FITZGERALD & DENVER

FAMILY COURT OF AUSTRALIA

FITZGERALD & DENVER

[2020] FamCA 458

FAMILY LAW – CHILDREN – Interim Parenting – Review of Senior Registrar’s decision - Where the children have been exposed to disrespectful communication between the parents – Where the mother alleges the father has a history of violence – Where the children want equal time with the parents – Where the parties have a poor co-parenting relationship – Orders for the children to live with the mother – Orders for significant and substantial time with the father – No orders as to parental responsibility.

Family Law Act 1975 (Cth) s 65DAA

APPLICANT:

Mr Ftizgerald

RESPONDENT:

Ms Denver

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

5569

2019

DATE DELIVERED:

5 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

28 May 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Christie SC

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Tin

Orders

IT IS ORDERED PENDING FURTHER ORDER

That the children X born … 2007; Y born … 2008 and Z born … 2011 live with the mother.
That the children spend time with the father during school terms as follows:
(i)From the conclusion of school on Friday until the commencement of school on Monday each alternate weekend commencing on Friday 12 June 2020;
(ii)From the conclusion of school on Tuesday until the commencement of school on Wednesday in each intervening week commencing on Tuesday 9 June 2020;
(iii)Otherwise as agreed between the parties in writing.
That notwithstanding any other order, the children’s time with the father is suspended on the weekend of Mothers’ Day and the children will spend the weekend of Fathers’ Day with the father in accordance with Order 2 (i).
That in the school holidays at the end of the first, second and third school terms, the children spend time with the father, in the absence of agreement, for the first half of the holiday commencing at the end of the last school day of the term and ending at 4pm on the day which is the mid-point of the holiday, changeover to occur at the B Shopping Centre at Suburb C.
That the father be and is hereby restrained from consuming alcohol 12 hours prior to and during any time he spends with the children.
That the father undertake on a random basis, within 24 hours of receiving a nomination from the mother, at intervals of no less than two weeks duration, CDT testing in accordance with the Australian Standard at an accredited testing laboratory and under the guidance of his treating medical practitioner or his treating specialist for the detection of all alcohol in the father's system and the results of such testing shall be provided to the mother as soon as they are available and the costs of such testing shall be met by the father.
That other than in the event of a medical emergency, the parties communicate only via the 'My Family Wizard' application or similar application as nominated in writing by the mother.
That each parent be restrained from taking any step to alter the present schooling arrangements for the children.
That each party is restrained from enrolling the children into any sport or extracurricular activity that will occur during the other party’s time without first obtaining the other party’s written consent.
That each party is restrained from withdrawing the children from any sport or extra-curricular activity without first obtaining the other party’s written consent.
That each parent is restrained from attending any extra-curricular activity of a child or children during any period that the children are in the care of the other parent unless invited to attend in writing.
That the mother and father each be permitted to provide a copy of this Order to any person necessary to ensure compliance with this Order.
That the mother be granted leave to provide a copy of the Report of Dr D dated 23 March 2020 to:
(a) Any therapist engaged by the mother; and
(b)A practitioner engaged by the mother for forensic purposes, including but not limited to a shadow expert.
That the father keep the mother informed within seven days of any Court appearance he is required to attend in relation to any criminal proceedings pending against him as at the date of these Orders or any future criminal proceedings commenced against him arising from his conduct.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these Orders.

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 Fitzgerald & Denver 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 SYDNEY

