HALSTON & HALSTON

[2013] FMCAfam 16

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HALSTON & HALSTON [2013] FMCAfam 16

FAMILY LAW – Parenting – Live with and spend time with – competing applications – Independent Children’s Lawyer – best interests of children – consideration of parental responsibility – consideration of equal shared or sole parental responsibility – circumstances evident to rebut presumption of equal shared parental responsibility – application of objects and principles – with whom children should live and spend time – consideration of admissibility and probative value of recordings taken without the knowledge of one party to the proceedings – significance of concern as to mother’s capacity to foster relationship with father – capacity of each parent to provide for children’s physical and emotional needs – consideration of evidence of family reporter and counsellor – consideration of effects upon children if remain in current environment balanced against effects of change – significance of short-term as opposed to long-term consequences – consideration of means by which children were to have opportunity for meaningful relationship with both parents.

Family Law Act 1975 (Cth), ss.4, 60CA, 60CC, 61B, 61C, 61D(1), (2), 61DA, 65DAA(3), 65DAC, 65DAE

Lansa & Clovelly [2010] FamCA 80
AIF v AMS (1999) 199 CLR 160
U v U (2002) 211 CLR 238
Chappell & Chappell (2008) FLC 93-382

Applicant: MS HALSTON

Respondent: MR HALSTON

File Number: BRC 7322 of 2008

Judgment of: Coker FM

Hearing dates: 16 & 17 May 2011, 29 – 31 October 2012

Date of Last Submission: 31 October 2012

Delivered at: Townsville

Delivered on: 15 January 2013

REPRESENTATION

Counsel for the Applicant: Mr Taylor

Solicitors for the Applicant: RA Solicitors

Counsel for the Respondent: Mr Page SC

Solicitors for the Respondent: Emerson

Counsel for the Independent Children’s Lawyer: Mr McAuley

Independent Children’s Lawyer: Legal Aid Queensland

ORDERS

1. That all previous Orders be discharged.

2. That the Father have sole parental responsibility for the major long term issues for the children, X born (omitted) 2005 and Y born (omitted) 2007, including but not limited to the following:

   (a)the children’s education;

   (b)the children’s recreational and social interests;

   (c)the children’s religious and cultural upbringing;

   (d)the children’s health;

   (e)the children’s name; and

   (f)changes to the children’s living arrangements that makes it significantly more difficult for the children to spend time with each parent.

3. That the Father, prior to making the sole ultimate decision about any issue:

   (a)use his best endeavours to advise the mother in writing of the decision intended to be made;

   (b)seek the Mother’s written response in relation thereto;

   (c)consider, by reference to the best interests of the children, any such response prior to making any such decisions; and

   (d)advise the Mother in writing as soon as reasonably practicable of his ultimate decision.

4. That the Mother be responsible for the daily care, welfare and development of the children when they are living or spending time with her.

5. That the Father be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.

6. That the children live with the Father.

7. That the children spend time with the Mother at all reasonable times as may be agreed, and failing agreement, as follows:

   (a)Commencing Friday 1 March 2013, for a period of six months from after school Friday until 6.30pm on Sunday, each alternate weekend.

   (b)Commencing Thursday 5 September 2013, from after school on Thursday to before school on Monday, or Tuesday should the Monday be a public holiday or pupil free day, and each alternate weekend during gazetted school holidays;

   (c)Commencing from the end of Term 3 2013, for the first half of the gazetted school holiday periods in odd numbered years and for the second half in even numbered years;

   (d)In the event of the parties being in the same locality on Christmas Day and on Easter Sunday, then the parent not having the children in their care at that time, spend time with the children at times to be agreed between the parties in writing and failing agreement from 9.00am until 2.00pm on that day.

8. For the purposes of defining the first and second half of gazetted school holiday periods the following apply:

   IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS COMMENCE FROM THE EASTER LONG WEEKEND THEN:

   (a)The first half of the gazetted end of Term 1  school holiday period shall be from 5.00pm on the Thursday preceding Good Friday until 6.00pm on the following Saturday;

   (b)The second half of the gazetted end of Term 1 school holiday period shall be from 6.00pm on the Saturday following the Easter public holidays to 6.00pm on the Sunday preceding the recommencement of school;

   (c)The Easter long weekend, should it stand alone, shall be exercised in accordance with the existing weekend Orders;

   IN THE EVENT THAT THE TERM 1 GAZETTED SCHOOL HOLIDAYS DO NOT INCLUDE THE EASTER LONG WEEKEND THEN:

   (d)The first half of a gazetted end of Term 1, 2 and 3 school holidays shall be from 5.00pm on the Friday which follows or is the last day of school to 6.00pm on the Saturday of the middle weekend of such holiday period;

   (e)the second half of a gazetted end of Term 1, 2 and 3 school holidays commences at 6.00pm on the Saturday of the middle weekend of the school holiday period until 6.00pm on the Sunday preceding the recommencement of school;

   (f)the first half of the gazetted Christmas school holiday period commences at 5.00pm on the Friday following or the Friday on which school concludes until 6.00pm on the Saturday falling 22 days later;

   (g)the second half of the gazetted Christmas school holiday period commences at 6.00pm on the Saturday in the middle weekend of the Christmas school holiday period until 6.00pm on the Sunday immediately preceding the recommencement of school.

9. Should the children not be in the care of the Father on the Father’s birthday or in the care of the Mother on the Mother’s birthday, then the time to be spent with the children will be as follows:

   (a)If a school day, from after school  to 6.00pm;

   (b)If a non-school day, from 2.00pm to 6.00pm.

10. The parent not having the children in their care on the children’s birthdays spend time with the children as follows:

    (a)If a school day, from after school  to 6.00pm;

    (b)If a non-school day, from 2.00pm to 6.00pm.

11. Should the children not be in the care of the Father on Father’s Day or the Mother on Mother’s Day, then in that event the children spend time with the Father or the Mother on that specific day from 9.00am until 5.00pm.

12. Unless otherwise agreed between the parties, all handovers take place at school and if not a school day, then the parent or their agent who has the children in their care shall deliver the children to the other parent’s residence at the commencement of the other parent’s time and thereafter the parent with the children shall return the children upon conclusion of their time.

13. The parent whose care the children are leaving at the end of the school day must not attend the school at the end of the school day without the prior consent of the parent who is receiving the children into their care.

14. Each parent shall deliver and return the children’s school supplies, belongings and clothing in a clean condition.

15. Both parents may delegate responsibility, in writing, for delivery or collection of the children to another responsible adult known to the children and, prior to that responsible adult effecting delivery or collection, shall confirm the name of that person in writing to the other parent.

16. The parents communicate with the children by phone at all reasonable times as may be agreed and in particular:

    (a)Until 1 March 2013, the Mother each Saturday between 6.00pm and 6.15pm, with the Mother to be responsible for making the call and the Father to ensure the children are available to take the call in a quiet and private environment;

    (b)From 1 March 2013, the Mother each Wednesday and alternate Saturday between 6.00pm and 6.15pm, with the Mother to be responsible for making the call and the Father to ensure the children are available to take the call in a quiet and private environment;

    (c)During the school holidays commencing from the end of Term 3 2013, each Wednesday and Saturday from 6.00pm until 6.15pm, with the parent not having the children in their care to be responsible for making the call and the parent having the children in their care to ensure they are available to take the call in a quiet and private environment.

17. Both parents shall within 14 days enrol in and pay any necessary course fees for the Parenting Orders Program and/or Post Separation Parenting Course conducted by Relationships Australia, Foundations Child and Family Care or Relationships Australia and furnish proof of completion of the program to the other parent and the Independent Children’s Lawyer within 6 months of the date of these Orders.

18. The children are to resume psychological counselling with Ms G or another psychologist (or psychiatrist) agreed between the parent having sole parental responsibility for health issues and the Independent Children’s Lawyer.

19. The Independent Children’s Lawyer has leave to and must provide the psychologist (or psychiatrist) counselling the children with copies of these Orders, the Reasons for Judgment in this matter, the two Reports of Ms T, the Report of Dr W, the Report of Dr M and the Report of Mr P.

20. The parties shall share the cost of any counselling of the children.

21. The counselling of the children shall continue until Ms G or the other agreed psychologist (or psychiatrist) is of the opinion that it is no longer necessary.

22. The counselling may involve the participation of both parents at the discretion of Ms G or the other agreed psychologist (or psychiatrist).

23. That each of the parties ensures that the other party is promptly notified of any serious illness, injury, medical or like emergency suffered by either of the children including the name, address and telephone number of the relevant hospital or medical practitioner.

24. The parties shall notify the other of them in writing of any change in residential address and telephone contact details, including home and mobile telephone details, within 48 hours of such change.

25. These Orders shall be sufficient authority for each party to obtain from the children’s medical practitioner, health carer or counsellor any information or report regarding the children’s health, upon the request and cost of that party.

26. These Orders shall be sufficient authority for each party to obtain from the children’s school or child care centre any information and documentation regarding the children’s progress at school and include school reports, newsletters and school photographs upon the request and cost of that party.

27. That during the time the children are with either parent, that parent shall:

    (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;

    (b)speak of the other parent respectfully;

    (c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children; and

    (d)shall not discuss the issues in these or other Court proceedings between them or matters pertaining to Child Support in the presence or hearing of the children.

28. That the Father positively promotes the children’s relationships with the Mother and the Mother’s family.

29. The Mother positively promotes the children’s relationships with the Father and the Father’s family.

30. That each party shall be entitled to attend the children’s school from time to time for any sporting events, concerts and cultural events that parents are invited to attend.

31. The parties shall ensure that the children attend all prearranged sporting and extra curricular activities that fall during the time the children are in care of either parent.

32. That neither party shall physically discipline the children or cause anyone else to physically discipline the children.

33. As soon as reasonably practical after the making of these Orders, the Children are to have the arrangements for their living with and spending time with their parents explained to them by Ms T or a Family Consultant nominated by the Senior Family Consultant in the Brisbane Registry of the Court, with the parents to do all things necessary to facilitate this occurring.

