Jantic and Soula

FAMILY COURT OF AUSTRALIA

JANTIC & SOULA

[2017] FamCA 34

FAMILY LAW – CHILDREN – Parental responsibility – with whom the children live – where the father seeks an equal time arrangement – where the father seeks equal shared parental responsibility – high level of conflict between the parties – inability of the parties to communicate – where the father demonstrates an inability to prioritise the children’s needs over his own – where the father has a history of aggressive, abusive and violent behaviour – consideration of the impact, if any, of the father’s mental health issues upon his ability to parent – where the mother has failed to support the children’s relationship with the father – where the mother is the children’s primary carer – equal time proposed by the father not in the children’s best interests – final orders made that the mother have sole parental responsibility subject to a requirement that she advise the father of any major decision to be made and consider any response received from him – final orders made that the children live with the mother and spend time with the father

Family Law Act 1975 (Cth)

Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405

APPLICANT:

Mr Jantic

RESPONDENT:

Ms Soula

INDEPENDENT CHILDREN’S LAWYER:

MacGregor Solicitors

FILE NUMBER:

MLC

10390

2014

DATE DELIVERED:

31 January 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Johns J

HEARING DATE:

10 – 14 October 2016

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Metaxas

SOLICITOR FOR THE RESPONDENT:

Goodman Group Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

MacGregor Solicitors

Orders

(1)That all previous parenting orders in relation to the children of the marriage, namely B born … 2009 and C born … 2014 (“the children”) be discharged.
(2)That subject to paragraph 3 hereof the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children.
(3)That in exercising sole parental responsibility pursuant to order 3 hereof, the mother shall:-
(a)Inform the father in writing of any decision intended to be made by her in the exercise of that responsibility;
(b)Seek the father’s response in writing in relation to the proposed decision; and
(c)Allow no less than 14 days from the provision to the father of the notice in sub-paragraph (a) hereof before making a decision;
(d)Consider by reference to the best interests of the children any response received from the father prior to making any decision (except in the case of an emergency); and
(e)Notify the father in writing of her decision.

(4)That the children live with the mother.
(5)That the father spend time and communicate with the children as follows:-
(a)Upon confirmation and production of a certificate of completion of the Parenting Orders Program by the father, each alternate week thereafter from after school/crèche on Monday (or 4.00 pm if a non-school day) to the commencement of school/crèche on Tuesday (or 9.00 am if a non-school day) with the father not to deliver the children at school/crèche before 8.00 am on the Tuesday;
(b)Until the commencement of Term 2, 2017, each alternate weekend from the conclusion of school/crèche on Friday (or 4.00 pm if a non-school day) to 4.00 pm on Saturday, commencing …;
(c)Commencing on the first weekend of Term 2, 2017 and each alternate weekend thereafter from the conclusion of school/crèche on Friday (or 4.00 pm if a non-school day) to 4.00 pm on Sunday;
(d)Commencing on the first weekend of Term 1, 2018 and each alternate weekend thereafter from the conclusion of school/crèche on Friday (or 4.00 pm if a non-school day) to the commencement of school/crèche on Monday (or Tuesday if Monday is a non-school day) with the father not to deliver the children to school/crèche before 8.00 am on the Monday (or Tuesday if Monday is a non-school day);
(e)Commencing in 2018 during the school term holidays for a period of four nights as agreed by the mother and the father in writing and in the event that agreement is not reached 14 days prior to any school term holiday then from 10.00 am on the first Saturday after school finishes for the term to 4.00 pm on the following Wednesday;
(f)In the 2018/2019 Christmas holiday period for three block periods of five nights as agreed by the mother and the father in writing and in the event that agreement is not reached 28 days prior to the commencement of the Christmas holiday period then as follows:-
(i)From 10.00 am on 28 December 2018 to 4.00 pm on 1 January 2019;
(ii)From 10.00 am on 11 January 2019 to 4.00 pm on 15 January 2019;
(iii)From 10.00 am on 19 January 2019 to 4.00 pm on 23 January 2019;

(g)Commencing in Term 1, 2019 and each year thereafter for half of all school term holidays and half of the Christmas holiday period as agreed by the mother and the father in writing and in the event that agreement is not reached 14 days prior to any school term holidays or 28 days prior to the Christmas holiday period then as follows:-
(i)In even-numbered years for the first half of the school holiday period ;
(ii)In odd-numbered years:
A.For the second half of the school term holiday period to conclude at 4.00 pm on the Saturday prior to the commencement of the new school term;
B.For the second half of the Christmas holiday period to conclude at 4.00 pm two days prior to the commencement of the new school year;

(h)In even-numbered years from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day;
(i)In odd-numbered years from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day;
(j)From the conclusion of school/crèche on the Friday preceding Father’s Day (or 4.00 pm if a non-school day) to the commencement of school/crèche on the Monday following Father’s Day (or 9.00 am if a non-school day);
(k)In the event that either of the children’s birthdays or the father’s birthday falls on a school day when the father is not otherwise spending time with the children from the conclusion of school/crèche to 6.00 p.m.;
(l)In the event that either of the children’s birthdays or the father’s birthday falls on a non-school day when the father is not otherwise spending time with the children for a period of four hours as agreed by the mother and the father in writing and in the event that agreement is not reached then from 10.00 am to 2.00 pm;
(m)By telephone each Wednesday between 6.00 pm and 6.30 pm;
(n)At all other times as agreed by the mother and father in writing.

(6)That the father’s time with the children pursuant to paragraph 5 hereof be suspended as follows:-
(a)From the conclusion of school/crèche on the Friday preceding Mother’s Day (or 4.00 pm if a non-school day) to the commencement of school/crèche on the Monday following Mother’s Day (or 9.00 am if a non-school day);
(b)In even-numbered years from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day;
(c)In odd-numbered years from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day;
(d)In the event that either of the children’s birthdays or the mother’s birthday falls on a school day when the children are not otherwise living with the mother from the conclusion of school and/or crèche to 6.00 p.m.;
(e)In the event that either of the children’s birthdays or the mother’s birthday falls on a non-school day when the children are not otherwise living with the mother for a period of four hours as agreed by the mother and the father in writing and in the event that agreement is not reached then from 10.00 am to 2.00 pm;

(7)That commencing Term 1, 2018 paragraphs 5(a) and (d) hereof shall be suspended for all school term holidays and the Christmas holiday period and recommence after any school term or Christmas holiday period in the same sequence as if the holiday period had not taken place.
(8)That changeovers occur at school/crèche and in the event that it is not a school day:-
(a)For the purposes of paragraph 5(b) hereof at V Group Contact Service, Suburb E and if V Group is not available and unless otherwise agreed in writing by the mother and the father at McDonald’s, Suburb I (“McDonald’s”); and
(b)Unless otherwise agreed in writing by the mother and the father, at McDonald’s.

(9)That the father continue to attend upon his treating psychiatrist and psychologist or other mental health professionals as directed by them and authorise the said mental health professionals to disclose to the mother:-
(a)Whether the father is attending upon the mental health professionals as directed; and
(b)Whether the father is complying with the treatment as recommended.

(10)That the mother do all acts and things as may be required to enrol C (if considered age appropriate) and B to attend “Supporting Children After Separation” (phone …) at a location within a reasonable proximity of the mother’s home address and the mother and father be at liberty to provide to “Supporting Children After Separation” an unmarked copy of the Family Report prepared by Ms K dated 5 August 2016.
(11)That the mother, the father, their servants and/or agents be and are hereby restrained by injunction from:-
(a)Discussing these proceedings, and the family violence court proceedings, parenting issues, the contents of any documents prepared for or filed in any court proceedings in the presence or hearing of either or both of the children;
(b)Criticising the other parent, their family, friends and/or partners in the presence or hearing of either or both of the children;
(c)Acting in a provocative or aggressive manner towards the other parent in the presence or hearing of the children.

(12)That the mother authorise and request any school, crèche or child care centre that either or both of the children attend to forward to the father, at his expense, if any, copies of the children’s school reports, reports of an educational nature or any other notice or information parents would ordinarily receive.
(13)That the mother and the father keep each other advised of their residential address, email address and phone numbers (mobile and landline, if any) and advise the other parent of any change within seven days of such change taking place.
(14)That the mother and the father keep each other advised as to any medical treatment received by either or both of the children in their care and advise the other parent of the name, professional address and phone number of the treating medical practitioner that has provided the treatment and authorise the treating medical practitioner to disclose to the other parent any information about the treatment provided and to the extent necessary this order is deemed to be the necessary parental authorisation.
(15)That the appointment of the Independent Children’s Lawyer be discharged.
(16)That all extant applications be dismissed.