FILE NUMBER: SYC 5569 of 2019

Mr Fitzgerald

Applicant

And

Ms Denver

Respondent

REASONS FOR JUDGMENT

Mr Fitzgerald (“the father”) and Ms Denver (“the mother”) are the parents of three children, X aged 13, Y aged 11 and Z aged 8 years.
On 10 December 2019, on the application of the mother, orders were made by the Senior Registrar which restricted the time spent by the father to time professionally supervised on alternate weekends and special occasions.
The father now seeks to review the decision of the Senior Registrar and the matter thus proceeds before me as a hearing de novo.
Since the orders were made on 10 December 2019, there have been a number of occasions of supervised time and the supervisors have prepared reports of each occasion which are in evidence. In addition, the single expert psychiatrist, Dr D has prepared a report which was released to the parties on 25 March 2020 and an Independent Children’s Lawyer (“ICL”) has been appointed to represent the children.
Before me, the mother does not seek to maintain the orders of the Senior Registrar but now seeks orders which would have the effect that the children spend time with the father from after school on Friday until school starts on Monday on each alternate weekend and each alternate Tuesday over night until Wednesday morning. The mother also proposes that the children spend one week of the short school holidays and two weeks of the Christmas holidays with the father. She proposes that the time to be spent be subject to the father’s present wife, Ms Fitzgerald giving an undertaking that she will be present at all times when the children are in the care of the father and that she will notify the mother if the father consumes alcohol within 24 hours of the children coming into his care or while they are in his care. She also seeks from Ms Fitzgerald an undertaking that she will not discuss the proceedings or the issues with the children.
The mother’s proposal would see the children in the care of the father for four nights in each fortnight, and block periods of up to two weeks, which is a significant departure from her position before the Senior Registrar.
It was the mother’s case, before the Senior Registrar, that the father’s consumption of alcohol and his violence placed the children at risk which justified professional supervision of their time with him.
The regime put in place by the Senior Registrar significantly changed the arrangements to which the children had been accustomed. They had been spending six nights each fortnight with the father since about December 2016. That arrangement changed to a week about arrangement in April 2017.
It was the father’s case, before the Senior Registrar and before me, that the week about arrangement should be resumed.
Thus when the matter came before the Senior Registrar, the children had lived for almost half, or almost half of their time with the father for some three years.
It is instructive to examine the chronology of the events which are alleged by the mother to constitute the risk to the children which justified, firstly the imposition of professional supervision and now the significant reduction of the time the children spend with their father.
Because these proceedings are interim in nature and there is no opportunity to test the evidence, it is not possible to make any findings of fact and the allegations which are set out below remain contested.
On behalf of the mother it was submitted that the first significant incident of violence perpetrated by the father was in August 2000. It is alleged that the father, in a bar, punched a man and knocked him to the ground then punched him again a number of times. On that occasion the father was arrested and charged. He was convicted of assault and fined.
In November 2000, he is alleged to have punched a stranger in a hotel bar five or six times. The alleged victim was observed by the police to be bleeding from the mouth and missing a tooth. The father had left the bar by the time the police arrived.
The mother alleged that the father, when consuming alcohol in excessive amounts, becomes violent and aggressive.
The maternal grandfather deposed that in 2002 or 2003 he was present when the father argued with, and tried to punch, a stranger on an escalator after a football game. At about the same period the maternal grandfather deposed that the father, in the course of an argument with the mother, broke a window.
The mother alleged that after the father lost his drivers’ licence for three years in 2009 or 2010 he punched his fist through the windscreen of the car. On another occasion at about this time he punched and damaged the sun roof of the car.
In 2010 the mother alleges that the father punched a hole in a wall, breaking his hand.
In 2012 the father was charged with alcohol related driving offences.
The parties separated in December 2012.
In 2013 the mother alleges that the father threw a ceramic mug at the builder and punched a hole in the wall.
In February 2013, there was an incident at the mother’s home where the mother alleges that the father grabbed her face, pushed her head against a tiled wall and slapped her head.
The father was charged with three counts of common assault on the mother and an Interim Apprehended Domestic Violence Order (“ADVO”) was taken out against him for her protection. The circumstances of that incident are disputed. The charges were withdrawn, according to the father because of the mother’s representations. The mother alleges she withdrew the charges due to her concerns of the impact of such an Order on the children.
The mother alleges that in January 2016, Ms Fitzgerald came to her home and, using a key, scratched the side panels of the mother’s new car. Ms Fitzgerald denies that she caused the damage but the father paid for the damage to be repaired.
The mother alleges that the father came to her home on 1 March 2016, was verbally abusive and threatening and came in uninvited. The mother discovered that the father had poured a container of milk over her bed and bedding.
The mother alleges that in early April 2016, the father let himself into her home and removed clothes from her wardrobe and, when challenged by the mother’s new partner, Mr G, the father punched him in the face. It is not entirely clear whether this incident, and the incident referred to below on Mother’s Day 2016, are the same incident or two incidents.
There was a further incident on Mother’s Day in 2016. There was a verbal altercation between the father and the mother’s then partner, Mr G. Mr G alleges, and the father denies, that the father punched Mr G.
In July and August 2016, the father looked after the children for about three weeks while the mother travelled overseas.
In October 2016 the paternal grandmother, having been diagnosed with a serious illness, proposed that she take the children on a trip to Country E. The father asserts that the mother initially agreed.
On 14 November 2016 at Nippers the father said to the mother “you’re a fucking moron. You’re a psycho bitch” in the presence of the children.
On 19 November 2016 there was an altercation between the parents at the children’s Little Athletics meeting where the husband, in the presence of X and Y and another parent and her child, called the wife a “fucking mole” [sic].
