.The parties agreed that there was no need for Mr S to be cross-examined on his expert evidence and that his reports could simply go straight into evidence.

22.In the end, Mr G, who had provided an Affidavit in Mr Dent’s case was not called, so no reliance was placed on his Affidavit.

23.It will be necessary during the course of these reasons to comment on the evidence that was given by each of these witnesses.

Further Background

24.In order to properly understand the evidence in this case and the findings ultimately made, as well as to understand why the orders have been made, some further background is necessary.  Ms Molina, Mr Lawrence and Mr Dent actually have a lot in common, particularly in terms of their background.  Their early lives were marked by disadvantage and if not, abuse and neglect, some of it imposed, some of it self-inflicted.  In different ways and to different extents, the Police were involved in their lives.  Mr Lawrence certainly spent some time in gaol, Mr Dent had frequent encounters with the law and Ms Molina had the benefit of frequent visits of the Police to her home.  At different times and in different measures, each have struggled with issues such as drug and alcohol abuse and they have either perpetrated or been the victims of family violence, some of it quite serious, particularly in the case of Ms Molina.  It should be noted in this regard that the most serious perpetrator of violence is in fact Mr J, the father of Ms Molina’s four oldest children, the siblings to the younger children in respect of whose best interests the Court must make orders.

25.Thus, each of the three relevant parents have had exceedingly difficult lives.  Because of this and unsurprisingly, the seven children, some of whom are now adults and who form part of the broader matrix of the decision in this case, have also been exposed to adversity in the form of what might be broadly described as neglect, abuse, exposure to violence, unstable relationships between parental figures and instability in their accommodation and schooling.  Many of the children, particularly X and her older siblings, have anger management problems.  The older children, notwithstanding their relative youth, have engaged in risky behaviours including dysfunctional relationships and teen pregnancies.  Getting the children to attend school consistently and keep out of trouble has been a lifelong struggle for Ms Molina, their mother.  Even she agreed in evidence that there were times when she did not succeed in this struggle.

26.The Mother and all of the relevant children, including some of the older children, lived in (omitted) in the (omitted) district of New South Wales at the time of the first interim order which resulted in Y and Z being placed in Mr Dent’s care.  Even on the Mother’s own evidence, her household in (omitted) was a chaotic one.  She could neither control the children living there nor the visitors to the house.  The Mother and X moved to new accommodation in (omitted) late in 2014.  Even she acknowledged that this was to make a “fresh start” and to get away from all of the problems that she had experienced in (omitted).

27.It is important to acknowledge that there are no bad people in this case except perhaps Mr J who all parties seem to acknowledge, even now the Mother, was and continues to be a completely unacceptable presence in the lives of Z, Y and X.  Whilst much will be said about Ms Molina, Mr Lawrence and Mr Dent, it must be recognised that in all likelihood, they are the product of the lives that they have lived with all of its diverse influences, some of which they could control and others of which they could not.  In many ways it is an exceedingly sad case but with glimmers of hope. 

28.It was interesting to note that one of the themes of the Independent Children’s Lawyer’s closing submission was that the past care of the children was the best indicator to their future care.  As it turns out, there is substance to this submission.  However, it could not be said after hearing the life stories of each of the parents in this case that they are incapable of change.  It is clear for example, that both Mr Lawrence and Mr Dent have changed their lives to varying different degrees and this reflects exceedingly well on them.  For Mr Lawrence, there are ongoing unresolved issues about his capacity to adequately manage his anger but his ability to self-compose was palpably obvious during four days of stressful hearing.  This suggested more than a modicum of self-awareness though there was other evidence to suggest that he continued to struggle in volatile parenting situations, particularly around X.  Mr Dent has turned his life around and seems to be genuinely focused on what is best not just for his daughter Z, but for Y as well.

29.The focus of the case very much turned to the Mother who at least had the insight to recognise that her past parenting was chaotic and that her past relationships were dysfunctional especially with Mr J but also with Mr Dent and Mr Lawrence. The issue was whether the Mother had gained sufficient insight about her parental deficits such that the physical changes that she had brought about in her life (for example, by moving from a problematic household in (omitted) and making a fresh start in (omitted)), was indicative of an enhancement in her parenting capacity.

30.Another interesting feature of this case was the changing alliances during the course of the litigation.  At the time the first interim orders were made in February 2014, in effect, removing Y and Z from their mother’s care (and only leaving X there because of the strength of her views), Mr Dent and Mr Lawrence were united in strongly urging the Court to make the orders that it did.  It seems that at that time, the Mother did not enjoy a good relationship with either of the fathers but the fathers enjoyed workable relationships with each other.  By the time of the final hearing, however, the alliances had changed remarkably.  Thus the Mother was getting on reasonably well with both fathers whilst the fathers had what could only be described as a poisonous relationship between them.  They were quite incapable of any form of communication, probably loathed each other and had a lack of trust towards each other measured in seismic proportions.

31.There was common ground as between Mr Lawrence, and Ms Molina and that is that X would ultimately remain living with her mother and spend time with her father Mr Lawrence, as and when she decides.  Even Mr Lawrence recognised that his relationship with X was a highly problematic one, probably because as both parents acknowledged, X and Mr Lawrence were so much like each other.  Indeed, the Court observes perhaps the greater similarity between them is in regards their struggle to control their emotion at times, particularly anger.

32.Finally, by way of broad observation and background of the evidence, there is an interesting theme in this case (but alas all too common one in parenting cases) which was that all parents at times but to different degrees, seemed to place complete faith in what it was that the children either reported to them directly, or were reported to them by some third person as having said.  Particularly for Ms Molina and Mr Lawrence but to a lesser extent for Mr Dent, these direct and indirect statements from the children achieved almost gospel-like significance in circumstances where, with great respect to each of them, they should have known better.  The inherent unreliability of anything that any of the seven children said to them about anything relating to this case was lost on the parents.  Curiously, within the first two minutes of evidence in a four-day case, Mr Dalzell, Counsel for Mr Dent, cross-examined the Mother about why, after the children went to live with Mr Dent pursuant to the orders the Court made in February 2014, she rang the Police to conduct a welfare check on the children in Mr Dent’s household.  She explained that she had spoken to the girls (presumably in the context meaning Z and/or Y) who said that Mr Dent was drinking.  The Mother said she could hear loud music in the background.  The Police went around to conduct the welfare check.  They found the children in bed.  They found no alcohol.  This little vignette of the evidence is actually quite revealing.  The Mother had no hesitation in ringing the Police.  In other cases there might be other concerns about the possible stressful trauma on the children of the Police coming to their home to conduct welfare checks but it must be remembered that for Y and Z this was not a wholly exceptional event.  In any event, the Police found no objective evidence to suggest that the children were at risk or indeed, to corroborate the Mother’s alleged concerns.  There is no suggestion, however, that as a result of this incident the Mother became sceptical about what the children reported to her, or perhaps even became somewhat more trusting of Mr Dent.  If the Mother might have gained some insight about the intense loyalty conflict that the children must experience, there is no evidence of this.

33.Mr Lawrence was also plainly seduced by the phenomenon described in the preceding paragraph.  If the children said something to him about what was happening in either Mr Dent’s household or previously in their mother’s household, he accepted this as truth.  Likewise, if someone else reported to him that the children had said or done something or that an event had occurred, likewise he was convinced of the veracity of this event. 

34.At one point in his evidence Mr Lawrence told the Court that “Y tells me daily what she does there”, referring to life in Mr Dent’s household.  Thus in his Affidavit, he refers to an incident that allegedly occurred in the bathroom of Mr Dent’s household as a result of which he contends Mr Dent got exceedingly angry and disproportionately it should be said over something that Y said or did and Y became very upset.  Mr Dent provides a completely different and much more benign explanation for the so-called incident.  Mr Lawrence could not possibly accept Mr Dent’s explanation over that of Y.  Mr Lawrence fails to understand the dynamic of his own relationship with Y and Z and X.  He told the Court with admirable frankness that the children, but specifically Y, know exactly how he feels about Mr Dent.  He explained to the Court that Y has said to him that she is in effect afraid that he will do something to Mr Dent that will cause him to go to gaol.  Indeed, Mr Dalzell sought to clarify this in cross-examination by asking Mr Lawrence, “So Y is afraid you’ll go to gaol?” to which Mr Lawrence replied “Yes, that I will do harm to Mr Dent.” In that same piece of cross-examination, Mr Lawrence explained that Y says things to her sister X who then reassures Y that it is all right to tell her father.  This was in the context of an allegation that assumes quite some significance and that is that Mr Dent leaves Y and Z alone in the car whilst he goes to the pub for a drink.