IT IS DIRECTED
That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
AND THE COURT NOTES
That pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 10390 of 2014

Mr Jantic

Applicant

And

Ms Soula

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

Mr Jantic (“the father”) and Ms Soula (“the mother”) have two children B, aged seven years and C, aged two years. Since their separation in 2014, the mother and father have been in conflict with respect to the parenting arrangements for B and C.
Each parent raises serious allegations against the other. The mother alleges that she and the children were subjected to significant family violence during the parties’ marriage and since. The mother has obtained an Intervention Order against the father and he has been charged with and pleaded guilty to a breach of that order. In addition to issues of family violence, the mother raises concerns as to the father’s mental health, she alleging that he has a history of psychiatric illness, has attempted suicide and as a result, that his parenting capacity is compromised.
For his part, the father alleges that he was the primary carer for the children in the period leading up to the separation and that since separation the mother has sought to marginalise him from the children’s lives.
The mother seeks orders that she have sole parental responsibility and that the children live with her. She proposes that the children spend time with the father on a gradually increasing basis, culminating in an arrangement whereby the father spends time with the children each alternate weekend from after school Friday until the commencement of school Monday, for specified times on special days and for one half of school holiday periods.
At the commencement of the hearing, the father sought that the parties have equal shared parental responsibility, that the children live with him and that they spend time with the mother on a gradually increasing basis culminating in an equal time arrangement with the children.
The father modified his position during the course of the trial and in closing submissions sought final orders in the terms of a minute prepared by him (Exhibit H5). The orders sought by the father include that the children live with the mother and spend time with him each alternate weekend from Friday after school or crèche until the commencement of school or crèche Monday, that after a period of time the father’s time increase to include time each alternate week from after school or crèche on Monday until the commencement of school or crèche Wednesday and after a further period of time, the parties to:-
10…assume equal time with the children with a pick up occurring at Friday’s conclusion of school/crèche and to return our children to both school/crèche at the beginning of Friday week.
The father also seeks orders with respect to special days, holidays and as to the manner in which the parties are to communicate with each other.

The Parties

The father is aged 37 years. He is the applicant in the proceedings. He works in sales support on a contract basis, currently working fulltime. He lives in a cabin at a cabin park in Suburb F.
The mother is aged 35 years and is engaged in fulltime employment as a public servant. She lives in the former matrimonial home in Suburb G with the children.

Background

The parties commenced their cohabitation upon their marriage in 2007. The father alleges that separation occurred when he left the former matrimonial home at Suburb G in September 2014, following an altercation between the parties which resulted in a police attendance at the home.
The mother alleges that separation occurred in June 2014.
From the children’s perspective, little turns on whether the parties separated in June or September of that year.
B was born in 2009 and C was born in 2014.
The parties divorced in September 2015.

Procedural history

In November 2014 the mother filed an Initiating Application seeking final property orders. The father filed a Response to Initiating Application in February 2015 seeking final property orders and also seeking orders with respect to parenting arrangements for the children.
Final property orders were made by consent in April 2015.
Procedural orders were made with respect to the parties’ competing parenting applications on 29 May 2015. That day interim orders were made by consent which provide that until further order:-
·the children live with the mother;
·the father spend time and communicate with the children each alternate Wednesday from 3.30 pm until 7.00 pm and each alternate weekend from 10.00 am until 4.00 pm each Saturday and Sunday and by telephone each alternate Friday for 10 minutes;
·changeovers with respect to the father’s time occur at school/ crèche and otherwise at a contact centre in Suburb E.
The matter was otherwise adjourned to the Senior Registrar’s list.
The matter was listed before the Senior Registrar on 17 August 2015. That day orders were made for the appointment of an Independent Children’s Lawyer (“the ICL”) to represent the children. Orders were also made by consent requiring the parties to provide to the ICL a list of their current and past treating health professionals including any psychiatrists, psychologists, counsellors, doctors and medical professionals both for themselves and the children as from 1 January 2009 to date. An order was also made for the father to attend upon a psychiatrist for the purpose of a psychiatric assessment. The matter was otherwise adjourned to 7 September 2015.
On 7 September 2015 the matter came before Stevenson J. That day Her Honour ordered by consent that the father be psychiatrically assessed by Prof H and that changeover of the children on Wednesdays during school holidays occur at McDonalds in Suburb I.
The matter was allocated to my docket in 2016 and on 10 February 2016 I made directions for preparation for the first day of hearing.
On 29 April 2016 I made directions for the preparation of the matter for final hearing before me. Both parties appeared in person at that hearing. That day I listed the matter for final hearing to commence on 10 October 2016. I also made orders listing the matters for mention on 15 August 2016, the purpose of that hearing to ensure the matter was ready to proceed at the listed final hearing date.
At the mention hearing on 15 August 2016 issue was raised with respect to the father’s non-compliance with my trial directions. Upon hearing submissions I made orders extending the father’s time for compliance with my trial directions. Although a day out of time, the father filed his trial affidavit in compliance with my directions. No issue was taken with the late filing of the father’s material.
Approximately two and a half weeks prior to the first day of the trial, on 22 September 2016 the mother filed an Application in a Case seeking a recovery order in respect of the children. The matter came before Cronin J who made orders that day pursuant to s 67U of the Family Law Act 1975 (Cth) (“the Act”) that a Recovery Order issue authorising and directing the Marshal, Deputy Marshal and officers of the Australian Federal Police to find and recover the children and return them to the mother. His Honour also made orders suspending the father’s time with the children until further order. Otherwise orders were made that the mother’s Application in a Case filed that day be adjourned to be consolidated with the proceedings listed for final hearing before me.

The final hearing commenced before me on 10 October 2016 and proceeded over five days.
At the conclusion of the hearing on 14 October 2016 I was asked to and did make orders by consent that until further order:-
·The children live with the mother;
·The father spend time and communicate with the children:-
(a)Each fortnight from the conclusion of school and crèche on Friday to 4.00 pm Saturday;
(b)From 4.00 pm Christmas Eve to 3.00 pm Christmas Day;
(c)By telephone each Thursday from between 6.30 pm and 7.00 pm;
(d)At other times as agreed between the parties in writing.
·The mother and the father do all things necessary to enrol in and undertake the Parenting Orders Program.
·The mother and father be restrained from:-
(a)discussing the proceedings, other court proceedings, parenting issues, the contents of documents filed in the proceedings in the presence or hearing of the children; and
(b)acting in a provocative or aggressive manner in the presence or hearing of the children.

Material Relied Upon and Orders Sought

The father relied upon:-
·Summary of Case document dated 7 October 2016;
·Application in a Case filed 28 April 2016;
·Affidavit of the father filed 23 August 2016;
·Annexures to the Affidavit of the father filed 24 August 2016;
·Minute of final order sought handed up during closing submissions on 14 October 2016 (Exhibit H5).
In opening, the father confirmed that he sought orders in the terms of the proposed orders contained in his Summary of Case document dated 7 October 2016. The orders sought by him in that document included:-
·That the parties have joint parental responsibility for the children;
·That the mother “advise the court why there was a need for recovery orders sought and granted on 22.09.2016 and 23.09.2016”;
·That the children live with the father and spend meaningful time with the mother and extended family;
·The father make the children available to spend time with the mother at all times as agreed between the parties and failing agreement as follows:-
(a)For the next six months, the mother be ordered to pick up the children from school/crèche and return both to school/crèche the following Monday morning once per fortnight;
(b)For the following six months, “all going well”, consideration be given to the mother having one to two weeknights a fortnight with the children, again picking each up from school/crèche and returning them there as per orders made.
(c)All going well in terms of adherence to orders made the mother and father to assume equal time with the children.
The father’s proposals sought specific orders with respect to public holidays, Christmas, the birthdays of the parties and the children, Father’s Day and Mother’s Day. He also sought specific orders with respect to changeovers, attendances by the parents at school and extra-curricular activities and the arrangements for the children in the event of ill-health.
The father also sought orders that:-
…
12. The Family Violence Intervention Order’s conditions the respondent has been granted in a lower court, to be removed in their entirety.
13. An injunction to be made to prevent the respondent from further allegations as to my mental health, as both DHS and the Single Expert Witness agreed by consent have made their findings clear and unanimous.
…
By the time of his closing submissions, the father had modified his position and sought orders in the terms of Exhibit H5, being the minute of final orders sought by him handed up on 14 October 2016. The most significant shift in the father’s position was the concession by him that the children live with the mother. The father sought that his time gradually increase to a position of equal time on the following basis:-
·Initially the children to spend time with the father each alternate weekend from after school/crèche Friday to the commencement of school/crèche Monday;
·After four months the children to spend time with the father each alternate week from after school/crèche on Monday to the commencement of school/crèche on Wednesday;
·The mother and father to assume equal time with the children with pick up occurring at Friday’s conclusion of school/crèche and return to school/crèche at the beginning of Friday the following week.
The father did not specify in his proposed orders the timing for the commencement of equal time. Nonetheless the father maintained throughout the hearing that it was in the children’s best interests that they have equal time with the mother and the father.
The mother relied upon:-
·Summary of Case document dated 6 October 2016;
·Response to Initiating Application filed 26 July 2016;
·Affidavit of the mother filed 26 July 2016;
·Affidavit of Ms J filed 26 July 2016;
·Amended final orders sought by the mother on 14 October 2016 (Exhibit W3).
The mother’s position also modified during the course of the final hearing. During closing argument, her proposals were as follows:-
·That the children live with the mother.
·That the children spend time with the father as follows:-
(a)For the next six months from after school/crèche Friday to 4.00 pm Saturday each alternate week;
(b)After the period specified in (a) for a further 12 months from the conclusion of school/crèche Friday to 4.00 pm Sunday;
(c)After the period specified in (a) and (b) from the conclusion of school/crèche Friday to the commencement of school/crèche Monday each alternate week.
Again the mother’s proposals made specific provisions for holidays, Christmas and other special days. The mother also made specific proposals with respect to the manner in which the parties are to communicate, the children’s engagement with extra-curricular activities, and the children’s grooming.
The ICL relied upon:-
·Outline of Case document filed 7 October 2016;
·Affidavit of Prof H filed 27 April 2016;
·Family Report prepared by Ms K dated 5 August 2016;
·Minute of proposed orders dated 14 October 2016 (Exhibit ICL10).
The position of the ICL in closing submissions was that the children live with the mother and spend time with the father on the following basis:-
·From 21 October 2016 each alternate weekend from after school/crèche Friday to 4.00 pm Saturday;
·Commencing on the first weekend of Term 2, 2017 and each alternate weekend thereafter from after school/crèche Friday to 4.00 pm Sunday;
·Commencing on the first weekend after school recommences for 2018 school year, during school term each alternate week from after school/crèche Friday to the commencement of school/crèche Monday;
·Commencing Term 1. 2019 (being the year C commences school), each alternate week from after school Monday to the commencement of school Tuesday.
In addition the ICL sought specific orders with respect to special days, and the holiday periods.
As to the issue of parental responsibility it was the ICL’s position that the mother should have sole parental responsibility on the basis that she provide notice in writing of any non-urgent major decisions she is considering, so that the father has the opportunity to express his views in writing with respect to any proposed decision prior to implementation of that decision.

