Humphrey & Humphrey (No 2) - [2022] FedCFamC1F 640

Federal Circuit and Family Court of Australia
(DIVISION 1)
Humphrey & Humphrey (No 2) [2022] FedCFamC1F 640

File number(s): BRC 4211 of 2019

Judgment of: BAUMANN J

Date of judgment: 31 August 2022

Catchwords: FAMILY LAW – PARENTING – Where the children have had long term exposure to parental conflict –Where the children have expressed wishes as to their living arrangements – Both parents seek a finding that the other presents as an unacceptable risk of harm to the children – No such finding made by the Court – more simple orders made than the complicated and lengthy proposals of the parties – Final order made in the children’s best interests for substantial and significant time

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

Cases cited:
Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430

Humphrey & Humphrey [2022] FedCFamC1F 456

Goode & Goode (2006) FLC 93-286

Hall & Hall (1979) FLC 90-713

Vallans & Vallans (2019) 60 Fam LR 193

Division: Division 1 First Instance

Number of paragraphs: 131

Date of last submission/s: 12 August 2020

Date of hearing: 8–11 June 2020

Place: Brisbane

Counsel for the Applicant: Ms Oakley

Solicitor for the Applicant: Evans Brandon Family Lawyers

Counsel for the Respondent: Mr Minnery

Solicitor for the Respondent: Naughton McCarthy Family Lawyers
ORDERS

BRC 4211 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS HUMPHREY

Applicant

AND:
MR HUMPHREY

Respondent

order made by:

BAUMANN J

DATE OF ORDER:

31 AUGUST 2022

THE COURT ORDERS ON A FINAL BASIS:
1.That all previous parenting Orders in relation to the children, X born in 2007 and Z born in 2011 (“the children”) are discharged subject to the interim Orders as to the time the children spend with each parent continuing until 4 October 2022.
2.That the parents have equal shared parental responsibility for major long term decisions in relation to the children.
3.That the children shall live with the parents during school terms from Tuesday, 4 October 2022 as follows, unless otherwise agreed in writing, namely:
(a)With the mother from after school Thursday, 6 October 2022 to before school Tuesday, 11 October 2022 and each alternate weekend thereafter;
(b)With the mother from after school Thursday, 13 October 2022 to before school Friday, 14 October 2022 and each alternate Thursday thereafter;
(c)With the father at all other times during school terms; and
(d)Where under these Orders for school holiday time the children live with the mother for the first half of school holiday periods, the regime of time under Order 3(a) shall begin on the first weekend after school resumes and if the children live with the mother for the second half of school holidays, the regime shall resume on the second weekend.

4.That for the end of term four (4) school holidays in 2022 and for each school holiday period thereafter the children shall live with the parents, unless otherwise agreed in writing:
(a)in even numbered years with the mother from the conclusion of the school term to 12 noon on the day which is the middle day of the school holidays;
(b)in odd numbered years with the mother from the middle day of the school holidays to the commencement of school for the new term; and
(c)at all other times with the father during school holidays.

5.That the Orders made for school term or holiday time above are to be varied, unless otherwise agreed, to allow the children to spend time with the parents as follows:
(a)With the mother on Mother’s Day, if not otherwise living with her, from 9.00am to 5.00pm;
(b)With the father on Father’s Day, if not otherwise living with him, from 9.00am to 5.00pm;
(c)On the children’s birthdays:
(i)if a school day, from after school to 6.00pm with the parent they are not living with on that day; and
(ii)if a weekend day, from 1.00pm to 5.00pm with the parent they are not living with on that day.

6.That the mother and the father may communicate with the children by electronic means, including telephone, FaceTime and email:
(a)at all reasonable times when initiated by the child; and
(b)at other reasonable times initiated by the parent to the child who is not living with them at the time but no more frequently than weekly.

7.That changeovers shall occur at school on a school day, with the parent who is commencing time with the children being the only parent at the changeover. Changeovers not at school shall occur at McDonalds Suburb AA, with neither parent recording the changeover or prolonging the changeover.

Explanation of Orders to the children
8.That the mother shall, as soon as practicable (but prior to 4 October 2022 if possible), make an appointment for the children to attend upon Mr BB for the purposes of Mr BB explaining these Orders to the children, with the costs of Mr BB to be shared equally. The mother shall have leave to provide Mr BB with a copy of the Reasons for Judgment delivered 31 August 2022 prior to the meeting with the children.

Information sharing
9.That each parent shall ensure that the other parent is kept informed of:
(a)any serious medical problems or illnesses suffered by either of the children, with the other parent to be notified as soon as possible;
(b)any medical appointments attended by either of the children for care or assessment or treatment by any health practitioner or health care facility;
(c)any medical emergencies involving either of the children, with the other parent to be notified immediately;
(d)any medication or course of treatment that has been prescribed for either of the children, including medication or care that needs to be taken during the time the children are in the care of the other parent, with the other parent to be notified as soon as possible and in any event no later than four (4) hours prior to changeover (and with each parent to ensure that the medication travels with the children);
(e)any instance of either of the children not attending school on a school day (including attending any school event), or being late for school, or there being any intention to remove either of the children from school or school related events during school hours whilst in that parent’s care pursuant to these Orders, with the other parent to be notified as soon as is practicable that day but by no later than 3.00pm; and
(f)any change to the parents’ residential address, contact mobile telephone numbers and email addresses, with any such changes to be advised within twenty four (24) hours of a change.

10.That this Order operates as any authority necessary for any school attended by the children or any health professional who may treat either of the children, and any professional care provider of either of the children to release, upon request of either parent, any information (or documents) to either of them concerning the care, welfare and development of the children. Should either parent seek any document in relation to the children (including but not limited to school photographs and school photograph order forms), both parents shall be at liberty to do so, with any costs associated with such request to be borne by the requesting parent.
11.That except for an emergency or as otherwise provided for in these Orders, the parents shall conduct all communications via the “CC Service” program, and for this purpose each parent shall register for an account with CC Service within fourteen (14) days of the date of these Orders.

Injunctions
12.That without admissions, each parent is restrained by injunction from:
(a)speaking to the children about the other parent or members of their family in a negative, offensive, threatening or unpleasant fashion, doing so in the presence of the children or either of them or allowing the children to remain in the presence of any other person who commences to do so;
(b)discussing parenting arrangements or parenting issues at changeovers or otherwise in the presence of either of the children;
(c)discussing parenting arrangements or parenting issues with either of the children, including requesting the children to pass along messages relating to such topics to the other parent;
(d)showing either of the children any communications passing between the parents or allowing either of the children to access to any such communications or allowing the children to remain in the presence of any person who shows or allows the children to access such communications;
(e)discussing any part of these proceedings or matters associated with these proceedings with either of the children, or within their presence or hearing, and from permitting the children to remain in the presence of any other person that commences to do so;
(f)showing any document relating to these proceedings or adduced into evidence in these proceedings, to either of the children, or allowing either of the children access to any such documents or giving any account of same to or in the presence of the children, and from permitting the children to remain in the presence of any other person that attempts to do so;
(g)enrolling either of the children in any extra-curricular activity or event that requires the children’s participation during their time with the other parent without the prior written consent of the other parent;
(h)cancelling or rescheduling any tutoring, sporting or extra-curricular activities organised by the other parent scheduled to occur during the children’s time with the other (the scheduling) parent;
(i)conducting any video, audio or other surveillance or recording of either of the children or the other parent or of either parent’s residence or surrounds, unless with the recorded parent’s written consent and excepting normal family photography/videography of the children during the time the children spend with that parent pursuant to these Orders;
(j)using any device, including but not limited to watches, smart watches, phones, tablets or other devices to monitor, communicate with or ascertain the whereabouts of the children unless with the prior written consent of the parent caring for the children at the time;
(k)installing any app, software, media, password or code or permitting either of the children to do so, on any device used by the children which is unknown to the other parent provided that for the purposes of this Order:
(i)each parent will provide to the other, the passcodes, passwords and any App to use, monitor or open any device used by the children; and
(ii)each parent shall, upon request, cooperate with the other to reset any passcode or password for any app or device used by the children so as each parent may have equal access to same.

(l)using any email account to communicate with the children other than that allocated by their school provided that each parent shall forthwith inform the other parent of any other email account from which they receive an email apparently authored by either of the children.

13.That pursuant to s 121 of the Family Law Act 1975 (Cth), the mother shall have leave to provide a copy of these Orders (but not the Reasons for Judgment delivered 31 August 2022) to the children’s school administration.

Overseas travel
14.That the mother and father shall do all things necessary and pay the costs equally for the children to have and maintain valid Australian passports, with both children being permitted to have an Australian travel document as that term is defined in and for the purpose of the Australian Passports Act 2005 (Cth).
15.That the father shall maintain the possession of the children’s passports at all times not in use for travel by the children, and the mother shall return the children’s passports to the father forthwith upon the children’s return to Australia following any travel pursuant to these Orders.
16.That the father shall provide a certified copy of the identification page of each child’s passport within seven (7) days of being requested to do so by the mother.
17.That if the mother intends travelling overseas with the children and has satisfied the requirements set out in Order 18 below, then the father shall provide the passports to the mother no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia, unless for visa purposes the passports are required earlier.
18.That in the event that either parent intends travelling overseas with the children, then the parents shall each be at liberty to remove the children from the Commonwealth of Australia for the purposes of that travel on the following terms and conditions:
(a)The overseas travel must fall within time the children shall otherwise be in the care of the travelling parent pursuant to these Orders;
(b)The travelling parent must, no less than sixty (60) days’ prior to the intended departure date, provide the non-travelling parent with notice of the intention to travel overseas with that notice to include details of the destination/s and proposed departure and return dates; and
(c)The travelling parent must, no less than thirty (30) days’ prior to the date of departure from the Commonwealth of Australia, provide the other parent with the following information:
(i)A copy of return tickets and flight schedule for the children, evidencing the date of departure and date of return to the Commonwealth of Australia; and
(ii)A copy of an itinerary which contains addresses and (telephone and email) contact information for the accommodation at which the children will be staying.

(d)That unless the subject of specific written agreement otherwise between the parents, the travelling parent shall only take the children to a country (whether for stopover or otherwise) that is:
(i)a signatory to the Hague Convention on the Civil Aspects of International Child Abduction; and
(ii)the subject of a rating by the Commonwealth Government (currently via Smarttraveller.gov.au) of “Exercise Normal Safety Precautions.”

