Hammat & Hammat - [2022] FedCFamC2F 1111

Federal Circuit and Family Court of Australia
(DIVISION 2)
Hammat & Hammat [2022] FedCFamC2F 1111

File number(s): PAC 4566 of 2020

Judgment of: JUDGE NEWBRUN

Date of judgment: 24 August 2022

Catchwords: FAMILY LAW – parenting - Orders made - best interests of children

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

Cases cited: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Division: Division 2 Family Law

Number of paragraphs: 267

Date of last submission/s: 21 June 2022

Date of hearing: 6 – 8 June 2022 and 21 June 2022

Place: Parramatta

Counsel for the Applicant: Mr Kenny

Counsel for the Respondent: Mr Reeves

Counsel for the Independent Children’s Lawyer: Mr Blank
ORDERS

PAC 4566 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HAMMAT

Applicant

AND:
MS HAMMAT

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

24 August 2022

THE COURT ORDERS THAT:
1.That the Mother and Father shall have equal shared parental responsibility for the care, welfare and development of the children X born in 2011 and Y born in 2013 ("the children").
2.The children shall live with the Mother.

Spend time
3.The children shall spend time with the Father:
(a)For 3 months from the date of these Orders, each alternate week from after school Friday until start of school Monday. If in any week the children are not at school and the school holiday provisions of these orders do not apply, then the times shall be 3pm Friday to 8am Monday;
(b)Thereafter, each alternate week from after school on Thursday until start of school on Monday. If in any week the children are not at school and the school holiday provisions of these orders do not apply, then the times shall be 3pm Thursday to 8am Monday;
(c)After the period of 3 months from the commencement of the children’s time with the Father in Order 3 (b) above, in the week when the children are not spending time with the Father, they shall spend time with him from Wednesday after school to 7 pm and, if the children are not at school and the school holiday provisions of these orders do not apply, from 3pm to 7 pm.

4.That during the Terms 1, 2 and 3 school holiday periods, the children shall spend time with the Mother and Father week about and for this purpose:
(a)the parent who would ordinarily have the children in their care at 3:30pm on the Friday of the last day of school attendance in accordance with these orders shall have the first week and each alternate week thereafter;
(b)the other parent’s time shall commence at 3.30pm on the following Friday and each alternate week thereafter; and
(c)Changeover shall occur at 3.30pm on Fridays unless otherwise agreed to between the parents in writing.

5.That during the Term 4 school holiday period, the children shall spend half of the school holidays with each parent, with which half to be agreed to between the parents in writing and failing agreement as follows:
(a)In even-numbered years- with the Father for the first half and the Mother for the second half;
(b)In odd-numbered years- with the Mother for the first half and the Father for the second half, and
(c)For the purpose of these Orders, Term 4 school holidays are deemed to commence at 3:30pm on the Friday of the last day of school attendance, conclude at 3:30pm on the Sunday immediately prior to the commencement of the following Term and reach the midway point at 3:30pm on the middle day of the holiday period.

6.That notwithstanding any other Order, the children shall spend time with the Mother and Father as follows:
(a)With the Mother from 5pm on Christmas Eve until 7pm Boxing Day each year;
(b)With the Mother from 10am on Good Friday to 7pm on Easter Monday each year;
(c)With the Father from 5pm on the day immediately prior to each Eid until 7pm on the day immediately after the conclusion of each Eid;
(d)On each of the children's birthdays, with the parent with whom they are not spending time with on that day as agreed to between the parents and failing agreement from 5pm to 7pm;
(e)With the Father on his birthday, for 2 hours at such times as agreed to between the parents and failing agreement from 5pm to 7pm;
(f)With the Mother on her birthday, for 2 hours at such times as agreed to between the parents and failing agreement from 5pm to 7pm;
(g)With the Father form 5pm on Friday immediately prior to Father’s Day to 7pm on Father’s Day;
(h)With the Mother from after school on the Friday immediately prior to Mother’s Day to 7pm on Mother’s Day.

7.That unless otherwise agreed to between the parents in writing, changeover shall occur as follows:
(a)At the children's school if it is a school day;
(b)If it is not a school day, at a neutral midpoint location at the commencement and conclusion of the Fathers time pursuant to these Orders.

AND IT IS NOTED that the parent or their nominee may facilitate changeover of the children.
8.Where the children have an activity, sports, extra curricula or social engagement the parent with care of the children will ensure that the children or child attend such activity, sports event or social engagement.
9.That in the event either parent is unable to care for the children on a day which they would ordinarily spend with the children pursuant to these Orders, that parent must first offer the other parent the opportunity to spend time with the children on that day in lieu of them and, only after giving the parent such opportunity is that parent permitted to seek to have a third party care for the children.
10.That the children shall have telephone/ FaceTime communications with the parent with whom they are not spending time with on any day as reasonably requested by the children and as agreed to between the parents and failing agreement on Tuesdays, Thursdays and Saturdays from 5pm to 6pm, with the parent not having the care of the children to place the call on the other parent's phone and the parent having the care of the children to do all things necessary to facilitate the children taking such call.
11.That the parents shall communicate via email and/or text message in relation to parenting arrangements concerning the children, otherwise by telephone in the event of an emergency and such communication shall be courteous and not abusive.
12.Both parents are authorised to obtain all information and documents from the children's school, medical practitioners, extra-curricular and religious activities that parents of children would ordinarily be entitled to receive and each parent shall do all things and sign all documents necessary to ensure that both parents are authorised to and does indeed receive such information.
13.That in the event of either child suffering a medical emergency, the parent having care of the child at that time shall forthwith do all things and sign all documents necessary to:
(a)Notify the other parent of the emergency and keep the parent updated in relation to the state of health of the child;
(b)Notify the other parent of the whereabouts of the child to facilitate the other parent attending that location;
(c)Provide to the other parent all details in relation to the medical facility attended upon and treating medical practitioner; and
(d)Authorize both parents to attend upon the child and receive all information and documents that parents of children would ordinarily be entitled from the medical practitioner/facility to receive, regardless of which parent presented the child.

14.That each parent shall keep the other informed of their residential address, email address and phone number and shall advise the other forthwith of any change in such details.
15.That in the event that either parent intends to move residence, they must give the other parent as much notice as is reasonably practicable and, if possible, no less than one months' notice of the intention to move, including particulars of where they intend to move and the address.

Restraints
16.That the parents are restrained by injunction from denigrating the other parent, members of the other parent's family or household to or in the presence or hearing of the children or either one of them and they shall further make all reasonable efforts to remove the children from the presence and earshot of any third party so denigrating the other parent or members of the other parent's family or household.
17.Both parents are restrained from consuming illicit substances whilst the children are in their care.

Courses
18.Within 7 days from the date of these Orders, the parents shall contact B Families to complete Family Therapy known as “Keeping Contact” and shall provide written evidence of completion of that course to the other parent.
19.The parents are to ensure that the children continue to engage in counselling through the Anchor program or unless as otherwise recommended by the therapist.
20.The Mother shall, if not already done so, forthwith do all things necessary to attend upon her general practitioner for the purposes of obtaining a referral for individual counselling and that she will engage in such counselling as is recommended by such general practitioner or counsellor.
21.The Mother is to comply with all recommendations, including but not limited to attending appointments and taking medication as prescribed, given by her treating mental health care practitioners.
22.The Father shall within 7 days of the date of these Orders do all acts and things necessary including phoning C Counsellors to engage and complete within a reasonable time the Anger Management Course “Managing Anger Group Workshop” and shall provide written evidence of completion of that course to the Mother.
23.Without admissions, the Father shall within 7 days of the date of these Orders, do all acts and things necessary including phoning C Counsellors to engage and complete within a reasonable time the “Taking Responsibility – A Course for Men” and shall provide written evidence of completion of that course to the Mother.
24.Upon completion of such course the Father shall do all acts and things necessary including phoning C Counsellors to engage on a continuing basis through C Counsellors in either the “Men Maintaining Change” ongoing support group or the “Men’s Matters” ongoing support group and shall provide written evidence of such ongoing engagement to the Mother.
25.The parents are restrained by injunction from disclosing to the children X and Y , or either one of them, either directly or indirectly, or discussing in their presence or hearing any account of:
(a)The Mother’s history as an escort/sex-worker;
(b)The Father’s criminal history; and
(c)The Father’s drug use history.

26.That the Court be requested to forthwith refund to the Father the setting down hearing fee for 21 June 2022 in the amount of $660.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Hammat & Hammat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
Introduction

