Falconer & Crewes
[2022] FedCFamC2F 1786
Federal Circuit and Family Court of Australia
(DIVISION 2)
Falconer & Crewes [2022] FedCFamC2F 1786
File number(s): NCC 2153 of 2019 Judgment of: JUDGE CARTY Date of judgment: 22 December 2022 Catchwords: FAMILY LAW – PARENTING – final parenting orders – allocation of parental responsibility – spend time with arrangements for children with father – application for change of name – passports and international travel – best interests of children Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, 65DAC, Pt VII
Passport Act 2005 (Cth) s 11(1)(b)
Cases cited: Chapman & Palmer (1978) FLC 90-150
H v M [2006] FamCA 1071
Mazorski & Albright [2007] FamCA 520
M & W[2006] FamCA 1414
Division: Division 2 Family Law Number of paragraphs: 211 Date of last submission/s: 16 September 2022 Date of hearing: 14, 15 and 16 September 2022 Place: Newcastle Counsel for the Applicant: Mr Rugendyke Solicitor for the Applicant: Merridy Elphick Lawyers Counsel for the Respondent: Mr Duane Solicitor for the Respondent: Walker Family Law Counsel for the Independent Children's Lawyer: Mr Bateman Solicitor for the Independent Children's Lawyer: Sharon Moore Solicitor ORDERS
NCC 2153 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR FALCONER
Applicant
AND: MS CREWES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
JUDGE CARTY
DATE OF ORDER:
22 december 2022
THE COURT ORDERS ON A FINAL BASIS THAT:
1.All previous parenting orders are discharged.
2.The parents have equal shared parental responsibility for the children X born in 2015 and Y born in 2016 (“the Children”).
3.The Children live with the Mother.
4.The Children spend time with the Father at all times that are agreed between the parents and failing agreement as follows:
(a)During the Term 4 summer school holidays in 2022:
(i)From 3.00pm on Christmas Day until 3.00pm on 27 December 2022;
(ii)From 3.00pm on 30 December 2022 until 3.00pm on 1 January 2023;
(iii)From 3.00pm on 13 January 2023 until 3.00pm on 16 January 2023; and
(iv)From 3.00pm on 27 January 2023 until 9.00am on 30 January 2023.
(b)Changeovers shall occur by the parents, or another adult family member known to the children, meeting at McDonalds Restaurant at Suburb B at the commencement and the conclusion of time.
During NSW school terms:
(c)From Term 1 in 2023 until the end of Term 4 in 2023:
(i)Commencing on the second weekend of the school term and each alternate weekend thereafter, from the conclusion of school or 3:00pm Friday until the commencement of school or 9:00am Monday, extended until 9:00am Tuesday if a public holiday;
(d)From Term 1 in 2024 and during each school term thereafter:
(i)Commencing on the second weekend of the school term and each alternate weekend thereafter, from the conclusion of school or 3:00pm Thursday until the commencement of school or 9:00am Monday, extended until 9:00am Tuesday if a public holiday
During NSW Term 1, 2 & 3 school holiday periods:
(e)During the 2023 Term 1, 2 & 3 school holidays Order 4 (c) and 4 (d) are suspended and the children will spend time with the father from 3:00pm on the middle Saturday of the school holiday period until 9:00am on the following Thursday.
(f)During the 2024 Term 1, 2 & 3 school holiday period and term school holiday periods thereafter Order 4 (c) and 4 (d) are suspended and the children will spend time with the father:
(i)In even numbered years;
A.From the conclusion of school or 3.00pm on the last day of term, until 3:00pm on the middle Saturday of the school holiday period.
(ii)In odd numbered years;
B.From 3:00pm on the middle Saturday of the school holiday period until 9.00am on the day before the commencement of the following school term.
During the Term 4 school holidays in 2023:
(g)Order 4 (c) and 4 (d) are suspended and the children will spend time with the father for three block periods of seven nights each, on a week about basis, commencing at 3.00pm on the 8th day after school breaks up and concluding at 3.00pm one week later, and each alternate week thereafter.
During the Term 4 school holidays in 2024 and each year thereafter:
(h)Order 4 (c) and 4 (d) are suspended and the children will spend time with the father:
(i)When the Term 4 school holidays commence in an even numbered year:
A.From 3:00pm on the last day of Term 4, for a block of 14 nights concluding at 3:00pm 15 days later; and
B.From 3.00pm on the 15th day after the children are returned to the mother pursuant to Order 4(h)(i)(A) hereto, for a block period of 7 nights concluding at 3.00pm one week later.
(ii)When the Term 4 school holidays commence in an odd numbered year:
A.From 3:00pm on the 15th day after the last day of Term 4, for a block period of 14 nights concluding at 3:00pm 15 days later; and
B.From 3.00pm on the 8th day after the children are returned to the mother pursuant to Order 4(h)(ii)(A) hereto, for a block period of 7 nights concluding at 9.00am one week later.
5.Notwithstanding any other order hereto, and unless otherwise agreed between the parents, the children will spend time with each of the parents over the Christmas period as follows:
(a)In 2023 and each alternate year:
(i)From 9.00am on Christmas Eve until 3pm on Christmas Day with the father; and
(ii)From 3pm on Christmas Day until 5.00pm on Boxing Day with the mother.
(b)In 2024 and each alternate year:
(i)From 9.00am on Christmas Eve until 3pm on Christmas Day with the mother; and
(ii)From 3pm on Christmas Day until 5.00pm on Boxing Day with the father.
6.Notwithstanding any other order hereto and unless otherwise agreed in writing between the parents the children spend time with each of the parents over the Easter period as follows:
(a)In 2023 and each alternate year:
(i)From 9.00am on Good Friday until 5.00pm on Easter Saturday with the father; and
(ii)From 5.00pm on Easter Saturday until 9.00am on Easter Monday with the mother
(b)In 2024 and each alternate year:
(i)From 9.00am on Good Friday until 5.00pm on Easter Saturday with the mother; and
(ii)From 5.00pm on Easter Saturday until 9.00am on Easter Monday with the father
Other Special Occasions
7.Notwithstanding any other order hereto, and unless otherwise agreed between the parents, the children will spend time with each of the parents as follows:
(a)On X’s birthday and on Y’s birthday:
(i)When on a school day, from the conclusion of school until 7.00pm, with the parent who does not have the children in his or her care already that day; and
(ii)When on a non-school day from 1.00pm to 5.00pm, with the parent who does not have the children in his or her care already that day.
(b)On Father’s Day, if not already in the care of the father the children will spend time with the father from 9.00am until 5.00pm that day;
(c)On Mother’s Day, if not already in the care of the mother the children will spend time with the mother from 9.00am until 5.00pm that day;
(d)On C’s birthday, if not already in the care of the mother then the children will spend time with the mother, if on a school day from after school until 7.00pm, and if on a non-school day from 1.00pm until 5.00pm.
Changeovers
8.Changeovers shall be as agreed between the parents and failing agreement, at McDonalds Suburb B on a non-school day, and at school on a school day. The parents may send another adult family member who is known to the children to conduct the changeover on that parent’s behalf.
Education and Extracurricular activities
9.Both parents may attend any activities associated with the children, including, but not limited to school and sporting activities, whether associated with school or otherwise, with the father excluded from attending training sessions when the children are in the mother’s care.
10.Each parent will use all reasonable endeavours to ensure that the children maintain their social, educational and sporting commitments during each period the children are with that parent, other than when the children are spending time on holidays away from their usual residential area(s).
11.The parents are each authorised to contact the children's school (or schools) to obtain copies of the children's school reports, the notices provided for the purchase of school photographs or any other notice(s) relating to the children, for such purpose each parent is at liberty to provide a copy of these orders to each child’s school principal.
12.Both parents may attend upon the school (or schools) of each child for the purpose of speaking with the teacher(s) concerning the school performance of each child, and are each authorised to receive information ordinarily provided to parents concerning their child’s education and progress.
Communication
13.The children will have telephone communication with the father each Tuesday between 5pm and 5:30pm, and the mother will facilitate such communication for the children.
14.When the children are with the father, the children will have telephone communication with the mother on any occasion that either of them requests to telephone the mother and the father will facilitate the children calling the mother on such occasions.
15.When the children are in the care of the mother on the father's birthday, the mother will ensure that the children telephone the father's mobile telephone number to speak with him between 6:00pm and 6:30pm on that day.
16.When the children are in the care of the father on the mother's birthday, the father will ensure that the children telephone the mother's mobile telephone to speak with her between 6:00pm and 6:30pm on that day.
17.The children are at liberty to telephone either of the parents at any reasonable time the child requests and the parent who has the care of the children will facilitate the child telephoning the other parent.