How The Hearing Proceeded

The father was unrepresented throughout the trial. The mother was represented by counsel.
As a consequence, at the commencement of the hearing I informed the parties of the manner in which the trial was to proceed, the order of calling witnesses and the right which each of the parties had to cross-examine the witnesses. I reminded the parties of the provisions of Part VII of the Act, in particular that in determining the appropriate parenting orders in the matter, the best interests of the children is the paramount consideration. I also reminded the parties of the matters which I am required to take into consideration in determining what is in the children’s best interests, as are set out at s 60CC of the Act.
Prior to the commencement of the hearing, the father confirmed that he had familiarised himself with the relevant provisions of the Act.

Relevant Legal Principles

Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of children are met by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) sets out the principles underlying those objects. They are that (except when it is or would be contrary to a child’s best interests):-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding a particular parenting order the best interests of the child is the paramount consideration (s 60CA). Section 60CC(2) and (3) set out the primary and additional considerations for the court in determining what is in the child’s best interests. I will return to those considerations in detail below.
There is a presumption that it is in the child’s best interests for the parents to have equal shared parental responsibility (s 61DA). The presumption relates to the allocation of parental responsibility. It does not relate to the time the child spends with each parent.
The presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or another child who at the time was a member of the parent’s family or family violence (s 61DA(2)). Further, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for their parents to have equal shared parental responsibility for the children (s 61DA(4)). For the reasons set out hereunder, I am satisfied that the presumption is rebutted in this case as an order that the parents have equal shared parental responsibility would be contrary to the children’s best interests.
As a result, I am not obliged to consider whether the children spending equal time with each parent would be in their best interests in accordance with the provisions of s 65DAA(1) of the Act. Similarly, I am not required to consider whether the children spending substantial and significant time is in their best interests in accordance with the provisions of s 65DAA(2).
The relevant standard of proof is the balance of probabilities. Without limiting the matters that the Court may take into account, s 140(2) of the Evidence Act 1995 (Cth) provides that in applying that standard of proof, the Court must take into account the following:-
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceedings; and
(c)the gravity of the matters alleged.
In determining the matter I have had regard to all of the evidence and had the benefit of observing the appearance and demeanour of the father, the mother and those witnesses who were required for cross-examination. I have carefully considered the matter and in making findings to the requisite standard I have had regard to all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

The Issues

The issues in this case as identified in the parties’ affidavit material and the Family Report and during the course of the hearing, may be summarised as follows:-
·The allocation of parental responsibility;
·With whom the children should live;
·Whether the children have been exposed to family violence;
·The impact of the father’s psychiatric condition upon his capacity to care for the children;
·The mother’s capacity to support the father having a meaningful relationship with the children;
·The parents’ ability to communicate productively;
·Whether the father’s accommodation is appropriate for the children;
·The children’s developmental needs and views.
It is convenient to consider the issues for determination under the umbrella of the s 60CC(2) and (3) considerations. I will first consider the primary considerations under s 60CC(2).

The Primary Considerations

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

The question of what is a meaningful relationship was considered by Brown J in the decision of Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518. At paragraph 26 of that decision her Honour concluded that a meaningful involvement “is one which is important, significant and valuable to the child”. Ordinarily it is in a child’s best interests to have a meaningful relationship with both parents, that is one that is important, significant and valuable as defined by her Honour. Her Honour observed that the word meaningful is a “qualitative adjective, not a strictly quantitative one”.
The Full Court considered the interpretation of “meaningful relationship” in McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405. The Full Court agreed with Brown J’s observations as to the nature of a meaningful relationship and considered three possible approaches to s 60CC(2) at paragraph 118, they being:-
·The “prospective approach” which requires the Court to “consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents”;
·The “present relationship approach”, which involves making findings as to the nature of the child’s relationship with both of the child’s parents as at the date of the hearing; and
·The “presumption approach”, which requires a court to assume that there is a benefit to all children in having a meaningful relationship with both of their parents.
The Full Court at paragraph 119 concluded that the preferred approach to the interpretation of s 60CC(2)(a) is the prospective approach although acknowledged that the present relationship approach may also be relevant in determining the issue.
Notwithstanding the criticisms each party levelled at the other in terms of their parenting abilities, by the conclusion of the hearing it was common ground between them that the children will benefit from having the opportunity of a meaningful relationship with both parents.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence;
The father commenced parenting proceedings by his Response to Initiating Application filed in February 2015. Therefore, the provisions of s 60CC(2A) apply and the Court is required to give greater weight to the considerations set out in sub-paragraph (2)(b), that is the need to protect the children from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.
The mother alleges that she and the children have been exposed to family violence at the hands of the father. It is her case that she is fearful of the father and that she has concerns for the children’s safety when in the father’s care.
Family violence is defined in s 4(1) of the Act to have the meaning given by subsection 4AB(1). Section 4AB(1) defines family violence as follows:-
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Further the mother alleges that due to his history of mental illness, the father has difficulty in containing and managing his emotions; the mother is fearful that the father’s inability to control his emotions may place the children at risk of harm when in his care.

Are the children at risk of family violence in the father’s care?

The father denied the allegations of family violence. His positon with respect to those allegations is articulated in his Trial Affidavit filed 23 August 2016 wherein he deposes as follows:-
7.Never, during our time together did [the mother] complain to any unbiased body about violence. There is no evidence to suggest I am violent.
8.There is evidence, however, to suggest [the mother] and maternal family are aggressive.
The father alleges that in fact it was the mother who was physically violent towards him on 2 September 2014, necessitating that the police be called to the former matrimonial home.
Further, at paragraph 32(a) of the father’s Trial Affidavit he deposes that:-
There is no unbiased evidence [the mother] can provide of family violence being a part of our time together. Although family violence is a problem that is unfortunately common today, it was NEVER common in our family.
The father was cross-examined as to an altercation alleged to have occurred between the parties on 27 August 2014. Under cross-examination the father agreed that there had been a verbal argument with the mother that day; he denied that the mother told him she wished to end the relationship and stated that the argument escalated when the mother stated she wished to take the children away from him. Whilst the father denied physically restraining the mother, the father conceded that the child B was crying during the argument between his parents.
The father was also cross-examined with respect to the events of 2 September 2014, being the day he alleges the parties separated and the police were called to the former matrimonial home. During cross-examination, the father conceded that he took the mother by the arm on that occasion, and forcibly removed her from the home. He admitted pulling the mother by the forearm. Further, the father admitted that B was asleep prior to that incident but that he awoke to see his mother squeeze his father’s testicles and the father pull the mother outside.
B was interviewed by workers from the Department of Health and Human Services (“DHHS”) with respect to this incident. His account of that event to the DHHS worker (Exhibit ICL7) is reported as follows:-
… mum ripped my dads [sic] top. Said that he knew because his dad showed him. he also said that his mother bit hit [sic] dads and that this made him feel sad. Dada locked the door and mum stayed outside. [B] said that he had been sleeping but he woke up and that he saw that his mother was outside. [B] said she was outside and he could see her through the window saying that “she Knocked on the window and tried to get me to let her in but I could not open the door.” “mum was sad”

The father admitted the accuracy of that account save that he denied showing B his ripped top.
The notes of the DHHS interview with B (Exhibit ICL7) also record that B told them he witnessed a fight between his parents on another occasion on a day when he attends karate. He is reported to have told the worker that his parents were fighting in their bedroom and that his father was holding onto his mother’s arms and that she was laying down. When cross-examined in relation to that report, the father’s response was that B had made a mistake in relation to his report of the father holding the mother down; he conceded the parties had an argument but denied that there was a physical altercation.
Following the incident on 2 September 2014 the mother applied for and obtained a Family Violence Intervention Order against the father. Following an incident on 22 March 2015 the father was charged with a breach of that order which he admitted. As a result of the breach the father entered into a diversion program.
The father was also cross-examined in relation to incidents of violence alleged to have been perpetrated by him against other family members, his treating doctors and staff at B’s primary school.

