Elliot and Day

[2015] FCCA 2529

FEDERAL CIRCUIT COURT OF AUSTRALIA

ELLIOT & DAY [2015] FCCA 2529

Catchwords:
FAMILY LAW – Interim parenting orders – where mother seeks to relocate with children to NSW (omitted) from (omitted) NSW – whether father’s time with children is unaffected by proposed relocation – where Family Report is supportive of the move.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MR ELLIOT

Respondent: MS DAY

File Number: AYC 457 of 2013

Judgment of: Judge Altobelli

Hearing date: 4 September 2015

Date of Last Submission: 4 September 2015

Delivered at: Wollongong

Delivered on: 25 September 2015

REPRESENTATION

Solicitors for the Applicant: Friedlieb Byrne

Solicitors for the Respondent: Lees Luke Family Law

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS

1. Pending further order, Order 1 made 4 June 2015 restraining the Mother from removing the Children's place of residence beyond a 50 km radius from the Post Office at (omitted), New South Wales be discharged.

2. Pending further order, the Mother and the Children, X (born (omitted) 2012) and Y (born (omitted) 2013), be permitted to reside in the (omitted), New South Wales or within 30km of the (omitted), New South Wales.

3. Within 7 days, the Mother and Father shall contact (omitted) Children's Contact Centre for the purpose of consenting to being placed on the waiting list for supervised contact at that Centre.

4. Pending further order and subject to assessment of suitability, the Mother and Father do all things to accept the first available placement for supervised time at (omitted) Children's Contact Centre at such times and with such frequency as the service can accommodate, but no more frequently than fortnightly, with the Mother to deliver and collect the children from this service for the purpose of them spending time with the Father.

5. Pending further order, the Father pay such fees as are advised by the (omitted) Children's Contact Centre and continue to do so until that service is no longer required or is withdrawn.

6. Following the commencement of the Children’s time with the Father in accordance with Order 4 above, Order 3 made 10 December 2013 be discharged.

7. Pending further order, both parents be restrained from:

   (a)Speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.

   (b)Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children or permitting any other person to do so.

8. That the Father is to forthwith do all things and sign all documents necessary to enable the Mother to apply for a passport for the Children.

9. In the event that the Mother wishes to travel overseas with the Children, the Father is not to unreasonably withhold consent to such travel, provided that the Mother provides a proposed itinerary for the proposed travel and ensures arrangements are made for make up time between the Father and the Children (either before or after the said travel).

10. The matter be listed for three day Final Hearing on 29 November 2016 at 10:00am.

11. Both parties file and serve any Amended Application and/or Response upon which they intend to rely by no later than 15 November 2016.

12. Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits by no later than 15 November 2016.

13. Neither party may rely on any documents filed after 15 November 2016 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

14. Each party is to file and serve a Case Outline document by no later than 4:00pm on 22 November 2016, setting out:

    (a)a list of documents to be read in their case;

    (b)a precise Minute of Orders Sought;

    (c)a list of objections to evidence and the basis for such objection;

    (d)a brief summary of argument touching upon the matters set out s.60CC of the Family Law Act 1975, with reference to the relevant evidence relied upon;

15. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

16. In the event that either party wishes to cross examine the Family Report writer at the final hearing, that party shall provide written notice to the Family Report writer within 14 days from this date or in the event that the Family Report is not yet released then within 7 days from the date of receipt of the report and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable the Family Report will be admitted into evidence without cross-examination subject only to evidentiary objection.

17. Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.

18. Liberty is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in relation to Orders for an updated Family Report.

THE COURT NOTES THAT:

A.A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the Final Hearing dates being vacated, other matters being listed with priority, or the matter becoming part-heard.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

AYC 457 of 2013

MR ELLIOT

Applicant

And

MS DAY

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the Interim Orders that the Court has made in relation to two children, X, born (omitted) 2012, 3 years old, and her brother Y, born (omitted) 2013, and currently 2 years old.  The Applicant is their father.  He is a 37 year old (occupation omitted) living in a town close to (omitted), in regional New South Wales.  The children’s mother is the Respondent.  She is a 40 year old business owner who currently lives on the (omitted) of New South Wales. 

2. The parents commenced a relationship in (omitted) 2008, married in (omitted) 2011 and separated in June 2013.  Both children were very young at the time.  The issue before the Court on an interim basis is where the children should live with their mother, in a geographical sense and what time they should spend with their father.  The Mother proposes that the children continue to live with her on the (omitted) of New South Wales and that the Father have supervised contact with the children at a supervised contact centre on the (omitted). 

3. The Father proposed that the Mother and the children be required to return either to the (omitted) region, or alternatively to the (omitted) region where they had been living for most of this year and that the children would spend time with their father each alternate weekend.  The Orders that the Mother seeks are reproduced in the first Schedule to these reasons, as are the Father’s Orders and those proposed by the Independent Children's Lawyer. The latter’s proposal was not inconsistent with the Mother’s proposal. 