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 the pseudonym Humphrey & Humphrey has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN:
Introduction

The Applicant mother Ms Humphrey and the Respondent father Mr Humphrey separated in December 2017 after a relationship of some 15 years. They were blessed with two children – X (born in 2007) and Z (born in 2011).
Although proceedings were commenced in April 2019 seeking both parenting and property orders, for reasons delivered on 28 June 2022, the proceedings were bifurcated to allow evidence to be reopened in the property proceedings, and that part of the litigation continues.
The parents, at the initiation of the Court, were given an opportunity to reopen the parenting proceedings to provide further evidence since the trial completed in June 2020, but neither party sought to avail themselves of that opportunity.
Accordingly, the reasons which now follow are based on the evidence that closed on 11 June 2020 and the written submissions delivered at set out later in these Reasons.
Statutory pathway
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) (“the Act”) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
Competing proposals
The final orders sought by the mother are contained in the written submissions filed 7 July 2020, and are set out in Appendix One to these Reasons.
The final orders sought by the father remained as set out in his case outline document filed 7 June 2020. They are set out in their entirety at Appendix Two to these Reasons.
The father’s written submissions in response filed 5 August 2020, authored by his trial Counsel Mr Minnery, at paragraphs 6 to 22, contends the mother conducted her case and advanced her final position in a way that was procedurally unfair to the father and “denied” him the opportunity to place before the Court evidence on “certain key matters” – although so far as parenting issues are concerned, what those ‘key matters” were is unclear.
Confronted with the written submissions of the mother, authored by her trial Counsel Ms Oakley, it was open to the father, if he felt the mother’s position had changed so significantly, to seek to adduce further evidence on any “key matters”. In March 2022, a further opportunity was offered to both parents to adduce further evidence, because of the delay in delivery of these Reasons, but neither party sought to do so.
Whilst the delay is regrettable and the Court again acknowledges it would have been the expectation of the parties that Reasons were delivered more quickly, the fact remains that, as the submissions in reply filed 12 August 2020 assert (at paragraphs 2.1 to 2.6), the father could have sought leave to adduce further evidence. He did not.
Furthermore, as a long line of authority makes clear, the Court is not bound by the proposals of the parties or the boundaries those proposals create.
I agree with the mother’s submissions that, although at its core the primary dispute is whether the children live with the father or with the mother, the “variable in the parenting matter” is apparent from the evidence led. I therefore reject the father’s submission that procedural unfairness has occurred.
An examination of the competing proposals, each of which the parent involved contends is in the best interests of the children, are totally polarised with little common ground evident. This caused at least the mother’s written submissions in reply filed 12 August 2020, to submit that “a reader of the submissions of the father comparing them with the submissions of the mother, would be forgiven for thinking that the authors of the submissions might have been at different trials”.
Submissions are, by practice, to be based and shaped by the evidence, and inevitably different perspectives of the parents (if not the lawyers) can reasonably arise from the same evidence. The findings I make are on the evidence as I assess, but the divergence in approaches causes me to remind the parties that it is not necessary for a judge to mention every fact or submission raised in a case in Reasons for Judgment. As Meagher JA observed in the frequently cited case of Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, reasons for a decision need not “make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance” (see also Duarte & Morse [2022] FedCFamC1A 66 at [30]).
Contextual history

Statements of fact which follow should be construed as findings of fact.
The parents were both born in 1973 and are now aged 49 years; were married in 2002 at the age of 29 years and their first child X was born in 2007. About 12 months after the birth of their daughter, the father (a professional) established his own business.
The mother returned to work in 2014 after the birth of the parties’ son Z in 2011, however by late 2017, the marriage was deteriorating and events in late 2017 caused the mother to file an application for a protection order against the father in late 2017.
On 14 December 2017, the parents separated, with the mother and children (then aged 10 years and six years) leaving the family home. On 26 March 2018, the parents signed a negotiated parenting plan which essentially provided for the children to live with the mother and to spend alternate weekends and a share of holidays (all unsupervised) with the father.
The ongoing domestic violence application of the mother was matched with a competing protection order application by the father filed mid-2018. Proceedings before a State Magistrate occurred over three days spanning October 2018 to February 2019, resulting in a Judgment delivered on 8 March 2019 where each parent was granted an order against the other parent.
After the Judgment of the Magistrate was delivered, on 10 April 2019 the mother commenced proceedings in the Family Court of Australia (as it was then known) for parenting and property orders. Contemporaneously on 10 April 2019, the mother filed a Notice of Risk, identifying and making the following allegations:
6…
1.The Father continues to bring himself into contact with me and with the children, including during my time with the children and at the school on days when the children are meant to be in my care. He incites issues and then conducts video tape surveillance and addresses people around us asserting that I am being domestically violent and that I am upsetting the children.
2.The children are exposed to psychological harm as a result of being placed into the midst of direct and orchestrated conflict. The Father is a [professional] who has work to do at his [business], but nevertheless inserts himself causing maximum upset and disruption, never allowing the children and I to relax and routinely live and conduct ourselves.
14….
1.On 8 March, 2019, my application for a Protection Order against the Father, [Mr Humphrey], and the Father's cross-application for a Protection Order against myself were determined by the making of mutual Protection Orders against each of us.
2.During our marriage, [Mr Humphrey] was abusive towards me. [Mr Humphrey] had very high expectations of me in relation to my role as a homemaker and as a Wife. He would frequently insult and denigrate me if I failed to meet those standards. He would accuse me of not being a good Christian wife and told me that I was going to Hell.
3.If [Z] or [X] did not meet [Mr Humphrey's] expectations of them, [Mr Humphrey] would yell at them. I would be yelled at and criticised as well.
4.[Mr Humphrey] would also insult my cooking and my appearance, calling me fat and lazy and at times refusing to eat the food I would make.
5.[Mr Humphrey] would also record me and the children. At times I knew he was doing this, generally when [Mr Humphrey] would denigrate me and call me names and then begin recording in the hope of provoking a response from me.
6.In relation to other instances of me being recorded, I only knew that [Mr Humphrey] had been recording me when he produced the recordings for use in the domestic and family violence proceedings referred to above.
7.[Mr Humphrey] told me at least once during our marriage that he would use his footage of me to put me in jail.
8.Since [Mr Humphrey] and I separated on December 2017, [Mr Humphrey] has recorded me and our children without my consent and, at times, without my knowledge.
9.[Mr Humphrey] has stated that he would continue to record me and I believe that he continues to do so.
10.[X] has referred to [Mr Humphrey] showing videos of me and telling me that I would be going to jail.
11.Since separation, [Mr Humphrey] attends the children’s school on days that we have agreed that the children are in my care, including when I am attempting to collect the children, and causes conflict.
12.[Mr Humphrey] has also, on multiple occasions, withheld the children or taken the children from school when I am scheduled to collect them and then accuses me of behaving inappropriately or in a harassing or abusive manner when I ask for them to be returned to me and blames me for causing him to collect the children.
13.[Mr Humphrey] continues to denigrate me to our children, particularly our daughter [X]. He has told [X] to pray for me at least once.
14.I am constantly surveilled [sic] by [Mr Humphrey] by means of use of a key ring spy cam device. This is used in conjunction with disrupting my time with the children and inserting himself and being present at times when I am with the children or due to collect them. He then video tapes the exchanges and the stress his conduct causes the children and I.
15.[Mr Humphrey] has refused to give me information about our marital finances since separation. Our finances were predominately controlled by [Mr Humphrey] during our marriage.
16.I have supported myself from working in my family’s [business] and from rental income received from some [properties] owned by [Mr Humphrey] and I and located at my family’s [business]. The rent was previously paid to a company controlled by [Mr Humphrey] but after separation I asked my parents to pay the funds to me directly since [Mr Humphrey] was not supporting me financially.
17.I had considered that any necessary adjustments or reimbursements could be dealt with as part of our family law matter generally, since we both engaged family lawyers after I moved out of the family home in December 2017.
18.Since I began to receive the rental income however, [Mr Humphrey] has repeatedly written to my parents to issue invoices and demand that the rental payments be redirected back to the entity controlled by him and is now threatening to sue my parents if they do not co-operate.
19.My lawyers have requested, on my behalf, that [Mr Humphrey] no longer write to my parents about this issue but the request has been ignored.
20.I require the rental income to meet mv expenses and the children’s expenses.
The father filed a Response on 28 May 2019 supported by a Notice of Risk alleging the following risks:
6…
1.The children have been exposed to domestic violence between the Mother and myself on many occasions.
2.In the past the Mother has assaulted children, including swearing at them, spitting on them, and otherwise verbally and physically abusing them.
10…
1.In the past and recently it appears that the Mother has assaulted children, including swearing at them, spitting on them, and otherwise verbally abusing them. Given the continuation of these actions there is a risk that they will continue.
14…
1.[Ms Humphrey] brought an Application for a Protection Order against me in December 2017.
2.I brought an Application for a Protection Order against [Ms Humphrey] in June 2018 and January 2019.
3.These matters were heard concurrently and judgment was given on 13 March 2019. Orders were made against both of us, in the mandatory terms only. The children were named on both sets of orders.
4.In those circumstances the Mother and I both appear to have limited the discussion of the historical family violence in the present proceedings, but for the purposes of this form, the family violence that the Mother perpetrated towards me and the children included:
(a)Verbal abuse, name calling, swearing, yelling, threatening and derogatory taunts, put-downs, belittling, irrational accusations and rude gestures towards me and the children;
(b)Physical striking, pushing, throwing items towards myself and the children;
(c)Belittling and taunting me on social media;
(d)Going through my phone and voicemail;
(e)Exposing the children to arguments and verbal abuse.
18…
1.The Mother appears to continue to yell at, swear at, spit on and threaten the children, verbally and physically abuse the children, and otherwise have frequent arguments with them. Given the continuation of these actions there is a risk that they will continue.
On 23 May 2019, the matter came before me urgently and before the father had formally filed his Response and cross application, when the Court made interim parenting Orders by consent as follows:
1.That the children, [X] born in 2007 (“[X]”) and [Z] born in 2011 [(“Z”)] (collectively “the children”) live with the mother at all times that they do not live with the father.
2.That the children live with the father as agreed in writing and failing agreement, as follows:
a.   During the school term, in a two (2) week cycle commencing 27 May 2019:
i.During week one (1):
1.   [X] only, is to live with the father from after school or 3.00pm on Tuesday until before school or 9.00am on Wednesday;
2.   From after school or 3.00pm on Wednesday until before school or 9.00am on Thursday; and
3.   From after school or 3.00pm on Friday until before school or 9.00am the following Monday.
ii.During week two (2):
1.   [Z] only, is to live with the father from after school or 3.00pm on Tuesday until before school or 9.00am on Wednesday; and
2.   From after school or 3.00pm on Wednesday until before school or 9.00am on Thursday.
b.   During the June and July 2019 school holiday periods from 3.00pm or after school on the last day of term two (2), until 9.00am on Thursday, 4 July 2019.
3.That for the purposes of Order 2(a):
a.   the two (2) week cycle is to continue after school holiday period as if there had been no break;
b.   in the event of a public holiday or pupil free day:
iii.On a Monday, the children’s time with the parent who had them on the preceding weekend shall be extended to before school or 9.00am on Tuesday; and
iv.On a Friday, the children’s time with the parent who has them on the weekend following, shall begin after school or 3.00pm on the Thursday preceding the Friday.
Expert evidence
4.That pursuant to Rule 15.44 of the Family Law Rules 2004, [Mr BB] be appointed as a Single Expert for the purposes of preparing a family report, with family report interviews to take place on 29 July 2019.
5.That the parents shall do all acts and things as are necessary to give effect to the appointment of the Single Expert, including attend at his appointment for the purposes of him preparing, making and filing a family report touching upon the matters about which the Single Expert considers the Court should be informed.
6.That the Single Expert be granted leave at be at liberty to inspect any subpoena documents produced to the Court.
7.That the parents bear the costs of the Single Expert equally.
Injunctive relief
8.That pursuant to Sections 68B and 67ZC of the Family Law Act 1975, the mother and father are hereby each restrained by injunction from:
a.   abusing, insulting or denigrating the children or either of them, or the other parent, or a member of their family or household to or in the presence of the children or either of them, and from permitting another person to do so;
b.   discussing any allegation made or evidence given in these proceedings to or in the presence of the children or either of them and from permitting another person to do so; and
c.   exposing the children or either of them to any form of domestic violence or family violence including verbal violence or using abusive language to, within, or in the hearing of the children or either of them.
9.That each parent will keep the other informed of the following as soon as reasonably practicable:
a.   Appointments regarding the children or either of them and attendances upon doctors or any treating professional;
b.   Any mediations which are prescribed for either of the children at any time;
c.   Any diagnosis regarding either of the children as to any health issues as soon as possible;
d.   Any hospitalisations as soon as it is reasonably practicable to do so; and
e.   All referrals to specialists.
A privately funded family report by experienced Social Worker Mr BB was ordered. Mr BB interviewed and observed the family on 29 July 2019 and a family report dated 16 September 2019 was published, after which the Court, on 8 October 2019, made some further interim parenting Orders directed to Christmas school holiday arrangements in these terms:
1.That the children shall spend time with the parties over the 2019/2020 school holiday period, as follows:
(a)with the mother from the end of Term 4, 2019 until 9.00 am on 6 December 2019;
(b)with the father from 9.00 am on 6 December 2019 until 6.30 pm on 13 December 2019;
(c)with the mother from 6.30 pm on 13 December 2019 until 9.00 am on 20 December 2019;
(d)with the father from 9.00 am on 20 December 2019 until 12 noon on Christmas Day;
(e)with the mother from 12 noon on Christmas Day until 9.00 am on 30December 2019;
(f)with the father from 9.00 am on 30 December 2019 until 6.30 pm on 12 January 2020;
(g)with the mother from 6.30 pm on 12 January 2020 until 12 noon on 24 January 2020;
(h)with the father from 12 noon on 24 January 2020 until the commencement of Term 1, 2020.
On that same day, the property and parenting proceedings were listed for final hearing over four days commencing 28 January 2020, however after playing in Court a Police video of a s 93A interview of X conducted on 14 May 2019, it was necessary for the trial to be adjourned. The reasons for the adjournment also related to disclosure issues in the property settlement case.
This unfortunate delay in the trial was the catalyst for the parties to engage Mr BB to prepare an updated family report which he published on 23 April 2020 after further interviews and observations conducted on 27 March 2020. Mr BB was the subject of cross-examination on the last day of evidence – namely 11 June 2020. On that day directions were made for the filing of written submissions, it being abundantly apparent to the Court (and I infer the parents and their lawyers) that the evidence adduced during the final hearing raised issues not necessarily in focus during the journey since at least the interim Orders of 23 May 2019 – which remain the current orders in force over three years later.
That the Orders remain unchanged now for over three years is a curious feature of this case. In December 2020, the Court listed for determination an urgent Application in a Case about Christmas school holiday arrangements. I dealt with the matter urgently on 21 December 2020, and made the following Order:
2.That for the remainder of the end of term four (4) school holidays, the children, [X] born in 2007 and [Z] born in 2011 shall spend time with the parents as follows:
a.   With the father from 12 noon on 25 December 2020 to 5.00pm on 8 January 2021;
b.   With the mother from 5.00pm on 8 January 2021 to 9.00am on 26 January 2021; and
c.   With the father from 9.00am on 26 January 2021 to and including commencement of the school year on 28 January 2021.
I noted on 21 December 2020 that although I did determine the core urgent issue, both parents had in affidavits raised issues against the other of emotional abuse in recent times. I did not consider those allegations, but did list the competing applications for a case management hearing on 28 January 2021 to ascertain whether the parties wished to formally reopen the proceedings, which would require the new affidavits (supported by 40 pages of written submissions) to be read and considered.
When the matter returned to my list after Christmas 2020, I was advised by both parents they did not wish me to determine other issues raised in the cross applications in a case, which were dismissed. It follows, that I have not read or considered the evidence in the mother’s affidavits filed 8 and 17 December 2020 or the father’s affidavit filed 21 December 2020, when preparing these Reasons for Judgment, as I was not asked to do so.
I again record that although I was embarrassed by the delay in delivering reasons, in the best interests of the children, I thought it appropriate to re-list the matter so that the parties could be invited, if they wished, to adduce further parenting evidence, however a contest to the mother’s application to reopen the property proceedings was considered by me and has resulted in the bifurcation of the issues (see Humphrey & Humphrey [2022] FedCFamC1F 456).
The overarching forensic issues
It is perhaps trite to observe that the behaviour of waring parents has the most influential effect on the behaviour of their children who are in the middle and focus of the parental conflict.
In many ways, this case does not, on the evidence, compel a finding that:
(a)either parent has a diagnosed mental illness;
(b)either parent is compromised by virtue of alcohol abuse; use of illicit drugs or prescribed medication;
(c)the parents do not offer significantly different parenting styles to their children (the evidence being that they both espouse adherence to Christian principles; value education; value participation in sport, music and extra-curricular activities); or
(d)there is a lack of financial income or resources which place the children’s schooling, living arrangements or support at risk.
Indeed, the children are fortunate to have competent, high functioning and (mostly) sensible parents who are committed to them.
Sadly, what these children have been forced to endure is both an acute awareness and often direct exposure to parental conflict and engagement in the dispute.
As the final submissions of Counsel contend, each party, to some extent, is highly critical of the other parent and asks the Court to make findings which, if made as they submit, will cause the orders they propose to clearly be in the best interests of X and Z. In a truncated summary, the parties urge as follows:
(a)The mother submits:
(i)the father’s behaviour has continued post separation and as such the father is an unacceptable risk of psychological harm to the children;
(ii)the father has influenced the children against the mother in an effort to align them with him (paragraph 73);
(iii)the father engaged the children in s 93A interviews with Police “for his own tactical position” (paragraphs 141 to 144);
(iv)the Court would regard the father’s testimony to “do better” as unreliable (paragraph 147) and he was engaged in a relentless campaign because he clings to the notion the mother has abused the children (paragraphs 157 and 161 to 163); and
(v)the father is incapable of modifying his behaviour (paragraph 3.4 of reply submissions).
(b)The father submits:
(i)the children’s relationship with the mother needs “respite” (paragraph 29);
(ii)the mother seeks the Court to solely and exclusively blame the father for the current situation (paragraph 32) when the mother does not accept she has done anything wrong (paragraph 29) despite the children expressing openly that they are unhappy in the mother’s care (paragraph 33);
(iii)the mother sought to use the domestic violence proceedings to try and cut off the children’s time with the father or control it on her terms and potentially gain an advantage in parenting proceedings (paragraph 40); and
(iv)his concessions about some of his behaviour being inappropriate is genuine and the Court would find there have been few incidents of concern since August 2019 (paragraph 189).