34. Pursuant to section 65L of the Family Law Act 1975, a Family Consultant nominated by the Senior Family Consultant in the Brisbane Registry of the Court is appointed to assist the parents in complying with these Orders during the transition period and to supervise the Mother’s time with the children as they see fit.

35. The Independent Children’s Lawyer be discharged on 5 September 2013 unless there are further proceedings then before the Court.

36. All outstanding applications be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

BRC 7322 of 2008

MS HALSTON

Applicant

And

MR HALSTON

Respondent

REASONS FOR JUDGMENT

1. These proceedings relate to the parenting of two children, X, born (omitted) 2005 and therefore seven years of age and Y, born (omitted) 2007 and therefore five years of age.  The children are the children of Ms Halston, whom I shall refer to during these reasons as the mother and Mr Halston, whom I shall refer to during these reasons as the father. 

2. The mother and the father commenced residing together in or about February of 2003, married in 2004 and separated for what might be called, “the first time”, in December of 2007.  Their period of cohabitation therefore was a little short of five years.  It should be noted, however, that whilst the parties then divorced in May of 2009, some four months or so later in September of 2009 they attempted a reconciliation where they resided together for a period of about six weeks, finally separating on 18 October 2009 and remaining separate and apart thereafter. 

3. The parents have therefore been living separate and apart for a period approaching five years, with only that small six week period in or about the latter part of 2009, where they resumed cohabitation.  Since separation to the present time, the boys have primarily lived with the mother. 

4. The parties have had, what could only be described as a turbulent relationship.  There have been, during these proceedings, allegations and counter-allegations made by each of the parties in relation to what they contend were the failings of each of the other parents in relation to their roles, both as a parent of these boys but also in respect of dealings with each other. 

5. The mother has indicated a number of concerns in relation to the father, including what might be referred to as “issues” of domestic violence including perhaps, the more widely used definition now of domestic violence in that she says that not only was there at least one instance where there was a physical altercation between she and the father, there were also, certainly, situations of emotional and psychological abuse which arose from behaviours of the father directed toward her and also toward the children. 

6. The mother also, at a number of occasions, made reference to circumstances of drug abuse and the consequential difficulties that flowed, both financial and, no doubt, emotional upon the family as a result of the father’s actions. 

7. The father, for his part, indicates that there are concerns with what might generally be referred to as a failure on the part of the mother to appreciate or to recognize the importance of the father’s relationship with the children, and perhaps, in most general terms, to suggest that there is alienation of the boys from the father, because of this failure to recognize the importance of the relationship between the children and the father.

8. The matter is one, as I have said, in which there has been heated conflict between the parties.  A number of experts have given evidence in relation to the matter and to a man and a woman, there has been a general acceptance that the relationship between the parents, certainly since separation in the latter part of 2007, has been one which has involved high conflict between the parties and that, as a direct result of that conflicted relationship, the two children have been seriously effected.

9. As a result of the conflicted nature of the relationship between the parties, proceedings have been on foot for a considerable period of time, though there have been instances where, during the proceedings, there have been agreements reached in relation to the parenting of the children and, of course, in the longer term, the parties have been able to resolve issues with regard to property settlement as between them. 

   THE APPLICATIONS

10. The proceedings presently before me were commenced by the mother on 25 February 2010.  The mother detailed the orders that she proposed in relation to these proceedings, but as the matter drew to its final hearing on 29, 30 and 31 October, an amended case outline was filed in which she detailed the orders that she proposed should be made, in relation to the children.  Those orders, 1 through 14, contained within the amended case outline filed 25 October 2012, are in these terms:

    Parental responsibility

    1.That the Mother have sole parental responsibility in respect of the children, X born (omitted) 2005 and Y born (omitted) 2007.

    Orders for living with each parent

    2.That the children live with the Mother Ms Halston.

    Orders for spending time with the Father.

    3.That, in the event that the court finds that the Father has physically or emotionally abused the children, such orders as the court deems appropriate.

    4.That in the event that the Court does not make the finding referred to then the children spend time with the Father:

    (a)In week 1 each alternate weekend from 6:30pm Friday until 6:30pm Sunday;

    (b)In week 2 every alternate week from 6:30pm Tuesday until 6:30pm Thursday.

    Special Occasions/holidays

    5.   Unless agreed by the parties otherwise, that the arrangement as per Order 4 continue throughout the school holiday period.

    6.   Notwithstanding the foregoing:

    (a)   Should the Mother’s Day fall on a day when the Children would otherwise be in the care of the Father then the Father is to return the Children to the care of the Mother no later than 6:30pm on the Saturday immediately prior to Mother’s Day and the Children are to thereafter remain in the care of the Mother 6:30pm on the Sunday.

    (b)   Should Father’s Day fall on a day when the Children would otherwise be in the care of the Mother then the Mother is to return the Children to the care of the Father no later than 6:30pm on the Saturday immediately prior to Father’s Day and the Children are to thereafter remain in the care of the Father 6:30pm on the Sunday.

    7.   In the event that the Children are not in the care of a particular parent on the birthday of one of the Children then that parent shall be entitled to have both Children on that Child’s birthday for a period of three (3) hours, the actual times to be as agreed to between the parties.

    8.   In the even that the Children are not in the care of a parent on that parent’s birthday then the parent should be entitled to have the Children for a period of three (3) hours on that date, the times to be as agreed to between the parties.

    9.   As per agreement that the purposes of changeover, the Father shall collect the Children from the Mother’s residence or the (omitted) Petrol Station at the commencement of the time during which they will spend time with him and that the Father shall return the Children to the Mother’s residence or the (omitted) Petrol Station at the conclusion of the time during which they spend time with him and failing agreement all changeover shall take place at the (omitted) Petrol Station.

    Additional Orders

    10. That each parent will keep the other informed regarding any medical emergency, urgency, or treatment administered to either Child whilst in the care of that parent.

    11. That each parent will keep the other informed in respect of the residential address of that parent and land line telephone number at all times, and where possible, provide to the other parent twenty one (21) days notice of any change to the current arrangement.

    12. That neither parent will remove the Children from the Commonwealth of Australia without the permission in writing of the other parent or by Order of this Court, in the event that a party does wish to travel overseas with the Children then that party shall where possible, provide the other party with thirty days notice of that intention and a copy of the relevant itinerary.

    13. That each parent shall be restrained from inappropriately physically disciplining the children whilst the Children are in that parent’s care.

    14. That each parent shall be restrained from denigrating the other parent to the Children or within the Children’s hearing, or permitting any other person to do so.

1. The father, similarly, filed a response in relation to the mother’s application and detailed the orders that he proposed as appropriate in relation to the matter.  The father’s final draft orders were contained as annexure A to his amended case outline filed on 23 October 2012.  Those orders, 1 through 31, are as follows and are annexed hereto and marked with the letter “A”. 

2. In light of issues of complexity and the very real concerns arising from the evidence of both parties that there may be issues which would properly require the independent representation of the children, an independent children's lawyer was appointed in relation to the matter and the independent children's lawyer also filed, on 23 October 2012, an amended case outline, which included the following statement:

   The independent children's lawyer reserves their position until the conclusion of the evidence in this matter.

   The outcome in this matter which best promotes the best interests of the children in this case depends heavily upon findings of fact.

3. It was understandable, in light of the very different positions taken by each of the parties in relation to this matter, that the recommendations, if any, that might be made on behalf of the independent children's lawyer would be recommendations which would only be able to be formulated once much of the evidence had been able to be tested, in relation to the proceedings.  It was, however, the case that a draft order was provided to the Court at the conclusion of the second day of the resumed hearing, 30 October 2012, and in fact, a further amendment was provided to the Court on 31 October 2012 which detailed, at some length, the orders which were suggested by the independent children's lawyer.  Those orders, 1 through 33, are annexed hereto and marked with the letter B. 

4. It should be noted, however, that whilst that second draft was provided in relation to this matter at the commencement of the final day of the second stage of hearing of the proceedings, evidence fell in relation to the matter which gave rise to concerns on the part of the independent children's lawyer, such that the recommendations which were made were varied, orally, by counsel for the independent children's lawyer.

5. In the end, those proposed orders were varied, slightly, in relation to a number of respects which can be noted as follows:

   i)That the father have sole parental responsibility in relation to decisions with respect to the children’s health and education but that the parents retain equal shared parental responsibility in relation to issues relating to the children’s names and any changes to them; the children’s religious and cultural upbringing and any changes which might significantly affect the ease with which either parent might be able to spend time with the children. 

   ii)Additionally, the independent children's lawyer was able to confirm that in light of the matters of concern which had been addressed by Ms T, the report writer commissioned by the independent children's lawyer, that it was appropriate that the boys should live with their father. 

   iii)The independent children's lawyer, in accordance with that recommendation, also then suggested that there should be, what might be called, a transition period or moratorium of between four and six weeks, during which the time the boys should live exclusively with their father, so as to enable them to adjust and settle into the father’s household, it being acknowledged that the father had not ever been the primary carer of the boys or certainly had not had principal responsibilities in relation to the time that the boys were spending with either he or the mother since the time of separation. 

   iv)The independent children's lawyer then submitted that the mother should have the opportunity to spend time with the children, again, in accordance with the recommendations of Ms T, such that, from after school Friday until sometime Sunday, and it was suggested by counsel for the father, in submissions, that that might be 6.30 pm, should remain effective for a period of six months and that thereafter there should then be opportunities for time to be spent by the mother, more in accordance with that which is detailed in the original proposed orders provided to the Court on the third day of hearing. 

6. In other words, the independent children’s lawyer adopted the recommendations of the report writer, particularly with regard to the mother not having any responsibility or obligations in relation to the children’s attendance at school, at least until such time as there had been the settling in period, to which I have already referred, as well as the six month opportunity for the mother to obtain counselling and therapy, which clearly would be appropriate in light of the concerns specifically expressed by Ms T in her reports and oral evidence in relation to this matter.