35.It is obvious to the Court that Mr Lawrence doesn’t understand the dynamic that he has created by exposing certainly Y, but probably Z and X, to the depth of his enmity towards Mr Dent.  Because of his anger towards Mr Dent, Y and X know full well about their father’s volatility and that, unless it is controlled, he could go to gaol.  This creates an intense loyalty conflict as between Y and Z who, on all the evidence, have a very strong sibling relationship and have lived in the same household since February 2014.  It is lost on him.  The inappropriateness of his conversations with Y also seem lost on him.  For example, he said in cross-examination on this topic words to the effect, “I continually reassure her.  I will not step over the line.  I say to her, ‘If I’m in jail, how can I help you..’”.   In these circumstances it doesn’t occur to Mr Lawrence that it is possible that Y is reporting to him something that she believes he wants to hear rather than something that is entirely factual.  It seems not to have occurred to Mr Lawrence that it is not just Y and X who are speaking with each other but all of the seven children belonging to Ms Molina and that facts are so easily distorted as events and alleged events are passed from sibling to sibling.

36.The Mother fares no better in this regard.  Part of her case about Mr Dent’s supposed neglect of the girls whilst they were in his care is based upon reports to the Department of Family and Community Services whilst ignoring the possibility, indeed the strong probability on the facts of this case, that the reports were not made by an objective member of the public but probably by one of the other older siblings who, without being disrespectful to them, are well versed in dealings with the department and are based on what Z or Y supposedly said to somebody else, probably one of their own siblings. 

37.The Court hopes that these comments are not received by either Mr Lawrence or Ms Molina as being personally critical of them.  All of the parents in this case mean well.  Nobody is being deliberately dishonest but it is plainly unwise to rely too much on what children say or are supposed to have said without understanding the much broader dynamics of the family relationships.  This Court has to make, indeed does make, findings about the safety of the children in Mr Dent’s care.  The Court wishes to reassure Ms Molina and Mr Lawrence that the Court has considered all of the evidence about these so-called risk issues and has done so with both objectivity and independence and finds there to be no such risk.  Whilst it is understandably difficult for parents in the midst of highly-emotional proceedings relating to their children to bring a measure of objectivity in analysing the evidence, that is exactly what the Court is responsible to do and it has done so.

Overview of Reasons

38.Having regard to this rather expansive introduction and background to this complex case, the remaining reasons for judgment will adopt the following format. The applicable law will be stated in the next section. The evidence of the experts will be set out, beginning with Mr S and followed by Ms S, the Family Consultant. Thereafter, the evidence of each of the witnesses, particularly the parents, will be examined. After that, all of the evidence will be considered having regard to the primary and additional considerations set out in s.60CC of the Family Law Act 1975.  Finally, in seeking to formulate the orders that are in the best interests of the children are other matters relating to the legislative pathway will be considered.

The Applicable Law

39.In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.

40.The objects and principles of Part VII are set out at s. 60B:

60B  Objects of Part and principles underlying it

(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.

(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 by 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).

(3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

(a)    to maintain a connection with that culture; and

(b)    to have the support, opportunity and encouragement necessary:

(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

(ii)    to develop a positive appreciation of that culture.

41.At the very core of Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

61DA  Presumption of equal shared parental responsibility when making parenting orders

(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.

42.If the presumption applies, the Court is required to consider certain things:

65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

Equal time

(1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

Substantial and significant time

(2)    If:

(a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

(b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

the court must:

(c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

(3) will be taken to spend substantial and significant time with a parent only if:

(a)    the time the child spends with the parent includes both:

(i) days that fall on weekends and holidays; and

(ii)    days that do not fall on weekends or holidays; and

(b)    the time the child spends with the parent allows the parent to be involved in:

(i) the child’s daily routine; and

(ii)    occasions and events that are of particular significance to the child; and

(c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

(4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

Reasonable practicality

(5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

(a)    how far apart the parents live from each other; and

(b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

(c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

(d)    the impact that an arrangement of that kind would have on the child; and

(e)     such other matters as the court considers relevant.

43.Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

Determining child's best interests

(1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

Primary considerations

(2)  The primary considerations are:

(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.

Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

(2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

Additional considerations

(3)  Additional considerations are:

(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;

(h)  if the child is an Aboriginal child or a Torres Strait Islander child:

(i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

(ii)  the likely impact any proposed parenting order under this Part will have on that right;

(i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(j)  any family violence involving the child or a member of the child's family;

(k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

(i)  the nature of the order;

(ii)  the circumstances in which the order was made;

(iii)  any evidence admitted in proceedings for the order;

(iv)  any findings made by the court in, or in proceedings for, the order;

(v)  any other relevant matter;

(l)  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 child;

(m)  any other fact or circumstance that the court thinks is relevant.

44.In MRR v GR [2010] HCA 4 the High Court said

8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:

(a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents."  (emphasis added)

Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

"(c)   consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

(d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

(e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."

Sub-section (3) explains what is meant by the phrase "substantial and significant time".

9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

45.A little later in the judgment the High Court said:

13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

The Evidence of Mr S

46.Mr S is a forensic psychologist whose two reports are dated 19 February 2015 and 20 February 2015.  His specific brief was to conduct an assessment of Indigenous cultural issues in the proceedings.  The need to conduct this assessment became apparent having regard to the Indigenous background of the children, their mother and to a lesser extent Mr Dent.  Whilst Mr S’s reports were unquestionably necessary having regard to the provisions of the Family Law Act 1975, it was ultimately recognised both by him and each of the parties to this case, that the children’s Aboriginality is but one aspect amongst many others that the Court had to consider in determining what is in their best interests.  Mr S concluded in his reports in respect of each of the children that although their Aboriginality was a significant issue, it was one to be considered in the context of other issues such as child protection and risk of harm, possible exposure to family violence, alcohol and drug abuse and less than adequate parenting.  In these circumstances he frankly conceded and each of the parties acknowledged, that the issue of Aboriginality may be viewed as subordinate to the need to ensure that the children are protected from harm and appropriately cared for.  The focus would thus primarily be to issues of child safety and protection whilst not diminishing the significance of the cultural issues in this case. 

47.Mr S’s reports were received in evidence without objection and no one sought to cross-examine him on its contents.  The Court accepts Mr S’s evidence.  Whilst the Court does not lose sight of the fact of the children’s Aboriginality, to use Mr S’s words, in the context of the case where the quest is for risk of minimisation, Mr S is quite correct in suggesting that that is the fundamental priority over cultural issues.

Evidence of Ms S - Family Consultant

48.Ms S prepared two Family Reports, both dated 4 August 2014.  Whilst these Reports are not identical, they are certainly similar.  In these reasons, the Court will set out some of the paragraphs in Ms S's Report and comment upon them.  It should be noted that the interviews took place on 2 and 3 June 2014.  At paragraph 14 of the Family Report in Molina & Lawrence, the Family Consultant records:

Ms Molina (aged 37 years) presented as open but at times she appeared reluctant or unable to elaborate on her comments.  She lives in (omitted) and said that she has applied for a housing transfer to (omitted), (omitted) or (omitted) with (omitted) being her first choice.  She appeared somewhat unclear about why she has applied for a housing transfer offering that the Independent Children’s Lawyer suggested a move would be positive for her and the children and that the area she is “pretty bad” (alluding to her family being overinvolved and her children having negative peer associations).  It was unclear whether Ms Molina thought it would be of benefit fro her and the children to relocate or whether she had accepted guidance from other people.  In any case she said that she has a meeting with Housing Department (scheduled for the week following this assessment).

49.This paragraph demonstrates the Mother’s lack of insight about the woeful inadequacy of the home that she had for the children in (omitted), a lack of insight that she demonstrated in cross-examination.  The circumstances of her parenting in that household were clearly inadequate for any of the children living there.  To her credit, in cross-examination, she later came to appreciate this.  That she could not see the problem in June 2014 is of concern.  The reasons given for removing the children from her care earlier that year should have been quite apparent to her. 

50.At paragraph 17 the Family Consultant records:

Ms Molina said that she is not in a relationship.  She said that she reconciled with Mr J in 2013 until he was incarcerated (early 2014) for what she believes were drug offences.  She is unclear when he is to be released.  She said that there had been significant violence at the time of her’s and Mr J’s  original relationship, but she denied that he had been violent to her or the children on their recent reconciliation.  She said that she continues to have feelings for Mr J and the relationship status appeared somewhat unresolved.

51.By the time of the final hearing, Mr J's’ release from gaol was imminent. The Mother’s evidence was quite clear - that her relationship with Mr J was over and she sought neither communication nor contact with him.  The Mother’s ambivalence about Mr J was probably resolved by the time of the hearing.  Having regard to all of the evidence heard, the risk of the Mother resuming her relationship with Mr J is not an unacceptable one.  It is probably the case that by now even she can understand the dangers to the children and indeed to herself arising from a resumption of that relationship. 