18.The parents will use the Our Family Wizard application for the purpose of all communication between them concerning the children, other than in an emergency, and the father is responsible for paying the subscription costs of the Our Family Wizard application, if necessary by way of reimbursement to the mother in the event that she has had to pay to download the application.
19.Each parent will keep the other informed of their residential address, email address, mobile and landline telephone numbers and advise the other parent in writing of any change to those details within 7 days of the change occurring.
Health
20.Each parent will notify the other parent as soon as possible of any emergency medical treatments and/or hospitalization the children require or receive.
21.Each parent will inform the other parent of any medications prescribed for the children by a registered medical practitioner and will provide the medication and appropriate instructions as to dosage and administration at the time of any changeover.
22.The mother is restrained from obtaining or maintaining consultation for either child with any psychologist, psychiatrist, counsellor or social worker without the prior written consent of the father.
23.That within 14 days of the date of these orders each parent shall provide to the other the name and contact details of all medical centres and medical practitioners that the children attend, and each parent shall inform the other parent in the event that they make an appointment for either child to see a medical or allied health professional and supply the other parent with contact details for that medical or allied health professional within 48 hours of an appointment being made.
24.Each parent is authorised to obtain information concerning the children’s health and treatment from any medical and other allied health professional who is involved in the children’s medical or allied health care, and to discuss the children’s condition and treatment with those professionals, and for such purposes the parents are each at liberty to provide a copy of these Orders to each of the children’s treating medical and allied health practitioners.
Denigration and other restraints and orders
25.Both parents are restrained from:
(a)Denigrating the other parent or any other family member to or in the presence or within the hearing of the children and from permitting the children to remain in the presence of, or within the hearing of, any other person denigrating the other parent or any other family member; and
(b)Discussing the family law proceedings, or the allegations of assault made to date, with the children or with any other person in the presence or within hearing of the children.
26.The mother will ensure that when she is referring to the father in conversation with the children or in front of the children she will use the term “Dad”, ‘Daddy” or “father”.
International travel
27.That both parents are at liberty to take the children on overseas holidays provided that:
(a)At least 42 days' notice of the intended travel is provided to the other parent;
(b)At least 14 days prior to travel the parent shall provide a full itinerary, including copy of return flights, certificate of travel insurance for the children, accommodation details, and contact phone numbers to the other parent;
(c)The children will have telephone, text message or other electronic communication with the non-travelling parent at all reasonable times and at all times requested by either child;
(d)Neither parent shall travel to any country which is not a signatory to the Hague Convention on International Child Abduction unless otherwise agreed in writing between the parents; and
(e)Any international travel for the children with the father will not occur prior to the end of Term 4 in 2024.
Passport order
28.Both parents shall within 42 days of a written request by the other parent do all acts and things necessary and sign all documents required for the purpose of obtaining a passport for each child.
29.The mother will hold each child’s passport in safekeeping, and will provide the passports to the father within 14 days of receiving notice as required in Order 27 (a) hereto.
30.The father will return the children’s passports to the mother within 14 days of the children returning to Australia following international travel with him.
Change of Name
31.The parents will do all acts and things and sign all documents required to apply to the Registrar of Births, Deaths and Marriages in New South Wales for the names of the children X born in 2015 and Y born in 2016 to be registered as X Falconer-Crewes and Y Falconer-Crewes.
32.Upon the registration of the change of name pursuant to Order 31 hereto the children shall henceforth be known on all official documents by the surname Falconer-Crewes.
Parenting after Separation course
33.Within twenty eight days of the date of these orders the mother will enrol in an accredited Parenting after Separation course through D Counsellors, E Families or F Families and she will complete such course within 6 months from the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Falconer & Crewes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CARTY
INTRODucTION
The applicant father seeks final parenting orders in relation to two children X who is currently seven years old, and Y who is currently six years old. The father seeks to be equally involved with the mother in making major long term decisions for the children, and he seeks to spend significant and substantial time with the children, and to play a central role in their lives.
The children live with the respondent mother. The mother opposes the father’s application. She seeks to have sole responsibility for major long term decisions for the children, and to limit the children’s time with the father to one night each fortnight during school terms, and two nights each fortnight during school holidays.
The Independent Children’s Lawyer seeks final parenting orders[1] that broadly align with the proposal of the father.
[1] Exhibit A
For the reasons which are discussed below the court is satisfied that the children will benefit from having a meaningful relationship with both parents and that the children are not at risk of harm in the household of either of the parents. The court considers that it is in the children’s best interests for the parents to have equal shared parental responsibility for them, and that they remain living with the mother and spend substantial and significant time with the father.
BACKGROUND
In this background, statements of fact are to be construed as findings unless otherwise stated.
The father was born in 1988. He is 34 years old.
The mother was born in 1989. She is 33 years old.
In June 2014 the parents commenced dating. By late 2014 they discovered that the mother had become pregnant. The parents commenced living together at a home owned by the late maternal grandfather in January 2015, and remained there until their final separation on 28 December 2018. They formed and operated their own business.
The relationship produced two children: X born in 2015 and Y born in 2016.
When Y was only 12 months old the paternal grandfather was diagnosed with a serious illness, which was terrible news for the mother, and she was devastated when he passed away in 2018.
The father initiated the separation and the mother was distressed about it, as she did not want the family to break up.[2] The mother had to deal with her immense grief and loss as a result of her father’s illness and his passing, while coping with the care of two young children, and the relationship breakdown.
[2] FR1: 31
In January 2019 the parents attended together on the mother’s psychologist Dr G. They discussed the parenting arrangements, amongst other things. The father commenced to spend time with the children by visiting the mother’s home for two hours each Saturday and Thursday.
On 7 March 2019 there was a verbal and physical altercation between the parents in front of the children, at the mother’s home. The paternal grandmother and the maternal grandmother both became embroiled in the conflict on that day. The children did not spend time with the father again between 7 March 2019 and 31 August 2019.
In April 2019 the mother took the children on a holiday to Country H, and she did not inform the father that she intended to travel with the children internationally. The father later posted on Facebook expressing his disappointment and frustration that he had not been given the courtesy of being informed that the children were being taken out of Australia. He inadvertently included the mother’s telephone number in the posting, and the posting lead to nasty judgmental exchanges with other Facebook users, many of which targeted the mother[3]. For obvious reasons the mother was very upset by the father’s actions, which did not assist the co-parenting relationship.
[3] FR1: 33
On 16 July 2019 the father filed an Initiating Application, seeking final parenting orders including that the parents have equal shared parental responsibility for the children, and that the children spend equal time with each of the parents, on a week about basis, and time on special occasions and during school holiday periods. The father sought orders for the children to travel internationally and for each child to have a passport.
On 16 August 2019 the mother filed a Response to Initiating Application, seeking final parenting orders including that she have sole parental responsibility for the children, and that the children spend supervised time with the father for four weeks, and then time with the father on a graduating basis over six months, culminating in alternate weekends and one school night every other week once both children were at school, orders for special occasions and school holidays, for telephone communication between the father and the children, international travel orders, passport orders, restraints on consuming illicit substances and denigration, and for the father to complete a Parenting After Separation course. The spend time with orders were conditional on the father completing hair follicle and carbohydrate deficiency transferrin testing (“CDT testing”).
On 20 August 2019 the court made orders by consent that the children live with the mother, that the father spend supervised time with the children once a fortnight for the purpose of the children being reintroduced to him, and that both parents complete a Parenting after Separation course. Both parents were ordered to submit to hair follicle testing, and the father was ordered to undertake CDT testing and liver function testing.
On 31 August 2019 the children spent time with the father, supervised by the J Contact Centre (“the contact centre”). The father took pictures and video of the children. He says that he was unaware that sharing pictures and videos on social media was against the policy of the contact centre[4]. The mother made a formal complaint to the centre about the breach by the father of his obligations, and what she perceived to be the contact centre’s lack of supervision of the father.[5]
[4] FR1: 35
[5] FR1:35
In March 2019 the father completed the ‘K’ program provided by F Centre.[6] In December 2019 the father completed the ‘Parenting after Separation’ course provided by D Counsellors.[7]
[6] Father’s affidavit paragraph 67
[7] Father’s affidavit paragraph 66
The father underwent hair follicle testing on 21 August 2019 and 11 August 2021, and CDT on 18 February 2022. The results of the tests are annexed to the father’s trial affidavit sworn 23 August 2022.[8] The results demonstrate that the father tested negative to illicit substances and that there was no indication that he misuses alcohol.
[8] Father’s affidavit paragraph 187
The mother underwent hair follicle testing on 22 August 2019 and her results are negative for illicit substances[9].