This hearing relates to the children X born in 2011 and Y born in 2013 (“the children”).
On 26 November 2020, interim Orders were made, inter alia, that the children live with the Mother; that the children spend time with the Father during school terms each alternate weekend from after school Friday to 6 PM Sunday, and half of each school holiday period; that the Father have calls with the children on Tuesdays and Thursdays from 5 PM to 5:30 PM; that the Mother obtaining a referral from her GP for counselling and that she engage in such counselling as recommended by her GP or counsellor; and that the children participate in the Anchor Program.
PROPOSALS
Independent Children’s Lawyer
The ICL seeks Orders, inter alia, that:
1.That the Mother and father shall have equal shared parental responsibility for the care, welfare and development of the children X born in 2011 and Y born in 2013 ("the children").
2.The children shall live with the Mother.
Spend time
3.The children shall spend time with the Father:
(a)Each alternate week from after school on a Thursday until start of school on Monday. If in any week the children are not at school and the school holiday provisions of these orders do not apply, then the times shall be 3pm Thursday to 8am Monday;
(b)In the week when the children are not spending time with the Father as above, they shall spend time with him from Wednesday after school to 7 pm and if the children are not at school and the school holiday provisions of these orders do not apply, from 3pm to 7 pm.
4.That during the Terms 1, 2 and 3 school holiday periods, the children shall spend time with the Mother and father week about and for this purpose:
(a)the parent who would ordinarily have the children in their care at 3:30pm on the Friday of the last day of school attendance in accordance with these orders shall have the first week and each alternate week thereafter;
(b)the other parent’s time shall commence at 3.30pm on the following Friday and each alternate week thereafter ; and
(c)Changeover shall occur at 3.30pm on Fridays unless otherwise agreed to between the parents in writing.
5.That during the Term 4 school holiday period, the children shall spend half of the school holidays with each parent, with which half to be agreed to between the parents in writing failing agreement as follows:
(a)In even-numbered years- with the Father for the first half and the Mother for the second half;
(b)In odd-numbered years- with the Mother for the first half and the Father for the second half, and
(c)For the purpose of these Orders, Term 4 school holidays are deemed to commence at 3:30pm on the Friday of the last day of school attendance, conclude at 3:30pm on the Sunday immediately prior to the commencement of the following Term and reach the midway point at 3:30pm on the middle day of the holiday period.
6.That notwithstanding any other order, the children shall spend time with the Mother and father as follows:
(a)With the Mother from 5pm on Christmas Eve until 7pm Boxing Day each year;
(b)With the Mother from 10am on Good Friday to 7pm on Easter Monday each year;
(c)With the Father from 5pm on the day immediately prior to each Eid until 7pm on the day immediately after the conclusion of each Eid;
(d)On each of the children's birthdays, with the parent with whom they are not spending time with on that day as agreed to between the parents and failing agreement from 5pm to 7pm;
(e)With the Father on his birthday, for 2 hours at such times as agreed to between the parents and failing agreement from 5pm to 7pm;
(f)With the Mother on her birthday, for 2 hours at such times as agreed to between the parents and failing agreement from 5pm to 7pm;
(g)With the Father form 5pm on Friday immediately prior to Father’s Day to 7pm on Father’s Day;
(h)With the Mother from after school on the Friday immediately prior to Mother’s Day to 7pm on Mother’s Day.
7.That unless otherwise agreed to between the parents in writing, changeover shall occur as follows:
(a)At the children's school if it is a school day;
(b)If it is not a school day, at a neutral midpoint location at the commencement and conclusion of the Fathers time pursuant to these Orders.
(c)AND IT IS NOTED that the parent or their nominee may facilitate changeover of the children.
8.Where the children have an activity, sports, extra curricula or social engagement the parent with care of the children will ensure that the children or child attend such activity, sports event or social engagement.
9.That in the event either parent is unable to care for the children on a day which they would ordinarily spend with the children pursuant to these Orders, that parent must first offer the other parent the opportunity to spend time with the children on that day in lieu of them and, only after giving the parent such opportunity is that parent permitted to seek to have a third party care for the children.
10.That the children shall have telephone/ FaceTime communications with the parent with whom they are not spending time with on any day as reasonably requested by the children and as agreed to between the parents and failing agreement on Tuesdays, Thursdays and Saturdays from 5pm to 6pm, with the parent not having the care of the children to place the call on the other parent's phone and the parent having the care of the children to do all things necessary to facilitate the children taking such call.
11.That the parents shall communicate via email and/or text message in relation to parenting arrangements concerning the children, otherwise by telephone in the event of an emergency.
12.Both parents are authorised to obtain all information and documents from the children's school, medical practitioners, extra-curricular and religious activities that parents of children would ordinarily be entitled to receive and each parent shall do all things and sign all documents necessary to ensure that both parents are authorised to and does indeed receive such information.
13.That in the event of either child suffering a medical emergency, the parent having care of the child at that time shall forthwith do all things and sign all documents necessary to:
(a)Notify the other parent of the emergency and keep the parent updated in relation to the state of health of the child;
(b)Notify the other parent of the whereabouts of the child to facilitate the other parent attending that location;
(c)Provide to the other parent all details in relation to the medical facility attended upon and treating medical practitioner; and
(d)Authorize both parents to attend upon the child and receive all information and documents that parents of children would ordinarily be entitled from the medical practitioner/facility to receive, regardless of which parent presented the child.
14.That each parent shall keep the other informed of their residential address, email address and phone number and shall advise the other forthwith of any change in such details.
15.That in the event that either parent intends to move residence, they must give the other parent as much notice as is reasonably practicable and, if possible, no less than one months' notice of the intention to move, including particulars of where they intend to move and the address.
Restraints
16.That the parents are restrained by injunction from denigrating the other parent, members of the other parent's family or household to or in the presence or hearing of the children or either one of them and they shall further make all reasonable efforts to remove the children from the presence and earshot of any third party so denigrating the other parent or members of the other parent's family or household.
17.Both parents are restrained from consuming illicit substances whilst the children are in their care.
Courses
18.Within 7 days from the date of these Orders, the parents shall contact B Families to complete Family Therapy known as “Keeping Contact” and shall provide written evidence of completion of that course to the other parent.
19.The parents are to ensure that the children continue to engage in counselling through Anchor programme or unless as otherwise recommended by the therapist.
20.The Mother shall, if not already done so, forthwith do all things necessary to attend upon her general practitioner for the purposes of obtaining a referral for individual counselling and that she will engage in such counselling as is recommended by such general practitioner or counsellor.
21.The Mother is to comply with all recommendations, including but not limited to attending appointments and taking medication as prescribed, given by her treating mental health care practitioners.
22.The Father shall within 7 days of the date of these Orders do all acts and things necessary including phoning C Counsellors to engage and complete within a reasonable time the Anger Management Course “Managing Anger Group Workshop” and shall provide written evidence of completion of that course to the Mother.
23.Without admissions, the Father shall within 7 days of the date of these Orders do all acts and things necessary including phoning C Counsellors to engage and complete within a reasonable time the “Taking Responsibility – A Course for Men” and shall provide written evidence of completion of that course to the Mother.
24.Upon completion of such course the Father shall do all acts and things necessary including phoning C Counsellors to engage on a continuing basis through C Counsellors in either the “Men Maintaining Change” ongoing support group or the “Men’s Matters” ongoing support group and shall provide written evidence of such ongoing engagement to the Mother.
The Mother