52.At paragraphs 18-20 inclusive of the Report, there is discussion about the Mother’s parenting capacity:

Ms Molina said that the people living in her home can change depending on the needs of the family at the time, although she denied that changes were as prolonged or extreme as Mr Lawrence or Mr Molina allege.  She said that A, with her daughter K (aged 2 years), and B visit often daily and sometimes stay overnight.  She said that C has recently returned to live with her after having separated from her boyfriend.  D has recently returned to live with Ms Molina after trialling an unsuccessful period of time living with her “Ms D” (Ms Molina’s sister).   Ms Molina said that it is important for her children to know that she is always there for them and that they are welcome at her home anytime.  She said that she has restricted the amount of, and frequency with which people stay at her home (other than her own children) in an attempt to allow the children to experience greater stability and consistency within their home.   Ms Molina alluded to having experienced difficulties with her children’s friends coming to the house in the past (and she indicated that it was something that had improved), but she did not provide further details.

Ms Molina said that she is concerned about some of her children.  She said that D has refused to attend school for the previous three months, apparently because D’s cousin transferred to another school at the beginning of this year. She is concerned that D is depressed and angry.  Ms Molina is worried about A (aged 21 years) who is reportedly in an on again off again violent relationship, pregnant with her second child and experiencing considerable mental health issues including having deliberately cut herself and having had psychiatric admissions (which she said had been largely unhelpful for A).   She said that X (aged 13 years), who last year was excelling at school, has been suspended for 20 days after verbally abusing the Principal and a student and, thus, has likely damaged her chance of receiving a scholarship that she was eligible for.  She said that C is three months pregnant and, although she believes that C is likely to be a “good Mum”, Ms Molina is concerned that C is facing single teenage motherhood.  Ms Molina said that C does not attend school.

Ms Molina believes that she is a good parent.  She denies, as Mr Dent and Mr Lawrence allege, that she neglects the children, lacks routine or boundaries, exposes the children to drug and alcohol use or allows multiple visitors into the house.  Ms Molina said that her children do not smoke marijuana nor drink alcohol in her home and that she offers them routine, stability and love.  Despite this, Ms Molina appeared to feel somewhat at a loss as to what she could do to help the children reach better outcomes.  Although Ms Molina said that she maintains rules and routine, she acknowledged that D is allowed to have her boyfriend stay over “otherwise she (D) goes off”.

53.When one has regard to the totality of the evidence before the Court, it becomes apparent that at paragraph 18 the Mother was understating the situation in her home at (omitted) and the extent to which she was having difficulties with people coming and going and the activities within the house.  Mr Lawrence’s description of the house as the “party house” was probably no exaggeration.  Even the Mother conceded in cross-examination that the Police were regular visitors to the home and that there were multiple break-ins. 

54.By the time of the final hearing, there was no evidence from the Mother to suggest that she had gained insight about the problems caused through her inability to establish and maintain boundaries for the children in her care and in her home. 

55.At paragraph 21 she refers to the drug and alcohol issues raised against her:

Ms Molina said that she has not used illicit substances since September 2012.  She said that, prior to 2012, she said that she would smoke a “few bongs a night” usually on her own and never in the company of the children.  She denies that she has a problem with alcohol, reporting that she would usually drink one can of premix bourbon and coke and “every now and then” at the most 10 cans.  She denies drinking daily and said that nobody, including Mr Dent or Mr Lawrence, have previously raised alcohol as a problem for her.

56.The Mother is probably correct in asserting that neither of the fathers in this case had made any serious allegation about alcohol abuse pertaining to her.  As will be seen from the discussion of her evidence, however, for the Independent Children’s Lawyer, her cannabis use presented a concern, particularly in terms of the risk of relapse. 

57.At paragraph 23 she recites her concerns about Z and Y living with Mr Dent:

Ms Molina said that she is concerned about Z and especially Y living with Mr Dent.  She said that the girls are living away from X for the first time and that, when they talk to her on the phone, they sound sad and, at times, are crying.  She said that the girls have repeatedly told her that they want to return to live with her.  She believes that Mr Dent would not hurt the girls but she raised concerns about how he treats them, particularly Y, it appears because she is not Mr Dent’s biological child.  She said that both children have told her that: Mr Dent yells at them; disciplines them; leaves the girls in the car when he goes to the pub for a beer; and that he continues to drink alcohol while he has the children in his care.  She alleges that, during their relationship, Mr Dent drank heavily and daily and she is concerned that his alleged drinking problem continues.

58.It is interesting to observe that the Mother seemed to have far less concerns about the children’s welfare with Mr Dent than Mr Lawrence did. 

59.The Family Consultant’s impressions of Mr Lawrence are recorded at paragraph 27. The Family Consultant described his presentation as that of “an intense man who, throughout the day of interviews, experienced difficulties with feelings of frustration and he needed to leave the waiting area in order to calm himself to then return”.  This is consistent with the Court’s own observation with Mr Lawrence during the four-day hearing.  There were times when he was clearly frustrated, had to leave for short periods but did seem to regain his composure quite quickly.  He did not lose his composure during the time he was in Court. 

60.At paragraph 28 the Family Consultant records:

Mr Lawrence believes that he has made many mistakes in his past, that he has “never met a man who has been though what I’ve been thorough” but that he has worked hard at stabalising his life.  He said that he has quit smoking cigarettes, has decreased his alcohol use to an occasional beer and has not had illicit substances “in years”.  He described his early adulthood as problematic with drug addiction and illegal antisocial behaviour which resulted in several incarcerations including an incident, in which, whilst heavily intoxicated, he went to a wedding reception venue with an unloaded gun to threaten his sister regarding a family dispute.  He was critical of his perceived general treatment of always being portrayed a criminal, despite his reports of rehabilitation.  He appeared to tolerate hearing that counselling might be of assistance in dealing with stress more positively, but he did not appear motivated about the prospect of attending counselling.

61.There is no question that Mr Lawrence has had a difficult past.  It is also unquestionable that he was not motivated to seek counselling or, indeed to deal in any way with an anger management problem that he himself at least tacitly if not expressly acknowledged. 

62.At paragraph 31 the Family Consultant records Mr Lawrence’s concerns about Mr Dent’s parenting:

Mr Lawrence raised concerns about Ms Molina’s capacity to parent. He was globally negative in his opinion about her alleging that she lacks boundaries and rules, that the children are neglected and are left to raise themselves, that there is drug abuse and excessive alcohol use in the house (including underage use), that the house is promoted as a local “party house” and that the girls are allowed to have boyfriends stay overnight (from the age of 13 years).  Mr Lawrence said that when Ms Molina reconciled with Mr J and the children reported to him that Mr J had verbally and physically abused them, in September 2013, that he could no longer allow them to continue to be in their mother’s unsafe environment.  He said that he took the children to the police station so that they could report to the Police what they said had occurred. Mr Lawrence blamed all the negative attributes of the children (negative peer associations, school attendance issues, antisocial “at risk” behaviours) to Ms Molina’s parenting.  Any positives he attributed to his influence.  He appeared to have seen his role with the children as giving them (all of them) “morals” and support.   

63.The reported concerns continued at paragraphs 32 and 33:

Mr Lawrence does not support Y living with Mr Dent and he had a globally negative opinion about Mr Dent saying “I have always hated Mr Dent (Mr Dent)”.  He said that Mr Dent was morally corrupt to have had an intimate relationship with his nephew’s (Mr J) partner and that, for Z, she will be “horrified” when she understands that her half siblings are also her cousins etc.  It appears that Mr Lawrence supported the arrangement for Y to live with Mr Dent, at least, in February 2014, however, he believes that Mr Dent “played me”.  Mr Lawrence said that Mr Dent subsequently retracted his commitment to arrange and support time between Y and Mr Lawrence.  Mr Lawrence alleges that he has been largely unable to see or speak with Y since Y has been at Mr Dent’s home.

Mr Lawrence raised concerns about Mr Dent’s parenting including Y has told him that Mr Dent leaves her and Z in the car while he goes to the pub to drink alcohol and that Mr Dent physically disciplines Y.  Mr Lawrence said that Y has repeatedly told him that she does not want to live with Mr Dent.   Mr Lawrence said that, when he spent time with Y in the school holidays at Mr Dent’s house, Mr Dent was drinking alcohol excessively while the children were in his care.  Mr Lawrence said that he no longer rings Y as Mr Dent will often not allow Y to speak with him.  Mr Lawrence alleges that Y has been chastised by Mr Dent for speaking to him (Mr Lawrence).