The school incident

There was an altercation between the parents at B’s school concert in December 2015. It is alleged by the mother that the father attempted to leave the concert with B and was stopped by the Assistant Principal at the school. Following that incident, the father attended a meeting with the school Principal. The father’s evidence was that the meeting lasted for approximately 15 minutes. The meeting concluded with the father being asked by the Principal to leave and being told by her that if he did not comply with that request she would call the police. The father’s evidence was that it was the school Principal who yelled at him during the meeting. The father confirmed that the meeting was conducted in the presence of both the Principal and the school Vice Principal. The father could provide no explanation as to why he was asked to leave, why he was told that the police would be called if he did not leave or indeed why the Principal might have been yelling at him. Seemingly, on the father’s evidence he was blameless in relation to the events of that meeting, which resulted in him being asked to leave and warned by the Principal that she would call the police if he did not comply with that request.
It was a feature of much of the father’s evidence that where there were incidents of violence, whether verbal or physical, such events were the result of behaviours of others and not of the father. The father would have it that largely he has been an innocent party in relation to the violent incidents which have occurred within his sphere.
Following the meeting at the school, it is alleged by Ms J, B’s psychologist, that the father left voicemail messages on her answering service regarding the school meeting. At paragraph 34 of her Affidavit filed 26 July 2016, Ms J deposes that the father stated in his voicemail message that “people will be held to account for their role in this matter”. During cross-examination, the father conceded that he “may have” left that message with Ms J. The father agreed during cross-examination that such a message, if left, was threatening. The father’s evidence in relation to the alleged messages left by him with Ms J was unconvincing. Where challenged with specific allegations, I found the father to be evasive and non-responsive. I accept the evidence of Ms J in relation to those messages and am satisfied on the balance of probabilities that the father did leave threatening messages as alleged on Ms J’s answering service.

Altercation at the home of the father’s parents

The father was also cross-examined in relation to an Intervention Order obtained by his own father against him in 2006. The father’s evidence in relation to that incident was that it arose due to a fight between he and his brother as to which program to watch on television. In addition to the Intervention Order, the father was charged with resisting arrest and property damage as a result of the incident. At the time of the incident, the father was aged 27 years and living at his parents’ home. His brother was aged about 20 years at the time. The father confirmed the police were called to the home by his father, that he was arrested and taken away by the police and charged. The father confirmed that he pleaded guilty to the charges and that no conviction was recorded.

Father punching power pole

A further example of the father’s inability to control and contain his anger occurred in April 2012 when the father attended upon the emergency department at L Hospital due to an injury to his hand caused as a result of him punching a power pole. When cross-examined as to why he had punched the pole, the father stated that he was frustrated by his inability to return to work. On that occasion the mother drove the father to the hospital and was supportive of him.

Father’s behaviour towards his treating doctors

The father was also cross-examined as to his abusive and aggressive behaviour towards the medical professionals treating him. The father was under the care of Dr M between April and November 2013. Dr M ceased treating the father due to his behaviour towards her and her staff. In a letter to the father’s general medical practitioner dated 6 November 2013 (Exhibit ICL5), Dr M states as follows:-
Over the last couple of months we also started to see emergence of demanding behaviour, with [the father] demanding more and more of my time and no matter how much I gave it was never enough.
Unfortunately, treatment came to an early termination after [the father] made a series of unprovoked harassing threatening abusive phone calls to this clinic threatening myself and my secretary.
He said
‘I will tear her (myself) to shreds’
‘I will tear anyone I see there (at this clinic) to shreds’
‘I don’t care if she is with other patients because I am more important’
A letter of termination of treatment was sent to him immediately.
Unfortunately, my secretary and myself were left significantly traumatised by this. She resigned and I took sick leave because I was unable to work. I have since then made a statement to the police and may take out an intervention order.
The clinic file notes (Exhibit ICL5) confirm the matters recorded in the letter referred to above. When cross-examined about the alleged threats, the father confirmed that Dr M had made the decision not to see him as her patient. The father admitted that he telephoned the clinic on more than one occasion but denied the threats attributed to him, stating that he said words to the effect of “I’m extremely pissed off that you won’t see me given that I was prescribed melatonin and have been in bed unable to move for three days”. During cross-examination, the father confirmed that at the time he made those phone calls he was extremely angry, that he was upset and that he yelled at Dr M’s secretary.
The father’s evidence in relation to the alleged threats towards Dr M was unconvincing. He sought to minimise the seriousness of the incident and of the impact of his behaviour upon his treating doctor and her staff.
Further allegations were made by Dr N as to the father behaving inappropriately towards him. With respect to Dr N terminating his treatment of the father, Associate Professor H notes at paragraph 77 of his Report dated 15 April 2016 as follows:-
[The father] told me he then attended psychiatrist [Dr N] for six months. He told me there was a difference of opinion there and some yelling and screaming. He told me then he was referred on to clinical psychologist [Ms O] in [Suburb P] in 2014…
During cross-examination, the father stated that it was Dr N who was yelling and screaming. The father’s evidence was that he had told Dr N that the treatment was not working and when Dr N did not like that he started yelling and screaming and then accused the father of threatening him. The father conceded, albeit reluctantly, that he had raised his voice to Dr N and that he had told Dr N to “stuff you” and then walked out of the treatment rooms.

Impact of the father’s behaviour

Counsel for the ICL put to the father that his interactions with his treating doctors and their staff, his brother, and the school Principal indicate that his statement contained in his Trial Affidavit that he is not a violent person is incorrect. Whilst the father conceded that the matters referred to by the ICL were instances of violent behaviour, the father maintained that he is not a violent person.
The father demonstrated little insight as to the pattern of behaviour disclosed with respect to those incidents. It is evident from the matters referred to above that at least since 2006, there have been a series of events whereby the father has demonstrated an inability to control his anger which has resulted in police intervention, intervention orders or the decision of his treating doctors and others to refuse to engage with him. With respect to some of those instances, the father sought to attribute blame to others for his behaviour. For example, when Dr M determined to cease treating him, she was to blame for failing to speak with him regarding his treatment. Similarly, it was his psychiatrist Dr N and the school Principal who were yelling at the father and not any poor behaviour on his part that resulted in them terminating meetings or provision of services.
The Family Consultant, Ms K made similar observations of the father’s account of these events. At paragraph 28 of the Family Report she notes:-
… When discussing, [the father] had a tendency to over emphasise the other’s wrong doing and minimise his own actions…
In support of his positon that he is not a violent person, the father relied upon the report of his psychologist, Mr Q who prepared a Report dated 22 June 2016 in relation to his assessment and treatment of the father (Annexure 7 to the father’s Affidavit filed 24 August 2016). Mr Q gave evidence and was cross-examined in relation to that Report.
The father conceded during cross-examination that he did not inform Mr Q of the following incidents:-
·The altercation with his brother resulting in charges for resisting arrest and property damage and the application of his father for an Intervention Order against him;
·Punching the light pole in April 2012;
·The decision of Dr M to cease treatment of him due to her allegations of his threats to her and her staff;
·The decision of Dr N to cease treatment of him following “yelling and screaming”;
·The disagreement with the school Principal which resulted in her asking him to leave her office and threatening to call the police.
At page 2 of his Report dated 22 June 2016 Mr Q notes as follows:-
[The father] reported that he had been interviewed by police over alleged breaches of the intervention orders, but on each occasion the police had found no grounds to charge him.
The father was challenged in relation to that statement. The father confirmed during cross-examination by the ICL that he had been charged with a breach of Intervention Order and that that charge had been made in September 2015, prior to the father’s attendance upon Mr Q and Mr Q’s preparation of his report. The father confirmed that at the time he saw Mr Q he was aware of the charge for the breach of the Intervention Order. The father maintained during his evidence that he had informed Mr Q of the charge.
Mr Q was cross-examined by the ICL. During cross-examination Mr Q confirmed that there were significant gaps in the history provided by the father. He confirmed that he was unaware of:-
·The father’s psychiatric history;
·The father’s criminal history;
·The father’s altercation with his brother in 2006;
·The allegations made by Dr M which resulted in her ceasing to provide treatment to the father;
·The disagreement with Dr N which culminated in him ceasing to provide the father with treatment.
The report of Mr Q states that testing of the father on the Barratt Impulsiveness Scale–11 (BIS) indicates that the father has a low level of impulsivity and presents “a low risk of resorting to violence even when provoked”.
Having conceded the significant gaps in the history provided by the father, Mr Q confirmed during cross-examination that the history of the father’s behaviour and outbursts as noted above indicates a pattern of impulsive behaviour and indicates that the father has poor impulse control. Mr Q conceded that it would have been better practice for him to have obtained a more detailed history from the father. Further, he conceded that he was unaware of the allegations that the father had been violent towards the mother. In light of the information with respect to the father’s psychiatric history and of the father’s behaviour as detailed above, Mr Q confirmed that he would reconsider his assessment as to the father’s impulsivity.
Mr Q confirmed that he assisted advocacy groups for parents not seeing their children. It was in this setting that he met with the father. Whilst conceding he would reconsider his assessment of the father’s impulsivity, Mr Q maintained that “children need to see their parents”.
Having regard to the failure of Mr Q to obtain a detailed history of the father coupled with his acknowledgment that he works with specific advocacy groups and that it is his view that children need to see their parents, I am satisfied that little weight can attach to Mr Q assessment and report as to the father’s impulsivity.
The father has failed to disclose to his treating psychologist significant aspects of his history. The impression I am left with is that the father has been less than frank with that psychologist in order to obtain evidence which he perceives will be helpful in this case.
Similarly, I am satisfied that the father has been less than frank with the Court in relation to his behaviour, particularly with respect to the incidents involving Dr M, Dr N and the school Principal. Each of those professionals has complained of behaviour by the father which is aggressive and abusive and has resulted in those professionals determining to cease their interaction with the father.
The father’s positon with respect to each of those events is to minimise his role or alternatively blame the other party for those events. I do not accept the father’s evidence with respect to those interactions. The file notes of Dr M and the Affidavit of Ms J depict abusive and aggressive behaviour by the father. There is a remarkable consistency as to the father’s reported behaviour by each of those professionals, as well as in respect of the alleged behaviour by the father towards the school Principal and Dr N. In the circumstances, I am satisfied on the balance of probabilities that it is the father who has been the instigator of aggressive, abusive and threatening behaviours on each of those occasions.
I am satisfied that the father’s history of aggressive, abusive and violent behaviour supports the view that he has difficulty in containing his anger and is prone to angry and impulsive behaviour.
The mother’s oral evidence was that she finds the father to be threatening and intimidating. As a result she feels that she cannot communicate with the father. I accept that evidence.
The children have been spending unsupervised time with the father since 2015 and the mother does not seek to change those arrangements. The mother’s position is that whilst she does not hold concerns that the children are at risk of abuse or violence by the father, she is concerned to ensure that the children are protected from exposure to the father’s volatility towards others. Accordingly, she seeks that the father’s time be limited and increased slowly, particularly given C’s young age.
I am satisfied that the father’s history of aggressive and abusive behaviour is a matter to be taken into account in determining what is in the best interests of the children. Further, I am satisfied that the children should be protected from exposure to such behaviour by him.

