Green and Donnelly

[2012] FamCA 378

FAMILY COURT OF AUSTRALIA

GREEN & DONNELLY [2012] FamCA 378

FAMILY LAW - CHILDREN – RELOCATION – Where the mother alleges the father engages in significant drug use – Where the father alleges the maternal family have been involved in significant denigration of the father – Where it was held that the parties both engaged in denigration and vilification – Where it was held the father could be threatening and intimidating at times – Whether the children’s views are genuine or the result of coaching by the mother – Where it was held the children’s views are genuine and a weighty factor

Family Law Act 1975 (Cth)

In the Marriage of R [Children's Wishes] (2002) FLC 93-108

Marvel & Marvel (2010) 43 Fam LR 348

APPLICANT: Ms Green

RESPONDENT: Mr Donnelly

INDEPENDENT CHILDREN’S LAWYER: Ann Connor

FILE NUMBER: SYC 579 of 2011

DATE DELIVERED: 24 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 23 - 25 January 2012;
27 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Dura

SOLICITOR FOR THE APPLICANT: Edwards Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Priestley

SOLICITOR FOR THE RESPONDENT: Coastal Law & Conveyancing

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All previous parenting orders are discharged.

2. The mother have sole parental responsibility for making decisions about major long term issues in relation to the children, T Donnelly born … July 2000 (‘T’) and L Donnelly born … April 2003 (‘L’) (“the children”), provided that prior to making any decision about a major long term issue relating to either of the children:

   2.1.The mother shall inform the father in writing about:-

   2.1.1.The nature of the issue about which a decision needs to be made;

   2.1.2.The decision that the mother proposes to make; and

   2.1.3.The reasons for the decision the mother proposes to make.

   2.2.Within a period of 21 days, the father shall provide to the mother in writing his views about the mother’s proposed decision.

   2.3.The mother shall consider the father’s views prior to making the final decision and inform the father of the final decision that she has made.

3. Without limiting the generality of order 2, in the event that the mother wishes to change the school T and/or L attend at any further time after the making of these orders, the mother shall forthwith inform the father in writing of:

   3.1.The reasons for the proposed change of school; and

   3.2.The details about the new school T and/or L are to attend (including the address of the school and the proposed commencement date).

4. Without limiting the generality of order 2, other than in an emergency or other than for everyday childhood illnesses, before the first appointment for T or L on any medical practitioner, dental practitioner or other health professional and including any counsellor (other than school counsellor),

   4.1.The mother shall advise the father in writing of:

   4.1.1.Her proposal concerning the medical, dental or other health professional treatment;

   4.1.2.The name of the proposed health professional;

   4.1.3.What professional information or advice the mother has received to date; and

   4.1.4.The date of the first appointment;

   4.2.The mother shall, prior to the first appointment, authorise the health professional to discuss any matters with the father;

   4.3.The mother shall do all acts and things to ensure that the father is provided with copies of any test results, letters, and any referrals that she receives from and by any such health professional within 24 hours of receipt of such material by the mother; and

   4.4.The father be permitted to attend upon such appointments, such attendance or attendances to be at the sole discretion of any such health professional and such attendance may be in person or by telephone or other electronic device.

5. The mother and the father have liberty to disclose the details of these orders to all principals and teachers of schools that the children attend and to all hospital, medical, dental and other health professionals attended by the children.

6. The mother authorise any school that T and/or L attend to provide to both the mother and to the father: -

   6.1.Copies of all reports of T and L;

   6.2.Copies of any school photograph order forms; and

   6.3.Any written reports from any school counsellor that the school provides to parents.

7. The mother authorises all staff members at the schools T and L may attend to discuss either child’s progress with the father and that these orders shall be deemed as the mother’s authorisation to any school T and/or L attend to do this.

8. The father is at liberty to attend any school function or activity to which the school ordinarily invites parents to attend.

9. During any period T or L are with the father, in the event that T or L are hospitalised or receive medical attention in an emergency, or for everyday childhood illnesses, the father shall:

   9.1.notify the mother as soon as practicable (and in any event within two (2) hours by telephone or text) after T or L’s first contact with either the medical practitioner, medical centre or hospital; and also 

   9.2.provide the mother with details including the details of the illness, injury, treating doctor, and the prognosis and treatment of T or L.

10. During any period T or L are with the mother, in the event that T or L are hospitalised or receive medical attention in an emergency, the mother shall:

    10.1.notify the father as soon as practicable (and in any event within two (2) hours by telephone or text) after T and/or L’s first contact with either the medical practitioner, medical centre or hospital; and also

    10.2.provide the father with details including the details of the illness, injury, treating doctor, and the prognosis and treatment of T or L.

11. The father shall ensure the mother is kept informed as soon as is reasonably practicable of:-

    11.1.Any medical problems or serious illness suffered by T or L while in the care of the father;

    11.2.Any medication that has been prescribed for T or L while in the care of the father.

12. The mother shall ensure the father is kept informed as soon as is reasonably practicable of:-

    12.1.Any medical problems or serious illness suffered by T and/or L while in the care of the mother;

    12.2.Any medication that has been prescribed for T or L while in the care of the mother.

13. T and L live with the mother at times when they are not living with the father.

14. T and L live with their father as follows: -

    14.1.During school terms and commencing on the second weekend after the date of these orders and each alternate weekend thereafter, from Friday evening to 6:00 pm Sunday evening (or 6:00 pm Monday evening if the weekend falls on a long weekend) on the following basis:

    14.1.1.On the first of such alternate weekends in each school term, the mother will deliver the children to the McDonalds restaurant closest to her residence (or such other location as the parties mutually agree in writing) by 6:30 pm on Friday and collect the children from that location at 6:00 pm on Sunday or 6:00 pm on Monday if the weekend falls on a long weekend.

    14.1.2.On the second of such alternate weekends in each school term,

    14.1.2.1.the mother shall deliver the children to the Sydney domestic airport and ensure that they are placed on a prepaid flight (booked and paid for by the father) from Sydney to Williamtown Airport at the commencement of such period; and

    14.1.2.2.the father shall collect the children at Williamtown Airport and the father deliver the children to Williamtown domestic airport and ensure they are place on a prepaid flight (booked and paid for by the father) from Williamtown to Sydney and the mother shall collect the children at Sydney Airport; and

    14.1.2.3.the father shall be responsible for the children’s air travel costs as unaccompanied minors.

    14.1.2.4.unless otherwise agreed in writing, for the purpose of such changeovers the commencement time for the flight from Sydney to Williamtown is any reasonable time after 6:00 pm Friday and the flight from Williamtown to Sydney is to depart not later than 6:00 pm Sunday or 6:00pm Monday if the weekend falls on a long weekend.

    14.1.2.5.the father shall be responsible for giving notice to the mother in writing at least seven (7) days before any such alternate weekend details of the airline with whom the children will be travelling, the flight numbers, and the boarding time of both flights.

    14.2.For one half of each school holiday period and unless otherwise agreed in writing by the parties, being the first half in even numbered years and the second half in odd numbered years, and unless otherwise agreed in writing the parties are to meet for changeover at the McDonalds restaurant closest to the mother’s residence (or such other McDonalds restaurant as the parties agree in writing) at the commencement and conclusion of such time.

    14.3.The children spend time with the mother between noon on 24 December to noon 26 December in even numbered years and with the father between noon 24 December and noon 26 December in odd numbered years.

    14.4.If Father’s Day falls on a weekend that the children would not otherwise be with the father, then the children spend time with the father on the terms of travel provided in orders 14.1.1 or 14.1.2  at the election of the father (to be communicated by the father to the mother in writing 7 days before the Father’s Day weekend).

    14.5.If Mother’s Day falls on a weekend that the children would otherwise be with the father, then the children live with the mother that weekend.

    14.6.The children live with the father at such other times as may be agreed by the mother and father in writing from time to time.

15. For the purpose of these orders, school holiday periods shall commence from the first day following the children’s final day of attendance at school and conclude on the day before the children’s first day of commencement at school.

16. The father will, at his option, arrange for the children or either of them to attend a Saturday morning sporting activity that they are normally enrolled in during any weekend when the children are with the father, provided that:

    16.1.the mother will, at least fourteen (14) days before, notify the father in writing that one or both children are able to involve themselves in a Saturday morning sporting activity on a weekend where they would normally be with their father;

    16.2.the father will within seven (7) days inform the mother in writing, in the event that on any particular weekend he does not intend to take a child, or the children, to a Saturday morning sporting activity and the father shall do everything necessary to inform the coach, manager or other relevant persons associated with that sporting activity of the fact that a child, or the children will not be attending that sporting activity on a particular weekend.

17. Both the mother and father shall facilitate and encourage communication by the children with the other parent, such communication to be at all reasonable times by telephone, in writing and by other electronic means (including but not limited to email) and shall provide the children with privacy for the duration of such communications.

18. The children are at liberty to telephone the parent with whom they are not living at all reasonable times via the children’s mobile telephones.

19. For the purpose of these orders, communication between the parents in writing shall also mean by texting or by email unless otherwise specified.

20. Both the mother and father will facilitate telephone communication with the children and the other parent by telephone at reasonable times:

    20.1.during school terms by the father telephoning the children each Monday, Wednesday and each second Friday (being the Friday when the children are not to live with the father that weekend);

    20.2.during school holidays by the father telephoning the children each Monday, Wednesday and Friday when the children are living with the mother;

    20.3.during school holidays by the mother telephoning the children each Monday, Wednesday and Friday when the children are living with the father;

    and each parent shall provide the children with privacy for the duration of such communications.

21. The mother and father each be restrained from discussing these proceedings with T and/or L, within their presence, or within their hearing, and ensure as far as possible that no other person (other than the Independent Children’s Lawyer) discusses these proceedings with T and/or L or within their presence or within their hearing.

22. The mother and father each be restrained from showing T and/or L any of the affidavits, any reasons for judgment, applications or reports prepared for the purpose of these proceedings (but may show them the final Court Orders) and that each parent be restrained from showing T and/or L any material annexed or exhibited to such documents.

23. The mother and father be restrained from criticising or speaking badly of the other parent, or the other parent’s family, including either parent’s partner and their child and that this restraint be a restraint from doing such things in the presence of or the hearing of T and/or L and includes any written communication including electronic means of communication.

24. Both the father and mother shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or the other parent’s partner or family either to, or in the presence of T and/or L.

25. The mother and father notify the other not later than seven (7) days prior to any change to their address, postal address, telephone contact number, email address, and shall include in the notification the details of such new address or number.

26. Both the mother and father be restrained from consuming any alcohol to a level that would disable either of them from legally driving a motor vehicle during the periods when the children are living with them.