64.At the time, Mr Lawrence’s proposal was that both X and Y live with him and thus, as at June 2014, he obviously continued to harbour sufficient concerns about the safety of the children in their mother’s household as to maintain this proposal.  Indeed, he was recorded as specifically asserting that the children “would be safe in his care”, something he said is not evident in either Ms Molina’s home or Mr Dent’s home.  Mr Lawrence did acknowledge that X did not want to live with him and he could not force the issue. 

65.The Family Consultant’s observations relating to Mr Dent commenced at paragraph 36.  He presented “as open and concerned about the children”.  He explained that after the children were placed in his care, he originally lived at the home of his sister until April 2014.  He ceased working full time in order to able to care for the children.  At paragraph 39 he explained how the children had settled into living with him:

Mr Dent said that Z and Y have each settled into living with him and attending a new school.  He said that Y needed a little more time to settle in, particularly with accepting boundaries around expected behaviour, but that both girls appear happy and confident now.  Mr Dent said that the girls share a room (as they prefer to share a room rather than have their own room) and they have become accustomed to the routine that includes school, extra-curricular activities (gymnastics and camping), homework and a structured bedtime.  He said that he has observed that Z and Y have each improved with their general language – he alleges that they would previously use foul and aggressive language towards each other and to him.  He said that their school attendance and schoolwork has improved.  He said that Z and Y refer to his place as “home” and express to him positive feelings when they return there.

The Maturity, Sex, Lifestyle and Background of the Children

159.The Court is required to consider the maturity, sex, lifestyle and background of the children and their parents and any other characteristics of the children that the Court thinks are relevant.  The family tree that was set out at the beginning of these reasons provides a mere glimpse of the complex family dynamics that are at play in this case.  Each of the parents - Mr Lawrence, Mr Dent, and Ms Molina - have had very difficult lives including social disadvantage, violence, abuse, neglect, drug and alcohol and mental health issues.  Without wishing to be critical of the Mother, on one view of the evidence the cycle of dysfunction that she experienced is being repeated in the lives of A, B, C, D and now X.  If leaving Z and Y in Mr Dent's care means that the cycle of dysfunction is broken, that must surely be in their best interests.

Childrens’ Aboriginality and Culture

160.The Court is required to consider the children's Aboriginality and their right to enjoy their culture.  The Court had the benefit of Mr S's reports but, as previously indicated and as Mr S himself said, this is a case where other issues prevail.  The Court is satisfied that Mr Dent will do nothing to stop the children from enjoying their Aboriginal culture and indeed, the children are already involved in Aboriginal activities at their school. 

Parental Attitudes

161.The Court must consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children's parents.  It is hard to criticise Mr Dent's attitude since the children came into his care.  He genuinely appears to have done the best that he can.  From Z and Y's perspective, they have probably received the most consistent and stable parenting in their lives whilst in his care.  Before they came into his care, however, Mr Dent probably could have done more because he, like Mr Lawrence, was well aware of the problems in the Mother's household over many years.  Of all the parents, however, he was the one to show the greatest insight, particularly in terms of how the children were experiencing the changes in their lives.

162.Mr Lawrence showed a very poor attitude to the children and to the responsibilities of parenthood by failing to protect the children from his own feelings of enmity towards Mr Dent.  He unwittingly put the children in a position where some of them would try to protect him from himself and others might seek to exploit his enmity towards Mr Dent.  His unwillingness to do anything about his clear anger management issues was disappointing. 

163.Ms Molina's attitudes to the children and to the responsibilities of parenthood are clearly clouded by the overwhelming sense of powerlessness that pervaded her parenting.  She clearly was not in control of the children for most of their lives.  The lives of A, B, C, D and X demonstrate this.  Her lack of insight about the nature and extent of her problems and unwillingness to do anything about it, signalled irresponsible parenthood.  It must not be forgotten, however, that she was the product of her childhood, upbringing and the dysfunctional relationships that she entered into with each of Mr J, Mr Dent and Mr Lawrence. 

Family Violence

164.The Court is required to take into account family violence and family violence orders.  The evidence suggests that there was violence present, to varying degrees, in Ms Molina's relationship with each of Mr Lawrence, Mr Dent and Mr J.  In terms of frequency and intensity, the evidence suggests that the relationship with Mr J was a highly violent and dysfunctional one, to which the children in their care were exposed.  However, X, Y and Z were exposed to violence, not just in their mother's relationship with their fathers, but with other people.  The impression created about life in the (omitted) house suggested that violence was a not infrequent occurrence.  Certainly X's relationship with Mr Lawrence is a violent one, at times, and there is a family violence order in place there. 

165.Overall, the Court is satisfied that even though all of the children have been exposed to violence in different ways, at different times, and in different context during their life, there is the least chance of future exposure to violence if Y and Z remain in the care of Mr Dent.

Order Least Likely to Lead to the Institution of Further Proceedings

166.The Court is required to make an order, if possible, that is least likely to lead to the institution of further proceedings in relation to the children.  That may be difficult in this case for several reasons.  Firstly, the Family Consultant, Ms S, clearly warned that, if Y and Z were left in Mr Dent's care, this placement would not be supported either by Ms Molina or Mr Lawrence, and that in time this would be the undoing of the order.  That is quite possibly so.  It is highly unlikely that Ms Molina and Mr Lawrence will support Y and Z's care by Mr Dent.  Just how actively they will oppose this, remains to be seen.  There are other factors at play.  As the children get older, Z and Y will have an increasingly greater say on where they live and how much time they spend with the significant people in their lives.  For the time being, however, they are only nine and seven. 

167.The other destabilising factor in terms of the orders that the Court will make is that Mr Lawrence was so strident in his evidence in telling the Court that he would appeal any order that resulted in a child of his, Y, being placed in Mr Dent's care.  The fact is that Mr Lawrence has the right to do whatever he likes within the law about the orders the Court makes.  The Court can only hope, however, that Mr Lawrence might be reassured by the fact that the Court has exhaustively looked at whether Y is at risk in Mr Dent's care, and has concluded that indeed there is no risk, but if there were, it would be far less of a risk than if Y were in her mother's care, or Mr Lawrence's care.

168.Nonetheless, it must be recognised that the factors set out above do suggest that it may be difficult to make an order that is unlikely to lead to the institution of further proceedings.

The Legislative Pathway

169.The Court must consider, having regard to the evidence, what order to make in relation to parental responsibility in circumstances where the Act creates a presumption of equal shared parental responsibility.  As it turns out, this is not nearly as difficult to determine as was the arrangements about where the children would live.  On balance, the evidence indicates that Y and Z should remain in the care of Mr Dent. 

170.Whilst it was common ground that X would continue to live with her mother and spend time with her father, Mr Lawrence, in accordance with her wishes, there seemed little contention that there should be an order for equal shared parental responsibility between X's mother and biological father. 

171.In relation to Z, likewise there seemed little contention that there should be an order for equal shared parental responsibility between her biological parents. 

172.The difficulty arises in relation to Y who would be living in the care of a non-biological parent, Mr Dent.  The Independent Children's Lawyer proposed, and the Court accepts, that in the circumstances of this case an order for equal shared parental responsibility should be made as between Y's mother, Ms Molina, and Mr Dent who will, for all practical purposes, be her psychological parent.  Mr Lawrence would be excluded from parental responsibility except that he would need to be consulted, and his opinion would need to be considered, in the exercise of parental responsibility.  The Independent Children's Lawyer's proposed formula for dealing with this appears appropriate.  This conclusion is inevitable on the facts of this case.  Mr Lawrence and Mr Dent do not communicate with each other, do not trust each other and do not have the sort of relationship that would sustain the obligations incumbent pursuant to an order for shared parental responsibility.  It is hard to see that changing in the future.  It is clearly not in Y's best interests that her biological father have parental responsibility in circumstances where she will be primarily cared for, on a day-to-day basis, by her psychological parent, Mr Dent.

173.The making of orders for equal shared parental responsibility means that the Court must consider equal time, or substantial and significant time, provided this is in the children's best interests, and is reasonably practicable.

174.When one has regard to the complex family dynamics in this case, let alone the practical issues of distance between the (omitted) of New South Wales and (omitted), neither equal time, nor substantial and significant time, are technically possible.  Neither is in the best interests of the children, nor reasonably practicable, as defined in the legislation. 

175.The best the Court can do is to make detailed and prescriptive orders that provide the framework for each of the children to have contact and communication with each of the significant people in their lives, both parents and siblings, and hope that the parents entrusted with the responsibility of implementing these orders have the commitment and capacity to do so. 

