Farnham and DeLuca
[2018] FamCA 548
•22 June 2018
FAMILY COURT OF AUSTRALIA
| FARNHAM & DELUCA | [2018] FamCA 548 |
| FAMILY LAW – CHILDREN – FAMILY VIOLENCE – UNACCEPTABLE RISK – Where there exists a high level of conflict between the parents – Where there are allegations of family violence made by each parent against the other – Where the mother seeks that the father spend only supervised time with the children – Consideration of whether the father engaged in coercive and controlling behaviour during the cohabitation –Definition of “unacceptable risk” – Consideration of whether such behaviour as found by the Court poses an unacceptable risk to the children such that they should only spend recognition time with the father – Orders made for the father to spend unsupervised time with the children in a graduating arrangement culminating in alternate weekends and half of school holidays – Orders made in relation to communication, changeovers, airport watchlist and provision of contact details to the other parent. |
| Evidence Act 1900 (NSW) ss 128, 140 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 60CG, 65DAA Family Law Rules 2004 (Cth) |
| B and B (1993) FLC 92-357 “Unacceptable risk – A return to basics” (2006) 20 AJFL 249 |
| APPLICANT: | Mr Farnham |
| RESPONDENT: | Ms DeLuca |
| INDEPENDENT CHILDREN’S LAWYER: | Robertson Solicitors |
| FILE NUMBER: | SYC | 5417 | of | 2013 |
| DATE DELIVERED: | 22 June 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATES: | 27, 28, 29 and 30 November 2017 1 December 2017 19, 20, 21, 23 and 27 February 2018 |
REPRESENTATION
| THE APPLICANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Saw |
| SOLICITOR FOR THE RESPONDENT: | Kyle Family Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Mr Ladopoulos |
| INDEPENDENT CHILDREN’S LAWYER | Robertson Solicitors |
Orders
IT IS ORDERED THAT:
All prior orders made herein are discharged.
PARENTAL RESPONSIBILITY
The mother have sole parental responsibility for the children X born ... 2009 (“X”) and C born ... 2013 (“C”) (collectively referred to as “the children”).
Whenever the mother proposes to make a decision about a long term welfare issue for either child, before making any such decision:
(a)the mother is to notify the father of the matter she is considering and what her proposal is and must give the father 14 days to respond;
(b)Provided the father responds with his views about any such proposal within 14 days of being requested to do so, the mother is to take into account what those views are when she makes her final decision on that matter.
Upon the mother making a final decision on the relevant long term welfare issue, the mother is to forthwith notify the father of her decision before implementing same.
For the purpose of Order 3, a “long term welfare issue” for these children will include (but is not limited to) the following:
(a)Change of school;
(b)Any elective surgery or medical procedure; and
(c)Change of residential address.
For the purpose of Orders 3, 4 and 5 hereof, the communication required by those Orders is to be conveyed by each party to the other’s email address.
LIVE WITH
The children are to live with the mother.
SPEND TIME WITH
The children are to spend time with the father as follows:
(a)from the date of these orders until the commencement of Term 2 of the 2019 school year, each weekend from after school on Friday (or 3:15 p.m. if not a school day) until 6:00 p.m. on Saturday. This order to continue during school holiday periods in this time frame;
(b)Commencing on the first weekend of Term 2 of the 2019 school year until the commencement of Term 4 of the 2019 school year:
(i)each alternate weekend from after school on Friday (or 3:15 p.m. if not a school day) until 6:00 p.m. on Sunday; and
(ii)one overnight from after school (or pre-school) on Thursday until school time on Friday in the week the children will not be with the father on the weekend;
(iii)This order to continue during school holiday periods in this time frame.
(c)Commencing on the first weekend of Term 4 of the 2019 school year until the commencement of Term 1 of the 2020 school year:
(i)each alternate weekend from after school on Friday (or 3:15 p.m. if not a school day) until before school on Monday (or 9:00 a.m. if not a school day); and
(ii)one overnight from after school (or pre-school) on Thursday until school time on the next day in the week the children will not be with the father on the following weekend;
(iii)during the New South Wales school holiday periods at the end of Terms 1, 2 and 3, from after school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period;
(iv)during the New South Wales Christmas school holiday periods at the end of Term 4 of the 2020 school year:
(1)from 10:00 a.m. on 2 January until 6:00 p.m. on 9 January; and
(2)from 10:00 a.m. on 19 January until 6:00 p.m. on 26 January.
(d)From the commencement of Term 1 of the 2021 school year, as follows:
(i)during the school term (commencing on the first weekend of each school term):
a.each alternate weekend from after school on Friday (or, if the Friday is not a school day, from after school on the Thursday) until before school on Monday (or, if the Monday is not a school day, until before school on the Tuesday); and
b.one overnight from after school on Thursday until school time on the next day in the week the children will not be with the father on the weekend;
(i)during the New South Wales school holiday periods at the end of Terms 1, 2 and 3, for the first half;
(ii)during the New South Wales Christmas school holiday periods at the end of Terms 4:
a.where the school holiday period commences in a year ending in an odd number (eg. 2021), from 10:00 a.m. on the first day after the end of Term 4 until 6:00 p.m. on 8 January; and
b.where the school holiday period commences in a year ending in an even number (eg. 2022), from 6:00 p.m. on 8 January until 6:00 p.m. on 26 January.
The children are to spend additional time with the father as follows:
(a)on the Fathers’ Day weekend from 9:00 a.m. on Sunday until before school on Monday (or, if the Monday is not a school day, until 9:00 am on the Monday);
(b)at Christmas:
(i)from 6:00 p.m. on Christmas Eve until 2:00 p.m. on Christmas Day in odd numbered years; and
(ii)from 2:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day in even numbered years;
(c)such other times as the mother and the father may agree to in writing.
That the children's time with the father pursuant to other orders herein shall be suspended on:
(a)each Mothers’ Day weekend, from 9:00 a.m. on Sunday until before school on Monday (or, if the Monday is not a school day, until 9:00 am on the Monday); and
(b)at Christmas:
(i)from 6:00 p.m. on Christmas Eve until 2:00 pm on Christmas Day in even numbered years; and
(ii)from 2:00 p.m. on Christmas Day until 6:00 p.m. on Boxing Day in odd numbered years;
and the children shall be returned to the care of the mother between those times.
The Court notes that the father has informed the Court on 23 February 2017 that his residential address is K Street, Suburb L and that the address is the place at which the children will normally reside with him during the time they spend overnight time with him pursuant to these Orders. Should the father propose, on any occasion, during the time they are spending time with him pursuant to these Orders, for the children to spend overnight time at an address other than the address specified herein or any subsequent address he has notified the mother is to be his usual residential address, he is to notify her by email of the address at which the children will stay on that occasion. Such notice to be given 48 hours before any particular spend time period.
For the purpose of these Orders, unless otherwise agreed between the father and the mother in writing (which can be by way of email or SMS), changeovers shall occur as follows:
(a)for changeovers that occur at the end of the school day, the father shall collect the children from their respective school(s), pre-school or day‑care centre (or, if C is not attending school, pre-school or day‑care, from X’s school) at the conclusion of the school day;
(b)for changeovers which occur at the start of a school day, the father shall deliver the children to their respective school(s), preschool or day-care centre (or, if C is not attending school, pre-school or day-care, to X’s school) in time for the commencement of the school day;
(c)for changeovers which occur at other times:
(i)the mother shall ensure that the children are delivered to the father at the Suburb B Police Station at the commencement of the time they are to spend with the father; and
(ii)the father shall ensure that the children are delivered to the mother or her nominated representative at the Suburb B Police Station at the conclusion of the time they are spending with him.
(d)The mother may nominate a person to collect the children from and deliver the children to the father, as required by these orders. The mother is to ensure the detail including method of identification of the nominated person is provided by her to the officer in charge of the Suburb B Police Station before the nominated person attends for changeover of care of the children on behalf of the mother.
COMMUNICATE WITH
The father is to ensure, as far as is possible, that the children communicate with the mother by telephone for some time between 7:30 p.m. and 8:00 p.m. every Wednesday they are in his care. The mother is to call the children on their mobile phone(s) and the father is to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer the mother’s call.
When the children commence spending alternate weekend time with the father, the mother is to ensure, as far as is possible, that the children are available to receive a telephone call from their father on the alternate Friday when they will not be in his care, such calls to be made between 7.30 p.m. and 8.00 p.m. The mother is to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer the father’s call.
AUTHORISATIONS AND PROVISION OF INFORMATION
HEALTH
The mother shall:
(a)provide the father with and keep him advised of the names and addresses of the children’s general medical practitioners, specialist medical practitioners, dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("doctors and specialist consultants"); and
(b)ensure that the father is provided with a copy of any report by any such doctor or specialist consultant in relation to the children, within seven days of the mother’s receipt of the report.
Otherwise than as provided for herein both the father and mother shall be entitled to discuss issues concerning the children’s health with the children’s medical providers and professionals or specialist consultants.
The mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; or
(c)either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father where that medication has been obtained by her with a prescription provided by a medical practitioner.
The father is to cause the mother to be notified as soon as practicable if, while in his care:
(a)either of the children is admitted to hospital;
(b)either of the children is involved in a medical emergency; or
(c)either of the children will be required to take medication when they return to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care where that medication has been obtained by her with a prescription provided by a medical practitioner.
The mother is to ensure that:
(a)the children are, at all times, immunised in accordance with the Australian Government National Immunisation Program Schedule (“the Schedule”); and
(b)provide the father with a copy of documentary evidence of the children having been vaccinated in accordance with the Schedule, such evidence to be provided to the father within fourteen (14) days of any such vaccination.
EDUCATION
The mother is to notify the father, and keep him informed in the case of any change, of the name and contact details of any school, pre-school or day-care centre that the children are enrolled in, such notification to be made in writing and within seven (7) days of any such enrolment.