27. Both the mother and father be restrained from consuming any prohibited drugs during the periods when the children are living with them.

28. The mother forthwith contact her current counsellor and make a further appointment to see that counsellor.

29. The mother be permitted to provide her counsellor with the two reports of Dr N, the final orders, and the reasons for judgment.

30. The mother attend upon her counsellor and all appointments arranged with the counsellor and continue to attend the counsellor until such time as the counsellor indicates that, in the counsellor’s opinion, further sessions of therapy are no longer necessary.

31. Upon completion of the counselling referred to in the previous order, the mother is to provide the father with a letter from her counsellor indicating that the mother has concluded her attendance upon her counsellor and the mother is to provide that letter to the father as soon as is practicable after it is available.

32. The mother and father shall do all acts and things and sign all documents necessary to renew and/or replace T and/or L’s Australian and Irish passport upon the expiration of the validity of their passports pending T and/or L attaining the age of 18 years. The mother shall ordinarily hold the children’s passports.

33. Unless otherwise agreed and notwithstanding any other order, should either the father or mother seek to take T and/or L out of Australia:

    33.1.The mother and the father be permitted to take the child or children overseas for no more than a block period of four (4) weeks duration in each year;

    33.2.In the event that the children are to travel overseas and the time the children would live with the other parent will be affected by such travel arrangements the parent taking the children overseas shall ensure that the other parent shall have “make-up” time in accordance with the amount of time that is missed and unless otherwise agreed, that make-up time shall be in the school holidays immediately following the holidays in which the children were taken overseas by the other parent;

    33.3.So far as practical, the occasions on which either parent takes T and/or L out of Australia are to coincide with T and/or L’s school holidays;

    33.4.The parent proposing to take T and/or L out of Australia shall give the other parent as much notification as possible of his or her intention to take T and/or L out of Australia and in any event will give not more than nine months and no less than six weeks written notice of such intention;

    33.5.The parent who did not last take a child or the children overseas has the option of indicating to the other parent in writing within 7 days of receiving the written notice referred to in order 33.4 of his or her intention to take a child or the children overseas during all or part of the same period and that parent shall be entitled to do so;

    33.6.The parent proposing to take T and/or L out of Australia shall furnish to the other parent not less than four weeks prior to the proposed departure,

    33.6.1.an accurate itinerary to include a copy of the parent's and T and/or L’s airline tickets or other written verification that tickets have been purchased;

    33.6.2.the departure date and return date;

    33.6.3.the country or countries to which the parent and T and/or L will be travelling;

    33.6.4.the approximate date on which the parent and T and/or L will arrive and depart each country; and

    33.6.5.a contact number and address at which the parent and T and/or L can be contacted in each country.

34. On the occasions that the father proposes to take T and/or L out of Australia, the mother shall release to the father within 14 days of that overseas travel T and/or L’s passport for the purpose of such travel, and within 3 days upon their return to Australia the father shall return the passport(s) to the mother for her to retain in her safe keeping.

35. The father is to pay to the Legal Aid Commission in respect of the Independent Children’s Lawyers costs, the sum of $4606.40 together with one half of any additional amount charged by Dr N for his preparation and attendance at court on 27 January 2012 and the mother is to pay one half of any additional amount charged by Dr N for his preparation and attendance at court on 27 January 2012.

36. Pursuant to s.65DA(2) and s.62B, 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 these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Green & Donnelly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 579 of 2011

Ms  Green

Applicant

And

Mr Donnelly

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. A central issue in this case is whether the children, T born in July 2000 (aged 11) and L born in April 2003 (aged 9) (“the children”) should relocate to ordinarily live with their mother. A central feature of this case is the acrimony in the parties’ relationship. There are allegations from both parties of denigration, alcohol and substance abuse, and physical and verbal violence perpetrated against each other in front of the children.

2. The children are now living with the father on the Central Coast of New South Wales and spending time with the mother every second weekend in Sydney, three quarters of the ordinary school holidays and half of the Christmas school holidays.

1. On 20 October 2011, a document was tendered (exhibit 2) listing the issues to be determined in the final proceedings. They are the following:

   3.1.whether the children should remain living with their father;

   3.1.1.whether the children should remain living with their father if he relocates from the North Coast to the Central Coast;

   3.2.the willingness and financial capacity of the residential parent to facilitate an ongoing meaningful relationship with the parent they spend time with;

   3.3.the extent to which the Court should take into account the views of the children;

   3.4.the nature of the relationship between the parties and the impact of the relationship on the children;

   3.5.whether the presumption of equal shared parental responsibility applies;

   3.6.the nature of each parent’s relationship with the children;

   3.7.the risk to the children of being exposed to physical, verbal or psychological abuse in the home of each parent;

   3.8.whether either party uses prohibited substances and the effect of this on the party’s capacity to parent and on the children;

   3.9.each party’s mental health and its effect on their parenting;

   3.10.the willingness and ability of each parent to facilitate a relationship between the children and the other parent’s extended family; and

   3.11.each parent’s capacity to financially support the children should they reside with them.   

2. The financial capacities of the parties did not attract any significant focus during the hearing. Neither party submitted that the other lacked financial capacity to support the children if the children were in his or her care. The father offered to pay for some air flights to facilitate the children’s time with him.

APPLICATIONS

1. The proposals at the commencement of final submissions of the mother, father and Independent Children's Lawyer are set out in schedules 1, 2, and 3 respectively.

2. The Independent Children’s Lawyer had initially proposed an equal shared parental responsibility order. During final submissions, the parties agreed that, in the event an order for sole parental responsibility was made, each would consent to orders whereby decisions of a long term nature would involve consultation with the other parent. Also during final submissions and after discussion, the Independent Children’s Lawyer amended her proposal such that the mother have sole parental responsibility for the children.

3. The father also made some amendments during final submissions. He had initially sought for the mother to undertake a period of therapy, and during that period, spend no time with the children. He had also initially required that the mother recommence spending time with the children in a contact centre for six months. During final submissions, these proposals were changed; the father was willing for the mother to spend time with the children while she undertook therapy. He also indicated he no longer sought the mother’s time with the children be supervised in a contact centre.

4. At the end of submissions, both parties agreed that during school term the children should spend time with the other parent each alternate weekend. The parties differed as to the logistics as to how that would happen. The mother proposed that it all happen by road. The travel time by road between where the mother will be living and the father’s residence is approximately two and a half hours (which means that the children would travel on the road for five hours each alternate weekend). The mother’s proposal is that the parties would share the responsibility for the transportation of the children by meeting at a halfway point.

5. If the children are to live in Sydney with their mother, the father proposed  that on each second trip the children travel by air by way of a prepaid flight (paid for by the father) from Sydney to Williamtown airport at the commencement of the weekend and from Williamtown airport to Sydney at the conclusion of the weekend. The mother’s responsibility would be to get the children to Sydney airport on Friday evening and collect them from Sydney airport on Sunday evening on one weekend in every four during school term. The father proposed that the flight on Friday not be before 5pm. The mother’s position was that should that order be made, then that flight should not be before 6pm (submitting that the extra hour would provide her with extra flexibility in ensuring that the children were able to catch the flight). On the father’s proposal, if the children live with the mother, they would travel all the way by road every second alternate weekend and the collection and drop off would happen at the McDonalds restaurant closest to the mother’s residence.

DOCUMENTS RELIED UPON

1. The applicant mother relies on the following:

   10.1.Updated and Amended Initiating Application filed 2 December 2011;

   10.2.Mother’s affidavit filed 17 January 2012;

   10.3.Mother’s affidavit filed 2 December 2011;

   10.4.Mother’s Parenting Questionnaire filed 20 October 2011;

   10.5.Financial Statement filed 2 December 2011;

   10.6.Affidavit of D Green filed 6 December 2011;

   10.7.Affidavit of R Green filed 28 April 2011;

   10.8.Affidavit of Mr H filed 28 April 2011; and

   10.9.Affidavit of Ms CN filed 2 May 2011.

2. The respondent father relies on the following:

   11.1.2^nd Amended Response to Initiating Application filed 6 December 2011;

   11.2.Father’s affidavit filed 5 December 2011;

   11.3.Financial Statement filed 5 December 2011;

   11.4.Affidavit of Ms S filed 5 December 2011;

   11.5.Affidavit of Mr S Donnelly filed 5 December 2011;

   11.6.Affidavit of Ms K filed 6 December 2011;

3. The Independent Children’s Lawyer relies on the following:

   12.1.The Children and Family Issues Assessment of Ms Z dated 20 April 2011;

   12.2.Single Expert Report dated 19 August 2011; and

   12.3.Updated Single Expert Report dated 14 November 2011.

SHORT HISTORY

1. The father was born in 1974 and is now aged 37 years.

2. The mother was born in 1975 and is now aged 37 years.

3. The parties commenced cohabitation in April 1997.

4. The parties married in 1998. 

5. The child T was born in July 2000 and is now aged 11 years.

6. The child L was born in Ireland on in April 2003 and is now aged 9 years.

7. The parties separated in April 2008.

CREDIT

Mother

1. The mother did not pretend to the Court that she had changed her mind about the father having a narcissistic personality disorder, notwithstanding the evidence of Dr N.

2. Ms K went on affidavit regarding the mother’s alcohol consumption in the period after separation, saying the mother ‘would stay at my house for hours drinking wine’. Counsel for the father submitted this completely contradicted the mother’s own evidence but I do not accept that as the mother admitted to Dr N that post separation, she was drinking six glasses of wine per night. 

3. Counsel for the father pointed to a number of discrepancies in the mother’s oral evidence:

   22.1.In her affidavit, the mother said she attended upon her counsellor three times. However in cross examination, the mother admitted one of these counselling sessions occurred after the affidavit was sworn. Counsel for the father submitted this was a significant difference.

   22.2.The mother told Dr N she had no criminal history, even though she pleaded guilty to the common assault of the father.

   22.3.The mother also told Dr N she had completed a parenting course (in Dr N’s report he says the mother told him she had “done every course” and he comments he believes she is referring to the parenting course ‘Parents not Partners’), however in her oral evidence, she admitted she had not attended ‘Parents not Partners’. She asserted she had completed the ‘Building Connections’ parenting course.

   22.4.The maternal grandmother indicated that, should the children live with the mother, they would all live together in the maternal grandmother’s house until it was sold. The mother claimed she had already begun searching for a rental property, and should the children live with her, she would rent a house. The mother did not indicate that the maternal grandmother would provide her with money towards a deposit for a house. The maternal grandmother said the house was on the market since December 2011, whereas the mother said the house was placed on the market ‘recently’.