Orders in the Best Interests of the Children

176.It should be apparent from these reasons for judgment so far that the Court does not believe it is in the best interests of Y and Z to make orders consistent with that proposed by their mother or by Mr Lawrence.  The proposals by Mr Dent and the Independent Children's Lawyer are much more closely aligned to what this Court has assessed to be in the best interests of the girls.  These proposals are relatively well-aligned.  Perhaps the most significant point of departure is in relation to the child Y where Mr Dent proposes that Y only have supervised time with Mr Lawrence, whereas the Independent Children's Lawyer proposes that Y have time with her father for a limited period coinciding with the time that Y spends with her mother.  The Court believes that the Independent Children's Lawyer's proposal is sufficiently protective of Y in that it is for a limited period only and that it occurs within the Mother's time.  As will be seen, the Court believes that the orders suggested by the Independent Children's Lawyer are not just adequately protective, but adequately prescriptive as well.

177.In relation to X the Independent Children's Lawyer proposed an order for Ms Molina and Mr Lawrence to facilitate X obtaining counselling to manage her emotions, amongst other things.  No opposition was advanced to this proposal but, when viewed historically, there is reason to be sceptical about the capacity of each parent to actually make this happen. 

178.It is without doubt that the only way that X could spend time with her father, Mr Lawrence, is if she decides to do so.  The order proposed is appropriate. 

179.The orders for communication are necessarily prescriptive, but again there must be some room for scepticism about the parents' capacity to implement this, particularly should their current alliance break down. 

180.The restraints proposed by the Independent Children's Lawyer are appropriate, having regard to the evidence before the Court, and certainly go no further than is necessary.

181.The Court agrees with the orders proposed by the Independent Children's Lawyer in relation to X.  As indicated, there was hardly any opposition to the vast majority of the orders sought.

182.In relation to Y, there is no doubt in the Court's mind that Y should continue to live with Mr Dent, for the reasons previously articulated.  The proposal for Y to spend time with her mother, coinciding with spending time with her father, were proposals that were outlined to the Family Consultant, Ms S, and which she supported.  The orders are sufficiently prescriptive.  This would mean that Y would be spending time with her sister, mother, and father at least twice during the school term, as well as during each school holiday period.  There is adequate provision for special occasions.  The orders for communication are appropriate and again sufficiently prescriptive.  The changeover provisions are both fair and most importantly, signal to Y the commitment of both her parents and Mr Dent to the importance of spending time with the others.  The restraints proposed by the Independent Children's Lawyer are appropriate, having regard to the evidence before the Court and again, go no further than is necessary. 

183.In relation to Z, it is in her best interests that she continues to live with her father.  She would spend time with her mother in the same pattern as Y spends time with her mother, that is, during each school holiday and at least on two weekends during each school term.  The orders for communication, changeover, and restraint are appropriate, sufficiently prescriptive, signal a commitment by both her parents, and go no further than are necessary.

184.The Court accepts the Independent Children's Lawyer's proposed orders in relation to Z, X and Y.

I certify that the preceding one hundred and eighty-four (184) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:   23 July 2015

Schedule One

Current orders

RESTRAINTS

(1)Without admission, Mr Dent be restrained from leaving the children Y or Z unsupervised by an adult at any time.

(2)That each party be restrained from physically disciplining any of the children.

(3)That each party be restrained from:

(a)consuming more than 2 alcoholic beverages in a twelve      hour period during any time the children are in their respective care;

(b)consuming or being effected by any illicit substance during any time the children are in their respective care;

(c)permitting the children from being in the presence of any   person apparently effected by or using any illicit substance.

(4)That the mother be restrained from permitting the children from being in the presence of Mr J or Mr W.

THERAPEAUTIC INTERVENTION

(5)That the mother do all things necessary and take all necessary steps to;

(a)engage in a drug and alcohol assessment and intervention programme within 14 days of the making of these orders;

(b)engage in family counselling in respect of her relationship with Mr J, which shall include counselling for victims of domestic violence;

(c)arrange for and facilitate the child X engaging in Counselling with the Aboriginal medical service, and to      continue to attend that counselling for so long as is recommended by that service.

(6)That Mr Lawrence, forthwith, do all things necessary to engage in Anger Management Counselling, and counselling aimed at assisting him to deal with stress and emotions, and continue to attend such counselling for so long as is recommended by the counsellor.

CULTURAL HERITAGE

(7)That Mr Dent use his best endeavours to support the children in identifying with their aboriginal heritage.

TELEPHONE COMMUNICATION

(8)That the children, Z and Y communicate with the mother and X by telephone at any reasonable time, and in lieu of agreement, each Tuesday and Thursday between the hours of 5.30pm until 6.30pm, with the mother to telephone Mr Dent for the purpose of facilitating such communication.

(9)That the child Y communicate with Mr Lawrence by telephone each Tuesday and Thursday between the hours of 6.30pm and 7.30pm with Mr Lawrence to telephone Mr Dent for the purpose of facilitating such communication.

SPENDING TIME ARRANGEMENTS

(10)That the children X, Y and Z, spend time with the mother for the first week of each of the NSW Term 1, 2, and 3 Public School holiday periods, from 3.30pm on the first Saturday of the school holiday period and concluding at 3pm on the following Saturday.

(11)That the child Z spend time with her father, Mr Dent for the second week of each of the NSW Term 1, 2 and 3 Public School holiday periods, from 3pm on the middle Saturday until the resumption of school. 

(12)That, subject to Mr Lawrence providing evidence to each other party of his capacity to comply with Order 13(d) in respect of returning Y to Mr Dent, and subject to X’s wishes, the children X and Y spend time with their father, Mr Lawrence during each of the NSW Term 1, 2 and 3 Public school holiday periods, from 5pm on the middle Saturday until 5pm the following Wednesday.

(13)To facilitate these Orders:

(a)the mother shall collect Y and Z from Mr Dent at his home at the commencement of the time pursuant to Order 10;

(b)Mr Dent shall collect Z from the mother at her home at the commencement of the time in Order 11;

(c)Mr Lawrence will collect the children from the mother at her home at the commencement of the time in Order 12;

(d)Mr Lawrence will return the child X to her mother, either prior to or upon his return from his journey to (omitted) to return Y to Mr Dent and, Mr Lawrence will return the child Y to Mr Dent at (omitted) railway station at the conclusion of the time pursuant to order 12.

(14) In default of Mr Lawrence complying with Order 12, that the child Y return to Mr Dent when he collects the child Z pursuant to Order 11.

(15) That, during the NSW Christmas school holiday period, the children X, Z and Y spend time with the mother for two weeks, at such times as are agreed between the parties, and in lieu of agreement, from 3pm 26 December 2014 for 14 consecutive nights, until 3pm on 9 January 2015, and that thereafter, Z remain in her mother’s care until the conclusion of the time that X and Y spend with Mr Lawrence pursuant to Order 16.

(16) That, during the NSW Christmas school holiday period, the children Y and X,  spend time with Mr Lawrence for 4 consecutive nights, and in lieu of agreement, from 3pm on 9.1.2015 until 3pm on 3pm on 13.1.2014, provided that X spending time with her father shall be subject to her wishes.

(17) That the children Z and Y spend time with Mr Dent during the NSW Christmas school holiday period for such period as is mutually agreed, and in lieu of agreement, from 3pm 13.1.2015 until the resumption of school.

(18) That the child X spend time with Mr Lawrence, during NSW Public school terms in accordance with her wishes.

(19) That the child Y spend time with Mr Lawrence on not more than 3 occasions during each school term, with at least one of those occasions occurring in the (omitted) area, at such times as are mutually agreed, and in lieu of agreement, the 3^rd and 6^th weekends, from after school Friday until 5pm Sunday, and the parties shall use their best endeavours to arrange for such time to occur at times that X spends time with Mr Lawrence pursuant to Order 17, with Mr Lawrence to collect Y from (omitted) Railway Station at the commencement of such time, and with Mr Dent to collect the children from Mr Lawrence at the conclusion of such time at (omitted) Railway station when the time occurs in (omitted) and from (omitted) Railway station when the time occurs in (omitted).

(20) That the children Z and Y spend time with the mother during NSW Public school terms, on not less than 3 occasions during each school term at such times are mutually agreed, and in lieu of agreement, the 2^nd, 5^th and 8^th weekend, with at least one of those occasions occurring in the (omitted) area, with the mother to collect the children from Mr Dent at the commencement of such time and Mr Dent to collect the children from the mother at the conclusion of such time.

NOTATION:

A.It is noted that if Y expresses a wish to spend more time with her brothers and sisters during any time she is to spend with Mr Lawrence pursuant to these Orders, Mr Lawrence and Ms Molina will make such arrangements between themselves to facilitate this.

