HAGOS & CADMAN

[2019] FCCA 3375

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAGOS & CADMAN [2019] FCCA 3375

Catchwords:
FAMILY LAW – Interim parenting – where the children have expressed strong views to live with the father – where concerns about the mother’s partner and mother minimises risk issues.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

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

Applicant: MS HAGOS

Respondent: MR CADMAN

File Number: WOC 118 of 2019

Judgment of: Judge Altobelli

Hearing date: 1 October 2019

Date of Last Submission: 1 October 2019

Delivered at: Wollongong

Delivered on: 2 December 2019

REPRESENTATION

Solicitors for the Applicant: Helen Volk Lawyers

Counsel for the Respondent: Ms Humphreys

Solicitors for the Independent Children's Lawyer: Acorn Lawyers

INTERIM ORDERS

1. The children X (born … 2007), Y (born … 2008) and Z (born … 2010) (‘the Children’) live with the Father commencing from the commencement of Term 1 2020.

2. Until the Children commence living with the Father;

   (a)X shall continue to live with the Father.

   (b)Y and Z shall continue to live with the Mother.

   (c)The Children shall continue to spend time with each parent and with each other in accordance with the Orders made 7 April 2015 and 14 February 2019 (varied on 11 March 2019 and 29 May 2019) save that in the forthcoming school holidays, the Children shall spend time with the Father in the second half of the holidays with the intent that the Children already be in his care when Term 1 commences in 2020.

3. From the commencement of Term 1 2020 the Children spend time with the Mother as follows:

   (a)Each third weekend of the school term from the conclusion of school on Friday until 7:00pm Sunday.

   (b)For the first half of each of the school holiday periods which commence in even numbered years, from the conclusion of school on the last day of term until 4:00pm on the middle day of the holiday period.

   (c)For the second half of each of the school holiday periods which commence in odd numbered years, from the commencing 4:00pm on the middle day of the holiday period, until 7:00pm on the Saturday before school resumes.

4. The Children spend time with the Mother on the weekend which includes Mother’s day, and any provision for the Children to spend time with the Father on that weekend is suspended.

5. The Children spend time with the Father on the weekend which includes Father’s day, and any provision for the Children to spend time with the Mother on that weekend is suspended.

6. For the purposes of changeover the Mother is to collect the Children from school on Friday and the Father is to collect the Children from C Shop on Sunday.

7. The Mother be restrained from permitting the Children to be in the presence of her partner, Mr D, unless she or another adult known to the children is also present.

8. The matter be listed for Final Hearing on dates to be fixed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 118 of 2019

MS HAGOS

Applicant

And

MR CADMAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about three children, X, born … 2007, now 12 years old, and his brother, Y, born … 2008, nearly 11 years old, and Z, born … 2010, 9 years old.  The Court must decide where they live, pending a Final Hearing.  This is a difficult decision to make and it involves assessing risk to the children, considering what weight should be placed on their views, trying to avoid the separation of the siblings, and managing the practical implications of the parents living a considerable distance away from each other.  Notwithstanding these difficulties, the Court did have the benefit of a Report provided by a psychologist. 

Background

1. The Mother is the Applicant in the substantive proceedings, but the Respondent in the Application in a Case that brought the matter back before the Court.  She is 41 years old, and currently lives with Y and Z in the City P area.  The Father is 46 years old.  He is the Applicant in the present litigation, but the Respondent in the substantive proceedings.  He currently lives with X in Town H, in the Region J region of New South Wales.  There seems little dispute that the parents live just under 400 kilometres away from each other and this represents a drive of between four and a half and five hours. 

2. The parents commenced their relationship in 2004 and separated in 2015.  On 7 April 2015 final consent orders were made providing for the Children to live with their mother, and spend time with the Father two nights each fortnight, and one afternoon.  Both parents have formed new relationships.  In 2016 the Mother commenced a relationship with her present partner, Mr D.  In 2017 the Father married his current wife, Ms A. 

3. On 23 October 2017 X commenced living with his father, at his request.  The parents agreed that X would spend each alternate weekend with his mother.  This does not appear to have taken place, and before the family report interviews that were held early in August this year, there had been hardly any contact or communication between X and his mother.

4. On 4 July 2019 the Father filed an Application in a Case in which he sought interim orders that all three children live with him, but spend time and communicate with their mother during school term, and school holidays, but only on the basis that the Mother’s partner, Mr D, not be permitted any contact with the children.  It was this present application that brought the matter back before the Court.  The precise minute of order sought by the Father in the interim proceedings is found in his Case Outline document filed 27 September 2019.  In short, he once again proposed that all the Children live with him.  He suggested that X spend time with his mother in accordance with his wishes, and the children spend time with their mother during the school term and during school holidays but again on the basis that Mr D not be permitted to have any contact with the Children.

5. The Mother filed a Response to the Application in a Case on 6 September 2019.  She opposed the orders sought by the Father.  She proposed that the parents have equal shared parental responsibility, that X continue to live with his father until 8 January 2020, but then commence living with his mother.  Y and Z would continue to live with their mother.  The Children would spend time with their father during school terms, and school holidays, as set out in the Mother’s order.  On a without admissions basis, the Mother proposed an order that she be restrained from leaving the children in the presence of Mr D unless she, or another adult known to the children, was present.