[9] Father’s affidavit page 113
On 4 February 2020 interim parenting orders were made, including that the father spend two hours with the children within the Suburb B shopping centre, on four occasions within a two month period. On 6 April 2020 it was further ordered that the father spend one hour with the children each alternate Saturday.
On 19 June 2020 the Court made an order for preparation of a s.62G family report.
On 11 August 2020 it was ordered that, on an interim basis, the father spend time with the children for ten occasions, on alternate weekends, at the home of the paternal grandparents, Mr M and Ms N.
On 8 December 2020 the first family report was released to the parties, their legal representatives and the Independent Children’s Lawyer.
On 16 December 2020 interim parenting orders were made including that the children spend time with the father each Saturday from 9.00am to 5.00pm, and that the parties and their legal representatives attend a confidential Family Dispute Resolution Conference.
On 30 March 2022, following an interim hearing, the current interim parenting orders were made for the children to spend time with the father each alternate weekend from 9.00am Saturday until 5.00pm Sunday, with the overnight periods to occur at the home of the paternal grandparents.
On 28 March 2022 the court made an order for preparation of an updated s.62G family report.
On 10 August 2022, the father filed a Further Amended Initiating Application.
On 31 August 2022 the second family report (“the second family report”) was released to the parties, their legal representatives and the Independent Children’s Lawyer.
On 31 August 2022, the mother filed a Further Amended Response.
Documents relied upon
In support of his case the father relied upon:
(a)His Case Outline filed 12 September 2022;
(b)His Amended Initiating Application filed 10 August 2022;
(c)His Trial Affidavit sworn 23 August 2022;
(d)Affidavit of Ms N sworn 23 August 2022;
(e)Affidavit of Mr M sworn 24 August 2022
(f)Family Report of Ms O dated 7 December 2020; and
(g)Family Report of Ms O dated 31 August 2022.
In support of her case the mother relied upon:
(a)Her Case Outline filed 13 September 2022;
(b)Her Further Amended Response to Initiating Application filed 31 August 2022;
(c)Her Trial Affidavit affirmed 19 August 2022;
(d)Affidavit of Mr P affirmed 19 August 2022; and
(e)Affidavit of Ms Q affirmed 19 August 2022.
The Independent Children’s Lawyer relied upon the Family Report of Ms O dated 7 December 2020 and the Updated Family Report of Ms O dated 31 August 2022.
Each party tendered into evidence documents received as Exhibits, which will be referred to, when necessary, in these reasons.
iSSUES
The court is required to determine the orders that are in the best interests of the children, including in respect of the following issues:
(a)Allocation of parental responsibility for the children;
(b)The spend time with arrangements for the children with the father;
(c)Passport and international travel for the children; and
(d)Proposed change of surname for the children.
LEGAL PRINCIPLES
Parenting orders are made under the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of Part VII, and the principles underlying the objects, are set out in section 60B of the Act, which provides relevantly for present purposes that:
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).
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.
In determining what is in the child’s best interests, the court must consider the matters set out in sections 60CC (2) and (3) of the Act in so far as they are relevant.
When making a parenting order 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 (s.61DA). The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child (or another child who was a member of the parent’s family) or family violence.
The presumption can be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child.
When the court makes an order for the parents to have equal shared parental responsibility for a child, then the provisions of s.65DAA apply and the court must consider whether it is reasonably practicable and in the best interests of the child for the child to spend equal time with each parent.
Where equal time is not reasonably practicable or not in the best interests of the child then the court must consider whether it is reasonably practicable and in the child’s best interest to spend substantial and significant time with each parent.
Section 65DAA(5) provides that in determining 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 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.
Note: Paragraph (c) reference to future capacity—the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
THE TRIAL
The matter was originally listed for trial in respect of parenting and property issues. The parents, to their credit, and with the help of their legal representatives, were able to reach agreement to settle their property dispute, and final property orders were made by consent on 16 September 2022. The hearing in respect of the parenting issues proceeded over the course of three full days from 14-16 September 2022.
The father was represented by Mr Rugendyke of Counsel. The mother was represented by Mr Duane of Counsel. The Independent Children’s Lawyer was represented by Mr Mooney of Counsel.
the Evidence
The father
The father was cross examined over the course of the whole of the first day of the trial, and the morning of the second day.
The father is employed fulltime as a professional with Employer R, and is also a retained community worker. The father has flexible work arrangements and works nine days each fortnight. He deposes that in week two of each school term he does not work on Friday and commences work on the following Monday at 10.00am[10], which would enable him to collect the children from school on Friday and deliver them to school on Monday.
[10] Father’s affidavit paragraph 209
The father currently lives alone in Suburb S, NSW, and says that he has not re-partnered. His parents, his sisters and the children’s Godparents, all live within a 30-minute drive from the father’s home and are willing and able to support the father with school drop-offs, pick-ups and changeovers if required.[11]
[11] Father’s affidavit paragraph 208
The father has recently entered into a lease for a secure 2 bedroom home at Suburb S and has furnished one of the rooms for the children. The property has a fenced backyard for the children to play. His home is a 20-minute drive from the children’s school and a 23-minute drive from the mother’s home.[12] The paternal grandparents live 8 minutes’ drive away from the children’s school at Suburb B[13].
[12] Father’s affidavit paragraph 207
[13] Father’s affidavit paragraph 211
The father says that the mother’s allegations about his use of alcohol and other drugs during the relationship is exaggerated and in some cases fictitious, and he says that his mental health is well managed. I accept the father’s evidence that he no longer uses illicit substances and that he does not drink to excess. The testing results which the father has produced in a timely fashion during the proceedings corroborates his evidence, as does the report of Dr T, discussed further below.
The father was diagnosed with Attention Deficit Hyperactivity Disorder when he was a teenager. In 2017 or 2018 he was diagnosed with anxiety and was compliant with prescribed treatment, which included Lovan, psychologist sessions, regular physical exercise and positive lifestyle changes.[14] The father currently manages his mental health without medication, and with the advice of his General Practitioner, and his psychologist Dr T, who has also treated the mother. The father is diligent in maintaining his organisational skills, including keeping a calendar, and he ensures that he maintains good physical health.
[14] Father’s affidavit paragraph 110
Dr T is a clinical and health Psychologist and provided a report concerning the father dated 11 July 2021, which is attached to the father’s affidavit[15]. Dr T notes that the father has attended upon her since 24 January 2019. She found no evidence that the father uses illicit substances or misuses alcohol and, as at 11 July 2021, certified that the father does not require any ongoing substance use or alcohol counselling. In relation to ADHD, the doctor has been working with the father on strategies to manage the condition, which are set out in her report, and she says that “If he keeps following up on these I see no problem in him continuing to be an excellent, well-attuned dad”.
[15] Father’s affidavit page 158
X was born by emergency caesarean section and the father assisted the mother while she recovered from surgery in the first six weeks after X’s birth. The father describes the parenting tasks he performed, as well as support he provided to the mother, including taking her and the child to outpatient clinic appointments at City U Hospital. I accept the father’s evidence that he provided support for the mother after the birth of X, and that he attended to household duties and assisted in caring for X, until the mother fully recovered. The parents thereafter shared household and parenting duties, fitting in around each other’s work and study commitments.
The father says that X was an easy baby and had a good sleep cycle and from about six months of age slept through the night.
Y was born by way of elective caesarean, and the father assisted to care for both children and the mother during her recovery post-surgery.
The father says, and I accept, that he remained involved in the care of the children as they grew and he took an active interest in the children. For example, when the children were around 3 and 4 years old he conducted a health focused exercise session at the children’s child care centre, and completed an exercise for children unit as a part of his certificate IV in community work. The father arranged for community workers to attend at the child care centre, and gave a safety demonstration to the staff, children and parents of the centre. The father was involved in reading to the children and taking the children to the park, and he says that both parents attended to medical appointments for the children.
The parents took the children on a number of overseas holidays together including to Country H around early 2016, Country V in 2016, a five week trip with the maternal grandparents to Region W and the Country Z in 2017, New Zealand in 2018, and in late 2018 on a holiday to Country H. The mother’s parents assisted with some of the travel costs and the balance was paid from the parents’ joint savings. The father says, and I accept, that while away on holidays the parents shared the care of the children, although not necessarily equally.
The mother studied during the relationship and when she had to attend campus at City AB the children were in the father’s sole care for periods of up to two or three days at a time, commencing from around 2016. The father says that the mother never indicated to him, prior to the separation, that she had any concerns about leaving the children in his care.
The father says that there were difficulties in the parents’ relationship after they found out that the mother was pregnant with Y, and there was a short separation in June 2016 for about two weeks. The father says that the mother accused him of having an affair, which he denies.
In December 2018 the father told the mother that he no longer wanted to be in the relationship, and he moved out. The mother insisted on supervising his time with the children, and he says that during his visits to her home she wanted to discuss relationship issues with him while he was spending time with the children.[16] There were no notable incidents or disputes at the mother’s home until an incident on 7 March 2019.