The Mother seeks Orders, inter alia, that:
1.That the Mother shall have sole parental responsibility for the children X born in 2011, and Y born in 2013 (“the children”).
2.That the children live with the Mother.
3.That the children spend no time and have no communication with the Father.
4.That failing the Court making an order that the children spend no time and have no communication with the Father, the children are to spend time with the Father as follows:
(a)During school terms, each alternate weekend from after school or 3pm Friday to 9am or commencement of school Monday, commencing on the first week of each school term and each alternate week thereafter;
(b)During school holidays, for the first half of each school holiday period, and for this purpose, school holidays are deemed to commence from after school or 3pm on Friday of the last day of school attendance and reach the midway point at 5pm on the middle day of the holiday period;
(c)From 5pm on the day immediately prior to each Eid until 5pm on the day immediately after the conclusion of each Eid;
(d)On Father’s Day, from 9:00am until 5:00pm.
5.That failing the Court making an order that the children spend no time and have no communication with the Father, the children are to communicate with the parent in whose care they are not currently in each Wednesday between 7:30pm and 8:00pm, with the parent who does not have care of the children to call the parent with care of the children for the purpose of facilitating the call.
6.That failing the Court making an order that the children spend no time and have no communication with the Father, the following is to occur:
(a)Changeover is to occur at the children’s school on school days, and at the entrance of Location D, E Road, Suburb F, on non-school days;
(b)The parties’ shall communicate in relation to parenting arrangements concerning the children via text message;
(c)The parties’ shall keep one another informed of their telephone number and shall advise the other within 48 hours of any change thereto;
7.That notwithstanding any other order, the children are to spend time with the Mother as follows:
(a)From 9:00am on Christmas Eve until 7:00pm on Boxing Day;
(b)From 9:00am on Good Friday until 7:00pm on Easter Monday;
(c)From 3:00pm on the Friday immediately prior to Mother’s Day to 7:00pm on Mother’s Day;
(d)During school holidays, for the second half of each school holiday period, and for this purpose, school holidays are deemed to commence from after school or 3pm on Friday of the last day of school attendance, conclude at 5pm on the Sunday prior to the first day of school attendance and reach the midway point at 5pm on the middle day of the holiday period.
8.That both parties’ be restrained from denigrating the other parent, any member of the other parent’s family or household within the presence or hearing of the children, and each party shall further use their best endeavours to ensure that no third party denigrates the other parent, any member of the other parent’s family or household within the presence or hearing of the children.
9.That failing the Court making an order that the children spend no time and have no communication with the Father, each party, MR HAMMAT born in 1982 and MS HAMMAT born in 1978, their servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or attempting to cause or permitting or attempting to permit the removal of the children X born in 2011 (male) and Y born in 2013 (female) by each party, their servants and/or their agents or by the children themselves, from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Airport Watch List until the Court orders its removal.
The Father
The Father supports the making of the ICL’s above proposed Orders except that he would propose, in relation to the ICL’s proposed Order 3(b), that such proposed time between the children and the Father from Wednesday after school continue until the following Thursday morning before school.
Material relied upon
The Mother relied upon her:
(a)Case Outline filed 31 May 2022;
(b)Amended Response filed 18 November 2021;
(c)Trial Affidavit filed 18 November 2021;
(d)Notice of Risk filed 17 November 2020;
(e)Family Report dated 11 January 2021.
The Father relies upon his:
(a)Case Outline filed 2 June 2022;
(b)Amended Initiating Application filed 18 May 2021;
(c)Trial Affidavit filed 19 November 2021;
(d)Updating Affidavit filed 1 June 2022;
(e)Agreed Statement of Issues filed 6 August 2021;
(f)Child Inclusive Conference dated 25 November 2020;
(g)Family Report dated 20 July 2021.
The ICL relied upon her Case Outline filed 5 June 2022 and the following documents:
(a)Tender bundle of documents;
(b)Amended Initiating Application of Mr Hammat filed 18 May 2021;
(c)Trial Affidavit of Mr Hammat filed 19 November 2021;
(d)Updating Affidavit of Mr Hammat filed 1 June 2022;
(e)Amended Response of Ms Hammat filed 18 November 2021;
(f)Trial Affidavit of Ms Hammat filed 18 November 2021;
(g)Notice of Child Abuse filed 17 November 2020;
(h)Family Report dated 20 July 2021;
(i)Child Inclusive Conference Memorandum dated 25 November 2020.
The following documents became Exhibits:
(a)Exhibit A: Income Tax Returns of 2014 – 2015 ;
(b)Exhibit B: Child Inclusive Conference Memorandum dated 25 November 2020 and Family Report dated 20 July 2021;
(c)Exhibit C: Psychologist Report of Ms G dated 12 April 2021;
(d)Exhibit D: ICL Tender Bundle (but absent pp 30, 79-81, 84, 94-99, 102-103);
(e)Exhibit E: Series of screenshots displaying text message exchanges between the Mother and Father;
(f)Exhibit F: Hair follicle test of Father dated 9 June 2022.
(g)Exhibit G: pages 22-24 in the Father’s Tender Bundle.
Evidence
In the determination of this case the Court has had regard to all of the written evidence referred to above, together with the oral evidence given by each of the parties’ and Ms H, the family report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are relevant to the Court’s determination will be considered either in this section or whilst addressing the s.60CC considerations (ie s.60CC of the Family Law Act 1975 (Cth) (“the Act”)) (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
The Father’s Affidavits
The Father is aged 40 years. The Mother is aged 44 years.
The parties’ commenced cohabitation in 2009. They separated on a final basis in August 2015.
The Mother has 4 children of a previous relationship with Mr J, namely twins Mr K and Mr L born in 1996 and aged 25 years, Mr M born in 2001 and aged 21 years, and Ms N born in 2003 and aged 18 years.
During the parties’ relationship the Mother was a stay at home mother and the Father worked full-time. The Father assisted in the care of the children, including the Mother’s older children, when he was not working.
From separation in August 2015 until 2 August 2020, the children largely spent time with the Father at least every weekend or every second weekend and half school holidays. This arrangement worked well until the Mother stopped allowing the Father to spend time with the children from 2 August 2020. The Father commenced these proceedings 2 September 2020.
On 26 November 2020, interim Orders were made, inter alia, that the children live with the Mother; that the children spend time with the Father during school terms each alternate weekend from after school Friday to 6 PM Sunday, and half of each school holiday period; that the Father have calls with the children on Tuesdays and Thursdays from 5 PM to 5:30 PM; that the Mother obtaining a referral from her GP for counselling and that she engage in such counselling as recommended by her GP or counsellor; and that the children participate in the Anchor Program.
The Father spent time with the children in accordance with the above interim Orders.
The Father lives with his parents and brother.
The Father refers to an incident with the Mother on a Sunday between March 2015 and October 2015. The parties’ argued in relation to the Father’s request to retrieve his aviaries and birds from the parties’ former home. The Father had his back to the Mother’s car and kicked back in frustration and as a result put a dent in the car. At this time the Mother and children were in the car. The Father regrets becoming angry and acting in this way. Following this incident police applied for a provisional no contact ADVO for the Mother’s protection from the Father. On 27 October 2015, a final ADVO was made to the Mother’s protection from the Father. That Order expired in October 2017.
On 11 June 2020 the Mother suffered a house fire. As a result the children stayed with the Father for about 39 days. On 19 June 2020 the Mother had set up a Go fund me page writing, “… This year has been an absolute nightmare financially and I was already suffering depression and anxiety bad. I’m currently homeless due to this recent fire… All I’m doing is crying, my ex-husband currently has our two younger children who are six and nine-year-olds he works and his parents are sick so this is not the best option…”
On 8 October 2020 the Father undertook a voluntary hair follicle drug test with the test result being negative for all drugs.
On 28 March 2021 about 7 PM, the Mother called the Father and told him that X was not listening to the Mother and would not go to bed. The Mother asked the Father to have a word with this child. The Father agreed and the Father spoke to the child telling him that if the Mother had told him that it was bedtime that he needed to go to bed.
On 12 April 2021, the Father spoke to X following the Mother messaging the Father and asking him if he could log X off the PlayStation from his end as this child was not listening to the Mother and going to bed. This child, following the Father speaking to him, switched off his PlayStation.
On 21 May 2021 the Mother message the Father saying that X’s home work was in his schoolbag and asked if the Father could assist him. The Father asserts that the reason for this was that the Mother had sent him to bed early the night before due to this child having a meltdown. That weekend the Father sat with this child and assisted him to complete his schoolwork.
The Father refers to a parent teacher interview relating to the child X where he was told by this child’s teacher that he struggles to hand and completed homework on a regular basis and needed to practice reading.
On 6 October 2021 the Father assisted the Mother in having the child X attend school that day.
The Father states that the parties’ were both equally guilty of treating each other poorly while they were married. He asserts that the parties’ relationship was extremely toxic and their behaviour towards one another was unfortunately observed by the Mother’s older children at times.
The Father states that the children had been on the waiting list to participate in the Anchor program since about late November 2020.
On 19 May 2021 the AAT conducted a child care payment review about whether there had been a change in care of the children from 5 July 2019. It determined, that the care attributed to the Father and the Mother in respect of the children for the period commencing 5 July 2019 is 53% and 47% respectively.
The Mother operates a small home business.
The Father asserts that prior to July 2015 there was an occasion when the Mother punched him and he retaliated by slapping the Mother on the cheek. He asserts there was another occasion when he was lying down on the parties’ bed with his eyes closed and the Mother came into the room and struck him with a closed fist to the mouth. The Father asserts that he immediately reacted out of shock and pushed the Mother off him and onto the side of the bed, and in the same motion he slapped her on the face near her lip. He asserts his regret in relation to both incidents.
The Father asserts that in about 2012 there was an incident with the Mother when, following a Current Affair program, the Mother pushed the Father and the Father retaliated and pushed her back and the Mother fell. He asserts his regret at his behaviour.
The Father asserts that in about January 2005 the parties’ moved in together with her older children. The Father asserts that he had stopped taking drugs and was in the final stage of his criminal proceedings. The Father asserts that he has a criminal history from before he met the Mother in 2005. He asserts that he used to abuse drugs before he met the Mother. He asserts that he has not used any illicit drugs since about 2005. He states that he has convictions for break and enter and possession of drugs.
The Father asserts that there were instances where both parties’ had the older children write lines. He asserts that there were times when he told both Ms N and Mr M to stand facing the wall as timeout. He asserts that this generally lasted around one hour and only happened on 3 occasions after those children had been fighting physically, including Mr M choking Ms N on one occasion. The Father asserts that the Mother never intervened regarding the children being told to stand against the wall and that this was an agreed form of discipline.
The Father asserts that Mr M has always been a troubled child and there was one prior ADVO for Mr M’s protection from the Father. The Father asserts that he was in the backyard with Mr M who was about 14 years old who was carrying on aggressively and they got into an argument. The Father asserts that he held Mr M down on the floor to get him to stop and he got up, jumped the fence and ran away.
The Father asserts that in January 2014 the Mother had self harmed cutting her arm with a piece of glass. He asserts that the Mother said to him that she was sick of everyone not listening to her and that she had cut the words “why don’t you listen” into her wrist. He asserts the Mother was admitted to Suburb A Centre.
The children attend O School; X is now in year 6 and Y is now in year 3.
The Father states that the child X still has issues with reading and issues completing homework.
The Father lives with his family in a house in Suburb P. It is a five bedroom home. The occupants are the children when they spend time with the Father, the paternal grandparents and the Father’s brother age 29 years. The children have their own room.
The Mother lives in a house in Suburb Q. The distance between the parties’ respective homes is about a 30 minute drive.
The Father is employed full-time as a transport worker for a large transport company. His current hours are from 5 AM to 1 PM Monday to Friday. He asserts that whilst he works those shifts, if the children were spending time with him on school days, his family and in particular the paternal grandmother would be able to take the children to school in the morning and the Father would pick them up from school in the afternoon.
The Father asserts that he hopes to move out sometime in the future when he is able, however he will need to carefully consider his financial position given the significant sum he has spent on legal fees for the proceedings.
The Father asserts that he has made arrangements with his employer for his working hours to permanently change such that from mid June 2020 to his hours are Monday to Friday from 9:30 AM to 5:30 PM.
The Mother’s Affidavit
The Mother states that Mr L lives 5 minutes away with his partner, Ms R. Mr L comes over to visit the children and the Mother a couple of times each week. The children often have sleepovers at Mr L’s home during the school holidays. Mr K has recently moved to Queensland for work, and the Mother speaks with him on the telephone regularly. Ms N is currently participating in a residential program call “S Program” which aims to assist young adults to develop skills and obtain qualifications to allow them to better integrate into society. Through the “S Program” program, Ms N is currently completing a Traineeship in Certificate III. Ms N speaks with the children almost daily, and the Mother speaks with her a few times each week. The children and the Mother often visit Ms N and go on family outings together.
The Mother stated was common for the parties’ to have verbal arguments about money and finances during their relationship.
The Mother states that in May 2020 an incident occurred whereby she came home and found Mr M to be heavily intoxicated. Mr M had cuts on the inside of his mouth from razor blades, and became agitated and aggressive towards the Mother when she attempted to help him. Mr M began to hit the Mother and so she called the Police to ask for assistance. The Police attended at the Mother’s house shortly thereafter and Mr M was involuntarily admitted to hospital for a psychiatric evaluation. A few days later, Mr M’s girlfriend Ms T said to the Mother, “Mr M was drinking vodka and taking zanny’s”. A Provisional ADVO was made for the Mother’s protection, naming Mr M as defendant. The ADVO had the standard conditions, additional Order 4 (that Mr M must not approach the Mother or be in her company for 12 hours after drinking alcohol or taking illegal drugs) and additional Order 7 (that Mr M must not live at the same address as me). The Mother did not have any contact with Mr M for approximately 9 months after this incident.
The Mother asserts that after mid March 2015 there was an incident when the Father called the child Ms N a slut like the Mother. The Mother asserts that she then slapped the Father to the face.
The Mother states that in about February 2016 the parties’ attended Family Dispute Resolution through the Suburb U Women’s Health Centre. The Mother states that the parties’ reached an in principle agreement which provided for the children to spend time with the Father as follows:
(A)On the first and third weekend of each month, from 5pm Friday to before school Monday, and on the fourth weekend of each month, from 5pm Friday to 7pm Sunday;
(B)On either Tuesday, Wednesday or Thursday during the second week of each month; and
(C)Half of each school holiday period and on special occasions.
The Mother states that she made arrangements for the children to attend an introductory appointment with a psychologist in mid-November 2021. In this context the Mother referred to her concerns that she had regarding X’s behaviour and struggles at school and home.
The Mother asserts that during the parties’ relationship she experienced the Father’s moves to be up and down and change quickly.
The Mother asserts that during the parties’ relationship the parties’ attended upon the same GP, being Dr V of W Medical Centre. The Mother asserts that during one of their appointments the doctor provided the Father with a referral to see a psychologist, Ms Z. The Mother asserts that the Father attended appointments with the psychologist between March 2015 and August 2015. The Mother alleges that she attended a few appointments with the psychologist and the Father and that the Father made disclosures to the psychologist regarding his alleged violence towards the Mother, and towards his previous girlfriend Ms AB.