6. The precise minutes of order proposed by each of the parents is reproduced in the first schedule to these reasons. 

7. The children had the benefit of an experienced Independent Children’s Lawyer, Mr Williamson.  In short, and recognising that there was considerable doubt, he proposed that X continue to live with his father, Y and Z with their mother, and that the children spend time with each parent both during the school terms, and school holidays.  The Independent Children’s Lawyer proposed that the Mother be restrained from allowing any or all of the children to be left alone or in the sole care of her partner, Mr D.

Brief chronology

1. The Independent Children’s Lawyer produced a brief chronology of relevant events, drawn from the Affidavits of both parents.  This chronology is reproduced below as it provides a very helpful and balanced overview of the relevant facts:

   M1: Affidavit of Ms Hagos filed 8 February 2019

   M1: Affidavit of Ms Hagos filed 16 August 2019

   F1: Affidavit of Mr Cadman filed 13 February 2019

   F2: Affidavit of Mr Cadman filed 3 July 2019

DATE	EVENT	SOURCE
… 1973	The Respondent Father is born.	F1 paragraph 2
… 1978	The Applicant Mother is born.	M1 paragraph 2
2004	The parties commence their relationship.	M1 paragraph 4
… 2006	The parties marry.	M1 paragraph 4
… 2007	The child X is born.	M1 paragraph 5
… 2008	The child Y is born.	M1 paragraph 5
… 2010	The child Z is born.	M1 paragraph 5
24 January 2015	The parties separate.	M1 paragraph 4
7 April 2015	Final Consent Orders are made providing the children live with the Mother and spend time with the Father two nights per fortnight and one afternoon.	M1 paragraph 6
Approx. May 2016	The Mother commences a relationship with her partner Mr D.	M1 paragraph 9
… 2017	The Father marries his current partner Ms A.	F1 paragraph 6
23 October 2017	The child X commences living with the Father at his request. It was agreed X would spend each alternate weekend with the Mother, however the Mother notes X has spent little time with her since residing with the Father.	M1 paragraphs 29-30
… 2017	The Father's child B is born.	F1 paragraph 6
Approx. May 2018	The Father alleges Y disclosed Mr D hit him across the face.	F1 paragraph 10
June 2018 - November 2018	The Mother receives a series of text messages from X making comments about hating the Father's partner and asking the Mother not to tell the Father or they would "kill him."	M1 paragraph 41
October 2018	FACS commence investigating allegations that the children Z and Y had interfered with Mr D's daughters. Allegations are also made that Mr D's daughters were not being fed while in the care of him and the Mother and that they were being locked outside all night.	M1 paragraphs 47-50
November 2018	After spending time with the Father the children return to the Mother singing words to the effect "I will stab you with my chop stick, I will hit you with my wok, I will slap you like a fish and serve you in a bowl of rice." The children report X had made the song up about the Father's partner.	M1 paragraph 42
Mid-November 2018	The Mother is notified that the allegations have been substantiated by FACS and the home has been assessed as a high risk.	M1 paragraph 57
27 December 2018	Mr D receives a voicemail from the Child Protective Unit notifying him that sexual assault allegations have been made against him by his youngest daughter F.	M1 paragraph 61
25 January 2019	The Father collects the children while they are playing with a friend, without the Mother's knowledge. The Mother subsequently receives a message from the Father stating he will be keeping the children until the allegations in relation to Mr D are cleared up. The Mother subsequently makes numerous requests for the children to be returned. The Mother alleges that since this incident Z has been concerned about strangers and not able to sleep in his own bed.	M1 paragraphs 80 – 84 M2 paragraph 55
29 January 2019	Police attend the Father's home and conduct a welfare check.	F1 paragraph 43
30 January 2019	The Mother receives a call from FACS notifying her that allegations have been made by the children that Mr D slapped them on the face hard enough to leave a mark.	M1 paragraph 91
12 February 2019	The Father speaks to Mr D's ex-wife Ms Q who informs him their daughter F had disclosed that Mr D and her shower together and he makes her hold his private parts.	F1 paragraph 86
14 February 2019	Interim Consent Orders are made which provide Y and Z are to be returned to the Mother. The orders also provide that the children spend time with the Father each weekend from 6pm Friday until 5pm Sunday. The Mother is also restrained from allowing her partner Mr D to come into contact with the children.
17 February 2019	Y and Z are returned to the Mother.	Expert Report p 8
6 April 2019	The Father alleges the children disclosed the Mother said that if the children go live with the Father, she will kill herself.	F2 paragraph 30
April 2019	The Mother states she has not been able to speak to X since this date.	M2 paragraph 26
29 May 2019	Consent Orders made providing the children live with the Mother and spend time with the Father.

1. The difficult issues in this case emerge from this chronology.  There are issues in the Mother’s relationship with X.  There are potential concerns about the Father’s capacity to support X’s relationship with his mother.  Y made a disclosure to his father about Mr D hitting him across the face.  There were allegations that Z and Y behaved inappropriately with Mr D’s daughters whilst they were all in the bath together.  Mr D’s youngest daughter, F, made disclosures about Mr D sexually assaulting her.  The Father acted unilaterally in retaining the children, once he became aware of the allegations concerning Mr D.  The children were eventually returned to the Mother’s care but on the basis that the Mother was restrained from allowing Mr D to come into contact with the Children.