Does the father’s history of mental illness pose a risk to the children?

The father takes issue with the mother’s concerns in relation to his mental health and at paragraph 27 of his Trial Affidavit refers to and relies upon the assessment of him by Associate Professor H. In particular, the father relied upon paragraph 100 of Associate Professor H’s Report dated 15 April 2016 (Annexure PD2 of the Affidavit of Professor H filed 27 April 2016) wherein he states:-
In my opinion, based on the history obtained, findings on mental state examination and a review of the supplied documents, there is no psychiatric contraindication to the father having the children reside with him or the father having unsupervised access to the children.
At paragraph 93 of his Report, Associate Professor H made a mental health assessment of the father as follows:-
The history obtained and a review of the supplied documents indicates the father has a psychiatric condition. The diagnosis of the father’s psychiatric condition is that of a generalised anxiety disorder. The father has had persistent anxiety-laden symptoms without ostensible precipitant giving rise to clinically significant symptoms which cause distress and interfere with his social and occupational functioning. That psychiatric condition has been present throughout his adult life. It has worsened at times, with the development of significant depression and anxiety symptoms and he has sought treatment for it. He has a personality marked by more than the usual levels of nervousness, obsessionality with some narcissism.
Associate Professor H was not required for cross-examination and his evidence is unchallenged; I accept his evidence.
During the course of the trial I observed the father to be fixated on the need to disprove the allegations of the mother that he had assaulted her and breached the Intervention Orders; his desire to challenge those allegations at times caused him to lose sight of the issues before this Court. The father demonstrated little insight as to the impact of admitted behaviours by him upon the mother and the children.
Much of his cross-examination of the mother and the Family Consultant sought to focus on those historic allegations rather than on the current parenting arrangements or proposals for the future. The father’s conduct during the trial was consistent with the behaviours observed by Associate Professor H. In his Report Associate Professor H observed the father to be:
91.… somewhat talkative, tends to go into detail, and is over inclusive in his speech.
…
95.The father is direct, frank, to the point man, who tends to be obsessional and anxious in his personality, and it comes across in his interpersonal dealings.
The observations of Associate Professor H as to the father’s obsessional and anxious presentation are consistent with my observations of the father during the course of the hearing. During his cross-examination of witnesses, I had to repeatedly intervene to ensure that the father’s questions were directed towards matters relevant to the determination of the parenting issues.
The father was cross-examined as to his psychiatric history. He confirmed during his oral evidence that he had had psychiatric issues since he was aged 19-years. The father confirmed that there had been a relapse in 2011 and 2012 and that he was an in-patient at R Hospital for a period of four weeks between July and August 2011, again in May to June 2012, and for a further month in 2012. The father was also hospitalised at S Hospital in June 2014.
When questioned by Associate Professor H as to substance abuse, it is reported by Associate Professor H at paragraph 69 of his Report that the father stated to him that he hardly ever drank alcohol. The father reported to Associate Professor H that in 2011 there was a time when he drank for a week and consumed alcohol before work trying to manage his anxiety symptoms.

The notes of R Hospital (Exhibit ICL4) for the period July 2011 confirm the father’s report that he had been drinking whiskey for the preceding five days and a quarter of a bottle of vodka on the preceding Wednesday.
The father also confirmed during cross-examination by the ICL that he had periods of suicidal thought during 2011 and 2012 but that he has now recovered from those symptoms.
The father has suffered from anxiety and depression since he was aged approximately 19-years. Since 2011, the father has attended a number of psychiatrists and psychologists for assistance with those symptoms. On two occasions, his treating psychiatrist has terminated his or her services due to the father’s behaviour towards them.
Currently, the father attends a psychiatrist and a psychologist. Although no evidence was adduced from his treating psychiatrist, the evidence of the father and Associate Professor H indicates that he is compliant with the recommendations of his specialists.
The Family Consultant, Ms K was cross-examined as to the impact of the father’s mental health issues upon his parenting capacity. From her perspective, she confirmed that the father’s mental health is not a significant issue in the case, provided that the father continues to engage with the same counsellor. Ms K confirmed the importance of the father complying with the directions of his psychiatrist and psychologist.
Further, Ms K confirmed that from her perspective the parental conflict was a greater concern than the father’s mental health history. I will address that issue later in this judgment.
Associate Professor H concludes at paragraph 99 of his report that the father’s psychiatric condition does not interfere in any significant way with the father’s parental ability, long term parental capacity or his ability to provide appropriate parenting to the children.
Both Ms K and Associate Professor H emphasise the importance of the father continuing with psychiatric treatment.
I accept the evidence of Associate Professor H and the Family Consultant as to the impact of the father’s mental health issues upon his capacity to parent and the need for him to continue to attend upon his treating specialists with respect to those issues.
Whilst at the commencement of the hearing, significant concerns were raised by the mother as to the father’s violent behaviour and mental health issues, by the conclusion of the hearing it was conceded by her that those concerns were not of such importance that the father should be prevented from seeing the children or that his time with the children should be supervised. Indeed, at the conclusion of the hearing the mother consented to orders that the father commence having overnight time with the children.
Whilst the mother consents to a gradual extension of the father’s time with the children, she seeks orders that the father regularly attend upon his treating psychiatrist and psychologist and that he inform the mother of any change of those practitioners or any change in his health which may impact on his ability to care for the children.
I am satisfied, having regard to the evidence and my findings as to the father’s previous aggressive and violent behaviour and poor impulse control and his history of psychiatric illness that such orders are appropriate and in the children’s best interests to ensure that they are protected from harm.