Background

1. Matters of background are drawn from the Family Report that was prepared by Dr A, dated 31 August 2015 and released to the parties shortly thereafter. 

2. After the parents separated in 2013, the Mother and the children relocated from (omitted) where they had been living, to (omitted) in the (omitted) area of New South Wales, near (omitted).  The Mother appears to have re-partnered in (omitted) 2014. In mid-2015 the Mother’s partner, Mr C, obtained employment on the (omitted).  For reasons that will be discussed below and despite an Order that prohibited her from doing so, the Mother nonetheless relocated the children and herself to the (omitted), where she presently lives. 

3. The Mother makes very serious allegations about family violence perpetrated by the Father against her and to other women with whom he has previously had a relationship.  The Father denies most of these allegations. 

4. At the moment the children live with their mother on the (omitted) and spend time with their father on a supervised basis at the (omitted) Contact Centre every second weekend.  Thus, the Father lives in (omitted), the Mother on the New South Wales (omitted) and the children get to see their father each alternate weekend in (omitted).  There appears to be little substantive dispute that a considerable distance separates where the parents live and where the children are able to spend time with their father. 

The evidence before the Court at the Interim Hearing

1. Perhaps unusually, the Court had before it the Family Report prepared by Dr A dated 31 August 2015.  This was the main evidence relied on by the Independent Children's Lawyer.

2. The Father’s case relied on his two Affidavits, filed 2 June 2015 and 28 August 2015.

3. The Mother relied on the following affidavits:

   ·Affidavit of Ms J, filed 29 November 2013;

   ·Affidavit of Ms Day, filed 2 December 2013;

   ·Affidavit of Ms N, filed 6 December 2013;

   ·Affidavit of Ms K, filed 9 December 2013;

   ·Affidavit of Ms Day, filed 10 June 2015;

   ·Affidavit of Ms Day, filed 31 July 2015;

   ·Affidavit of Ms D, filed 25 August 2015;

   ·Affidavit of Mr C, filed 25 August 2015;

4. In addition, each of the parties relied, to differing extents, on documents produced on subpoena and tendered in evidence, by the supervised contact centre, the (omitted) Police, and the New South Wales Police. 

5. The evidence will be discussed below.

The applicable law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘the Act’), the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. 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.

3. At the very core of Part VII of the Act 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.

4. 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.

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.65DAA 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.

1. 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".

2. 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.

3. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Pt VII of the Act and the way to proceed in interim matter, and I will incorporate into these reasons a number of paragraphs from the Full Court’s judgment.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

4. It is also important to note the definition of “family violence” pursuant to s.4AB of the Act:

   (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.

   (2) Examples of behaviour that may constitute family violence include (but are not limited to):

   (a) an assault; or

   (b) a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d) repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f) intentionally causing death or injury to an animal; or

   (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

   (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

Outline of submissions made

1. The Father’s case was that separation took place when the children were quite young, X 14 months old and Y 7 weeks old.  There was a lengthy period between June 2013 and July of 2014 when there was no contact at all.  Supervised contact started from July 2014, pursuant to Orders made in December 2013.  The Father was diligent in attending supervised time.  On his behalf it was submitted that the records produced by the supervised contact centre established that his relationship with the children was developing positively, the transitions from the Mother’s care were uneventful and that his time was enjoyed by the children. 

2. His case recognised that the circumstances of the separation and subsequent periods of no contact, and then limited contact, meant that he was re-establishing his bond with X, and building a bond with Y.  Confronted with the serious family violence allegations made in the Mother’s case, he acknowledged that there was violence during the relationship with the Mother and that there was a violent incident at a time when he was holding X in his arms.  However, he disputes the nature and extent of the violence asserted by the Mother and has, in any event, been undertaking regular counselling with Relationships Australia in (omitted), presumably to deal with this.

3. The Father’s case raises serious concerns about the Mother’s failure to communicate with him, to involve him in the children’s lives, and her willingness to relocate without consultation, contrary to his views, and indeed contrary to Court Orders.  He raised concerns about the Mother’s willingness to encourage the children’s relationship with him.  He acknowledged that his child support payments were in arrears.  His case was that currently he was spending time with the children at CatholicCare (omitted), which is about 390 kilometres from (omitted).  He pays the cost of this service.  Should the Court change the venue for contact to a centre on the (omitted), the travel becomes 533 kilometres. 

4. The Father acknowledged that given the young ages of the children, and their different developmental needs, he needed to spend time with them frequently.  In terms of his own proposal, it was submitted that because supervised contact had progressed so satisfactorily, it was in order to proceed to unsupervised time, including overnight time and making it each alternate weekend after six months. 

5. The Father’s concern was that if Orders were not made which had a practical effect of enabling him to continue to be involved in his children’s lives on a frequent basis, he would become merely a distant memory for these young children. 