Schedule Two

Minute of Orders Sought by the Independent Children’s lawyer (noting that reference to the ‘first Respondent’ is to Mr Lawrence and the ‘second Respondent’ is to Mr Dent)

IN RESPECT OF THE CHILD X BORN (omitted) 2000

Parental Responsibility

(1)That the Mother and first Respondent Father have equal shared parental responsibility for the child, X, born (omitted) 2000.

(2)That both parents do all things necessary and sign all necessary documents to:

(a)facilitate X engaging in Counselling to assist her in managing her emotions; and

(b)support her in reaching her potential, including supporting her application for scholarship, in accordance with any wishes expressed by her;

(c)supporting X’s right to identify with and enjoy her Aboriginal culture, including her right to enjoy that culture with her kin and other people who share her culture.

Living Arrangements

1. That the child live with the mother.

   Spending time arrangements

2. That the child spend time with the First Respondent Father in accordance with her wishes.

   Communication

3. That the child communicate with the First Respondent father by telephone at all reasonable times, and at any time she expresses a wish to do so, and the mother facilitate such telephone communication by providing the child with the means to do so.

4. That the parents communicate matters pertaining to the care, welfare or development of the child:

   (a)by telephone in the case of emergency;

   (b)for pressing but non-emergency issues, by short factual text

   message;

   (c)for any other issues, by letter sent by ordinary pre-paid post;

   (d)for matters requiring a response, a response is to be provided, in

   respect of communications pursuant to:

   (ii)order 6a within 24 hours;

   (iii)order 6b, within 48 hours;

   (iv)order 6c, within 14 days.

5. The parents will be courteous and civil towards each other and all other persons significant to the child at all times but especially in the presence or within the hearing of the child.

6. That the parents are each to ensure that the other parent is kept informed of:-

   (a)serious medical problems or illnesses suffered by the child and/or any invasive medical procedure performed on the child, with the other parent to be notified as soon as is reasonably practicable;

   (b)any medical emergencies involving the child, with the other parent to be notified immediately;

   (c)any medication that has been prescribed for the child that needs to be taken during the time the child are with the other parent, with the other parent to be notified at the time of changeover;

   (d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

   (e)any social or religious functions which the child is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;

   (f)the telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;

   (g)any other matter relevant to the welfare of the child, with the other parent to be notified as soon as is reasonably practicable.

   Restraints

7. Each parent is restrained from:

   (a)abusing, insulting, belittling, rebuking or criticising or denigrating the other parent, or any member of that parent’s household or family  in the presence or within the hearing of the child and shall forthwith remove the child from the presence of any other person who does so;

   (b)using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to the child’s care, welfare and development;

   (c)using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use);

   (d)taking, consuming and/or being affected by any illicit substance while the child is in their respective care or for 24 hours preceding such time;

   (e)consuming alcohol in excess of the legal driving limit during any time the child is in his or her respective care;

   (f)permitting the child coming into contact at any time with Mr J;

   (g)permitting the child to come into contact with Mr W, unless the child is also in the presence of a responsible adult known to the child;

   (h)exposing the child to any form of family violence, and shall forthwith remove the child from the presence of any person engaging in such behaviour;

   (i)using foul language in the presence of the child, and shall forthwith remove the child from the presence of any person who does so;

   (j)using physical discipline on the child.

   Authorities

8. That these Orders constitute authority of each parent to receive copies of school reports, newsletters, notices and school photograph order forms.

9. That these Orders constitute authority of both parents, for each parent to liaise with the child's treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to the child as he or she may seek.

10. That these Orders constitute the authority of both parents, for each parent to liaise directly with the child’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child’s progress.

    Specific Issues

11. That the parents facilitate the child attending upon the Independent Children’s Lawyer for the purpose of explaining the Orders pertaining to herself, Z and Y, to her.

    ORDERS PERTAINING TO THE CHILD Y BORN (omitted) 2008

    Parental Responsibility

12. That the Mother and Second Respondent have equal shared parental responsibility for the child, Y, born (omitted) 2008.

13. That, in the exercise of parental responsibility for the child Y, the Mother and Second Respondent shall do all things necessary to consult with and obtain the opinion of the First Respondent Father, and have regard to his opinion in making a decision in exercise of their responsibility.

14. For the purpose of ascertaining the First Respondent father’s views pursuant to Order 15, the mother shall contact the first respondent father and communicate the First Respondent’s views to the Second Respondent directly.

15. That each party to do all things to supporting Y’s right to identify with and enjoy her Aboriginal culture, including her right to enjoy that culture with her kin and other people who share her culture.

    Living Arrangements

16. That the child live with the Second Respondent.

    Spending time arrangements

17. That the child spend time with the mother:

    (a)At such times as are mutually agreed between the mother and Second Respondent, and in lieu of agreement:

    (iii)DURING NEW SOUTH WALES PUBLIC SCHOOL TERMS each third and seventh weekend of the school term, subject to the mother’s compliance with Order 29(f), commencing from after school Thursday until 3pm Sunday, provided that the mother facilitates the child’s attendance at school on the Friday;

    (iv)DURING NEW SOUTH WALES PUBLIC SCHOOL TERM 1, 2 AND 3 SCHOOL HOLIDAY PERIODS, at such times as are mutually agreed and in lieu of agreement, for not less than 10 days commencing the first Monday of the school holiday period, until 3pm on the last Thursday of the school holiday period;

    (v)DURING NEW SOUTH WALES PUBLIC SCHOOL TERM 4 (CHRISTMAS) HOLIDAY PERIOD, at such times as are mutually agreed, and in lieu of agreement, for not less than 3 weeks, being:

    (A)the first 3 weeks in years where the holiday period commences in odd numbered years, commencing at 10am on the Saturday after school concludes; and

    (B)the last 3 weeks in years where the holiday period commences in even numbered years, concluding at 3pm on the Sunday prior to the resumption of school;

    (vi)ON THE FOLLOWING SPECIAL OCCASIONS:

    (A)on the weekend including mother’s day, subject to the mother’s compliance with Order 29(f), and provided the mother facilitates the child’s attendance at school, commencing from after school Thursday and concluding at 3pm Sunday; and

    (B)on the weekend closest to the child X’s birthday (being (omitted)), subject to the mother’s compliance with Order 29(f), and provided the mother facilitates the child’s attendance at school, commencing from after school Thursday and concluding at 3pm Sunday;

    (C)on the weekend closest to the First Respondent Father’s birthday (being (omitted)).

    (20)   That the child spend time with the First Respondent father:

    i.At such times as are mutually agreed between the parties, and in lieu of agreement:

    (i)DURING NEW SOUTH WALES PUBLIC SCHOOL TERMS during such times that the child is spending time with the mother pursuant to these Orders, and in lieu of agreement, not less than 5 hours during the time the child spends time with the mother pursuant to Order 19(a)(i);

    (ii)DURING NEW SOUTH WALES PUBLIC SCHOOL TERM 1, 2 AND 3 SCHOOL HOLIDAY PERIODS, at such times as are mutually agreed between the parties, and in lieu of agreement, during such times as the child is spending time with the mother pursuant to Orders 19(a)(ii), for not less than 3 blocks of 5 hours and in lieu of agreement, over 3 consecutive days; and

    (iii)DURING NEW SOUTH WALES PUBLIC SCHOOL TERM 4 (CHRISTMAS) HOLIDAY PERIOD, at such times as are mutually agreed between the parties, and in lieu of agreement, for not less than 4 blocks of 5 hours during such times that the child spends time with the mother pursuant to Order 19(a)(iii), and in lieu of agreement, over 4 consecutive days;

    (iv)ON THE FOLLOWING SPECIAL OCCASIONS:

    (A)on the weekend closest to the First Respondent Father’s birthday (being (omitted)), and in lieu of agreement for 5 hours;

    (B)during the Christmas period each odd numbered year, at such times as are mutually agreed between the mother and the First Respondent Father, and in lieu of agreement, from 3pm Christmas day until 3pm Boxing Day.

    Suspension of Time

    (21)That the time the child spends with the mother and First Respondent Father’s birthday pursuant to these Orders, shall be suspended on the weekend closest to the Second Respondent’s birthday, being (omitted).

    Communication

    (22)That the child communicate with the mother by telephone:

    (a)each Tuesday, Thursday and Sunday, at such times as are mutually agreed, and in lieu of agreement, between 6.30pm and 7.30pm; and

    (b)on the mother’s birthday, being (omitted);

    (c)on each of the child’s siblings birthdays, with the mother to use her best endeavours to facilitate the child communicating with her brother or sister on their birthday;

    (d)on the child’s birthday;

    (e)on Christmas day at 10am;

    (f)At such times as the child expresses a wish to communicate with her mother;

    with the mother to telephone the father’s mobile or landline telephone number for the purposes of facilitating the communication pursuant to Order 22(a)-(e), and with the father to telephone the mother’s mobile for the purpose of facilitating the communication pursuant to Order 22(f).