[16] FR1: 31-32
The father says that on Thursday 7 March 2019 he attended at the mother’s home to spend time with the children, as agreed, from 4.15pm to 6.30pm. He says that he sat on the lounge room floor and started playing with the children. He says that the mother approached him and asked him to pick up a parcel at the post office. He refused, because he was spending time with the children. He says that the mother became angry and started yelling at him in front of the children. He says that Y started crying when the mother started yelling, and that he tried to comfort Y. He says that the mother asked him to leave and he refused telling her that “this is the time that we agreed upon that I could see the children.” The mother told him to leave or she would call the police. The mother went outside to the front porch and was on her phone. The father remained on the floor playing with the children and about 10 minutes later the paternal grandmother arrived and said to the father “Ms Crewes called me to come and ask you to leave.”
The father says that the mother walked into the lounge room, picked up both children and walked towards the front door. The paternal grandmother was standing in the front doorway. The mother had Y in her left arm and X in her right arm and the father says he witnessed the mother push into the paternal grandmother with her left arm, which was holding Y, resulting in the paternal grandmother being pushed against the door frame. He said that Y’s crying sounded like he was in pain, and X started to cry as well. The father said to the mother “Stop you’re hurting Y” or words to that effect. He says he approached the front door where the mother was standing and tugged on the back of her shirt to get the mother to move away from the paternal grandmother, so that she would be free to move. The father denies that he pulled hard enough to tear the mother’s shirt or to leave a mark on her and he says that he did not see a mark on the mother’s neck or a tear in her shirt. He says that the mother then walked through the house with the children, put the children in X’s room and blocked the door with her body, preventing the father or the paternal grandmother from getting inside X’s bedroom.
The father asked the mother to let the children out of the bedroom as they were crying and says that she said to him “You’re mentally ill and you shouldn’t be allowed to see your kids” or words to that effect. She then opened the door, took the children, got her keys and walked out the front door with the children. The father says he saw the mother place the children in her car unrestrained and drive away.
The father says that on either Monday 11 or Tuesday 12 March 2019 he was arrested and interviewed by police. Following his interview he was released and the police told him they would not be issuing an ADVO. No charges were laid. Following this incident the father says the mother did not respond to his messages requesting to spend time with the children.
It would have been better for the father to comply with the mother’s request that he leave her premises. The father remaining at the premises after he was asked to leave clearly contributed to the unfortunate altercation that occurred in front of the children and was clearly very distressing for them. The father must accept his share of responsibility for exposing the children to the parental conflict on this occasion.
After interim orders were made in August 2019, the father spent supervised time with the children, for two hours on 12 occasions throughout late 2019 and early 2020. He has paid at least $3,000 to meet the costs of the contact supervision service in order to spend time with the children.
The children were excited to see the father at the supervision centre and were demonstrative in their affection for him, as he was with them. The father tendered into evidence a copy of some supervised contact reports[17] which describe the very positive interactions between the children and the father.
[17] Exhibit E
The children’s positive interactions with the father at the centre are not only a testament to his warm and responsive parenting, but are also a credit to the mother. The fact that the children were able to maintain their positive relationships with the father over the period of 5 months when they did not spend time with him demonstrates the mother’s capacity to separate her own feelings about the father, from the children’s feelings, and some capacity to facilitate a positive relationship for the children with the father. On 28 September 2019 X showed her father a certificate that she had received from school, which demonstrates that the mother thought about and was able to support X to share her achievement with the father, and this demonstrates the mother’s good parenting skills.
From early February 2020 the father commenced to spend unsupervised time with the children each alternate Saturday at the Suburb B shopping centre, and in August 2020 the children’s time with the father was extended, and based at the paternal grandparents’ home.
The father describes in his affidavit the various positive activities that he does with the children while they are in his care. The father has completed the Triple P Parenting program, the Parenting after Separation program, and the K Program.
Y plays sports each week during the season, on Wednesdays and Sundays. On the weekends when the children are in the father’s care Y arrives at changeover without his sports gear and uniform, which the mother brings with her to his game on Sunday.
The father is concerned about the impact of the breakdown of the parents’ relationship on the children’s mental health, and he has tried on multiple occasions to engage with the mother about his concerns, but that she has either ignored his requests or omitted vital information. The father noticed, around 2020, that Y was struggling with anger. The father has sat with Y and helped Y breathe and stay calm, and explained to Y why there are rules, and talked to Y about his feelings.
The father noticed, around May 2022, a change in X’s behaviour. X was having trouble maintaining focus when completing tasks and difficulty regulating her emotions when she met with objection or challenge to her ideas. The father had a conversation with X’s teacher at a father’s day event. X was referred to the school counsellor for assessment of potential ADHD tendencies. The father is experienced in managing his own ADHD. He says that he asked X’s teacher for advice on how to deal with X’s behaviour at home and was advised to set clear boundaries with X and to try to understand where her feelings are coming from, and work through them together. He says that he has successfully implemented those strategies with X at home.
The father believes that the children’s difficulties with their behaviour are due to the relationship breakdown, including exposure to parental conflict. It is clear that the children were exposed to parental conflict on 7 March 2019 and that this will have impacted their feelings and their behaviour.
The father has contacted both children’s teachers regularly to ascertain how they are going at school and, since March 2022, he has been able to attend school related events and extracurricular activities, and is actively involved in the children’s lives, including Y’s sports.
The children have a close relationship with the paternal grandparents. The father denies that there are any risk of harm issues for the children in the care of the paternal grandfather. The paternal grandfather has suffered from depression and anxiety for most of his life, and this is managed with regular and ongoing treatment.
The father says, and I accept, that he has a good and loving relationship with both his parents. The paternal grandmother and the paternal grandfather each filed an affidavit in support of the father’s application in these proceedings. The father also deposes to the close relationship the children have with their godparents and aunts and uncles.
The father is concerned about the mother’s capacity to promote the children’s relationship with him. He says he hears the mother refer to him as “Mr Falconer”. He says that the mother refused to permit the children to spend time with him on Father’s Day in 2021 and asserts that she has not complied with some of the court orders, including on 20 June 2020 when he waited at the changeover location but the children did not arrive, and in April 2021 when his solicitors received correspondence from the mother’s solicitors advising that the mother would no longer be making the children available for time with him, due to concerns of psychological harm which were not detailed.
There have been ongoing difficulties with telephone communication. There is a dispute between the parents as to whether the father’s attempts to call X on her birthday were answered or not. The mother’s evidence is that she tries to encourage the children to speak with the father. The father says he has never had video conference calls with the children in compliance with the orders of 16 December 2020.
The mother enrolled X at AC School around mid-2020 to commence kindergarten in 2021. She did not consult the father about X’s enrolment. As Exhibit M indicates the mother wrote to the principal at X’s school on 10 February 2021 informing the school that, “X is receiving counselling for domestic violence under the NSW Victims of Crime Act” and “As you can see, the father is now allowed to be enlisted on X’s enrolment. His name is Mr Falconer and his current address is unknown… As visits are only once a fortnight under no circumstances is he to pick X up from school.”
It is unfortunate that the mother has chosen to engage X in counselling without any input from the father, and this issue is discussed later in these reasons. It is also regrettable that the mother chose not to consult the father about X’s enrolment at school. Clearly there was no impediment to the mother including the father’s details on the enrolment form for X to begin with. Her failure to do so is inexplicable other than by reference to the conflict in the co-parenting relationship.
The father says that he hasn’t been notified of any medical appointments for X, and was not consulted or notified prior to the mother taking both children to Ms AD for counselling.
The mother has been using the surname “Crewes” for the children, including at sports and at school. The father says that the children now introduce themselves as X Crewes and Y Crewes. Y has no recollection of using the name Falconer, however X understands that she has an association with the name Falconer, but she believes her surname to be Crewes. The father said “I understand that it is important to maintain stability in the children’s lives, and that referring to them as two different names can be confusing to them.” The father’s evidence in cross examination about this issue highlights his capacity to remain child focussed. He said that he would have appreciated the mother consulting with him about using the surname Crewes for the children, but that he does not wholly oppose it and that the “kids recognise their own identity”. The father is content for the children to have a hyphenated surname and does not contend for an order that would restrain the mother from allowing the children to use or to be referred to by the name Crewes.
The father does not seek a restraint on the mother allowing the children to refer to her partner as “Dad” or “Daddy”, but he would prefer that the mother refers to him as “Dad” or “Daddy” rather than “Mr Falconer” when speaking about him to, or referring to him in the presence of, the children.