6. The Mother’s case was that the Father had perpetrated family violence during their relationship and in the presence of the children.  Indeed, her case was that his family violence was a feature of his previous relationships including with Ms N, his former wife, and Ms K, his previous partner, both of whom provided corroborating Affidavits in the Mother’s case.  Her position was that because of this violence, the Father’s time would need to continue to remain supervised until a final hearing. 

7. The Mother was indisputably the primary carer for these children.  The children, however, had a close relationship with her partner, Mr C.  Her case included the assertion that the Father did not avail himself of the opportunities he did have to be involved in the children’s lives, was not paying child support and was, by his proposal, in effect seeking to continue to control the Mother’s life.  With a view to minimising the practical implications of extended travel on the children, she proposed that the supervised contact take place on the (omitted), close to the children’s homes, whilst acknowledging that she had previously suggested that should she move to the (omitted), supervised contact could take place at (omitted).  The Mother’s case relied substantially on the Family Report and its recommendation, whilst accepting that none of the evidence had been tested. 

8. The Independent Children's Lawyer’s case, largely in support of the Orders sought by the Mother, drew heavily on the Family Report and its recommendations.  The Independent Children's Lawyer did express concerns about the seriousness of the family violence allegations and the impression created by the objective evidence before the Court.  The Father’s relationship with the children could only be described, at best, as a developing one.  The Mother’s own physical health was a strong indicator towards allowing the children to live with her in a place where she is best supported, not only physically and emotionally but in terms of the medical services available to her.  This would support remaining on the (omitted). 

9. The Independent Children's Lawyer supported supervised contact being on the (omitted), although acknowledged that (omitted) CatholicCare could be an alternative.  She was concerned about the appropriateness of the Father’s proposal to the Court. 

The Family Report

1. At the time of the Family Report interviews, Dr A was aware of the relocation issue that was also before the Court.  At paragraphs 10 and 11 of her report she articulates the issues in dispute as follows:

   10.    The dispute in most urgent need of resolution is whether or not the mother should be allowed to relocate to the (omitted) with the children. The parents are in dispute about parental responsibility and the time the children should spend with the father.

   11.    An important issue for the Court to determine as a basis for longer term arrangements is whether or not the father was previously the perpetrator of family violence, as e mother alleges, since this will have implications for his parenting capacity and associated child welfare considerations. Ultimately, the complex issue for determination by the Court will be which parenting proposal shows the best fit between the children’s development needs and the psychosocial resources of each parent. The most pressing practical issues about the children’s safety and comfort are:

   ·   how best to ensure continuity of day to day physical care for the children given the mother’s poor health

   ·   how to maintain the children’s link to their father pro tem in a manner which does not cause the children more distress and discomfort than benefit

2. The Court accepts this statement of issue, but not necessarily that they are the only ones before the Court. 

3. At paragraphs 12-23 inclusive, she records her interview with the Mother, together with some observations.  At paragraph 13, for example, she records the Mother’s perception of the children’s relationship with their father, but the Mother’s perception in this regard seems quite inconsistent with the actual reports of supervised contact.  The toxicity of the relationship between the parents is reflected, for example, in the motivations which the Mother attributes to the Father at paragraph 14. 

4. Clearly, the Mother does not trust the Father.  The Mother openly acknowledged to Dr A that she was currently in breach or Orders, but sought to justify her actions.  She described the situation as there being, “no penalty”, to the Father as a result of her move given that she continues to support supervised contact at (omitted) CatholicCare.  The Mother was clearly concerned about the inconsistency of the Father’s involvement in the children’s lives, and the risks that unsupervised contact would bring.  Dr A found the Mother to be child-focussed.

5. Dr A interviewed Mr C, the Mother’s partner, and her comments in this regard are recorded at paragraphs 24-28.  She found him to be child-focussed.

6. The record of the interview with the Father commences at paragraph 32.  At paragraph 33, she records:

   Mr Elliot confirmed that he was still asking for visits on alternate weekends and half holidays. He had not moderated his application to the Court with further reflection about the children’s young ages. He appeared to understand my explanation of why it might be inadvisable to try and separate the children overnight from their mother at this stage given that they have no relationship based on continuous contact with him.

7. The Court observes that notwithstanding this clear feedback from Dr A to the Father, it did not moderate the application that he made to the Court.

8. Dr A was not impressed about certain matters relating to the Father.  At paragraph 34 she described him as tending to, “foreground his rights as a parent and his feelings in this matter when it would have been more appropriate to discuss the children’s developmental needs.”  At paragraphs 38-40 he responded to the family violence allegation.  In short, Dr A felt that he lacked child-focus, was self-focused, and that his proposal before the Court was developmentally inappropriate. 