The Mother alleges that she has been diagnosed with complex PTSD and anxiety. She attends upon a counsellor, Ms G, from the Suburb AD DV service on a weekly basis. She also attends upon her GP regularly. She has been prescribed Zoloft 100mg which she takes daily in accordance with the directions of her GP.
The Mother refers to self harming on about 20 January 2014. The Mother refers to her friend Ms AE taking her to Suburb AD Hospital where she was treated assessed by doctors and thereafter transferred to Suburb F Centre, a psychiatric facility attached to Suburb AF Hospital. The Mother refers to then taking prescribed antidepressants in accordance with her doctor’s advice, and she began attending upon a DV case worker at the Suburb AD DV service.
The Mother states that she lives in a four bedroom home in Suburb Q. The children each have their own bedroom and the Mother occupies the third bedroom. The Mother states that no one else lives in the home and she is not re-partnered.
The Mother states that the youngest child is progressing well at school however the eldest child is struggling academically.
The Mother states that she is currently working at Employer AG on a casual basis. She states that her work arrangement is flexible around the children’s schooling, and that she otherwise works on weekends when the children are in the Father’s care. She further states, “if I am required to work during the school holidays, I make arrangements for the children to attend vacation care. If I am otherwise unavailable to care for the children for any reason, my adult son Mr L lives 5 minutes down the road and is willing to assist me in this way. Mr L has a close relationship with X and Y and spends time with them each week”.
The Mother states, “The income I receive from my casual employment depends on the number of hours I work, and usually ranges between $300-$500 each week. I am also reliant on Centrelink benefits, the amount of which varies from week to week in accordance with how much I earn from my work. I receive Child Support payments from Mr Hammat in the amount of $174 each week”.
Oral evidence
The Father gave oral evidence.
Counsel for the Mother cross-examined the Father.
The Father confirmed being charged with a criminal offence of aggravated break and enter and he received a suspended two year jail sentence. The offence occurred in 2008 before the Father met the Mother.
It was put to the Father that he struggles with his anger to which the Father denied. It was suggested to the Father that he had struggled with his anger in the past and the Father stated that he had allowed his emotions to get the better of him. He confirmed that he had experienced angry emotions.
The Father admitted that he attended upon a psychologist in 2015, Ms Z, and that he had probably told her that he experienced anger outbursts.
The Father stated there were times when the parties’ were both angry.
The Father stated that the parties’ had an extremely toxic relationship with heated arguing. The Father did not deny calling the Mother nasty names. He stated the parties’ belittled each other.
The Father stated that he had never harmed the Mother when she was pregnant.
It was put to the Father that he had harmed the Mother when she was not pregnant to which the Father replied that he had retaliated and it was in his Affidavit.
In relation to an alleged incident in about September 2012, the Father denied punching the Mother however he stated that the Mother had fallen to the ground as a result of him putting his hands on her.
The Father confirmed that he had hit the Mother on her bottom lip in 2014 after the Mother had hit the Father on his face when he was on the bed.
The Father stated that the parties’ both became more frustrated (in their relationship) as the relationship went on and that he became tired of the constant fighting which he knew was not normal.
The Father confirmed that in about mid October 2015, in relation to an argument with the Mother, he kicked her car in frustration (leaving a dent) and that this was an angry outburst on his part. He did not agree that that this was intimidating for the Mother.
The Father stated that he 100% supports counselling continuing for the children.
The Father was questioned as to his discipline of the Mother’s other four children. The Father stated that the parties’ both disciplined those children. In relation to requiring Ms N and Mr M to stand up against a wall for an hour, as punishment, he acknowledged that this was not the best (form of discipline). He stated that the Mother was in agreement with this particular discipline.
The Father agreed that on about 16 March 2015 he had moved out of the family home to his parents’ home and had not moved back in.
The Father stated there was an incident where a cat had attacked his pet birds. He stated that he had used a plastic device to shoot at the cat to frighten it off, and had also installed a sprinkler system.
The Father confirmed that in 2006 he received a section 9 bond for the offence of assault occasioning actual bodily harm with the victim being the paternal grandmother. The Father could not recall the exact details. He stated that the paternal grandmother had been trying to push him out of his bedroom. He stated that the Mother had taken his cars and boats and was selling them. In this context the Father stated that at that time the Mother was an undiagnosed schizophrenic. He denied having struck or harmed the paternal grandmother. (The Court observes that page 37 in Exhibit D, a COPS report in 2006 refers to the Father stating to police that some pushing and shoving occurred in the incident with the paternal grandmother.)
The Father denied having considered international travel with the children. He confirmed there were three aunties in Country AH but he had never contemplated travelling overseas.
The Father was asked what discipline techniques are used with the children. The Father stated that the children are not perfect but overall they are good. He stated that sometimes they bicker and do not listen. He might take their iPad or ban them from playing PlayStation. He does not use physical discipline upon them.
The Court asked the Father what he would do if the eldest child was on his PlayStation and he would not get off it. The Father stated that he would change the password or take it from him.
The Father was asked whether he had ever attended an anger management course. The Father stated that he had attended counselling with Ms Z after the incident involving him kicking the Mother’s car.
The Father stated that since September/November 2020 he communicates with the Mother via text messages. He stated that each week or fortnight there would be a text message exchange with the Mother, usually regarding changeover.
The Father stated he would have no objection to seeing a counsellor. He would agree to an order that he not enter the Mother’s home.
In relation to the incident when the Father kicked the Mother’s car, the Father agreed that that would have been scary for the children.
The Father stated that he would love to take the children to and from school and help the children with their homework.
The Father stated he had preference for text message communication with the Mother.
The Father agreed that at the time he had consultations with Ms Z he had issues managing his anger. In this context the Father referred to there having been significant issues in the parties’ relationship, for example, in the way they spoke to each other, allegations of infidelity, and which led to arguments.
In re-examination, the Father stated, inter alia, that he remains in telephone contact with Mr M, and that he was close to Mr K. He stated that he has not had contact with Ms N since about July 2019, and he had had last contact with Mr L on Christmas Eve 2021.
The Father was asked whether he would need to physically remove the eldest child’s PlayStation from him (if this child did not cease to use the PlayStation when asked) and the Father stated that he could simply change the password on his iPhone.
The Mother gave oral evidence.
The Mother was cross-examined by counsel for the Father.
The Mother confirmed there were prior parenting proceedings between herself and Mr J in relation to the four children of that relationship in which proceedings concluded in 2012. The Mother stated she has sole parental responsibility for those children. The Mother stated that she had alleged against Mr J that he had perpetrated family violence against both herself and the children of that relationship. The Mother agreed that she had stated in those proceedings against Mr J that the Father was supportive but out of his depth.
The Mother confirmed that in May 2020 there was a serious incident involving Mr M at the Mother’s home wherein the Mother was assaulted by Mr M and the police attended. Mr M had self harmed with razorblades. The Mother stated that Mr M had not lived in her home since this time and that he lived with a friend in Suburb AJ, with the Mother occasionally seeing him.
The Mother stated that the child Ms N lives in Suburb AK. She had left school in year 10. She was doing a traineeship for troubled children. This child had had trouble with drugs.
The Mother was questioned in relation to an incident on about 25 May 2020 involving Mr M and the Mother. The Mother confirmed that it had been fortunate that the children were in the care of the Father for a period that day.
The Mother confirmed that there were previous times when she had difficulties getting the children to school on time, and there were numerous partial absences from school.
The Mother stated that Ms N had accompanied the children to spend time with the Father a few times.
The Mother stated that the parties’ communicated well after the commencement of these Court proceedings.
The Mother was questioned in relation to the parties’ proceedings in the AAT relating to child support assessment and which resulted in a decision on 19 May 2021. In this context the Mother stated that the Father had cared for the children every weekend up to the time of her house fire as well as during holidays. The Mother agreed that the children had been cared for by the Father when she went on a cruise to go to the Melbourne Cup.
The Mother agreed that the child X worries that the Mother is sad.
The Mother agreed that her application to the Court was for the children to spend no time with the Father however she stated that she wants such time to be supervised but she had been told that that was not possible.
The Mother stated that she was currently taking the medication Zoloft being 150 mg each day.
The Mother was asked whether she had seen a psychiatrist since being discharged from Suburb F Centre. The Mother replied in the negative stating that she does not need to see one. The Mother stated that she was seeing a DV counsellor, Ms G, on a weekly basis and which had been occurring over the last two years.
The Mother agreed that the Father’s wages during the relationship were paid into the parties’ joint bank account.
The Mother agreed that in early 2014 when she committed self-harm the Father had suggested to her that she go to a hospital. The Mother stated she spent one night in a hospital and she agreed that she had disclosed to the hospital some traumatic events that had occurred in her life including during her childhood. The Mother did not dispute that the hospital recommended to the Mother that she obtain a referral to a clinical psychologist stating that she in fact saw one in Suburb AD having obtained a referral from a GP at Suburb W.
The Mother agreed that previously (post separation) she had sought the Father’s assistance when the eldest child was misbehaving, and when that child was not doing his reading or homework. The Mother agreed that the Father’s assistance had been effective in getting the eldest child to behave. The Mother agreed that the eldest child will become more challenging in the years ahead. The Mother stated that the Father was not inarticulate. The Mother was asked what the Father’s best qualities were as a father to which the Mother replied, “He’s their father”.
The Mother agreed that the parties in March 2016 attended a mediation and agreed on a parenting plan which provided effectively for the children to spend time with the Father for 9 nights out of each 28 days, together with holiday time.
The Mother stated that until August 2020 the children’s time with the Father went up and down but the Father had every weekend with the children “pretty much”.
The Mother was questioned about the children’s statements to the family consultant at the Child Inclusive Conference on 24 November 2020. In relation to the eldest child’s statement that the Father was lying to the Court about the amount of time that the children were spending with him, and that this prevented the Mother from getting paid, the Mother stated that this was something that she believed.
It was put to the Mother that she and the Father can presently work together (in relation to the children) to which the Mother responded, “It seems that way now.”
The Mother agreed that she had chosen AL School for the eldest child because that school could provide extra help for him. She had discussed this high school for the eldest child with the Father and he had agreed.
The Mother agreed that she had sent a text message to the Father in February 2021 stating that fortnightly time between the children and the Father was what she wanted from day one in mediation. She stated that she had wanted such time between the children the Father from separation. She stated that she later ceased wanting that time but could not provide a date.
The Mother was asked whether she had ever hit the Father and the Mother stated that towards the end of their relationship she had hit him three or four times but not with a closed fist.
The Mother confirmed to the Court that the children had not been abused by the Father after the interim Orders of November 2020.
The ICL cross-examined the Mother.
The Mother was asked what orders she wanted the Court to make and she responded that she wants orders that can protect the children and keep them safe. He again refer to supervised time but stated that she had been told that the Court does not do that (impose indefinite supervision).
It was suggested to the Mother that the Father has a capacity to get the children ready for school (if the children were spending time with him) to which the Mother responded that the Father would find that difficult and that was where her concern was. Elaborating she stated that the Father may get the children ready for school but would hurt them.
The Mother was asked why she sought an order for no time between the children and the Father. The Mother replied that she believed that only positive people should be part of the children’s lives so that there are good role models for them. She stated that she does not want the children to be influenced badly and the Father would not be a good role model.
The Mother was asked why she telephoned the Father for help with discipline of the children if the Father could offer nothing as a parent to them. The Mother replied by stating that over the telephone the Father could not heard the children.
The Mother was asked how she would discipline the eldest child if he would not comply with her request to get off his PlayStation. The Mother replied by stating that she would tell the eldest child that it was bedtime. She stated that she had taken the cord for the PlayStation and there had been conflict between herself and the eldest child.
The Mother was questioned in relation to her failing to facilitate the children spending time with the Father after 2 August 2020. The Mother’s attention was drawn to her earlier oral evidence that she had wanted the children to be safe. In this context the Mother was asked whether between August 2015 and August 2020 the children were not safe. The Mother replied that they were not safe and she was worried what the Father would do. She stated that after the house fire the Father wanted an agreement for child support and that he started Court proceedings and the Mother thought she was being attacked and the Father would keep the children. The Mother was asked when the Father commence Court proceedings and the Mother stated that it was July 2020 (the Court observes that the Father commenced proceedings on 2 September 2020).
It was put to the Mother that she knew that the Father was not trying to keep the children to which the Mother replied that she was legally advised to withhold the children from the Father.
The Mother agreed that from her trial Affidavit there were no allegations of any incidents of abuse or violence at any changeovers since the interim Orders on 26 November 2020.
The Mother was asked whether her work as a sex worker affected her psychologically to which the Mother responded, “Of course it did”.
It was put to the Mother that her allegation that the Father would make her other children (to Mr J), as a form of discipline, write lines for about six hours each day, for 3 or 4 months at a time was an exaggeration, to which the Mother responded in the negative.
The Mother agreed that three of her four other children (to Mr J) were present in Court. In this context the Mother stated that she talks to her other children all the time.
The Mother agreed that she had been in an abusive relationship with Mr J. She stated that she had been in an unhealthy relationship with the Father. She agreed that she had suffered childhood abuse and that some of that abuse was sexual in nature.
The Mother stated that the children were enrolled at AM Centre before and after-school care except those Friday afternoons when they spent time with the Father. The Mother stated that if she works on a shift at her employer that starts at 7 AM and goes to 10 AM. She stated that normal shifts at her employer were from 8:45 AM to 5 PM (in winter 4 PM). She stated that if she does a 7 AM shift she drops the children off at 6:30 AM and collect them at 6 PM.
Exhibits
The Court does not propose to discuss all the exhibits in evidence.
Exhibit A, being certain income tax material of the Father to the ATO, indicates that he disclosed a taxable income from 2009/2010 to 2014/2015 ranging from about $30,000 per annum to about $59,000 per annum. This stated income of the Father was inconsistent with the Mother’s allegations in paragraph 16 of her trial Affidavit that the Father had not worked throughout most of the parties’ relationship and he was reliant on the Mother’s income and Centrelink benefits.
Child Inclusive Conference held on 24 November 2020
Mr Hammat described his relationship with Ms Hammat as “toxic” and describe frequent mutual arguments and name calling. He said that she slapped him multiple times in arguments. He said that he also slapped her, but that this was usually in retaliation for her actions. Mr Hammat said that Ms Hammat did not injure him and that he was not scared of her.
The Mother stated that both children, particularly the eldest child, miss the Father.
Mr Hammat stated that he had an addiction to marijuana many years ago, and that he has also “dabbled” in other drugs, but that he has not used illicit substance since 2005. He said that he completed hair follicle testing in September 2020 which showed that he had not used drugs or alcohol for three months prior to the test. He said that he drinks one or two drinks on rare occasions.
Ms Hammat said that she has not experienced mental health difficulties since separating from Mr Hammat, but that the current Court proceedings are causing her anxiety. Ms Hammat presented as highly distressed throughout the interview, particularly when discussing allegations of Mr Hammat’s abuse of her and her children, and the impacts of this.
Ms Hammat said that she is currently on a waitlist for domestic violence counselling and for counselling through a women’s health service.