In relation to international travel the father seeks that each child has a passport and is permitted to travel overseas with each parent. The children travelled overseas with the parents during their relationship and the father says “I have no objection to Ms Crewes travelling overseas with the children, I would just like some notice of that travel and to know the dates of the holiday along with the itinerary and contact details while the children are travelling overseas and if possible, in the future that the travel occur during the time the children are not in my care. I too would also like the opportunity to take the children on holidays overseas in the future.”[18]
[18] Paragraph 167 father’s affidavit
Apart from his concerns about the mother not facilitating the children’s relationships with him, and her failing to consult with him and keep him informed about their counselling, the father agreed during cross examination that the mother is a good mother, who worries about the children and thinks about every detail of their lives and their care.
I found the father to be a congenial, patient, and honest witness. He remained thoughtful and child focussed throughout his oral evidence. I am comfortably satisfied that he is a loving and devoted father to the children, that he is well-attuned to their needs, and that he is committed to providing the children with opportunities to grow and develop in a safe and nurturing environment.
The paternal grandmother – Ms N
Ms N provided an affidavit in support of the father’s case which she affirmed on 23 August 2022. She was not required for cross examination, and I accept her unchallenged evidence.
Ms N lives at Suburb AE in New South Wales (NSW) and is 64 years of age. She has been married to the paternal grandfather Mr M for 45 years and they have lived in their home at Suburb AE for 36 years. She is the holder of a NSW drivers licence and enjoys good health.
Ms N did not see the children for over 18 months after the parents first separated and says that she missed the children deeply during that period. She says that she made attempts to see the children which were rebuffed by the mother.
Ms N says that on 7 March 2019 she arrived at the parents’ home. She says that there was an argument about the collection of a parcel, and the mother became very argumentative and grabbed the children off the floor and tried to push past her at the door, and in doing so she hit Y’s arm on the door frame. The paternal grandmother says that her arm was pushed against the door frame when the mother was trying to push past, because the mother had one child in each arm and both the children were crying. Ms N says that she believes the father grabbed the back of the mother’s shirt to pull the mother away from her. Ms N sustained bruising during the incident.
Ms N says that she observes the father to be a kind, loving and attentive father and that he takes good care of the children. She has heard the children ask to spend more time with the father. She says that she supports the father while he has the care of the children and will happily continue to provide support including should he require assistance to get the children to and from school.
Ms N deposes to her close and loving relationships with the children.
The paternal grandfather – Mr M
The paternal grandfather provided an affidavit in support of the father’s case which he affirmed on 24 August 2022. He was not required for cross examination and I accept his unchallenged evidence. He holds a current NSW drivers licence. He has suffered from anxiety and depression for the majority of his adult life which is managed well by treatment from his doctor.
Mr M deposes as to the close relationship he has with the father, and to his close relationships with the children, who he says enjoy the sleepovers at the paternal grandparents’ home. Mr M is willing to assist the father with the children when required.
The mother
The mother is employed casually as an allied health worker. She completed her degree recently, and plans to commence a Master’s degree in 2023.
The children live with the mother at Suburb B New South Wales. They attend AC School at Suburb B where X was in Year 1 in 2022 and Y was in in Kindergarten in 2022. The children currently spend time with the father each alternate weekend from 9.00am Saturday until 5.00pm Sunday, overnight at the home of the paternal grandparents at Suburb AE New South Wales. Changeover occurs at McDonalds at Suburb B.
The mother and children live with the mother’s partner Mr P and the children’s maternal half-sister C, born in 2021.
The mother contends that the father suffers from mental health issues that impact on his parenting capacity and that this is the main reason why she seeks to limit the children’s time with him. The mother does not seek that the father’s time with the children be supervised. As noted previously, the mother’s psychologist Dr T, who has also assisted the father, expresses the view that the father’s ADHD is well managed and does not impact adversely on his parenting capacity, provided that he adheres to the routines that support his wellbeing, namely good sleep pattern, regular exercise, keeping a calendar or planner and outside support from family, friends, psychology and GP. I consider that the mother did not adduce any credible evidence in support her contention that the father’s mental health is adversely impacting on his parenting capacity.
In her affidavit, and during her oral evidence the mother was highly critical of the father. She appears entrenched in her position that he has wronged her and her family by pursuing his application for the children to spend time with him. She described during cross examination the “threatening and intimidating letters from his lawyers” and “the stress he has put on my family, my mother, my partner, dragging them through court”. She expressed her belief that the family law system is broken. Her sense of grievance and injustice was palpable during her oral evidence. I have no doubt that the mother has found the legal proceedings to be intrusive and stressful.
The mother alleges that the father consumed alcohol to excess during the relationship. I consider that she embellished the evidence which she provided in her trial affidavit about this issue.[19] In terms of the father’s current level of functioning, all of the test results supplied by him do not support excessive alcohol, and Dr T assessed in July 2021 that the father did not require any ongoing substance use or alcohol use counselling.
[19] When contrasted with the evidence the mother provided in her affidavit filed on 15 August 2022 for example at paragraphs 12, 15, 24 and 29.
The mother was disappointed in the father’s choice to separate and was “hopeful that we could reconcile”. It is a credit to the mother, and a testament to her inherent strength and fortitude, that she has managed to provide high quality care for the children through her grief, with the love and support of the maternal grandmother, and Mr P.
In relation to the incident of 7 March 2019 the mother agrees that she requested the father to pick up a parcel for her and says that she called the paternal grandmother to come and get him after she asked him to leave and he had refused. She says that the paternal grandmother arrived approximately 20 minutes later, and that when she picked up the children to leave for her mother’s home, the paternal grandmother blocked her exit by standing in the front doorway. The mother says that she tried to move past the paternal grandmother but could not. She alleges that the paternal grandmother proceeded to push her back into the room while she was holding the children and that the force of this pushing led Y to hit the door frame. She agrees that the children were crying hysterically. The mother says that the father grabbed her from behind and threw her approximately 3 metres across the room, whilst she was holding the children.
The mother says that due to advice from the police the children did not see the father again after 7 March 2019, however the police report of the incident makes no mention of any such advice and instead records that “No fears of safety for the children were shared by the victim” and “victim requested Police consider conditions to allow POI access to the road near the house for access to the children”.[20]
[20] Exhibit G
The parents give versions of the events of 7 March 2019 that differ on one important point, and that is whether the father tugged on the back of the mother’s shirt to get her to move away from the paternal grandmother, as the father says he did, or whether, as the mother now alleges, he grabbed her from behind and threw her approximately 3 metres across the room. I take into account that there are inconsistencies in the mother’s own evidence, and between her evidence and her report to her psychologist[21] after the incident, and the police entry of the incident[22]. I also take into account the unchallenged evidence of the paternal grandmother who was present. I am not satisfied to the required standard that the father threw the mother three metres across a room on 7 March 2019 as the mother alleges he did.
[21] Exhibit H
[22] Exhibit G
Taking into account the orders which are proposed by each parent, and the final submissions made on behalf of each parent, including that the children are not at risk of harm from being exposed or subjected to family violence in the household of either parent, I do not consider it necessary to conduct a detailed enquiry of incidents which are alleged to have occurred more than three and a half years ago, and I note also there is no evidence of any family violence since the incident on March 2019.
The mother was understandably distressed by the consequences which flowed from the father’s posts on Facebook and, as already discussed, the posts exhibited poor judgment on his part, even taking into account that he was frustrated because the mother was not permitting the children to spend time with him, and by the lack of consultation when the children were taken overseas.
The mother deposes that around the time the children commenced spending supervised time with the father in late 2019 their behaviour changed. She says that Y was anxious in the lead up to supervised time, and that X said that the father would like her if she dressed up nicely with makeup. The mother took the children to the GP in October 2019 and the GP noted that the children had experienced changes in the return of their father and also the death of the maternal grandfather. Certainly the children did experience enormous changes following the separation of their parents, and as a consequence of the death of their beloved grandfather. The children were also exposed to parental conflict. Both parents need to take responsibility for this.
The mother says that Y’s behaviour deteriorated in 2020 and that he was aggressive and would punch the wall, throw toys and scream. The father noticed a similar increased difficulty with Y and managing his anger. The main thing which is likely to assist the children moving forward is that they are not exposed to parental conflict.
The mother makes various complaints about the children reporting back to her things that the father has allegedly done, such as leaving them on a beach during a volleyball game on 31 October 2021, and telling her in December 2021 that they look after each other. Children who are caught in the middle in high conflict parenting disputes have been known to tell one parent things about the other parent which the child thinks the parent would like to hear. There is no credible evidence upon which to find that the father neglects the children when they are in his care.
The mother attached to her affidavit a report from Ms AD Psychologist. Ms AD is currently treating the children for Post-Traumatic Stress Disorder. Ms AD has never spoken to the father, and he has not been included in any of the sessions that the children have had with their psychologist.