9. Dr A observed the children interact with the Mother and the Father.  The observations of the Mother were unproblematic.  In relation to the Father, she records at paragraph 45:

   The children tolerated a brief separation from their mother in strange place with stranger quite well, and also made the transition from their mother to their father without fuss. They engaged in a friendly way with their father who tried to distribute his attention between them while they were engaged in different, independent play activities. A few times X called Mr Elliot “Daddy” when she spoke to attract his attention back to her drawing after he had turned to look at Y playing with the doll’s house. Mr Elliot’s behaviour was appropriate and kindly. The children displayed no fearful avoidance or aversion towards him. When it was time to leave Y and X parted without reluctance, tears or fuss, complying with my suggestion to kiss Daddy goodbye.

   Dr A’s observations above are consistent with the impression formed from examining the notes of supervised contact. 

10. Dr A’s evaluation commences at paragraph 50.  Indeed, paragraph 50 is important:

    In essence, the mother in this matter describes the father as a cold-hearted psychopath who has a history of remorselessly oppressing women and abandoning children. For his part, the father contends the mother is vengefully excluding him out of spite and has been aided and abetted in this endeavour by his ex-partner Ms K. Obviously, a brief screening assessment cannot make a finding of fact about such polarised characterisations. There is a great deal of evidence for the Court to sift.

11. The Court observes that Dr A’s rather dramatic description of how the Mother perceives the Father is probably correct.  Dr A recognises that finding of facts need to be made.  The Court infers that she recognises this is an inherent limitation in her report.  Indeed the disclaimer at the commencement of her report clearly states:  “This assessment is limited in that the information gathered can be relied upon only to the extent that the parties are truthful.”

1. Nonetheless, there were matters in respect of which Dr A could make observations and form a view.  For example at paragraph 51 she suggested that the Father’s “presentation at interview did not dispel doubts raised about his parenting capacity”.  She recognised that the family violence allegations were very serious and that if certain findings were made it would be possible to justify either significant restrictions on the father’s time with the children, or to extinguish contact with him.  At paragraph 53 she says in this regard:

   If the evidentiary material is found to confirm the mother’s version of events with regard to the father’s coerciveness, violence and negligence as a parent across three family relationships, then unsupervised time with Mr Elliot in his home environment would be contraindicated – especially given the children’s young ages, the large distance between the two homes, that the children have no established attachment with Mr Elliot and the fact that no other familiar adult would be present during visits.

2. Thus, in effect, if the Mother’s evidence were to be accepted, then unsupervised time was not appropriate.  She considers the alternative scenario at paragraph 54:

   Even if all child welfare concerns about the father could be banished, careful consideration would still be required about how best to extending the subject children’s time with the father in carefully staged increments. They currently are too young for weekend separations from their mother in a strange environment.  Both children are neurologically immature and require external-stress regulation (i.e. soothing) when upset. To cope with the stress of inexplicable separation from their mother, disrupted routines and unexpected events they would require reassurance from a known and trusted caregiver.

3. Thus, on the alternate scenario care would still need to be exercised as to how the children’s time with the Father would increase. 

4. From paragraph 56 her evaluation, based on aggregated information, was that the most likely options in this case would be no contact, supervised contact, or supervised changeover.  The most appropriate option would depend upon findings in relation to the allegations made.

5. Dr A expresses concerns, at paragraph 57 of her report, about the impact on the children of forcing them to be returned to the (omitted):

   With regard to the mother’s relocation, I am concerned about the impact on the children if Ms Day is forced to return to the (omitted) given her apparent poor health.  There appears to be a safety net for the children in the mother’s current living arrangements which she would lose if forced to move.  Nothing emerged at interview to alarm me about Mr C or his parents.  There are no known benefits but clear risks to the children in moving back to the (omitted) prior to Final Hearing. As long as the mother continues to deliver the children to the contact centre for supervised visits their link with the father is maintained.

6. At paragraph 58, her concerns extend to the amount of travel that the children would have to experience:

   However, the long road trip from the (omitted) to (omitted) is onerous for such young children every fortnight. It would be better if visits could occur closer to their home. Until then visit frequency should be reduced to monthly on the principle that the stress involved in executing contact arrangements should not exceed any known (or in this case postulated) benefit to the children of maintaining ( or in this case establishing) secondary attachment. These visits only function as placeholders at present –i.e. to keep a place for the father in the children’s lives and memories until such time as it is determined whether or not he is fit to participate more substantially in their care.  The father’s “place” will be kept by monthly visits in the interim to Final Hearing. Telephone contact between visits will not be useful given the children’s young ages. Given Ms Day’s expressed fear and antipathy towards the father it will not be useful to ask her to facilitate any other form of telecommunications (such as SKYPE) not to contact him regularly with bulletins about the children’s progress.

7. Dr A’s conclusions and recommendations are found at paragraph 60 to 67 of the report:

   60.    This matter requires a judicial decision and should not be settled by Consent Orders.

   61.    The children’s best interests will be served by living with their mother in an environment which provides back-up child care if/when she is unwell

   62.    The mother should exercise sole parental responsibility

   63.    Supervised daytime visits should continue until Final Hearing, preferably either much closer to the children’s home or less frequently than fortnightly.