The Additional Considerations

I must now consider the additional considerations.
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
The Family Consultant, Ms K, has prepared a detailed and comprehensive Family Report. She has observed the family both in the preparation of the Child Responsive Program Memorandum in July 2015 and for the purposes of the preparation of the Family Report in July 2016. Ms K was cross-examined by all parties with respect to her reports and I found her evidence to be balanced and considered.
C was not interviewed by the Family Consultant due to his young age. Accordingly there are no views expressed by him with respect to the issues before the Court.
B was aged seven years and four months at the time of interview with the Family Consultant. At paragraph 45 of the Family Report dated 5 August 2016 the Family Consultant observes that B’s suggestions for future arrangements mirrored the father’s proposals. The Family Consultant expanded on those observations at paragraph 46 of the Family Report. She noted that:-
[B] announced early in the interview that he only saw his father for 15 and half hours per fortnight and that he believed he should see his mother and father equally. He suggested that week about was the ‘fair’ option. He said it “wasn’t fair” that he doesn’t sleep at his father’s house and said that he and [C] should. He also added that in their limited time it was not fair that “daddy has to feed us and change [C]” as this detracted from their time. … [B] went on to say that if they had equal time between their parents that they would no longer have to go to the police station or Court and he thought this would be a good thing.
The Family Consultant was not challenged with respect to those observations of the children. She observed and I accept that B is drawn inappropriately into disputes between his parents and is forced to take sides. It was conceded by both parties during interview with Ms K and during their oral evidence that B is used by them as a messenger and a conduit for information between the parents.
The father has relied upon B for information regarding the mother’s new relationship, school events and the desire of the mother to change B's surname.
At paragraph 68 of the Family Report, the Family Consultant made the following observations, which I accept, with respect to her interview with B:-
…It was apparent that [B] had been coached to some degree by his father to represent his interests. To that end [B] was compliant in following his father’s request. His criticisms of his mother matched those of his father and his proposal was identical. Further to this his comment about the number of hours he spends with his father was clearly an adult construct and unlikely that he had formed this conclusion alone. What is concerning about this is the limited time [B] spends with his father and his father’s capacity to enlist his support to this extent. It is also concerning that [B] was questioning whether his mother was a “liar” again, the same description his father gave.
Having regard to B’s age and maturity, coupled with the extent to which he has been embroiled in the dispute between his parents, I am satisfied that little weight can attach to any views expressed by him.
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
As noted above, C was not interviewed by the Family Consultant. Her observations of him confirmed that C is content with both parents although he was observed to ask for his mother throughout the day and became distressed during the period when B was interviewed and when he would otherwise have been left in the playroom without a family member. As a consequence, during that time C went to his mother for reassurance.
At paragraph 54 of the Family Report, the Family Consultant observed of C that:-
Given his young age, security and stability are important and it appears that he looks to his mother to provide this. It is noted that his father has not had this opportunity and therefore it is largely untested as to what capacity he brings to this…
The Family Consultant undertook observations of the parents with the children. During observation of the mother, the Family Consultant notes at paragraph 55 of the Family Report that the mother immediately engaged in play activities with the children and was able to divide her time seamlessly between the two, engaging in age-appropriate games and play with each. She was also observed to manage tensions between the boys which emerged during their play.
During observations of the father and the children, the Family Consultant noted that the father required the children to cease activities to engage with him. For example at paragraph 58 of the Family Report she notes that the father questioned B stating “are you going to acknowledge dad is here?”. When B did not cease playing, the father said to him “can we stop playing because daddy is here”. He then said “There’s not much time with daddy”. B stopped playing with his activity and followed his father’s instructions. The father continued to direct the children in relation to their activities throughout the session. At paragraph 60 the Family Consultant notes:-
It was apparent that it was the children’s responsibility to follow the lead of their father and making their own choice of activity was not tolerated.
At paragraph 64 of the Family Report the Family Consultant notes:-
… [The father’s] behaviour in observations looked like the children were required to affirm his parenting skills as opposed to him attending to their needs. Children raised in this environment are likely to experience a high level of insecurity and develop skills to acquiesce to their parent’s needs, some evidence of this already exists in [B].
Further, at paragraph 71 of the Family Report the Family Consultant observed that:-
… [d]uring the interactions between [the father], [B] and [C] … [the father] was unable to engage with the children where they were at and rather needed them to validate him as a parent by acquiescing to his needs and interests. At the end of a long day, [B’s] preference to play on a computer game was totally disregarded and he was scolded for it. A more child focussed action would have been for [the father] to join with [B] in his choice of activity. It was as though [the father] wanted to put his best parenting forward, but in reality appeared to be a man who needed a high level of control in his parenting and also needed his children to validate his parenting rather than he as the parent meeting their individual needs.
Ms K was cross-examined by all parties and her observations as to the nature of the children’s relationship with both parents and was not shaken during that cross-examination. Accordingly, I accept her evidence with respect to the children’s relationship with their parents.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
The children have been in the mother’s primary care since the parties’ separation.
There is a dispute between the parties as to the care arrangements preceding the separation with each parent asserting that they were the children’s primary carers.
The father was cross-examined as to the degree of his involvement in the day-to-day care of the children in the period leading up to the separation. The focus of cross-examination by counsel for the ICL was upon the father’s health during the period 2011 and 2012 and the impact of his health issues upon his capacity to care for the children.
The reality of the father’s positon is that he was hospitalised for a period of approximately one month on three separate occasions during 2011/2012. As a consequence, the mother was solely responsible for B’s care during that period.
The father also confirmed that he suffered periods of insomnia and that the mother obtained a carer’s certificate from her medical practitioner due to her responsibilities to care not only for B but for the father during his illness.
There were periods when the father’s ill-health precluded him from working. The father ultimately conceded that his view as to his involvement as a parent during that period was rosier than the reality of the parties’ situation. During the course of the cross-examination, the father eventually conceded that the mother was the primary carer for the children prior to the parties’ separation and that she has continued in that role since separation.
I am satisfied, having regard to the evidence with respect to the father’s ill-health during 2011 and 2012 and the acknowledgement by him of the mother’s role in caring for him and B during that period, that the mother was the children’s primary caregiver prior to the parties’ separation.
All of the material filed on behalf of the father confirms his desire to be an active participant in all aspects of the children's lives and to spend as much time with them as he is permitted. The father is critical of the manner in which the mother has made decisions regarding the children’s care without reference to him in the period since the parties’ separation. He alleges that the mother has sought to exclude him from the children’s lives.
In support of that allegation the father points to the failure of the mother to inform him that C was taken to the T Hospital on New Year’s Day 2016 by ambulance due to breathing difficulties. The father alleges that he was informed of C’s hospitalisation some weeks later by B.
During cross-examination the mother stated that she had forwarded an SMS text message to the father on New Year’s Day informing him that C had been taken to hospital by ambulance due to issues with his chest and breathing. The father denies ever receiving that text message.
During cross-examination, the mother agreed that it was likely that the receipt of such a text by the father would be alarming to him. It is the mother’s case that the father constantly bombards her with demands and requests for information in relation to the children. However, on this occasion the mother conceded that she received no request for additional information from the father after she sent the text message. She confirmed that it was only weeks later that she received requests for information from the father regarding C’s condition and that those requests for information coincided with the time at which B informed the father of C’s hospitalisation.
The mother’s Trial Affidavit is silent with respect to the alleged text message. The mother stated during cross-examination by the father that she assumed the father received the text but conceded that “five per cent of [her]” thought that the father did not get the text.
The mother’s evidence regarding the alleged text message was vague and unconvincing. Having regard to the history of the parties’ communication I am satisfied on the balance of probabilities that the mother did not forward a text message to the father informing him of C’s hospitalisation and rather left it to B, who was then aged six years, to tell his father of that event.
A further decision taken by the mother without reference to the father was the commencement of counselling for B with Ms J. The mother elected not to inform the father of her decision to have B commence seeing that counsellor. B was referred to and commenced consulting with Ms J in May 2014. The mother’s evidence is that the father was not informed of that fact until late-2015. B was attending upon Ms J for a period of almost one-and-a-half years without the father’s knowledge or consent.
I am satisfied that the father has sought to be an active parent in all aspects of the children’s lives. Having regard to the above evidence, I am also satisfied that the mother has, at times, failed to support the father’s participation in the children’s lives and has made significant decisions regarding the children’s care without reference to him.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child;
Counsel for the mother asserted at the commencement of the father’s evidence that there were arrears in excess of $4,000 owing by the father in respect of child support. The father denied that allegation.
During the course of the hearing the father produced a statement from the Child Support Agency in respect of his child support liability. That statement (Exhibit ICL1) confirmed that the father’s liability for child support for the period 1 September 2015 to 31 October 2016 was $480.83 per month. It also confirmed that the father’s outstanding child support liability as at 26 September 2016 was $365.81.
Having regard to that evidence, I am satisfied that the father is fulfilling his obligations to maintain the children.
The mother is otherwise responsible for the support of the children. She is engaged in full-time employment and her income is applied to the support of the children. Accordingly, I am satisfied that she too is fulfilling her obligations to maintain the children.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
The order sought by the father that the children have equal time with their parents represents a significant change in the children’s circumstances.
The father conceded during his evidence that the mother was the primary carer for the children prior to the separation and she has continued in that role since that time.
At the commencement of the hearing, and indeed during interview with the Family Consultant, the father’s position was that the children should live with him and spend time with the mother. It was his proposal that over a period of approximately 12 months the mother’s time with the children increase to a point where the parties have equal time with the children.
The Family Consultant reports at paragraphs 29 and 30 of the Family Report that the father’s application for the children to live primarily with him was prompted by Associate Professor H’s assessment that there is no psychiatric contra-indication to the father having the children live with him. The Family Consultant reports that the father conceded at the interview with her that his proposal for the children to live with him was an ambit claim made by him so that he could default to an equal shared-care arrangement with the children living week-about.
By conclusion of the trial the father’s position altered such that he sought to have orders for gradually increasing periods of time with the children, culminating in an equal time arrangement.
The mother challenged the father’s capacity to care for the children on a shared care basis, having regard to his current work commitments. She also raised issue with respect to the father’s accommodation.
As previously referred to, the father works on a contract basis, currently working fulltime. The father’s oral evidence is that he presently works Monday to Friday, starting work between 7.00 am and 9.00 am and finishing between 3.00 pm and 5.00 pm. When pressed on the issue of his work hours, the father repeatedly stated that his working hours were “flexible” although ultimately conceded that if, for example, he started work at 9.00 am, he would finish at 5.00 pm and that regardless of his starting and finishing times, the children would be required to spend time in before or after school care. When questioned as to whether he worked weekends, the father said that that was an option but that he is not required to do so. He confirmed that as a sub-contractor he has no annual leave and would be required to take leave without pay in the event of the children spending time with him over the school holidays. His evidence was that from past experience he had been able to take five weeks leave without pay.
The father’s evidence as to the flexibility of his employment to accommodate his parenting obligations was unconvincing. I was left with the impression that the father had given little practical consideration as to how he would manage the needs of the children as well as the requirements of his employer. Further, the father demonstrated limited insight as to the impact on the children of the significant change in their living arrangements, as was initially proposed by him. I am satisfied that the mother’s concerns at to the father’s capacity to care for the children on a shared care basis are justified. In my view the father’s proposal for equal time is one motivated by his needs rather than what is in the children’s best interests.