On 20 November 2016 there was a verbal altercation between the father and Mr G which was witnessed by the two younger children.
On 23 November 2016, Ms Fitzgerald wrote an offensive email to the mother, and copied in the father and the father’s step-father.
On 6 December 2016 a parenting plan was prepared which provided for the father to spend six nights each fortnight with the children.
The mother tendered a series of offensive text messages from the father in 2016 and 2017 telling her to “fuck off”; saying “Bulshit [sic] every time you do this I remember and will pay you back times five smart arse”; “that is motherfucking it for you”; “No retreat and no mercy from me ever you disgusting greedy lazy entitled bitch”; “You are without a doubt completely and utterly mad”; “Nothing will save you now… Today ruined [sic] your own life”; “You stupid stupid mad moronic entitled bitch”; “Fuck off and die”; “Rot in hell you have so much comming [sic] back your way for your behaviour all fucking year you just wait cow”; “Ok you make your Bed you lie in it bitch”; “…you fuckstick…”.
Mr G alleges that in early 2017 the father pushed a cardboard cup of coffee in his face, spilling hot coffee over him.
On 23 February 2017, Ms Fitzgerald sent an email to the mother criticising her parenting stating, inter alia, “Keep your messed up life to yourself and start being someone those girls look up to instead of victimising yourself”. The email ended “if you can rest easy and be ok with that then you are really more messed up than you appear!”.
On 24 March 2017 the father came to the mother’s home and refused to leave. The mother called the police.
On 27 March 2017, Ms Fitzgerald sent an email to the mother saying:
Great work sending your daughter to school without any food today as well….. Mother of the year! Good way to make a point….starve your daughter.
You seriously need your head checked!
In April 2017, the father was charged with a low range drink driving offence. He was tested at 8am after drinking the night before. The children were in his care although not in the car with him.
In April 2017, the parties commenced a week about arrangement for the care of the children.
On 21 April 2017, the father in a letter to the mother, wrote:
I’m going to dedicate my life to showing you what you have done to your own life and the childrens whealth [sic] you stupid stupid entitled greedy woman.
In May 2017, the mother sent a Whats-app message to the father saying that if he did not agree to a six day with father, eight day with mother regime of care, then the children could not go on the proposed trip to Country E. (The mother later agreed to the children’s going after the father filed an Application in a Case.)
The maternal grandfather alleges that in about June 2017 while the mother and her parents were dining in a hotel in Suburb C, the father approached them and began arguing with the mother, raising his voice and becoming verbally abusive, then throwing a glass of beer over the wife and the maternal grandmother.
On 3 April 2018 the father texted the mother, “For fuck sake you are paranoid you’ll pay dearly for this just fucking tell me I can’t do anything…”; “Now I have to go put [out] you pain in the arse”; “ok you make your Bed you lie in it bitch”.
In April 2018 the father cared for the children for an extra week of the holidays so that the mother could holiday in Country J.
The father re-married in … 2018.
On 7 May 2018 the father texted the mother, “Jump in the lake you crazy cow”.
On 21 June 2018 the father texted the mother, “Fuck me don’t fucking argue for once in your fucking god for saken [sic] life just do as I fucking seek”.
On 6 July 2018 the father texted the mother, “Fuck off you mole! [sic] Nice to see you’re shacked up with the retard [referring to Mr G] and he’s again in-sighting passive aggression from you to cause trouble. Your [sic] both laughable losers! Go and give the looser [sic] a BJ you absolute disgrace!”. The mother deposed that this message was sent by the father from X’s phone.
On 12 July 2018 the father sent emails to the mother saying, inter alia, “You are evil… I will never let up on my revenge…”. The mother replied, and told the father that he could call the girls at any time, but he was blocked from her phone due to his threatening and abusive messages. The father replied “Yes my threat is a fact you are done you stupid ugly wrinkly bitch go and get fucked…You absolute losser [sic]…Every time you cry into your porridge, remember you reap what you sow! FOREVER YOU BITCH!!!!!”.
In late August and early September 2018, the father cared for the children for almost a month while the mother’s unit was renovated.
On 7 October 2018 the father was charged with assault in relation to an incident where it is alleged that he threw a glass of beer at a bartender in Town H. The father was convicted of assault and fined $600 on … March 2020 and has appealed against the conviction.
On 27 November 2018, Ms Fitzgerald sent a lengthy email to the mother, copied to the father and his step-father which commenced “Wow you are seriously full of so much shit”. The father responded “Well said baby. I absolutely agree. ENOUGH …”. The father’s step-father responded “Superb letter…right from the bottom of the heart. It should be framed. Bravo…Big hug…”
Early in 2019, the mother and Mr G separated.
On 11 March 2019 the father messaged the mother saying “…your [sic] a selfish cow…you disgraceful fucking selfish child abusing bitch you will pay”, and later “Just remember. I won’t forget this and it comes back times 5”, then “…you’ll see how it feels in due course”.
On 12 May 2019, Mothers’ Day, there was another altercation between the father and Mr G. Mr G alleged, and the father denied, that the father punched Mr G in the presence of the younger children at a soccer match. The mother was also present. The mother alleged that the father referred to Mr G as “Ruprecht” which I assume to be a reference to the character in the movie “Dirty Rotten Scoundrels” who feigns an intellectual disability.
The mother alleged that later on the same day, when she was attending to collect the children, the father threw two eggs at her car, hitting the driver’s side door. The mother drove away and the children did not spend Mother’s Day with her.
On the same day the father texted the mother saying “what the fuck…your [sic] a crazy person leave me alone…fuck you…its on your watch you disgraceful cow.” The mother deposed that this message was sent in response to her advising the father that she had taken X to a doctor.
The father denies that he punched Mr G but admits to pushing and shoving. Even that behaviour is inappropriate and made more so because it happened at the children’s soccer game in in their presence.
On 16 May 2019, an ADVO was made, without admissions, against the father, for the protection of the mother and Mr G. That order was made final on 11 June 2019 and expires on 10 June 2021.
On 20 June 2019 the mother sent an email to the father saying that he needed to foster his relationship with the children by having one on one time with each child. She stated, “Take them to breakfast or dinner on their own one night a week when you have them or something similar”.