The mother is to forthwith authorise any school, pre-school or day-care centre, which the children are attending from time to time, to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the children.
Each parent is to use their best endeavours to ensure each of them is permitted to attend any school, pre-school, day-care centre or extra-curricular presentation or performance which either of the children are participating in and to which parents are ordinarily invited.
CONTACT DETAILS
The mother and the father notify each other of:
(a)a current telephone contact number and email address, such notification to be made in writing and within three (3) days of the date of these Orders; and
(b)any change in telephone contact number or email address, such notification to be made in writing and within three (3) days of any change.
As a general rule each party is to restrict communication with the other to a minimum. Neither the mother nor the father are to telephone the other unless there is an absolute requirement that they communicate by telephone because of some imminent circumstance which will adversely impact upon the welfare or wellbeing of either of the children if that means of communication is not used. All communication is to be restricted to emails wherever possible and text messaging if the urgency of the situation dictates it to be required.
Whenever the parents do communicate with each other, by whatever means, they are to conduct such communication in a civil, respectful and non‑threatening manner.
Should either party hereafter change the circumstances surrounding the presence of other persons who reside in the same residence as themselves where that person or persons are reasonably anticipated to interact with the children when the children are in the care of that party, the other party is to be forthwith provided with the names, ages and relationship, if any, to the party with whom they are or will reside.
RESTRAINTS AND INJUNCTIONS
The mother and the father are each restrained from:
(a)discussing these proceedings, any orders made as set out herein or the reasons given for the making of these orders, in the hearing of or presence of the children;
(b)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(c)causing or allowing any other person:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
OTHER
Each of the parents is to ensure the children are known by the surname DeLuca-Farnham and each is to cause school records and other records holding the children's names, including birth certificates, to be amended accordingly.
In the event that the children or either of them is unable to attend upon time with the father because of illness the father is to nominate a makeup time (not so that it runs consecutively with another time the children are to spend with him) to the mother and the mother is to cause the children to spend that time with him.
Should the mother decide that either child is too ill to attend upon time with the father she is to provide to the father within 48 hours of any such occasion a scanned copy of a medical certificate obtained to show that illness and that the child is medically unfit to spend time with the father.
As and from the commencement of Term 1 of 2020 school year, in the event of the mother being unable to personally care for the children overnight then she is to offer the father the first opportunity to do so before she arranges any other care for the children.
That appointment of the Independent Children’s Lawyer be discharged.
The mother is to use her best endeavours to have the children attend upon confidential counselling to assist them with the implementation of these orders. If such counselling is available to the children, the mother is permitted to provide the counsellor with a copy of these orders and a copy of the judgment. The counselling is not to be with the same person or organisation the mother attends upon for domestic violence counselling.
Neither party is to remove either child from Australia without the written consent of the other and a consent order presented to the Court to suspend or remove the airport watch list order made below.
That until ... 2027, the children X, (also known by the surname DeLuca-Farnham) born ... 2009 (a female) AND/OR C (also known by the surname DeLuca-Farnham) born ... 2013 is not to be removed from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order. Further it is ordered that the names of the said children be placed upon the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia.
All outstanding parenting applications are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Farnham & DeLuca has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: SYC 5417 of 2013
| Mr Farnham |
Applicant
And
| Ms DeLuca |
Respondent
And
Independent Children's Lawyer
REASONS FOR JUDGMENT
Introduction
Before the Court is an Application for Final Orders sought by Mr Farnham (“the father”) and a Response filed by Ms DeLuca (“the mother”). Each party seeks parenting orders.
The proceedings between the parties has been on foot since 2013. Since the commencement of the proceeding the parties have been engaged in frequent exchanges before the Court created by one or the other filing an application for interim orders.
The father has, since the matter entered my docket been self-represented. The mother has been in receipt of a legal aid grant and has been represented.
The subject children are X, born in 2009 (“X”), and C, born in 2013 (“C”). C’s birth in 2013 post-dated the parties’ separation.
The issues of fact in this case are multitudinous. Most of the fact issues relate to allegations and denials of family violence alleged by one party to be perpetrated against the other. One of the most significant issues was cast by the Family Consultant who, in his Family Report dated 21 June 2017 (updated on 31 October 2017), recommends that should the Court find the father has engaged in controlling and coercive behaviour, largely throughout the cohabitation, then he be ordered to have “recognition time” only with the children. Should that not be established, then the recommendation is that the father have substantial and significant time with the children.
At the hearing, both parties updated their requests for final orders. The father’s minute of order was marked as Exhibit F11 and the mother’s minute was marked as Exhibit M13.
The Independent Children's Lawyer and each of the parties seek that the Court make a raft of orders to support the implementation of the orders it might make for the children to spend time with the father.
As the reasons set out hereunder will illustrate, the parties were most ill-suited to cohabit, let alone raise children as a single unit family. Even in the early stages of their relationship there was conflict which gave rise to complaints and allegations of family violence. Since separation each party has become more suspicious of the other and each has, on occasions, failed to communicate with the other at a level and in a manner which effective co-parenting requires.
As will be seen, each parent has accused the other of failing to comply with the Court’s orders, or the spirit of same, and the father has been the subject of a recovery order issued at a time when he retained X for a period of five days. Thereafter the father alleges the mother did not permit any contact between the father and X for nine weeks.
The mother’s level of suspicion rose to such a level that when the children were with the father she drove past the address at which the father said he would be staying with the children overnight, and on one occasion she secreted a GPS tracking device in a toy attached to X’s backpack which she took with her on overnight time with the father. It was necessary for the Court to provide the mother with a certificate under s 128 of the Evidence Act 1900 (NSW) in order for the mother to inform the Court why she had hidden the device in the child’s belongings.
The father has skills in computer and IT. Those skills appears to have heightened the mother’s suspicions further such that she accused him of “hacking” into her emails and/or phone. She claimed that an email which she had composed in about 2010, yet never sent, was obtained by the father through “hacking” and then used against her in various ways. The email was tendered in the hearing by the father who said the mother had sent the email to him and he had replied to it.
The father’s personality and demeanour add to the dysfunctional nature of the parties’ relationship. He presents as an intelligent, confident, self-assured, assertive, and perhaps at times quite humourless person. He presents as quick to anger and unwilling to readily retreat from potential conflict. Some of the evidence to be canvassed in these reasons will add colour and feature to those conclusions.
The mother, by contrast, presents as quiet, tentative, lacking in confidence and perhaps self‑esteem, struggling with dealing with the problems associated with English not being her first language, living in a foreign country without family support, and struggling financially. She has a high level of distrust of the father and anything he might propose in relation to the children.
Each of the parents has demonstrated actions, which suggest lack of proper regard for the impact of such action upon the children.
It is with those circumstances in mind that the Court has had to determine what orders can be made which might promote the children’s best interests while still providing for them to live within their now separated family. Each of the parents sought orders which would have the children living with them. However, on the final day of the trial, and immediately before he commenced his final submissions, the father submitted that the degree of care he would have for the children could be graduated.
Orders sought
Father’s Orders Sought
At the conclusion of the evidence and prior to making his submissions, the father amended the orders he was seeking. His final orders as sought at the conclusion of the hearing were as follows:
PARENTAL RESPONSIBILITY
1.The father have sole parental responsibility for the children [C] born ... 2009 (“[X]”) and [C] born ... 2013 (“[C]”) referred to together as the children, in respect of education, health and religion and all long term matters that relate to the children’s lives.
2. That the father:
a.Notify the mother of any proposed decision relating to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
b.Take into consideration any views expressed by the mother about the proposed decision
3.The father and the mother have day to day responsibility for the children while the children are in the care of that parent.
4.That for the purposes of Order 2 above, should the mother wish to express any views, she shall do so in writing and be limited to a single email unless the mother seeks clarification of the father’s views, in which case any clarification shall be limited to one email.
LIVE WITH
5.Following the return to school on Monday, 30 July 2018 that the children live with the father.
SPEND TIME WITH
6.Until the Easter holidays 2018, the children spend time with the father overnight from 3:13 p.m. on each Wednesday until 9:00 a.m. the following day.
7.The children continue to spend overnight time with the father overnight from 3:13 p.m. on each Friday until 6:00 p.m. until the following day until the commencement of school holidays on Monday 16 April 2018 when the children will spend a week with the father in the first week of the school holidays and a week with the mother in the school holidays.
8.From the week commencing Monday 30 April 2018 until the week commencing Monday 7 May 2018 that the children spend overnight time with the father from 3:15 p.m. on Thursday 3 April until 9:00 a.m. on Monday 7 May 2018.
9.The children continue to spend overnight with the father overnight from 3:13 p.m. on Friday 11 May 2018 until the commencement of school on Monday 14 May 2018.
10.From the week commencing Thursday 17 May 2018 until the week commencing Monday 21 May 2018 that the children spend overnight time with the father from 3:15 p.m. on Thursday 17 May until 9:00 a.m. on Monday 21 May 2018.
11.The children continue to spend overnight with the father overnight from 3:13 p.m. on Friday 25 May 2018 until the commencement of school on Monday 28 May 2018.
12.From the week commencing 4 June 2018 until the school week commencing 12 June 2018 the children spend overnight time with the father from 3:15 p.m. on 4 June 2018 until the start of school at 9:00 a.m. on Tuesday 12 June 2018.
13.From the week commencing 18 June 2018 until the school week commencing 25 June 2018 the children spend overnight time with the father from 3:15 p.m. on 18 June 2018 until the commencement of school holidays on 2 July 2018.
14.The children spend time going forth with the father and the mother on each alternate week from 3:15 p.m. on each Friday until 9:00 a.m. on each Friday the week after.
15.The father is provided with the right of first refusal in situations where the mother is unable to provide care herself for the children and the mother must not arrange in the first instance for friends, baby sitters, ‘groups’, or the people that she lives with to provide care for the children.