The material before the Court

1. The parties all relied on their respective Case Outlines and the Expert Report prepared by Ms K dated 15 August 2019.

2. In the Mother’s case, she relied on the following documents;

   a)Initiating Application filed 8 February 2019;

   b)Response to Application in a Case filed  6 September 2019;

   c)Affidavit of Ms Hagos filed 16 August 2019;

   d)Affidavit of Ms Hagos filed 6 March 2019;

   e)Affidavit of Ms Hagos filed 8 February 2019;

   f)Affidavit of Mr D filed 11 February 2019; and

   g)Notice of Risk filed 8 February 2019.

3. In the Father’s case, he relied on the following documents;

   a)Affidavit of Mr Cadman filed 13 February 2019;

   b)Affidavit of Mr Cadman filed 8 March 2019; and

   c)Affidavit of Mr Cadman filed 2 July 2019

4. The following documents were tendered as evidence during the course of these proceedings;

   a)The Expert Report prepared by Ms K dated 15 August 2019;

   b)Documents produced pursuant to subpoena on Monaro High School; and

   c)Documents produced pursuant to subpoena on New South Wales Police.

The Applicable Law

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

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

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

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

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

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

   (2)  The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

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

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

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

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

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

   (3)  For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)  to maintain a connection with that culture; and

   (b)  to have the support, opportunity and encouragement necessary:

   (i)   to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)  to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)  When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)  The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)  abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)  family violence.

   (3)  When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)  The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)  If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)  consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)  consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)  If:

   (a)  a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)  the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)  consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)  consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)  if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)  the time the child spends with the parent includes both:

   (i)   days that fall on weekends and holidays; and

   (ii)  days that do not fall on weekends or holidays; and

   (b)  the time the child spends with the parent allows the parent to be involved in:

   (i)   the child’s daily routine; and

   (ii)  occasions and events that are of particular significance to the child; and

   (c)  the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)  Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)  In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)  how far apart the parents live from each other; and

   (b)  the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)  the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)  the impact that an arrangement of that kind would have on the child; and

   (e)  such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

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

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

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

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

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

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

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

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

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

   …

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

   …

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

   (a) identifying the competing proposals of the parties;

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

   (c) identifying any agreed or uncontested relevant facts;

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

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

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

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

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

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

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

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

Documents produced on subpoena

1. Mr Williamson, the Independent Children’s Lawyer, provided in his Case outline a very useful summary of the material produced on subpoena.  Both parents agreed and adopted Mr Williamson’s summary of this material.  It is reproduced below:

   S5 NSW Police

   (i)Police interview with F 03/12/2018

   (ii)F again reported the boys placing toys up her private parts and Mr D making her touch his genital area.

   S6 Family and Community Services

   (iii)Home Visit with E and F 9/01/2019 – during the home visit F reported Mr D making her touch his genital area while in the shower on more than one occasion. F reported Z had witnessed this and reported the incident to the Mother. F also reported that while in the bath, "the boys put toys in [her] vagina and bottom." E also reported the Father attempting to put her hand on his penis while in the shower.

   S1 Family and Community Services

   (iv)Records detail a number of reports of sexual abuse perpetrated by Mr D as well as Z and Y against Mr D's daughters F and E (E).

   (v)20/02/2019 – Letter from FACS to Mr D and the Mother noting that while the reports were substantiated, E, F, Z and Y are not in need of ongoing Statutory Child Protection Intervention. The reason for this was that Y and Z were now living with the Father and Mr D's children were living with their Mother.

   (vi)02/10/2018 – Email from Ms L to unknown person. The Report notes the other attended CARHU on the same date and reported a number of disclosures by E and F. E reported being made to bathe with Z and Y and that Z placed his finger and toys in her vagina and bottom. E further disclosed that her Father and step-Mother (Ms Hagos) drink a lot. She also disclosed exposure to pornographic material while her Father's eldest daughter R was visiting.

   (vii)Summary of confidential clinical notes dated 1/11/2018 – A summary of clinical notes from September 2018 to January 2019 for E.  Reports Z poking pencils in her legs, sticking his fingers and toys up her vagina, Y punching her and being worried to go back to Dad's and not being able to eat for hours when she is there.

   (viii)20/11/2018 – F made disclosures to a mandatory reporter of sexual abuse perpetrated by Mr D, stating her Father made her touch his private parts. Subsequent reports also note F has since displayed trauma symptoms. Records from 17/12/2018 notes E had made consistent disclosures to the school counsellor (p 67 of 83).

   (ix)14/11/2018 – reported that F and E reported Y and Z calling them "bitches" and hitting them with rocks.

   (x)28/04/2010 – Contact Repot alleges Mr D's eldest daughter R has also made disclosures of sexual abuse by Mr D. During FACS interviews, Y and Z denied the allegations. During interviews, the Mother did acknowledge teaching the children how to do "shots" by pouring orange juice into a shot glass. Caseworkers nonetheless note Y and Z's basic needs appear to be met in the Mother's home and the home was clean and tidy.

   (xi)8/01/2019 – During an interview with caseworkers X reported not liking living with the Mother as Mr D drinks a lot. Y reported Mr D hitting him across the face.

Report of Ms M

1. The Court had the benefit of a Report from Ms M, a Forensic Psychologist.  Ms M Report is dated 15 August 2019 and became exhibit ICL1.  Whilst Ms M was not cross-examined, her evidence, nonetheless, remains both independent and expert. 