On 22 June 2019, Ms Fitzgerald sent an email to the mother stating, inter alia, “I will no longer support your role as a mother in our house…” The father’s step-father responded “Thank you… for informing me…Very dignified email”.
On 9 July 2019, the solicitors for the mother wrote to the solicitors for the father offering a parenting arrangement where the children spent five nights each fortnight with him. On 30 July 2019, the wife, through her solicitors, proposed that the children spend four nights each fortnight with the father.
On 22 July 2019, the father texted to the mother, “The girls are happy and fine. We just discussed this email of yours and had a good laugh. It’s laughable”.
On 13 August 2019 the mother sent an email to the father stating:
I’d like you to spend more one on one time with each girl and with the three of them…I want you to do an anger management or a similar men’s course, I want you to be more engaged with homework/school…I’d like you to watch [Z’s] netball games ([Z] says you’ve only been once all season...
On 17 August 2019 there was an altercation at the netball club where the father shouted at the mother “You loser” in the presence of Z and some of her friends. Later that day X rang the mother to ask for rugby uniforms and the father took the phone from her and said “You’re a fucking disgrace”.
The mother deposed that on 20 August 2019 Z said to her:
Daddy got really, really angry last night. The girls were crying and he was shouting and calling you terrible names like a bitch and he said you were ruining his life. He then said someone should stand up for him and punch you in the face.
On 26 August 2019 the mother filed an Initiating Application seeking, inter alia orders that the children spend each alternate weekend with the father from Friday afternoon until Monday, one week in the short holidays and two weeks at Christmas.
On 17 September 2019, the father had his first consultation with his treating psychologist, Ms K.
On … 2019, the father and Ms Fitzgerald had a son L.
The children did not spend any time with the mother in the school holidays in October 2019. There was a volume of texts in September about the proposed arrangements for the holidays but it was agreed that they would spend the second week with the mother and that she and the children would visit family in Adelaide. Text messages from the children suggest they were looking forward to the trip. In summary, it appears that the mother declined to collect the children from the father and the father declined to drive them to the mother’s house. The mother went to Adelaide without them.
On 29 October 2019, the mother filed an amended application, seeking that the children’s time with the father be supervised and not overnight. The mother also sought an order for the father to have Carbohydrate Deficient Tranferrin (“CDT”) testing.
The orders for supervised time were made on 10 December 2019. The mother calculates that between that date and 22 May 2020 when she swore her affidavit, the father could have spent 46 full days with the children. She deposed that he has spent 11 full days with them and some shorter periods. It is the father’s case that he has been unable to afford the cost of supervision.
The mother refused to allow the children to attend Christmas lunch at the home of the paternal family, which was attended by a large cohort of the father’s family, unless a professional supervisor was present.
The reports of the contact supervisors, which are in evidence, note that on 25 December 2019 Y said to the supervisor, when the father was not present, in the car on the way home, “Mum said he did something horrible. That’s how it all started…”
On 8 January 2020, Y told the supervisor that the mother told her “dad has a new baby and he can’t look after us”.
At about this time X told the father “Mum has introduced a new rule that every time we ask if we can see you or when things are going back to normal she will deduct money from our pocket money”.
On 1 February 2020, the father approached the mother at an event and said in the presence of the younger children “You are ruining my life. You are sending me bankrupt. How can we sort things out when we can’t even talk?”
The mother refused to allow the father to attend the Father/Daughter session at X’s school on 14 February 2020, although that was clearly a public occasion when school staff and other fathers would have been present.
On 28 March 2020, Y told the father that her mother had cried in the car and said the father was a liar.
On 20 April 2020, Y sent a recording to the father by email of the mother yelling at the children saying “He has an assault charge and he’s not honest about his finances and you think the Court is going to let you guys live with him half the time…”
On 22 April 2020, the father’s brother sent an email to the mother, copied to a third brother, stating, inter alia:
None of us will ever forgive you for using those beautiful girls for your personal financial gain. While knowing full well that [the father] is a great father who has provided well for you all for 15 years. You claimed he was a risk to them. A risk? What a joke. What an entitled greedy selfish disgrace you have become. The hurt and damage you have inflicted is horrendous.
On 4 May 2020, Y sent the father a text stating “…I’m upset, mum keeps going on long phone calls with [Mr G] saying mean things, she goes outside the front door but we can hear her saying you’re a liar…”
On 19 May 2020, after a problem with homework, X stormed off from the mother’s house and went to her father’s house. The mother deposed that she telephoned the father and that he said to her “This is all your fault. Look what you are doing to your children, you have done this”. X was dropped home by the father about an hour later.
On 21 May 2020, Y and Z left school in the afternoon and went to the father’s home. The mother telephoned and spoke to Y who said “We are at dad’s. We just want to see our dad”. The mother deposed that she spoke to the father who refused to return the children. She asked him to bring the children to the school where she was waiting for them. The mother deposed that in the course of the conversation the father said “Are you performing now in front of the Principal? She knows you are a psycho anyway you stupid mole” [sic]. The mother deposed that she saw the father drive past the school with the children and telephoned him. He told her that he had dropped them at her home. The mother said “You need to drop them to me at school where I am waiting as I am not at home” and the father replied “Oh well you can sit there all night you stupid bitch”.
The father, in his reply to the mother’s affidavit, denies that he spoke to the mother as she alleged. That will be a matter for determination in the substantive hearing.