16.The children are to be returned to the father in accordance with these orders.
COMMUNICATE WITH
17.That the children communicate with each parent by telephone when they are in the care of the other parent between 6:30 p.m. and 7:00 p.m. every Wednesday and that the children are at leisure to use their mobile phones and that each parent is to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer or make such a telephone call(s).
18.That the mother and the father ensure the children are at liberty to telephone the other parent at such other reasonable times as the children wish to do so.
AUTHORISATIONS AND PROVISIONS OF INFORMATION
HEALTH
19. The father shall:
a.provide the mother with and keep her advised of the names and addresses of the children’s general medical practitioners, specialist medical practitioners, dentists, optometrists, psychologists, psychiatrist, counsellor or therapist (“doctor and special consultants”); and
b.ensure that the mother is provided with a copy of any report by any such doctor or specialist consultant in relation to the children, within 14 days of the father’s receipt of the report
c.provide the mother with details of any counselling, therapy or other that [C] and [X] may require from time to time
20.That both the father and the mother shall be entitled to discuss issues concerning the children’s health with the children’s doctors or specialist consultants.
21.That the father shall ensure that the mother is notified as soon as practicable if, while in his care:
a. either of the children is admitted to hospital;
b.either of the children is involved in a medical emergency;
or
c.either of the children will be required to take medication when the y spend time with the mother, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the period that the children are to spend with the mother.
22.That the mother shall ensure the father is notified as soon as practicable if, while in her care:
a. either of the children is admitted to hospital;
b. either of the children is involved in a medical emergency; or
c. either of the children will be required to take medication when they spend time with the mother, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the period that the children are to spend with the mother.
23. That the father shall ensure that:
a.the children are at all times, immunized in accordance with the Australian Government National Immunisation Programme (“the Schedule”); and
b.provide the mother with a copy of documentary evidence of the children having been vaccinated in accordance with the Schedule, such evidence to be provided to the father within fourteen (14) days of any such vaccination.
EDUCATION
24.That the father shall notify the mother of the name and contact details of any school, pre-school or day care centre that the children are enrolled in, such notification to be made in writing and within seven (7) days of any such enrolment and the father be allowed to enrol [C] and [X] in an Australian State school.
25.That these orders authorise any school, pre-school or day care center that the children are attending to provide both the father and the mother with copies of all reports, curricular, notices and administrative or other document that relates to the child or the enrolment at the school in relation to the children, including all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and such like activities to which parents are invited as well as any and all information which may be sought from time to time.
CONTACT DETAILS
26. That the father and the mother notify each other of:
a.a current telephone contact number and email address, such notification to be made in writing and within three (3) days of the date of these Orders; and
b.any change in telephone contact number or email address, such notification be made in writing and within three (3) days of change
27. That the father and the mother notify each other of:
a.their current residential address and the name of any other person(s) residing at such address, such notification to be made in writing and within three (3) days of due date of these Orders;
b.any change regarding other persons that reside at such an address, such notification to be made in writing and within three (3) days of such a change; and
c.any proposed change to their place of residence, such notification to be made in writing and within seven (7) days of such a change
OTHER CHILDRENS ISSUES
28.For the purposes of communicating information concerning the care of the children or issues relating to parental responsibility between the parents, unless otherwise provided for in these Orders, the parents shall:
a. communicate by telephone for matters of an urgent nature; and
b. otherwise communicate by email
RESTRAINTS AND INJUNCTIONS
29. The parents shall:
a. be restrained from:
i.discussing these proceedings in the hearing of or in the presence of the children;
ii.speaking about the other parent or the other parents family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant manner in the presence of in the hearing of the children
b. take all reasonable steps to prevent any other person from:
i.discussing these proceedings in the presence of in the hearing of the children
ii.speaking about the other parent or the other parents family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant manner in the presence of in the hearing of the children
RELIGION
30. That the children:
a.are taught Christian beliefs and are permitted to attend the Anglican Church with the father on each alternate Sunday morning
b. spend time with the father on Passover
c. spend time with the father at Easter
d.spend time with the father on each alternate Christmas day from 3:13 p.m. on Christmas eve until 9:00 a.m. on Boxing day
31.the mother may provide an alternate to the father’s theological beliefs
CULTURE
32. That the children:
a.both enjoy the Australian and [European] culture with the mother
b.children are allowed to enjoy and celebrate NAIDOC week with the father
c. spend Australia day with the father
d. spend ANZAC day with the father
e.spend Easter Friday, Easter Saturday and Easter Sunday with the father
f.spend each alternate weekend on Christmas with the father, unless the mother is working then the mother may spend time with the children on each alternate Christmas day
g. spend each alternate Boxing day with the father, unless the mother is working then the mother may spend time with the children on each alternate Boxing day
h. celebrate NAIDOC week with the father to be celebrated either in Queensland with the children’s broader family or in Canberra with and the mother may also participate while the children are in the father’s care
33. That [C]:
e. is allowed to be introduced into the Aboriginal culture and be educated about the Aboriginal ways of living, eating and social interactions
34. That [X]:
f.is allowed to continue in the Aboriginal culture and be educated about the Aboriginal ways of living, eating and social interactions
SURNAME
35. That the children both have the father’s surname (“[Farnham]”)
COMPLIANCE
36.Bilateral Orders are made to ensure that whence non-compliance to Orders occurs, that the parent that lost time with the children is afforded make up time to the amount of time that was lost.
37.The father is granted leave to file on short notice any contravention made by the mother in respect of health, education, spend time and live with arrangements
OVERSEAS TRAVEL
38.The no-fly condition applied to [C] and [X] until [C] attains the age of 11 [X] attains the age of 16.
39.The children must not be taken out of the Commonwealth of Australia subject to [38] and [40], [41], [42] and [43] and the mother must provide a telephone number and physical address of where the children will reside or stay and must make herself known to the closest Australian overseas Diplomatic Mission, Embassy or other within 24 hours of her arrival and provide a copy of these Orders.
40.The children must be fully immunised in compliance with the Australian National Immunisation Schedule and must be fully immunised in compliance with the requirements of the country in which they are travelling or will be travelling to.
41.Until conditions in [38] The children must not be removed from the Commonwealth of Australia by any person, agency, organisation or other.
42.The children must travel overseas for no longer than two weeks at a time.
43.The mother must provide a security bond of $5,000 and that money shall be retained in escrow in an ANZ bank managed account to be set up by the father
FATHERS DAY
44.The children enjoy Father’s day with their father each year from the day previous, until 6:00 p.m. at the end of that day.
MOTHERS DAY
45.The children enjoy Father’s day with their father each year from the day previous, until 6:00 p.m. at the end of that day.
Mother’s Minute of Orders sought
The mother provided a minute of the orders she sought which became Exhibit M13 in the proceedings. The orders she sought were as follows:
1. All previous orders be discharged.
UNTIL FURTHER ORDER:
2.The children, [X] born ... [2]009 (“X”) and [C] born ... 2013 will live with the mother and the mother will have sole parental responsibility for [X] and [C] (together, “the children”).
3. Subject to the provisions in subparagraphs 3.3 to 3.11 below, the father will spend supervised time with the children until [C] commences high school, as follows:
3.1.on either the first or third Sunday of each calendar month for a period of not less than two (2) hours and not more than seven (7) hours between 10am and 5pm; and
3.2.if not already spending time with the children pursuant to 3.1 above, for a period of up to 4 hours to celebrate the children’s birthdays and Christmas, on either the Sunday before or the Sunday after the birthday, …;
3.3.changeover must be effected by the supervisor such that there is no contact between the parents at changeover;
3.4.the father must nominate a professional child contact service (“the child contact service”) from one of the government funded, NGO fee for service, or privately operated services listed on the Australian Children’s Contact Services Association website at …;
3.5.the father must provide the manager of the nominated child contact service with a copy of this order on or before he commences the intake process;
3.6.the time may be spent at any location including a private home, public place, or a facility provided by the child contact service (“the location”), except the home at which [Ms N] resides;
3.7.the duration of the time and the location will be as decided by the manager of the child contact service in consultation with both parents prioritising the children’s needs and interests, including their need to spend time with their father;
3.8.the children must not be required to travel for more than 30min from their home with the mother for changeover;
3.9.both parties must cooperate with and follow the requirements, codes, and rules of the child contact service;
3.10.the father must pay any fee required by the child contact service; and
3.11.if the father intends that [Ms N] will be present during the time he spends with the children, the father must inform the manager of the child contact service and the time must be spent in a public place or in a facility provided by the child contact service; and
Notations
3.12.it is noted that the father is not required to engage the same child contact service on each occasion but that the father will use his best endeavours to provide consistency and predictability for the children;
3.13.it is noted that nothing in this order prevents the mother from having a nominee deliver and/or collect the children to/from changeover; and
3.14.it is noted that the reason for the requirements in relation to [Ms N], is not that [Ms N] poses any risk to the children or any reason other than the need to protect the children from the risk of exposure to family violence posed by [Mr O], the father of [Ms N’s] children.
4.Subject to the father having complied with Order 3 above to the extent that he has spent time with the children on at least one occasion in every two-month period, the time the father spends with the children pursuant to 3.1 and 3.2 above shall be unsupervised and the location and duration of the time spent shall be arranged between the father and the children, noting the children will by this time have their own mobile phones and be old enough to catch public transport unaccompanied by an adult.
5.The mother must ensure the children spend time with the father pursuant to Orders 3 and 4 above, unless:
5.1. one or both children are ill or injured, in which case the mother must provide a medical certificate to the father by email within 72 hours, and in which case father may make up for the time lost, on the Sunday immediately following the time lost or at another time decided by the contact service in consultation with the parents; or
5.2.one or both children have been invited to another event of importance to them such as a birthday party and the father agrees to agree to swap the time for the Saturday of the same weekend, noting the father is not required to agree to the swap.