Mr Hammat denied experiencing any mental health difficulties, but said that he had accessed counselling around the time of his separation from Ms Hammat, after Ms Hammat stopped participating in relationship counselling.
Ms Hammat said that Mr Hammat was seeing a psychologist around the time of their separation, and that the psychologist recommended he seek psychiatric assessment, but that he did not. She said that he was prescribed anti-depressant medication, but that he refused to take it.
Ms Hammat said that she and Mr Hammat had communicated regularly in regards to the children, but that negotiations were always worked out in his interests.
Mr Hammat described X as reserved and quiet. He said that X is polite and is very attached to Ms Hammat. He said that X loves gaming. He said that he has no concerns regarding X’s development, but that he needs some assistance with his reading, due to extend time off school this year.
Ms Hammat described X as a “happy, little boy” and said that he loves playing. She said that he has good friends and that he tries hard at school.
Mr Hammat described Y as “my shadow” saying that she is very attached to him. He said that Y is good at school and likes to “impress”. He said that her reading progressed well during her time off due to COVID-19 restrictions and that she gets along well with other children.
Ms Hammat described Y as “funny” and “outspoken”. She said that Y is good at school, but can bully other children a little.
X said that it makes him sad not see Mr Hammat, and that he loves Mr Hammat, even if “maybe right now he is not being the greatest of Dads”. He explained that Mr Hammat is lying to the Court about the amount of time that the children are spending with him, and that this prevents Ms Hammat from getting paid. He said that Mr Hammat had been bragging that he would buy a new PlayStation, as soon as it is released.
X said that Mr Hammat never lies to his own children or hurts them. He appeared to consider his words, saying “I’m not allowed to say that” or “I should be able to say this”. He spoke about Mr Hammat making X’s older siblings stand on one foot, holding books for a whole day, and said that this was “pretty evil”. He said that he has not witnessed this himself, but he has heard Ms Hammat talk about it. He also describe Mr Hammat as “lazy”, and said that Mr Hammat does not take them places, and that only the paternal grandparents take them out. He said that Mr Hammat only smacks them if they do something really bad, and he described biting Y’s finger, causing him to be smacked and to be banned from using his console. However, he said that Mr Hammat allowed him to play on the console again after three hours.
X said that he hopes that he sees Mr Hammat again soon because it has been six months, and that it is boring just living in one house. He also mentioned missing his paternal cousins.
Y said that she likes going camping with Ms Hammat. When asked to describe Ms Hammat, she spoke about Ms Hammat’s physical characteristics. She said that Ms Hammat does not like having children, because she does not like them fighting. She said that Ms Hammat smacks them when they fight, but that this does not hurt. However, she later said that Ms Hammat smacks them when she is angry and it hurts a lot. She later said that she wished Ms Hammat did not get angry with them because she gets angry often.
Y said that if Mr Hammat gets angry at them he threatens to confiscate their devices. She said that he only follows through with this sometimes. She said that Mr Hammat just sleeps and does not take them anywhere, except bowling with their cousins. She said that Mr Hammat loves the children to live with him, and that she misses him a lot, and misses playing on his phone.
Y described Mr Hammat getting angry, and fighting with the paternal uncle. She said that glass shattered and described them bleeding.
The family consultant stated, inter alia, that both children appear to view their relationship with Mr Hammat positively, and appear distressed at their separation from him.
The family consultant stated that the children appeared to be aware of a number of adult issues, including Court proceedings and detailed accounts of family violence, which they were not witnesses to. It is recommended that each of the parent avoid discussing details of Court proceeding and parenting arrangements with the children, and ensure that other adults in their households also refrain from discussing these topics in the presence of the children. It may be beneficial for the children to participate in The Anchor Program, which provides support for children of separated parents.
The family consultant stated that X expressed worry for Ms Hammat, and Y expressed concern regarding Ms Hammat’s anger. It appears that the children are very aware of Ms Hammat’s mood and are impacted by her distress. It is highly recommended that Ms Hammat prioritise seeking counselling for herself, in order to allow her to focus on the needs of the children. It may be that Ms Hammat is eligible for counselling through the Victims Services Support Scheme, or that she may access private psychological support through her GP.
The Court accepts the evidence of the family consultant.
Family report
The Family Report of Ms H is dated 20 July 2021. The Court does not propose to set out the entirety of such report.
The Family Report writer interviewed the parties’ and children on 25 May 2021. She interviewed the paternal grandmother on 7 July 2021, and she interviewed Mr L (maternal sibling) on 16 July 2021.
Each parent reported one Apprehended Domestic Violence Order (ADVO) between them, made after their separation, naming Mr Hammat as the defendant and Ms Hammat as the person in need of protection. Each parent reported that there was an ADVO made protecting Mr M from Mr Hammat, after the parents’ separation. Each parent also reported that there is currently an ADVO in place naming Mr M as the defendant and Ms Hammat as the person in need of protection.
Ms Hammat reported that she has received a diagnosis of Complex Trauma and that she is accessing counselling and anti-depressant medication.
Mr Hammat presented as calm and appropriate. He said that he was emotional when it was time to see the children after not spending time with them for four months, but that he contained this emotion. He said that the children were happy to see him and that they appear to be happier in general since recommencing their time with him.
Mr Hammat described X as a “typical little boy”. He said that their relationship is “beautiful”. He said that X is popular and that he has taken X to play dates and parties’ when X is in his care. He said that X is also very attached to his cousins. He described X as polite and said that X does not argue with him, and that it is strange that Ms Hammat raises concerns regarding X’s behaviour because these do not occur in Mr Hammat’s care.
Ms Hammat appeared distressed, crying throughout the majority of the interview.
Ms Hammat said that, apart from missing out on important events, the (parenting) arrangements were “okay”.
Ms Hammat described X as a “normally a happy little boy” who has many friends and is polite and a “good little boy”. She said that he is “amazing” at swimming, and is enjoying this. She said that he struggles with his school work. Ms Hammat said that X enjoys reading “AN” books and playing video games, particularly Fortnite.
Ms Hammat described her relationship with X at present as “challenging”. She said that generally they have a good relationship, although he does not like it if she yells at him. She said that at the moment she is not sure how to respond to his distress other than to be there for him and cuddle him.
Ms Hammat said that her relationship with Y is really good, and close at the moment. She said that she has been teaching Y to crochet, which is challenging for Y, but that Y persists.
Ms O (aged 58 years) presented as calm and appropriate. Her views and her account of the children’s relationships aligned closely with Mr Hammat’s. She said that she and the paternal grandfather, Mr AP, care for the children, when they are with Mr Hammat, and often take them out to spend time with their paternal cousins, or to do other fun activities.
Ms O said that she understands that Mr Hammat is proposing that the children spend half of their time in his care. She said that she is supportive of this proposal, and of the children spending more time in their household. She said that she loves the children and loves to be with them. She said that she, Mr Hammat and Mr AP all share the care of the children, and that if the children were there during the school week, Mr Hammat would drop them off at school in the morning and she would pick them up in the afternoon. She said that she has an unrestricted driver’s license and a suitable car to transport them in.
The Father said that he and Ms Hammat had each slapped the other on occasion.
Mr L (Mr L) said that during the time Mr Hammat and Ms Hammat were together, he often witnessed violence, perpetrated by Mr Hammat towards Ms Hammat. He alleged that Mr Hammat hit Ms Hammat with open hand and a closed fist, and would ensure that the children witnessed this, to act as a warning to them too. He alleged that Mr Hammat was very abusive towards Ms Hammat’s animals, kicking her dogs “in the nuts”, and that he set cat traps to protect his birds killing the cats that he caught. He said that Mr Hammat was controlling of the entire household.
The Mother said that Mr K had maintained a relationship with Mr Hammat after their separation.
Mr J said that Mr Hammat was controlling and punitive to all of Ms Hammat’s older children, grounding them for excessive periods of time, and making them stand against the wall for long periods of time with their arms in the air, or holding books. He said that Mr M was grounded “for years”, only allowed to stand against the wall and write lines. He said that Mr Hammat made them write notebooks full of lines, such as “I will listen to Mr Hammat”.