4. These matters do point to some minor inaccuracies or omissions in the history given by the mother. 

5. I did not conclude however that the mother was a deliberately dishonest witness. There is no doubt that the mother has overvalued ideas, particularly in relation to the father’s mental status. It is also clear that the mother has quite different perceptions as to various incidents that have taken place between the parties. The parties however accept that there is a high level of hostility between them and it is not necessary for me, in this case, to make detailed findings about each factual matter where the parties give a different version. Many of the allegations that have been raised by the mother are based on information given to her by the children and by other third parties.

Father

1. Counsel for the father submitted that I would prefer the evidence of the father over the evidence of the mother where it was in conflict.

2. Counsel for the father asked me to accept that the demeanour of the father in the witness box was more open and that the father was more willing to admit errors. I don’t accept that is so.

3. There are occasions where I can accept the father’s version in preference to the mother’s but there are other occasions where I cannot. One example is the assertion by the father that he could recognise the mother’s voice in a phone call by the maternal grandmother to him where he said he heard the mother’s voice say “evil evil little faggot”. For reasons discussed in detail below, I accept the mother’s evidence that it is not her voice. I do not accept the father’s evidence that he could recognise the mother’s voice.

Conclusion about the credit of the mother and father

1. Both the mother and the father were candid sometimes in ways that did not necessarily assist them. Both were prepared to disclose to the court in a fairly raw way what they were feeling and how they were thinking. That is not to say I accept everything each of them says, and in relation to a number of things they clearly have different perceptions as to what happened.

Maternal Grandmother

1. The maternal grandmother initially asserted she only made “a couple” of phone calls to the father, although the series of recordings on Exhibit 3 show numerous abusive phone calls were made. This did not reflect positively on her memory of what she did at this time. The maternal grandmother did concede that her behaviour in relation to those voicemails was disgusting and said she was embarrassed.

2. I was able to accept most of what the maternal grandmother told me.

Ms S (partner of the father)

1. I found Ms S gave her evidence in a straightforward manner.

Mr S Donnelly (paternal uncle)

1. I am hesitant to accept all the evidence of the paternal uncle, particularly in regards to the lack of volatility in his relationship with the father. The paternal uncle initially indicated he has a fairly good relationship with his brother, but admitted they had had a physical altercation where he woke up with many bruises. The paternal uncle also admitted he was a party to commercial litigation against his brother, in their capacity as directors of a company.

Mr H (ex-business partner of the father and friend of the mother)

1. Mr H made strong allegations regarding the father’s drug use and intimidation. Mr H said he saw the father smoke marijuana in front of the children more than 20 times. He says he saw the father take tablets (which he alleges the father told him were LSD) on two occasions. He also alleges he saw the father with cocaine (and that the father told him it was cocaine) and that he was with the father when he purchased cocaine on New Years Eve 2009.

2. Mr H admitted he does not like the father, but denied the father fired him from employment. He asserted he quit.

3. During cross examination, the father tendered material (exhibit 4) that showed he was out of the state on the date Mr H alleged intimidatory behaviour. Mr H also asserted he attended upon the police regarding the alleged behaviour by the father but the subpoena material did not show any police complaints. 

4. The father denies the substance of what Mr H says about the father’s behaviour. I am unable to place any significant weight on the evidence of Mr H.

DETAILED CHRONOLOGY

1. The father was born in Ireland in 1974.

2. The mother was born in 1975.

3. The parties commenced their relationship in 1997. They commenced cohabitation within weeks of meeting.

4. The parties married in 1998.

5. On 22 February 1999, the Police applied for an Apprehended Violence Order (“AVO”) for the mother’s protection, on allegations of assault by the father. Both parties agree the AVO did not prevent the mother and father cohabiting but only restricted the father’s conduct if he was intoxicated. The father denies assaulting the mother and said he climbed through the window after he was locked out of the house.

6. On 23 June 1999 the mother struck the father in the mouth, causing bleeding. The father made a police report but requested no charges be laid.

7. The parties’ daughter T was born in July 2000.

8. Around September 2000, the mother took T to Ireland for five weeks to visit the father’s family. The father remained in Sydney for work.

9. Around November 2000, the parties separated and the mother began residing with the maternal grandfather.

10. On 1 January 2001, the father alleges the mother locked him out of the house. He says the police removed the mother from the house, although the police incident details show the father was removed from outside the house at his own request. A COPS note indicates a history of domestic violence between the parties.

11. Around January 2001, the father went back to Ireland and attempted to stop drinking. The mother and T moved back into the former matrimonial home.

12. In April 2001, the father returned from Ireland, and was refused entry into the family home. He lived with friends for four to five months and got help for his alcoholism from C Hospital.

13. Around the middle of 2001, the mother and father recommenced their relationship.

14. Around June – July 2002, the paternal grandfather died. The parties travelled to Ireland at that time although the mother returned to Australia for one month to prepare the home to be rented while they were in Ireland. During that month, T remained with the father in Ireland.

15. In August 2002 the father began smoking marijuana; he says to deal with the stresses arising from the loss of his father, the Irish weather, and financial difficulties.

16. The parties’ son L was born in Ireland in April 2003.

17. In May 2003, the parties and children returned from Ireland. They resided with the maternal grandmother in Sydney while their home was tenanted.

18. In June 2004, the parties and the children moved out of the maternal grandmother’s home into rented premises in Sydney suburb C.

19. The father began to experience depression in 2005. In 2006, he began taking Avanza. Around that time, he was also prescribed Lithium but he denies he ever filled that prescription. He later had his prescription changed to Zoloft. In Dr O’s report dated 18 September 2006, the father was diagnosed with social phobia and depression. The mother claims he was diagnosed with Bipolar Disorder.

20. Around November or December 2007, the parties sold their home in Sydney and relocated to X in the North Coast area.

21. On 1 April 2008, the mother swung a petrol can at the father, causing an injury to his elbow. The father alleges this happened in front of the children.

22. The father left the mother and the parties separated on 2 April 2008 for the final time. The mother remained in the matrimonial home at X, while the father rented premises in A on the mid North Coast.

23. In 2008, after the parties had separated, the mother began drinking up to six glasses of wine per night.

24. From April 2008 until June 2008, the children lived with each parent for an equal amount of time, alternating households every three days.

25. On 19 June 2008, the mother assaulted the father at his home in A. The father claims the mother screamed and spat at him, punched him, and allegedly broke his nose. The mother denies she punched the father, but concedes she slapped him. T witnessed this incident. The police brought an AVO on the father’s behalf. The mother was placed on a Good Behaviour Bond commencing February 2009 after pleading guilty to assault.

26. Around June or August 2008, the mother and father agreed the children would spend time with each of them in a week about arrangement.

27. On 16 August 2008, the father met his current partner Ms S. Their relationship began around late November 2008.

28. The father said that in October 2008 the maternal grandmother told him the mother was suicidal and had a problem with alcohol.

29. In late 2008 the father said he was told the mother gave a 16 year old boy alcohol and slept with him. At that time the father was informed the mother was using cocaine, ecstasy and alcohol.

30. On 21 November 2008, the parties attended mediation. The parties agreed to a parenting plan, but this was not signed by the mother.

31. Around December 2008, the father ceased taking Zoloft.

32. In February 2009, the father moved to a property in B and commenced cohabitation with Ms S and her daughter G.

33. Around August 2009, Ms S obtained an interim AVO against the mother.

34. On 8 December 2009, the parties divorced.

35. Around January 2010, the father, Ms S, and G moved to a property in A, close to T and L’s school, F Primary School.

36. Around January 2010, G began attending F Primary School with T and L.

37. Around June 2010, Ms S and G moved out of the father’s home in A.

38. Around July 2010, the father moved to a property in X.

39. Around August 2010, the father resumed taking Zoloft.

40. On 5 November 2010, the father obtained an AVO against the maternal grandfather.

41. Around December 2010 or January 2011, the mother relocated with the children back to Sydney and began residing with the maternal grandmother.

42. On 1 February 2011, the father sought a recovery order. The application was heard on 15 February 2011, at the Local Court. It was ordered that the children be returned to the North Coast area.

43. On 18 February 2011, the father and the father’s brother, Mr S Donnelly, collected the children from M Primary School. The maternal grandmother was present and there was an exchange between the adults. The children re-commenced schooling at F Primary School on 22 February 2011.

44. On 2 June 2011, I made interim orders that the children reside with the father on the North Coast and spend time with the mother every second weekend, and two out of three school holidays, as well as half of the Christmas school holidays.

45. On 12 July 2011, 25 July 2011 and 26 July 2011, Dr N conducted interviews with the mother, the father, the children, and Ms S in preparation for his first family report.

46. On 19 August 2011 Dr N’s first report was finalised.

47. On 11 November 2011 Dr N conducted an interview with the maternal grandmother in preparation for his second family report.

48. On 14 November 2011 Dr N’s second report was finalised.

49. Around December 2011, the father moved to the Central Coast.

50. Around December 2011, Ms S and G moved to the Sunshine Coast.

ISSUES

The mother’s views on the father’s mental health

1. The mother claims the father has Bipolar Disorder. She said in 2005 he became very depressed and went through cycles of euphoria and deep depression. The mother said the family’s General Practitioner thought the father was exhibiting Bipolar Disorder and prescribed lithium for him to take. She said he was then referred to a psychiatrist, Dr O. The father agrees he saw Dr O for depression and was initially prescribed Avanza and later, Zoloft.

1. The mother agreed that there was residual resentment arising from the time that she spent with the father and arising from what had happened between them. The mother had what I would describe as an overvalued idea that the father had a Narcissistic Personality Disorder. The mother gained this idea from research that she conducted in the past and in recent times on the internet. She said that she understood what the DSM-IV was and how a diagnosis under that protocol operated. I was less than convinced though that the mother fully understood what it was she was actually claiming.

2. The mother’s view is of some concern, notwithstanding the fact that Dr N and the father’s treating psychiatrist, Dr O, have not diagnosed the father with having any personality disorder or any other psychiatric disorder.  There is nothing in the father’s presentation in the witness box that would give me any reason to doubt the opinions of medical experts in relation to the father’s mental status.  I accept the opinions of Dr N and Dr O about the father’s mental status.

3. It is consequently concerning that in the face of knowing those opinions, the mother maintained her view based on her own research on the internet that the father had a certain medical condition. That overvalued idea by the mother is symptomatic of the unresolved issues that Dr N speaks of in his report. The mother said she does not feel that she has had closure in relation to her relationship with the father and does not understand why the father left. She has however taken up Dr N’s recommendation that she seek the help of a psychologist. She has done that, she has had three sessions.  There is no further appointment at this stage although the mother commented that the psychologist had been away on holidays.