Attendance at special events
6.The father may attend any special event in which either child is involved and to which parents are invited and the mother will provide the father with notice of any such special event in writing as soon as is reasonably practicable after the mother becomes aware of the special event.
Health
7.The mother must inform the father of the name and contact details of any doctor or specialist and any hospital attended by either of the children for treatment.
8.The father may contact any doctor, psychologist, or specialist attended by either of the children to make enquiries about the child’s health.
9.The mother must provide any authority required by any doctor, psychologist, or specialist to enable the father to obtain information about the children’s health.
Education
10.The mother must inform the father forthwith if the children or either of them is enrolled at a school other than the [P School].
11.The father may contact the children’s school to make enquiries about each child’s progress and arrange to receive copies of school reports, notices, and any other documents available to parents.
12.The mother must provide any authority required by the school to enable the father to obtain information about the children’s education.
Injunctions
13. Each party is restrained by injunction from:
13.1.Speaking about court proceedings or any dispute between the parents, to or within hearing distance of either child.
13.2.Criticising or denigrating the other parent or any member of the other parent’s family to either child or within hearing distance of either child.
14.The father is restrained by injunction from speaking to the children in a negative manner about his relationship with the children or the amount of time the children spend with him.
15.Pursuant to s.68B of the Family Law Act 1975, the father is restrained by injunction from:
15.1.contacting, approaching, or stalking the mother, or attending within 100 meters of the mother’s place of residence, employment, or education except as is permitted by these orders;
15.2.approaching or contacting the children or attending the children’s school, except as is permitted by these orders.
16.It is noted that the Injunction in Order 18 is an injunction for the personal protection of the mother and children and as such the police have a power of arrest pursuant s.68C of the Act.
The children’s surnames
17.The mother is permitted to obtain a Birth Certificate for [C] and [C’s] name shall be [C Farnham DeLuca].
18.The mother is permitted to change [X’s] name from [X] to [X DeLuca].
19.The Registrar of Births Deaths and Marriages is requested to give effect to Orders 9 and 10 above.
Immunisation
The mother must cause the children to be immunised in accordance with the Australian Government funded National Immunisation Program, provided that the mother is not required to have either child vaccinated at a time that child has a cold, flu, or any other illness.
Overseas travel
20.The mother is permitted to take the children out of the Commonwealth of Australia as follows:
20.1.for the purpose of a holiday for one period of up to 5 weeks not more often than once in any two-year period, in which case the mother must give the father at least 4 weeks’ notice of the date the children will not be able to spend time with him pursuant to Order 3; and
20.2.in the case of an emergency involving a family member in [Europe], for a period of up to 3 weeks with as much notice to the father as is reasonably practicable if the children will miss time spent with the father; and
20.3.the travel dates must not include more than one Sunday the children would spend with the father but for the travel;
the mother must facilitate the children spending make up time with the father on the first Sunday they are not otherwise with the father after their return, unless agreed otherwise.
The Independent Children's Lawyer’s Recommended Orders
During final submissions, the Independent Children's Lawyer provided a minute of the order she recommended which provided as follows:
PARENTAL RESPONSIBILITY
1.That the mother have sole parental responsibility for the children [X] born ... 2009 (“[X]”) and [C] born ... 2013 (“[C]”), (referred to together as “the children”).
2. That the mother:
(a)notify the father of any proposed decision relating to the long term care and welfare of the children and the reasons for the proposal, such notification to be given in writing at least six weeks prior to a final decision being made; and
(b)take into consideration any views expressed by the father about the proposed decision.
3.That, for the purposes of Order 2 above, should the father wish to express any views, he shall do so in writing and shall be limited to a single email unless the mother seeks clarification of his views, in which case any clarification shall be limited to one email.
LIVE WITH
4. That the children live with the mother.
SPEND TIME WITH
5. That the children spend time with the father as follows:
(a)from the date of these orders until the commencement of Term 2 of the 2019 school year, each weekend from after school on Friday (or 3:15 pm if not a school day) until 6:00 pm on Saturday;
(b)subject to Order 8 below, commencing on the first weekend of Term 2 of the 2019 school year until the commencement of Term 4 of the 2019 school year, each alternate weekend from after school on Friday (or 3:15 pm if not a school day) until 6:00 pm on Sunday;
(c)subject to Order 8 below, commencing on the first weekend of Term 4 of the 2019 school year until the commencement of Term 1 of the 2020 school year, each alternate weekend from after school on Friday (or 3:15 pm if not a school day) until before school on Monday (or 9:00 am if not a school day);
(d)subject to Order 8 below, from the commencement of Term 1 of the 2020 school year until the commencement of Term 1 of the 2021 school year, as follows:
(i)during school term, each alternate weekend from after school on Friday (or, if the Friday is not a school day, from after school on the Thursday) until before school on Monday (or, if the Monday is not a school day, until before school on the Tuesday), commencing on the first weekend of each school term;
(i)during the New South Wales school holiday periods at the end of Terms 1, 2 and 3, from after school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period;
(ii)during the New South Wales Christmas school holiday periods at the end of Term 4:
a.from 10:00 am on 2 January 2012 until 6:00 pm on 9 January; and
b.from 10:00 am on 19 January until 6:00 pm on 26 January;
(e) subject to Order 8 below, from the commencement of Term 1 of the 2021 school year, as follows:
(ii)during school term, each alternate weekend from after school on Friday (or, if the Friday is not a school day, from after school on the Thursday) until before school on Monday (or, if the Monday is not a school day, until before school on the Tuesday), commencing on the first weekend of each school term;
(iii)during the New South Wales school holiday periods at the end of Terms 1, 2 and 3, from after school on the last school day of term until 6:00 pm on the second Saturday of the school holiday period;
(iv)during the New South Wales Christmas school holiday periods at the end of Terms 4:
a.where the school holiday period commences in a year ending in an odd number (eg. 2021), from 10:00 am on the first day after the end of Term 4 until 6:00 pm on 8 January; and
b.where the school holiday period commences in a year ending in an even number (eg. 2022), from 6:00 pm on 8 January until 6:00 pm on 26 January;
6.That the children spend additional time with the father as follows:
(a)on the Father's Day weekend from 9:00 am on Sunday until before school on Monday (or, if the Monday is not a school day, until 9:00 am on the Monday);
(b) at Christmas:
(i) from 6:00 pm on Christmas Eve until 2:00 pm on Christmas Day in odd numbered years; and
(ii)from 2:00 pm on Christmas Day until 6:00 pm on Boxing day in even numbered years;
(c)such other times as the mother and the father may agree to in writing.
7.That the children's time with the father pursuant to Orders 5 and 6 above shall be suspended on:
(a)each Mothers' Day weekend, from 9:00 am on Sunday until before school on Monday (or, if the Monday is not a school day, until 9:00 am on the Monday); and
(b) at Christmas:
(i)from 6:00 pm on Christmas Eve until 2:00 pm on Christmas Day in even numbered years; and
(ii)from 2:00 pm on Christmas Day until 6:00 pm on Boxing day in odd numbered years,
and the children shall be returned to the care of the mother between those times.
8.That Orders 5 (b), 5 (c), 5 (d) and 5 (e) above shall not have effect unless the father:
(a)is able to provide stable accommodation for the children when they are to spend overnight time with him; and
(b)provides evidence to the mother of the availability of such stable accommodation by providing to the mother a copy of any two of the following documents, each time the father changes residence:
(i) a current driver’s license indicating the father’s address;
(ii)a current bank statement or statement from another financial institution indicating the father’s address;
(iii)a current residential tenancy agreement indicating that the father is a tenant of specified premises; or
(iv)a current telephone, gas or electricity bill indicating the father’s address,
and, in the event that the father has not complied with this Order, the children shall spend time with the father as set out in Order 5 (a) above until such time as the father complies with the Order.
9.That for the purposes of these Orders, unless otherwise agreed between the father and the mother in writing (which can be by way of SMS texts), changeovers shall occur as follows:
(a)for changeovers that occur at the end of the school day, the father shall collect the children from their respective school(s), pre-school or day-care centre (or, if [C] is not attending school, pre-school or day-care, from [X’s] school) at the conclusion of the school day;
(b)for changeovers which occur at the start of a school day, the father shall deliver the children to their respective school(s), preschool or day-care centre (or, if [C] is not attending school, pre-school or day-care, to [X’s] school) in time for the commencement of the school day;
(c) for changeovers that occur at other times:
(i)the mother shall ensure that the children are delivered to [Suburb B] Police Station at the commencement of the time they are to spend with the father; and
(ii)the father shall ensure that the children are delivered to [Suburb B] Police Station at the end of the time they are spending with him.
COMMUNICATE WITH
10.That the children communicate with the mother by telephone between 7:30 p.m. and 8:00 p.m. every Wednesday that they are not already with her, with the mother to call the children on their mobile phone(s) and the father to take all reasonable steps to ensure that the children’s phone(s) are charged and switched on and that the children are available to answer the mother's call.
11.That the mother and the father ensure the children are at liberty to telephone the other parent at such other reasonable times as the children wish to do so.
AUTHORISATIONS AND PROVISION OF INFORMATION
HEALTH
12. That the mother shall:
(a)provide the father with and keep him advised of the names and addresses of the children’s general medical practitioners, specialist medical practitioners, dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("doctors and specialist consultants"); and
(b)ensure that the father is provided with a copy of any report by any such doctor or specialist consultant in relation to the children, within 14 days of the mother’s receipt of the report.
13.That both the father and mother shall be entitled to discuss issues concerning the children’s health with the children’s doctors or specialist consultants.
14. That the mother shall ensure that the father is notified as soon as practicable if, while in her care:
(a) either of the children is admitted to hospital;
(b) either of the children is involved in a medical emergency; or
(c)either of the children will be required to take medication when they spend time with the father, in which case the mother shall advise the father of the details of the medication required to be taken and shall provide the father with sufficient medication to cover the period that the children are to spend with the father.