Section 60CC(2) requires the Court to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”, and must give greater weight to this consideration than the benefit to the child of having a meaningful relationship with both of the child’s parents (s 60CC(2)(a)).
The evidence offered to the Court contains voluminous recordings and videos (Exhibit 10) including body-camera footage from the Queensland Police Service of the incident in late 2018; the two s 93A interviews (Exhibit 3) of the children on 14 May 2019 (X) and 15 May 2019 (Z); many email exchanges between the parents, their lawyers and, perhaps most significantly, some between the father and X; extracts from Queensland Police records (Exhibits 7 and 19), school records (Exhibits 8, 17 and 18); as well as some medical records and counselling notes (Exhibits 9 and 14 – Ms DD; Exhibit 12 – Ms EE).
In considering how to structure these Reasons in a way which supports some critical findings that follow, but properly recognises the principles for conducting child related proceedings (s 69ZN), and the reality that both parents will have a continuing relationship with the children as they progress towards adulthood, I will not deal with every incident raised in the material. I do believe that “grouping” some of the evidence in a chronological context helps to make the points I am trying to convey to the parents through these Reasons.
Conduct leading up to separation on 14 December 2017
I find tensions and conflict between the parents leading up to separation were manifest in verbal stoushes and arguments. I do not ignore an allegation of physical abuse some time earlier at Region MM with a paddle, but frankly found the narrative vague. The mother’s decision to retain her income from employment with her parents upset the father, who, over the period before separation, was trying to maintain a business with fluctuating financial returns. What did occur, and the father admits, is that he had begun to record and video some exchanges with the children (see Exhibit 10(a), (b) and (c)). He accepts now he should not have done so. I am satisfied he thought it would somehow benefit his position to gather evidence in this way. The recordings do little more than reveal the children were being exposed to and had witnessed parental conflict. At about the time of separation, the mother caused proceedings to be commenced in the State Magistrates Court for a protection order, naming the children and herself as “aggrieved persons”. I am satisfied that the commencement of these proceedings by the mother contributed to a significant escalation in the father’s desire to prove there was no basis for any temporary or final protection order against him, but rather his claim the mother was abusive should be accepted.
Conduct between separation and the making of final Domestic Violence Orders in early 2019
Noting that during this period no applications for parenting orders had been filed by either parent, the evidence during this period needs to be assessed in the context that vigorous and hotly contested domestic violence issues were on foot, and to some degree, both parents engaged the children in the escalating conflict – though the father more so in my view. Before identifying many negative events, I acknowledge that despite the “evidence gathering”, these parents can be seen to have at times focused on their children’s needs for certainty and stability, by:
(a)resolving a form of parenting plan in March 2018 where the children were to continue living with the mother;
(b)engaging the children in counselling with Ms DD. It appears counselling may have commenced as early as early 2018, however the notes (Exhibits 9 and 14) cover a shorter period. The notes are difficult to read. The father says he was not consulted on the mother’s decision to engage with the counsellor, and ultimately came to the conclusion the counsellor was not independent; was influenced by the mother and/or biased against him. Certainly the exchange between the father and the counsellor in mid-2018 (which the father initiated after an alleged “altercation” the previous evening between the children and the mother) was interrupted by the psychologist interpreting the father’s narrative about the mother in the presence of the children as inappropriate, asking them to leave the room. The notes reveal a litany of concerns/complaints about the mother by the father. I agree it was inappropriate for the father to discuss some of these issues initially in the presence of the children. I am unable to make an assessment of whether the counsellor was (or could) remain independent as I did not have all her notes and importantly she was not required for cross-examination. The evidence supports a finding that at least X appeared to adopt some of her father’s concerns about Ms DD; and
(c)undertaking around mid-2018 a form of family dispute resolution with Ms FF, resulting in an increase in the children’s time with the father (being essentially then eight nights with the mother and six nights with the father). This is despite the father having launched his own domestic violence proceedings against the mother in mid-2018.
Incidents of a more concerning nature which I select to refer to in this period of approximately 15 months include:
(a)the other recordings tendered in Exhibit 10. I note that I was informed the mother also at times recorded the children and that the Magistrate who conducted the domestic violence trial over three days between October 2018 and February 2019 had many examples of recordings placed before her. Neither party sought to tender a transcript of the domestic violence trial or even the judgment and reasons of the Magistrate which may have allowed me to adopt various findings (s 69ZX(3)). In the end, as submitted by Counsel for the father, the only finding I can safely adopt is that the Magistrate found that each party was entitled to a protection order as domestic violence had been established – both orders extending to early 2024;
(b)as a result of the limited number of recordings (which the father clearly took for evidence in the domestic violence proceedings), I am not certain I have a complete picture. What has been tendered before me involves complaints by the children against the mother, with some exchanges reflecting leading by the father and inappropriate questioning. At times the child being recorded seemed to be upset or certainly displayed heightened emotions;
(c)the incident between the parents at the changeover at McDonalds Suburb AA in mid-2018 does neither parent, frankly, any credit. Hearing, as I did, the children distressed whilst the father (in this incident) kept recording, demonstrates, on this occasion, a lack of insight by him. The mother says that the difficulties on this day were preceded by a disclosure by X that she had viewed some earlier video of the parents fighting (pre-separation). Although the father says he was trying to calm a growing incident between the mother and the children (they were abusing the mother and kicking her), I am satisfied the father’s reactions in not requiring the children to act respectfully to the mother contributed – almost empowering the children to act disrespectfully. The mother became distressed and allowed the children (contrary to the agreed arrangements) to go home with the father. The same can be said about the father’s decision to record his attendance at the tutor’s home in mid-2018. It was unnecessary;
(d)The following day (in mid-2018), the father took the children to the Police. Frankly, there was no reason to do so – it was, I find, another example of the father seeking to gather evidence to support his domestic violence application;
(e)In mid-2018, X was returning from a school trip to City GG – the father having dropped her to the airport a few days before. Although the father did text the mother informing her he wanted to go to the airport upon X’s return to get her suitcase and clothes back, the mother, properly in my view, said that was not necessary. The father’s insistence (he says with X’s support) to be there in the context of the recent events was, I assess, ill thought out if not provocative. Although there were some tensions exhibited in front of X, it probably only reinforced that if she could make some arrangement with her father, the mother would just have to accept it;
(f)without analysing every part of the departure from agreed arrangements around the 2018 Christmas school holidays, I, on balance, find that some of the agreed arrangements altered through flight delays, but some reflect a failure by the father to respect the arrangements – preferring to extend his time – and thereby showing to the children (on that occasion) he was in control and that the mother’s plans were, in some way, less important than his. There is a hint that the mother blames the father’s flight choices etc, but I am not satisfied that is fair. However, clearly by the time the year 2019 commenced (and with the domestic violence trial not yet completed), the incapacity of both parents to act amicably and fairly, in the interests of the children, was obvious. Why the father felt it was necessary to file a further application in the domestic violence proceedings in early 2019, when he knew the children were on holidays with the mother, is unexplained;
(g)a weekend in early 2019 was to be spent with the mother and preceded the father’s birthday. It is clear that the “arrangements” did not include an agreement for the children to be in the care of a parent celebrating their birthday. Whilst orders were not in place at this time, it is clear that the continual tensions made negotiating anything out of the alternate weekend arrangements very problematic. I am satisfied that the father’s desire to have the children for his birthday was a position he shared most likely with X. The children (as the number of incidents in the material demonstrate) were by this time having regular arguments with their mother of which the father was aware. The mother was criticised by the father for not allowing the children to spend his birthday with him in the way he wished, but his insistence and expectation that the mother would accommodate requests by him was wearing thin on the mother. The father, in my view, should have complied with the agreed arrangements rather than to put the children in a compromised position. The mother, at paragraphs 600 to 687, sets out evidence surrounding the father’s birthday. The situation was made worse by the father’s conduct on this occasion; and
(h)the mother sets out details, which I broadly accept, about comments made to her by the children and more conflict created by the increasing inflexibility of both parents, around early 2019 and the end of term one 2019 holidays. Frankly, it was more of the same.
After the Domestic Violence Orders were made in early 2019, these competitive and waring parents had to accept neither was a “winner” or a “loser” in that hotly contested proceedings. One might think that the parties (who I am sure expended significant legal costs and enormous energy creating more obvious anxiety), might have elected to “lay down their arms” and seek to work more cooperatively together.
As the next section of these Reasons discuss, whilst I assess having formal orders (made by consent on 23 May 2019) has assisted in reducing conflict, more issues were to arise. Before moving to that period, I say I am surprised that the father, if he was concerned as he expressed about the mother’s attempts to use the domestic violence proceedings to reduce his involvement with the children, did not himself commence at least parenting proceedings. He ought to have known that the Court has jurisdiction to make parenting orders which, whilst taking into account any family violence orders, could have effect and be enforceable despite family violence orders.
The fact that, as I refer to below in these Reasons, the Orders made on 23 May 2019 are still the operative orders and there is no evidence of any applications to vary or for enforcement now for over three years is, from my perspective, a curiosity in this matter, and somewhat unexpected when one observes the full history of conflict between the parents.
Conduct from around the consent orders to the Final Hearing
The mother decided to commence parenting and property proceedings on 10 April 2019 – after the family violence proceedings had finished with the Magistrate’s Judgment and Orders. The father complains that he was not served in a timely manner, however when the mother’s Application came before me for Interim Hearing on 23 May 2019, the father had been served; had prepared a Response and affidavit in support and with the benefit of legal representation, offered interim parenting orders by consent, which I made and are referred to earlier in these Reasons (at paragraph 23).
Those interim consent Orders have not been the subject of variation or applications for enforcement, save for Orders made around Christmas holiday arrangements in December 2020.
It is relevant to record that the father’s Response, ultimately filed on 28 May 2019, sought interim orders as follows:
1.That children [X] born in 2007 and [Z] born in 2011 live with the mother at all times that they do not live with the father.
2.That the children live with the father as agreed and failing agreement, as follows:
(a)During the school term, in a two week cycle commencing 27 May 2019:
(i)During week one:
(A)[X] only, is to live with the father from after school or 3pm on Tuesday until before school or 9 am on Wednesday;
(B)From after school or 3 pm on Wednesday until before school or 9 am on Thursday;
(C)From after school or 3 pm on Friday until before school or 9 am the following Monday;
(ii) During week two:
(A)[Z] only, is to live with the father from after school or 3 pm on Tuesday until before school or 9 am on Wednesday; and
(B)From after school or 3 pm on Wednesday until before school or 9 am on Thursday.
(b)During the June and July 2019 school holiday periods:
(i)From 3 pm or after school on the last day of Term 2, until 9 am on Thursday 4 July 2019.
3.That the children live with the parents during school holiday periods as follows:
(a)During the mid-year school holiday periods beginning September 2019:
(i)In odd numbered years, with the father for the first half and with the mother for the second half;
(ii)In even numbered years, with the mother for the first half and with the father for the second half.
(b)During the Christmas school holiday periods, for alternating fortnightly blocks as follows:
(i)In odd numbered years, with the father for the first fortnight and with the mother for the second fortnight, alternating until the conclusion of the school holiday period;
(ii)In even numbered years, with the mother for the first fortnight and with the father for the second fortnight, alternating until the conclusion of the school holiday period.
4.That for the purposes of Order 2(a):
(a)The two week cycle is to continue after school holiday periods as if there had been no break;
(b)In the event of a public holiday or pupil free day:
(i)On a Monday, the children's time with the parent who had them the preceding weekend shall be extended to before school or 9 am on Tuesday;
(ii)On a Friday, the children's time with the parent who has them on the weekend following, shall begin after school or at 3 pm on the Thursday preceding the Friday.
5.That for the purposes of Order 3(a):
(a)The mid year school holiday period shall be deemed to commence on the last day of the school term and to conclude on the first day of the new school term;
(b)Changeover is to occur at 9 am on the midpoint day;
(c)the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the parent who has the care of the children in the first half of the school holiday period will retain the children for the one additional night.
6.That for the purposes of Order 3(b):
(a)The Christmas school holiday period shall be deemed to commence on the last day of the school term and to conclude on the first day of the new school term;
(b) that changeovers will commence from the third Saturday of the school holiday period (being approximately two weeks from the end of school) and thereafter every second Saturday at 12pm, except if changeover is to occur on the last Saturday of the school holiday period in which case there will be no changeover and the children will remain with the parent they are already in the care of until the commencement of the new school term.
7.That despite any other order, the children are to spend time with the parties on special occasions as agreed and failing agreement, as follows:
(a)On Mother’s Day, with the mother from after school on the preceding Friday until before school on the following Monday;
(b)On Father’s Day, with the father from after school on the preceding Friday until before school on the following Monday;
(c)On the father’s birthday, unless the children are already spending time with the father pursuant to these Orders, the children shall spend time with the father from after school on [the day before the father’s birthday] (or 3 pm on a non-school day) until the commencement of school on [the day after the father’s birthday] (or 5 pm on a non-school day);
(d)On the mother’s birthday, unless the children are already spending time with the mother pursuant to these Orders, the children shall spend time with the Mother from 3 pm on [the day before the mother’s birthday] to 5 pm on [the day after the mother’s birthday];
(e)On a child’s birthday, if it is not a changeover day or a school day, the children will spend time with the parent with whom they are not spending time with on that day from 12pm on the child’s birthday until 9am on the day after the child’s birthday;
(f)Over Christmas:
(i)In odd years, with the mother from 5 pm on 22 December until 11.30 am Christmas Day and with the father from 11.30 am on Christmas Day to 5 pm on 27 December;
(ii)In even years, with the father from 5 pm on 22 December until 11.30 am Christmas Day and with the mother from 11.30 am on Christmas Day to 5 pm on 27 December.
(g)Over New Years’ Eve:
(i)When New Years Eve falls in an odd year, with the father from 9 am on New Years Eve until 5 pm on New Years’ Day;
(ii) When New Years Eve falls in an even year, with the mother from 9 am on New Years Eve until 5 pm on New Years’ Day.
8.That changeover is to occur at school, and if a child is not at school for any reason then changeover is to occur at [Suburb AA] McDonalds.
9.That each party be permitted to attend any school, sporting or extracurricular event to which parents are invited.
10.That the parties facilitate phone calls between the children and the other parent as reasonably requested.
…
More relevantly, at the time the father’s affidavit was filed, the children had just days earlier been interviewed by Police, and recorded s 93A interviews were tendered as Exhibit 3 and played in open Court on 28 January 2020. Why the father’s affidavit does not mention the children’s attendance with Police is one curiosity, only more curious when seen in the context of the consent orders made for the children to primarily live with the mother. I say this notwithstanding the father’s evidence at paragraphs 211, 212 and 213 where the father says handing over a Police statement was “simply overlooked”. The mother says she was persuaded, notwithstanding concerns about the father’s previous conduct and her view that the father was influencing the children to “act up” in her care, to agree to those interim arrangements. I am satisfied that at the time the consent orders were made, the mother had no knowledge that the father had taken the children to the Police.