   THE EVIDENCE

7. As is obvious from the lengthy outline that I have provided in relation to this matter, the determination has been one of particular difficulty.  Obviously, the evidence of the parties is significant in relation to the determination of the proceedings but just as clearly, a number of other witnesses were required to give evidence, as well as other witnesses who provided evidence, either by way of affidavit or production of documentation in answer to subpoena, which was relied upon though not subject to scrutiny by way of cross-examination.

8. It would appear that the most significant issues that arise, in relation to this matter and in fact, it was commented upon by Ms T on a number of occasions, is the issue relating to each parties’ capacity to promote the other parent’s relationship with the children.  Ms T emphasised that on a number of occasions in her evidence and it was, to a very significant degree, the factor that was the thrust of most examination in relation to this matter, by counsel for each of the parties and for the independent children’s lawyer.

9. It was particularly significant in relation to the cross-examination of the mother and the father, as well as Ms T, who was required to give oral evidence but it was also noteworthy that it was relevant in relation to cross-examination of, until recent times, the children’s counsellor, Ms G, as well as peripherally, to the evidence given by the mother’s and the children’s doctor, Dr G. 

10. Before turning to their evidence, however, I should note the other evidence that was provided in relation to this matter, though not the subject of cross-examination.  From the perspective of the mother, evidence was relied upon from Ms R, who is the mother of the mother’s former partner, Mr S.  Ms R said in her affidavit of 15 April 2011 and her evidence was unchallenged, that she knew the mother and had known her since the mother was 16 years of age.  She deposes to her observations of the mother and perhaps understandably, being relied upon by the mother, makes positive statements in relation to the mother being a, “very caring, competent and loving mother to the boys” and indicates her opinion of her parenting as being an example of the mother having, “done an excellent job in raising them”.

11. Ms R notes that on no occasion had she ever heard the mother speak poorly of Mr Halston or any members of his family, nor had she heard the mother allow any other person to do so.  Ms R then details certain instances or examples of the parenting techniques, to which I have referred and also then spoke of criticisms of what were suggested to be contained within the report of Ms T.  I note however that whilst Ms R was not called in relation to this matter, Ms T was and she was not challenged in relation to the various statements which were suggested by Ms R to not accurately reflect her discussions with Ms T.

12. I obviously accept the evidence of Ms R in relation to this matter.  I must say, however, that I am little assisted insofar as the final determination of these proceedings, it being the situation that this evidence, like much that is, on occasions, given in proceedings relating to the parties, is more of the nature of a testimonial or positive reference in relation to the parenting of one of the parties or the other to proceedings and of course, does not necessarily assist in the final determination of the proceedings.

13. Similarly, an affidavit was provided by Ms W.  Ms W is a friend of the mother and notes that she was the bridesmaid at the wedding of the mother and the father.  She discusses comments made to her in or about December of 2007, in other words at the time of separation, by the mother, in which she indicated that she was unhappy in the marriage and had concerns as to hers and the boys’ treatment by the father.  She also details what she says were indications of an intention by the father to take his own life, following separation, though it does not appear that that was suggested to have been said direct to her.

14. Ms W also details an incident where she suggests that the father acted inappropriately at an occasion when she met with the mother, when the father beat the mother’s dog, noting that she, “believes the dog would have been severely injured”.  Of course, such a statement of belief without appropriate veterinary evidence is of little assistance in relation to this matter and the evidence of Ms W is, at best, similar to that of Mr S’s mother, Ms R, in that it details the observations from only one side in relation to the mother’s capacity to parent the children.

15. For what it is worth, however, I accept, for example, the statements contained in paragraph 13 of the affidavit, where Ms W says:

    I have observed Ms Halston with her boys on many occasions, she in (sic) an absolutely devoted and extremely loving and caring mother, she is always patient with the boys and always kind and understanding.  I doubt that I have ever seen anyone who is as good a mother is as Ms Halston is to her boys.

16. More significant, in relation to this matter, however, was the evidence of the mother’s former partner, Mr S.  Mr S had filed a number of affidavits in support of the mother, including an affidavit of 1 April 2011 and an affidavit of 4 October 2012.  The affidavit of 4 October 2012 is, of course, the affidavit much closer in time to the proceedings and noted a significant change in the circumstances of the relationship between he and the mother.

17. He noted that he resided with the mother and the two boys, X and Y, but that whilst they were in a relationship of an intimate nature, including cohabitation from February until July of 2009, they had subsequently ceased that intimate relationship, though continued to be close friends and to occupy the same residence.  As the evidence appears to have fallen in relation to that particular aspect of the matter, the home that is resided in by the mother and the boys is one that is owned by Mr S and that arrangement apparently continues.

18. Mr S’s affidavit of 4 October 2012 is a lengthy document.  He deposes to various observations, as well as dealings with the father and comments upon many such matters.  The affidavit is some 24 pages in length and annexes a number of documents, including an undertaking that was given by Mr S in November of 2011, relating to his agreement not to physically discipline either of the children.  Also annexed are various copies of emails, as well as an application for a domestic violence protection order, which had been filed by the father.

19. Most significant in relation to the proceedings, however, were transcripts of various recordings which had been made by Mr S, both of various discussions held by him with the father, as well as recordings that he had made of discussions, which had occurred between the mother and the father.  Those various discussions were referred to in his affidavit as ‘DS1’, ‘2’, ‘3’, ‘5’, ‘7’, ‘9’, ‘10’ and ‘11’. 

20. Much was made of those recordings and the fact that Mr S was not called for cross-examination. It was interesting that that stance was taken in relation to the matter, but in light of the position that was taken from the very beginning by counsel for the father, it was perhaps not unexpected that Mr S would not be required. 

21. An objection was taken to a number of the recordings, it being suggested that they were, to all intents and purposes, breaches of state legislation, in that Mr S was not a party directly involved in many of those conversations.  I ruled previously in relation to that particular aspect of the matter indicating that, in my view, the documents were not inadmissible as a result of that, it being clear that either by direct agreement or by inference it was known by the mother that the conversations between she and the father were being recorded and, of course, in circumstances where Mr S was involved, he clearly knew of the recording.

22. My greater concern arose in relation to the probative value of such recordings, balanced against the prejudicial nature of a recording where one of the parties to the recording is not aware that the conversation is being taped.  It is a matter which arises all too frequently, particularly in family law proceedings, and seems to have gathered support not only from parties to proceedings but also from legal representatives.  It would seem, clearly, to be an evidence gathering exercise and one that, in my view at least, holds little benefit for the party seeking to gather the evidence, but in fact gives rise to serious concerns as to the behaviours of the party who records such evidence. 

23. It is clear, for example, that a party knowing that there is a recording of evidence being affected will be on their “best behaviour”.  It would be rare for a person knowing that communications are being recorded to raise their voice, to use foul or abusive language or to make threats or to act in a way in which their words could be seen as intimidating or harassing. 

24. It is therefore clear that there is a limitation to the weight that could be put on such conflicting behaviours on the part of the party not aware of the fact that the recordings are being done, because the very nature of matrimonial proceedings, and those relating particularly to the parenting of children, are such that emotions are high and the behaviour of one parent, particularly if they seem almost to be disengaging from any exchange, can be as infuriating or as annoying to the other party, as behaviours to which I have referred, such as abusive language or raised voices. 

25. There is little weight that can be put on evidence gathered in that manner and, of course, when one is aware obviously of the emotional nature of communications between parents or other persons significant in proceedings, it is clear that poorly considered statements, abusive statements, even threatening statements are made, but in circumstances where there is little, if any, expectation that they would be acted upon. 

26. Statements such as, “I’ll use the proceedings to grind you down”, “I’m seeking vindication through these proceedings”, or even statements such as, “I’ll kill you”, cannot be seen in anywhere near the same context or seriousness as statements that might be made in other circumstances.

27. I detail my concerns in that regard because I was asked on a number of occasions to listen to the recordings that had been made in relation to these conversations involving the mother and the father and on occasion, Mr S.  I should note firstly, that the quality of the recordings, understandably perhaps when recording devices were not in clear view but perhaps muffled by shirts, clothing, furniture or in some other way separated from the conversation between the parties, effects the quality of those recordings.  They were of poor quality and inaudible in many instances.  Additionally there are difficulties with regard to extraneous noise and other static which affected what can be heard. 

28. More particularly, there are concerns that often arise with regard to tone or actions which are simply not able to be clarified from the recording itself.  To have a calm, composed voice on a recording asking a perfectly sensible or civil question does not necessarily reflect exactly what might have occurred.  Whilst I do not know here whether there were actions which may have been inflammatory, at least from the father’s perspective, it is clear that where there is not complete disclosure, such as an indication that this conversation is being recorded and even perhaps, more particularly, visual as well as audio recording, there is little weight that can be placed upon the recordings.

29. Reliance therefore upon so much of the evidence detailed in Mr S’s affidavit is, in my view, fraught with difficulties.  Additionally, Mr S was prepared to draw any negative inference that can possibly be drawn in relation to the behaviours of the father.  In that regard, for example, he makes reference in paragraph 28 of his affidavit to an incident on 20 July 2012, where he says:

    The father can also be heard to openly denigrate the mother, referring to her as “old”.  I recorded the whole incident.

30. What is clear is that the father was making a joke, a jest which was taken and should have been taken, in exactly that way.  Mr S using the recording for a purpose other than, I think, of a genuine reflection of communications between the mother and the father sought to draw adverse inferences in relation to the father.

31. As I have indicated, I am very much of the view that much of the evidence there is of little probative value, particularly when consideration is given to the prejudicial nature of taping of conversations without the knowledge of the other party and in any event, I am far more inclined to the view that Mr S would be definitely inclined to make suggestions adverse to the father than to make any suggestions which might be positive or even accurate, in relation to the proceedings.