The mother’s mental health

1. The mother admits becoming ‘chronically depressed’ in 2008 leading to an increase in alcohol use and being prescribed Lexapro. The maternal grandfather moved to assist the mother at this time. The mother and maternal grandfather both say this was initially a temporary move, with the intention that the mother be admitted into a psychiatric unit with the W Hospital for treatment. The maternal grandfather became suspicious of the father’s support for this idea and resolved to help the mother through her difficulties himself.

2. In his report, Dr N opines that the mother “doesn’t reveal symptoms of a mental illness” although she seemed to display a “chronic pattern of adjustment difficulties for anxiety and anger” when she was on the North Coast. Dr N commented this had somewhat reduced since the mother relocated back to Sydney. In his oral evidence, Dr N reiterated that the mother is not suffering from a mental illness or a personality disorder, but said that the mother exhibited some “particularly volatile” behaviour, and that her assertions regarding the father and Ms S (discussed below) displayed an “entrenched antagonistic” attitude.

3. I do not accept the father’s assertion that the mother has a diagnosable mental condition which would form the basis of order 3 sought by the father (see Schedule 2). The father modified his application during final submissions.

The father’s drug taking and alcohol intake

1. The father admits at the start of his relationship with the mother, his weekend consumption of alcohol was high. The mother said he drank one to two schooners of wine then 10-15 schooners of beer a night and would fight with men in the pub about interacting with the mother. The father denied this, asserting it would be impossible for him to hold down his job if he was drinking at this rate. He gave up drinking in 2001 through hospital intervention.

2. The father admits he began smoking marijuana after his father’s death in 2001. He said he smoked two to three joints in the evening to relax, and not every evening. The mother says in 2003 the father was smoking approximately six joints a day and this increased to 20 joints a day in 2007. The father says he no longer takes drugs and has provided negative urinalysis results from 28 March 2011, 4 April 2011, 8 April 2011 and 2 September 2011. The mother questions the accuracy of these tests, given the father would provide the sample in private, and there was some indication of dilution.

3. The mother said that Ms S organised a cocaine deal for the father. The father denies this and I am unable to make a finding that this happened.

4. The mother fears the father will drive with the children under the influence of drugs. She says the children have told her since separation “Dad talks funny in the night times and his eyes go all googly” and “Daddy has blackouts and he vomits” and that the children claim they have seen the father and Ms S in the garage smoking.

5. I do not accept that either the father or Ms S are consuming intoxicating substances in a way which would compromise either’s capacity to attend to the needs of the children.

The mother’s drug taking and alcohol intake

1. The father claims in his affidavit material that the mother used cocaine, often at the same time as drinking alcohol. He also gives evidence that the mother smoked cigarettes throughout her first pregnancy.

2. The mother admits her alcohol intake increased in 2008 to 4 schooners, three times a week as a result of depression. In the expert report, Dr N notes the mother claimed she drank six glasses of wine a night during this period.

3. In her uncontested evidence, Ms K said that in the period after the parties separated, the mother ‘would stay at [her] house for hours drinking wine’.

4. The mother asserts she currently drinks two to three glasses of wine, once per week.

5. The mother denies using marijuana or cocaine after the age of 20 to 22 when she experimented with it. She provided two random drug tests from her 2009 and 2010 employment which were both negative. She also provided a negative sample in September 2011 upon a request by the Independent Children’s Lawyer.

6. I find that the mother’s level of use of any intoxicating substance does not affect her parenting capacity.

Family Violence and the Parties’ Aggression

1. One of the main differences between the two parties was their versions of the history of family violence.

2. There have been a vast number of applications for Apprehended Violence Orders by the parties but mostly by the father and his family against the mother.

Allegations regarding the mother’s behaviour

1. The father claims the mother was possessive and violent and, while at the first matrimonial home in suburb C, would throw crockery and cutlery and go off in a rage. He said she hit him on the head with a frypan and threw a broken bottle at him, both in the presence of the children. He also claimed the mother had loud arguments with the maternal grandmother and at one point wrestled her to the ground in front of the children.

2. The mother gives evidence about some of her actions. The mother concedes that she threw an empty petrol can (although there is debate over whether this was plastic or metal) at the father when he told her he was leaving her.

3. The mother admits that on 19 June 2008, she called the father a ‘stupid cunt’ and slapped him after the father allegedly failed to intervene in a domestic dispute between the paternal uncle and the paternal uncle’s wife.

4. The father admitted the marital relationship was volatile, and both parties were inclined to yell at each other loudly. The father denies ever assaulting the mother. He only admits restraining the mother to physically stop her assaults against him.

5. The father said he and Ms S have been subject to threats and abuse in front of the children. Counsel for the father asked me to accept that the mother was involved with two incidents of domestic violence in front of the children; the first being on 19 June 2008 where the mother assaulted the father (and subsequently pleaded guilty to this assault). It is unclear which event constitutes the second incident of domestic violence, although in the father’s affidavit he alleges the children were present when the mother swung a petrol can at him.

Allegations regarding the father’s behaviour

1. The mother alleges the father was verbally, emotionally, and physically abusive of her. She claims he shoved and grabbed her. In regards to verbal and emotional abuse she said he dictated what clothes she was to wear and prevented her talking to other males, he called her a “slut”, “stupid bitch”, “dumb cunt.” The mother said the father was excessively jealous and his behaviour caused her to be estranged from friends and family. The mother acknowledged this behaviour occurred, initially, primarily when the father drank excessively, and the AVO she had against him in 1999 prevented the father being in proximity to the mother when he was under the influence of alcohol or drugs. She said he also was in a number of alcohol induced fights at drinking establishments when he was in this state.

2. In 1999, the mother said the police were called to the house regarding domestic incidents on 17 occasions. During cross examination, the mother admitted that the subpoena material revealed the police attended twice. The mother said she was recounting what she had been told by a police officer.

3. The mother said that when the father’s marijuana intake increased in 2007 the father became erratic, unpredictable, and was verbally abusive and paranoid, flying into a rage without provocation.

4. The mother said that after separation the children told her the father would fly into rages on the telephone, or at Ms S, and sometimes at them. There are many examples provided by the mother in her affidavit material. The father has reportedly thrown the children’s iPods and other computer games in the bin in a fit of anger.

5. The mother fears that the father possessed a firearm, and was heavily involves in martial arts and cage fighting. She also holds fears over the father’s pit-bull terriers.

6. The maternal grandfather described the mother and father’s relationship. He said the father’s behaviour is intimidating, manipulative, unstable, and erratic. He said he has seen the father frequently drive by or walk by the mother’s house.

7. The maternal grandfather describes an incident in September 2010 when he was minding the children and the father came to the house to take them to the gym. The paternal grandfather went to pick the children up at 5:00pm whereupon he said the father became angry and told him to ‘fuck off’. He said the father grabbed him by the shirt and shouted at him, ending with the words, when he returned to his vehicle, “I’m going to have you and [the mother] shot by the end of the week.” In his affidavit the maternal grandfather said he tried to make a statement on two occasions and the police were not available. The father made an application for an AVO that day, indicating it was the paternal grandfather that had threatened to shoot him, and when it came before the court the grandfather said he did not attend because he “did not want any contact” with the father, could not afford a lawyer and did not want to ask elderly neighbours for witness statements. The mother’s affidavit records that the gym incident occurred on 5 September 2010 (a Sunday) but then records the father made this threat to the paternal grandfather “the following Sunday”. This does not accord with the grandfather’s version that it was one hour later. Upon calling the police the mother said she was simply told her call will be logged. The maternal grandfather said he tried to make a statement the next day at the police station and was told “We can’t take your statement at this time”.  The mother said she attended another police station and was told she cannot make a statement because the father already had. I do not find this inherently likely. The mother says she called another police station and asked them to call her local police station to take action, after which the local constable called and spoke to her in a hostile manner. The mother said she terminated the phone call as a result. Police records indicate she was intoxicated.

8. In her interview with Dr N, the child spoke about feeling unsafe with her father and indicated that she had once witnessed a fight between her father and Ms S’s ex partner.

9. In conclusion, I find that: -

   120.1.The family violence that existed between the parties while they were together was not entirely perpetrated by only one party against the other party, it went both ways.

   120.2.The father could be, on occasions, threatening and intimidating.

10. The objective evidence that I have in relation to the latter proposition arises from two events.

11. The first of those is a telephone call that was recorded that the father sent to the maternal grandmother’s mobile phone in 2008. The recording is Exhibit 7. The father used repeated foul language, in intimidating tones, directed to an elderly woman. The father says that the maternal grandmother, in telephone messages that she made, had made malicious comments about his parents which caused him to react in the way he did.

12. The recording of the voicemail from the father to the maternal grandmother is as follows:

    “Hello lovely darling. Ring me again and threaten me or mention my mother and I swear to God I’m going to find your first born and I will fuck him up. So if you want to have [the mother] fucked up and [the maternal uncle] fucked up and [if that’s not all] another fucking son love. So try me darling, just fucking try me, you cunt.”

13. The father accepted what he did was intemperate and inappropriate. In the context of this case however, this recording provides some insight as to how the father might react when he was angry or provoked. I find that such a reaction could be quite intimidating.

14. The other insight into this side of the father’s character arose from an incident where he was provoked by T saying, on his version, words to the effect of “I hope you die” in the context of them having an argument. The father, in a moment of uncontrolled anger, took three of the child’s personal electronic devices (her iPod, her phone, and either her iPad or her Nintendo) and, within the child’s hearing, “fanged” (to use the father’s word) the devices one by one from a balcony onto a concrete pavement below, irreparably destroying them.

15. In dealing with the issue where the mother was convicted of assaulting the father, the mother pleaded to the common assault of the father. On the basis of the information I have (being a letter from the mother’s lawyer to the mother), it appears that there was some negotiation in relation to the facts that were handed to the Court. A completed version of the facts sheet was not available and I consequently did not have it in evidence. There is an issue between the parties as to whether or not as a result of this incident the father sustained a broken nose. I have evidence that on the 8 July 2008, the father underwent a CT scan of his brain and facial bones. On the 28 July 2008 (approximately six weeks after the assault) a letter was sent from the father’s General Practitioner indicating the CT revealed the father suffered from a fractured nose. It was submitted that this exhibit was not relevant because there was no way of connecting that injury to the actual incident involving the mother. There is evidence that at times the father fought with other adult males (although not specifically around this time). Given the charge the mother eventually pleaded to, I am unable to conclude that the mother caused any injury that the father had to his nose. The mother accepts that she hit the father. I do not accept the mother’s protestations that, because the father had a black belt in a form of martial arts, the father’s allegations that the mother assaulted him were manufactured.