Ms Hammat reported that X has outbursts, throwing things at her or Y, because he does not know how to express his feelings otherwise. She expressed helplessness and upset at X’s distress, and agreed that this behaviour is out of character for him.
Mr J said that he does not believe that Mr Hammat currently behaves in an abusive manner towards X and Y, however, he expressed concern that this may change as the children mature, particularly in the “rebellious teenage years”.
Mr J did not express any concerns for Ms Hammat’s care of X and Y. He said that he was previously concerned for the family’s financial situation, but that this has not been a concern since Ms Hammat began her job. He said that Ms Hammat parents X and Y in the same manner that she parented her older children, and explained that “she would sacrifice anything” for her children.
Ms Hammat said that she suffered from Complex Post-traumatic Stress Disorder and that she has begun to receive family violence counselling. She said that she was prescribed anti- depressant medication, when the current conflict with Mr Hammat escalated, and that this was helpful to her. She said that she now becomes upset when she considers her past and her relationship with Mr Hammat, but that she considers this to be a normal reaction to the circumstances. She stated that she tries to contain her distress in the presence of the children, but acknowledged that the children probably have some awareness of how she is feeling.
Mr Hammat maintained his position, as stated in the CIC that he and Ms Hammat had a positive and cooperative co-parenting relationship, until he attempted to challenge the financial arrangements that were in place. He said that since Court Orders have been put in place, they have begun to co-parent cooperatively again.
Ms Hammat said that her communication with Mr Hammat at present is limited and she only responds to him as needed. Ms Hammat said that Mr Hammat had previously offered to have the children for extra time, when she was struggling with issues with her older children, and he had told her that this would not impact on child support and he would not use it against her. However, then when she was homeless, he went to the child support agency and Centrelink to challenge previous payments, leaving her thousands of dollars in debt.
Ms AO said that the children are “in good hands” with Mr Hammat and with Ms Hammat, and that she loves Ms Hammat, and wishes Ms Hammat would visit and have a coffee with her, for the benefit of the children.
Mr J said that he is Ms Hammat’s primary support, amongst her older children and that she relies on him somewhat.
X described Ms Hammat as “nice”. He said that she takes care of them, makes them food and ensures that they are safe, as well as taking care of their puppy.
X described Mr Hammat as “nice”, but often tired. He said that Mr Hammat does nightshifts, but that he still spends time with them. X said that his paternal grandparents care for them and take them to visit their cousins, go shopping with them and cook food for them.
When asked about his preference for parenting arrangements, he said that he would like to spend more time with Mr Hammat, and he described a week-about arrangement, staying with each parent from Wednesday to Wednesday each alternate week.
X said that his parents are friends and that they do not yell at each other, like they did six years ago. He then said that he does not remember this.
Y said that Ms Hammat has blonde hair and that she is a “dog mum”, who likes dogs and has lots of dogs. She said that she crochets with Ms Hammat and Ms Hammat helps her practise every night, because it is hard.
Y said that she likes to spend time with Mr Hammat and that they play soccer and video games.
Y’s views on her parenting arrangements were unclear. Y said that she would like to spend time with her both of her parents together. She said that she would like to “do stuff” with Ms Hammat and “do more stuff” with Mr Hammat.
She said that if they spent more time with Mr Hammat she would miss Ms Hammat. When asked, she said that she misses Mr Hammat when she is not with him as well.
The observation sessions between the children and each parent were positive.
The Family Report writer provided her Evaluation.
Ms Hammat reported that she has received a diagnosis of Complex Post Traumatic Stress Disorder. This indicates, as stated by Ms Hammat, that she has experienced chronic trauma at times in her life, beginning in childhood. It appears that Ms Hammat is able to distinguish her own distress from the distress of the children, however, she may at times have difficulty containing her distress in order to support the children. This is an expected response to long- term exposure to trauma, and a reduction in exposure to trauma-triggering stimuli for Ms Hammat is likely to be beneficial for her and the children. It appears that the children, particularly X, are very aware of, and impacted by, Ms Hammat’s emotional state. Ms Hammat said that she is accessing family violence counselling, which is likely to be beneficial to her and to the children, particularly if her account of her relationship with Mr Hammat is found to have veracity. However, it may be that, in the long term, she will benefit from more intensive psychological therapy, aimed at treating the symptoms of trauma. Ms Hammat may also benefit from psychiatric review.
Contrary to the Child Inclusive Conference, X appeared accepting of his parents’ divorce. X seemed confused regarding his accounts of incident he may have witnessed, as opposed to those he has just heard about.
Mr Hammat indicated that Y has experienced anxiety in regards to separating from him, and Ms Hammat appeared to indicate that X has expressed anxiety regarding her safety. It is not clear if these anxieties are related directly to the children’s experiences or may be due to the influence of one or both of their parents. It is recommended that the children be supported to engage with The Anchor program, when available, in order to support them in processing any distress and anxiety around their changed parenting arrangements. Given the children’s apparent anxiety and lack of clarity regarding their experiences, it is recommended that little weight be given to their views.
Ms Hammat proposed that the children live with her. She was unable to make clear proposals as to whether the children should spend time with Mr Hammat. If Ms Hammat’s account of family violence is found to have veracity, it is likely that ongoing contact with Mr Hammat, including co-parenting in any capacity, will be detrimental to Ms Hammat’s mental health. If Mr Hammat has perpetrated family violence, as per Ms Hammat’s account, and if the Court finds that he continues to perpetrate this violence, through a coercive co-parenting dynamic, including involving the children by undermining their relationship with Ms Hammat, and by using intimidation to control them, as discussed above, it appears unlikely that Court orders will mitigate this dynamic, and it is recommended that the children spend no time with Mr Hammat.
Mr Hammat proposed that the children live with him and Ms Hammat in an equal time arrangement. As discussed above, despite Mr Hammat’s assertion that he and Ms Hammat can recommence a mutually supportive co-parenting relationship, it appears unlikely that this will be possible to the extent that would be required to make such an arrangement beneficial to the children.
The family report writer stated that if the Court finds veracity to Mr Hammat’s account of family violence and the co-parenting relationship history, it is recommended that his time with the children increase. However, it is also recommended that the children have the opportunity to spend meaningful recreational time with each of their parents and each side of their extended families. An arrangement such as one in which the children spend time with Mr Hammat each alternate week from Thursday night to Monday morning, and one evening in the intervening week would provide for Ms Hammat to continue primarily managing the children’s educational and medical needs whilst providing them with the opportunity to increase their time and their relationship with Mr Hammat.
In this case it is recommended that the parents share parental responsibility in order to provide the children with the benefit of active participation of each of their parents in their lives. It is recommended that the parents communicate by email only and that changeovers occur in a neutral location, and that each parent ensure that they adhere closely to orders, in order to reduce the likelihood that the children will be exposed to ongoing parental conflict. In this case, it is recommended that the parents participate in a Parenting Orders Program, such as Keeping Contact.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of such evidence.
Counsel for the Father cross-examined the family report writer.
The family report writer stated that she was conscious of the fact that the Mother had had a whole range of other problems going on in her life for many many years.
The family report writer’s attention was drawn to paragraph 18 of her Child Inclusive Conference Memorandum relating to the Mother’s reasons for withholding the children from the Father in about July 2020 and this evidence was given:
Right. So there’s been some evidence about him not sending the kids to school during that six weeks. There was a few weeks left before term. He had employment issues. He said that this was all explained and they had school holidays. Perhaps I might just ask you this evaluatively. Do you think that therein lies a justification for a unilateral suspension of time with the children, which you’ve outlined in paragraph 18, a reasonable justification to suspend time completely, including telephone time? I – I would probably not recommend, based on those factors, that the children be retained.