15.That the father shall ensure that the mother is notified as soon as practicable if, while in his care:
(a) either of the children is admitted to hospital;
(b) either of the children is involved in a medical emergency; or
(c)either of the children will be required to take medication when they return to the mother’s care, in which case the father shall advise the mother of the details of the medication required to be taken and shall provide the mother with sufficient medication to cover the first 72 hours following children’s return to the mother’s care.
16. That the mother shall ensure that:
(a)the children are, at all times, immunised in accordance with the Australian Government National Immunisation Program Schedule (“the Schedule”); and
(b)provide the father with a copy of documentary evidence of the children having been vaccinated in accordance with the Schedule, such evidence to be provided to the father within fourteen (14) days of any such vaccination.
EDUCATION
17.That the mother shall notify the father of the name and contact details of any school, pre-school or day-care centre that the children are enrolled in, such notification to be made in writing and within seven (7) days of any such enrolment.
18.That these Orders authorise any school, pre-school or day-care centre which the children are attending from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the children including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or the father in relation to the children.
19.That both the mother and the father be permitted to attend any school, pre-school, day-care centre or extra-curricular presentation or performance which either of the children are participating in and to which parents are ordinarily invited.
CONTACT DETAILS
20. That the mother and the father notify each other of:
(a)a current telephone contact number and email address, such notification to be made in writing and within three (3) days of the date of these Orders; and
(b)any change in telephone contact number or email address, such notification to be made in writing and within three (3) days of any change.
21. That the mother and the father notify each other of:
(a)their current residential address and the name of any other person(s) residing at such address, such notification to be made in writing and within three (3) days of the date of these Orders;
(b)any change regarding other persons residing at such address, such notification to be made in writing and within three (3) days of such change; and
(c)any proposed change to their place of residence, such notification to be made in writing and no less than seven (7) days prior to the proposed change.
OTHER CHILDREN’S ISSUES
22.For the purposes of communicating information concerning the care of the children or issues relating to parental responsibility between the parents, unless otherwise provided for in these Orders, the mother and the father shall:
(a)communicate by telephone or text message for matters of an urgent nature; and
(b) otherwise communicate by email.
RESTRAINTS AND INJUNCTIONS
23. That the mother and the father shall:
(a) be restrained from:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children;
(b) take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the children;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of either of the children.
OTHER
24. That the Independent Children’s Lawyer be discharged.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The mother was born in Europe in 1977 and is 40 years of age. The father was born in Australia in 1974 and is 43 years of age.
The parties commenced to reside together in about 2007. That residence commenced in City Q in the United Kingdom. It appears to be common ground that the parties’ final separation was in about August 2013, however, there were earlier periods of separation in 2010 and perhaps later.
There are two children of the parties’ union, namely, X born in 2009 now aged eight, and C born in 2013. He is now four years of age.
The mother resides in the Suburb L area. She and the children share a residence with Mr R and his two children aged 12 and 10 years.
The father now resides at K Street, Suburb L, in a two bedroom unit. The father produced a tenancy agreement in relation to that accommodation dated 2 February 2018 and for a period of 12 months.
When the hearing commenced the arrangement for the care of the children was that they both live with the mother and spend time with the father each week from 3.15 p.m. Friday until 6.00 p.m. Saturday. The children were collected by the father at X’s school at the commencement of his time and returned to the mother at Suburb B police station.
One of the issues between the parties is whether or not the children should be immunised as recommended/required by the New South Wales health authorities. The mother has now agreed that should occur. The mother claimed that the father had agreed with her not to further immunise X after she had experienced an adverse reaction to an early immunisation event.
Affidavit Evidence
Affidavit of the father
In his affidavit filed 2 November 2017, the father set out the following evidence.
The father set out details of the accommodation provided for the children while in his care at the time of swearing. Further, he set his proposals for the children’s schooling, supervision for the children, health care, overseas travel and extra-curricular activities. Evidence of the father’s accommodation was updated in the oral evidence he provided.
The father set out his concerns in relation to health care. He provided details of a number of complaints as to the mother’s health care in relation to the children. His complaints are in relation to:
·Lack of information provided to the father by the mother;
·X presenting to the father as unwell and him taking her to a GP;
·The mother’s reaction to the father informing her of medication prescribed to X while in his care;
·Issues in relation to immunisation of the children;
·Complaints about the mother taking the children to a pub at night before spending time with him;
·The mother not giving the children prescribed medication.
The father set out concerns about the mother’s parental ability in relation to the children’s education. He makes complaints in relation to:
·Lack of information from the mother and her solicitor concerning the children’s education;
·Conflict between the parents regarding X’s elective subjects;
·The number of X’s days absent from school;
·The father not being named on C’s day-care enrolment forms;
·The father not being invited to father’s events at C’s day-care;
·X’s academic achievement.
Concerns were set out by the father in relation to childcare in relation to the children. The father made allegations in relation to:
·The mother placing the children into the care of strangers;
·The mother using childcare services advertised on Facebook.
In relation to domestic violence, the father said “The mother has confected many stories of domestic violence, however, the reality is that the mother has been the instigator of violence on all occasions.” He alleges that the mother assaulted him in City Q in 2008.
In relation to emotional and psychological violence, the father alleged that the mother “frequently displayed sharp mood swings between happy, sad and angry.” He made allegations in relation to the mother’s changeable moods.
The father made the following further complaints in relation to the mother’s parenting:
·That he was isolated by the mother by her insistence that they move to Sydney from Brisbane. He said he was left alone in the home while the mother used the parties’ car to go to work.
·He set out instances in which he says the mother physically assaulted him in the presence of the children. He said that he feared the mother. He stated that he had reported six incidents of domestic violence to Suburb B Police.
·That in relation to the mother stalking him while he spent time with the children.
·There is some complaint in relation to the mother abusing him financially by making false statements about her income, causing him to pay inflated child support payments. I note that the father is not seeking any orders in relation to child support departure.
·That the mother denigrated him in front of the children;
·That the mother did not discipline the children appropriately;
·That the mother contravened the orders by withholding the children;
·That the mother misled Justice Watts, by setting out false evidence in an affidavit sworn 15 May 2015;
·That the mother has offered limited make-up time for time not spent with the children due to her withholding them;
·That the mother withheld C from spending time with the father until he was 2 years old;
·That the mother has acted to negatively impact the father’s relationship with X by acting in a coercive and controlling manner towards X;
·That the mother has not registered C’s birth and he does not have a birth certificate;
·That the mother has changed C’s surname to DeLuca and intends to change X’s name to DeLuca also;
·That the mother has made unfounded and unsubstantiated statements of fear of harm to the Family Consultant and the court in relation to the father.
The father made complaint in relation to the report of Family Consultant, and set out responses to paragraphs of the Family Report. The father also provided submissions in his affidavit as to why the report of Dr E should not be regarded by the Court.
Affidavit of the mother
The mother relied on her affidavit sworn 14 November 2016. It is a large affidavit comprising 163 pages.
The mother proposes that the children live with her in the home she shares with Mr R (who she describes as her housemate) and his two sons aged about 6 and 5; that X continue attending the P School and that C join her at that school as long as she can afford to send them there.
The mother deposed that she does not believe that X is doing well psychologically and that she considers that X needs therapy.
In relation to the children’s surnames, the mother proposes that they have her surname and that the father’s surnames be given to the children as middle names. If the children were to live with the father, the mother deposed that she would agree to the children having the father’s surname and using DeLuca as a middle name.
The mother set out her concerns about the father’s parenting ability.
She deposed that she is most concerned and fearful of the children being exposed to the father’s anger. She set out the following allegations which she says illustrates the father being unable to control his temper:
·In 2008, the father choked and kicked her when she was six months’ pregnant;
·When they lived in City Q, the father strangled, kicked, and whipped his dog to the point where the dog bled;
·On many occasions the father would drive fast and erratically, and when she told him to slow down he would say “shut the fuck up”;
·On many occasions the father demonstrated “road rage” behaviour in that he would swear and verbally abuse other drivers;
·The father would typically shout at X and say “I am your father, you will obey me”;
·When X was a toddler, the father once picked her up and threw her across the room onto the couch;
·When X was six months old an accident occurred and the father swore at the mother and threw a metal pole at her while she was holding X;
·In 2016, after spending time with the father, X told the mother that “daddy was really mean to me today” and “Please don’t make me go to daddy anymore”.
The mother said she is concerned that the father does not have the ability to respond appropriately to the children’s emotional needs and that he is willing to cause harm to the children.
She then set out the following occasions where the father withheld X for longer than the orders in place allowed:
·On 21 June 2014 the mother was running late to pick the children up and the parties could not agree on a pick up location. The father withheld X until 8.30 p.m.;
·On 12 April 2015 the father withheld X overnight because he asserted his windscreen wipers were broken and he did not want to drive in the rain;
·On 13 May 2015 the father did not return X after spending time with her. The mother was advised that the father was withholding X because she had been interviewed by Suburb H police about the mother assaulting and hitting her. The mother filed a recovery application which was granted on 18 May 2015.
·On 4 November 2015 the father returned X an hour late to the changeover location at Suburb B Police Station because he had taken her to a doctor’s appointment but did not tell the mother where or when the appointment was;
·On 17 August 2016 the mother was unable to make it to the changeover location as she was attending a parenting course so she sent a friend, Ms S. Ms S was unable to collect X as she became distressed and stayed with the father overnight.
·On 24 August 2016 the mother again nominated Ms S to collect the children. The father called the police station and advised the police that he would not be returning the children. There was a miscommunication and the mother had to collect the children from Suburb H Police Station. She arrived there after 8.00 p.m.
The mother deposed that on 25 August 2016 her solicitors received an email from the father alleging that X had told him and the police officers that she became afraid of Mr T, the mother’s housemate, after conversations where he allegedly told her about the war and that he was responsible for cleaning up dead bodies.