Given the challenges these parties face with respect to communication, I am satisfied that an order that the father have the ability to communicate with C by FaceTime on a daily basis is not in the children’s best interests. It is an order that would likely place undue pressure upon the mother to facilitate that time and would likely invite further conflict between the parents. Further, having regard to C’s age it is an order which is unlikely to be capable of successful implementation in any event. In my view, it is appropriate that the father have the opportunity to communicate with the children on a weekly basis and to that end, I propose to make an order that he be permitted to telephone the children each Wednesday between 6.00 pm and 6.30 pm.
The ICL proposes that changeovers continue to occur at V Group Suburb E until there is an extension of the father’s time which is proposed to occur at the commencement of Term 2, 2017 and thereafter changeovers occur at McDonald’s Suburb I. That proposal is supported by the father.
The mother opposed changeovers occurring at McDonald’s Suburb I. Whilst the mother’s Counsel submitted that there had been difficulties with changeovers at that venue, she adduced no evidence as to those difficulties.
I am satisfied that it is appropriate that wherever possible changeovers for the care of the children occur at their school or crèche. When this cannot occur, I am satisfied that it is appropriate that such changeovers occur at McDonald’s Suburb I. That location is geographically proximate to both parties and provides a public environment which should ensure that both parents can facilitate changeover for the children without hostility or acrimony.
The ICL also seeks orders with respect to the children’s time with each parent on Christmas Eve and Christmas Day. Orders were made by consent at the conclusion of the hearing which provided that the father spend time with the children from 4.00pm Christmas Eve to 3.00pm Christmas Day 2016. As with all special occasions, in my view it is appropriate that the parties share that time with the children so that the children have the opportunity of enjoying such occasions with both of their parents. The children can only benefit from the experience of sharing such occasions with the mother and the father. The orders sought by the mother and the father with respect to Christmas are similar insofar as each contemplates a sharing of Christmas Eve and Christmas Day albeit that the changeover times sought differ. I have heard no evidence from either party as to why one position is to be preferred over the other. In circumstances where there was agreement between the parties as to the time for changeovers for Christmas 2016, I propose to order a similar regime of sharing of that time for the future, that is the father is to spend time with the children in even numbered years from 4.00 pm on Christmas Eve to 4.00pm on Christmas Day and in odd numbered years from 4.00pm on Christmas Day to 4.00 pm on Boxing Day.
The ICL also seeks orders requiring the father to continue to attend upon his treating psychiatrist and psychologist as directed by them and to authorise those professionals to inform the mother of the fact of his attendance upon them and his compliance with treatment by them. Those orders are sought in light of the recommendations of both Associate Professor H and the Family Consultant as to the importance of the father continuing to engage with those specialists. Having regard to the evidence of those experts, I am satisfied that an order in those terms is appropriate.
Further, the ICL seeks orders that the father’s time with the children be suspended in the event of any deterioration of his mental health which impacts on his capacity to care for the children. The difficulty with that proposal is that given the high level of distrust between the parties, it is an order likely to give rise to further conflict and litigation and places the mother in the invidious positon of gatekeeper as to whether the father is well enough spend time with the children. One of the principal areas of concern from the mother’s perspective is the father’s health, particularly having regard to his history of instability between 2011 and 2012. Currently the father is undertaking treatment and his health is stable. I will make orders to ensure that he continues to be compliant with the directions of his treating health professionals and further that the mother has the reassurance of being informed by those professionals that the father is attending them as directed and that he is complying with their recommendations. In the event that the father does not meet his obligations with respect to adherence to his treatment regime, it is open to the mother to apply to the Court for an alteration of the orders.
The ICL also seeks injunctions restraining the parties from discussing the proceedings with the children or in their presence, from criticising the other parent, their family, friends or partners in the hearing or presence of the children, or from acting in a provocative or aggressive manner in the presence or hearing of the children. Interim orders were made by consent to that effect at the conclusion of the hearing.
Having regard to the history of conflict as well as the history of the children’s involvement in the proceedings, as identified by the Family Consultant particularly with regard to statements made to her by B during interview, I am satisfied that it is in the children’s best interests that those injunctions continue. They will ensure that the children are protected from any discussion of these proceedings or parenting issues and further will provide a safeguard to ensure that the parties behave in a civil manner towards each other during changeovers.
The ICL also seeks orders that the children be enrolled in and attend a program for supporting children after separation. That order is sought based upon the recommendations of the Family Consultant. The evidence of the Family Consultant indicates that the children have been involved in and exposed to information with respect to these proceedings. It is evident from the interview of B by the Family Consultant that he is acutely aware of the views and attitudes of his parents. In my view it is appropriate and in the children’s best interests that they be enrolled in and engaged in the program as recommended by the Family Consultant.
The ICL also seeks orders for the parents to keep the other informed of any medical treatment of the children whilst in their care and further to keep the other informed of their current residential addresses, email addresses and telephone numbers. The father also seeks orders that he be provided with such information. It is appropriate that orders be made in the terms sought by the ICL to ensure that information can pass seamlessly between the parents with respect to the children’s health care as well as any significant medical events affecting the children.
The ICL seeks orders with respect to the children’s time with the father in the event of a child’s ill-health. He proposes that if the time cannot proceed due to that child’s illness the mother be required to provide a medical certificate to the father and that there be make-up time. Further if the children fall ill when in the father’s care, orders are sought that the father return the children to the mother’s care. In my view, the orders as proposed are overly prescriptive and are likely to invite further conflict between the parents. Accordingly, I decline to make those orders.
In addition to the issues I have already addressed, the father in his Minute of Proposed Order (Exhibit H-5) seeks a raft of orders with respect to issues not addressed during the trial or in closing submissions.
The father seeks orders requiring the mother to inform him of the crèche at which C attends and further that the father be noted as a parent on the contact details maintained by that crèche and that he be provided with information ordinarily provided to parents by that crèche. It is important in my view that the father be kept informed as to the children’s progress both at crèche and school. To that end, I will make orders requiring the mother to authorise the children’s crèche and schools to provide information and notices to the father of matters ordinarily communicated to parents.
The father also seeks an order that an independent specialist be appointed to determine the presence of or extent of C’s breathing difficulties. Those orders are sought by him due to his concerns with respect to C's hospitalisation following breathing difficulties in January 2016. Throughout the trial, the father raised concerns that C has asthma. The positon of the mother is that C had breathing difficulties, the mother attended on a medical practitioner with him and later called an ambulance as a result of his continuing breathing difficulties. C was treated at T Hospital and was ultimately discharged. There has been no recurrence of his symptoms since that time and there is no basis for the husband’s assertion that he requires additional follow-up treatment.
The husband sought to rely upon the notes from T Hospital which were annexed to his trial affidavit (Annexure 4). Those notes disclose the history as described by the mother and in particular the letter from the hospital to the child’s general medical practitioner dated 1 January 2016 contains a diagnosis that “No disease found/illness NOS/other symptoms/unwell generally”. The letter concluded by noting that C had “Prolonged inconsolable episode – nil organic cause found. Please review if ongoing problem, with consideration of social work and/or developmental gen paed referral.”
None of the evidence before this Court supports the order sought by the father for a further independent medical assessment of C. Already, the children have been subject to professional intervention by virtue of their engagement with the Family Consultant. Having regard to the mother’s evidence and the hospital records I am satisfied that there is no basis at this time for any further medical assessment of C.
At page 2 of the Minute of Proposed Orders, the father also seeks an order in the following terms:-
4.Either parent in whose care the children are in at that time be permitted without restriction to follow the advice of a medical professional, pending:
(a)Both parties communicate to the other by both email and SMS the assessment provided, medical certificate, and keep the other informed as to how the child/children are. The other parent to be ordered to respond to acknowledge receipt of the correspondence via SMS.
Seemingly that order is sought by the father having regard to his conduct in over-holding the children on two occasions when he alleges C was suffering from ill health. On each occasion, the father elected to attend upon a medical practitioner with the children rather than return them to the mother’s care. The evidence of the Family Consultant, as referred to earlier in this judgment, is that on occasions when the children are unwell, it is preferable that they be returned to the care of their primary carer so as to minimise any distress. In my view, having regard to the history, particularly given the father’s previous unilateral actions in over-holding the children in such circumstances, there is no basis for an order as sought by him.
At page 6, sub-paragraph (n) of the Minute of Proposed Orders, the father again seeks orders as to the care arrangements of the children in the event that they are unwell. The order sought is as follows:-
n)In the event that any one of the children are unwell in whose care they are in, either parent be allowed to follow medical advice and keep the other parent informed throughout.
(i)A medical certificate is to be supplied with details of illness and recommendation for treatment via email and details on what the parent in whose care they are in, intends to do.
(ii)Full details of treatment need to be emailed to the other parent at least 2 hours prior to changeover, so the recipient parent may continue treatment as necessary.
(iii)Once a GP is satisfied the children have recovered well enough, to SMS and nominate the location they believe will not cause undue further stress to the children. Again only 1 party from either family to attend, preferably the mother and father.
For the reasons set out earlier herein, I am satisfied that there is no basis for an order in those terms.
At page 8 of the Minute of Proposed Orders the father also seeks an order that:
18) Consideration be given to the need for the Family Violence Intervention Order conditions the respondent has been granted in a lower court.
That application is ill-conceived and I do not propose to make any orders with respect to the State orders.
Paragraph 19 of the orders sought by the father seeks an injunction to prevent the mother from making further allegations as to his mental health. Again, I do not propose to make any orders to that effect. The father has a long history of mental illness as has been discussed earlier in this judgment. Further, I am satisfied that it is appropriate that the father continue to engage with his treating psychiatrist and psychologist and that the mother be kept informed of his continued engagement with those experts. I will also order that the father authorise his treating psychiatrist to provide confirmation to the mother that the father remains compliant with any recommendations made by that expert. Such orders are appropriate to ensure that the children are protected from harm. Whilst the evidence before the Court is clear that the father’s health is stable and that his parenting capacity is not impacted by his psychiatric condition, were there to be any change in his health such that his parenting capacity was compromised, it is essential that the mother be notified of the same. To that end, I am satisfied that it is appropriate that there be orders that she be kept informed of his attendance upon his specialists and that he is compliant with their directions.
That such order is appropriate is to some limited extent conceded by the father at paragraph 20 of the orders sought by him wherein he seeks an order that if either parent experiences “any health condition that impacts on their ability to care for” the children they notify the other parent immediately. There is no evidence before me of any medical condition which has impacted upon the mother’s ability to care for the children and accordingly I make no order requiring her to provide such notice.
Paragraphs 21 and 22 of the father’s orders sought are submissions relating to the allegations of family violence against the father. I have dealt with those allegations earlier in this judgment.
The orders I make will ensure that the children have the opportunity of spending time with and having a meaningful relationship with the father. They will also ensure that the children enjoy the stability and security provided by living with the mother and enabling her to make decisions with respect to the children’s long-term care, welfare and development. The orders will safeguard the children from the hostility and acrimony between their parents which has been a feature of the children’s experience of the parental relationship since separation.

