Jordan and Jordan

FAMILY COURT OF AUSTRALIA

JORDAN & JORDAN

[2010] FamCA 323

FAMILY LAW – CHILDREN - Parental responsibility - With whom a child lives - Mother not supporting the children’s relationship with the father - High conflict between mother and father - Evidence of the Family Consultant - Orders least likely to lead to further proceedings - Orders made for nine months for the mother to have sole parental responsibility, children to live with the mother and spend time with the father each alternate weekend and half of school holidays, with a review of the appropriateness of the children continuing to live predominantly with the mother thereafter - Mother to participate in counselling and educational programs

Family Law Act 1975 (Cth)

Goode & Goode (2006) FLC 93-286
Re David (1997) 22 Fam LR 489

APPLICANT:

Mr Jordan

RESPONDENT:

Ms Jordan

INDEPENDENT CHILDREN’S LAWYER:

Ms Callander, Legal Aid NSW

FILE NUMBER:

NCC

1497

2007

DATE DELIVERED:

4 May 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

14, 15, 16 & 17 December 2009; 29 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Not Applicable

SOLICITOR FOR THE RESPONDENT:

Not Applicable

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Boyd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Callander, Legal Aid NSW

Orders

PENDING FURTHER ORDER:

All former parenting orders in respect of the children K, born on… January 2003, and R, born on … March 2005 (“the children”) are discharged.
The mother shall forthwith do all such things and sign all documents as may be necessary to enrol for, participate in, and satisfactorily complete the following counselling and/or educational programs:
2.1      “Transitions”, conducted by Unifam Counselling and Mediation.
2.2      “Keeping in Contact”, conducted by Unifam Counselling and Mediation.
2.3      Any further program recommended by the Family Consultant.
For the purposes of implementing Order 2 hereof, the mother shall promptly pay any costs associated with enrolment and participation in those programs.
Pursuant to s 65L of the Family Law Act, the Family Consultant shall supervise the mother’s compliance with Orders 2 and 3 hereof.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:
7.1During New South Wales public school terms, each alternate weekend from 5.00 pm Friday until 5.00 pm Sunday, commencing on the first weekend of each school term in every even numbered year, and on the second weekend of each school term in every odd numbered year.
7.2During New South Wales gazetted school holidays, except the Christmas school holidays, for the first half of such holidays in every even numbered year, and for the second half of such holidays in every odd numbered year.
7.3During the New South Wales gazetted Christmas school holidays, on an alternating week-about basis, commencing in the first week of the holidays in the years when the holidays commence in an even numbered year, and commencing in the second week of the holidays in the years when the holidays commence in an odd numbered year.
Order 7 is suspended during the following periods:
8.1From 3.00 pm on Christmas Eve until 3.00 pm on Boxing Day each year, during which period the children will spend time with the father from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day, and with the mother from 3.00 pm on Christmas Day until 3.00 pm on Boxing Day in even numbered years, with the same arrangements in reverse in odd numbered years.
8.2Between 10.00 am and 5.00 pm on each Mother’s Day and Father’s Day, during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.
Each of the parties shall take all reasonable steps to ensure that the children communicate with:
9.1The father, by telephone each Tuesday and Thursday when the children are living with the mother, between 6.00pm and 6.30pm, and for that purpose the father shall telephone the children on the telephone number provided to him by the mother pursuant to these orders, and the mother shall ensure that the children are able to receive the father’s calls at that number at those times.
9.2The mother, by telephone each Tuesday and Thursday when the children are spending time with the father in school holidays, between 6.00pm and 6.30pm, and for that purpose the mother shall telephone the children on the telephone number provided to her by the father pursuant to these orders, and the father shall ensure that the children are able to receive the mother’s calls at that number at those times.
9.3The parent with whom they are not then staying, by telephone on the children’s birthdays, between 6.00pm and 6.30pm, and for that purpose the parent with whom the children are not staying shall telephone the children on the telephone number provided by the other parent pursuant to these orders, and the parent with whom the children are staying shall ensure that the children are able to receive the other parent’s calls at that number at those times.
For the purposes of implementation of Order 7, the New South Wales public school holidays are deemed to commence on the first day following the last day of school term, the holidays are deemed to end on the last day preceding the day upon which the children are due to return to school, and the mid point is the day between those first and last days.
For the purposes of implementing the time spent by the children with the father, the mother or her nominee shall cause the delivery and the father or his nominee shall cause the collection of the children at the commencement of the time to be spent with the father at the McDonalds Restaurant at G, NSW, and the father or his nominee shall cause the delivery and the mother or her nominee shall cause the collection of the children at the conclusion of the time spent with the father at the McDonalds Restaurant at S, NSW.
The mother shall forthwith procure and maintain a communication book to facilitate communication between the parties in respect of issues related to the children and each party shall relay important information concerning the children to the other by way of written notification in the communication book, which will travel with the children at changeovers.
Each party is restrained from denigrating the other in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other.
Each party shall notify the other of any medical emergency, illness or injury suffered by the children, or either of them, whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children, or either of them.
Each party shall keep the other informed of all educational and sporting events in which the children are to participate.
Each party shall ensure the children’s attendance at all educational and sporting events in which the children are enrolled or in which the children are due to participate.
Each party shall forthwith inform the other, and keep each other informed, in writing of their respective current residential address, landline telephone number, mobile telephone number, and email address.
Each party is restrained from causing or permitting the infliction of corporal punishment upon the child.
Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Any and all outstanding applications for parenting orders are dismissed.
This matter is re-listed before Justice Austin for consideration of further substantive and procedural orders at 9.30 am on Thursday 27 January 2011.
Liberty to restore the matter to the list on 7 days notice.
Costs reserved for 28 days.