16. It is likely that the parties involved themselves in physical altercations where both parties were physical towards one another. It is likely that the mother is genuine in feeling she was oppressed by the father during the relationship. There is some basis for the feeling of oppression that the mother had. The mother, however, did herself at times behave aggressively.

17. There is no doubt that that much of the mother’s inappropriate behaviour after separation (which forms the basis of various AVOs being made against her) arose out of her unresolved feelings following the separation. As mentioned above, during her oral evidence, she indicated that she still didn’t really understand why the father left her and there had been no ‘closure’ from her point of view. There is no doubt that much of the vitriol that has been directed towards Ms S comes from the mother’s inability to deal with still unresolved feelings flowing from the separation. Dr N makes it clear that it is important for the mother to attempt to deal with these unresolved issues through counselling and the mother has agreed to an order that she do so.

Vilification and denigration between the parties

1. The parties and their extended family have a history of vilifying and denigrating one another.

2. After the parties separated the father alleges the mother commenced a series of ongoing abusive phone calls to the father and his brother and the paternal grandmother. He said she texted him with the words “I am going to break you, ruin you and fight you till you die” and “I will bring you to your knees”. She allegedly sent the same text to the father’s brother, Ms K, and Ms S.

3. On 3 November 2009 the father said the mother verbally abused him at a café and threatened him with the words “You would have a bullet in your head if it wasn’t for those two kids”. On that day, the mother admits approaching the father and Ms S in a café while they were protected by an AVO and saying to the father “Is your hag going to feed the kids when all the money’s gone?”, and “You’re a bully. You won’t be shooting anyone in my house”, amongst other angry comments.

4. The mother admits leaving angry voicemails immediately following separation. She admits sending ‘a lot’ of angry text messages following the altercation between the father and Ms S’s ex-husband in 2009. Ms S’s affidavit annexed a list of approximately 40 abusive text messages sent to her by the mother over a period of two days. The mother says she now regrets sending these text messages.

5. The paternal uncle has given evidence of the abuse and threats received from the mother, the mother’s brother and the maternal grandmother.

6. The maternal grandmother has also engaged in denigration of the father. Exhibit three consisted of a number of recordings of voicemails made to the mobile phone of the father and to the paternal uncle by the maternal grandmother. In these voicemails, the maternal grandmother makes derogatory comments about the father, the paternal uncle, the uncle’s wife, and the paternal grandparents. To put these telephone calls by the maternal grandmother in context, they were made very shortly after the children had been taken from their school by the father and the paternal uncle pursuant to orders made for the recovery of the children by the Local Court. 

7. In one particular recording in this series of recordings made on 20 February 2011 at 6:56 pm, a voice can be heard interjecting over the maternal grandmother whom the father alleges says the words, “evil evil little faggot” and screaming incomprehensibly at the end. It is unclear if the word “faggot” is used, but the words “evil evil” can be heard. There was a controversy during the case as to whether or not the second voice in the recording is the voice of the mother. The father says he was able to identify this voice as the mother’s.

8. The mother said that she wasn’t at the maternal grandmother’s home when this telephone call was made by her mother and that she had an argument with the maternal grandmother when she found out about her having made it.

9. The maternal grandmother’s evidence, which seemed to be quite spontaneous and genuine, was that her daughter wasn’t at home when she made this telephone call and that she recognised the voice to be that of her sister, who was also very upset. 

1. I have no difficulty in accepting that the maternal grandmother felt a high level of frustration and anger at what had happened when the children were taken from their school in Sydney under the recovery order issued by the Local Court and that the maternal grandmother herself accepted that the recordings were disgusting and offered in court an apology (of sorts) to the father.

2. I am unable to accept the father’s evidence that the second voice was the mother’s voice, or that he recognised it to be the mother’s voice. The father’s evidence was that after having initially heard the recording and replaying it on one occasion, he was able to say that it was the mother saying the words, “evil evil little faggot”. He says that he was able to recognise it because she had used that phrase on many occasions by way of a derogatory comment directed towards him over the years. There is nothing in his affidavit material that records this as a phrase that the mother had used. The father agreed that he went to his lawyers very soon after he received these telephone calls and gave instructions to make a complaint about them. The complaint is in the letter written by the lawyers, found at annexure B to the grandmother’s affidavit filed 28 April 2011. In that letter, the father’s lawyers write as follows:

   We are advised today that since Friday, our client has received numerous threats from members of [the mother’s] family. These include threats to kill our client, his brother … and his partner …. These threats have been reported to the police, the messages have been downloaded by the police and further action will follow.  Although, the threats were not made directly by your client, they were made by her mother, [R Green], and her brother ….

3. I find it implausible that the father would instruct his solicitors to make it clear in the letter sent that “the threats were not made directly by your client” if in fact the father had formed the view that the voice interjecting over the maternal grandmother’s on that particular voicemail was the mother’s voice.

4. I am prepared to accept the mother and the maternal grandmother’s evidence on this point; that is, the mother was not part of the sending of these messages and that in fact she was angry with the maternal grandmother when she found out that she had behaved in that way.

5. Counsel for the father criticised Dr N for treating the denigration between the parties as more or less equal. It was proposed that the evidence showed an ‘avalanche’ of abuse directed towards the father.

6. Whilst quantitatively there might be more evidence of the mother vilifying the father, I am not prepared to find that the father did not significantly denigrate the mother and her family. I have found the father to be intimidating and there is objective evidence (Exhibit 7 discussed above) about the form that that behaviour could take.

Harassment and provocation

1. Counsel for the mother throughout the hearing made the point that the father had been provocative by attending the children’s school on a daily basis, and if the father did not attend during the day, he would go to the general area of the mother’s residence and make contact with the children when they were playing outside the house.

2. The father wished to make the point that the children were left unsupervised in the street. By that description, the father was describing the children playing outside in the street in a nearby park. Ms S made reference to the child L playing in a gutter immediately after it had been raining (an activity not unknown to be attractive to young boys). It was not obvious to me that any of those activities were inherently unsafe for the children, and I do not accept the father’s assertion that the children were generally unsupervised during these times given that the maternal grandfather was present at the mother’s home at any time the mother was at work outside of school hours.

3. Whilst it is understandable that the father and Ms S, who were at that stage establishing a household, thought it might be appropriate for all three children to attend the same school, it was done without thought as to how the mother would perceive that in circumstances where there was a no contact AVO order made against her in Ms S’s favour. A similar comment applies to how the mother may have subjectively felt about the children all being placed in the only gym in town which was 100 metres from her home. Given the mother’s state of mind, subjectively, I accept the mother did feel harassed by the father’s constant surveillance of what was happening when the children were with her.

Instability and relocation

1. Since separation, the father has relocated six times and the mother has relocated to Sydney.

2. Around November or December 2007, the parties and the children moved from Sydney to I Street, X.

3. In April 2008, when the parties separated, the father moved to U Street, A. He gave evidence that he remained in this property for approximately six months. In October 2008 the father relocated to another property in A.

4. Around February or March 2009, the father moved to E Way, B. This property was approximately 30 minutes from the children’s school. In April 2009, Ms S and G moved into the B property with the father.

5. In January 2010, the father, Ms S and G relocated to a property in MK Street, A. This property was significantly closer to the children’s school, approximately two minutes away.

6. In June 2010, Ms S and G moved out of the MK Street property, but continued to reside in A.

7. In July 2010, the father moved to EE Drive, X. This property was very close to the mother’s property, only 500 metres away.

8. In January 2011, the mother and children moved into the maternal grandmother’s home in suburb C, Sydney.

9. In February 2011, the father, having obtained the recovery order, took the children back to the property in X.

10. Around December 2011 or January 2012, the father moved to the Central Coast. Around this time, Ms S and her daughter moved to the Sunshine Coast, Queensland.

11. During their interview with Dr N, the children commented on the various relocations. Dr N noted that despite having friends in the North Coast region, neither child had strong ties to the region, opining that “the instability and conflict they have experienced over the last three years appears to have prevented them from making strong identifications with their locale”.

12. I accept the children would have felt significant instability moving six times in the period between December 2007 and December 2011 when in their father’s care, and I accept Dr N’s opinion about the effect of this upon the children.

Assertions by the father about beliefs held by the mother not based in fact

1. Counsel for the Father invited me to make findings of fact regarding many of the mother’s allegations about the father and Ms S, specifically:

Ms S was a prostitute

1. The father’s evidence was that the child T had accused Ms S of being a prostitute. He also said that the mother approached him and Ms S at a café in A in November 2009, screaming “Why don’t you pay some child support instead of spending your money on that fucking whore of a girlfriend.”

2. In her affidavit, Ms S says that T said to her “Mum says you’re a prostitute.”

3. I find that it is likely these assertions about what was said by the mother (and echoed by T) are true. Annexure C to Ms S’s affidavit consists of text messages from the mother saying “u [sic] are a whore”, “Too busy fucking for a roof over your head” and “A whore is a woman who sleeps with a man for cash. I am having trouble seeing where your husband was mistaken.”

4. The mother’s difficulties in understanding how the separation took place are discussed elsewhere. The mother was not tested in cross examination about her current beliefs about Ms S. I find the statements made by the mother were made at a time when she was very angry at Ms S. The mother denied she had ever asked the children in the past 12 months “Is that skanky whore there?”. There is no evidence that Ms S has ever provided sex for money.

The father was a drug dealer

1. The allegation that the mother said this was never put to the mother in cross examination and I am unable to give the allegation any weight. 

The father and Ms S were both drug addicts

1. In her interview with Dr N, the mother alleged that the father ‘relapsed on cannabis, cocaine and LSD’ when the parties moved to the North Coast. During her cross examination, the mother conceded this view was based on what third parties had told her. Mr H’s evidence, if accepted, would have lent some weight to the mother’s allegation but as I have said, I am unable to give Mr H’s evidence any significant weight.

2. In cross examination, the mother admitted she sent a text message to Ms S’s mother “warning” her that Ms S was in a relationship with ‘a drug addict’ (referring to the father).

3. At the request of the Independent Children’s Lawyer, the father has produced three urinalyses, all of which were negative. The mother gave conflicting oral evidence on this point. When cross examined by the father, the mother maintained her view that the father has been addicted to drugs since separation. This view was based on the mother’s observation that the father continued to lose weight after separation and looked “quite sick.” When later cross examined by the Independent Children’s Lawyer, the mother said “[the father] has produced three clean drug tests, so I can only assume that he’s clean.”

4. The allegation that Ms S was a drug addict was not put to the mother in cross examination.

The father suffers from a personality disorder

1. In her interview with Dr N, the mother alleged the father suffers from Narcissistic Personality Disorder. She also alleged in her affidavit material that the father suffers from Bipolar Disorder.