32. I must say that I am also particularly troubled by the fact, that certain of the statements that have been made by Mr S, relating to what is suggested to be the inappropriate nature of the behaviours of the father are reflected 10 fold more seriously in comments that were noted by the report writer, particularly in the first report that was prepared by Ms T, and dated 1 February 2011.  There, Ms T indicated between paragraphs 338 and 365 the nature of various discussions she had with Mr S.  In particular, at paragraphs 362 through 364, Ms T notes the following:

    Mr S said “I wish I’d had someone like me in my situation (when younger), the only time the boys are happy is when they don’t have any contact with their dad.  Their contact should be stopped with their father.

    363.  Mr S said “I asked (omitted), do you want to see your father any more?  (omitted) said, “I only have to go one more time.  The policeman said I have to go three times, I’ve been twice I only have to go one more time.  The policeman says I have to go one more time.”  Mr S said, “Ms Halston says to X it’s the policeman who says he has to go to his dad’s because otherwise he blames her.”

    364.  Mr S said, “I asked (omitted) do you want to see your daddy one more time and (omitted) said no.”  Mr S said, “I felt so badly for (omitted).  He can tell others but nothing changes.”

33. One cannot imagine more damaging communications directed to a child the subject of proceedings than those very matters that are suggested by Mr S as being in some way helpful or comforting to the child.  The actions of Mr S in relation to this matter have, in my view, been matters of particular concern.  I should indicate also that whilst there appears initially to have been some appreciation by the father, of the involvement of Mr S in handovers, it is surprising that for a period in excess of another 15 months or so after that first report was issued, the father did not necessarily take any great objection to Mr S’s continued involvement in handovers.  I would have been unsurprised if the father had indicated, after sighting that first report, that Mr S was a most unsettling character to have involved in handovers. 

1. If necessary to make a finding as to who might have been acting in an intimidating manner, it being suggested by the mother and her supporters that the father was intimidating of her and by the father that Mr S was intimidating of him.  In light of the evidence that has fallen in its entirety in this matter I am much more inclined to the view that the behaviours of Mr S were disruptive to changeovers and were, if nothing else, intimidating in many respects of the father and his real desire to spend time with and to involve himself in the lives of these children.

2. On the part of the father, evidence was called from his medical practitioner, Dr S. Dr S filed two affidavits in relation to these proceedings, one on 13 December 2010 and another on 28 March 2011.  Dr S was supportive of the father and certainly indicated that from his medical experience at least, he has not seen the father harm the children nor observed the relationship between the father and the children other than being a normal and loving relationship. 

3. Interestingly, Dr S noted at paragraph 14 of the affidavit filed 13 December 2010, that he had had a conversation with the mother’s then doctor, Dr L and that Dr L had commented to him that he took what Ms Halston said, “with a pinch of salt”.  It would appear that that unchallenged evidence was also noted in the affidavit of 28 March 2011 and it is noteworthy that Dr S specifically denies the indications given by the mother that he had advised the mother that the father was on a, “suicide watch”.  The letter annexed to the affidavit of Dr S of 28 March 2011, a letter dated 11 May 2010, clearly indicates that to be the case. 

4. Again, I accept the evidence of Dr S in relation to this matter, at least, insofar as it assists with regard to his professional observations of the father, and, more particularly, his response to suggestions made by the mother. 

5. Additionally, the father’s mother, the paternal grandmother of the children, filed an affidavit on 28 March 2011.  Mr Halston there describes the relationship, as she observed it between the father and the mother, and also comments upon her relationship with the mother over time.  It appears certainly that the relationship was one which had its, “ups and downs”, and I draw no specific conclusions or findings in relation to such matters. 

6. What she does note, however, and what was unchallenged at paragraph 75 of her affidavit onward is the following

   75.    During these visits we have spent many hours observing the relationship between the children and their father and have been satisfied that the bond and love shown by both the children and their father towards each other is very strong, despite things that have happened between the father and the mother.

   76.    Mr Halston does not use any form physical punishment towards the children, nor does he abuse them in any way.

   77.    To the contrary, Mr Halston is very patient and spends considerable time and effort explaining their wrongdoing in an effort to educate the children on the difference between wrong and right. 

7. Additionally, Ms Halston goes on later in that affidavit to comment upon what, at least, she observes as an obstructionist attitude toward Mr Halston by the mother, instead of working with him, to ensure that the children are safe and happy and notes at paragraph 84:

   The children have made their concerns about living with their mother very clear to (omitted) and I and we continue to encourage them to love their mother.

8. I make the same comments in relation to the affidavit of Ms Halston as I made in respect of the affidavits of Ms R and Ms W.  I note the significant involvement that appears to have continued over a lengthy period of time between the father, the children and the paternal grandmother and accept the statements as accurate, in relation to her observations of the father’s relationship with the children and also perhaps, unfortunately, concerns that might have been noted in relation to the mother’s attitude to the father spending time with the children. 

9. Evidence was also provided in relation to these proceedings from various other expert witnesses, Dr M filed an affidavit of 8 April 2011 in which she annexed to her affidavit a report in relation to the Halston family.  In that report dated 31 March 2011, Dr M indicates that the report relating to Ms Halston led her to form the opinion as follows:

   As a result of my assessment, I believe that her diagnosis is adjustment disorder with symptoms of anxiety.  I believe that her dysfunctional childhood would predispose her to difficulties with interpersonal relationships and her history as an adult would tend to confirm this.  The incident of sexual abuse which she reported had the potential to cause post traumatic stress disorder, but she did not exhibit the criteria necessary for this diagnosis in her history to me. 

   I note that Mr Halston has stated that she’s a pathological liar and obviously my assessment was insufficient to determine whether or not this is the case.  However, I believe that the consistency between her account to me and the notes of her psychologist is supportive of the proposition that she was truthful in her account.  If it were established that this is not the case then the likelihood is that she suffers a personality disorder which may interfere with her parenting of the children, but my assessment did not reveal this.

   Essentially, therefore, I believe that the question of who was the more appropriate parent can only be revealed by establishing matters of fact, her diagnosis of adjustment disorder with anxiety would not preclude her competent parenting of her children.

10. Dr M was not required for cross-examination in relation to these proceedings, and I accept Dr M’s evidence in relation to the assessment made of the mother. 

11. Similarly, an assessment was attached to the affidavit of Dr W, which affidavit was filed 3 June 2010.  Dr W notes that he was engaged by the solicitors for the mother and the father to prepare a psychiatric assessment report in relation to the father.  That report is annexed to his affidavit and is followed by an addendum which was more by way of clarification.  In any event, the report of Dr W which is dated 18 May 2010 under the heading, ‘Responses to Issues’ is as follows:

    (1) is there any psychiatric disorder?

    ·     In my view, it is probable that there was an adjustment disorder in May 2007 of about two months duration. 

    ·    There is no other psychiatric disorder including mood disorder, oblique depression, oblique substance abuse disorder.

    (2) is there a need for any psychiatric treatment or psychological intervention?

    ·    There is no need for Mr Halston to receive psychiatric or psychological intervention

    (3)  From any psychiatric perspective, are the children, because of him?

    I should note there that the actual question that was asked of Dr W related to the children’s safety with him.  Dr W, in the dot points following, noted:

    ·    From a psychiatric perspective the children are safe with him.

    ·    In my opinion, if it is indeed the case that he has had a healthy attachment with the children, which it appears to be, it would be damaging for the children not to have regular contact with Mr Halston.

12. Again, Dr W was not required for cross-examination in relation to this matter and I should indicate that I was satisfied that Dr W had exercised all appropriate professional experience and qualifications, as had Dr M, in providing his assessment of the father.  Quite simply, neither Dr M nor Dr W were of the view that they could make any finding of concern in relation to each parent’s continued significant involvement in the children’s lives.

13. Following the first part of the hearing of this matter in May of 2011, it was agreed in draft orders that family therapy would be beneficial for the boys and, of course, the parents and would lead, it was hoped, to some agreed resolution, in relation to the future parenting of the children.  As a result of that steps were taken to involve Mr P, a clinical and forensic psychologist, to assist the parties with family counselling.

14. Mr P swore an affidavit in relation to the family therapy and counselling that he had provided in relation to this matter and that report is annexed to his affidavit of 23 October 2012.  The report is, in fact, dated 24 November 2011, though no doubt it was brought to the attention of the parties and the independent children’s lawyer at the time that the report issued, in November of 2011.  Mr P makes a number of comments in relation to his diagnostic testing and assessment of the parties and noted, perhaps most significantly, the following points.  At paragraph 15 onward:

    15.  The writer formed an opinion that a watershed had occurred between the parties in respect of residual trust; and that such occurred in Mr Halston’s estimation during the period where the children were reportedly “withheld with - from me for months”; and following alleged strategic “allegations being made about risk to the kids”.

    16.  Nevertheless, the writer noted during the joint session that Mr Halston appeared intermittently open to the possibility of parent-negotiated outcomes; although was observed to quickly retreat to a significantly defensive posture and particularly following any criticism being levelled towards him  by the mother.

15. Mr P noted in relation to the mother, however, at paragraph 19 the following:

    Mrs Halston typically presented as a reflective and articulate individual, who appeared committed to the therapeutic process and was by her own account “over the legal process”; however, also cast herself as a victim to the father’s history of “controlling and volatile behaviours”.

16. Mr P goes on in paragraph 20 to note that he formed the opinion that:

    Ms Halston was comparatively more committed to a process of exploring every possible means of establishing predictive co-parenting arrangements, however as with the father, also admitted to significant levels of mistrust of her former partner.

17. It was noteworthy, I thought, that in this initial commentary relating to the parents Mr P noted at paragraph 23:

    Ms Halston typically offered a selective history of events that she considered substantially informed this matter; and also in the writer’s opinion concurrently minimised her levels of responsibility within the history of hostilities.

18. Following his family counselling with the parties Mr P took a very strong stance in relation to how he thought he would be best able to assist these parties and noted at paragraphs 107 through 110 the following:

    107.  The writer was not prepared to continue with further joint sessions unless both parties were able to suspend legal proceedings and based on a professional judgment that without such suspension the identified residual capacity would not survive.