Notation

A.The time spent by the children with the father pursuant to Order 7.1 shall first occur commencing on Friday 7 May 2010 at 5.00 pm.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 1497 of 2007

MR JORDAN

Applicant

And

MS JORDAN

Respondent

And

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Introduction

These proceedings concern the parenting orders that should be made in respect of the two children born to the relationship of the applicant father and the respondent mother.
Those children concerned are K, born in January 2003, and R, born in March 2005.
The proceedings were commenced by the father filing an Application on 10 May 2007, which was followed by the mother filing a Response on 15 June 2007. Since then, the litigation has ebbed and flowed between the parties. Each has altered the parenting regime they propose for the children several times, including during the final hearing. As the hearing progressed, the dispute between the parties widened – at least until the final submissions, at which point the mother adopted a position that broadly reflected the position for which the father had advocated for well over a year.
Both parties were self-represented during the final hearing, which caused some practical difficulties with respect to the adduction of evidence in the proceedings. An Independent Children’s Lawyer was appointed to represent the interests of the children on 22 December 2008 and her involvement, assisted by counsel, helped to elucidate and analyse the issues.
Ultimately, the evidence given by the mother squarely raised as a serious issue the prospect of her not promoting, and even actively undermining, the relationship between the children and the father if the children were to remain predominantly within her care. That changed the complexion of the case.
The hearing of the proceedings became protracted by reason of the changing positions of the parties and the need for the Family Consultant to be appraised of those changes before offering her final recommendations about the parenting orders that would address the best interests of the children.