The context for the father’s decision to take the children to Police is described in the father’s trial affidavit at paragraphs 204 to 216. He says that in the week beginning 29 April 2019, the children reported an incident where the mother “spat in [Z’s] face”. He said he thought at that time Police involvement “may reduce the conflict apparent between [Ms Humphrey] and the children”. He made a statement to Police after which the Police invited the father to bring the children in for an interview.
All these events occurred before the father chose to speak to the mother in mid-2019 “to get her side of the story”. Although the father says the mother would not talk to him, he ought to have, in my view, spoken to the mother before taking them to the Police. Although the Police have taken no action in respect of the incidents alleged by the children, their statements at that time should neither be ignored nor simply dismissed by the Court, as they provide further examples of the children’s involvement in the dispute and level of distress.
Before dealing with the mother’s Response (she having been cross-examined during the hearing), I will summarise my interpretation of these interviews – statements which Counsel for the father submits are “cogent, reliable and compelling”.
Statements by X
The child is recorded (in an interview of some 44 minutes duration) as saying things like:
(a)my mother hasn’t been treating us right;
(b)she wouldn’t let us call him
(c)lately she has been spitting on my brother’s face – the poor little fellow was upset but was laughing. The mother said “I was just playing around”;
(d)she just abuses us for anything she likes;
(e)she “even pushed me down the stairs” but could not remember the date but sent an email to her father after the incident;
(f)on 2 May 2019 there was an argument with the mother about homework after she and Z both said they “had no homework”;
(g)on this occasion Z got annoyed and he “spat water on mum” – maybe a drop on her shirt;
(h)I don’t feel safe as she “throws” things at us; “always threatens us”; tells “lies about us” and “tries to stop us seeing our dad”;
(i)she is just not a “good person”;
(j)she stole Z’s blanket off him which he uses as “a comfort” since my parents separated and when I got it from the top of the cupboard she accused us of “stealing her things”;
(k)“technically” she was bullying both of us;
(l)I was pushed down the stairs, but only half way, with both hands on my chest as I struggled with mum about the blanket. I then had back pain, neck pain and a headache and had to lie down with an ice pack and heat park. I got the blanket about 20 minutes after we struggled;
(m)I told the Psychologist about the incidents but pretty much she put down the complete opposite to what I said;
(n)a good thing at mum’s is that my friend visits me there as because of the “vile” things mum has said about dad, her mother won’t let her come to dad’s; and
(o)if I took my phone or iPad to my mother’s she would probably “smash it”.
Statements by Z (nearly eight years of age at the time)
The child is recorded (in any interview of some 22 minutes duration) as saying things like:
(a)I accidentally spat on my mother in the bedroom and on another time;
(b)the next time she was being mean to me I spat on her and she spat on me. I wanted to ring dad as I had already done my homework. Dad had signed it;
(c)ages ago she said the “F” word to me; called me a “little brat” and called us “little turds”;
(d)she spat on me six times (using his fingers);
(e)she doesn’t let me call my dad and once at “Maccas” I really wanted to go to my dad, but the mother stopped me;
(f)once at my old tutor’s home the mother “called the cops” and my sister said “don’t believe all her crap”;
(g)the day before my birthday she spat on me when I was on the couch after a fight about homework. She said she was going to talk to my teachers;
(h)I don’t want to tell anyone because they will tell other people;
(i)I don’t feel safe at Location NN because sometimes there are “clowns” running around; and
(j)not sure of five people I could talk to if I am in trouble or unsafe but I could talk to dad.
The statements made by the children persuade me that they have experienced conflict with the mother in her home. As Counsel for the father acknowledged, some exaggeration may have occurred. I so find, however even though the statements from X appeared “unprompted”, they, in my assessment, reveal a desire to make many complaints about the mother’s care – many of which are not unusual as a parent is challenged by an articulate and strong-willed teenager.
Before drawing some conclusions and findings from the evidence of the parents’ behaviour, I record that shortly after the interim consent orders were made, in mid-2019 an officer of the Department of Child Protection and Investigation Unit (“the Department”) contacted the mother allegedly as a result of a complaint by the father. This appears to have preceded a notification by a person unidentified, in mid-2019. The father denies he was the notifier.
In any event, the mother cooperated with the Department and was interviewed. Like the Police, the Department took no action, after recording that:
…there is no evidence of harm, and visits appear to be mitigated sufficiently. There is not reasonable suspicion that these children are in need of protection.”
When a Court is examining past behaviour of parents, the real focus must ultimately be whether any concerning past behaviour is a good predictor of future behaviour – as parenting orders always make provisions for future care arrangements.
From the evidence above (and again noting that I have not tried to deal with every event; email; telephone call or conversation), I make the following findings:
(a)Before separation, as the parental relationship deteriorated, conflict between the parents was obvious to the children and they were exposed to inappropriate comments by the parents. The father was more active in gathering evidence at this time;
(b)After separation, I am satisfied the father felt unjustly accused when the mother commenced domestic violence proceedings against him. He may have thought his professional reputation or reputation as a practising Christian was being damaged. Certainly threats by the mother’s solicitors to report him to his profession’s supervisory board were unhelpful. The father’s evidence gathering increased and I am satisfied the discussions the father had with the children encouraged them to use him as the person they could complain to about the mother;
(c)In hindsight, the lack of orders and the shadow of the domestic violence proceedings created uncertainties, not overcome by the informal agreements and parenting plans. The boundaries were often blurred. My assessment was that the mother, more than the father, sought to adhere to the “agreements” but that the father was genuinely desperate to spend more time or have greater opportunities to engage with the children than the arrangements envisaged;
(d)The trust and respect between the parents evaporated, and both parents at times inappropriately involved the children in the dispute;
(e)The mother felt intimidated and, I find to a degree, fearful that her primary care of the children was at risk. In my assessment, the mother often would lay the blame solely at the feet of the father for the children’s reactions in her care, when other contributions were:
(i)a desire for the children to have more time or interaction with their father and a general discomfort arising from the parents’ separation; and
(ii)the mother’s inability to “close down” arguments or redirect the children’s anxiety and comments before reacting to them.
(f)I find that the mother did speak at times to the children inappropriately and used hurtful descriptions of them – often in the heat of a dispute, but nonetheless, for these children, it offended them. Whilst it is easy to say, as the mother does, that some of the exchanges were merely robust “playing” – the mother should have seen the children did not feel that way;
(g)I do not find that the mother deliberately intended to cause X to fall partially down the stairs, but accept X’s statements to the Police the incident occurred during a struggle on stairs. Although some parents might regard it as a good strategy when a child acts inappropriately (for example Z’s first little spat at the mother), to return the actions – Z’s disrespectful behaviour could have been better handled by the mother. If it was, as she states, her intention to merely blow Z “a raspberry”, then she got her message wrong. Z says a similar incident occurred more than once and I accept it did. It hurt his feelings and his “big sister” X saw such events as an opportunity to become his protector;
(h)As the number of adverse events increased, the father took, I find, many opportunities to convey to the children his empathy with their situation – but not in a way to try and understand how his actions were beginning to “empower” the children (particularly X) to become more manipulative;
(i)If it was the father’s primary intent to undermine the mother’s relationship with the children – as the mother’s submissions and orders reflect – then his conduct should be seen as likely to be destructive of a future meaningful relationship between the children and the mother. I had the advantage of seeing the father in the witness box and assess all the evidence, some of which is concerning. However, on balance I do not find the father to be an unacceptable risk of emotional or psychological harm to the children. As I will explain later in these Reasons, I have reached a conclusion that the interim orders and the time that had elapsed, has caused this matter to “settle down” to a degree; and
(j)I do not find the mother is an unacceptable risk of physical harm to the children. Furthermore, although I would not support many of the hurtful remarks she has made to the children, she is not on my assessment an unacceptable risk of causing emotional harm or psychological harm to the children.
In making these findings, and as I explore next when analysing the children’s independently captured wishes and feelings, the children are exposed to the parental conflict from both parents’ actions and one should not be surprised that they may seek, in their way, to find some sanctuary from this conflict.
Whilst “structural” boundaries created by Court orders can achieve many things – if these children are to enjoy a meaningful relationship (as they deserve and will be of benefit to them) with each parent, then both parents need to reflect on how they can change and be more child-focused within a co-parenting environment. The time to lay blame should now cease. I am unable to be completely confident that the parents obtaining individual counselling will be the complete answer, however it will most likely assist. This prospect is enhanced if both parents can truly reflect on their past behaviour. Whilst the father says, under oath, that he was done so, time will be the guide. The mother, feeling I sense so much under attack, was in my view less insightful that her reactions to her children have been a significant influence on their relationship with her and their expressed feelings.
Family report
As both Counsel acknowledged, the Court is not bound to adopt all, or in fact any, opinions or recommendations of a report writer (see Hall & Hall (1979) FLC 90-713) however in most parenting cases the observations, reported comments by children, and the subsequent opinions and recommendations of an independent expert can be of great assistance to the Court.
In this case, experienced Social Worker Mr BB was engaged privately as a single expert, and he published two reports. In view of the earlier discussion about parental behaviour/conduct, I note Mr BB’s two reports were:
(k)after interviews and observations conducted on 29 July 2019, the expert published a report dated 16 September 2019 (“the first family report”). The interviews took place after proceedings had been commenced in the Court, and after a Magistrate had determined in early 2019 that each parent should have protection under a State Order; and
(l)after further interviews and observations of the children only on 27 March 2020, Mr BB published a second report on 23 April 2020 (“the second family report”). Those interviews were conducted nearly two years after the consent interim orders; after the trial had to be adjourned in January 2020 but before the trial recommenced on 8 June 2020.
Mr BB properly acknowledged that the second report really updated the children’s wishes rather than conducting any assessment of changes in parental behaviour since the first family report.
Mr BB was the last witness cross-examined, and each Counsel skilfully sought to garner support for their client’s position from Mr BB. Although I have considered the full contents of both reports, it is not necessary in these Reasons to incorporate significant parts of the reports as the parties are very familiar with those reports.
Whilst I will, as a discrete issue, consider separately the wishes expressed by the children, I record the following matters from the reports which help, I hope, to illuminate what I have concluded is in the best interests of X and Z, namely:
(a)in the first family report, the expert identified at paragraph 39, the expressed concerns of the father, which I summarise as:
(i)the mother is not coping with the children and hence they are not coping with her;
(ii)since separation, he has been “heavily excluded” from providing more fulsome, hands-on care to the children;
(iii)the children want more time with him; and
(iv)the father has the “flexibility, focus and wherewithal to better meet the children’s needs during the school week”.
(b)the expert identified at paragraph 40, the expressed concerns of the mother, which I summarise as:
(i)the father has been manipulative and over controlling of the children in an effort to undermine and diminish the children’s relationship with her;
(ii)the father “pushes them too hard” into too many activities and they are usually exhausted when they come back into her care; and
(iii)the more time the children spend with the father, the more likely he will influence them to align with him and reject her.
(c)the mother told Mr BB that changeovers were occurring more smoothly when they do not take place at school (paragraph 44); Z’s behaviour fluctuates but it is usually worse after returning from the father (paragraph 54); expressed concerns about setting limits and boundaries on the children (paragraph 55) who “make exaggerated complaints about her” (paragraph 56) and when the children come back to her, particularly after longer visits with the father “their behaviour is very extreme and hard to handle” (paragraph 65); the mother is concerned about the children spending two nights in a row with the father during the school week and the idea of them living primarily with their father “scares me” (paragraph 68);
(d)the father told Mr BB he arranges his business so he can be a hands-on and heavily involved carer to the children (paragraph 70); he has traditionally been involved in assisting X with homework (paragraph 75); after engaging Z in additional tutoring from January 2019 the father has seen steady improvement with Z’s literacy (paragraph 80); the children have continued to complain about the mother’s treatment of them (paragraph 85); in 2015 the mother started to get “aggressive and abusive” and the children saw it and come to his defence (paragraph 88); he used the camera on his phone to record her as a way of “trying to de-escalate her aggression” (paragraph 89); he thinks having the children live primarily with him during the school week will “be more stable and allow an easier focus on their schoolwork and routine” (paragraph 91); he thinks the children have had a very difficult time over the last eighteen months but some progress has been made and stability created through orders for them (paragraph 94);
(e)the expert, after speaking to the children, observed them with the parents – the father having brought the children to the interviews and the children went home with the mother (it being a changeover day). Mr BB observed good-humoured, mildly competitive dynamics between the children and the father (paragraph 140). With the mother, they appeared relaxed and in good spirits, and both children remained close to the mother and “offering casual affection at times” to the mother (paragraph 142);
(f)the expert’s evaluation is set out at paragraphs 144 to 155 before identifying:
(i)at paragraph 156 advantages in an order that allows the children to spend more time with the father during the school week, and at paragraph 157 the disadvantages in the father’s proposal, which could be offset somewhat with the mother remaining at liberty to spend time with the children at school and at extra-curricular activities (paragraph 158); and
(ii)at paragraph 160 advantages keeping the arrangements much the same as currently exist, although disadvantages were identified (paragraph 161);
In the first family report, the expert concluded that:
162.I am left with an overall view that the children are not coping well in the existing arrangement. The Court should look to whatever structure or intervention that is likely to reduce the burden on them and safeguard them from being exposed to parental conflict and mistrust. That perhaps turns on findings, which in turn may have a bearing on my recommendations.
163.In the absence of findings, however, I think it is more appropriate that the children have a more consistent day-to-day arrangement in the care of one parent during the school week, as I do not think shared-living structures are likely to be sustainable in the longer term. To that end, I think it is more appropriate for the children to spend more time with the father during the school week, in line with their wishes and expectations expressed in this setting.
before making recommendations at paragraph 164 that:
a.The children live with the father and spend regular, frequent and broad-ranging time with the mother, more around the domain of weekend and holiday time. I suggest they are with the mother in alternate weeks, from after school Thursday until before school Monday, with changeovers through school. I also suggest they share school holidays and special occasions between the parents.
The expert’s recommendation at the time took account of the expressed wishes of the children and was subject to any findings the Court might make about risks arising from the parents’ behaviour, he correctly noting that it was “not the place of a report writer to make findings of fact” (paragraph 153).
When cross-examination occurred, Mr BB had conducted further interviews of the children.
Arising from his cross-examination, the following further relevant evidence arose for my consideration, namely:
(a)X presented as well prepared and keen to volunteer information. She was somewhat “agenda driven and wanting changes to arrangements”. Z was less sophisticated and started with an initial flurry before then remembering what he wanted to say. Mr BB did not enquire of the children if either parent had told them what to say;
(b)X expressed concerns about people at school talking about the family;
(c)it could be a concern to the best interests of the children if the Court finds “markers of enmeshment” between the father and the children rather than a mere stronger alignment with one parent;
(d)he does not support the supervised time proposal of the mother unless the Court made substantial findings that the father has actively and obsessively undermined the children’s relationship with the mother;
(e)if the Court found that the father is exposing the children to an unacceptable risk of emotional harm then the Court could consider removing the father for a short time (perhaps a school semester) from the children’s lives with both structural and therapeutic remedies used, particularly when “reintroducing” the children to their father. This is likely to be “bumpy” and an independent therapist could assist;
(f)the expert’s assessment is not that the children are “rejecting” the mother but they have an increasingly complicated relationship with her. After Counsel for the mother in cross-examination put some of the trial evidence to the expert, the expert opined the evidence “does not actually suggest to me that the conflict is escalating, rather than de-escalating”;
(g)if nothing shifts, there is a risk the children will be exposed to “ongoing investigations” with some effect on their relationship with the father – if it causes the children to take responsibility for a false narrative;
(h)the Court may find that the dynamic between the father and X is that when the child makes complaints against the mother the father’s affectionate responses where he “believes” the child could ultimately lead to X, being so minded, not to accept any parental authority from either parent;
(i)the father’s capacity to modify his future behaviour and be amenable to therapeutic support might depend on whether his actions are “deliberate” or arise from a “genuine yet mistaken belief” – the second scenario being more likely to respond to treatment;
(j)the expert agreed, again under cross-examination by Counsel for the father, that there are some concerns about whether the mother has the wherewithal to cope, however if she made divisive comments about the father, that would prove another challenge for the children, as would an inability of the mother to accept any responsibility for the current relationship with the children, but to merely blame the father;
(k)if the children see those views reflected in a change of primary care to the father, that may stabilise the situation. Certainly the children’s wishes suggest they find it easier in the father’s care than in the mother’s care;
(l)if the Court was to find that the father’s pattern of behaviour has shifted, it does not mean that the children’s pattern of behaviour will also change as quickly; and
(m)Mr BB’s recommendations would be shaped by any findings that the mother is a risk of harm to the children or that the father is a risk of harm to the children. Having had the opportunity to conduct two separate interviews, he opined the proceedings and the parents’ “competitive conflict” has taken a toll on the children who deserve some certainty and sustainability from parents, who, in his final assessment, have similar parenting styles.