A substantial portion of the mother’s affidavit relates to her complaints in relation to communication between herself and the father as to the children’s changeover and “spend time with” arrangements.
The mother deposed to various examples of the father’s behaviour which, I infer, go to the mother’s complaint that the father is not capable of acting in the best interests of the children. These complaints are:
·That the father implicates X into the conflict between the mother and father. The mother deposed to overhearing numerous phone conversations between X and her father where the father has made comments in relation to the mother’s parenting to X.
·That the father has failed to take X to two of her friends’ birthday parties while she was spending time with him despite receiving sufficient notice of the parties.
·That the father allows X to have numerous sweets and treats which the mother has banned due to X’s problems with her teeth.
·That the father is critical of her parenting and sends her long text messages and emails riddled with complaints while X is in his care.
·That the father does not want X to attend therapy and asserting she receive tutoring against the advice of her school teachers.
The mother further deposed to being concerned about the impact of the current orders on the children. Specifically, she outlined the following concerns:
·X’s mental health and need for therapy;
·The mother’s fear of the father stalking her;
·The father regularly being late to changeovers; and
·The father sending her text messages whilst the children are in his care with misleading information about the times that changeover had occurred.
The mother included significant detail of text messages and emails from the father in relation to problems with changeovers.
In respect of the relationship between the father and children, the mother deposed that X has a close affectionate relationship with her father and that C’s relationship with his father is developing.
The mother asserted that the father was in arrears of child support of over $10,000 as at September 2016.
The mother believes that the father intentionally decided not to provide financial support for the children when needed. She deposed to an occasion in 2016 where the father offered to pay half the costs of a music program for X, but did not do so on the basis that the mother would not tell him the details of her telephone provider.
Family violence
The mother deposed that the father became aggressive towards her after finding out she was pregnant with X in 2008. When angry, the mother described that he would kick doors, throw objects, smash objects on the floor, punch the wall and once punched the fridge. He would tell the mother to “fuck off” or “piss off” and say “this is my house, I want you gone by the time I get home from work.” The mother was referred to counselling in 2008 by her midwife.
In November 2008 the mother alleges that the father grabbed her upper arm, pinched her and held a butter knife to her face. She splashed a cup of tea in his face. The father then put his hands around her neck and choked her before leaving the house.
The father would call the mother names such as “fucking bitch”, “fat slut” and tell her “you look disgusting”.
The parties ended their relationship at the end of 2010 when the mother moved to Europe with X. In or around March 2011 the parties reconciled and the mother and X moved back to Brisbane with the father.
The mother deposed that the controlling behaviour worsened after moving to Brisbane. She deposed that the father controlled the finances and “depending on how I behaved he let me have the card to buy food.” The mother deposed that in December 2012 the father cut up her bank card.
In 2013 the mother began seeing a social worker. She deposed that the social worker assisted her to formulate a plan to leave the father. In August 2013 the mother moved into crisis accommodation for victims of domestic violence.
On Father’s Day in 2013, the mother deposed that she had arranged for X to spend time with the father in her presence. They went to Suburb U together. The mother deposed that during the day the father told X “I love you. I will tell the Police you can stay with me. I miss you. You are my best friend.”
The mother deposed that within two months of separation the father had attempted to text or call her over 900 times.
The mother asserted that the father has stalked her and her friends.
Affidavit of Mr R
The mother’s housemate also gave evidence in these proceedings. He filed an affidavit sworn on 31 October 2017 and was made available for cross-examination by telephone.
Mr R deposed that he is a single father with shared care of his children, two girls aged 10 and 11. He shares rental accommodation with Ms DeLuca and the children X and C.
In or around December 2016 Mr R deposed that he collected X and C from the Suburb B Police Station for changeover at 6.00 p.m. He met the father and changeover occurred smoothly. When they were in his car, Mr R deposed that X told him the father had shown her pictures of his children on the father’s phone.
In March 2017 the mother asked Mr R to collect the children from Suburb B Police Station. He deposed that the father arrived at the police station approximately 20 minutes late.
Mr R deposed that on one occasion in March 2017 he observed that X became upset because she was invited to a birthday party on a day she was due to spend time with the father. Mr R observed X say to her mother, “I don’t want to go to dad’s because you know he’s not going to take me to the party’s [sic].”
Mr R was present at the Family Report interviews in April 2017. He waited in the same room as the father. They had a conversation and he asked the father where the mother was, to which the father replied that “he had asked to be kept separated from [the mother] for his own safety”. They had a further conversation in relation to Mr V, who the children refer to as the “fish doctor”. Mr R observed the father to become irritated during this conversation and said that he was being degraded to the children by Mr V.
On 4 June 2017 Mr R attended Suburb B Police Station to collect the children. The father unilaterally changed the changeover time to 1.00 p.m. At 12 p.m. Mr R text messaged the father asking “How far away are you”. He did not receive a reply and called the mother because he had to leave to go to work. The mother arrived at the Police Station and as Mr R was leaving the father arrived with the children. Mr R deposed that later that evening, he arrived home and observed the children to be distressed. X said she wanted to come home but the father would not let her.
Oral evidence of the mother
The mother sought leave to adduce further evidence in chief when the trial resumed in February 2018, having been adjourned part-heard in November 2017. She provided the following evidence which I considered sufficiently relevant to incorporate in these reasons.
The mother was asked about the events following the first group of hearing dates which concluded on 1 December 2017. The mother said the orders provided that the father was to inform the mother where the children would be taken (stay overnight). She recalled the father said his address was at W Street, Suburb Y.
The mother was asked about the events of Friday 1 December 2017, which was the last day of the first group of hearing dates. The mother said she knew it was the father’s day to collect the children. She said the orders in operation at the time provided that the father was to inform her of where the children would be staying overnight when spending time with the father. She recalled the father said his address was W Street, Suburb Y.
The mother said that on 1 December 2017 she had waited for the father to communicate with her to arrange changeover, because she considered it was a possibility they would be in Court past 3.15 p.m. The mother said that because she had been in Court for the whole week, she was “very stressed” and she did not approach the father. She said that it “probably was a problem or was my mistake.”
The evidence was interrupted when I asked counsel for the mother whether I had already dealt with the issue of the children spending time with the father on 1 December 2017 on that day in Court. I then reviewed the Court record and read to the parties the notation I made, which became Order 3 of the orders made on 1 December 2017, and which provided as follows:
I note arrangements have been made between the parties for the child [C] to be delivered to [Ms Z], an acquaintance of the father, at the [Suburb B] Police Station at 4.30 p.m. today.
The mother informed the Court that she was not aware of the arrangement.
Given that the arrangement was made while everybody was at Court on that day it is incomprehensible that the mother was not aware of the arrangement and did not hear me enter the notation on the record when making the Orders. If for some reason she had left the Court when that notation was made, I cannot understand how she was not informed by her legal representatives.
In giving her evidence the mother informed the Court that on the afternoon of 1 December 2017 two people attended at the school to collect X. The mother said she spoke to a person at the school who informed her X was in tears and did not want to go with Ms Z. The mother spoke to X and she then agreed to go with Ms Z and that she would see the mother when she delivered C to Ms Z at the Police Station at 4.30 p.m. that afternoon.
In this case there is evidence of family violence which I have accepted. Further, the case illustrates such a poor ability between the parents to communicate that it would not be possible for the parents to share parental responsibility in a manner which would promote the best interests of the children.
I propose to make an order that the mother have sole parental responsibility.
Section 65DAA
SECTION 65DAA(1)-(4)
This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility. I will not make an order for equal shared parental responsibility and therefore equal shared time will not be ordered. I will consider hereunder what order might be made for the children to spend time with the father. In so doing I am cognisant of the provisions of s 65DAA.
Conclusions
There are some conclusions which I have reached which stand out as beacons in this matter. Those conclusions are as follows:
·The mother loves her children and is dedicated to parenting them to the best of her ability.
·The mother is a very good carer for the children. She has struggled financially and emotionally to parent the children as a single mother without the financial support of the father.
·Both children have a close and dependent relationship with the mother.
·The mother seeks the father’s time with the children be restricted to strictly supervised time on one occasion each month at the cost of the father. The time the mother has permitted is between two and seven hours. No evidence is provided as to the cost. The father was not cross‑examined about his capacity to pay for supervision on a monthly basis.
·The father is absolutely committed to being a parent to the children.
·The father loves the children very much and wants to be part of their lives and they be part of his.
·Both children enjoy a close and warm relationship with the father. This is more evident in X because of her age.
·X is very aware of the parental conflict. It is probable that she makes statements to each parent which she considers will ingratiate her to that parent even if that means making a negative statement about a parent who she loves and has a good relationship with. She demonstrates being a child with torn loyalties.
I conclude that each of the parents in this matter have been able to make valid criticisms of the other both in their parenting and their interaction with the other parent. Each, I am satisfied, have dealt with the other in a seriously antisocial manner. Notwithstanding the very high level of parental conflict and antipathy to which the children have been exposed, I am satisfied each of the children have significant and loving relationships with the father and significant, loving and dependent relationships with the mother.
At least to some degree, each parent has laid at the feet of the other justification for the way that parent has reacted and acted towards the other. Such justification, if it was ever properly available, is not acceptable in the role each play in raising young children in our society. In one sense each is really claiming victimhood as against the other.
A significant element in this case is the accommodation the father will provide for the children. The Family Consultant said it was important for the children to have stable accommodation when with the father. The father now has provided evidence of a tenancy agreement he has entered into for 12 months. That, I am satisfied, puts to an end any notion that the father lives a peripatetic lifestyle and the children will suffer if they spend time with him. No explanation, satisfactory to me, was provided by the Family Consultant about that opinion. If it was the case that it was harmful for children to live with a parent where the parent housed the children with friends or a family member when that parent spent time with them, then it would mean a significant number of children seen by this Court in cases presented to it would be at peril. In my experience it is reasonably common for a parent who does not have a residence close to where the children may predominantly live with the other parent, will house the children in a variety of temporary accommodations such as motels, short term leases and frequently with different friends or family members. I have never had it said that such a circumstance is injurious to the wellbeing of those children.