   64.    Both parents are referred to the Australia Association for Infant Mental Health Guidelines for overnight care of infants post-separation available at (omitted). The Court should consider the extent to which each parent is able to use these insights to justify their proposals.

   65.    Whether unsupervised visits will ever be in the children’s best interests depends on the findings of the Court with regard to family violence and the father’s parenting capacity. It may be that no contact emerges as the most protective option for Y and X.

   66.    If however, all safety concerns raised about the father and his parenting are allayed at Final Hearing then unsupervised day visits should commence in the children’s local area.  With the same felicity pre-condition, overnight visits in the children’s local area would be unsuitable until Y is between three-four years of age (depending on his language acquisition). Holiday visits in the father’s home environment are likely to be unsuitable until both children are of school age.

   67.    If this matter takes longer than nine months to come to Final Hearing an update report is likely to be required.  A Chapter 15 report may be of greater assistance.

8. A number of matters need to be stated about Dr A’s conclusions and recommendations.  Firstly, a final hearing will be at least 12 months away, so an updated Report would probably be necessary.  It is by no means clear precisely why a Chapter 15 Report was suggested.  Not even the Independent Children's Lawyer could discern the basis of this.  Importantly, however, the Court’s impression of her recommendation is that they were primarily shaped by considerations of the children’s developmental needs in the context of case where, for whatever reason, the Father has had limited involvement in their lives and their mother suffers significant health issues. 

9. Findings of family violence, when eventually made, would inform whether the Father’s time progressed from supervised to unsupervised but, for the time being, the recommendation for ongoing supervised time was developmentally based, rather than predicated on findings in relation to family violence.  It is important to record the impression that the Court had formed about Dr A’s recommendations.  The family violence allegations are hotly contested and cannot be the subject of findings.  The children’s developmental needs, and the reality both of their father’s limited involvement in their lives, and their mother’s health problems, are relatively uncontested matters before the Court.

Meaningful relationships

1. There can be no question that there is a benefit to the children of having a meaningful relationship with their father.  The baseline of this, of course, is his existing relationship. Paragraph 45 of Dr H's Report is probably the most reliable, independent insight into the nature of the Father’s relationship with his children.  The children were friendly towards their father.  They transitioned in and from his care seemingly without stress.  The Father’s interaction with them was described as being appropriate and kindly.  For reasons that this Court cannot control, the baseline of relationship is not a very deep one.  When one looks at all of the realistic alternatives, neither the Mother, nor the Father’s proposal really impacts on this. 

Protecting the children from the risk of harm

1. It is certainly a part of the Mother’s case that the Father has engaged in systematic family violence not only against her, but against his previous partners.  At one level her case looks strong, but it is untested.  The present application will not be determined by reference to whether or not family violence occurred. 

Nature of the children’s Relationships

1. There can be no doubt that the children have a very close relationship with their mother.  For all practical purposes she has been their primary carer and, it is uncontentious, she has met all of their physical, emotional and intellectual needs satisfactorily.  The nature of the children’s relationship with their father has been foreshadowed in comments above in the context of meaningful relationship.  The Mother submits that he has not developed a deep relationship with the children.  Interestingly, the Father’s case proceeded on the basis that he would like to re-establish his bond with X and to build a bond with Y. 

2. He asserts that he had a close bond with X as at the time of separation, but she was only 14 months at the time and his time with her has been limited since then.  The nature of the children’s relationship with their father at the present time is simply not one that forms the foundation on which to significantly expand their time with him, as he proposes.  The Father’s case was quite realistically framed as being one where he is re-establishing his relationship with X and building a relationship with Y.  This takes time, consistency, effort, and sensitivity. 

3. In the difficult circumstances of this case what the Father seeks is as attainable on the Mother’s proposal, as it would be attainable by maintaining the existing arrangements, wherever the contact takes place.  There is some suggestion in the evidence about a strong relationship between the children and the Mother’s partner and to a lesser extent his parents.  The support that the Mother’s partner provides is an important one, given the concerns about her health.  It is a factor towards accepting the Mother’s proposal was reflecting what is best for the children. 

The extent to which parents have taken opportunity

1. The Father certainly feels that he has not been given the opportunity to participate in decision making relating to the children, or to properly spend time with and communicate with the children.  His submissions point to examples of occasions when the Mother probably could have done more to involve him, and to facilitate that time and communication.  The mother has a different perspective and suggests that the Father’s lack of involvement was his choice rather than her constraint.  There is probably some substance in the submissions that each parent makes against the other in relation to this consideration.  It is not determinative in the present context. 