e.After the date referred to in sub-paragraph (c) hereof, the children shall spend the following special occasions with the Father:
i.At each Christmas, from 10.00am on 24 December to 10.00am on 25 December in each even numbered year and from 10.00am on 25 December to 10.00am on 26 December in each odd numbered year;
ii.Time being spent with the Father shall be suspended so as the children live with the Mother from 9.30am on 24 December to 9.30am on 25 December in each odd numbered year and from 10.00am on 25 December to 10.00am on 26 December in each even numbered year;
iii.At each Easter, from 9 am on Easter Sunday to 6 pm on Easter Monday in each even numbered year and from 9 am on Good Friday to 9 am on Easter Sunday in each odd numbered year;
iv.Time being spent with the Father shall be suspended so as the children live with the Mother from 9 am on Easter Sunday to 6 pm on Easter Monday in each odd numbered year and from 9 am on Good Friday to 9 am on Easter Sunday in each even numbered year;
v.On the children’s birthdays as follows:
1.The children shall spend time with the Father from 3.00pm to 7.00pm if the children are not already spending time with the Father on that day pursuant to these Orders; and
2.Time being spent by the Father with the children shall be suspended so as the children spend time with the Mother from 3.00pm to 7.00pm if the children are not already living with the Mother on that day pursuant to these Orders.