The fact remains that children have to live in the circumstances their parents are able to provide for them and unless that circumstance is clearly unsafe I can see no ability for the Court to say that overnight time for the children with a parent who is unable to provide a stable unchanging residential abode for them to stay in, cannot occur.
In reaching a conclusion about the time the children should spend with the father I will consider the following matters:
·Has the father engaged in controlling and coercive behaviour, largely throughout the cohabitation?
·If the father has perpetrated controlling and coercive behaviour as alleged by the mother is it such as to amount to an “unacceptable risk” to the children unless the children have only “recognition” contact with him?
·What is the mother’s ability to withstand the tension and repercussions of the children spending time with the father?
·The balance between the mother’s needs and the children’s needs;
·The impact upon the children of past and future parental conflict;
·The safety of the children in each parents’ care; and
·The children’s surnames.
Has the father engaged in controlling and coercive behaviour, largely throughout the cohabitation?
There are many issues which have been identified in this case and which I address throughout these reasons. The issue which I have identified as having the most impact on the outcome is whether the father has exercised controlling and coercive behaviour in the relationship with the mother and if so, whether that behaviour is at a sufficient level to cause the Court to make orders such that the children spend time with the father solely for the purposes of identification. That would require only a short period of supervised time (some hours) on about six to twelve occasions each year.
This aspect of the father’s interaction with the mother (and others) is said by the mother to give rise to an unacceptable risk of harm to the children unless the orders as sought by the mother are made.
The Family Consultant in his Family Report said that should the Court find the father has engaged in controlling and coercive behaviour, largely throughout the cohabitation, then he should be ordered to have “recognition time” only with the children.
I have set out earlier the examples each parent gave in their evidence to support findings in relation to whether controlling and coercive behaviour was exhibited during cohabitation or since.
In addition to that evidence previously canvassed the father was asked whether he told the assessor at KK Group that he required the mother to ask him for money when she wished to go shopping. He agreed that was a controlling behaviour. He gave an explanation for that circumstance which was that the mother was being extravagant with the parties’ available funds. Insufficient detail was given to determine if that requirement imposed by the father was justified.
The father was asked whether on 3 January 2014 at Suburb LL Hospital he told a person that the mother had a history of associating with drug addicted prostitution. The father conceded he had said something similar.
At the conclusion of the father’s time with the children, the Family Consultant observed:
As [the father] was packing up to leave, [C] hugged him and indicated that he did not want [the father] to leave. [The father] picked [C] up and told him that he had to leave but that he would see [C] soon. [The father’s] exit from the childcare room seemed to take longer than was necessary. He appeared to settle [C] and then reengage with him about him ([the father]) leaving, which seemed to upset [C] again. [The father’s] behaviour appeared to be somewhat anxiety provoking for [C]. The Family Consultant had to ask [the father] to leave on a number of occasions; however, [the father] opened his bag and took out a container of food that he had bought with him for the children. He sat the children at the table and asked them what they wanted to eat and gave them each a chocolate brownie. It seemed as though [the father] wanted to prolong his goodbye to the children for as long as he could and this was more about his needs than theirs.
Prima facie the evidence contained in the above extract from the Family Report demonstrates controlling behaviour on the part of the father. That is, he will not easily take no for an answer.
The Family Consultant opined that if the mother’s account of family violence is accepted, then “the father perpetrated a type of coercive controlling family violence against her in the relationship and this continues post separation.” He outlined that the mother’s allegations included violence, threats, name-calling, monitoring her whereabouts, hacking her electronic devices, and using X to obtain information.
The Family Consultant said that should the Court find the father has engaged in controlling and coercive behaviour towards the mother, then the only time the children should spend with the father should be supervised time for identity purposes only. That would be bi-monthly for a couple of hours (that would be six times a year).
When asked what he meant by “controlling and coercive family violence”, the Family Consultant said:
It’s when one person has a particular power imbalance and wants to exert control over another person. They use a variety of tactics to undertake that. Physical abuse is often involved in the mix but not always. The threat of physical violence is often in the air and it is fear, intimidation and control and it is also using others, for example, children, as weapons to exert influence and control over another.
The term “controlling and coercive family violence” is also partially defined within the Act as set out in these reasons.
The Family Consultant also said that his own experience of having interviewed the father also suggested the father was controlling and coercive. This referred to the father not concluding his time with the children when requested to do so on the day of the interviews, and also his failure to accept that the Family Consultant had rejected the father’s invitation to drink coffee that the father had brought to the interview.
The Family Consultant was asked if his statement that the father was lacking insight (about the nature of his controlling personality) arose solely from statements made by the mother. The Family Consultant said no. He said there was material in the subpoena documents, including a report from an off-duty police officer who claimed the father was verbally abusive and aggressive and threatening towards her. Additionally, the Family Consultant said there was material from KK Group suggesting the father experienced difficulty in following instructions and KK Group had declined to provide supervision for the father’s time with the children.
The Family Consultant said there was also material from the P School stating the father had threatened to subpoena them to attend Court. The Family Consultant had reported that the school records also suggested that the father’s tone, in an email sent to the school, was “somewhat aggressive and intimidating”.
There is an aspect of each party’s character, presentation and social interaction which needs to be considered in the determination of this issue.
The father is a man of serious and forceful presentation. He has a military bearing. He grew a formidable beard during the time of presenting himself before the Court. He has held very responsible positions in the work he has done. He presents as a person who intends that what he has to say should be taken seriously and that he is not given to making flippant comments. He presents as a man who is capable of taking command of enterprise or manpower, much as might be seen in an officer of high military standing.
The mother presents as shy, quiet and non-combative. A person who would prefer to avoid conflict rather than engage in it.
I am satisfied that in the interaction between the parents, any communication between them during their relationship or post separation would have been seen by the mother as controlling and coercive, even where on any objective view it would not be.
Similarly the father’s interaction with members of the public, court staff, and lawyers, is likely to be in a serious business-like fashion. That approach not tempered by any relaxation of presentation is likely to be worrying to many people who occupy those professions.
If the father has perpetrated controlling and coercive behaviour as alleged by the mother, is it such as to amount to an “unacceptable risk” to the children unless the children have only “recognition” contact with him?
In the context of this case, the words “unacceptable risk” have the meaning that the risk of harm to the children in being able to spend time with the father outweighs the possible benefits to them from that time.
I conclude that each of the parents in this matter have been able to make valid criticisms of the other’s parenting of the children and inappropriate dealing with the other parent. Each, I am satisfied, have dealt with the other in a seriously antisocial manner. Notwithstanding the very high level of parental conflict and antipathy to which the children have been exposed, I am satisfied each of the children have significant and loving relationships with the father and significant, loving and dependent relationships with the mother.
To a large degree, I am satisfied that each parent can legitimately lay at the feet of the other justification for the way that parent has reacted and acted towards the other. Such justification, if it was ever properly available, is not acceptable in the role each play in raising young children in our society. In one sense each is really claiming victimhood as against the other.
I find that the degree of controlling and coercive behaviour which has been found to have been applied by the father to the mother and the children in these reasons is not such that would move me to find an “unacceptable risk” to the children were they ordered to spend unsupervised time with the father, whether overnight time or day time only.
What is the mother’s ability to withstand the tension and repercussions of the children spending time with the father?
Part of the consideration in this determination must be the ability of the mother to stand up psychologically to the pressures of interaction with the father about the children. It must be reasonably anticipated that there will be challenges for her in the future given the personality of the father and the circumstances of the children.
The mother is currently receiving counselling from a domestic violence counsellor. That is occurring weekly subject to the mother’s availability. That counselling must be seen as a support for her which will be available.
In this case the children are currently spending time with the father including overnight time. The amount of time the children spend with the father may well impact upon the mother’s parenting capacity in that it may affect her psychologically and make her anxious. The mother has said she believes the children could not cope at this time with block periods of days and nights away from her as might occur during school holiday time.
The mother confirmed that the order she was seeking was for the father to have supervised time with the children on one day each month. When asked what her concern was about unsupervised time for the children with the father, the mother said that there is a lack of communication and there is never any agreement in relation to making changes. The mother said she had a concern that something might happen to either child (a physical injury) and the father would not advise her or seek the appropriate assistance.
The mother conceded that the children love their father. She conceded that the father loves the children “in his way”.
The mother said that she held a belief that the father could do something to harm the children deliberately. She believed he was capable of that. However, she did concede that since separation, apart from a minor injury, nothing had happened to the children in the father’s care which was of significant concern.
When asked whether it is the case that the children are comfortable in the father’s presence she replied “not 100 per cent”. The mother conceded that the Family Consultant reported that the children were comfortable in the father’s presence. The mother said the children presented as happy with the father, however, she believed they are afraid of punishment from the father. The mother said she knows what the father is capable of when he is angry. She said the children would tell her that they do not think the father loves them.
The mother described her co-parenting relationship with the father as “not good” and “impossible”. She complained that the father’s communications were aggressive, demanding and abusive, and that she remains frightened of him. The Family Consultant reported that the mother said having contact with the father “makes me very anxious”. She added, “I’m breaking. He’s in my head; I’m crumbling.” The Family Consultant further reported that the mother stated the only way to reduce conflict between them would be to reduce the time the children spend with the father.
The Family Consultant agreed that he had seen the single expert report prepared by Dr E where the mother’s mental health had been canvassed. He agreed it was there stated the mother had suffered from anorexia, bulimia, depression and possibly an anxiety disorder. He agreed that people diagnosed with bulimia can also have obsessional traits.