    108.  The writer notes that the mother was prepared to continue joint sessions under such condition, however, and following further consideration, Mr Halston took the position that such arrangement appeared prejudicial from his point of view.

    109.  In the writer’s opinion Mr Halston’s stance informed his significant commitment to achieving a legal remedy on behalf of the children; concurrent with an admitted “lack of faith and trust” in the parents’ capacities to negotiate reasonable care and contact arrangements. 

    110.  Notwithstanding, the writer believes that in the absence of any further joint sessions being able to be conducted as prescribed by the writer a timely judicial decision is required in the best interests of the children.

19. It is noteworthy that Mr P did form a view that a certain course should be followed and that the father was certainly more inclined to reject that particular course of counselling, without continued litigation, than was the mother.  But by the same token, it is clear that it was a precondition set down by Mr P as the counsellor and therapist, rather than a term or condition sought to be imposed by the father.  Whilst it is significant, but not determinative, that the father rejected this course though, as he explains in his evidence, it was a reflection of the continued difficulties that he says had been experienced for a period of almost four years, at the time that that report was prepared by Mr P.

20. I note simply that both parties participated to the best of their respective abilities, in relation to family counselling, but that unfortunately it has not been able to resolve the difficulties and issues that arose in relation to this matter. 

21. Before turning to the evidence of the parties and, of course, the significant evidence of Ms T, I should specifically note that the mother’s general practitioner, Dr G, was called in order to answer questions relating to documentation which had been provided by him, in answer to a subpoena.

22. Dr G, I thought, had little more to add in relation to the information provided in respect of this matter through his surgery’s notes, though I must say that I was somewhat troubled by some of the issues that seem to have influenced Dr G.  I noted previously, for example, that the father’s general practitioner had indicated that the mother’s previous general practitioner had taken some of her statements with, “a grain of salt”. 

23. Dr G seemed, however, to be more inclined to accept what the mother had told him, in relation to the father without, I thought, any real corroboration or basis upon which he could properly do so and as such had involved himself significantly in the matter to, unfortunately, I think, the detriment of this family unit.  In particular, when Dr G indicated that he had told the mother that the father had been aggressive he initially was unable to recall whether he had done so, but then indicated a little later that he may have raised that issue.

24. Troublingly, however, there was no record of the father allegedly acting in an aggressive manner toward members of the surgery staff, including a receptionist, other than Dr G’s recollection of having been told that the father had been aggressive.  And it was even difficult to get him to acknowledge that there was no notation to that effect, on his surgery files. 

25. More particularly, it was troubling that Dr G had he said, instructed surgery staff to advise the father that either he or the practice manager would contact the father to discuss issues, particularly with regard to whether a copy of court orders were held on the surgery files.  Dr G did not do so, but notwithstanding that possible provocation, it appears clear that the father did not react in an aggressive or overbearing manner. 

26. There is no evidence, for example, that he called the surgery or was abusive of Dr G, the practice manager or anyone else for not returning his calls.  I was not particularly assisted by Dr G in relation to this matter, and unfortunately, in the limited respects relevant to this particular aspect of the evidence, I gained the distinct impression that he had become significantly involved in the litigation itself.

27. Also required to appear in relation to this matter was the family counsellor who had been arranged for the parties, Ms G.  Ms G was a psychologist and had provided her file in relation to these proceedings.  She was, I thought, an impressive witness.

28. She gave me the impression that she was most professional, particularly with regard to family counselling, and emphasised the importance to the two boys, who were the real beneficiaries, or hoped-for beneficiaries of these proceedings, in having both parents involved in the therapeutic counselling process.

29. She was criticised in correspondence by the mother for, “forcing” the mother into joint therapy with the father, but in fact her evidence, which I accept, was to the effect that she did not push the mother into any such meetings or to be in the same room as the father and that there not been any complaint by the mother about such a therapeutic course being followed.

30. Ms G indicated that she encouraged both parents to be involved jointly in the therapeutic process but denied categorically that she had forced the mother to participate in such therapy.  More particularly, there was a concern expressed by the mother that Ms G had acted unprofessionally in speaking to the father outside of the confines of her place of business, and in fact the mother most specifically suggested that that had occurred at a gymnasium, she having been told that by the father.

31. The father denied that any such statement was made, but whether that was or was not the case, the greater concern arose from the fact that the mother simply accepted that statement, because it suited her to do so, without in any way of inquiring of Ms G, whether there was any truth in that statement.

32. Ms G gave evidence that she had not spoken with the father outside of a professional capacity, though she acknowledged that she had perhaps seen him, on one occasion, entering a shopping centre and that they had made eye contact and nodded to each other, in acknowledgement of that observation.

33. The mother could, and in my assessment should, easily have clarified the situation in relation to these proceedings, but was far more inclined to seek to achieve her own goals in relation to the future course of the parenting of the children.  More troubling still was the fact that the mother’s evidence appeared clearly to be to the effect that she had made complaints to professional associations, including that to which Ms G is a member, but Ms G had never been contacted by the association nor advised by the mother of any such complaint.

34. I must say, unfortunately, that I am inclined to the view that the mother had an ulterior motive in ceasing the involvement of Ms G in the therapeutic intervention required in relation to these two young boys, because the mother’s intent was to exercise far more direct control over the children than was considered by Ms G, or of course by the father, to be appropriate.  For example, and most particularly, Ms G sought determinedly to transition, as she put it, the boys back to the school that they had been removed from by the mother, but the mother failed to in any real way or at all set out to effect that arrangement.

35. I was assisted by Ms G’s evidence in relation to the matter and note particularly Ms G’s comments with regard to the termination of her involvement with the children being, as she said when asked, “dangerous for the children”.  She indicated that there was a concern there because she and the children had a trust and rapport that was developing and growing and that the mother’s actions were therefore directly of concern in relation to the welfare and best interests of the children.

36. Those indications relate to the witnesses in relation to this matter who were of course significant and important but paled in importance when compared to the position of the mother, the father and Ms T, as the report writer who had prepared two reports over a period of some 15 months, from February 2011 to May 2012, and who had also had the opportunity to consider documentation that had been provided in answer to subpoena up to the time of trial in late October 2012.

37. I turn, firstly, to the evidence of the parties, as it is important that it be considered in context before referring to the findings and observations of Ms T.

38. The mother appeared on two occasions to give evidence in relation to this matter, and interestingly and, I must say, unfortunately, they were nearly 18 months apart.  The matter initially came before the court in May of 2011, and on the second day of hearing, it was noted that there was a concern expressed by counsel for all parties that the matter would not be able to be completed within the three days that had been allotted for hearing, and in light of certain developments in relation to the matter, the independent children’s lawyer sought the opportunity to speak directly with the parties. 

39. What occurred then were lengthy negotiations in relation to the matter and, on the afternoon of the second day, interim orders were agreed which were to provide for the children living with the mother and spending time with the father, and there was then agreement with regard to the involvement of Mr P as a psychologist for the purposes of conducting family therapy.  It was anticipated and I understand hoped that there would be developments in relation to the matter of a positive nature, such that the matter would be resolved. 

1. The mother had given evidence on 16 May 2011 and was cross-examined by counsel for the father before the matter was adjourned.  When it resumed on 29 October 2012, cross-examination continued.  As I say, there was nearly a year and a half that passed between the continuation of evidence in relation to the matter.  Interestingly, many of the issues of concern on the part of the mother in early 2011 remained or had, in fact, increased by the final determination in the latter part of 2012. 

2. The mother wishes the best for her boys.  In many respects, that clearly has been beneficial for them, and they are obviously children with a close affiliation with their mother, and a very real love for their mother.  Unfortunately, there are also factors which are of concern, not the least of which are the most recent developments since the issue of the second report of Ms T, which had provided recommendations with regard to the two children living with the mother. 

3. The initial report of February 2011 had recommended that the children should live with the father.  I obviously will comment further in relation to those matters when discussing the evidence of Ms T in relation to this matter, but it is important to note that one of the factors that looms large in relation to these proceedings is, as Ms T put it, the capacity of each parent to provide for an environment where the relationship with the other parent is fostered and developed. 

4. She said at paragraph 407 of her first report, dated 1 February 2011, the following: 

   I am concerned about the significantly entrenched conflict between the mother and the father and the impact it is having upon these two little boys.  If the children continue to live with their mother, she could carry on undermining their relationship with their father, and their sense of safety and security in his home.  The mother and her support persons also appear to want to banish the father from the children’s life altogether.  I am concerned about the mother’s attitude to the father and her lack of insight into what she is doing to the children emotionally.  However, I do believe the children’s relationship with their mother is important and should be maintained, and the children need to spend time with her on a regular basis. 

5. It was in light of those very real concerns expressed by Ms T in relation to this matter that the first evidence of the mother, in May of 2011, was considered.  Cross-examination by counsel for the father seemed almost entirely to relate to the mother’s, and her supporters, negative views of the father and, it would seem inferentially, a position taken by her to the effect that the father’s involvement in the children’s lives would not be beneficial to them. 

6. The very first series of questions that were delivered by the mother’s counsel in May of 2011 involved questions which included suggestions that the mother had had ongoing difficulties with the father, since the relationship ended in 2007.  She was asked whether she had a number of what counsel referred to as, “enduring complaints”.  In relation to each of the suggestions raised by counsel, she acknowledged that that was correct.  These related to domestic violence perpetrated upon or toward her and the children, as well as concerns in relation to the father’s mental health and issues arising from that, as well as ongoing use of drugs and child pornography. 

7. The mother’s position in relation to the matter was basically to seek out any criticism or concern that could be made of or about the father, and to then rely upon that as a basis for precluding the father’s interaction with the children. 