2. Ms M met with the Father, his partner and the three children.  She also met with the Mother, her partner Mr D, and the children.  She was able to observe the interactions between the children and the parents and their respective partners.  The Father presented as holding fears for the safety of Y and Z, around Mr D.  The concerns were based on allegations of Mr D’s inappropriate and harmful sexual behaviour towards his other daughters.  He was also concerned that Mr D had hit one of the boys. 

3. The Mother presented as being concerned about the siblings being separated, and the fact that she was not having any contact with X. She considered her relationship with Mr D stable, and acknowledged that there were times when Y and Z’s contact with her coincided with Mr D’s contact with his two younger children, and they thus began to spend time as a blended family.  She did not observe any inappropriate or problematic behaviours when the children were together.  She was aware of the allegations concerning Mr D, noted that he had denied them, had concerns about the investigation into the allegation, but, ultimately, expressed no reservations to the Family Consultant about the children’s safety in his presence.

4. One focus of Ms M Report was to consider the risk of sexual harm posed by Mr D. She deals with this quite extensively at paragraphs 12-15.  She administered a number of tests. For example, she applied a test known as Static-99R and noted that his scores placed him in the low risk level of being charged with or convicted of a sexual offence. She reported that the rates of sexual recidivism for sexual offenders within the routine normative samples, who had the same score as Mr D, were between 1.4 per cent and 2.5 per cent over five years. She acknowledged, however, that the Static-99R does not measure all relevant risk factors and Mr D’s recidivism rate may be higher or lower than that indicated by the Static-99R based on factors not included in the risk instrument.

5. Ms M administered the test known as Stable-2007 and found that Mr D’s score suggested a low level of criminogenic needs relative to charged and/or convicted male sex offenders.  She applied a Structured Professional Judgment test that resulted in Mr D having no significant dynamic risk factors indicative of sexual offending;

   The following factors are protective against the risk of future offending;

   ·   No prior history of sexually abusive behaviour or allegations of sexual abuse

   ·   Mr D does not endorse attitudes and values consistent with sexual abuse

   ·   He does not have an antisocial interpersonal orientation and there were no obvious indicators of psychopathic personality disorder

   ·   Mr D does not present with substance abuse or mental health issues

   ·   Mr D does not endorse deviant sexual interests or have a history of hyper-sexuality 

   ·   He is not socially isolated, maintains positive peer friendships and is in an intimate relationship

   ·   Mr D maintains fulltime employment in a job he enjoys and believes he is well thought of by his employers.

   ·   Clinical assessment of Mr D together with assessment of his static and dynamic risk factors suggests he poses a low risk to sexually offend.

6. The Court has some concerns about the methodology adopted by Ms M in coming to the conclusion that he posed a low risk to sexually offend. Firstly, the results of the test are only as good as the information provided by Mr D himself.  Secondly, whilst Ms M records in her Family Report that she had available to her material from the Department of Family and Community Services, she does not seem to have integrated any of that material in formulating her conclusion that he posed a low risk to sexually offend.  In particular, Ms M makes no reference whatsoever to the disclosures made by Mr D’s daughter, F, about Mr D allegedly making her touch his genital area while in the shower on more than one occasion. Thirdly, the Report does not indicate whether the psychological tests administered had any mechanisms to gauge impression management by the person completing the test.

7. The Court acknowledges that Ms M presents as an expert in fields of sexual abuse and child protection. Nonetheless, it finds her conclusion unreassuring. Interestingly, it is possible that even the Mother found the Report unreassuring as one of the orders that she herself proposed, albeit on a without admissions basis, was that the Children not be left alone with Mr D.

8. Notwithstanding the above, Ms M’s Report is very helpful in terms of recording the observations between the parents and the children.  These were unquestionably positive.  In particular, and in relation to the Father, Ms M observed, at page 14:

   It is my view observing the conversations between Mr Cadman, X, Y and Z that the boys have a secure attachment relationship with their father and Mr Cadman is bonded to his sons. 

9. The same was true with regards the boys and their mother.  What was particularly interesting in this regard is the observations of X spending time with his mother, given that he had not seen her since Christmas Day 2018.  Whilst X was initially reserved in his mother’s presence, as time proceeded he became more and more interactive and more responsive to his mother’s comments. X was openly affectionate towards his mother as well. 

10. During these observations the Children were able to express their views.  X clearly wanted to continue living with his father.  He also said that he would like if his brothers lived there as well.  Y and Z, in the context of where they wished to live, indicated that they did not like Mr D. Z referred to him drinking, and Y to being slapped by Mr D.  When specifically asked whether Mr D got angry, both boys agreed they were afraid when he is angry, and did not want to be hit by him.  Indeed, Z stated that the day Y was slapped was the same day Mr D punched a hole in the wall. 

11. It is clear that the boys were conscious of the difference in their parents’ households.  They explained that “dad lets us do more things, but that mum helps.”

12. They noticed that ‘mum’ and ‘dad’ have different rules at their houses.  The boys had no recollection of anything odd happening in the bath. 

13. Y and Z were specifically asked, in the absence of their mother, what they thought about spending time with their mother and father.  Ms M records at page 17:

    Z immediately responded saying he wants to live with dad and see mum every second weekend and half the school holidays … Y agreed with Z saying he also wants to live with dad, but he wants to see his mum every second weekend, stay at her house and he wants to spend time with her in the holidays … he and Z agreed that half the holidays would be fair.

14. Y and Z confirmed that currently they see X at their paternal grandparents’ home on the weekends when they spend time with their father. 