The court is concerned that the children continue to attend upon Ms AD Psychologist when she has received no information or input from the father. The family consultant said in oral evidence that it is important for the wellbeing of the children that both parents are involved in any assessment of and treatment for them. It is very difficult for a clinician to obtain an accurate view of the children’s circumstances when the clinician hears only the point of view of one parent. Any clinician who diagnoses and treats a child for PTSD or ADHD must have the education, training and experience to diagnosing and treat those conditions. Sometimes trauma like symptoms can overlap with each other. A formal assessment of X for ADHD must include the father.
I place little weight on the observations and assessment of Ms AD. She is treating the children, but has only ever been involved with the mother in assessing their situation, and I consider that the children continuing to be treated by Ms AD absent any input from the father may place them at risk of psychological harm.
I am comfortably satisfied that the mother is a loving, devoted and competent parent to the children. The father conceded as much. She presented as angry and bitter towards the father during her evidence. The mother is undergoing counselling for PTSD and I accept the opinion of the family consultant that the mother may benefit from such counselling.
Mr P
The mother’s partner Mr P provided an affidavit which he affirmed on 19 August 2022. Mr P was crossed examined.
Mr P was born in 1990 and is 32 years of age. He is a tradesman and employed on a full time basis.
Mr P and the mother and the children have lived together since August 2019. They reside with the maternal grandmother in Suburb B, and with their child C who is about 8 months old.
Mr P provides financial support to the mother and the children and has a great relationship with the children. He has a child AF from a previous relationship and spends regular time with him and has a good relationship with AF’s mother.
Mr P confirmed in cross examination that he has no personal issue with the father and that he and the father recently attended Y’s school for a Father’s Day event. They exchanged words and there was no unpleasantness between them. Mr P has also attended at Y’s sports and Y has observed Mr P and his father talking without any issues.
I formed the impression that Mr P is a devoted step parent to the children and that he wishes to avoid conflict with the father and that he is willing to engage in respectful and courteous interactions with the father when they come into contact with one another.
The Family Consultant
Ms O is a Psychologist and a Regulation 7 Family Consultant. Ms O prepared two family reports in this matter, the first dated 7 December 2020 (“FR1”) and the second updated report on 31 August 2022 (“FR2”). Ms O also gave oral evidence and was cross examined.
On 13 November 2020 Ms O noted that the mother reported her concerns for the children’s safety and wellbeing in the care of the father related to poor supervision and neglect, and the potential to witness the father’s alcohol binges[23]. The mother alleged that the father’s alcohol and substance abuse are a significant issue. The father denied the mother’s allegations.
[23] FR1 paragraph 26
The mother reported that the father’s poor management of his ADHD is linked to his substance abuse and inadequate parenting, and she said that her own anxiety and depression does not impact on the children[24].
[24] FR1 paragraph 28
The mother told the family consultant that she does not think that the father “has anything to offer the children especially when the stepfather can offer them everything” and she suggested that if the father was not in the children’s lives they would not be missing anything. The family consultant reports that “The mother sees little to be gained in the child-father relationship for the children and suggested that they would be better off without his involvement”[25]
[25] FR1 paragraph 49
The family consultant recorded that “There are… psychological and emotional benefits to children knowing both parents and having opportunities to spend time with them, even when a parent is less than perfect, and costs to their development when this is denied”[26]
[26] FR1 paragraph 99
Ms O noted, and the court accepts, that neither parent was prepared for a parenting partnership when the mother discovered that she was pregnant with X. The parents had different values and expectations.
Ms O said that the children do not fit the picture of children with PTSD. Her observations of the children with the parents do not indicate that the children have a trauma background. She said that PTSD is not a very common condition in children and she did not perceive that the presentation of the children was consistent with that condition. She described X was very much like a little girl with her father showing off, bossy, no hesitancy at all with him, and that Y warmed very quickly to the father, and that the children were connected well as siblings and responded naturally to the father.
Ms O believes that the parents may benefit from participating in a Keeping in Contact program, and said that individual sessions may help them understand the children better. The focus of the program is to assist parents to understand what happens for children when parents don’t agree, and to understand why children act differently in different homes. Where parents are in high conflict, the children may have one story with the father which is quite different from the story they tell the mother. Children will tell their parents what they think the parent wants to hear and they learn to edit their stories to please a parent. A Keeping in Contact may assist the parents in understanding how the children are impacted by their conflict, and the parents are urged to make their own enquiries about such a program.
The family consultant expressed a real concern that if the mother is given sole parental responsibility for the children then the father will be marginalised in the children’s lives. She said that she was less inclined to a slow incremental progression of the children’s time with the father given that they are primary school aged, and that if the time progression is too slow then the children may not easily make the necessary adjustments to spending time with the father, and they will cope better the sooner that adjustment is made.
Ms O was clear to say that in her opinion there is nothing which indicates that the father is not able to provide proper parenting for the children. In the course of preparing her reports she undertook parenting capacity assessments and there was no incapacity identified in the father.
Due to the high conflict between the parents school to school changeover is appropriate, as soon as possible. Face to face changeovers can be stressful for the children and school has the advantage that the children need a parent to be punctual as it can be stressful for the children if they are not collected on time.
I pause to note that I was left in no doubt by the father’s evidence that he has the capacity to manage his time appropriately and that he is diligent in maintaining his calendar and understanding what his obligations are. I consider that the children are not at risk of the father not picking them up from school on time, or delivering them to school late
Ms O observed the interactions of the children with each of the parents and there was no concerns for the children noted in the care of either parent.
I place significant weight on the observations of Ms O, who not only has had the advantage of interviewing both parents but also of observing the interactions of each parent and each of the children with each parent. I consider that Ms O is in a significantly better position to assess the children’s situation, than is Ms AD who has never spoken to the father, let alone observed the children’s interactions with him.
CONSIDERATION OF WHAT ORDERS ARE IN THE BEST INTERESTS OF THE CHILDREN IN THIS MATTER
60cc considerations
Primary considerations
Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
I have regard to the authorities which have discussed what is meant by the expression “meaningful relationship”, including the decision of Brown J in Mazorski & Albright [2007] FamCA 520 where His Honour said:
I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
In M & W[2006] FamCA 1414, Faulks DCJ referred to the definition of “meaningful relationship” saying (at para 35):
The question of what constitutes in the circumstances a meaningful relationship is one not defined by the Act. The definition of substantial time with a parent is one that relates to significant times, rather than to the amount of time, and does not provide any particular assistance in determining what a meaningful relationship is.
In H v M [2006] FamCA 1071 Strickland J observed at para 101:
“There is no issue here that a meaningful relationship with a mother and the father will benefit the child. The child will of course live with the mother and spend time with the father, and although the dispute centres around the extent of the time that the child should spend with the father, that alone does not determine whether there will be a meaningful relationship or not. Other important factors include how the time is spent and the input of the parent during that time.”
I find that each parent is devoted to the children, and I am satisfied that the children will derive significant benefit if they are able to have a meaningful relationship with both parents.
The father has much to offer the children, not the least of which is his love and affection for them, and his commitment to caring for them and providing opportunities for the children to learn and grow. The children have the opportunity to enjoy their important relationships with the extended paternal family while with the father.
The mother has had some difficulty recognising that there is benefit to the children of having a meaningful relationship with their father and she seeks to significantly limit their time with him. The mother must appreciate that the stepfather cannot offer the children everything that the father can offer[27]. She must appreciate that the children have a right to have a relationship with both their parents. It is important, for the children, that the mother uses her best endeavours to encourage and facilitate them to have a meaningful relationship with the father.
[27] FR1: 46
To the mother’s credit I am satisfied that, for the most part, she has managed to keep her very strongly held negative views of the father to herself and she has not exposed the children to those views, which is evident from the observations of the children with the father while under supervision, and for the preparation of the updated family report.
Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect of family violence
The mother does not contend that the children are at risk of harm in the care of the father from being subjected to, or exposed to, abuse, neglect or family violence, nor does she contend that the children’s time with the father requires supervision.
The father has no concerns for the safety and wellbeing of the children in the care of the mother.
The court is satisfied that the children are not at risk of harm from being subjected to or exposed to neglect, abuse or family violence in the household of either parent.
Relevant additional considerations
Section 60CC(3)(a) Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
When the children were spoken to for the preparation of the second family report on 12 July 2022 X reported that she enjoys sleepovers at her favourite aunty Ms AG’s house and said that she sees her aunty Ms AH and aunty Ms AJ, who are her father’s sisters, and visits them when she spends time with the father. X said that she stays at “nanny’s house” for sleepovers when she spends time with the father and that she has her own bedroom at nanny’s house. She reported that the father cooks pizza and tacos for them, and that they help him and that they never have takeaway at Dad’s. She said the father also makes spaghetti and meatballs which is a favourite.