DR D’S REPORT

Dr D conducted interviews on 16 and 17 March 2020 and prepared a report dated 23 March 2020. That report is, as yet, untested, and some care must be taken in its use in interim proceedings.
However, Dr D interviewed the children and the parents and, in so far as he recorded what they said and his observations of their interactions, I propose to take that evidence into account. I accept the submission on behalf of counsel for the mother that Dr D’s conclusions and recommendations are challenged and cannot be adopted for the purpose of these proceedings.

CONSIDERATION

It is not in dispute that these children will benefit from having a meaningful relationship with each of their parents. Neither could it be disputed that they need to be protected from the likely harmful consequences of the father’s level of hostility towards third parties, the hostility between their parents, the high level of conflict and denigration that is displayed by the paternal family towards the mother and the mother’s highly negative attitude towards the father that is reported by the children.

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

The children’s views are reasonably clear. The mother concedes that they want to spend more time with their father than is currently provided in the orders of 10 December 2019.
Dr D records the children’s views.
X told Dr D “I loved it when it was 50/50. We could see L, [Ms Fitzgerald] and Dad. I generally liked it.”
X told Dr D that she, Y and Z were a bit scared that it would not be possible to go back to spending 50/50 at her Dad’s house. She added, “We all want that and if it doesn’t happen we’ll be pretty upset.”
When asked if a miracle happened what would be different, she responded, “We would just live in our old house with Mum. It would be 50/50. Equal time. And all my sisters would go to [X’s private school].”
Y told Dr D she would sometimes feel upset and cry, “quite a bit more now because I miss my Dad. And I really don’t understand what is happening. But that’s not my place. But I do miss Dad, [Ms Fitzgerald] and L. And we all really wanted to go back to half/half”.
Z said “I feel worried that I won’t get to see my parents equally and I really like my Dad. So I don’t want to see him for less time than I see my Mum”. If she were to have three wishes, they would be “probably to have equal time with Dad and Mum, and also for Mum and Dad to be kind of friends and Mum to get a dog”.
All of the children commented on their preference for the father’s home which is substantially larger than the mother’s and gives them more room and more amenities. However, that situation may change when the father moves to rented accommodation.
The children’s view were expressed in circumstances where, when they saw Dr D, they had seen their father three times in the past six weeks.
X is 13 and significant weight must be given to her views, particularly in circumstances where, as she has recently done, she is able to leave the mother’s home and walk to the father’s. Y and Z have also gone of their own volition after school to the father’s home.

The nature of the relationship of the child with:

each of the child's parents; and
other persons (including any grandparent or other relative of the child);

Neither parent suggests that the children do not have a close and loving relationship with both of them and Dr D observed this to be so.
X told Dr D that [Ms Fitzgerald] was “lovely…nice and caring”.
When asked by Dr D about [Ms Fitzgerald], Y said, “She’s very lovely. She’s very nice and caring. She looks after us with Dad as well. We play together. We play altogether with her and Dad… But I love her a lot”. There was nothing she found difficult about this relationship.
Z said that Ms Fitzgerald was “really nice…really fun”.
The children speak with great affection of their baby half-brother.

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

to participate in making decisions about major long-term issues in relation to the child; and
to spend time with the child; and
to communicate with the child;

The mother criticises the father’s failure to spend time with the children in accordance with the orders for supervision when he could have had them for two full days each alternate weekend but didn’t.
The mother asserts that she did not agree with the enrolment of X at her current private school.
Each of the parties has taken every opportunity to be involved with the children and making decisions about them. However, the way they have gone about their decision making has not always been beneficial.

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

The issue of the level of support provided by the father for the children looms large in the conflict between the parents and is the subject of ongoing proceedings in another place.
The father wants all three children to attend a private school where X has attended since Year 7. X’s fees for the first term of 2020 are unpaid. The father assures the mother that he will meet the fees in circumstances where the mother earns about $70,000 per annum and has made it clear that she cannot, and will not, pay private school fees. The mother deposed that it is her view that all three children should attend the local state high school.
There are currently proceedings on foot in relation to Child Support where the mother challenges the father’s assertions about his financial position.
The father was ordered to file a Financial Statement in these proceedings but has declined to do so. His solicitors assert that because the issue of the payment of Dr D’s fees has been resolved, there is no need for the father to file a Financial Statement. I do not accept that assertion. A direction was made on 12 February 2020 that he file a Financial Statement and that direction has not been vacated. It is not for the father, or his legal representatives, to determine whether to comply with the direction.
In a letter to the wife dated 12 February 2020, the husband described his financial situation as “devastating,” “a race to the bottom”. The husband has not worked in 2020 and has no income. Ms Fitzgerald’s income is between $4,000 and $5,000 per month. He is proposing to move out of his home and rent. The father has negotiated an interest only rate for the home mortgage which he anticipates will require payments of $8,300 per month.
The husband provided the following information:
Offset funds  $3,472
Savings  $14,814
Debts
Credit cards   $59,750
Home loan  $2,632,872
Tax (husband)  $90,018
Tax (Ms Fitzgerald)  $19,000
Rates and water  $3,300
Accountant  $12,000
Legal fees outstanding  $38,000
[School fees] term 1 unpaid  $7,953
The costs disclosure letter dated 29 May 2020 states that the father has paid $96,000 and now owes a further amount exceeding $100,000.
I note that the mother has paid legal fees of $111,910.
There is a high level of conflict surrounding the issue of financial support for the children, in circumstances where the father says he cannot afford to have supervised time with the children but, despite his parlous financial circumstances, presses for the younger children to attend a private school.
Similarly, the father seeks orders for the children to have an extensive involvement in sport for which he says, he will pay.
The father’s application is for X to participate in two activities; Y in four activities and Z in four activities. There is no evidence of the costs involved. The mother says that she cannot afford to pay. The father gives an undertaking to the Court that he will not claim the costs of those activities as non-agency payments of Child Support. How he is to pay the costs is not explained.
The mother’s attitude towards the children’s involvement in sport also deserves criticism. On 17 February 2020 in an exchange of messages, the mother told the father that sport could not be considered until agreement had been reached on all issues. Later that day the mother messaged:
…its not just sports we have to reach agreement on…its also child support, dental, medical, schools, religion, extra curricular. We need to reach agreement on everything…