2. Dr N indicated that, in his opinion, the father did not suffer from Narcissistic Personality Disorder or from Bipolar Disorder. The father’s treating psychiatrist, Dr O, also did not make those diagnoses. In spite of these expert assessments, during cross examination the mother maintained her view that the father suffers from Narcissistic Personality Disorder.

The mother’s insistence on describing the father as unemployed (rather than being self employed) was unreasonable

1. Dr N noted the mother ‘makes allegations that the father is…unemployed.’ During cross examination, the mother admitted she has told the children that the father is unemployed and I accept she holds that view.

2. The father insists he is self employed. The father, however, did not give any details about what time he spends in those endeavours or whether or not he obtains a living wage from those endeavours.

A drug raid occurred at the father’s premises

1. The mother told Dr N that the police had conducted a drug raid on the father’s premises. During cross examination, the mother revealed the daughter of a neighbour of the father told her a drug raid occurred in September 2010.

2. There is no record of any drug raid in the subpoenaed police material. When this was put to her during cross examination, the mother maintained her position that she believes a drug raid occurred.

The father walked out of a gutted house without any functioning facilities

1. In April 2008, the parties separated and the mother deposed she “had to move with the children into the [X] property where the kitchen and bathroom were unfinished and the house could not be secured due to the wall [the father] had cut out of the back of the house.” The mother also told Dr N that when the parties moved to the North Coast, “after gutting the house, [the father] walked out.”

2. During cross examination, the mother maintained her view that the house was “entirely gutted without even a back wall. It couldn’t be secured. There was no bathroom, there was no flooring and there were no doors.” She conceded she had not produced evidence that she had conducted $80,000 of renovations on the X property. She also conceded she had no photographic evidence of the alleged gutted state of the house.  

The father began an affair with Ms S before the end of the marriage

1. The father and Ms S maintain they met in August 2008 and commenced their relationship in late November or early December 2008. Both the father and Ms S deny they commenced their relationship before the father separated from the mother, or before Ms S had separated from her husband.

2. This allegation was not put to the mother in cross examination.

The father’s marijuana dependency

1. The mother told Dr N that when the parties separated, the father told the mother he was smoking 20 joints per day.

2. The mother was not cross examined on this specific allegation. She did however reiterate her belief that “the [father’s] cannabis use when we arrived in [the North Coast] in late 2007 escalated to an enormous degree.”

The father ‘hocked’ the mother’s wedding ring

1. In her affidavit, the mother alleges that she and the father agreed to ‘hock’ her wedding ring “by providing it as security for a $300 cash loan at Cash Converters to meet expenses, including the purchase of a school uniform for [T].” She asserts the father then spent this money on cannabis and alcohol.

2. During cross examination, the mother reiterated her belief on this point. She agreed she did not subpoena Cash Converters, and said “it’s quite difficult to get receipts off tattoo artists and drug dealers”.

The father had been putting down holding deposits then losing them

1. In his report, Dr N says the mother alleges post separation the father was “using all the money in their joint account and putting down holding deposits on properties and losing them.”

2. This allegation was not put to the mother in cross examination.

The father’s business partner was afraid of him

1. The mother told Dr N that the father’s best friend and business partner of 15 years was “pushed out” of the business the father and he were operating. The mother said to the single expert that “this person is so afraid of him that he will not make an affidavit.”

2. The mother was not cross examined on this allegation.

The father broke a number of the paternal uncle’s ribs

1. The mother told Dr N that the father and his brother have a “very tense relationship” and that the father “broke a number of [the paternal uncle’s] ribs a couple of months ago in a fight”.

2. In cross examination, the paternal uncle admitted he and the father had a physical altercation, fuelled by a large amount of alcohol. The paternal uncle admitted he received bruises from the fight, but denied any of his ribs, or any bones, were broken during the altercation.

The child T was “up and down” at school

1. In her interview with Dr N, the mother reported that T ‘has had quite an up and down adjustment to school.’ Dr N perused T’s school reports and notes “it is not clear from these reports that [T] has had such an up and down ride at school.”

   189.1.The father asserts that when the children returned to the North Coast after unilaterally being taken to Sydney by the mother, the children were warmly welcomed back by their classmates, re-enrolled in extracurricular activities and settled back in quickly.

2. The mother was not cross examined on this particular allegation. She was briefly cross examined on a comment T made to her about deliberately performing poorly in her school report. The mother could not recall her response.

The father wracked up $300,000 with Ms S on her mortgage

1. This allegation was never put to the mother in cross examination.

THE APPROACH IN CHILDREN’S CASES

1. The objects of Part VII FLA are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and  

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)  ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children

2. The principles underlying those objects (unless contrary to a child’s best interests) are:

   (a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)  parents should agree about the future parenting of their children; and

   (e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

3. Section 60CA FLA provides that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.

4. Section 60CC FLA sets out those matters which a court must consider in determining what is in the child’s best interests.

STATUTORY CONSIDERATIONS

1. Counsel for the father submitted there were two important issues in the case; firstly, the children’s views, and secondly, what the father described as alienation; what Ms S referred to as alienation syndrome (Dr N indicating in his evidence that, in his opinion, no such syndrome exists) and what Dr N referred to as the vilification of the father and Ms S to the children by the mother and in particular, the maternal grandmother. It is not, however, all of what I have to take into consideration, but certainly I accept that these are two of the most important of the section 60CC FLA considerations in this case.

Primary considerations

The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a) FLA)

1. It would be a benefit to the children if they were able to have a meaningful relationship with both their parents. What ever order is made about where the children should primarily live, the children would benefit from spending as much time with the other parent as is reasonably practicable.

The need to protect children from physical or psychological harm from being subjected to, exposed to abuse, neglect or family violence (s 60CC(2)(b) FLA)

1. It is the case that the children have been exposed to a level of family violence between their parents and to vilification by one parent of the other parent. I have no doubt this causes the children psychological harm. As discussed below, T said she felt safer in her mother’s household and “Dad gets really angry sometimes”. I accept T’s wish to live with her mother is driven by her experiences in the two households.

2. Ms S gave evidence she was told by the children that the mother ‘backhanded’ T in the face, but I do not have any further details about any such incident.

3. Given that both parents have behaved inappropriately in this matter, the second primary consideration does not weigh heavily in any party’s favour.

The additional considerations

Children’s views (s 60CC(3)(a))

1. The mother, father, and family consultant agree that T, who is aged nearly 12, says that she wants to live with her mother. T communicated her desire to spend more time with her extended (maternal) family in Sydney. T said when she told her father that she wanted to live in Sydney the father got ‘sarcastic’ and ‘really angry’. The father however says this is a result of inducements made by the mother.

2. In her interview with Dr N, T expressed she felt safer with her mother. When asked to elaborate, she said “Dad gets really angry sometimes.” Counsel for the father submitted this comment was a result of ‘coaching’ by the mother, and that when brought to the interview by her father, T’s position changed in that she did not identify any family member as being “really angry.”

1. It was accepted by both parties that for the current time and into the foreseeable future, their level of communication is so poor that I would be unable to confidently find that they would be able to reach a joint decision about a difficult long term issue in relation to the children if they held different views. If the parties were forced to make joint decisions, the spectre of further litigation is high, and accordingly one parent should have the ultimate ability to make a decision. This however should be after the other parent is informed about the nature of the decision that is being considered, given an opportunity to provide input, and for there to be an appropriate time for the parent who makes the decision to consider that input from the other parent.

2. The parties agreed that the parent who should have sole parental responsibility should be the parent with whom the children are ordinarily living.

EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME

1. Although I am not mandated to consider it, the ability of the parents to communicate and the distance they live away from one another, mitigates against an equal or substantial and significant time arrangement for the children.

CONCLUSION ABOUT BEST INTERESTS

1. Either party’s proposal allows the children to benefit from continuing to have a meaningful relationship with both their parents. I do not find that moving the children to their mother puts the children in such a corrosive environment that their relationship with their father would be lost. I do not accept that T’s views are a product of coaching. They are consistently held and increasingly stronger views. Not giving them significant weight is likely to lead to further litigation. The mother is more emotionally attuned to the children’s needs. Both parents have behaved quite badly in the past, particularly towards one another, and the mother’s behaviour has been reinforced by her own mother’s attitudes. The future of how the father and Ms S will manage their relationship in the future is in my view uncertain and may lead to the father moving again.

2. Neither party, nor the Independent Children’s Lawyer, suggested it would be appropriate to split the children. They should continue to live with one another. It follows that in the children’s best interests, an order should be made that both children should ordinarily live with the mother.

3. The children should also have as much time with their father as possible, consistent with the distance that the parents live apart and the need for the children to have holiday time with both their parents.

PROPOSED ORDERS

1. As set out earlier, both parties agree that during school term the children should spend each alternate weekend with the other parent. They did not agree on the method of transport. Each fourth weekend during school term the father proposed that the children travel by air to and from Sydney to Williamtown airport, on flights booked and paid for by the father. Although the travel time saved is probably only half an hour, it is a less onerous method of travel for the children and I think the father’s proposal provides a better option to the mother’s in relation to travel. Taking into account the vagaries of Sydney travel on a Friday afternoon, I accept that the mother should be given the extra hour of flexibility to ensure the children are able to catch the flight on Friday evening, and accordingly I shall make an order that the flight time on Friday afternoon not be before 6pm.

2. The father originally proposed that, in relation to term school holidays at the end of terms 1, 2, and 3, the children spend the whole of two of those school holidays with him and the whole of one of those school holidays with their mother in the event that the children live with their mother in Sydney. His reason for doing so was that it saved the children from having to do two trips from Sydney to the Central Coast in any one year. Dr N in his evidence indicated that he thought the mother’s proposal was preferable (that was to share each of the term school holidays), particularly given that on the father’s proposal, L would have no block time with his father for two school terms; Dr N expressing the opinion that that was not an arrangement that was best for L in particular. It is slightly unclear as to the father’s position (at final submissions) in regards to the school holidays through the year. I assume he maintains his position that the children should spend two whole school holiday periods with him out of the three school holiday periods. The consideration in relation to travel has lessened since the father has moved to the Central Coast. I accept Dr N’s opinion about what school holiday arrangement is best for L.

3. The father during his evidence indicated that if the children were enrolled in Saturday morning sporting activities he would be prepared to stay in Sydney and not go back to the Central Coast until after he had taken the children to those activities. I find it is in the children’s best interests to spend time with their father and sporting activities should not get in the way of the father being able to spend time with the children in the manner that he chooses. Having noted the father’s willingness to do so, I will make an order that allows the father on any particular occasion to exercise an option not to take the children to their Saturday morning sporting activities if the father on particular Saturday mornings wishes to make other arrangements which mean that the children would not be able to attend their sporting activities on that particular Saturday morning.