Both children reported that when they go to the father’s they play card games such as AK and AL and that there are lots of toys at their paternal grandmother’s and they enjoy playing with them all.
X seemed to be aware that she was quite spoilt at the paternal grandmother’s home and she enjoyed the special attention.
X expressed that she enjoys sleepovers at her maternal grandmother’s home and that they sleep in “Nanny’s” granny flat.
The children are very young and their views are not determinative, however I take X’s views into account.
Section 60CC(3)(b) The nature of the relationship of the child to:
(i) each of the child’s parents; and
(ii) relatives (or other relevant persons)
During observations of the children with the father X gave him a big hug, and Y was a little reluctant to display physical affection. He said that he felt a bit tired.
The children referred to the father as “daddy” and they were engaged with energy and willingness with him, with no hint that they have a bad or uncomfortable time or that they were unhappy to see him. There was no sense that the children did not like being with the father. He was playful in his interactions with them and they were positive in their responses to him.
On each occasion that the children were observed with the mother there was nothing of any concern and the mother was observed to be warm and responsive to the children. The children were observed with the mother, their step-father Mr P and baby C on 12 July 2022, and seen to have warm and comfortable relationships with all present, and were observed to have a caring and loving attitude towards their baby sister.
I have no doubt that the children have a close and loving relationship with the maternal grandmother who has provided continuous support and assistance to the children throughout their lives to date.
Clearly the children report loving relationships with their paternal grandparents and their Aunts.
The children have the benefit of close and loving relationships with extended family members on both sides, who love and care deeply about the children.
Section 60CC(3)(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
I am satisfied that both parents have taken every opportunity to participate in making decisions for the children, as well as every opportunity to spend time with and communicate with the children.
The father’s opportunities have been limited by the mother, who has made unilateral decisions in relation to each child including:
(a)Removing the children from Australia to travel to Country H without informing the father or obtaining his consent;
(b)Enrolling the children in school without the father’s knowledge or consent;
(c)Arranging for the children to engage in counselling with Ms AD, without the father’s knowledge or consent; and
(d)Declining to facilitate any arrangement other than for very limited time for the children with the father; and
(e)Declining to facilitate the children having weekly video calls with the father since 16 December 2020, notwithstanding an order which provides for such calls to occur.
Section 60CC(3)(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
The father pays child support as assessed. His liability has recently increased due to his increased estimated income, and he has made an arrangement to pay off the arrears of child support that have been generated as a result of the changed estimate.
I am satisfied that each of the parents has fulfilled his and her obligations to maintain the children.
Section 60CC(3)(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 the parents; or
(ii) any other child, or other person, with whom he or she has been living
The father is an allied health worker. He enjoys the outdoors and helping the children develop their confidence by building their skills, and encouraging them to be independent, including by giving them a bit more freedom than the mother might.
The parents have different values, opinions and parenting styles. Each parent has a great deal to offer the children, and the children will need time to adjust to the different routines and expectations in each of the households.
The mother is the children’s primary carer, and due consideration must be given to their attachment relationships with her. The children will benefit if they are given an appropriate amount of time to adjust to the changes to their routines that spending additional time in the father’s household will involve for them. I consider that increasing the children’s block periods of time with the father over the current Christmas school holiday period will assist them to adapt to the changes so that by Term 1 in 2023 they will be accustomed to spending 3 nights each fortnight in the father’s new home. I consider that during the school term holiday in 2023 the children will benefit if they spend a five night block period with the father, and that by the Christmas school holidays in 2023 they will be able to spend block periods of seven nights with the father, and by 2024 block periods of up to two weeks. I take into account the children’s ages, the history of their care arrangements to date and the relationships that they have in the household of the mother when crafting the orders for the children to spend time with the father during school holiday periods.
The children have close and loving sibling relationships with C, which must also be considered, and they have a good relationship with their step-father Mr P.
I do not consider that it is in the children’s best interests, or appropriate for their welfare, that the mother be restrained from permitting the children to refer to Mr P as “Dad” or “Daddy”. The children have lived with Mr P since April 2020. The children’s half-sister is the biological child of Mr P and she likely refers to him as Dad or Daddy. The children were observed to refer to their father as “daddy” and clearly know who their father is, and they have a good relationship with him. I consider that it is an unnecessary intrusion into the children’s family life when they are with the mother to place any limitations on them as to how they refer to Mr P. I do however consider that the mother ought to refrain herself from referring to the children’s father as “Mr Falconer” in their presence and that she ought to refer to him as “Dad” or “Daddy” when talking to the children about their father, and that she should be required to encourage the children to refer to their father as “Dad” or “Daddy”, as this helps to cement his important place in the lives of the children and may assist to avoid him being marginalised in the children’s minds while they are with the mother.
The orders that the court proposes to make will provide for the children to spend significant and substantial time with the father so that they have the benefit of having a meaningful relationship with him, and will permit the children to gradually adjust to the spend time arrangements.
The court considers that, taking into account the history of the care arrangements for the children, the children’s current ages and stages of development, their attachment relationship with the mother, and the lack of trust in the co-parenting relationship currently, it is appropriate to delay any overseas travel for the children with the father until the end of Term 4 in 2024, by which time X will be 9 years old and Y will be 8 years old and the children will be spending two week long block periods of time with the father during the Term 4 school holidays which will provide sufficient time for any international travel with either parents to be confined, as far as possible, to periods when the children are already in that parents’ care.
There is nothing to prevent the parents reaching agreement in writing to permit the children to travel overseas with one parent during the other parents time, noting that make up time can be arranged, where appropriate.
Section 60CC(3)(e) The practical difficulty and expense of a child spending time 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
Fortunately for the children the home of each parent is in reasonably close proximity to each other and the father’s home is within a reasonable distance of the children’s school, so that it will not cause the children any practical difficulty if they have to travel to and from school in order to spend time with the father.
Section 60CC(3)(f) The capacity of each of the child’s parents, and any other person, to provide for the needs of the child including emotional and intellectual needs
The mother contends that the children’s time with the father ought to be significantly restricted due to what she alleges is the impact of his mental health on his parenting.
The mother attributed the father’s decision to leave the relationship to him experiencing PTSD.[28] I accept the father’s evidence that he was not happy in the relationship.[29]
[28] FR1: 31, 42
[29] FR1: 31
The father was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) when he was a teenager. For the reasons already provided I am satisfied that the father’s ADHD is well managed and that the father is not misusing alcohol or using illicit substances.
The evidence of the children’s positive interactions with the father, and his well attuned interactions with the children point to the father having the capacity to provide for the needs of the children.
There is no evidence that either party suffers from a mental health condition that impacts on their capacity to meet the children’s day to day needs.
It is beyond doubt that the mother provides a high standard of care for the children and that she is a devoted and protective parent to them. She has well developed capacity to provide for the children’s needs, as long as she can assist the children to have a meaningful relationship with their father by encouraging and facilitating that relationship.
As discussed already, the mother has suggested that if the father was not in the children’s life they would not be missing anything. The mother needs to think very carefully about that suggestion. I place significant weight on the evidence of the family consultant about the benefits for the children of having a relationship with both their parents and the risks to the children of being deprived of such relationships.
The mother was very close to her late father, and she benefitted greatly from her close relationship with him. She enjoys a close and supportive relationship with the maternal grandmother, which has flow on benefits for the children. The mother owes it to the children to do all she can to encourage and assist them to have a good relationship with their father, and with the paternal family, who love and are loved by the children. The children are relying on the mother to do this for them.
If the mother does genuinely hold the view that the father has little to offer the children and that their needs can be met entirely by their step father, then she is urged to reconsider her views in light of the expert evidence, and to obtain support and assistance to better understand the children’s emotional needs and how she can best meet their need to have a relationship with their father.
The mother told the court that she is prepared to complete a Parenting after Separation course, noting that she was ordered to do so by Her Honour Judge Terry more than three years ago on 20 August 2019. The final parenting orders will require the mother to enrol in and complete that course, and it is hoped that, in combination with the strategies which the father has learned while undertaking the course himself, both parents are assisted to develop greater insight into the children’s emotional needs, and to develop skilful means to communicate with each other, so that the co-parenting relationship can be improved.
I reiterate that the mother has demonstrated the capacity to allow the children to enjoy their relationships with the father, notwithstanding her own dim view of him. X was able to express her positive views about her relationship with the father, her paternal grandmother and her aunts, and that of itself reflects well on the mother, given that X has been in the primary care of the mother and spent only limited time with paternal family. It remains of utmost importance for the children’s healthy development that the mother can support the children’s relationships with the father, and that she shields them from her views. If she does expose the children to her negative views of the father then this will have negative consequences not only for the children’s emotional wellbeing and development, by placing them in a loyalty bind and leaving them feeling conflicted and confused, but will likely undermine the children’s positive relationships with each of the parents in the longer term.