vi.In the event that the children are not already spending time with the Father pursuant to these Orders on his birthday, the children shall spend time with the Father on his birthday as follows:
1.If the Father's birthday is on a weekday from 3.00pm to 7.00pm; or
2.If the Father's birthday is on a weekend from 9.00am to 5.00pm.

vii.Time being spent by the Father with the children shall be suspended so as the children spend time with the Mother in the event that the children are not already in the Mother’s care pursuant to these Orders, on the Mother’s birthday, notwithstanding any other Order herein as follows:
1.If the Mother's birthday is on a weekday from 3.00pm to 7.00pm; and
2.If the mother's birthday is on a weekend from 9.00am to 5.00pm.

viii.The children shall spend time with the Father from 9.00am to 5.00pm each Father’s Day.
ix.Time being spent by the Father with the children shall be suspended so as the children shall spend time with the Mother from 9.00am to 5.00pm each Mother’s Day.

17.If the report referred to in Order 15 indicates that the Father has not been compliant with the recommendations of his treating psychologist, the Father’s time with the children will continue to be suspended until such time as the psychologist confirms compliance in a written report furnished to the Mother.
18.The Father shall not communicate with the children or either of them by any means or via any agent except as provided for in these Orders, prior to the conclusion of the two visits referred to in paragraph 16b hereof.
19.After the conclusion of the two visits referred to in paragraph 16b of these Orders, the Father shall be at liberty to communicate with the children by email as follows:
a.From one (1) email only, which account the Father shall nominate in writing to the Mother, which shall be his only account used for communications with the children;
b.By means of use of the children’s respective school email accounts only; and
c.By sending a same-time circular copy of all communications with the children to the email address of the Mother; and
d.No communications sent to or received from the children or either of them (or any source on behalf of the children) shall be deleted.

20.In the event that the children or either of them communicate or seek to communicate with the Father by any means other than email, the Father shall:
a.Forthwith inform the Mother of the communication received by providing a copy of it to her by email, as soon as is practicable after receipt; and
b.Request that the children communicate with him solely by email.

21.After the conclusion of the period in 16c, the Father may commence communications with the children by telephone at all such times as may be agreed between the Mother and the Father in writing but failing their agreement, on each Wednesday evening and each alternate Sunday evening, with the Mother to initiate the call to the Father’s mobile phone.
22.Until the Father completes the two visits referred to in paragraph 16b hereof, the Father be and is hereby restrained from attending within 100m of the children’s school when the children are in attendance there PROVIDED THAT for the purposes of this Order, the Father shall not attend the school or remain there at or proximate to the children’s arrival for or collection from school.
23.After the date referred to in paragraph 16c of these Orders, the Father may attend events at the children’s school to which parents are normally invited including parent teacher interviews PROVIDED THAT this shall not include attendance at the due time for collection or delivery of the children AND FURTHER PROVIDED THAT if the Father attends the school for any reason, he shall comply with the school’s prevailing policy of signing in at the school administration office to record his arrival and his departure time and shall follow the direction of the school concerning conduct and remainder on school property at all times.
24.The Father be at liberty to communicate with the children’s school and treating health practitioners about the children’s health and education (but not for the purposes of communications with the children) and for this purpose, the Mother shall do all things necessary to authorise such information to be made available to the Father as he may reasonably request with any costs to be borne by the Father.
Changeovers
25.For the purposes of these Orders, changeovers shall occur at the children’s school on school days or if the child does not attend school for any reason, then at the McDonalds Family Restaurant, Suburb AA.
26.At changeovers:
a.If a school-based changeover is occurring, only the parent collecting the children by force of these Orders shall attend; and
b.The Father shall not alight from his motor vehicle at any handover not occurring at the children’s school; and
c.Neither party shall conduct any video or audio surveillance or recording for any reason; and
d.Neither party shall prolong the changeover by any means or for any reason; and
e.Each party shall depart the changeover on a timely basis.