    (23)That the child communicate with the First Respondent Father by telephone, as far as is practicable, at such times as she also communicates with the mother, but in lieu of that occurring:

    (a)each Tuesday, Thursday and Sunday, at such times as are mutually agreed, and in lieu of agreement, between 6.30pm and 7.00pm and 8pm; and

    (b)on the First Respondent father’s birthday, being (omitted);

    (c)on the child’s birthday;

    (d)on Christmas day at 10.30am;

    (e)at such times as the child expresses a wish to communicate with her father;

    (24)That the child communicate with the Second Respondent by telephone each Tuesday, Thursday and Sunday between the hours of 6.30pm and 7.30pm during the time the child is spending time with the mother pursuant to Order 19(a)(ii)-(iv), and each Saturday between the hours of 6.30pm and 7.30pm during the time the child spends with the mother pursuant to Order 19(a)(i).

    (25)That the parties communicate matters pertaining to the care, welfare or development of the child:

    (a)   by telephone in the case of emergency;

    (b)   for pressing but non-emergency issues, by short factual text   message;

    (c)   for any other issues, by letter sent by ordinary pre-paid post;

    (d)   for matters requiring a response, a response is to be provided, in     respect of communications pursuant to:

    ii.(i)order 25a within 24 hours;

    iii.(ii)Order 25b, within 48 hours;

    iv.Order 25c, within 14 days.

    (26)The parties will be courteous and civil towards each other and all other persons significant to the child at all times but especially in the presence or within the hearing of the child.

    (27)That the parties are each to ensure that each other party is kept informed of:-

    (a)serious medical problems or illnesses suffered by the child and/or any invasive medical procedure performed on the child, with the other parent to be notified as soon as is reasonably practicable;

    (b)any medical emergencies involving the child, with the other parent to be notified immediately;

    (c)any medication that has been prescribed for the child that needs to be taken during the time the child are with the other parent, with the other parent to be notified at the time of changeover;

    (d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

    (e)any social or religious functions which the child is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;

    (f)the telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;

    (g)any other matter relevant to the welfare of the child, with the other parent to be notified as soon as is reasonably practicable.

    Changeover

    (28)Unless otherwise agreed:

    (a)That the mother collect the child from school or the Second Respondent’s home at the commencement of the time the child spends with the mother pursuant to Order 19(a) and the Second Respondent collect the child from the mother’s home at the conclusion of such time; and

    (b)That the First Respondent father collect the child from and return the child to the mother’s home at the commencement and conclusion of the time the child spends with him pursuant to these Orders.

    Restraints

    (29)Each party is restrained from:

    (a)abusing, insulting, belittling, rebuking or criticising or denigrating any other party, or any member of that party’s household or family  in the presence or within the hearing of the child and shall forthwith remove the child from the presence of any other person who does so;

    (b)using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to the child’s care, welfare and development;

    (c)using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use);

    (d)taking, consuming and/or being affected by any illicit substance while the child is in their respective care or for 24 hours preceding such time;

    (e)consuming alcohol in excess of the legal driving limit during any time the child is in his or her respective care;

    (f)permitting the child coming into contact at any time with Mr J;

    (g)permitting the child to come into contact with the following persons, unless the child is also in the presence of a responsible adult known to the child:

    ii.Ms T;

    iii.Mr A;

    iv.Mr W.

    (h)exposing the child to any form of family violence, and shall forthwith remove the child from the presence of any person engaging in such behaviour;

    (i)leaving the child unsupervised by a responsible adult for a period in excess of 5 minutes;

    (j)using foul language in the presence of the child, and shall

    i.forthwith remove the child from the presence of any person who does so;

    (k)using physical discipline on the child.

    Authorities

    (30)That these Orders constitute authority of the mother and Second Respondent for each party to  receive copies of school reports, newsletters, notices and school photograph order forms.

    (31)That these Orders constitute authority of the mother and Second Respondent for each party to liaise with the child's treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to the child as he or she may seek.

    (32)That these Orders constitute the authority of the mother and Second Respondent for each party to liaise directly with the child’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child’s progress.

    (33)That the parties do all things necessary to facilitate the child attending upon the Independent Children’s Lawyer for the purpose of explaining these Orders to the child.

    IN RESPECT OF THE CHILD Z BORN (omitted) 2006

    Parental Responsibility

    (34)That the Mother and First Respondent father have equal shared parental responsibility for the child, Z, born (omitted) 2006.

    (35)That both parents do all things necessary to supporting the child’s right to identify with and enjoy her Aboriginal culture, including her right to enjoy that culture with her kin and other people who share her culture.

    Living Arrangements

    (36)That the child live with the father.

    Spending time arrangements

    (37)That the child spend time with the mother:

    (a)At such times as are mutually agreed between the parents, and in lieu of agreement:

    (j)DURING NEW SOUTH WALES PUBLIC SCHOOL TERMS each third and seventh weekend of the school term, subject to the mother’s compliance with Order 12(f), commencing from after school Thursday until 3pm Sunday, provided that the mother facilitates the child’s attendance at school on the Friday;

    (vii)DURING NEW SOUTH WALES PUBLIC SCHOOL TERM 1 AND 3 SCHOOL HOLIDAY PERIODS, at such times as are mutually agreed and in lieu of agreement, for not less than 10 days commencing the first Monday of the school holiday period, until 3pm on the last Thursday of the school holiday period;

    (viii)DURING NEW SOUTH WALES PUBLIC SCHOOL TERM 2 holiday period for one week, commencing at 10am on the middle Saturday until 3pm on the last Sunday of the holiday period;

    (ix)DURING NEW SOUTH WALES PUBLIC SCHOOL TERM 4 (CHRISTMAS) HOLIDAY PERIOD, at such times as are mutually agreed, and in lieu of agreement, for not less than 3 weeks, being:

    (A)the first 3 weeks in years where the holiday period commences in odd numbered years, commencing at 10am on the Saturday after school concludes; and

    (B)the last 3 weeks in years where the holiday period commences in even numbered years, concluding at 3pm on the Sunday prior to the resumption of school;

    (x)ON THE FOLLOWING SPECIAL OCCASIONS:

    (A)on the weekend including mother’s day, subject to the mother’s compliance with Order 12(f), and provided the mother facilitates the child’s attendance at school, commencing from after school Thursday and concluding at 3pm Sunday; and

    (B)on the weekend closest to the child X’s birthday (being (omitted)), subject to the mother’s compliance with Order 12(f), and provided the mother facilitates the child’s attendance at school, commencing from after school Thursday and concluding at 3pm Sunday.

    Suspension of Time

    (38)That the time the child spends with the mother pursuant to these Orders, shall be suspended on the weekend which includes Father’s day and on the weekend closest to the father’s birthday, being (omitted).

    Communication

    (39)That the child communicate with the mother by telephone:

    (a)each Tuesday, Thursday and Sunday, at such times as are mutually agreed, and in lieu of agreement, between 6.30pm and 7.30pm; and

    (b)on the mother’s birthday, being (omitted);

    (c)on each of the child’s siblings birthdays, with the mother to use her best endeavours to facilitate the child communicating with her brother or sister on their birthday;

    (d)on the child’s birthday;

    (e)on Christmas day at 10am;

    (f)at such times as the child expresses a wish to communicate with her mother;

    with the mother to telephone the father’s mobile or landline telephone number for the purposes of facilitating the communication pursuant to Order 6(a)-(e), and with the father to telephone the mother’s mobile for the purpose of facilitating the communication pursuant to Order 6(f).

    (40)That the child communicate with the father by telephone each Tuesday, Thursday and Sunday between the hours of 6.30pm and 7.30pm during the time the child is spending time with the mother pursuant to Order 4(a)(ii)-(iv), and each Saturday between the hours of 6.30pm and 7.30pm during the time the child spends with the mother pursuant to Order 4(a)(i).

    (41)That the parents communicate matters pertaining to the care, welfare or development of the child:

    (a)by telephone in the case of emergency;

    (b)for pressing but non-emergency issues, by short factual text message;

    (c)for any other issues, by letter sent by ordinary pre-paid post;

    (d)for matters requiring a response, a response is to be provided, in respect of communications pursuant to:

    (i)order 8a within 24 hours;

    (ii)Order 8b, within 48 hours;

    (iii)Order 8c, within 14 days.

    (42)The parents will be courteous and civil towards each other and all other persons significant to the child at all times but especially in the presence or within the hearing of the child.