8. It was acknowledged that, until the hearing in May of 2011, there had been three occasions where the children had been held over.  On each of those occasions, it would appear that the mother was relying upon one of those issues to which I have previously referred.  In fact, subsequently, there have also been occasions where the children have been held over, and it unfortunately appears to be something of a recurring theme, in relation to the proceedings. 

9. The mother was asked about issues of domestic violence. She had relied upon it repeatedly in relation to concerns with regard to the father and had obtained various domestic violence orders. When asked why she had not taken other steps in relation to the father’s domestically violent or threatening behaviour, she appeared to lay the blame at the feet of her lawyers, in particular noting that the legal advice had been to the effect that domestic violence orders would not be as effective in relation to she and the children as would be orders from a court exercising jurisdiction under the provisions of the Family Law Act.

10. It was, however, clear that the mother appeared to be fixated on domestic violence and expressing concerns for the welfare of the children which, with respect, would not appear to be able to be satisfied as arising from what she says was the extent of domestic violence within the relationship. 

11. Having relied significantly on issues of domestic violence in relation to the children and to her, the mother’s response to various questions, when clearly being challenged as to the genuineness of her concerns was troubling.  She was asked, for example, what she had told the Department of Communities, about violence that had been directed toward the children, and she responded, I thought rather tellingly, that she had told the Department of Communities about the father’s drug use.  When it was pointed out to her that that was not what she was asked, and that the question related to what she had told them about domestic violence, she was avoidant in her answers.  She indicated that she had informed the Department of Communities of the dangers that she felt the children were in if in the father’s care, as well as the need for her to protect the children from going to an, “unsafe environment”.

12. What was perhaps most troubling in this regard over and above the fact that the mother avoided answering the questions, in relation to such matters, was the fact that she became emotional and even teary, and asked, perhaps even by way of a rhetorical question, “What happens when I’m not there?”  It was an emotional plea, but unfortunately I do not believe that there was sincerity in that. 

13. It was troubling that when the mother became upset and asked this question, she immediately thereafter composed herself, and I gained the impression that it was a response designed far more to elicit a positive reaction from the Court, rather than one that genuinely reflected the concerns that she had. 

14. The fact is that the mother appears to have sought out every opportunity to hear negatives about the father, without there being any real basis upon which the concerns that she says she relies upon can be objectively corroborated.  There seems to have been repeated instances where the mother has said that domestic violence or other intimidating behaviours have occurred, but there is no particularity, and more specifically, there seems to be a lack of any real recording by organisations known to ensure that they record such particulars, such as police, medical practitioners, Department of Community’s officers and the like. 

15. More often than not, the mother says that notifications of a particular nature were given, but that independent inquiry or search shows that what the mother alleges to have been communicated is not recorded in the documentation that is provided.  There are a numerous instances of notifications relating to criminality, as well as domestic violence relating to the father, but the evidence seems almost universally to fall short of the serious indications that the mother says should be relied upon.

16. The mother in more recent evidence indicated, for example, that notification had been given to her of inappropriate behaviours by the father directed toward her doctor, Dr G, and his surgery.  It was clear, however, that whilst Dr G seems to have some recollection of circumstances where the father, it was suggested by the receptionist, had been aggressive in dealings with the surgery, there was nothing corroborative of that, and I am more inclined, unfortunately, to the view that Dr G has, to a significant degree, taken on the mother’s complaints and concerns, rather than to be an objective and independent reporter, in relation to such matters. 

17. What was more troubling in that regard, however, was that the mother was prepared to act in what could only be described as, an exaggerated manner, in that after she says she was advised of such behaviours, she then contacted the children’s school, she says, to protect members of the public, but it seems far more, in my assessment, designed to ensure that the mother had a basis upon which she could act in the manners that, in recent times, she has chosen to do. 

18. The fact is that in May of 2011, concerns were already being expressed about the genuineness of the mother’s wish to involve the father in the life of the children, and there were very real concerns that she was far more determined to find negatives in the children’s relationship with their father, than to perhaps acknowledge that either she was misinterpreting, knowingly or unknowingly, the nature of the relationship between the children and the father, or perhaps even more specifically, that the children were making comments to her which were designed to feed or reinforce her already preconceived views in relation to the father and the need for him to be excluded from interaction with the children.

19. The mother, toward the end of her evidence in May of 2011, was asked specifically about her behaviours in that regard and, in particular, to complaints about what she says was reported to her by the children, and, in particular, the child X.  She was asked whether it was a situation where, if the father reported that X or Y had told him something about her, that it was an untruth, but that if the children made a complaint or comment to her, then it must be genuine. 

20. Her response was telling.  She avoided answering the question specifically, but noted that the children were questioned about her when in the father’s care, but she did not, “hammer them for information about the father”.  Rather, she said that the information was simply provided, and noted, rather tellingly, that she, “believed the big things”, that were told to her by the boys. 

21. Of course, the fact is that the boys could just as easily, and do, exaggerate instances of small as well as big compass, and the mother was more than willing to accept the concerns that arose from such complaints, without any proper investigation or inquiry in relation to such matters. 

22. Her evidence in May of 2011 was given in light of the recommendations that were made by Ms T with regard to the children living with their father and having regular shorter visits with their mother.  It was also given in light of the concerns that Ms T expressed in paragraph 407of her first report to which I have already commented. 

23. What was troubling from my own perspective in relation to this matter was that on the second occasion that the matter came before the court, an entirely different set of recommendations were made by Ms T in relation to this matter.  She had come around, by the second report, to a view that it would be appropriate for the children to live with the mother.  And, in fact, Ms T had noted, at paragraph 281, a significant change in the mother’s approach and attitude:

    The mother appears to have benefited from the therapeutic sessions with Mr P.  She described how she has been able to link therapeutic work with Mr P with the work she has been doing with her psychologist, Mr H, over the past four years.  The mother is also a full-time student, studying for a diploma in (omitted), and she talked about links she has made from her academic work to herself and her situation.  The mother has also indicated that ‘I have learnt a lot through this’ (Family Law process), and she has made it very clear that she would prefer to reach a negotiated settlement with Mr Halston than go through the trauma of a trial.

24. Ms T then goes on, at paragraph 285, to note: 

    Where my initial report, dated February 2011, may have been a wake-up call to the mother to change, it appears to have had the opposite effect on the father, possibly giving him false positives.               

25. The concern that arises in relation to this matter is that, to use a sporting term, the mother, by May of 2012, was “on the front foot”.  She had the support of the report writer.  It was clear also that she had the support of the independent children’s lawyer, and yet, for some unknown reason, and it is troubling because of what was assessed at least at that time by Ms T as having been a genuine re-consideration of views, the mother seemed to take on a determined stance to further achieve her goals and to again, apparently, exclude the father. 

26. The evidence was littered with examples of the mother’s behaviours in that regard.  There appears, clearly, to have been a determined effort on the part of she and her partner, Mr S, to gather evidence.  And, of course, the great concern in that regard is that where tapes or other forms of recording are entered into with one party aware of the recording of such communications and the other party unaware of such communications, there is a disproportionate lack of balance in relation to the comments made by one party or the other, and little weight, in my assessment, that can be given to such evidence. 

27. But the mother determined to act in that manner.  At the very least, she was aware of Mr S’s intent to record communications of great length between her and the father, or Mr S and the father, and she acceded to such steps.  She also seems to have determined that, notwithstanding the very positive involvement of the children’s psychologist, she would not accept what appears on the face of it to have been very well considered and appropriate advice, but to act in a manner which could only be seen to be disruptive to the children, to their education, and most significantly in relation to these proceedings, to their relationship with their father. 

28. The mother took steps to change schools.  She failed to participate in reunification processes that were recommended by all experts involved in relation to the children’s return to their original school at (omitted).  The mother sought to enrol the children briefly at (omitted) State School, and acknowledged that she had not put the father’s information in enrolment forms, but that she had not been required to follow up with that, because the school had refused the enrolment. 

29. Subsequently, the children were enrolled at the (omitted) State School and particulars were provided in relation to at least the father’s biological involvement in the children’s lives, but there was, interestingly unfortunately and troublingly, an exclusion of information in relation to a means of communication with the father whilst emergency contacts included her friend, Ms R, and her former partner, Mr S. 

30. What occurred on or about 15 or 16 October 2012 took some prominence in these proceedings.  In particular, a situation arose where the father was to spend time with the children, but because of the intervention by Dr G, at least insofar as advising the mother as to what he had been told, he said, was aggressive behaviour by the father toward a receptionist at the medical centre, circumstances snowballed to the extent that the children were not at school for collection by the father, and positive steps were taken by the mother to preclude collection by the father at other times. 

31. Troublingly, there was an appointment already in place for the children to receive counselling on 18 October 2012, and it would appear that that had not been communicated in any real way to the father.  The concern that arose in relation to the matter therefore was that the mother had contrived a situation of difficulty at the school and for the boys, such that they did not attend school, and were then available to attend with her on Thursday at the counselling with an organisation known as (omitted). 

32. I was unconvinced entirely with the mother’s explanations about what happened in respect of those few days, and how it came to be that the children remained in her care.  She did little of a positive nature, but I think much of a negative nature, to avoid an opportunity for the father to have the children in his care at that time.  She went out of her way to have the children not attend school the following day, and then to have the children remaining in her care, so that she could attend the appointment with (omitted) that she had clearly arranged a significant time before, but had not advised the father about. 

33. The mother was quick, I thought, to contrive a situation where she had the children in her care and was then able to have her own way in relation to arrangements with regard to the children and any time with the children. 

34. Such circumstances repeated on a number of occasions throughout the last few months leading up to the resumption of the hearing in late October of 2012.  The impression I unfortunately gained in relation to this matter was that the mother had, if Ms T’s assessment in May was correct, fallen back into ways which specifically failed to recognise the importance of the father in the children’s lives, and was a determined action on her part to exclude the father by way of any means available to, her from interaction with the children.