Information
27. Each parent shall ensure that the other parent is kept informed of:
a.Any serious medical problems or illnesses suffered by the children or either of them, with the other parent to be notified as soon as possible;
b.Any medical appointments attended by the children for care or assessment or treatment by any health practitioner or health care facility;
c.Any medical emergencies involving the children or either of them, with the other parent to be notified immediately;
d.Any medication or course of treatment that has been prescribed for the children or either of them including medication or care that needs to be taken during the time the children are in the care of the other parent, with the other parent to be notified as soon as possible and in any event no later than four (4) hours prior to changeover (and with each parent to ensure that the medication travels with the children);
e.Any instance of either child not attending school on a school day (including attending any school event), or being late for school, or there being any intention to remove the children or either of them from school or school related events during school hours whilst in that parent’s care pursuant to these Orders, with the other parent to be notified as soon as is practicable that day but by no later than 3pm;
f.Any change to the parents’ contact mobile telephone numbers and email addresses, with any such changes to be advised within twenty-four (24) hours; and
g.The suburb that they are living in, with any changes to be advised within twenty-four (24) hours.

28.That except for an emergency or as otherwise provided for in these Orders, the parents shall conduct all communications via the “CC Service” program, and for this purpose each parent shall register for an account with CC Service within fourteen (14) days of the date of these Orders.
Injunctions
29.Without admissions, each parent is restrained by injunction from:
a.Speaking to the children about the other parent or members of their family in a negative, offensive, threatening or unpleasant fashion, doing so in the presence of the children or either of them or allowing the children to remain in the presence of any other person who commences to do so;
b.Discussing parenting arrangements or parenting issues at changeovers or otherwise in the presence of the children or either of them;
c.Discussing parenting arrangements or parenting issues with the children or either of them, including requesting the children to pass along messages relating to such topics to the other parent;
d.Showing either of the children any communications passing between the parties or allowing either of the children to access to any such communications or allowing the children to remain in the presence of any person who shows or allows the children to access such communications;
e.Discussing any part of these proceedings or matters associated with these proceedings with the children or either of them, or within their presence or hearing, and from permitting the children to remain in the presence of any other person that commences to do so PROVIDED THAT this restraint shall not apply during therapeutic counselling sessions conducted between either of the parents and the children in which the practitioner offering the counselling recommends that such issues be discussed;
f.Showing any document relating to these proceedings or adduced into evidence in these proceedings, to the children or either of them, or allowing either child access to any such documents or giving any account of same to or in the presence of the children, and from permitting the children to remain in the presence of any other person that attempts to do so;
g.Enrolling the children or either of them in any extra-curricular activity or event that requires the children’s participation during their time with the other parent without the prior written consent of the other parent;
h.Cancelling or rescheduling any tutoring, sporting or extra-curricular activities organised by the other parent scheduled to occur during the children’s time with the other (the scheduling) parent;
i.Being or remaining in attendance at the children’s school during the time when the other parent is caring for the children unless with the prior written consent of the other parent PROVIDED THAT the Mother shall be at liberty to attend at the church/chapel and its surrounds located on the school grounds for religious services and church events, without requiring the Father’s prior written consent;
j.Attending at the school for any reason without signing the school attendance book (at arrival and departure) except in the instance of the parent attending at the drop off zone when the parent is due by these Orders, to deliver or collect the children to or from school;
k.Attending any school functions or events, sporting fixtures, extracurricular activities (including those that allow for parental attendance or participation), religious or community events at which the children shall be participating or attending which fall in the children’s time with the other parent unless agreed in writing as between the parents;
l.Conducting any video, audio or other surveillance or recording of the children or the other party or of either party’s residence or surrounds, unless with the recorded party’s written consent and excepting normal family photography/videography of the children during the time the children spend with that parent pursuant to these Order;
m.Using any device, including but not limited to watches, smart watches, phones, tablets or other devices to monitor, communicate with or ascertain the whereabouts of the children unless with the prior written consent of the parent caring for the children at the time;
n.Installing any app, software, media, password or code or permitting either of the children to do so, on any device used by the children which is unknown to the other parent PROVIDED THAT for the purposes of this Order:
i.Each parent will provide to the other, the passcodes, passwords and any App to use, monitor or open any device used by the children; and
ii.Each parent shall, upon request, co-operate with the other to reset any passcode or password for any App or device used by the children so as each parent may have equal access to same; and
iii.Pending expiration of the time referred to in paragraph 16c of this Order, the Mother is relieved from complying with this obligation.

o.Using any email account to communicate with the children other than that allocated by their school PROVIDED THAT each parent shall forthwith inform the other parent of any other email account from which they receive an email apparently authored by the children or either of them;
p.Using any app or device or other means to communicate with the children outside of those known to and accessed by the other parent as sub-paragraphs (m) – (o) inclusive hereof of these Orders provide unless with the prior written consent of the other parent; and
q.In the event of incidentally coming into contact with the children when in the care of the other parent, from remaining within 100m of the other parent PROVIDED THAT this Order shall be interpreted as requiring the other parent to withdraw and depart the area where he or she has come into contact with the parent caring for the children and the children.

Travel provisions
30.That the Mother and Father shall do all things necessary and pay the costs equally for the children to have and maintain valid Australian passports, with both children being permitted to have an Australian travel document as that term is defined in and for the purpose of the Australian Passports Act 2005 (Cth).
31.The Mother shall maintain the possession of the passports at all times not in use for travel by the children with the Father pursuant to these Orders and the Father shall return the children’s passports to the Mother forthwith upon the children’s return to Australia following any travel pursuant to these Orders.
32.The Mother shall provide a certified copy of the identification page of each child’s passport within seven (7) days of being requested to do so by the Father.
33.If the Father intends travelling overseas with the children and has satisfied the requirements set out in paragraph 34 below, then the Mother shall provide the passports to the Father no less than fourteen (14) days before any notified proposed date of departure from the Commonwealth of Australia.
34.That in the event that either parent intends travelling overseas with the children then the parents shall each be at liberty to remove the children from the Commonwealth of Australia for the purposes of that travel on the following terms and conditions:-
a.The overseas travel must fall within time the children shall otherwise be in the care of the travelling parent pursuant to these Orders;
b.The travelling parent must, no less than sixty (60) days’ prior to the intended departure date, provide the non-travelling parent with notice of the intention to travel overseas with that notice to include details of the destination/s and proposed departure and return dates;
c.That the travelling parent must, no less than thirty (30) days’ prior to the date of departure from the Commonwealth of Australia, provide the other parent with the following information:
1.A copy of return tickets and flight schedule for the children, evidencing the date of departure and date of return to the Commonwealth of Australia; and
2.A copy of an itinerary which contains addresses and (telephone and email) contact information for the accommodation at which the children will be staying.

d.That unless the subject of specific written agreement otherwise between the parties, the travelling parent shall only take the children to a country (whether for stopover or otherwise) that is:
1.A signatory to the Hague Convention on the Civil Aspects of International Child Abduction; and
2.The subject of a rating by the Commonwealth Government (currently via Smarttraveller.gov.au) of “Exercise Normal Safety Precautions.”

Liberty to re-list
35.Should either child run away from their Mother’s home and return to or seek to return to the Father’s home, the Father shall forthwith take all necessary steps to notify the Mother and to cause the child or children to be returned to the Mother’s home as soon as possible.
36.In the event the children or a child refuses to return to the Mother’s home, the Mother has liberty to relist and/or restore this matter on 24 hours’ notice.
37.Both parties have liberty to otherwise relist this matter in respect of any application which relates to the implementation of these orders on seven days’ notice and any such application is to be listed before Justice Baumann if he is reasonably available.
Leave for orders to be supplied to children’s school
38.The Mother by her solicitors has the leave of the Court to supply the children’s school with a copy of the Orders and the Reasons for Judgment so as to notify of the effect of the Orders, including that the Father is restrained from approaching the children’s school in accordance with these Orders with the financial section of the Orders and reasons to be redacted.

APPENDIX TWO
Parental responsibility
1.That the parties have equal shared parental responsibility for major long term decisions in relation to the children, X born in 2007 (“X”) and Z born in 2011 (“Z”) (collectively “the children”).
Live with and spend time with arrangements
2.That the children live with the father.
3.That the children spend time with the mother at all times as may be agreed between the parties in writing and, failing agreement, as follows:
(a)During the school term in a fortnightly cycle:
(i)During week one:
(A)From after school (or 3.00pm) on Thursday until before school (or 9.00am) on the following Monday in week 2.

(b)During the school holiday periods following Term 1, Term 2, and Term 3 (“the mid-year school holidays”), for one half of the school holiday periods as follows:
(i)During even years, for the first half of the school holidays, from after school on the last day of school until 9:00 am on the midpoint day of the school holidays, excepting:
(A)During the September 2020 school holidays the children spend the first half of the school holidays with the father and the second half of the school holidays with the mother.

(ii)During odd years, for the second half of the school holidays, from 9:00am on the midpoint day of the school holidays until before school on the first day of the following school term;

4.During the Christmas school holiday periods, the children spend time with the parties as follows:

(a)During even years:
(i)in the period from after school on the last day of term until 9.00am on 23 December:
(A)with the mother for the first half of the period; and
(B)with the father for the second half the period;

(ii)with the mother from 9.00 am on 23 December until 12 pm on Christmas Day;
(iii)with the father from 12.00 pm on Christmas Day until 9 am on 30 December;
(iv)with the mother from 9.00 am on 30 December until 12pm on 1 January;
(v)with the father from 12.00 pm on 1 January until 6.30 pm on 13 January;
(vi)with the mother from 6.30 pm on 13 January until 9 am on the last business day before the commencement of Z and/or X’s school (whichever is the earliest).

(b)During odd years:
(i)in the period from after school on the last day of term until 9.00am on 23 December:
(A)with the father for the first half of the period; and
(B)with the mother for the second half of the period;

(ii)with the father from 9.00 am on 23 December until 12 pm on Christmas Day;
(iii)with the mother from 12.00 pm on Christmas Day until 9 am on 30 December;
(iv)with the father from 9.00 am on 30 December until 6.30 pm on 13 January;
(v)with the mother from 6:30pm on 13 January until 9 am on the last business day before the commencement date of Z and/or X’s first day of school (whichever is the earliest).

5.That for the purposes of Order 3(a):
(a)week one is to commence on the first week of Term 1 each year, and thereafter resume in later Terms in the same year as if there had been no break;
(b)in the event of a public holiday or a student free day:
(i)On a Monday, the children’s time with the parent who had them on the preceding weekend shall be extended to before school or 9.00 am on Tuesday; and
(ii)On a Friday, the children’s time with the parent who has them on the weekend following, shall begin after school or 3.00 pm on the Thursday preceding the Friday.
(iii)On a Tuesday, Wednesday or Thursday the children’s time with the parent who has the children in their care on the morning of the Public Holiday/Student Free Day will be extended to before school or 9:00am on the next day.