4. Telephone conversations between the children and the mother have been problematic in the past. I previously made some interim orders providing the children with some privacy when speaking to their mother. At the end of the hearing, the parties agreed that the children should be free to ring their mother at any time using their respective mobile phones. The parents should be able to ring the children at set times during periods when the children are with the other parent and the frequency of those telephone calls was not a matter of controversy.

5. Both parties agreed on a set of injunctive orders that were proposed by the Independent Children’s Lawyer along similar lines to orders I made on an interim basis designed to restrain the parties from involving the children in discussions about the detail of the outcome of the proceedings and designed to restrain the parties from denigrating and criticising the other parent in the presence of the children. The orders in relation to alcohol and drugs were made by consent.

6. The mother originally wanted overseas school holiday time limited to three weeks, but by the end of final submissions, she had agreed to a four week period. There was a suggestion during the hearing that overseas time should be limited to Hague convention countries but neither parent pressed that application by the end of final submissions.

7. Dr N agreed with the father’s suggestion that the mother continue therapy with her current counsellor. I will make orders to facilitate this. The therapy should continue until the counsellor is of the opinion that further sessions of therapy are no longer useful. The mother is to provide the father with a letter from the counsellor at the conclusion of therapy.

8. The parties consented to an explicit order that the parent with whom the children did not ordinarily live could attend school functions.

9. Both parties consented to the orders sought by the Independent Children’s Lawyer in relation to costs.

I certify that the preceding two hundred and fifty-nine (259) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 24 May 2012.

Associate: 

Date:  24.5.2012

SCHEDULE 1 – THE MOTHER’S PROPOSED ORDERS

1. That all previous Orders be discharged.

2. That the children of the parties’ marriage, [T Donnelly] born … July 2000 and [L Donnelly] born … April 2003 (the “children”), live with the Applicant Mother.

3. That the Applicant Mother have sole parental responsibility for the children provided that the Applicant Mother shall provide the Respondent Father with notice in writing if she is intending to make a decision for the long term care, welfare and development of the children, such notice to include:-

   a. The nature of the decision she intends to make;

   b. The reason for making the decision; and

   c. The date upon which the decision is likely to be made or implemented.

4. That the children spend reasonable time with the Respondent Father and, while the Applicant Mother is living in the Sydney Metropolitan area and the Respondent Father is living [on the Central Coast] or within a 250km radius from the Sydney CBD, the reasonable time which the children spend with the Father will be:

   a.    One half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years, with the parties to meet for changeover at … Train Station, at the commencement and conclusion of the Respondent Father’s care period;

   b.    During school terms from 6.30pm on Friday to 6.00pm on Sunday or 6.00pm on Monday if the weekend falls on a long weekend in each alternate week, the parties shall meet at the commencement and conclusion of such period at … Train Station;

   c.    On the weekend that includes Father’s Day from 6.30pm on Friday to 6pm On Sunday with the parties to meet at the commencement and conclusion of such period at … Train Station.

   d.    At such other times that may be agreed by the Applicant Mother and Respondent Father from time to time.

5. That notwithstanding any other Order, the children shall also live with the Applicant Mother at the following times:-

   a.    One half of each school holiday period being the first half in odd numbered years and the second half in even numbered years, with the parties to meet for changeover at … Train Station, at the commencement and conclusion of such period;

   b.    On the weekend that includes Mother’s Day from 6.30pm on Friday to 6pm on Sunday.

6. For the purposes of these Orders, school holiday periods shall commence from the day following the children’s final day of attendance at school and conclude on the day before the children’s first day of commencement at school.

7. That the Applicant Mother shall facilitate and encourage communication by the children with the Respondent Father at all reasonable times by telephone, in writing, and by other electronic means including but not limited to email and shall provide the children with privacy for the duration of such communications.

8. That the Respondent Father be at liberty to telephone the children at all reasonable times via the children’s mobile telephones.

9. That the Applicant Mother be at liberty to telephone the children at all reasonable times via the children’s mobile telephones when the children are not in her care.

10. That the Respondent Father be restrained from consuming any alcohol or any prohibited drugs during his care periods with the children pursuant to Order 4, to a level that would disable him from legally driving a motor vehicle and for 48 hours before the commencement of such care periods.

11. That the Applicant Mother be permitted to take the children on holiday overseas when the children are in her care for no more than a block period of 3 weeks duration [during final oral submissions this was amended to 4 weeks duration] in each year provided that the Applicant Mother provide to the Respondent Father with notice in writing as to her intention to travel overseas with the children, the proposed dates of travel, destination and place(s) where the children will be staying, such notice shall be given as soon as reasonably practicable but not less than 8 weeks prior to the date of proposed travel.

12. That the Respondent Father be restrained from taking the children out of the Commonwealth of Australia without obtaining the Applicant Mother’s prior written consent or an Order of the Court.

13. That within 7 days of the date of these Orders, the Respondent Father surrender all passports in the name of the children that are in his possession or control to the Applicant Mother.

14. That each party notify the other, as soon as practicable, of any medical emergency, serious injury or illness suffered by the children whilst with that parent.

15. That all communications between the Applicant Mother and the Respondent Father be via email and text messages to the email address and mobile telephone number provided by each party from time to time.

COSTS

1. That the Respondent Father pay the Applicant Mother’s costs of and incidental to these proceedings on an indemnity basis.

NOTATIONS

A. The Court NOTES the Applicant Mother will attend therapy as recommended by Dr [N] on page 47 of his report to the Court dated 19 August 2011 (the “Report”) and for those purposes the Report may be released to the Applicant Mother’s therapist.

B. Pursuant to section 65DA(2) and section 62B, 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 Facts Sheet attached hereto and these particulars are included in these Orders.

SCHEDULE 2 – THE FATHER’S PROPOSED ORDERS AT THE COMMENCEMENT OF FINAL SUBMISSIONS

1. That the children [T Donnelly] born … July 2000 and [L Donnelly] born … April 2003 shall live with the father.

2. That the father shall have sole parental responsibility for the said children but shall keep the mother informed of any major issues in relation to the children.

3. That the mother undergo extensive psychological therapy for a period of not less than six months from the date of these Orders after which period the mother must satisfy the Independent Children’s Lawyer that she has completed such therapy to the satisfaction of her treating clinician.  [The father amended this in final submissions during a discussion with me to: “That the mother undergo psychological therapy and/or counselling for such a period as the treating clinician of her choice deems appropriate, that treating clinician having been provided with a copy of the report of Dr [N].” He also indicated he sought a formal discharge letter to be sent to him when the mother had completed therapy to the satisfaction of her therapist.]

4. That subject to Order 3 the mother shall spend time at a recognised Children’s Contact Centre either in the Newcastle or Sydney area for a further six months. [During final submissions, the father indicated he no longer sought this order.]

5. That subject to the recommendations of the Children’s Contact Centre [As a consequence of indicating he no longer sought order 4, the father indicated during final submissions that there were to be no recommendations from a contact centre, but the mother was to spend time as follows] the mother shall spend time as agreed between the parents but failing agreement as follows:

   a.for one half of each December/January school holidays being the first half in even numbered years and the second half in odd numbered years with the changeover date to be calculated by counting the days from the first day following the end of the school term until the last day before school recommences with the changeover over time to be 12 noon (or as close thereto) on the mid-point day or the day the children are to be collected and delivered from the nearest McDonalds to the mother’s address.

   b.for one half of two out of three of the school holiday periods as agreed between the parents but failing agreement as follows:

   i.during the autumn and spring school holidays being the first half in even numbered years and the second half in odd numbered years with the children to be delivered and collected by the father at the nearest McDonalds to the mother’s address.

   ii.on the last weekend of each month from Friday at 7pm until Sunday at 5pm or Monday if Monday is a public holiday with the mother to collect and deliver the children to and from the nearest McDonalds to the mother’s address.

   c.That the mother shall be at liberty to communicate with the children by mail and/or by telephone each Monday, Wednesday and Friday between 7.00pm and 7.30pm.

[The father indicated that during school term, he also sought for the mother to spend time with the children every alternate weekend. He indicated that he would cover the children’s travel expenses.]

1. That the parent having the care of the children at the relevant time shall notify the other as soon as practicable of any serious illness or accident the children may suffer and these Orders shall act as an authority for the mother to discuss with any treating medical practitioner the child’s diagnosis, treatment and prognosis.

2. That these Orders shall act as an authority for the mother to obtain the children’s school reports, photograph order forms and for the mother to speak with the children’s teachers to discuss the children’s progress.

3. That neither parent shall denigrate the other or their partner or family in the presence of the children and shall immediately remove the children from the presence of any other person or family member so doing.

4. That both parties shall be restrained by way of injunction from consuming any alcohol to excess or any non-prescribed drugs during any time they spend with the children and for 48 hours before any such care period.

5. That the mother shall be restrained by way of injunction from smoking cigarettes in the presence of the children and shall ensure that at all times the children are not subjected to passive smoking by the mother or other persons.

6. That if the mother has not already done so she will immediately return the children’s current or expired passports to the father.

7. That in the event that the children’s passports are due to expire or are expired the mother shall sign all documents and applications and do all things necessary for the father to obtain passports for the children.

8. That in the event that the mother refuses or neglects to sign the children’s passport application with 21 days of the father’s written request then the father shall be permitted to make application for the children’s passports subject to the requirements of the Australian Government Department or Agency which issues or has the power to issue passports to and for [T Donnelly] born … July 2000 and [L Donnelly] born … April 2003 and that Department or Agency shall be permitted to dispense with the requirement for the mother’s consent for the children’s passports to issue.

9. That in the event that the father wishes to travel overseas for a period of no more than four weeks with the children he shall be permitted to do so upon giving notice in writing of his intention and upon his forwarding to the mother a copy of the return air ticket and itinerary.

10. That in the event that the children are travelling overseas and the time spent with the mother will be affected by such travel arrangements the father shall ensure that the mother has “make-up” time in accordance with amount of the “time spent” that is missed.

SCHEDULE 3 – THE INDEPENDENT CHILDREN’S LAWYERS’ PROPOSED ORDERS

1. That all previous parenting orders be discharged.

Parental Responsibility

1. That except for the matters set out in Order 3, the Father [Mr Donnelly] (hereafter referred to as “the Father”) and the Mother [Ms Green] (hereafter referred to as “the Mother”) have equal shared parental responsibility for making decisions about major long term issues in relation to the children [T Donnelly] born … July 2000 (hereafter referred to as “[T]”) and [L Donnelly] born … April 2004 (hereafter referred to as “[L]”).