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

The parents currently live in close proximity. It is not known where the father will live once his present home has been tenanted and he moves to rented accommodation.
Whilst the father deposed that he is presently not working and is caring full time for his infant son, he is also looking for work.
In the past, the father’s work has taken him from the Sydney metropolitan area. In June 2019 the father was unable to attend Court on the hearing of the ADVO application because he was in Town N working.
How an equal time arrangement will be accommodated if the father finds work that requires him to be away from home has not been explored.
Presumably, Ms Fitzgerald would be heavily involved in the care of the children in those circumstances, which is a matter for concern, given her statement that she would not support the mother’s role.
The capacity of:

each of the child's parents; and
any other person (including any grandparent or other relative of the child); to provide for the needs of the child, including emotional and intellectual needs;

Both of these parents should be criticised for their failure to shield the children from their hostility.
On the mother’s evidence, the father’s hostility towards Mr G and towards her was displayed on a number of occasions in front of some or all of the children.
Whilst it would seem that Ms Fitzgerald shares the father’s attitude towards the mother, that fact does not appear to have been communicated to the children who would, no doubt, find it distressing.
The mother gave evidence of a conversation with Z about the father’s attitude towards her as recently as August 2019.
All of the children told Dr D that they wanted their parents to have a respectful and positive engagement with each other.
The evidence of the mother in relation to the events on 21 May 2020, if accepted, would suggest that the father has not learned to control his behaviour towards the mother, or has no wish to do so.
The mother has involved the children in her dispute with the father.
Y told Dr D:
But mum doesn’t really like [Ms Fitzgerald], my Dad, L and M [the dog]. The other day she was calling [Ms Fitzgerald] a slug and M a rat, which is pretty mean and I don’t like that. It’s pretty mean and I don’t agree with that. She used bad words about Dad sometimes.
…
And I was supposed to be doing my soccer and my sports this year but I don’t know why, but Mum, my Mum said that there has to be a financial agreement and she says she can’t do anything about it.
The father and the contact supervisors have given other examples of the mother denigrating the father to or in the presence of the children.

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

The father’s application is for a week about arrangement which, if it is to be beneficial to the children, requires a degree of co-operation and mutual goodwill that has not been demonstrated in the past interaction between the parents.
Each of the parents complains of the lack of co-operation from the other and their correspondence is replete with complaint about each other. The correspondence, including that from Ms Fitzgerald to the mother, is replete with complaints about clothing, text books and sporting equipment.
The children have expressed their regrets that the communication between their parents is not respectful.
Dr D reported:
It was also understood that they would like their parents to communicate better. [Y] added, “We don’t understand if we forget something when we are packing our bags, it is a massive struggle, because Mum won’t go to Dad’s. She expects Dad to drop our things off in Mum’s carport.” X confirmed that the communication had been difficult between her parents about simple things. Z added, “Whenever they see each other, Mum always films Dad but I don’t get why she does that.”
The example of the October school holidays in 2019 serves amply to demonstrate that the lack of parental co-operation leads to the children missing out, in this instance, on a holiday with their mother.
Nothing in the evidence before me gives any confidence that this situation is likely to improve.