35. The recording of evidence in relation to proceedings loomed large, it seemed, from the perspective of the mother and her legal representatives in relation to this matter.  I have already commented at some length about the concerns that I have in relation to the recording of evidence of that nature, but it was noteworthy that the father, when cross-examined about the words that the mother used, was able to emphasise that the mother had used a tone and body language that was directly influential upon the children, and was in no way a reflection of the words that were recorded on the tape. 

36. I thought the father was genuine in that regard and I observed that during much of the evidence that was given by the father, particularly when he was explaining his concerns in relation to such matters, the mother presented an almost entirely blank visage. 

37. There was no life at all in the mother’s appearance.  She seemed to be flat and a similar impression was given when evidence was being taken from Ms T, which was in any way critical of the mother. 

38. The impression that I gained in relation to this matter was that the mother’s attitude was one of almost a possessory nature.  The children were hers, it was her decision as to the relationship, if any, that they had with the father, and whilst it would seem that in May of 2012 the report writer had been impressed with the progress that seemed to have been made by the mother, there had been a change in her attitude, or perhaps more accurately, a failure on the part of the mother to be able to continue the façade of cooperation and recognition that had been noted in the second report. 

39. The mother had fallen short of what should be expected.  There was a total lack of insight, in relation to the need for there to be a relationship, albeit only of a working nature, between she and the father, as that would be beneficial to the boys.  It was most concerning that the mother’s actions did not reflect her words, in relation to this particular matter.  The impression that I gained, was that whilst she continued to say that the children and the father’s relationship was important and that she wanted it, she continued to find every possible impediment to that being able to be facilitated.

40. Such actions included the exaggerated indications of domestic violence and other criminal behaviours on the part of the father, as well as a determination on her part to gather evidence in relation to the father, without recognising that there were very real issues of concern relating to her and her behaviours, as well as the very troubling issues about the real attitudes and opinions of Mr S to which I have already referred, which appeared to be almost entirely removed from consideration by her.

1. That the children live with Mother in accordance with  Stage Two Living Arrangements subject to and conditional about Order 7 above being complied with.

2. That should the Mother fail to comply with Order 7 above, then the children shall live with the Mother in accordance with Stage One Living Arrangements until such time as the Mother has satisfied the requirement to progress to Stage Two Living Arrangements.

Stage One Living Arrangements

10. That the children live with Mother as agreed between the parents and failing agreement during school term as follows:

a)     Each Tuesday and Thursday afternoon from 3pm (from school) to 6.30pm to the Father’s residence; and

b)     Each alternate Saturday from 9am to 5pm with changeover at the commencement from the Mother’s residence and conclusion at the Father’s residence.

Stage Two Living Arrangements

11. Subject to Order 7 being complied with, the children live with Mother as agreed between the parents and failing agreement during school term as follows:

a.   in week one from after school on Friday to Monday to school or Tuesday if Monday is a public holiday; and

b.   in week two from after school on Wednesday to Thursday to school.

AND THE FOLLOWING ORDERS

12. In the event the children are not returned to school on the days of changeover, the parent with the children shall ensure that the children are provided to the other parent at 3pm at school.

13. Subject to Order 7 being complied with, during the school holidays, the time provided in Orders 10 and 11 above be suspended and the parties have one-half of school holidays with the Father to have the first one-half of the school holidays and the Mother to have the second half of the school holidays and thereafter the first and second half of the holidays alternate between the parties in each successive year but for the school holidays in December 2012/January 2013 (with the holiday arrangement detailed below in Order 13(b):

a.   for the purposes of these Orders, the school holiday time shall commence:

(i)     when a parent’s time falls in the first half of the holidays, such shall commence at 3.00pm on the last day of the school term and conclude at 3.00pm on the day calculated to represent half of the holidays;

(ii)    when a parent’s time falls in the second half of the holidays from 3.00pm on the day calculated to represent half of the holidays when such time shall conclude at 3.00pm on the last day before commencement of the next school term;

(iii)     school holidays shall be deemed to commence at 3.00pm on the last day of the school term and conclude at 3.00pm

b.   For December 2012/January 2013 school holidays, each alternate week with changeover to occur on the first Sunday after the conclusion of the school holidays at 3.00pm until the following Sunday at 3.00pm for a period seven (7) nights with the Mother to have the children from the first Sunday;

c.   For the holiday changeover, the parent with the children or their nominee known to the children to deliver the children to the other parent’s residence at 3pm with the children to be received by the parent or their nominee known to the children.

14. For the purposes of these Orders, the school holiday period around Easter and/or April shall be calculated as follows:

a)    should school holidays be immediately preceding Easter weekend, then the time for commencement of that holiday be at 8.00am on Tuesday after Easter Monday and the time for conclusion be at 5.00pm on Sunday after five nights;

b)   should school holidays not be immediately preceding Easter weekend and the children attend school between the Easter Weekend and the school holidays, then the time for commencement of that holiday be at 5.00pm on Sunday when school term finishes and the time for conclusion to be at 5.00pm on Sunday, after a period of 7 (seven) nights;

c)    when a parent’s time falls in the:

(i)first half of the holidays from either 8.00am on Tuesday after Easter Monday or 5.00pm on Sunday the school term finishes and conclude at 5.00pm on the day calculated to be half of the holidays; and

(ii)when a parent’s time falls in the second half of the holidays from 5.00pm on the day calculated to represent half of the holidays to 5.00pm the Sunday before the commencement of school; and

(iii)should the number of nights in the school holiday period be an uneven number of nights, the Father shall retain the additional night.

15. That in the event Order 7 is not complied with prior to the commencement of the school holidays, the children’s time during the school holidays with the mother shall be in accordance with Order 10.

16. That notwithstanding any Previous Orders herein, the children shall spend time with their parents on special occasions as follows:

a.   for Christmas:

(i)commencing 2012, in even numbered years from 3.00pm Christmas Eve until 3.00pm Christmas Day with their Mother and from 3.00pm Christmas Day until 3.00pm Boxing Day with their Father; and

(ii)commencing 2013, in odd numbered years, from 3.00pm Christmas Even until 3.00pm Christmas Day with their Father and from 3.00pm Christmas Day until 3.00pm Boxing Day with their Mother.

b.   for Easter weekend:

(i)   commencing 2013, in odd numbered years from 8.00am on Good Friday until 8.00am on Easter Sunday with the Mother and from 8.00am on Easter Sunday until 8.00am on the Tuesday following Easter Sunday with the Father, and

(ii)   commencing 2014, in even numbered years from 8.00am on Good Friday until 8.00am on Easter Sunday with the Father and from 8.00am on Easter Sunday until 8.00am on the Tuesday following Easter Sunday with the Mother.

c.   on the birthday of each child (with the parent they do not wake up with) (including every child):

(i)   if a school day, from after school/child care (3pm) until 6.00pm;

(ii)   if a non-school day, from 1.00pm until 6.00pm with the parent who the children do not wake up with to be responsible to collect and return the children;

d.   with their Father on Father’s Day from 8.00pm on Saturday until 5.00pm on Father’s Day (one night) with the Father to be responsible to collect the return the children;

e.   with their Mother on Mother’s Day from 5.00pm on Saturday until 5.00pm on Mother’s Day (one night) with the Mother to be responsible to collect and return the children.

17. The children shall communicate with their parents on the telephone at such times as the children reasonably requests and at all reasonable times as the parent may wish to be not later than 8.00pm with the party who wishes to telephone the children initiating the telephone call to the telephone number provided by the other and the other party to facilitate the children speaking to the parent who initiates the phone call and affording the children privacy to do so with the children to not have the phone communication on a speaker phone.

Collection and Delivery

18. That except as otherwise ordered, the parent or their agent who has the children in their care shall deliver the children to the other parent’s residence at the commencement of the other’s parent’s time and thereafter the parent with the children shall return the children upon conclusion of their time.

19. That each parent shall deliver and return the children’s clothing, school supplies, belongings and the children’s clothing in a clean condition.

Dispute Resolution

20. The process to be used for resolving disputes about the terms of operation of these Orders (if they decide not to use a Family Relationship Centre) shall be as follows:

a)    the parents shall consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about the changes to be made;

b)   they shall pay the costs of the Family Dispute Resolution Practitioner equally;

c)    in the event they cannot agree on a Family Dispute Resolution Practitioner, the Mother shall nominate three (3) practitioners and advise in writing details of their fees, experience and availability.

d)   The Father shall choose one of the listed practitioners within seven (7) days of receipt of the list.

e)    If the Father fails to choose then, the Mother may choose.

Exchange of Information

21. That each of the parties ensures that the other party is promptly notified of any serious illness, injury, medical or like emergency suffered by either of the children including the name, address and telephone number of the relevant hospital or medical practitioner.

22. The parties shall notify the other of them in writing of any change in residential address and telephone contact details, including home and mobile telephone details, within 48 hours of such change.

23. These Orders shall be sufficient authority for each party to obtain from the children’s medical practitioner, health carer or counsellor any information or report regarding the children’s health, upon the request and cost of that party.

24. These Orders shall be sufficient authority for each party to obtain from the children’s school or child care centre any information and documentation regarding the children’s progress at school and include school reports, newsletters and school photographs upon the request and cost of that party.

25. That during the time the children are with either parent, that parent shall:

a)      respect the privacy of the other parent and not question the children about the personal life of the other parent; and

b)      speak of the other parent respectfully;

c)      not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.

26. That the Father positively promotes the children’s relationships with the Mother and the Mother’s family.

27. The Mother positively promotes the children’s relationships with the Father and the Father’s family.

28. That each party shall be entitled to attend the children’s school from time to time for any sporting events, concerts and cultural events that parents are invited to attend.

29. The parties shall ensure that the children attend all prearranged sporting and extra curricular activities that fall during the time the children are in care of either parent.

30. That neither party shall physically discipline the children or cause anyone else to physically discipline the children.

31. That the mother is hereby restrained from doing the following without prior written consent of the Father:

a)    Changing the name(s) of either or both children;

b)   Changing the school or after school or day care in which either or both children are enrolled;

c)    Enrolling the children in any sporting and/or extra curricular activities;

d)   Having the children attend upon a psychologist, a kinesiologist or a psychiatrist; and

e)    Taking the children out of Commonwealth of Australia.