Adjournment Application by the Mother

The mother sought an adjournment of the final hearing as to parenting orders because of incomplete parallel proceedings.
On 11 June 2009 the mother filed a Contravention Application against the father alleging that the father had contravened interim parenting orders made by the Court on 20 March 2009.
The orders made on 20 March 2009 permitted the children to spend overnight time with the father each alternate weekend. Order 4 required that the overnight time, on the first four occasions, be spent by the children with the father in the home of the paternal grandparents.
Those orders were not actually implemented until 8 May 2009, when further interim orders were made, at which time that fresh commencement date was imposed.
The mother alleges that on 22 May 2009 the father contravened the orders by having the children stay overnight on that date in his own home, rather than in the home of the paternal grandparents. The father denied the allegation.
The mother’s Contravention Application was heard before Judicial Registrar Johnston on 7 December 2009, but was adjourned part-heard.
The mother contended that the final hearing as to parenting orders should not be commenced until the contravention proceedings were concluded. She therefore sought an adjournment of the final hearing on 14 December 2009. Her application was opposed by both the father and Independent Children’s Lawyer.
The mother’s application for adjournment was dismissed, with written reasons to follow. These are those reasons.
The resolution of the parenting proceedings would perhaps, but not necessarily, involve the need to make a finding about whether the father did indeed contravene the interim orders on 22 May 2009. Even if such a finding was required, there was no jeopardy to which the mother was exposed. The father was the only one confronting jeopardy.
If the father was prepared to forego the privilege against self-incrimination that he enjoys in the contravention proceedings, by giving evidence about the alleged contravention in the parenting proceedings, then the risk of self-incrimination was his alone. The father asserted his willingness to waive his privilege and to give such evidence in rebuttal of the alleged contravention.
The mother faced no risk. She made an allegation, which she wants adjudicated. She is desirous of the Court finding that the father contravened the interim parenting orders. It was really immaterial to the mother how, when, or before which judicial officer the contravention was proven – as long as it was proven.
The mother’s keenness to establish the contravention seemingly arose from her expectation that a proven contravention would virtually determine the parenting proceedings against the father and lead to the making of parenting orders consistent with her proposals. She could not countenance the idea that a proven contravention against the father was but one factor to be taken into account in the determination of proper parenting orders for the children.
The alternatives open to the Court were to adjourn the parenting proceedings until the contravention proceedings were concluded, or to push ahead with the hearing of the parenting proceedings with the contravention proceedings unresolved.
If the parenting proceedings were adjourned to await the outcome of the contravention proceedings then there were several possible results. The alleged contravention could either be found proven or unproven, and if proven, perhaps rendered nugatory by the existence of a reasonable excuse. But none of those variant outcomes dictates the result of the parenting proceedings.
If the alleged contravention was proven, without reasonable excuse, that would reflect poorly upon the father, but that result of itself would hardly be a basis for concluding that the time to be spent by the children with the father should be precluded or seriously limited for many years into the future.
If the alleged contravention was unproven, or proven but nullified by reasonable excuse, the mother would be dissatisfied with that finding. She would still wish to agitate the facts surrounding the alleged contravention in the parenting proceedings as a proper basis for limiting the children’s time with the father.
In either case, the outcome of the contravention proceedings could only influence, not determine, the parenting proceedings. The Judicial Registrar is in no better a position than this Court to make findings of fact about the circumstances of 22 May 2009.
If the hearing of the parenting proceedings continued then there would be no unnecessary delay in the determination of proper parenting orders for the children. In that event, the mother wanted to adduce evidence of the alleged contravention in the parenting proceedings, and it was proper that she be permitted to do so.
If the Court was impelled to make a finding about whether the alleged contravention occurred, it could render the pending contravention proceedings otiose. The factual findings in the parenting proceedings would probably create an issue estoppel in the contravention proceedings – at least in so far as the initial alleged contravention is concerned, and could save the parties the time and expense of litigating the same factual dispute in parallel proceedings.
By reason of that potential saving, the fact that the mother would not be deprived of the right to press her allegation of contravention against the father in the parenting proceedings, and because any jeopardy of investigating those facts accrued to the father and not the mother, it was determined that the final hearing of the parenting proceedings should continue. The mother’s application for adjournment of the hearing was dismissed. The parties informed the Court that, at the time the hearing in this matter was completed on 29 March 2010, the contravention proceedings were still part-heard.