The Family Consultant in answer to a question about the presentation of the mother during his interview with her, said “her presentation was of a woman who was stressed. She was teary at times.”
I conclude that the mother does suffer from a degree of fragility and that matter needs to be considered in the framing of orders.
I also conclude that the mother has had to suffer stressful situations for her during the conduct of these proceedings and she has been able to do that and still parent the children effectively as their presentation to the Family Consultant attests. No adverse comment about the mother’s parenting of the children has been made by the Family Consultant in his report. He did concede in oral evidence that if particular facts put to him by the father about the mother were accepted by the Court then that could lead to a conclusion that those facts did not reflect well on the mother as a parent.
The balance between the mother’s needs and the children’s needs
The mother’s needs really dictate that she have nothing to do with the father. She clearly wants that part of her life over.
The children’s needs are to have a meaningful relationship with each parent.
Clearly the mother’s needs and the children’s needs are in conflict.
I find that the mother does accept the children have rights, including the right to know and have a relationship with their father. I am satisfied the mother has largely promoted the children's right to have a relationship with their father.
The balance must mean that the children should have a relationship with the father which enables them to develop and maintain a meaningful and significant relationship which they now have and should have into the future. The Court’s orders should be tailored to achieve that balance.
The Family Consultant said that if orders were made which severely restricted or blocked time with the father altogether, then “It will set X up to feel extremely sad about that and also, possibly, blaming of her mother for that circumstance.” In the same circumstance the Family Consultant opined that C was also be upset and distressed about not seeing his father, however, given his age the Family Consultant considered “he may adapt to such a situation better than [X].” He added, “There are risks for sure, for the children, on a longer-term basis if contact is stopped with one parent.”
The father asked the Family Consultant what the impact on the children would be if they were required to spend time with the father at a contact centre strictly supervised over a long period of time. The Family Consultant said that long term supervision is often not a good solution for children. It is onerous on both parents and children. He agreed it is possible the relationship between the father and the children would deteriorate.
The impact upon the children of past and future parental conflict
In his evaluation, the Family Consultant opined that X, in particular, had been exposed to the conflict between the parents. He pointed to reports from the mother of the father speaking to the children in a derogatory manner, evidence of the JIRT investigation, and X’s own account of conflict, and opined that this exposure has and will continue to cause stress to the child, and may lead to future mental health problems. He further opined that although C did not exhibit signs of stress at present, his parenting “needs to be attuned, structured and responsive and he requires support to develop greater resilience”. He further opined “[Mr Farnham’s] recent allegation that [Ms DeLuca’s] friend might have sexually abused [C] does not bode well for [C], and if he too becomes a central figure in the ongoing parental conflict, then [C] would also be at a greater risk of developing emotional turmoil and possible mental health problems.”
The Family Consultant expressed some concern about the JIRT process commenced by the mother, setting out that the mother’s motivation for doing so was important, stating “if [the mother’s] report was made in the context of the current Family Law proceedings to promote her case and her assertion that [the father] does pose a risk to the children’s safety, then it would demonstrate that [Ms DeLuca] has limited insight into the possible harmful affects [sic] for [X] of having to be interviewed by JIRT.” He conceded, however, that her allegation had “occurred in the context of a complete breakdown of parental communication and an extreme lack of trust between the parents.”
Clearly the Court’s orders should wherever possible be designed to avoid interaction between the parents which might provide an opportunity for the children to be exposed to parental conflict.
The safety of the children in each parents’ care
The Family Consultant stated that the central issue appeared to be whether the children were safe in the father’s unsupervised care, and whether the father has the parenting capacity to care for the children and promote a relationship with the mother.
The Family Consultant also set out a number of risks which the children could be exposed to in the event that the mother’s allegations of family violence were to be accepted. Those risks can be summarised as follows:
·Exposure to the father’s temper. It was reported, “If [the father] cannot regulate his temper, as is alleged and somewhat supported by the subpoenaed material, the children, whilst in his care, may be at risk of being exposed to, or the subjects of, his verbal and physical aggression.” The Family Consultant opined this might increase as the children become older and more independent.
·The risk that the children will learn inappropriate ways to deal with conflict, such as responding with aggression when challenged. The Family Consultant noted that the father said “that he had encouraged [X] to hit [C] back if he hits her because ‘he needs to learn consequences’”.
·The risk that the father may use the children as a means of control against the mother, through undermining the children’s relationship with the mother. The Family Consultant stated “this assessment suggests that there are some indicators/evidence to suggest that this dynamic might already be present”, citing such evidence as the father’s withholding or returning the children late, making negative comments about the mother to X, the mother’s allegations of physical and online stalking against the father, and the father’s intrusive behaviour at C’s birth.
·The risk that the children may be exposed to behaviour from the father that is not in their best interests, such as being asked to monitor the mother, or keeping secrets from her, which would create loyalty conflict in the children.
Whilst I acknowledge the cautions of the Family Consultant, I find that it is reasonable to conclude that the likelihood of the occurrence will be lessened by the Court making final and definitive parenting orders.
The children’s surnames
The father was concerned that the children’s surnames might be changed by the mother. The mother had an application to change the children’s names.
In submissions the mother said she would not oppose the children having the surname DeLuca-Farnham.
The orders to be made
Having considered all the matters set out above I have reached the conclusion that the mother should have sole parental responsibility for the children, the children should live with her and should spend time with the father on a graduating time basis.
I conclude that it is not necessary to have the father’s time supervised.
The graduating time for the children to spend with their father must take into consideration the current time the children spend with their father, the children's ages and the availability of the father to supervise/care for the children when he has the children in his care.
The current arrangement is for the children to spend time with the father from 3.15 p.m. Friday to 6.00 p.m. Saturday each week. The father says he is available to care for the children on an alternate week regime and so there is scope to enlarge the time the children spend with the father. X is now nine years of age and C is four and a half years of age.
In order to have the mother adjust to the new orders, I propose the current arrangement continue until the commencement of school Term 2 in 2019 and then be increased to alternate weekends from after school Friday until 6.00 p.m. Sunday. Also from that time I propose the father spend time with the children from after school Thursday until before school Friday morning in the week they will not be spending time with the father. I also propose that regime and the earlier time following the making of these orders will operate during school holiday periods and that there be no specific provision for school holiday time until the 2020 school year.
From commencement of Term 1 of the 2020 school year I propose the children's time with the father should increase to include alternate weekends from Friday after school to Monday morning during school terms. During the shorter school holiday periods I propose the father spend seven consecutive days with the children, and in the Christmas school holiday period two periods of seven consecutive days. I also propose that from the commencement of the 2020 school year, if the mother is unable to care for the children overnight, she is to offer the father the first opportunity to do so before she arranges other care for the children.
From the commencement of Term 1 in 2021 (when C will be seven) I propose some additional time during the school term together with half the school holidays for the children with the father.
I propose the children have time with their father on special occasions which I will name in the orders. The father sought a raft of orders for special days including Anzac Day, NAIDOC week and other special days. I have concluded that the orders should be as concise as possible to avoid further dispute and in the scheme of things there will be a sharing of those days by the operation of the way the father’s time falls within the calendar. I propose to reserve some specific special days for the mother to spend with the children.
A significant issue in the hearing was the whereabouts of the father’s residence. I find this was a matter which caused them both anxiety. I propose to make orders requiring each to ensure the other parent knows where the usual residential address of the parent is. For the father, I also propose to require he advise the mother if the children are to spend overnight time at a place other than his usual residence.
I will make orders about how changeover is achieved for the children and also provide that the mother can use a representative to effect the changeover on her behalf, thus shielding herself and the children from possible parental conflict and anxiety on the part of the mother.
I will make orders about telephone time for the children, how the parties are to communicate and how the parties are to inform the other about matters of medical treatment for the children, school events and other specified events.
I propose to impose restraints on each parent so that the children will not be subjected to parental conflict of any nature.
In the event of the children not being available for time with the father because of illness, I propose the father have makeup time and also he be provided with a medical certificate.
The children will need assistance in the future to help them transition between the parent’s home and to deal with ongoing animosity between the parents should that occur. I propose to require the mother to arrange same if that is possible.
There has been an issue about the children’s names. Each child has a different surname. It is in their interests to have the same surname. The father proposes the children have a single surname Farnham. The mother wishes them to be known by the surname DeLuca. The Independent Children's Lawyer put to the mother during the hearing that a hyphenated surname would be preferable and she agreed to that.
The children’s name should reflect their heritage and origins and give them connection to family. In this case given the level of parental conflict a compromise gives the children their best chance of avoiding further conflict.
There was an issue about whether the children could be removed from Australia. I have considered that issue with great attention to the fact that each parent has significant connection with overseas countries. The mother is European by birth. The father has family connection with the United Kingdom and the parties lived in City Q for part of their cohabitation.
Prima facie, children do gain a benefit from overseas travel and certainly do receive benefits from having contact with family. In this case, however, I have assessed the risk of flight for both parents as too great at this time with the added difficulty that neither has any ability to offer security for their promise to return the children to Australia. Should they reach agreement about overseas travel for the children then that is a matter for them.
When the children are older and have a clearly established relationship with the father, circumstances may be different.
The mother was concerned about the father housing the children overnight in a residence occupied by Ms N as her home. The father said in his evidence he would not do so. The concern of the mother is that Ms N’s former partner may seek to harm the subject children. He is known to have been violent and has made serious threats to harm Ms N’s friends, family and associates. He had also caused damage to a car of Ms N’s as witnessed by the father.
I did not consider there to be any appreciable risk arising for the children if Ms N was to stay overnight with the father in his residence whether her children were present or not. I would not restrain such activity on the evidence before the Court now. I was very impressed with Ms N and was disappointed for the children that the relationship between Ms N and the father has not continued.
I certify that the preceding six hundred and twenty-four (624) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 22 June 2018
Associate:
Date: 22 June 2018
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Costs
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Jurisdiction
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Remedies
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