The Orders

The orders that I propose to make are as follows:-
(1)That all previous parenting orders in relation to the children of the marriage, namely B born … 2009 and C born … 2014 (“the children”) be discharged.
(2)That subject to paragraph 3 hereof the mother have sole parental responsibility for making decisions regarding the long term care, welfare and development of the children.
(3)That in exercising sole parental responsibility pursuant to order 3 hereof, the mother shall:-
(a)Inform the father in writing of any decision intended to be made by her in the exercise of that responsibility;
(b)Seek the father’s response in writing in relation to the proposed decision; and
(c)Allow no less than 14 days from the provision to the father of the notice in sub-paragraph (a) hereof before making a decision;
(d)Consider by reference to the best interests of the children any response received from the father prior to making any decision (except in the case of an emergency); and
(e)Notify the father in writing of her decision.
(4)That the children live with the mother.
(5)That the father spend time and communicate with the children as follows:-
(a)Upon confirmation and production of a certificate of completion of the Parenting Orders Program by the father, each alternate week thereafter from after school/crèche on Monday (or 4.00 pm if a non-school day) to the commencement of school/crèche on Tuesday (or 9.00 am if a non-school day) with the father not to deliver the children at school/crèche before 8.00 am on the Tuesday;
(b)Until the commencement of Term 2, 2017, each alternate weekend from the conclusion of school/crèche on Friday (or 4.00 pm if a non-school day) to 4.00 pm on Saturday, commencing …;
(c)Commencing on the first weekend of Term 2, 2017 and each alternate weekend thereafter from the conclusion of school/crèche on Friday (or 4.00 pm if a non-school day) to 4.00 pm on Sunday;
(d)Commencing on the first weekend of Term 1, 2018 and each alternate weekend thereafter from the conclusion of school/crèche on Friday (or 4.00 pm if a non-school day) to the commencement of school/crèche on Monday (or Tuesday if Monday is a non-school day) with the father not to deliver the children to school/crèche before 8.00 am on the Monday (or Tuesday if Monday is a non-school day);
(e)Commencing in 2018 during the school term holidays for a period of four nights as agreed by the mother and the father in writing and in the event that agreement is not reached 14 days prior to any school term holiday then from 10.00 am on the first Saturday after school finishes for the term to 4.00 pm on the following Wednesday;
(f)In the 2018/2019 Christmas holiday period for three block periods of five nights as agreed by the mother and the father in writing and in the event that agreement is not reached 28 days prior to the commencement of the Christmas holiday period then as follows:-
(i)From 10.00 am on 28 December 2018 to 4.00 pm on 1 January 2019;
(ii)From 10.00 am on 11 January 2019 to 4.00 pm on 15 January 2019;
(iii)From 10.00 am on 19 January 2019 to 4.00 pm on 23 January 2019;
(g)Commencing in Term 1, 2019 and each year thereafter for half of all school term holidays and half of the Christmas holiday period as agreed by the mother and the father in writing and in the event that agreement is not reached 14 days prior to any school term holidays or 28 days prior to the Christmas holiday period then as follows:-
(i)In even-numbered years for the first half of the school holiday period ;
(ii)In odd-numbered years:
A.For the second half of the school term holiday period to conclude at 4.00 pm on the Saturday prior to the commencement of the new school term;
B.For the second half of the Christmas holiday period to conclude at 4.00 pm two days prior to the commencement of the new school year;
(h)In even-numbered years from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day;
(i)In odd-numbered years from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day;
(j)From the conclusion of school/crèche on the Friday preceding Father’s Day (or 4.00 pm if a non-school day) to the commencement of school/crèche on the Monday following Father’s Day (or 9.00 am if a non-school day);
(k)In the event that either of the children’s birthdays or the father’s birthday falls on a school day when the father is not otherwise spending time with the children from the conclusion of school/crèche to 6.00 p.m.;
(l)In the event that either of the children’s birthdays or the father’s birthday falls on a non-school day when the father is not otherwise spending time with the children for a period of four hours as agreed by the mother and the father in writing and in the event that agreement is not reached then from 10.00 am to 2.00 pm;
(m)By telephone each Wednesday between 6.00 pm and 6.30 pm;
(n)At all other times as agreed by the mother and father in writing.
(6)That the father’s time with the children pursuant to paragraph 5 hereof be suspended as follows:-
(a)From the conclusion of school/crèche on the Friday preceding Mother’s Day (or 4.00 pm if a non-school day) to the commencement of school/crèche on the Monday following Mother’s Day (or 9.00 am if a non-school day);
(b)In even-numbered years from 4.00 pm on Christmas Day to 4.00 pm on Boxing Day;
(c)In odd-numbered years from 4.00 pm on Christmas Eve to 4.00 pm on Christmas Day;
(d)In the event that either of the children’s birthdays or the mother’s birthday falls on a school day when the children are not otherwise living with the mother from the conclusion of school and/or crèche to 6.00 p.m.;
(e)In the event that either of the children’s birthdays or the mother’s birthday falls on a non-school day when the children are not otherwise living with the mother for a period of four hours as agreed by the mother and the father in writing and in the event that agreement is not reached then from 10.00 am to 2.00 pm;
(7)That commencing Term 1, 2018 paragraphs 5(a) and (d) hereof shall be suspended for all school term holidays and the Christmas holiday period and recommence after any school term or Christmas holiday period in the same sequence as if the holiday period had not taken place.
(8)That changeovers occur at school/crèche and in the event that it is not a school day:-
(a)For the purposes of paragraph 5(b) hereof at V Group Contact Service, Suburb E and if V Group is not available and unless otherwise agreed in writing by the mother and the father at McDonald’s, Suburb I (“McDonald’s”); and
(b)Unless otherwise agreed in writing by the mother and the father, at McDonald’s.
(9)That the father continue to attend upon his treating psychiatrist and psychologist or other mental health professionals as directed by them and authorise the said mental health professionals to disclose to the mother:-
(a)Whether the father is attending upon the mental health professionals as directed; and
(b)Whether the father is complying with the treatment as recommended.
(10)That the mother do all acts and things as may be required to enrol C (if considered age appropriate) and B to attend “Supporting Children After Separation” (phone …) at a location within a reasonable proximity of the mother’s home address and the mother and father be at liberty to provide to “Supporting Children After Separation” an unmarked copy of the Family Report prepared by Ms K dated 5 August 2016.
(11)That the mother, the father, their servants and/or agents be and are hereby restrained by injunction from:-
(a)Discussing these proceedings, and the family violence court proceedings, parenting issues, the contents of any documents prepared for or filed in any court proceedings in the presence or hearing of either or both of the children;
(b)Criticising the other parent, their family, friends and/or partners in the presence or hearing of either or both of the children;
(c)Acting in a provocative or aggressive manner towards the other parent in the presence or hearing of the children.
(12)That the mother authorise and request any school, crèche or child care centre that either or both of the children attend to forward to the father, at his expense, if any, copies of the children’s school reports, reports of an educational nature or any other notice or information parents would ordinarily receive.
(13)That the mother and the father keep each other advised of their residential address, email address and phone numbers (mobile and landline, if any) and advise the other parent of any change within seven days of such change taking place.
(14)That the mother and the father keep each other advised as to any medical treatment received by either or both of the children in their care and advise the other parent of the name, professional address and phone number of the treating medical practitioner that has provided the treatment and authorise the treating medical practitioner to disclose to the other parent any information about the treatment provided and to the extent necessary this order is deemed to be the necessary parental authorisation.
(15)That the appointment of the Independent Children’s Lawyer be discharged.
(16)That all extant applications be dismissed.
IT IS DIRECTED
That all documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same after the expiration of thirty (30) days from the date of these orders, or otherwise upon the conclusion of any appeal.
AND THE COURT NOTES
That pursuant to s 65DA(2) and s 62B, the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and the details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached and these particulars are included in these orders.

I certify that the preceding two hundred and seventy-two (272) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johns delivered on 31 January 2017.

Associate:

Date: 31 January 2017

[2017] FamCA 34

31 January 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Procedural Fairness