Proposals and Primary Evidence of the Father

During the litigation the father consistently sought orders to the effect that the children live with the mother and spend time with him. His ideas about how much time the children should spend with him changed a little.
In his original Application filed on 10 May 2007, the father proposed that the children spend time with him on three out of four weekends, each Wednesday evening for several hours, and for five weeks of holidays each year.
In his Amended Application filed on 24 October 2008, the father moderated his proposal so that the children spend time with him each alternate weekend and for half of all school holidays.
The Father filed another Amended Application on 2 November 2009, but in it he sought virtually the same orders as in the former Amended Application filed on 24 October 2008. At the outset of the hearing the father indicated that he adhered to those parenting orders.
In support of his proposals the father read the following affidavits:
a)Affidavit of the father filed on 30 November 2009.
b)Affidavit of the father filed on 1 July 2009 (paragraphs 65-85).
c)Affidavit of the paternal grandmother filed on 30 November 2009.
d)Affidavit of the paternal grandmother filed on 1 July 2009.
e)Affidavit of the paternal grandfather filed on 30 November 2009.
f)Affidavit of the paternal grandfather filed on 1 July 2009.
During the hearing the father changed his position to support the changed proposals of the Independent Children’s Lawyer that the children live with him and that he have sole parental responsibility for them, although his preference remained for the orders set out within his Amended Application.

Proposals and Primary Evidence of the Mother

The mother has consistently sought orders that the children live with her and that she be allocated sole parental responsibility for them.
However, her proposals about the time to be spent by the children with the father have fluctuated wildly during the course of the litigation.
On 15 June 2007 the mother filed her Response, in which she sought that there be no order for the children to spend time or communicate with the father. Although susceptible to ambiguity, she was proposing that the children have no interaction of any sort with the father. She was not merely seeking that there be no express order in place, leaving scope for the parents to decide privately between themselves how and when the children would interact with the father.
The mother later sought, in her Application in a Case filed on 11 June 2009, a positive order that the father spend no time with the children.
On 20 July 2009 the mother was interviewed by the Family Consultant. The mother informed the Family Consultant that her proposal was that the children spend no time with the father.[1]
[1] Family Report, par 25
Within months the mother’s position completely changed. On 17 November 2009 the mother filed an Amended Response in which she sought orders that the children spend time with the father each alternate weekend and for one week during each school holiday period. The amount of time that she proposed was less than that proposed by the father, but there was then at least similarity in the frequency of the children’s proposed interaction with the father.

During the final hearing, on 14 December 2009, the mother informed the Court that she resiled from the parenting proposals set out in her Amended Response filed on 17 November 2009. Instead, she was seeking that the interim orders made on 8 May 2009 be converted to final orders.
The interim orders made by the Court on 8 May 2009 varied, in some respects, the interim orders which had been made by the Court some months before on 20 March 2009. The effect of those orders was that the children should spend 24 hours with the father each alternate weekend. It was still therefore her proposal that the children spend some restricted time with the father on a frequent basis.
During the course of her cross examination the mother recanted from that position and reverted to her initial position in the proceedings. She asserted that it was her genuine desire that the children spend no time with the father and that they do not communicate with him. She wished for there to be no interaction between them of any sort. She was resolute that she wanted the father out of her life, as she had told the Family Consultant.[2]
[2] Family Report, par 64
In support of her proposals the mother read the following affidavits:
a) Affidavit of the mother filed on 18 August 2009.
b) Affidavit of Ms N filed on 18 August 2009.
c)Affidavit of the maternal grandfather filed on 18 August 2009.
d)Affidavit of the maternal grandmother filed on 18 August 2009.
The mother did not rely upon her most recent affidavit filed on 25 November 2009, apparently because it contained evidence which contradicted her parenting proposal that the father play no part in the lives of the children.
It became clear from her oral evidence that the mother’s position was predicated upon several factors.
Firstly, the mother alleged that the aggressive manner in which the father had behaved towards her following their separation demonstrated such an impaired parenting capacity that he was incapable of being entrusted with the care of the children in the future.[3]
[3] Transcript p.183, 184, 194, 195, 208
Secondly, it was impliedly asserted that because the father had on 22 May 2009 contravened the interim orders of the Court, and then lied by denying the contravention, no faith could be reposed in him, and disqualified him from being entrusted with the care of the children in the future.[4] That was the reason why the mother filed her Application in a Case, seeking an order that the children spend no time with the father, simultaneously with her Contravention Application on 11 June 2009.
[4] Transcript p.157, 177, 178, 185, 189, 195, 230
Thirdly, the mother alleged that during the settlement negotiations on 20 November 2009 the father had offered to pay her legal costs and child support if she discontinued the outstanding contravention proceedings. The mother regarded that offer as evidence of the father’s “emotional blackmail” of her,[5] rather than merely a component of their negotiation of the overall settlement of their litigation. The inferential argument was that such circumstances demonstrated that the father was unfit to care for the children.
[5] Transcript p.157, 169
The hearing became part-heard in December 2009 and adjourned to 29 March 2010 for resumption. During her final submissions on that date, the mother surprisingly reverted to her earlier proposal that the children do spend time and communicate with the father. In fact, she contended that the children should spend more time with the father than she had ever previously contended. She proposed a regime where the children would spend each alternate weekend and half of all school holidays with the father. They were literally her last words in the case. The mother seemed to entirely miss both the irony and significance of that being precisely the parenting regime for which the father had been contending since the time of his Amended Application, filed more than a year before on 24 October 2008.
What made the mother’s final proposal even more puzzling is that she spent the remainder of her submissions vilifying the father, members of the paternal family, the Independent Children’s Lawyer, and even the Family Consultant. She continued to explain why the children should not be exposed to the father, despite proposing parenting orders to the contrary.
Unless the mother had experienced a radical and extremely sudden change of heart, her final parenting proposal was irreconcilable with both her evidence and her other submissions. Either her final parenting proposal was a ruse, or her evidence was untruthful in material respects.