    (43)That the parents are each to ensure that the other parent is kept informed of:-

    (a)serious medical problems or illnesses suffered by the child and/or any invasive medical procedure performed on the child, with the other parent to be notified as soon as is reasonably practicable;

    (b)any medical emergencies involving the child, with the other parent to be notified immediately;

    (c)any medication that has been prescribed for the child that needs to be taken during the time the child are with the other parent, with the other parent to be notified at the time of changeover;

    (d)any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the child, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

    (e)any social or religious functions which the child is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;

    (f)the telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;

    (g)any other matter relevant to the welfare of the child, with the other parent to be notified as soon as is reasonably practicable.

    Changeover

    (44)Unless otherwise agreed:

    (a)That the mother collect the child from school or the father’s home at the commencement of the time the child spends with the mother pursuant to Order 4(a)(i), (ii), (iv) and (v) and the father collect the child from the mother’s home at the conclusion of such time; and

    (b)That the mother collect the child from the father at (omitted) Railway Station at the commencement of the time the child spends with the mother pursuant to Order 4(a)(iii), with the father to collect the child from the mother’s home at the conclusion of such time.

    Restraints

    (45)Each parent is restrained from:

    (a)abusing, insulting, belittling, rebuking or criticising or denigrating the other parent, or any member of that parent’s household or family  in the presence or within the hearing of the child and shall forthwith remove the child from the presence of any other person who does so;

    (b)using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to the child’s care, welfare and development;

    (c)using abusive and/or aggressive language in any of the forms of communication set out in these orders (or any other form of communication that they use);

    (d)taking, consuming and/or being affected by any illicit substance while the child is in their respective care or for 24 hours preceding such time;

    (e)consuming alcohol in excess of the legal driving limit during any time the child is in his or her respective care;

    (f)permitting the child coming into contact at any time with Mr J;

    (g)permitting the child to come into contact with the following persons, unless the child is also in the presence of a responsible adult known to the child:

    (i)Ms T;

    (ii)Mr A;

    (iii)Mr W.

    (h)exposing the child to any form of family violence, and shall forthwith remove the child from the presence of any person engaging in such behaviour;

    (i)leaving the child unsupervised by a responsible adult for a period in excess of 5 minutes;

    (j)using foul language in the presence of the child, and shall forthwith remove the child from the presence of any person who does so;

    (k)using physical discipline on the child.

    Authorities

    (46)That these Orders constitute authority of each parent to receive copies of school reports, newsletters, notices and school photograph order forms.

    (47)That these Orders constitute authority of both parents, for each parent to liaise with the child's treating medical practitioners and obtain information about any medical treatment and any other medical issues pertaining to the child as he or she may seek.

    (48)That these Orders constitute the authority of both parents, for each parent to liaise directly with the child’s schools, sporting bodies and/or extra-curricular organisations to obtain any necessary information about the child’s progress.

    Specific Issues

    (49)That each parent do all things necessary to facilitate the child attending upon the Independent Children’s Lawyer for the purpose of explaining these Orders to her.
    

    Schedule Three

    Minute of Order Sought by the Applicant Mother

    (1)That all previous Orders be discharged

    (2)That the child of the relationship Z born (omitted) 2006 live with the Mother.

    (3)That in the absence of agreement between the parties, the father spends time with the Z as follows.

    (a)Each alternate weekend from 5pm on the Friday until 5pm on the Sunday.

    (b)Half of all end of term school holidays

    (c)Half of all Christmas holidays.

    (4)That the mother facilitate all reasonable requests by the child to communicate with the father and the father is to have liberal telephone time with the child.

    (5)That neither party consume alcohol to excess or illicit drugs while the children are their care or within 12 hours of spending time with them.

    (6)That neither party denigrate the other in the presence or hearing of the children nor permit any third party to do so.

    (7)That any school attended by the children be authorised to provide  the father (at his own expense) with copies of all reports, updates, newsletters, photographs, invitations and the like provided to the mother.

    (8)That the mother be restrained from bringing the child into contact with Mr J.

    Schedule Four

    Minute of Orders Sought by Mr Dent

    IN RELATION TO THE CHILD Z

    (1)That all previous Orders be discharged.

    (2)The Mother (MS MOLINA) and the Father (MR DENT) are to have equal shared parental responsibility for the child namely Z born (omitted) 2006 (“Z”).

    (3)The Mother has responsibility for decisions as to the child’s day to day care, welfare and development during periods when she is spending time with her and the Father has that responsibility at all other times.

    (4)The child Z is to live with the Father.

    (5)The child is to spend time with the Mother as follows:-

    5.1At least two (2) weekends, each school term from 4:00 pm Friday to 4:00 pm Sunday in (omitted) which includes Mother’s Day weekend but excludes Father’s Day weekend;

    5.2For one half of each New South Wales gazetted school holiday periods, being the first half in even numbered years commencing in the year 2016 and each alternate year thereafter, and the second half in odd numbered years commencing in the year 2015 and each alternate year thereafter;

    5.3In relation to the operation of Order 5.2 the first half commences at 1:00 pm on the day following the last day of the school term and concludes at 1:00 pm on the day closest to the midpoint of the school holiday period and the second half commences at 1:00 pm on the day closest to the midpoint of the school holiday period and concludes at 1:00 pm on the day before the last day of the school holiday period.

    5.4At such other times as agreed between the parties.

    (6)That for the purposes of the Mother spending time with the child, the parties shall meet at the commencement of the Mother’s time at a populated venue in (omitted) and at the conclusion of the Mother’s time at a populated venue in (omitted).

    (7)That the parties have the following telephone communication with the child, when she is not in their care:-

    7.1Frequent and flexible.

    (8)That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

    (9)That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven (7) days of such change occurring.

    (10)That during any period referred to in these Orders, in the event of the child being hospitalised or receiving medical attention, the parent spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

    (11)That within fourteen (14) days of the date of these Orders and within fourteen (14) days of the child’s subsequent enrolment at any school, the Father do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Mother copies of all of the child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.

    (12)That the parties ensure the child Z is not exposed to family violence in their respective households.

    (13)That Z not spend any time with Mr Lawrence and/or Mr J that the parties be retrained from facilitating any such time between Z, Mr Lawrence and Mr J.

    IN RELATION TO THE CHILD Y

    (14)That all previous Orders be discharged.

    (15)The Mother (MS MOLINA) and MR DENT are to have equal shared parental responsibility for the child namely Y born (omitted) 2008 (“Y”).

    (16)The Mother has responsibility for decisions as to the child’s day to day care, welfare and development during periods when she is spending time with her and Mr Dent has that responsibility at all other times.

    (17)The child Y is to live with Mr Dent.

    (18)The child Y is to spend supervised time with the Father, (MR LAWRENCE) at a contact centre in the (omitted) area during the time the child Y is in the care of the mother during each school holiday occasion for a period of at least two (2) hours. All arrangements in this regard are to be made by the Mother and Father, Mr Lawrence.

    (19)The child Y is to spend time with the Mother as follows:-

    19.1At least two (2) weekends, each school term from 4:00 pm Friday to 4:00 pm Sunday in (omitted) which includes Mother’s Day weekend but excludes Father’s Day weekend

    19.2For one half of each New South Wales gazetted school holiday periods,

    being the first half in even numbered years commencing in the year 2016
           and each alternate year thereafter, and the second half in odd numbered
           years commencing in the year 2015 and each alternate year thereafter;

    19.3    In relation to the operation of Order 18.2 the first half commences at 1:00

    pm on the day following the last day of the school term and concludes at 1:00 pm on the day closest to the midpoint of the school holiday period and the second half commences at 1:00 pm on the day closest to the midpoint of the school holiday period and concludes at 1:00 pm on the day before the last day of the school holiday period.

    19.4    At such other times as agreed between the parties.

    (20)That for the purposes of the Mother spending time with the child, the parties shall meet at the commencement of the Mother’s time at a populated venue in (omitted) and at the conclusion of the Mother’s time at a populated venue in (omitted).

    (21)That the parties, including Mr Lawrence have the following telephone communication with the child, when she is not in their care:-

    20.1     Frequent and flexible.

    (22)That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

    (23)That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advise the other party of any changes to these details within seven (7) days of such change occurring.

    (24)That during any period referred to in these Orders, in the event of the child being hospitalised or receiving medical attention, the parent (including Mr Dent) spending time with the child shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

    (25)That within fourteen (14) days of the date of these Orders and within fourteen (14) days of the child’s subsequent enrolment at any school, Mr Dent do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the child may attend from time to time, that school forward directly to the Mother and Father copies of all of the child’s school reports and merit cards, any written material pertaining to each child’s academic and extra-curricular activities.

    (26)That the parties ensure the child is not exposed to family violence in their respective households.

    (27)That Y not spend any time with Mr J and that the parties be restrained from facilitating any such time between Mr J and Y.