The family report writer gave this evidence in relation to the Anchor program:
Do you want to say anything about, going forward for this family and these children, the children doing – in fact, doing this Anchor course? I
And wrapped up in that question, if you could indicate briefly what the nature of that course is? Yes. So The Anchor course is something that’s specifically aimed at children from separated families, helping them to adjust to, I guess, changes in their family and helping them to understand – understand what’s happening and to – to be able to express themselves around those things. I – I do still think that’s probably going to be beneficial for [X] and [Y], given that they are still clearly being exposed to conflict, and they’re, no doubt, still aware that Court proceedings are ongoing, and given concerns for [X’s] behaviour, I certainly think that he could – he could probably use some support around that. If The Anchor program was not available or not appropriate, then it might be appropriate if they accessed some – some counselling with a clinician who is experienced in working with separated families just to, I guess, help them provide an independent – independent support and point of view around their family situation.
The Court accepts the evidence of the Family Report writer, subject to any contrary view of the Court, whether express or implied, as indicated below under s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
Relevant legal principles
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
THE BEST INTERESTS OF THE CHILDREN
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have meaningful relationships with both parents and will benefit from a continuance of those relationships.
Should the children spend time with the Father in accordance with the ICL’s proposed Minute of Orders (but with the children’s school term-time time with the Father to be implemented on a graduated basis), there is a significant prospect that the children’s meaningful relationship with the Father can be maintained and enhanced.
The children have been spending regular time with the Father since separation in March 2015, apart from a period in the second half of 2020 when the Mother withheld the children from the Father. Should the Court make the Mother’s proposed no-time Order relating to the children and the Father there is a significant risk that the children would experience grief, distress and confusion. There is also a significant risk that they would experience longer term adverse consequences in terms of their sense of identity and their relationship with the Mother. The Court refers to the evidence of the family report writer in this context.
In relation to the Father’s proposal, submitted to the Court during oral submissions, that it adopts the ICL’s proposed Minute of Order, save for the Wednesday night in the off week which should carry over to the following Thursday morning, the Court is of the view that this proposal of the Father (that is, relating to the Wednesday in the off week) would effectively result in the children spending five nights each fortnight with the Father during school term times which is a parenting arrangement approaching an equal time arrangement; the Court has a significant concern that the parties’ would not be able to successfully implement such a parenting arrangement representing five nights each fortnight during school term times without conflict.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Mother makes significant family violence allegations against the Father including allegations that he perpetrated family violence of a coercive and controlling nature. The Mother makes very serious allegations against the Father of family violence perpetrated against the Mother’s four children from her relationship with Mr J. These allegations included allegations of animal cruelty by the Father.
The Father significantly denies all these allegations made by the Mother although he does admit to certain discrete occasions during the parties’ relationship when he physically slapped the Mother in retaliation for the Mother’s conduct against him. The Father admits to pushing the Mother resulting in the Mother falling over during an argument and after the Mother pushed him. The Father does admit to an inappropriate form of discipline upon two of the Mother’s children in requiring them to stand up against a wall for a period of time. The Father admits to shooting a BB gun at a cat in the context of protecting his pet birds. The Father admits to kicking the Mother’s car out of frustration and anger. And the Father does admit that during the parties’ toxic relationship the parties’ verbally abused each other.
On the balance of probabilities, the Court is not persuaded that the Father perpetrated family violence (including both alleged physical and coercive and controlling family violence) against the Mother’s children from her relationship with Mr J, as alleged by the Mother.
On the balance of probabilities, the Court is not persuaded that the Father perpetrated family violence (including both alleged physical and coercive and controlling family violence) against the Mother, as alleged by her, apart from those discrete instances where the Father makes admissions, as described above.
On the balance of probabilities, the Court is not persuaded that the Father perpetrated animal cruelty as alleged by the Mother.
In relation to the above findings relating to family violence, the Court takes into account the following matters (including making findings):
(A)the Father’s denials of the Mother’s allegations, in his trial Affidavit, in his oral evidence, and in his statements at the Child Inclusive Conference and during interviews for the family report;
(B)the Mother’s exaggerated evidence (see paragraph 33 of her trial Affidavit which was confirmed in her oral evidence) that the Father made the children write lines for about six hours each day, for 3 or 4 months at a time;
(C)the Mother’s inconsistent behaviour in facilitating the children spending regular time with the Father since separation in March 2015 (apart from the Mother withholding the children from the Father for a period in the second half of 2020), including regular weekend time and block time during school holidays;
(D)the Mother makes no allegations against the Father that the children have been abused or inappropriately disciplined by the Father since separation to date, in circumstances where the children have spent regular time with the Father during that period (apart from a period in the second half of 2020 when the Mother withheld the children from the Father). In this context, the Court further observes that the Mother was content to have the Father care for the children when she travelled to Melbourne;
(E)the Mother, when legally represented at a mediation, in October 2020, agreed with the Father to proposed interim parenting Orders relating to the children spending regular time with the Father;
(F)in relation to the Mother’s adult children from her relationship with Mr J who were allegedly subjected to severe physical punishment by the Father through the use of a strap resulting in alleged bruising had thereafter attended school, there were no observations made by school staff or other school students in relation to such bruising, and nor did the Mother have these children attend upon a Dr for medical treatment;
(G)the Mother’s unreliable evidence, which the Court does not accept, that the Father did not work throughout most of the parties’ relationship and that he was reliant on the Mother’s income and Centrelink benefits. In this context, the Court refers to the Father’s ATO income tax material in Exhibit A referring to not insignificant taxable incomes of the Father from 2009/2010 to 2014/2015;
(H)the Mother’s unreliable evidence, which the Court does not accept, that the Father, in about October 2015, attempted to kick in the Mother’s front door, with the police attending and taking no action against the Father, in circumstances where there was an extant ADVO protecting Mr M from the Father and dated 24 August 2015 (this ADVO is annexed to the Mother’s trial Affidavit, being annexure A);
(I)it is possible that the Mother’s emotional presentation when giving oral evidence, and when seated in the Court room, involving, at times, crying and sobbing, may have had some causal connection with her history of abuse since a young person prior to meeting the Father (for example, childhood abuse including sexual abuse, family violence at the instance of Mr J, psychological impact from working as a sex worker, and physical abuse at the instance of Mr M including exposure to self-harming behaviour by Mr M). A history of abuse to the Mother was referred to in the report of Ms G, psychologist, dated 12 April 2021, Exhibit C, in the context of this psychologist purporting to make an apparent diagnosis of PTSD in the Mother. The Court should state that it places no significant weight upon this apparent diagnosis nor her opinion that the Mother’s alleged reported experiences of severe physical and psychological abuse while living with and since separating from the Father had likely further exacerbated her trauma symptoms; Ms G did not provide an Affidavit and nor was she called as a witness to give oral evidence such that her opinions could have been tested by cross-examination;
(J)the Mother gave evidence that she has successfully sought and received the Father’s assistance with disciplining the child X since separation on occasion;
(K)Ms N spent time with the Father every weekend from Friday until Sunday night for two months after August 2015 (the children were also spending time with the Father at this time);
(L)the Mother failing to adduce evidence from any of her adult children from her relationship with Mr J relating to her serious allegations that these children were subjected to serious physical and other family violence at the instance of the Father, and exposed to alleged animal cruelty. In this context, pursuant to Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, the Court draws an inference that the evidence of these children would not have assisted the Mother’s case relating to alleged family violence. The Court is of the view that it was reasonable to expect the Mother, as opposed to the Father, to have called such evidence from these adult children; inter alia, three of these children were in attendance at the trial supporting the Mother. And further, the Court places no significant weight upon the statements of Mr L (adult child) to the family report writer in relation to his allegations of family violence perpetrated by the Father in view of the Mother’s failure to adduce evidence from him, inter alia, by way of Affidavit (which could then have been tested by way of cross examination).
The Court should state that even if it be incorrect as to the matters discussed in (L) immediately above, it would still have reached its findings as to family violence above.
The Father, again, has admitted to slapping the Mother on several occasions prior to the end of their relationship in March 2015. The Court accepts that the Father did so probably in response to being hit or assaulted by the Mother as he asserts, although the Court does not suggest that this provided any excuse for the Father to do so. The Court accepts that the Father inappropriately disciplined two of the Mother’s children to Mr J by making them stand for an excessive period against a wall in the family home. The Court accepts the Father’s version of events in relation to his physical altercation with Mr M which led to an ADVO against the Father for the protection of Mr M. The Court observes that a significant concern of the Mother was that as the children progress into their teenage years and possibly exhibit challenging behaviours, the Father might impose inappropriate discipline upon them. The Court accepts that the parties verbally abused each other on occasion both during their relationship and post separation and that their relationship, particularly towards the end of their relationship, was a toxic one. The Court accepts that the parties’ verbally abusive behaviour towards each other during their relationship was occasionally witnessed by the Mother’s adult children to Mr J. The Court finds that the Father exhibited anger towards the Mother on occasion, particularly during their relationship, and sought help for such anger in attending upon Ms Z, psychologist, in 2015, for treatment (as at 3 August 2015, the Father had had 10 sessions with the psychologist, and the psychologist had recommended ongoing fortnightly therapy). The Court finds that the Father kicked the Mother’s car whilst frustrated and angry in 2015 with the Mother and children in the car.
Further, in relation to the Mother, the Court finds that the Mother has experienced difficulties in managing the eldest child’s behaviour, on occasion, both in relation to the issue of that child complying with the Mother’s request that he cease his PlayStation activities and attend school. On occasion she has successfully sought the assistance of the Father to manage this child’s behaviour. The Mother has experienced difficulties in managing Mr M’s behaviour. There is some force to the submissions of the ICL and the Father that the Mother’s parenting capacity for the children can be supported through some increase in the time that the children spend with the Father so as to give the Mother some respite from her parenting duties.
The Court should comment as to the Mother’s allegations that she is extremely fearful of the Father. The Court refers to its findings above in relation to the Mother’s allegations of family violence against the Father. The Court does not accept that the Mother is extremely fearful of the Father. The Court accepts that the Mother probably holds some concern in relation to the Father spending time with the children in light of the parties’ prior significantly conflictual relationship. However, the Court does not accept that the Mother’s parenting capacity for the children has been detrimentally affected by reason of this, and does not accept that her parenting capacity for the children will likely be detrimentally affected should the Court make the ICL’s proposed Orders relating to the children spending time with the Father (as discussed above under the meaningful relationship primary consideration). Again, as discussed above, the Mother’s parenting capacity for the children can be supported through some increase in the time that the children spend with the Father. The Court will now give some brief reasons for reaching these views.
The Mother adduces no significant health professional evidence to the effect that her alleged fear of the Father is such that she would experience a significant reduction in her parenting capacity for the children if the Father was to either continue to spend time with the children or spend increased time with the children as proposed by the ICL or otherwise. The Mother works in a casual position for Employer AG. She continues to be the children’s primary carer and the Court would assess that she has a not insignificant parenting capacity for them. The Father, in his evidence, refers to the Mother’s positive parenting capacities.She is significantly involved in the children’s lives including their schooling and other activities. The Court would infer that the Mother possesses not insignificant personal resilience having endured: previous work as a sex worker, previous parenting proceedings involving Mr J, the behavioural difficulties of Mr M, having acted for herself in defended AAT proceedings against the Father, and these proceedings. The Mother’s text message exchanges with the Father in Exhibit E suggest some personal resilience in the Mother, at least in May 2019. The Mother has successfully, together with the Father, facilitated the children spending regular time with the Father post-separation to date, apart from a period in the second half of 2020 when the Mother withheld the children from him. She attends upon a psychologist and counsellor, Ms G, from the Suburb AD DV service on a weekly basis. She also attends upon her GP regularly. She has been prescribed Zoloft 100mg which she takes daily in accordance with the directions of her GP.
Having regard to and taking into account the above discussed matters, there should be no unacceptable risk of harm posed to the children in spending unsupervised time with the Father, as proposed by the ICL, provided the following orders are made:
(A)the Court makes Orders as proposed by the ICL in terms of the proposed therapy and other courses that the parties’ and children attend (see proposed Orders 18 to 24), and
(B)the ICL’s proposed time-with Orders in relation to the children spending time with the Father during school term time are introduced gradually. Such graduated time will both afford the children time to become accustomed to the new parenting regime and allow the parties’ and children time to seek to begin to attend the therapy and other courses.