Any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;

(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;

There are serious allegations in relation to physical violence towards Mr G that cannot be resolved in this proceeding. Those allegations are made more concerning because, as the father told Dr D, he was aware that Mr G had suffered a brain injury in an accident.
Although no findings can be made in relation to the allegations of assault of Mr G, it is necessary to consider the allegations in the context of the making of interim orders for parenting.
The allegations are serious, involving physical assault on two occasions.
Those allegations are given more weight, in the context where no findings can be made, by the fact that both Mr G and the mother have deposed to the events.
As far back as 2013, Dr P identified the father as “volatile and angry”. Dr P told Dr D, “[The father] was identified to have acted in a volatile and angry manner exacerbated by alcohol use.”
They are also given more weight by the fact that the father has engaged, as recently as 2018 in an act of assault against a stranger and has at least one conviction in relation to the assault of a stranger.
The father’s verbal violence and denigration towards the mother is amply demonstrated in his messages to her and, if her evidence is accepted, it continues.
To this end, I propose to continue the order made by the Senior Registrar requiring the parties to communicate by email, absent an emergency.
The father relies on an affidavit by his psychologist, Ms K. She deposed that he has attended three consultations. Ms K deposed that she considers the father’s psychological response to be “within the normal range expected given his current situation, financial loss and legal case”. She stated:
I do not have any structured treatment recommendations. I believe at the moment his perception of current events to be appropriate and his current coping mechanisms are effective.
Ms K makes no mention in her affidavit of her understanding of the father’s alleged history of violent acts towards strangers, nor of his assault of a stranger in 2018. Neither does she indicate that she is aware of the father’s history of verbal denigration of the mother or of the allegations of assault on two occasions against Mr G and the maternal grandfather.
The father’s reporting of his previous behaviour to Dr D is instructive. Dr D noted:
When asked about his anger management, [the father] immediately agreed that there had been two trigger moments which had resulted in unacceptable behaviour on his behalf. He readily identified the inappropriate nature of his email and text messaging. This would be a response to escalating “tension points” with [the mother].
He identified his “bad old habit” of responding in an immature fashion with disgusting language in texts and emails. The legal process had been “horrendous” but had contributed to self-reflection. He recognised the need to “grow up” and stop drinking. He identified himself to have been emotionally immature. This had escalated in the lead-up to the property settlement. He would get riled and respond in an emotive and inappropriate manner.
…
[The father] readily acknowledged a history of fights under the influence of alcohol dating back to a fight in college at the age of 20. He explained that the current proceedings had been “a risk case” given his forensic history. He identified an assault charge in 1999. He had been in a bar brawl which had resulted in a $900 fine and a Good Behaviour Bond. There had also been driving infringements with a DUI of 0.06 the day after a bucks’ party. He provided an account of the “fifteen seconds push and shove” when [Mr G] cut him off on his way to the carpark. [Mr G] had confronted him about his lack of Child Support. The “push and shove” had culminated in an AVO without admissions. This had become “a real disaster”. He was shocked by [the mother’s] use of such events. Nonetheless, he acknowledged that his behaviour had been “bloody stupid”. He noted that [Mr G] was an old mate from school, who he had known since Year 10. [Mr G] had previously suffered brain damage secondary to a polo accident.
In relation to the incident of assault in Town H Dr D reported:
[The father] provided a detailed account of the altercation in Town H which was currently before the Courts. He was confident that the matter would be withdrawn given that it was “a silly misunderstanding” with a “heartbreaking impact”.
In relation to his alcohol consumption, the father told Dr D:
…that alcohol had been an intermittent problem. This was particularly the case during weekend binges during November 2019. He would have 10 beers at the pub and a Scotch at night.
An interim ADVO was made against the father for the protection of the mother in 2013.
As recently as June 2019 the father consented to an ADVO, albeit without admissions, for a period of two years for the protection of the mother and Mr G.
The nature of the allegations of family violence, and the volume of circumstantial evidence that supports those allegations, leads to a cautious approach in making orders which require the parents to have any contact, even if such contact is not physical.
I do not accept that the children are likely to be at risk of violence from their father, provided that he is not drinking to excess, but rather that they may be exposed to his aggression towards others, not limited to the mother and Mr G, while they are in his care.

Parental responsibility

The father seeks an order for equal shared parental responsibility. The mother’s response is silent on that issue but that does not indicate consent. The ICL did not seek any order in relation to parental responsibility.
There are some significant parenting decisions where the parents disagree.
The issue of the children’s schooling will have to be resolved. On the evidence currently available, the possibility of X’s continued attendance at her school is unlikely and the father’s insistence that the younger children attend X’s school does not appear to be founded in reality.
The mother proposes that all three children attend the local state high school.
There is no present indication that this dispute can be resolved by agreement.
Of less importance but equally contentious is the inability of the parents to agree in which sports the children should participate.
That matter was dealt with by the Senior Registrar who determined that both parents must agree to enrol or remove the children from any particular activity.
The father’s position in relation to the enrolment of each child in multiple sports appears, on the available evidence, to ignore the very real issue of how the costs involved are to be paid and the logistics of separated parents managing to get three children to three different sports in circumstances where the co-operation between the parents is fraught with difficulties and any contact between them has, historically, been accompanied by verbal violence and, on the wife’s case, physical violence directed to her then partner.
If the mother’s message on 17 February 2020 is accurate, the parents are also in dispute about religious upbringing, medical and dental treatment.
The father seeks orders which would have the effect of his having sole parental responsibility for religious instruction, orders in relation to extra-curricular activities and orders relating to the school which X attends.
All of these matters appear to be contentious.
The father seeks a suite of orders dealing with delivering and collecting the children’s bags on changeover and missing items. The fact that the father deems it necessary to make such an application illustrates the impracticability of the proposed shared care arrangement.
I do not propose to make any orders in relation to parental responsibility which will be a matter to be dealt with in the substantive proceedings.
Further, for the reasons I have set out, I do not propose to make the orders sought by the father in relation to the children’s sporting activities and I will make orders regarding extra-curricular sport in the same terms as those made by the Senior Registrar.
In those circumstances, the provisions of s65DAA(1) of the Family Law Act 1975 (Cth) are not engaged.