6.That for the purposes of Order 3(b):
(a)The mid-year school holiday periods shall be deemed to commence on the last day of the school term and to conclude on the commencement date of Z and/or X first day of school (whichever is the earlier) in the following school term;
(b)Changeover is to occur at 9.00 am on the midpoint day;
(c)the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the parent who has the care of the children in the first half of the school holiday period will retain the children for the one additional night;

7.That for the purposes of Order 4:
(a)The Christmas school holiday period shall be deemed to commence on the last day of Term 4 and to conclude on the commencement date of Z and/or X’s first day of the following school year (whichever is the earlier);
(b)When calculating the midpoint day in December of each year:
(i)changeover is to occur at 9.00am on the midpoint day; and
(ii)the number of nights is to be used to calculate one half of the school holiday period, and if there is an uneven number of nights, then the person who has the first half of the school holiday period shall have the additional night.

Special occasions
8.That despite any other order, the children are to spend time with the parties on special occasions as agreed and failing agreement, as follows:
(a)On Mother’s Day, with the mother from 9:00am on Mother’s Day before school (or 9:00am) on the following day;
(b)On Father’s Day, with the father from 9.00am on Father’s Day until before school (or 9:00am) on the following day;
(c)On the father’s birthday, unless the children are already spending time with the father pursuant to these Orders, the children shall spend time with the father from after school the day before his birthday (or 9:00am on a non-school day) until the commencement of school the day after his birthday (or 6:30pm on a non-school day);
(d)On a child’s birthday, if it is not a changeover day, the children will spend time with the parent with whom they are not spending time with on that day from after school (or 12 noon on a non-school day) on the child’s birthday until the commencement of school (or 9:00am on a non-school day) the day after the child’s birthday;
(e)Over Christmas, as per Order 4;
(f)Over New Years' Eve as per Order 4;
(g)In the event of the death of a relative or close family friend of the parties, the children are to spend time with the party whose relative has passed away as follows and the normal time that the children spend with each party be suspended:
(i)If the funeral is to be within 70 kilometres of the children’s school, then from 9:00am on the day before the funeral until 5:00pm on the day following the funeral;
(ii)If the funeral is to be greater than 70 kilometres from the children’s school, then from 9:00am 2 days before the day of the funeral, until 6:30pm 2 days after the day of the funeral.
(iii)In the event the funeral necessitates travel for a child/children greater than 70 kilometres from the children’s school so that the child/children are to be absent from school to facilitate such travel, then the period of absence from school will not exceed 2 days before the date of the funeral and 2 days after the date of the funeral, unless otherwise agreed in writing by the parents.

9.That the parties be at liberty to agree to arrangements other than those as set out in these orders in writing.
Changeover
10.That unless otherwise agreed in writing, changeover is to occur at school unless:
(a)The children are at a sporting or extracurricular activity at changeover time, in which case changeover is to occur at the activity; or
(b)If the child is not at school, or a sporting or extracurricular activity, at the time of changeover, in which case changeover is to occur at Suburb AA McDonalds.

Phone calls and communication
11.That the parties be at liberty to provide the children with a mobile phone, laptop computer & accessories, mobile devices, headphones and chargers and the other party will not tamper with, confiscate, damage, delete emails on such devices or cause to be inoperable such devices.
12.That the children be at liberty to bring a mobile phone, laptop computer & accessories, mobile devices, headphones and chargers to either parties' home and the parties will not tamper with, confiscate, damage, delete emails on such devices or cause to be inoperable such devices.
13.That either child be at liberty to take their school iPad or laptop computer to either parties’ home and the parties will not tamper with, confiscate, delete emails on such devices or cause to be inoperable such devices.
14.That the parties will provide a working internet connection at their respective homes to facilitate the children's school work and contact with the other parent and the parties will not restrict the children from using that internet connection for doing school work or contacting the other party.
15.That each party will facilitate the other party to speak with the children by telephone, FaceTime or Skype (or similar) as reasonably requested by the children while the children are in their care.
16.In relation to phone/video communication each parent shall ensure that the children have privacy during the conversation.
17.That the parties will encourage and not restrict the children from contacting the other parent by phone, email, FaceTime, skype (or similar) as reasonably requested by the children and will ensure that an operative internet connection is provided to facilitate such communication.
18.That each parent will keep the other informed of their phone number and residential address and will notify the other parent within 24 hours of any change to their phone number or residential address.
Medical
19.That each parent will keep the other informed of the following as soon as reasonably practicable:
(a)Appointments regarding the children or either of them and attendances upon doctors or any treating professional;
(b)The names and addresses of any and all medical practitioners who are involved in treating or caring for the children;
(c)Any medications which are prescribed for either of the children at any time;
(d)Any diagnosis regarding either of the children as to any health issues;
(e)Any hospitalisations; and
(f)All referrals to specialists.

20.That each parent be at liberty to attend any specialist medical appointments.
21.That each party authorise the children’s medical practitioner/s to discuss with the other party the children’s health and medical treatment.
22.That these Orders are sufficient authority to enable the children’s medical practitioner/s to discuss their progress with each parent and to provide each parent with copies of the children’s medical records and reports.
Overseas travel
23.That the parties will do all acts and things and sign all documents, within seven days of being requested to do so, necessary to make application to the Australia Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005) to enable the children X born in 2007 and Z born in 2011 to be issued with an Australian travel document (passport) and that the father pay for the costs of the children to have and maintain valid Australian passports.
24.That the father retain possession of the children’s passports for safekeeping and if the mother is travelling overseas with the children in accordance with these orders, that the father shall deliver the children’s passport to the mother not less than 14 days prior to the date of intended departure, and that the mother will return the children’s passports to the father within 7 days of return from any international travel.
25.That either parent may take the children overseas during their time as specified in these Orders and that travel overseas is subject to the parent who wishes to travel overseas with the children, complying fully with the following Orders:
(a)The travelling parent gives the other parent not less than 4 weeks written notice of the intention to travel overseas;
(b)The parent must accompany the child or children for the entire period during which a child or children are overseas unless they are travelling for a school trip;

26.The parent that is proposing to travel must provide to the other parent:
(a)Not less than 2 weeks prior to the intended departure, copies of the return flight tickets, and details of an email address, skype address and telephone number at which the children can be contacted during the trip and allow the children to contact the other parent when reasonably requested to do so.

27.If a parent is travelling overseas with a child or children, the parents must arrange for the children to telephone the other parent in Australia within 12 hours of arrival at the intended destination (not any flight stop-overs), on regular occasions during the period of the trip and within 5 hours of arrival back in Australia.
28.That in the event that a period of overseas travel for a child/children necessitates that a child/children be absent from school to facilitate such travel, then the period of absence will not exceed 4 days before the end of the school term, unless otherwise agreed in writing by the parents.
School and extra-curricular activities
29.That the parties authorise the children’s school to provide to the other parent copies of all school reports and any other reports on the children’s progress and behaviour issues, well-being and/or counselling records and all notices received from the school including newsletters, parent letters and general notices.
30.That the parties authorise the children’s school to inform the other parent of all extracurricular activities that the children participate in at the children’s school including parent/teacher meetings, sporting/special events and any other activities to which parents are allowed to attend.
31.That the parties authorise the children’s school to contact the other parent in respect to school photographs and that provision of such photographs must be arranged by the parties with the school and/or the photography company directly.
32.That each party be at liberty to attend all school events and activities and sporting, curricular and extra-curricular activities associated with the children’s school to which parents are allowed to attend and any extra-curricular activities, sporting activities or events that the children are involved in outside of school, including but not limited to concerts, performances, events, sporting competitions, training, expos, awards ceremonies and practice sessions that the children are involved in from time to time.
33.That each party shall use their best endeavours to ensure that when the children are in their respective care that the children attend all school based and non-school based extra-curricular activities, events, sport training and competitions that the children are involved in from time to time and any social events that are significant to the children such as birthday parties of their friends.
34.That the parties are at liberty to arrange tutoring or special education for the children during school hours provided that the tutoring or special education is of no more than 2 sessions per week within school hours.
35.That the father is to collect Z and X's school books, school iPads and/or lap top computers and accessories when available to be collected from the school in January each year in preparation for the upcoming school year and thereafter such books, school iPads and/or lap top computers and accessories are to travel with the children between the parties’ households.
36.That the parties are hereby restrained from requesting or authorising the children’s school to monitor or otherwise provide access to the children's email accounts other than with the written consent of the other parent, and the parties are to forthwith withdraw any request made to LL School to do so.
Miscellaneous orders
37.That where these Orders refer to “unless otherwise agreed in writing”, writing is to include hand writing, text message, email and written communications between the parties on any electronic co-parenting portal.
38.That pursuant to Sections 68B and 67ZC of the Family Law Act 1975, the mother and father are hereby each restrained by injunction from:
(a)abusing, insulting or denigrating the children or either of them, or the other parent, or a member of their family or household to or in the presence of the children or either of them, and from permitting another person to do so;
(b)discussing any allegation made or evidence given in these proceedings to or in the presence of the children or either of them and from permitting another person to do so;
(c)exposing the children or either of them to any form of domestic violence or family violence including but not limited to any verbal or physical violence, any coercive or manipulative behaviour, or using abusive language to, within, or in the hearing of the children or either of them.

39.That within 14 days of the date of these Orders the mother do all acts and things and sign all documents to allow the Husband to place the children on an appropriate private health insurance policy of his choosing and sign and authorise all necessary paperwork to remove the children from their current HCF health insurance policy in the name of Ms Humphrey.

File number(s):	BRC 4211 of 2019
Judgment of:	BAUMANN J
Date of judgment:	31 August 2022
Catchwords:	FAMILY LAW – PARENTING – Where the children have had long term exposure to parental conflict –Where the children have expressed wishes as to their living arrangements – Both parents seek a finding that the other presents as an unacceptable risk of harm to the children – No such finding made by the Court – more simple orders made than the complicated and lengthy proposals of the parties – Final order made in the children’s best interests for substantial and significant time
Legislation:	Family Law Act 1975 (Cth) s 60B, 60CC, 61DA, 65DAA
Cases cited:	Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 Humphrey & Humphrey [2022] FedCFamC1F 456 Goode & Goode (2006) FLC 93-286 Hall & Hall (1979) FLC 90-713 Vallans & Vallans (2019) 60 Fam LR 193
Division:	Division 1 First Instance
Number of paragraphs:	131
Date of last submission/s:	12 August 2020
Date of hearing:	8–11 June 2020
Place:	Brisbane
Counsel for the Applicant:	Ms Oakley
Solicitor for the Applicant:	Evans Brandon Family Lawyers
Counsel for the Respondent:	Mr Minnery
Solicitor for the Respondent:	Naughton McCarthy Family Lawyers

BRC 4211 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS HUMPHREY Applicant
AND:	MR HUMPHREY Respondent

order made by:	BAUMANN J
DATE OF ORDER:	31 AUGUST 2022