Fulfilling obligations to maintain children

1. The Father concedes that his child support obligations have not been met and that child support is in arrears.  Indeed, the Mother contends that the Father’s child support arrears is in excess of $7,000.  In the circumstances of this case, it is an onerous obligation for the Mother to bear all of the children’s financial costs on her own.  The impression formed from the evidence is that she is in a better financial space on the (omitted) because of the support that she receives, financial and otherwise, from her partner and his family.  It is the Mother’s case that she would be in a worse financial position if ordered to return to the (omitted).  The Father makes no offer of assistance in this regard. 

The likely effect on the children of change

1. The Father’s proposal was a very significant increase in the amount of time that they spend with him, albeit implemented incrementally, and in the context of the Mother remaining the primary carer.  Dr A expressed the clearest possible concerns about making the changes that he proposes, especially in the factual matrix of this case.  The Mother’s case is that her proposal does not change the amount of time that the children spend with their father, but only the venue, and indeed, she submits that a (omitted) contact centre is a beneficial change for the children, because they spend less time travelling.  This issue will be discussed below.  Objectively, the Mother’s proposal does minimise a change in these children’s lives, and is something that is supported by Dr A in any event. 

Issues of practical difficulty and expense

1. It must be remembered that these parents and the children have, according to the parents, coped quite well with the significant issues of practical difficulty and expense associated with the geographical issues in this case.  Moreover, the fact is that until Dr H's Report was received, raising as it does issues about the potential adverse impact on the children of having to spend extended periods of time travelling for contact, the Mother was quite prepared to facilitate that time both in the (omitted) and in (omitted).  It is only Dr H's Report that has precipitated her significant change of view. 

2. The consideration in question quite properly focuses on the children, the impact on them, and whether a proposed order substantially effects their right to maintain relations with a parent on a regular basis.  This quite appropriate child focus means that, if at all possible and whilst not excluding a consideration of the impact on the parents, travel arrangements should be child-focussed.  Whatever the parents may have accepted was appropriate for the children in the past is no more than a relevant factor, but certainly not a determinative factor.  Dr A’s quite strong recommendations about travel are self-evident. 

3. Even if the Court is less than impressed with the Mother’s actions in unilaterally relocating contrary to an Order of the Court, the proper focus is on the children and their needs.  Even if the Father is forced to travel, he is far better equipped as an adult to cope and adjust with this than the children are.  Indeed, one would have thought that the less travel the children are involved in, the more likely they are to be unconstrained by fatigue and boredom when they do spend time with their father. 

4. The Court recognises the geographical issues in this case and the imposition on the Father of having to travel to the (omitted).  The Court can understand his frustration, in circumstances where the Mother had offered supervised contact at (omitted), but is now insisting on the (omitted).  Nonetheless, the focus must be on the children and the geographical distances are not such, in this Court’s view, as to create the level of practical difficulty contemplated by this consideration.  Notwithstanding the practical issues, the Mother’s consideration about contact on the (omitted) is clearly the more child-focussed proposal. 

Issues of parental capacity

1. No question appears to be raised about the Mother’s parenting capacity.  This quite properly reflects the realities of this case.  Both the Mother and Dr A raise concerns about the Father’s parenting capacity.  Putting aside the Mother’s concerns, which suffer from partisanship, Dr A did refer to the Father as being more self-focussed than child-focussed and was quite critical of his advancing a proposal that did not reflect the clear advice that he had been given about what was developmentally appropriate for them.

2. Indeed, it is unfortunate that in a case where the Father has received the benefit of an early Family Report, with such clear guidance about developmental considerations, that he was not able to take these matters on board.  No doubt, and understandably from an adult human perspective, he was aggrieved by the Mother’s actions in relocating and the attitudes which underpin those actions, matters that will be discussed below.  His proposal does lack child focus.  It subjects the children to the burden of extensive travel.  It proposes an increase in time, including overnight time, within six months in circumstances where the children are plainly not ready. 

3. Even his proposal for telephone contact fails to recognise that his limited relationship with the children, coupled with their developmental stage, leads to telephone calls being more about him than the children.  There is probably little doubt about the Father’s ability to provide the children’s physical and intellectual needs, but the issue here is emotional needs.  This factor points towards an acceptance of the Mother’s proposal.

Parental attitudes to the children and to the responsibilities of parenthood

1. Some of the matters already discussed above reflect on this consideration.  What needs to be recorded here, however, is this Court’s impression of the Mother’s irresponsible attitude in, in effect, unilaterally relocating twice but, significantly, doing so the second time specifically contrary to the terms of an Order.  She has sought to justify her actions.  Perhaps at a final hearing, when this evidence is tested, she might be able to convince the Court that her relocation from the (omitted) to the (omitted) was the least worst option for her and the best option for the children.  What troubles the Court, however, is her attitude and seeming indifference to Orders of the Court. 