1. Ms M concluded that all the children have meaningful relationships with both parents.  They would benefit from this relationship continuing, even though the parents are currently experiencing a high level of emotional conflict.  The major risk to the children seem to be associated with the ongoing conflict between the parents.  In relation to their views:

   X, Y and Z are articulate and sociable children who were able to express their views clearly.  Y and Z displayed some inquisitiveness about the report and made comments in relation to their mother and their father.  X, Y and Z have close, strong and positive relationships with both of their parents and indicated they want to live with their father, however, they also wish to spend time with their mother.

   It was my view they engaged positively and appropriately, appeared happy and spoke openly with both Ms Hagos and Mr Cadman. X was initially less willing to engage in conversation with his mother, however, he did so through adding to Y and Z’s comments. When it was time to go X appeared to impulsively hug Ms Hagos and was observed cuddling his mother in needful manor.

   The boys indicated they wish to reside with their father on the farm at Town N and to have fortnightly overnight contact with their mother with Z saying he wishes to spend half of the school holidays with his mother. The three boys spoke of their wishes to see their maternal grandparents regularly with  X commenting he has not seen them at all this year.

   It is my view that it is in X, Y and Z’s best interests to have substantial and meaningful contact with both of their parents

2. In relation to X, Ms M concluded that he misses his mother with whom he has an attachment relationship.  He appeared to have experienced some anxiety in being separated from her, but this seemed related to her relationship with Mr D rather than directly related to problems in the relationship with his mother.  Y and Z were securely attached to their mother but all three children needed meaningful time with both of their parents and any substantial separation from either parent would cause the three children emotional and psychological harm, and undermine their sense of security and safety.

3. Ms M acknowledged the substantial distance that separated the parents’ homes, and that this raised a practical difficulty in expense associated with the children spending time with or communicating with each parent.  Nonetheless, she was of the view, based on her assessment of the family, that both parents indicated their willingness to maintain a meaningful contact schedule for the boys with both parents.  Ms M also recommended telephone, FaceTime and text messaging to maintain a connection when the children could not see a parent face-to-face.

4. Ms M had no concerns about parenting capacity, or attitudes. 

5. In relation to the parents, she described them as: “articulate, educated people who appear capable of communicating respectfully with each other to resolve issues of concerns.”

6. Finally, and in relation to whether the Mother’s partner, Mr D, posed a risk to the children, she states:

   Mr D participated in a semi-structured clinical interview and his risk of sexual offending was assessed with static and dynamic risk measures.  His results on the Static-99R, the STABLE-2007 and the RVSP suggest his risk of committing a sexual offence falls in the Low risk range (there is not a “no” risk category).  This assessment of risk is supported by clinical assessment. 

   He has no prior or current diagnoses of cognitive impairment, serious mental illness (Schizophrenia), mood disorders (Depression or Anxiety) or a Personality Disorder (Borderline, Paranoid, Schizotypal or Obsessive Compulsive). He has never been an inpatient or referred for community mental health conditions.

   Mr D has no history of alcohol abuse and has never been referred for treatment in relation to drug or alcohol concerns.

   He has no history of general criminal behaviour and has never been charged or convicted of a sexual offence.

   He is vulnerable to current life stressors following allegations of inappropriate and harmful sexual behaviour of his daughters. Discussion with Y and Z did not identify concerns in relation to Mr D having engaged them in sexualised behaviour. I understand X has reported he does not like Mr D, however, I do not understand this to be a result of inappropriate sexualised behaviour. In discussion with Y and Z stated he knows the words “sexual abuse” from television news reporting on football players charged with sexual abuse matters.  Neither X or Z reactions in discussing their understanding of sexual abuse caused me concern. They spoke openly, did not manifest attitudes consistent with shame, harm or appear to have knowledge outside of their developmental age.

7. It is interesting that in the above section Ms M does not make mention of the allegations that Mr D hit Y. 

The Independent Children’s Lawyers submissions

1. The Independent Children’s Lawyer acknowledged the Father’s significant concerns for the safety of the children while in the Mother’s care, associated with her partner, Mr D.  He also noted Ms M’s actuarial assessment that Mr D is at a low risk level of being charged with or convicted of a sexual offence and that he presented with a number of protective factors against risk of sexual offending. 

2. The Independent Children’s Lawyer noted that Ms M’s Report supported the Father’s assertions that the children did not like living with Mr D and wanted to live with him.  Curiously, and without any clear explanation, the Independent Children’s Lawyer submitted that the children’s views should not be given significant weight, except as regards to X.  Insofar as it can be implied that the Independent Children’s Lawyer was concerned about lack of maturity in relation to Z and Y, it is not a concern that seems to have been noted by Ms M. 

3. The Independent Children’s Lawyer’s major concern seems to be that the children have already experienced significant change, both with regard to their mother’s relocation from Suburb S to Town T and then back to Suburb S, and then as a result of having been withheld by the Father earlier in 2019, for a period.  This contraindicated all of the children living with their father. 

4. Mr Williamson submitted that Ms M Report probably did not address one of the significant issues in this case and that is X’s estrangement or alienation from his mother. The difficulty in accepting this submission is that Ms M’s observations of the interaction between X and his mother is hardly consistent with the notion that he is alienated from his mother, but could be consistent with the notion that he is estranged from his mother given that Mr D was not present. Indeed, Mr Williamson submitted that X’s dislike of Mr D was palpable. Thus, indeed, making the estrangement hypothesis more plausible.