During his oral evidence the father indicated that he has obtained suitable accommodation for the children, noting that until now they have been spending overnight time at the home of the paternal grandparents.
As noted already, I found the father’s evidence to be child focused and I have no hesitation in accepting that he is deeply committed to the children and will provide appropriate accommodation and care for them while they are spending time with him.
Section 60CC(3)(g) The maturity, sex, lifestyle and background of the child and of either of the child’s parents and any other characteristics of the child that the court thinks are relevant
X is reportedly doing well at school, with some minor issues with her attention. Both children have had some behavioural issues, and the mother has organised for them to receive counselling with Ms AD, who is a Psychologist.
Ms AD has not had the benefit of any input from the children’s father in relation to their past experiences and she is treating the children for PTSD on the assumption that the children have that condition, which may cause harm to the children, rather than assist them.
Ms AD has relied heavily on what the mother has told her about the children’s past experiences, which the mother perceives through her prism of criticising and devaluing the father and his parenting contribution.
The children appear to be resilient, due at least in part to the mother’s good parenting, in difficult circumstances. The children have experienced the sad loss of their grandfather, the separation of their parents, their exposure at times to high conflict in the co-parenting relationship, significant curtailment of their relationships with their father, the mother re-partnering with Mr P, and the birth of their half sibling. Those are all potentially challenging circumstances for the children, and will have had some impact on the children who have had to adjust.
Section 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I consider by and large that both parents have demonstrated a proper attitude to the responsibilities of parenting.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
The mother has alleged that the father was verbally and psychologically abusive towards her during the relationship, and that he would push and shove her when he was drunk. The father denies any physical abuse, apart from pulling on the mother’s shirt on 7 March 2019. As discussed when dealing with the mother’s evidence, she had a tendency to embellish her evidence when it comes to the father’s failings and I cannot be satisfied to the required standard[30] that the father has physically abused the mother as she alleges.
[30]Evidence Act 1995(Cth) s 140
The mother alleged that the father threw a schooner glass at her, but the evidence she gave in respect of that incident was inconsistent with a text message that she sent to the father around the time of the alleged incident[31]. I cannot prefer the evidence of the mother’s over that of the father’s, which is that he denies that he threw a schooner glass at the mother or caused her an injury.
[31] Exhibit B
In relation to the incident which occurred on 7 March 2019 the parents give differing versions of the events. As noted already, I am not satisfied to the required standard that the father threw the mother three metres across a room on 7 March 2019 as she alleges.
Certainly there has been high conflict in the parenting relationship. The father’s proposal is that, as far as possible, changeovers occur at school which avoids the need for the parents to come into contact with one another and thereby limits the opportunity for conflict. The family consultant supports this proposal
Section 60CC(3)(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:
(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
There is no evidence that there has been a family violence order made in relation to the parents or the children, or any member of the children’s family.
Section 60CC(3)(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
I consider that limiting the children’s time with the father as proposed by the mother is the order which is most likely to lead to the institution of further proceedings and that orders which provide for an appropriate progression of the children’s time with the father are preferable as such orders will be the least likely to lead to the institution of further proceedings in relation to the children.
Section 60CC(3)(m) Any other fact or circumstance that the court thinks relevant
The children’s counselling
It is in the best interests of the children that both parents have input into the assessment of and treatment of the children, in order to avoid the risk that the children will be misdiagnosed and will not receive appropriate treatment, or will be encouraged to align with the narrative entirely provided by one parent without the benefits of a more nuanced understanding of the children’s experiences that comes with the input of each of the parents. Inappropriate assessment and treatment can have long lasting negative impacts on the children, including consolidating false narratives and not dealing properly with real issues, and must be avoided.
The court will make an order that the children are not taken to a counsellor or psychologist by either parent without the consent in writing of the other parent and both parents are authorised to receive information and have input into the counselling for the children.
Change of Name
The mother seeks an order permitting her to change the children’s surname to Crewes. The mother has been using that surname, and describing the children by that surname, notwithstanding that she is well aware that the children’s name registered on their birth certificate is Falconer.
In 2020 the mother’s evidence was that she was prepared to have the children’s surnames changed to Falconer-Crewes, and she says that the father agreed to that change but on a condition with which the mother did not agree.
The father does not oppose the children’s surname being registered as Falconer-Crewes.
The principles which guide the court when dealing with change of name for children are set out by the Full Court in Chapman & Palmer (1978) FLC 90-150. In summary the court must consider:
(a)The welfare of the child is the paramount consideration;
(b)The short or long term effect of a change in the child’s name;
(c)Any confusion of identity which may arise for the child of a name change if a name change does or does not occur;
(d)Any embarrassment that the child may experience if their name is different to that of the primary carer;
(e)The effect that any change of name may have on the child’s relationship with the parent whose name the child bears; and
(f)The effect of frequent or random changes of name.
The court is concerned about the mother’s desire to limit the father’s role in the children’s lives and the court considers that it is in the children’s best interest for their surname to confirm and maintain a connection to both their parents.
Given that the children have been known by the name Crewes for all purposes including at school, and they each now identify with the name, and noting the father’s consent, the court will make an order for the children’s surnames to be changed to Falconer-Crewes and for that surname to be used on all official documents. I will not restrain the mother from permitting the children to be known by the name Crewes because I am not satisfied that it is appropriate for the welfare of the children to do so, given that they are comfortable being known in the community by that name.
International travel and passports
Both parents seek orders for the children to have a passport and to be permitted to travel internationally with the children, although the mother seeks to limit the international travel order to her own international travel and not to extend it so as to permit the children to travel internationally with the father.
There is no basis on the evidence to find that the order should be limited in the manner proposed by the mother and the court intends to make orders which will permit each of the parents to travel internationally with the children, although travel with the father will not be permitted until the Term 4 school holidays in 2024, to allow the children sufficient time to become accustomed to spending periods of up to 2 weeks in the care of the father and separated from the mother, their sister and the extended maternal family.
Section 61DA
As there are reasonable grounds to believe that a parent has engaged in family violence, that is the father tugging on the mother’s shirt to get her to move, the presumption does not apply however I do consider that it is in the best interest of the children that the parents have equal shared parental responsibility for them. This is because I am concerned that if the mother has sole parental responsibility, in view of her attitude to the role of the father in the lives of the children, there is a risk that he will be marginalised, and that the children will be deprived of the valuable input of the father into the major long term decisions for them.
Allocation of Parental Responsibility for the children
Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons that the decision has been made jointly.
Section 4 of the Act defines "major long-term issues" as follows:
““major long term issues” in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) The child's education (both current and future); and
(b) The child's religious and cultural upbringing; and
(c) The child's health; and
(d) The child's name; and
(e) Changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
I consider that the order, which each parent proposes, for communication about the children to be conducted by way of the Our Family Wizard application, and the order that will require the mother to enrol in and complete the Parenting after Separation course, will likely improve the capacity of the parents to communicate and co-parent.
Each of the parents impress as intelligent and well-resourced people, and the children will benefit if the parents are each able to prioritise the children’s needs and wellbeing above the parental conflict, and communicate with each other about the children in a respectful and child focussed way.
Section 65DAA
Neither parent sought an order that the children spend equal time with the other parent and I do not consider that it is in the best interests of children of these children’s ages for them to spend equal time with each parent.
I consider that there would likely be significant challenges for the children, and for the parents, in participating in an equal time arrangement. An equal time arrangement requires children to change the home in which they live, week in and week out, and the children no longer have one established home base. Equal shared care arrangements can be particularly difficult for children, as they are required to transfer constantly from one home to another. The children must pack up and relocate every week, which children can find burdensome and tiring. They must constantly adjust to their changed physical environment, their different personal items, the different behavioural expectations, parental responses, routines, social opportunities and support networks. Some children adapt well and other children find it very challenging, and it is difficult to predict the outcome for each individual child.
The orders which the court will make provide for the children to spend substantial and significant time with the father, which I consider is reasonably practicable and in the best interest of the children, for reasons which have been discussed already, including the proximity of the parental homes to one another, the proximity of the father’s home to the children’s school, and the benefits to the children of the father being involved in the children’s daily routine and occasions that are of special significance to the children and the father.
Conclusion
For the reasons provided herein, and having regard to the evidence to which I have referred, I consider that the orders at the forefront of these reasons are the orders which are in the best interests of the children.
I certify that the preceding two hundred and eleven (211) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty. Dated: 22 December 2022
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