2. The Father’s submission in this regard is that the Mother’s actions signal, in clear terms, a lack of interest in promoting a relationship between the children and the Father.  A close examination of the evidence does not support that.  For example, what the Father perceives as the Mother discouraging telephone contact is, in fact, the Mother acting in a developmentally appropriate way, something Dr A agreed with.  The evidence before the Court of missed contact visits do not adversely reflect on the Mother and certainly do not support a contention that she is not supporting the children’s relationship with their father. 

3. The most that could be said about the Mother is that she is anxious.  Clearly that is the case.  She expressed a number of concerns to Dr A about the Father’s time with the children, which are not corroborated by the more objective accounts of the supervised contact records.  At a final hearing it may be that the Mother’s anxiety can be linked to her experience of the Father as being violent and controlling, but that can only happen after the evidence has been tested.  The Father’s contention that her unilateral relocation contrary to the terms of a Court Order establishes her lack of willingness to facilitate and encourage the children’s relationship with the Father is not born out. 

4. But for Dr A’s clear recommendations, it would have been quite open to the Court to order that supervised contact continue in the (omitted), or occur at (omitted) and even the Mother’s evidence is consistent with her supporting this.  Whilst the Court is critical of the Mother’s actions in unilaterally relocating contrary to the terms of an explicit Court Order, ultimately the question is what is in the best interests of these children.  When the evidence is considered in its entirety, they are better off living with her on the (omitted) where she has an optimal support system and where a framework can be established for them to spend time with their father on a continuing regular basis. 

5. The Father appears to have been regular and diligent in attending supervised contact.  This demonstrates a good attitude on his part.  The Court is confident that this will continue, even in the context of a move to the (omitted).

Family violence

1. Whilst this issue has been discussed in the context of risk consideration, and indeed the issue has been foreshadowed as being a significant one at a final hearing, it bears recording that the Father acknowledged in submissions that there was domestic violence during the relationship with the Mother, including what he himself describes as a “foolish” incident during which he was holding X.  At an interim level this does not amount to evidence on which risk issues to the children could be established, but it certainly does help to understand some of the Mother’s anxiety about the Father.

Orders in the best interests of the children?

1. Whilst both the Mother and Independent Children's Lawyer propose sole parental responsibility this is a case where, in the Court’s view, s.61DA(3) should apply, i.e. it is not appropriate in the circumstances not to apply the presumption, but equally it is not appropriate to make an order for sole parental responsibility. There are live issues in this case about family violence which must be considered at a final hearing. There are no examples of difficulties with the exercise of parental responsibility in the context of decision making about the children, which point to the need to make an interim order.

2. It is common ground that the children should continue to live with their mother.  

3. Both the Mother and the Independent Children's Lawyer seek Orders that enable the Mother and the children to relocate to the (omitted).  The Father sought an Order for her return to the (omitted) area, or in the alternative to the (omitted) area.  For reasons that have been articulated, this is not in the best interests of the children.  In short, and for reasons that have been explained elsewhere, most fulsomely in Dr H's Report, by the Mother and the children remaining on the (omitted) she has a much stronger support system and thus they will be better off, especially if the frequency of contact with their father can be maintained. 

4. Both the Mother and the Independent Children's Lawyer propose the contact take place at the (omitted) Children's Contact Centre.  The Court agrees.  The Court recognises this imposes a burden on the Father, but it is clearly the proposal that subjects the children to less travel and thus, the Court hopes, optimises the quality of their time with their father.  However, the reality is that there might be a delay in implementing this Order.  To the extent that the facilities at the (omitted) Children's Contact Centre do not become immediately available, the children’s time with the Father should continue at (omitted).

5. The Court had considered making an Order for (omitted) but, again, the problem is not knowing whether, and if so when, that facility would become available to the parents and the children.  Judicial notice is taken of the fact that the availability of a service is a variable matter, with places often available at the time that enquiries are made before an interim hearing, but sometimes unavailable at the time of the hearing, let alone at the time reasons for judgment are delivered.  The children are used to supervised contact in (omitted), and the Court prefers to avoid more than one change.  Thus, in effect, until the facility on the (omitted) becomes available, contact in (omitted) should continue. 

6. Lest there be any doubt about this issue, the contact should continue to be on a fortnightly frequency.  Dr A had raised the possibility of reducing the frequency, albeit in a slightly different context.  Because of developmental considerations, the frequency of their time with the Father is important.  

7. The Mother sought to raise issues in relation to passports and overseas travel.  The Father did not put these matters in contention.  Orders will be made, the practical effect of which will be that the Father is required to give consent for the issue of a passport and the children are free to travel with their mother for the purposes of an overseas holiday, but with ample notice to be given to the Father, and for any lost contact to be made up to him. 

8. The Mother proposed Orders in relation to change of name but it is clearly inappropriate to deal with on an interim basis. 

9. A final hearing date will be allocated in the Orders that the Court will make.  That could be over 12 months hence, so leave will be granted to the Independent Children's Lawyer to relist for the purposes of seeking Orders for an updated Family Report.