5. Mr Williamson submitted that the Mother’s proposal of X living with her was unrealistic.  She led little evidence to establish how this might actually be implemented, in circumstances where Mr D would remain a part of the household, even though the Mother agreed (on a without admissions basis) that the children would never be left alone with him.  Indeed, the Court notes, arguably the surest way of the Mother having an ongoing relationship with X was if he were to spend time with her without Mr D, but in the presence of the other children.  That is an unlikely scenario on the Mother’s proposal.

Submissions made in the Father’s case

1. Counsel for the Father emphasised his concerns about the risk of harm to the children in their mother’s care.  In each case the risk emanated from the Mother’s partner, Mr D. Y had disclosed to the Father that Mr D had slapped him across the face.  It is not an issue that received much attention in Ms M Report.  The concerns surrounding Mr D’s inappropriate, and possibly abusive behaviour, remained unanswered, despite Ms M Report.  The Mother’s failure to address the risks to the children emanating from her partner was itself a significant risk consideration, on the Father’s case.

2. The Father’s case emphasised, by reference to the documents produced by the Department of Family and Community Services (as it then was)  the risk to the children in the Mother’s care given the father’s seemingly inappropriate behaviour to his own daughters.  Parallel to this were the allegations of the inappropriate behaviour between Z and Y, and Mr D’s daughters, E and F.

3. The material available from the Department of Family and Community Services was summarised in the Father’s case outline, and the relevant excerpts are reproduced below:

   FACS Report Summary:

   
   

   21/09/2018: It was reported during a conversation Ms Q (mother of F and E) had with F (5) and E (6) about their private parts (including vagina, bottom and boobies) and asked if anybody had touched them on their private parts. E replied “Z (8) touches my vagina and I don’t like it (during bath time”. E informed Ms Q she had not told her Father Mr D or step-mother Ms Hagos about the incident because she was scared of them both and that Mr D did not care about her or her feelings.

   FACS Report Summary:
   25/9/2018: E (6) disclosed that Z (8) and Y (9) stick toys and fingers up her and F’s (5) bottoms and vaginas and it hurts.

   FACS Report Summary:
   31.10.18: E told me that Y had punched her in the nose and also went to the garden and got live spiders and put them on her. One bit her. She tried to tell her Dad, but he said she was lying and put his fingers in his ears. She told me again about the bath and said that toys were put up her vagina and bottom and it really stung…she said that one night Dad came in to her room “Dad woke me up in the middle of the night and put me on the table and did something, then he put me back in bed.” … She also said that F was crying and screaming about what happened in the bath but when F told dad he said she was lying and to go and watch TV. E said that “Dad told me I had to watch TV or I wouldn’t get any food.”

   FACS Report Summary:
   19/11/2018 and on: F said to Ms Q that ‘daddy used to make me touch his private parts, he said touch it, touch it, touch it, touch it but I didn’t want to. I don’t want to talk about my private parts. It didn’t hurt him cause he’s a grown up. He liked it. I didn’t like it. I don’t want to talk about it cause I don’t want to have bad dreams. This is why I don’t want to go to dad’s. Why didn’t you ever call me, mum’.

   FACS Report Summary:
   20/11/2018: F (5) made had a clear disclosure to mandatory reported, of sexual abuse by her father Mr D, in saying, “Daddy used to make me touch his private parts. He said touch it, touch it, touch it, touch it. I used to touch his penis, I didn’t want to, I don’t want to talk about my privates or what happened to me privates parts. It didn’t hurt him because he was a grown up. He liked it, I didn’t like it.” … F said “that’s why I don’t want to go to dad’s house.” Reporter also said that F had told her father about the sexual abuse from Z and Y but he did not listen.

   FACS Report Summary:
   6/12/2018 – 13:00: Ms Q went on to say that F is now saying that what happened with Mr D actually did not happen in the current house. F also told Ms Q that Mr D told F to squeeze his penis tight when he made her hold his penis, using his hand to hold her hand on his penis. Ms Q said that F also told her that Mr D weeded on her in the shower and that Mr D had asked F if he could touch her private parts to which F said no. Ms Q stated that she has not stopped crying since F had denied the allegation to … (the sexual assault Police officer in Town U) as she still struggles to talk to others about it.

The Mother’s Case

1. These disclosures by the children are concerning, and the focus should quite properly move to the Mother's response to these disclosures.  What can be gleaned from her Affidavit is an attitude that just because the Joint Response Unit of New South Wales Police have rejected the claims of abuse against Mr D by his daughter, there is no risk of harm.  For example, in her Affidavit of 16 August 2019 she set out her discussions with one of the police officers involved in the investigation who, according to the Mother, explained that no charges have been laid against Mr D and no further action or intervention was required.  In the same Affidavit she emphasised the adverse impact on her of Mr D's exclusion from the home, and family life. 

2. In effect, the Father's case, whether implicit or explicit, was that the Mother was not sensitive enough to the potential risk of harm issues presented through Mr D.  In effect, the contention was that she did not take the risk seriously and, indeed, was dismissive.  She offered no undertaking, or order, for example, that would cause her to exclude Mr D from disciplining the children in any physical way, or using corporal punishment.  She says nothing about ensuring that Mr D's children and Z and Y do not share a bath together.  In short, the Father's case is that there are unaddressed issues of risk in the Mother's household that are more comprehensively addressed by the three children being united and in his care.