CONCLUSION

I do not accept that the relationship between the parents is such that equal shared time is sustainable.
I do not accept the father’s characterisation that equal shared care has been beneficial for the children in circumstances where that arrangement has continued with a level of hostility between the parents that is palpable and obvious to the children.
The orders proposed by the mother will see the children appending significant and substantial time with the father but will, hopefully, lessen the friction about day to day arrangements.
The effect of this order is that the children will spend four nights each fortnight with their father. This is a considerable increase in the time they currently spend with him. To the extent consistent with their welfare, it gives weight to their wishes to spend more time with him.

SUPERVISION

The mother seeks orders requiring the father’s time with the children to be supervised by Ms Fitzgerald.
It is not clear that Ms Fitzgerald has been given notice that the mother seeks this order or what her attitude to it might be.
However, I do not propose to require that the father’s time with the children be supervised for the following reasons.
As I stated earlier in these reasons, I am not satisfied that the children are at risk in the care of the father, provided that there is no contact between the parents and the father is not drinking to excess.
To that end, I will continue the orders made by the Senior Registrar in relation to CDT testing and the restraint on the father from consuming alcohol before and during the time he spends with the children.
Ms Fitzgerald works and there is no evidence of her availability to be present when the children are in the care of the father.
The father and Ms Fitzgerald live in the same premises and I infer that she is generally present after working hours and at weekends. However, it is not reasonable to expect her to completely curtail her daily activities so as to be present with the children at all times they are in the father’s care, such that she would not, for example, be able to shop for groceries, meet a friend or go for a walk alone.
Nothing in the children’s presentation either to Dr D or to the supervisors indicates that the children have any qualms about being in the care of the father.

ANCILLARY ORDERS

The father seeks a suite of ancillary orders relating to holidays, special occasions, handovers, religious activities, schooling, and extra-curricular activities.
The mother seeks orders to the effect that neither parent will attend the children’s activities when the children are in the care of the other parent.
The mother seeks leave to provide a copy of Dr D’s report to treating therapists, which I understand is not opposed.
The mother also seeks the continuation of the order made by the Senior Registrar that the father keep her informed of any further criminal proceedings against him.
I propose to deal with each of these issues, in so far as the evidence allows it.

Extra-curricular activities

I have already set out, earlier in these reasons, the practical difficulties inherent in the orders sought by the father.
I do not propose to make the orders he seeks.
There are a number of instances set out in the parties’ affidavits about unpleasant altercations at sporting events, including events after the orders of 10 December 2019.
I note that, as recently as 1 February 2020, the father attended an event, despite the orders of 10 December 2019 which set out the time he was permitted to spend with the children.
The father either did not understand the effect of the orders or did not choose to obey them. I am not in a position to make a finding about that matter which will be, no doubt, further explored in the substantive hearing.
The mother seeks orders that neither parent attend any extra-curricular activity unless the children are living with that parent at the time, pursuant to these orders. The father opposes that application and, on his behalf, senior counsel submitted that both parents could attend provided that they remained physically distant.
I do not accept that submission. The evidence is replete with altercations at soccer games, Nippers, rowing and swimming. Any occasion on which these parents are in the same vicinity is likely to lead to unpleasant exchanges or worse and the presence of the children seems not to be a deterrent.
Since the parents will not control their behaviour, the children need to be relieved of the burden of their hostility in so far as that can be achieved.
The orders will restrain both parents from attending any event which takes place when the children are in the care of the other.

Holidays

The mother’s Minute of Orders is silent in relation to holidays.
The father seeks half of the holidays at the end of the first, second and third terms.
No submissions were addressed by either party to this issue.
I propose to make orders broadly in accordance with the father’s proposal. If only to remove any necessity for the matter to be relisted before the next school holidays.
The evidence is not sufficient for me to make, in the absence of submissions, orders in relation to the long holidays or the arrangements for Christmas. Those issues will, in the absence of agreement, have to be dealt with at a later time.

Religious activities

The evidence is insufficient to allow this issue to be determined. No submissions were directed to it. It can await the substantive hearing.

Schooling

There is a significant dispute between the parents about private school education for the younger children and whether X’s current enrolment in a private school can be sustained.
I propose to restrain both parents from making any changes to the current schooling arrangements.

Handovers

The orders will provide for the children to go into the father’s care from school and be returned to school.
I do not propose to micromanage the logistics of the handovers.

The father’s Court attendances

The Senior Registrar made orders requiring the father to keep the mother informed of any future or pending criminal proceedings against him.
No submissions were made on behalf of the father in relation this issue.
The father has appealed against his conviction in relation to the assault in 2018. It is appropriate that the mother be informed of the outcome of this, and any other, criminal proceedings.

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 5 June 2020.

Associate:

Date: 05/06/2020

[2020] FamCA 458

5 June 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Consent

Procedural Fairness