The evidence of the family report writer is consistent with the above views.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The Court places some but not significant weight on the children’s views in relation to spending time with the Father. In this context the Court observes that by the time the children spoke with Ms H, at both the Child Inclusive Conference and during interviews for the family report, they had spent significant and regular time with the Father since separation.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
The children enjoy positive relationships with their grandparents and stepsiblings.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties’ would appear to have each taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties’ appear to have maintained the children whilst they were in each parties’ respective care post separation. The Father has paid child support since separation.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations. There should be no significant detrimental impact upon the children’s meaningful relationship with the Mother should the children spend time with the Father as discussed above under the meaningful relationship and need to protect primary considerations.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not applicable
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
The Mother, from about early August 2020 and up to about the time of the Court’s interim parenting Orders of 26 November 2020, failed to facilitate the children spending time with the Father; this indicated limited insight into the emotional needs of the children, particularly bearing in mind the children’s meaningful relationship with the Father. On the balance of probabilities, the Court does not accept that the Mother had failed to facilitate the children spending time with the Father during this period because of her alleged concerns, including her alleged concerns relating to the children’s safety, and her alleged concern that the Father would not return the children after they had spent time with him; rather, it is likely that the Mother took such action by reason of her dissatisfaction (including dissatisfaction for financial reasons) with the Father making an application to vary child support following her house fire. This behaviour of the Mother was not child focussed whilst the Court acknowledges that at about this time the Mother was under not insignificant stress by reason of, inter alia, the house fire.
Apart from the above instance, the Mother has demonstrated capacity to provide for the children’s needs.
The Father has such capacities to provide for the children’s needs and he will likely be able to maintain such capacities through completion of the ICL’s proposed courses for the Father referred to in the ICL’s proposed orders. The Court, on balance, is not critical of the Father for his inability to have the children attend school for some 3 weeks in about mid 2020 and accepts his evidence in this regard.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Court refers to its discussions above under the primary considerations and additional considerations.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the primary considerations.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
The Court refers to its discussions of the evidence in relation to ADVO proceedings and related Orders.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court is of the view that the ICL’s proposed final parenting Orders (as discussed above under the meaningful relationship primary consideration), in contradistinction to the Mother’s proposed final parenting Orders, would be least likely to lead to the institution of further proceedings in relation to the children. In this regard, the Court refers to its discussions above under the primary considerations; in particular, and again, if there is an Order for no time between the children the Father there is a significant risk that the children will experience adverse emotional and other outcomes.
m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
PARENTAL RESPONSIBILITY
The ICL and father both seek an Order for equal shared parental responsibility in relation to the children. The Mother seeks an order for sole parental responsibility.
In the view of the Court, it will be in the best interests of the children that the parties’ have equal shared parental responsibility for them. An order for equal shared parental responsibility will require the parties’ to reach agreement in a timely fashion in relation to any major decisions that need to be made to the children, such as schooling or significant medical procedures. Such an order will assist in the maintenance of the children’s meaningful relationship with the Father.
The parties, post separation to date, and in particular after the commencement of these proceedings in September 2020, on significant occasions, have been able to effectively communicate in relation to the children without significant conflict. They usually communicate through text messages with each other. The Court acknowledges that on occasion the parties’ text message exchanges have been unsatisfactory (for example, see text message exchanges between the parties’ in May 2019 in Exhibit E). There have been no significant and prolonged disagreements between the parties to date relating to the children’s schooling, religion or possible medical procedures. Should the parties complete the courses proposed in the ICL’s proposed Orders there is a significant prospect that such courses will assist the parties in communicating with each other in relation to any major decisions that need to be made for the children.
It will not be in the best interests of the children to be subject to an equal time parenting arrangement. Despite the parties’ communications with each other post separation through text messages discussed immediately above, the Court is of the view that the nature and level of communication with each other is probably insufficient to enable an equal time parenting arrangement to work successfully. Their co-parenting relationship and level of trust between them is probably insufficient to permit an equal time relationship to work successfully. The evidence of the family report writer is consistent with these views.
The ICL’s proposed time-with orders (as discussed above under the meaningful relationship primary consideration) will probably constitute substantial and significant time with the children, and will be in the best interests of the children. In passing, it will probably be reasonably practicable for equal time or substantial and significant time-with orders to be made.
Summary
Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the child to make the following interim parenting Orders:
1.That the Mother and Father shall have equal shared parental responsibility for the care, welfare and development of the children X born in 2011 and Y born in 2013 ("the children").
2.The children shall live with the Mother.
Spend time
3.The children shall spend time with the Father:
(a)For 3 months from the date of these Orders, each alternate week from after school Friday until start of school Monday. If in any week the children are not at school and the school holiday provisions of these orders do not apply, then the times shall be 3pm Friday to 8am Monday;
(b)Thereafter, each alternate week from after school on Thursday until start of school on Monday. If in any week the children are not at school and the school holiday provisions of these orders do not apply, then the times shall be 3pm Thursday to 8am Monday;
(c)After the period of 3 months from the commencement of the children’s time with the Father in Order 3 (b) above, in the week when the children are not spending time with the Father, they shall spend time with him from Wednesday after school to 7 pm and, if the children are not at school and the school holiday provisions of these orders do not apply, from 3pm to 7 pm.
4.That during the Terms 1, 2 and 3 school holiday periods, the children shall spend time with the Mother and Father week about and for this purpose:
(a)the parent who would ordinarily have the children in their care at 3:30pm on the Friday of the last day of school attendance in accordance with these orders shall have the first week and each alternate week thereafter;
(b)the other parent’s time shall commence at 3.30pm on the following Friday and each alternate week thereafter ; and
(c)Changeover shall occur at 3.30pm on Fridays unless otherwise agreed to between the parents in writing.
5.That during the Term 4 school holiday period, the children shall spend half of the school holidays with each parent, with which half to be agreed to between the parents in writing and failing agreement as follows:
(a)In even-numbered years- with the Father for the first half and the Mother for the second half;
(b)In odd-numbered years- with the Mother for the first half and the Father for the second half, and
(c)For the purpose of these Orders, Term 4 school holidays are deemed to commence at 3:30pm on the Friday of the last day of school attendance, conclude at 3:30pm on the Sunday immediately prior to the commencement of the following Term and reach the midway point at 3:30pm on the middle day of the holiday period.
6.That notwithstanding any other order, the children shall spend time with the Mother and Father as follows:
(a)With the Mother from 5pm on Christmas Eve until 7pm Boxing Day each year;
(b)With the Mother from 10am on Good Friday to 7pm on Easter Monday each year;
(c)With the Father from 5pm on the day immediately prior to each Eid until 7pm on the day immediately after the conclusion of each Eid;
(d)On each of the children's birthdays, with the parent with whom they are not spending time with on that day as agreed to between the parents and failing agreement from 5pm to 7pm;
(e)With the Father on his birthday, for 2 hours at such times as agreed to between the parents and failing agreement from 5pm to 7pm;
(f)With the Mother on her birthday, for 2 hours at such times as agreed to between the parents and failing agreement from 5pm to 7pm;
(g)With the Father form 5pm on Friday immediately prior to Father’s Day to 7pm on Father’s Day;
(h)With the Mother from after school on the Friday immediately prior to Mother’s Day to 7pm on Mother’s Day.
7.That unless otherwise agreed to between the parents in writing, changeover shall occur as follows:
(a)At the children's school if it is a school day;
(b)If it is not a school day, at a neutral midpoint location at the commencement and conclusion of the Fathers time pursuant to these Orders.
AND IT IS NOTED that the parent or their nominee may facilitate changeover of the children.
8.Where the children have an activity, sports, extra curricula or social engagement the parent with care of the children will ensure that the children or child attend such activity, sports event or social engagement.
9.That in the event either parent is unable to care for the children on a day which they would ordinarily spend with the children pursuant to these Orders, that parent must first offer the other parent the opportunity to spend time with the children on that day in lieu of them and, only after giving the parent such opportunity is that parent permitted to seek to have a third party care for the children.
10.That the children shall have telephone/ FaceTime communications with the parent with whom they are not spending time with on any day as reasonably requested by the children and as agreed to between the parents and failing agreement on Tuesdays, Thursdays and Saturdays from 5pm to 6pm, with the parent not having the care of the children to place the call on the other parent's phone and the parent having the care of the children to do all things necessary to facilitate the children taking such call.
11.That the parents shall communicate via email and/or text message in relation to parenting arrangements concerning the children, otherwise by telephone in the event of an emergency and such communication shall be courteous and not abusive.
12.Both parents are authorised to obtain all information and documents from the children's school, medical practitioners, extra-curricular and religious activities that parents of children would ordinarily be entitled to receive and each parent shall do all things and sign all documents necessary to ensure that both parents are authorised to and does indeed receive such information.
13.That in the event of either child suffering a medical emergency, the parent having care of the child at that time shall forthwith do all things and sign all documents necessary to:
(a)Notify the other parent of the emergency and keep the parent updated in relation to the state of health of the child;
(b)Notify the other parent of the whereabouts of the child to facilitate the other parent attending that location;
(c)Provide to the other parent all details in relation to the medical facility attended upon and treating medical practitioner; and
(d)Authorize both parents to attend upon the child and receive all information and documents that parents of children would ordinarily be entitled from the medical practitioner/facility to receive, regardless of which parent presented the child.
14.That each parent shall keep the other informed of their residential address, email address and phone number and shall advise the other forthwith of any change in such details.
15.That in the event that either parent intends to move residence, they must give the other parent as much notice as is reasonably practicable and, if possible, no less than one months' notice of the intention to move, including particulars of where they intend to move and the address.
Restraints
16.That the parents are restrained by injunction from denigrating the other parent, members of the other parent's family or household to or in the presence or hearing of the children or either one of them and they shall further make all reasonable efforts to remove the children from the presence and earshot of any third party so denigrating the other parent or members of the other parent's family or household.
17.Both parents are restrained from consuming illicit substances whilst the children are in their care.
Courses
18.Within 7 days from the date of these Orders, the parents shall contact B Families to complete Family Therapy known as “Keeping Contact” and shall provide written evidence of completion of that course to the other parent.
19.The parents are to ensure that the children continue to engage in counselling through Anchor programme or unless as otherwise recommended by the therapist.
20.The Mother shall, if not already done so, forthwith do all things necessary to attend upon her general practitioner for the purposes of obtaining a referral for individual counselling and that she will engage in such counselling as is recommended by such general practitioner or counsellor.
21.The Mother is to comply with all recommendations, including but not limited to attending appointments and taking medication as prescribed, given by her treating mental health care practitioners.
22.The Father shall within 7 days of the date of these Orders do all acts and things necessary including phoning C Counsellors to engage and complete within a reasonable time the Anger Management Course “Managing Anger Group Workshop” and shall provide written evidence of completion of that course to the Mother.
23.Without admissions, the Father shall within 7 days of the date of these Orders do all acts and things necessary including phoning C Counsellors to engage and complete within a reasonable time the “Taking Responsibility – A Course for Men” and shall provide written evidence of completion of that course to the Mother.
24.Upon completion of such course the Father shall do all acts and things necessary including phoning C Counsellors to engage on a continuing basis through C Counsellors in either the “Men Maintaining Change” ongoing support group or the “Men’s Matters” ongoing support group and shall provide written evidence of such ongoing engagement to the Mother.
25.The parents are restrained by injunction from disclosing to the children X and Y, or either one of them, either directly or indirectly, or discussing in their presence or hearing any account of:
(a)The Mother’s history as an escort/sex-worker;
(b)The Father’s criminal history; and
(c)The Father’s drug use history.
26.That the Court be requested to forthwith refund to the Father the setting down hearing fee for 21 June 2022 in the amount of $660.

I certify that the preceding two hundred and sixty-seven (267) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 24 August 2022

File number(s):	PAC 4566 of 2020
Judgment of:	JUDGE NEWBRUN
Date of judgment:	24 August 2022
Catchwords:	FAMILY LAW – parenting - Orders made - best interests of children
Legislation:	Family Law Act 1975 (Cth), ss 60CC, 60B, 60CA, 61DA, 65DAA, 65D
Cases cited:	Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Division:	Division 2 Family Law
Number of paragraphs:	267
Date of last submission/s:	21 June 2022
Date of hearing:	6 – 8 June 2022 and 21 June 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Kenny
Counsel for the Respondent:	Mr Reeves
Counsel for the Independent Children’s Lawyer:	Mr Blank

PAC 4566 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HAMMAT Applicant
AND:	MS HAMMAT Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

order made by:	JUDGE NEWBRUN
DATE OF ORDER:	24 August 2022