3. The Mother’s case also raised issues about the practical challenges of the children spending regular time with each other. She also believes that the children will lose their relationship with her if they live with the Father. The latter is inconsistent with Ms M’s observation and Report.

Discussion

1. There is substance in the Father's contentions.  The Court has actively turned its mind to whether the risk could be addressed by leaving the children in the Mother's care, but making orders restraining her, in terms of that set out above.  The difficulty seems to be, however, her lack of acceptance that there is any need for anything to be done.  She presented as passive in terms of risk management, and clearly not accepting that Mr D presented some risk, in all of the circumstances of the case. 

2. In this regard, the Court is well aware that in order 16 of her response to an Application in a Case filed 6 September 2019, the Mother does propose restraints in relation to her partner. What is of concern to the Court is that these restraints are expressed to be "without admissions", and in a context where it is apparent she does not believe any restraint is, in fact, necessary.

3. Indeed, when the Mother proposes a restraint in relation to her partner on a "without admissions" basis, the only reasonable interpretation that can be attributed to those words is that she, ie, the Mother, does not admit that there is a need for the restraint.  It could not be possible, for example, to interpret the order as the Mother not seeking to make admissions on behalf of her partner.  The Court finds the Mother's approach to risk management in this case to be problematic.

4. On balance, the Court believes that the order that is in the best interests of the children would be for the three boys to be reunited in the Father's care, and to spend as much regular time with their mother as is reasonably practicable in the circumstances.  They should also have generous communication with their mother through any reasonable means.  This addresses the risk of harm issues, reunites the siblings, and probably provides the best opportunity for X's relationship with his mother to be re-established because his time with her would be in the context of his brothers also spending time with her.  The order would be consistent with the children's views. 

5. It would be an order that brings about a substantial change in the lives of Y and Z, but even that can be mitigated by timing the change to coincide with the start of a new school year. The Final Hearing of this matter could be scheduled in 2020 in a manner that ensures that a final decision can be made in time for the commencement of the 2021 school year.

6. The Father proposes that the children spend time with their mother at the conclusion of weeks 2 and 6 of each school term, from Friday at 6:00 pm to Sunday at 6:00pm. Implicit in this order is that the children would spend time with their mother at her home. In addition, he proposes that the Mother be at liberty to spend another two weekends during the school term with the children, but in an area proximate to where they are living. In this regard the children could be collected from school on Friday, and returned at 6:00 pm on Sunday. The Father proposes that all school holidays be shared equally.

7. The Mother's proposal for the children to spend time with their father provides for each third weekend during the school term from Friday until Sunday.  She also proposes half of the school holidays.  In reality there is not much substantial difference between the proposals.  The Court prefers the Mother's proposal which ensures that the children would spend at least three weekends with their other parent during the school term.  The Father's proposal would ensure at least two weekends, with the possibility of two others.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  2 December 2019

Schedule One

Minute of order proposed by the Respondent Father

Interim:

1. That all previous Orders be suspended until further Order.

2. That the child, namely X born … 2007, live with the Father and spend time and communicates with the mother as per his wishes.

3. That the children, namely Y born … 2008 and Z born … 2010 (“the children”) live with the father.

4. That the parent whom the children are not spending time with be able to contact the children by electronic means including but not limited to Telephone, Facetime, Skype each day between 7.00 pm and 8.00 pm.

5. That the children spend time with the mother in school term time at the conclusion of weeks 2 and 6 from Friday at 6pm until Sunday at 6pm.

6. The mother is at liberty to spend time with the children during term time for up to an additional two weekends in the term in the Town H/Town N area or surrounds provided she give the father 14 days’ notice. The mother is to collect the children from school on the Friday and return them to the father at 6.00 pm on the Sunday at McDonald's Restaurant Town N or as otherwise agreed.

7. That the children spend time with the mother in the NSW gazetted school holiday periods for the first half at the end of terms 1, 2 and 3. The time will commence at 6pm on the last day of school and conclude at 6pm on the middle Saturday.

8. That the children spend time with the mother in the Christmas school holiday periods for the first half in even numbered years, and the second half in odd numbered years.

9. All changeovers, with the exception of Order 6 herein, are to occur at McDonalds Restaurant Town T.

10. If the time the children spend with the Mother in term time falls on a long weekend the time is extended to changeover at 6pm on the Monday.

11. If Mother’s Day does not fall on the Mothers weekend, then the children spend this additional weekend with her from 6pm Friday to 6pm Sunday.

12. If Father’s Day falls on the Mothers weekend, then the Mothers time is suspended, and she spends time with the children the following weekend from 6pm Friday to 6pm Sunday.

13. That at all times that the children spend time with the mother the mother be and hereby is restrained from permitting any contact between the children and her partner Mr D and she shall contact the New South Wales Police immediately should Mr D approach herself or the home during anytime the children are in her care.

1. That each parent be and hereby are restrained form denigrating or criticizing the other parent, or members of that other parties’ family or household in the presence or hearing of the children and each party shall use his/her best endeavours to prevent any third party from doing so.

Minute of order proposed by the Applicant Mother

PROCEDURAL ORDERS

1. That all previous parenting orders be suspended.

PARENTAL RESPONSIBILITY

1. That the parents have equal shared parental responsibility for the children of the relationship, namely X born … 2007, Y born … 2008 and Z born … 2010.