ANNEXURE B

MINUTE OF ORDER RECOMMENDED BY ICL

Discharge of Orders

1.  That all previous orders be discharged.

Parental Responsibility

2.  That the parents have equal shared parental responsibility for all major long term issues of the Children X born (omitted) 2006 and Y born (omitted) 2007 (‘the Children’) other than health and education, including –

2.1the Children’s names, and any changes to them,

2.2.the Children’s religious and cultural upbringing, and

2.3any changes to the Children’s living arrangements that make it significantly more difficult to spend time with the parent with whom they do not live.

3.  That the [carer parent] have sole parental responsibility for the Children in relation to health and education issues.

4.  That in the event that a decision needs to be made about major long term issues where the parents have equal shared parental responsibility –

4.1the parent who believes a decision needs to be made will inform the other parent in writing (which may include email).

4.2    the parents will make a genuine attempt to reach agreement.

4.3the parents will attend Family Dispute Resolution (‘FDR’) with a Family Dispute Resolution Practitioner (‘FDRP’) agreed to by the parties or failing agreement at the Family Relationship Centre (‘FRC’) nearest the parents’ homes.

5.  In the event that a decision needs to be made about a long term health or education issues, the [carer parent] will inform the [other parent] in writing of the decision made.  Where practical, they shall seek the views of the [other parent] prior to making a decision.

6.  Notwithstanding the foregoing, both parents –

6.1are entitled to request and receive the Children’s school newsletters, school photos and notice of school events such as sports carnivals, school concerns, awards nights and the like,

6.2are entitled to attend school events such as sports carnivals, school concerns, awards nights and the like and to volunteer at the Children’s school, for example reading activities and tuck shop,

6.3are entitled to attend on any Hospital where the Children may be admitted from time to time, and

6.4are entitled to make medical decisions about the Children in an emergency if the other parent cannot be contacted after a reasonable attempt to do so.

7. 

7.1That each parent notify the other forthwith in the event that the Children suffer from any serious illness or injury in their care or require hospitalisation.

7.2    That each parent keep each other advised at all times of their current residential addresses and a phone number and email address where they can readily be contacted.

Children to Live with [Carer Parent] during the school term

8.  That the Children live with the [carer Parent] during the school term.

In this context, ‘the school term’ means any period when the Children are attending their primary or secondary school and a ‘term’, ‘semester’, ‘trimester’ or similar normal teaching period is in progress.

Time with the [other Parent] during the school term

1. That the Children spend time with the [other Parent] during the school term –

9.1Commencing [insert date], each alternate week, from after school Tuesday until the commencement of school Thursday, and

9.2Commencing [insert date], each alternate weekend (and on the weekend which includes [other parent’s] day but not the weekend which includes [carer parent’s] day) from after school Friday until the commencement of school Monday (or Tuesday if Monday is a public holiday, pupil free day or day when both Children are otherwise not attending school).

[The ICL is as yet undecided which parent should in his respectful submission have which ‘role’. This draft reflects an outline of the Orders the ICL believes are lest likely to expose the Children to conflict, inter alia by removing or reducing occasions when conflict can arise over transitions of care/change-overs whilst still preserving the role of each parent in the Children’s lives to the maximum extent practicable.]

Children to live with both parents for half the school holidays

10. The Children are to live with each parents in alternating halves of each school holiday period as follows –

In the summer school holidays in December 2012/January 2013 and alternate years thereafter, -

(a)the Children will spend from after school on the last day of school until 9am on the fourth Saturday thereafter with the Mother, but spend 2pm Christmas Day until 5pm Boxing Day with the Father;

(b)the Children will spend from 9am on the fourth Saturday until the commencement of the first day of the new school term with the Father.

10.2In the summer school holidays in December 2013/January 2014 and alternate years thereafter –

(a)the Children will spend from after school on the last day of school until 9am on the fourth Saturday thereafter with the Father, but spend 2pm Christmas Day until 5pm Boxing Day with the Mother.

(b)the Children will spend from 9am on the fourth Saturday until the commencement of the first day of the new school term with the Mother.

In the autumn (Easter), winter (June/July) and spring (September/October school holidays in 2013 and alternate years thereafter –

(a)the Children will spend from the last day of the school term until 9am on the second Saturday of the school holidays with the Father, and

(b)the Children will spend from 9am on the second Saturday of the school holidays until the commencement of school on the first day of the new school term with the Mother.

In the autumn (Easter), winter (June/July) and spring (September/October school holidays in 2013 and alternate years thereafter –

(a)the Children will spend from the last day of the school term until 9am on the second Saturday of the school holidays with the Mother, and

(b)the Children will spend from 9am on the second Saturday of the school holidays until the commencement of school on the first day of the new school term with the Father.

In these Orders, references to school holidays are references to days the Children are not actually required to attend school because of a school holiday period, whether they are technically gazetted school holidays, pupil free days or just days when the school has decided the Children do not have to attend school adjacent to a school holiday.

Transitions of Care (‘Change-overs’)

11. If the Children are to move from the care of one parent to the care of the other parent pursuant to these Orders on a school day, the Children are to be regarded as having passed into the care of the parent due to receive the child into their care that day at the conclusion fo the school day.  It is the responsibility of the parent who has care of the Children at the relevant time to deliver the Children to school or collect them from school as the case may be.

12. The parent whose care the Children are leaving at the end of the school day must not attend the school at the end of the school day without the prior consent of the parent who is receiving the Children into their care.

13. If the Children are to move from the care of one parent into the care of the other on a day when they are not at school, change-over of the Children (or a Child not at school) is to occur between the parents at 9am on the day the children are to move between the care of one parent and the other at [nominated neutral location].

14. Both parents may delegate responsibility for delivery or collection of the Children to another responsible adult known to the Children.

Measures to Reduce Conflict Between the Parents

15. Neither parents shall denigrate the other parent or their relatives, partners or associates in the presence or hearing of the Children.

16. Neither parent shall discuss the issues in these or other Court proceedings between them or matters pertaining to Child Support in the presence or hearing of the Children.

17. Both parents shall forthwith enrol in and pay any necessary course fees for the Parenting Orders Program conducted by Relationships Australia, Foundations Child and Family Care or Relationships Australia and furnish proof of completion of the program to the other parent and the Independent Children’s Lawyer within 6 months of the date of these Orders.

Telephone Communication

18. The Children are to communicate by telephone with the parent they are not currently living or spending time with between 4pm and 5 pm each Wednesday and Saturday and on each Child’s birthday.  The parent with whom the Children are not currently living or spending time is to initiate the call.  The parent with whom the Children are currently living or spending time must make sure the other parent is aware of the number where the Children may be reached and ensure the telephone is in working order and the Children are available to take the call.

Therapeutic Intervention

19. The Children are to resume psychological counselling with Ms G or another psychologist (or psychiatrist) agreed between the parent having sole parental responsibility for health issues and the Independent Children’s Lawyer.

20. The Independent Children’s Lawyer has leave to and must provide the psychologist (or psychiatrist) counselling the Children with copies of these Orders, the Reasons for Judgment in this matter, the two Reports of Ms T, the Report of Dr W, the Report of Dr M and the Report of Mr P.

21. The counselling of the Children shall be at the cost of the parent having sole parental responsibility for the Children in relation to health matters.

22. The counselling of the Children shall continue until Ms G or the other agreed psychologist (or psychiatrist) opines it is no longer necessary.

23. The counselling may involve the participation of the parent not having parental responsibility for the Children in relation to health mattes at the discretion of Ms G or the other agreed psychologist (or psychiatrist).

24. The parents must each attend upon their respective General Practitioners and obtain referrals to the Psychologists or Psychiatrists of their respective choice for the purpose of counselling to assist them in effective co parenting of the Children and any distress either may feel as a consequence of the making of these Orders.

25. The Independent Children’s Lawyer must be advised by each parent of the email or postal address of their psychologist or psychiatrist and has leave to and must provide the psychologists or psychiatrists counselling the parents with copies of these Orders, the Reasons for Judgment in this matter, the two Reports of Ms T, the Report of Dr W (in the case of the Father only), the Report of Dr M (in the case of the Mother only) and the Report of Mr P.

26. The counselling of each parent shall be at the cost of that parent.

27. The counselling of each parent shall continue for at least 6 sessions.

28. As soon as reasonably practical after the making of these Orders, the Children are to have the arrangements for their living with and spending time with their parents explained to them by [Ms T / a Family Consultant nominated by the Senior Family Consultant in the Brisbane Registry of this Court], with the parents to do all things necessary to facilitate this occurring.

Discharge of Independent Children’s Lawyer

29. The Independent Children’s Lawyer is discharged as from the later of -

29.1The determination of any appeal against the making of these Orders (or any of them), or

29.2The expiration of 7 months from the date of these Orders.

30. From the making of these Orders, unless otherwise Ordered, the role of the Independent Children’s Lawyer shall be restricted to –

30.1Monitoring compliance of both parents with the requirement for each of them to complete a Parenting Orders program and the Therapeutic Interventions provided for by these Orders, and

30.2Representing the best interests of the Children in any appeal against the making of these Orders.

Order sought in the event the Children are to live with the Father during the school terms and he is to have sole parental responsibility for health and education matters

31. The Orders herein providing for the Children to spend time with their Mother during the school term and live with her for half of the school holidays are suspended for 4 weeks from the making of these Orders (“the transition period’).

32. Pursuant to s.65L of the Family Law Act 1975, a Family Consultant nominated by the Senior Family Consultant in the Brisbane Registry of the Court is appointed to assist the parents in complying with these Orders during the transition period.

33. The Family Consultant appointed to assist the parties in complying with these Orders is to supervise the Children spending time with the Mother for periods of up to two hours each week during the transition period at places and at times and on days and dates nominated by the Family Consultant.