2. That the Mother have sole responsibility for making decisions in relation to [T] and [L] concerning:

   a.Education; and

   b.Health;

   AND THAT such decisions relating to education and health are those that affect the long term health and well-being of the children.

1. That each of the Mother and the Father have liberty to disclose the details of these orders to all principals and teachers of schools that the children attend and to all hospital, medical, dental and other health professionals attended by the children.

[During final submissions after discussion, the Independent Children's Lawyer agreed that an order for equal shared parental responsibility was not in the children’s best interests in the circumstances of this case.]

Education

1. That the Mother have sole parental responsibility for the education of the children including the selection of the primary and high schools that [T] and [L] are to attend.

2. That in the event that the children [T] and [L] are to change schools at any further time after the making of these orders the Mother shall forthwith inform the father in writing:

   a.The reasons for the proposed change of school; and

   b.The new school [T] and [L] are to attend (including the address of the school and the proposed commencement date).

3. That the Mother authorise any school that [T] and/or [L] attends to provide to both the Mother and to the Father: -

   a.Copies of all reports of [T] and [L];

   b.Copies of any school photograph order forms; and,

   c.Any written reports from any school counsellor that the school provides to parents.

4. That the Mother authorises all staff members at the schools [T] and [L] may attend to discuss either child’s progress with the Father AND THAT these orders shall be deemed as the Mothers’ authorisation to any school [T] and/or [L] attends to do this.

5. That in respect of Order 3(b), other than in an emergency or other than for everyday childhood illnesses, before the first appointment for [T] or [L] on any medical practitioner, dental practitioner or other health professional and including any counsellor (other than school counsellor),

   a.The Mother shall advise the Father in writing of:

   i.Her proposal concerning the medical, dental or other health professional treatment;

   ii.The name of the proposed health professional;

   iii.What professional information or advice the Mother has received to date; and,

   iv.The date of the first appointment;

   b.The Mother shall prior to the first appointment authorise the health professional to discuss any matters with the Father;

   c.The Mother shall do all acts and things to ensure that the Father is provided with copies of any test results, letters, and any referrals that she receives from and by any such health professional within 24 hours of receipt of such material by the Mother; and,

   d.The Father be permitted to attend upon such appointments, such attendance or attendances to be at the sole discretion of any such health professional and such attendance may be in person or by telephone or other electronic device.

Health

1. That during any period during which [T] or [L] is with the Father, in the event that [T] or [L] is hospitalised or receives medical attention in an emergency or for everyday childhood illnesses, the Father shall:

   a.notify the Mother as soon as practicable (and in any event within two (2) hours by telephone or text) after [T] or [L’s] first contact with either the medical practitioner, medical centre or hospital, and also 

   b.provide the Mother with details including the details of the illness, injury, treating doctor and the prognosis and treatment of [T] or [L].

2. That during any period during which [T] or [L] is with the Mother, in the event that [T] or [L] is hospitalised or receives medical attention in an emergency the Mother shall:

   a.notify the Father as soon as practicable (and in any event within two (2) hours by telephone or text) after the [T] and/or [L’s] first contact with either the medical practitioner, medical centre or hospital, and also

   b.provide the Father with details including the details of the illness, injury, treating doctor and the prognosis and treatment of [T] or [L].

3. That the Father shall ensure the Mother is kept informed as soon as is reasonably practicable of:-

   a.Any medical problems or serious illness suffered by [T] or [L] while in the care of the Father;

   b.Any medication that has been prescribed for [T] or [L] while in the care of the Father.

4. That the Mother shall ensure the Father is kept informed as soon as is reasonably practicable of:-

   a.Any medical problems or serious illness suffered by [T] and/or [L] while in the care of the Mother;

   b.Any medication that has been prescribed for [T] or [L] while in the care of the Mother.

Live with

1. That [T] and [L] live with the Father as follows (and while the Mother lives in the Sydney metropolitan area and the Father is living [on the Central Coast] or within 250 kilometre from the residence of the other parent):

   a.During school terms from 6.30pm on Friday to 6.00pm Sunday or 6.00pm Monday if the weekend falls on a long weekend in each alternate week

   i.On the first of such alternate weekends in each school term the parties shall meet at the commencement of such period with the parties to meet for changeover at McDonalds … at the commencement and conclusion of such time;

   ii.On the second of such alternate weekends in each school term

   A.the Mother shall deliver the children to the Sydney domestic airport and ensure that they are placed on a prepaid flight (ordered and paid for by the Father) from Sydney to Williamtown Airport at the commencement of such period and

   B.the Father shall collect the children at Williamtown Airport and the Father deliver the children to the Williamtown domestic airport and ensure they are place on a prepaid flight (from Williamtown to Sydney) and the Mother shall collect the children at Sydney Airport and

   C.the Father shall be responsible for the children’s air travel  costs unaccompanied

   D.That unless otherwise agreed in writing for the purpose of such changeovers the commencement time for the flight from Sydney to Williamtown is any time after 5 pm and the flight from Williamtown to Sydney is to depart not later than 5 pm Sunday.

   b.For one half of each school holiday period, being the first half in even numbered years and the second half in odd numbered years, AND UNLESS OTHERWISE AGREED in writing the parties are to meet for changeover at McDonalds at … at the commencement and conclusion of such time;

   c.If Fathers Day falls on a weekend that the children would not otherwise be with the Father then from 6.30pm on Friday to 6.00pm Sunday on that weekend in addition to any other period.

   d.If Mothers Day falls on a weekend that the children would otherwise be with Father then the children live with the Mother from 6.30pm on Friday to 6.00pm Sunday of that weekend.

   e.The children live with the Father at such other times as may be agreed by the Mother and Father in writing from time to time.

   f.That otherwise [T] and [L] live with the Mother at all other times.

2. For the purpose of these orders, school holiday periods shall commence from the first day following the children’s final day of attendance at school and conclude on the day before the children’s first day of commencement at school.

3. That the Father will use his best endeavours to arrange for the children to attend any Saturday morning sporting activities that they are normally enrolled in during any weekend when the children are with the Father.

Communication

1. That both the Mother and Father shall facilitate and encourage communication by the children with the other parent, such communication to be at all reasonable times by telephone, in writing and by other electronic means (including but not limited to email) and shall provide the children with privacy for duration of such communications.

2. That the children be at liberty to telephone the parent with whom they are no living at all reasonable times via the children’s mobile telephones.

3. That for the purpose of these orders communication between the parents in writing shall also mean by texting or by email unless otherwise specified.

4. That each of the Mother and Father facilitate telephone communication with the children and the other parent by telephone:

   a.during school terms by the Father telephoning the children each Monday Wednesday and each second Friday (being the Friday when the children are not to live with the Father that weekend);

   b.during school holiday by the Father telephoning the children each Monday Wednesday and Friday when the children are living with the Mother;

   c.during school holiday by the Mother telephoning the children each Monday Wednesday and Friday when the children are living with the Father;

   AND THAT each parent shall provide the children with privacy for the duration of such communications.

Other Orders

1. That the Mother and Father each be restrained from discussing these proceedings with [T] and/or [L], within their presence or within their hearing and ensure as far as possible that no other person (other than the Independent Children’s Lawyer) discusses these proceedings with [T] and/or [L] or within their presence or within their hearing.

2. That the Mother and Father each be restrained from showing [T] and/or [L] any of the affidavits, any reasons for judgment, applications or reports prepared for the purpose of these proceedings (but may show them the final Court orders) AND THAT each parent be restrained from showing [T] and/or [L] any material annexed or exhibited to such documents.

3. That the Mother and Father are restrained from criticising or speaking badly of the other parent, or other parent’s family, including either parents partner and their child AND THAT this restraint be a restraint from doing such things in the presence of or the hearing of [T] and/or [L] and includes any written communication including electronic means of communication.

4. Both the Father and Mother shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or the other parent’s partner or family either to or in the presence of [T] and/or [L].

5. The Mother and Father notify the other not later than seven (7) days PRIOR to any change to their address, postal address, telephone contact number, email address, and shall include in the notification the details of such new address or number.

6. That both the Mother and Father be restrained from consuming any alcohol to a level that would disable either of them from legally driving a motor vehicle during the periods when the children are living with them.

7. That both the Mother and Father be restrained from consuming any prohibited drugs during the periods when the children are living with them.

8. That the Mother continue to attend upon her counsellor and irrevocably authorise her counsellor to inform the father in writing:

   a.that the Mother is attending upon her counsellor;

   b.when the Mother has concluded her attendances upon her counsellor;

   c.if the Mother fails to attend or cancels any such attendances on her counsellor organised with the counsellor; AND THAT

   the Mother be permitted to provide her counsellor with the two reports of Dr [N] and the reasons for judgment together with any final orders made by this court.

Passport and Overseas Travel

1. That the Mother and Father shall do all acts and things and sign all documents necessary to renew and/or replace [T] and/or [L’s] Australian passport upon the expiration of the validity of theirs passports pending [T] and/or [L] attaining the age of 18 years.

2. Unless otherwise agreed, should either the Father or Mother seek to take [T] and/or [L] out of Australia the parents agree as follows:

   a.So far as practical the occasions on which either parent takes [T] and/or [L] out of Australia are to coincide with [T] and/or [L’s] school holidays;

   b.The parent proposing to take [T] and/or [L] out of Australia shall give the other parent as much notification as possible of his or her intention to take [T] and/or [L] out of Australia and in any event will give not less than six weeks written notice of such intention;

   c.The parent proposing to take [T] and/or [L] out of Australia shall furnish to the other parent not less than four weeks prior to the proposed departure,

   i.an accurate itinerary to include a copy of the parent's and [T] and/or [L’s] airline tickets (if not electronic ticketing),

   ii.the departure date and return date,

   iii.the country or countries the parent and [T] and/or [L] will be travelling to,

   iv.the approximate date on which the parent and [T] and/or [L] will arrive and depart each country; and

   v.a contact number and address at which the parent and [T] and/or [L] can be contacted in each country.

3. On the occasions that the Father proposes to take [T] and/or [L] out of Australia, the Mother shall release to the Father within 14 days of that overseas travel [T] and/or [L’s] passport for the purpose of such travel, and within 3 days upon their return to Australia the Father shall return the passport to the Mother for her to retain in her safe keeping.

4. That the Mother and the Father be permitted to take the children when they are in that parents care for no more than a block period of four (4) weeks duration in each year.

5. That in the event that the children are to travel overseas and the time the children would live with the other parent will be affected by such travel arrangements the parent taking the children overseas shall ensure that the other parent shall have “make-up” time in accordance with the amount of time that is missed.