LIVING ARRANGEMENTS

1. That the child X live with the father from the making of these Orders until 8 January 2020.

2. That the child X live with the mother, commencing 8 January 2020.

3. That the children Y and Z live with the mother.

SPENDING TIME ARRANGEMENTS

1. That, pending further order, the children spend time with each parent as follows:

   a.DURING NSW PUBLIC SCHOOL TERMS:

   i.That, the child X spend time with the mother, from the making of these Orders, until the conclusion of the 2019 school year, each third weekend from after school Friday until 7pm Sunday (or Monday if it is a long weekend) commencing  the first weekend after the making of these Orders and each third weekend thereafter;

   ii.That the child, X, spend time with the father, from the commencement of term 1, 2020 each third weekend, commencing the second weekend in term 1 2020, (and commencing the 2^nd weekend in each school term) from after school Friday until 7pm Sunday (or Monday if it is a long weekend) PROVIDED that the father facilitates the children participating in any sporting or extra-curricular activities in which they are enrolled;

   iii.That the children, Y and Z spend time with the father, each third weekend, commencing the second weekend after the making of these Orders (and commencing the 2^nd weekend in each school term) from after school Friday until 7pm Sunday (or Monday if it is a long weekend) PROVIDED that the father facilitates the children participating in any sporting or extra-curricular activities in which they are enrolled;

   b.DURNG NSW PUBLIC SCHOOL HOLIDAY PERIODS:

   i.Unless otherwise agreed:

   1.the children spend time with the father for the first half of each of the school holiday periods which commence in odd numbered years, at the conclusion of the children’s sport on the first Saturday of the holiday period or 12noon if the children are not playing sport, until 4pm on the middle day of the holiday period; and

   2.the children spend time with the mother for the second half of each of the school holiday periods which commence in odd numbered years, commencing 4pm on the middle day of the holiday period, until the commencement of school on the resumption of the school term;

   3.the children spend time with the father for the second half of each of the school holiday periods which commence in even numbered years, commencing 4pm on the middle day of the holiday period, until 7pm on the Saturday before school resumes; and

   4.the children spend time with the mother for the first half of each of the school holiday periods which commence in even numbered years, from the conclusion of school on the last day of term until 4pm on the middle day of the holiday period;

   ii.For the purpose of facilitating these orders, the school holiday periods will be deemed to commence at the conclusion of school on the last day of term that the children are required to attend, and conclude at the commencement of school on the first day of the new term that the children are required to attend;

   c.That the children spend time with the father on the weekend which includes Father’s day, and any provision for the children to spend time with the mother on that weekend is suspended.

d.That the children spend time with the mother on the weekend which includes Mother’s day, and any provision for the children to spend time with the father on that weekend is suspended.

e.Such other times as the parties agree in writing.

SUSPENSION OF TIME

1. If the father is unavailable to spend time with the children pursuant to these Orders, that the father notify the mother, and the children will remain in the care of the mother that weekend.

CHANGEOVER

1. That changeover occur at 3pm on Sundays, given the distance the children will be required to travel;

2. That, for the purpose of effecting changeover, the parties meet at:

   i.The paternal grandparents home; or

   ii.C Shop, Suburb C; or

   iii.McDonalds Family Restaurant at Town O; or

   iv.As otherwise agreed.

10.For the purpose of facilitating changeover, the parties shall communicate by text message, not less than 3 days before the changeover, and, in lieu of agreement, the parties shall meet at C Shop, Suburb C.

COMMUNICATION

PARENTAL COMMUNICATION AND AUTHORITIES

11.That the parents communicate by text message or email, except in case of emergency, and shall limit their communication to matters pertaining to the care, welfare and development of the children.

12.That each parent keep the other informed of:

a.Any significant or serious illness or injury suffered by any of the children;

b.Any medical attention received by the children;

c.The identity and contact details for any medical service provider on whom the children have or are to attend;

d.Any specialist appointments recommended or made for the children with sufficient notice (except in the case of emergency) fort the other parent to be able to attend, should they wish;

e.Any significant sporting, social, educational or religious functions to which the children have been invited or are to attend;

f.The information required to enable each parent to have access to any school/parent information portal or sporting calendar.

13.This order operates as the authority of each parent to any medical, extra curricular or sporting service provider to the children, to provide such information pertaining to the care, welfare or development of the children to either parent as they may seek.

COMMUNICATION WITH THE CHILDREN

14.That the children have liberal and flexible communication with each parent at any reasonable time between the hours of 8am until 8pm by telephone, skype, facetime, or such other means of electronic or digital communication as is agreed and able to be facilitated with the parent wishing to communicate with the children, to contact the other parent or the child’s mobile

15.That the father, forthwith, provide the mother with X’s mobile telephone number, and inform her of any change to it, within 24 hours of such change occurring.

16.The mother discloses her mobile telephone number for the purpose of facilitating the children communicating with the father is ….

RESTRAINTS

17.That each parent be restrained by injunction from denigrating the other parent or any member of their family or household in the presence or hearing of the children and shall forthwith remove the children from the presence of any other person who does so.

18.That, without admissions, and pending further order, the mother be restrained from permitting the children to be in the presence of her partner, Mr D, unless she or another adult known to the children, is also present.

19.That the restraint in the ICL’s proposal be expressed to be without admissions.

SPECIFIC ISSUES

20.That the parents do all things necessary and sign all necessary documents to cause X to be enrolled to attend V High School, from the commencement of the school year 2020.