I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:         25 September 2015

Schedule One

Applicant Father’s proposed Minute of Order

1. That Order 3 of the consent orders dated 10 December 2013 be dismissed.

2. An injunction that the mother, Ms Day (nee Elliot), her servants or agents, be and are hereby required to return the children, X (born (omitted) 2012) and Y (born (omitted) 2013) to within 50 kilometres of the (omitted) Post Office.

3. In the alternative, an injunction that the mother her servants or agents be and are hereby required to return the children to within 50 kilometres of the (omitted) Post Office.

4. That the children spend time with the father:

   a.For a period of six months each alternate weekend from 10am Saturday to 5pm Saturday with changeovers to take place at CatholicCare (omitted).

   b.At the conclusion of that six month period:

   i.each alternate weekend from 12 noon Saturday to 12 noon Sunday;

5. That the father may communicate with the children by telephone each evening between 5pm and 5.30pm with the father to instigate such calls and at all other times with the children to instigate such calls to the father.

6. That the father's time with the children will be suspended on the Mother's Day weekend in each year.

7. That the father will do all acts and sign all documents necessary to allow Australian passports to issue to the children.

8. That if the mother intends to travel outside the Commonwealth of Australia with the children she will:

   a.give the father not less than 28 days’ notice of that intended travel;

   b.provide to the father; not less than 7 days before the intended travel, with the following:

   i.A copy of the return air tickets for the children;

   ii.A complete itinerary of the children's travel including dates of travel, accommodation and contact details.

9. That Ms A or Mr V be appointed to prepare a Family Report in this matter pursuant to Part 15 of the Federal Circuit Court Rules 2001;

10.That the terms of reference for the report are to be agreed between the parties and submitted to the Court for approval.

11.That the mother pay the father's costs of and incidental to this application in accordance with the appropriate scale.

Respondent Mother’s proposed Minute of Order

1. That the Mother have sole parental responsibility for the children X (born (omitted) 2012) and Y (born (omitted) 2013).

2. That Order 1 of Federal Circuit Court Orders made 4 June 2015 restraining the Mother from removing the children's place of residence beyond a 50 km radius from the Post Office at (omitted), New South Wales be discharged.

3. That the Mother and the children, X (born (omitted) 2012) and Y (born (omitted) 2013), be permitted to reside in the (omitted), New South Wales or within 30km of the (omitted), New South Wales.

4. That Order 3(b) of Federal Circuit Court Orders made on 10 December 2013 be discharged.

5. That within 7 days the Mother and Father shall contact (omitted) Children's Contact Centre for the purpose of consenting to being placed on the waiting list for supervised contact at that Centre.

6. Subject to assessment of suitability the Mother and Father do all things to accept the first available placement for supervised time at (omitted) Children's Contact Centre at such times and with such frequency as the service can accommodate, but no more frequently than fortnightly, with the Mother to deliver and collect the children from this service for the purpose of them spending time with the Father.

7. That the Father pay such fees as are advised by the (omitted) Children's Contact Centre and continue to do so until that service is no longer required or is withdrawn.

8. That the Mother have the sole responsibility for giving consent and making arrangements for the issue of a passport for the children X (born (omitted) 2012) and Y (born (omitted) 2013).

9. That subject to any other requirements of the Department of Foreign Affairs and Trade a passport be issued to the children X (born (omitted) 2012) and Y (born (omitted) 2013) to enable them to leave Australia and it's territories notwithstanding that the consent of the Father has not been obtained.

10.That the Mother have the sole responsibility for decisions about travelling with the children outside of Australia.

11.That the Mother be permitted to change the child X's name to X.

12.That the Mother be permitted to change the child Y's name to Y.

13.That the Father pay the Mother's costs of and incidental to this Application as assessed or agreed.

Independent Children’s Lawyer’s proposed Minute of Order

1. That all previous parenting orders be discharged.

2. That the mother have sole parental responsibility for the children namely X born on (omitted) 2012 and Y born on (omitted) 2013.

3. That the children live with the mother.

4. That the mother be permitted to relocate with the children to the (omitted) of NSW.

5. That within 7 days of the making of these orders each parent is to contact the (omitted) Children's Contact Centre ("the service") and complete the intake procedures to be assessed for suitability to be accepted into the service.

6. Upon being accepted into the service, each parent is to do all things, sign all documents and provide all instructions and authorities necessary to permit the children to spend supervised time with the father at the service as follows:-

   a.supervised time to occur at a frequency of twice in each four week period at times that the service can accommodate;

   b.each parent is to pay fees as set for them respectively by the service;

   c.each parent to do all things necessary to follow the policies of the service including the policies for changeover of the children.

7. That each party is restrained from:-

   a.Speaking or permitting another person to speak to or about the parents, their partners or other family members in a negative, offensive or critical fashion in the presence and/or hearing of the children.

   b.Discussing these proceedings in the presence or hearing of the children or permitting any other person to do so.