Proposals of the Independent Children’s Lawyer

The Independent Children’s Lawyer did not begin the final hearing with a settled position. That was almost certainly because of the content of the mediation in which the parties had participated on 20 November 2009, and the mother’s most recent affidavit filed on 25 November 2009, which together indicated that the residual dispute between the parties was very narrow. There was apparently little left to argue about.
During cross examination of the father, the Independent Children’s Lawyer tendered a Minute of Orders setting out the parenting orders proposed by her.[6] The orders were largely consistent with the orders proposed by the father in his Amended Application.
[6] Exhibit ICL3
The relatively sanguine position of the Independent Children’s Lawyer changed following the mother’s revelations during cross examination about her wish for the father to play no part in the children’s lives.
During the cross examination of the mother, the Independent Children’s Lawyer tendered an amended Minute of Orders setting out revised parenting orders proposed by her.[7]
[7] Exhibit ICL7
The revised orders proposed a complete restructure of the children’s residential arrangements and the parental responsibility for them. The Independent Children’s Lawyer proposed that the children live with the father, and that he have sole parental responsibility for them. The orders also proposed that the children spend time with the mother pursuant to a very restricted and graduated regime.
The genesis for that revised proposal was the oral evidence of the mother, which left no room for doubt that she desired for the children to have no interaction at all with the father. Her evidence fairly warranted the inference being drawn that she would likely orchestrate that outcome if she was left with responsibility for, and residence of, the children.
The father indicated his willingness to support the fresh orders proposed by the Independent Children’s Lawyer, and fresh evidence was called to that effect.
Following the Independent Children’s Lawyer’s revision of the orders proposed by her, the mother sought the discharge of the Independent Children’s Lawyer. The apparent basis of that application was an asserted personal bias of the Independent Children’s Lawyer against the mother.[8] That application was dismissed as groundless.[9] Nevertheless, the mother continued to make unfounded personal criticisms of the Independent Children’s Lawyer, whose diligent professionalism and stoicism was remarkable in the circumstances.
[8] Transcript p.207-208
[9] Transcript p.208-213
Ultimately, following the release of the updated Family Report and the oral evidence of the Family Consultant, the Independent Children’s Lawyer tendered another amended Minute of Order.[10] The Independent Children’s Lawyer still proposed that the children live with the father and that he have sole parental responsibility for them, but in reliance upon the Family Consultant’s evidence, she proposed that the children spend time with the mother each alternate weekend and during school holidays.
[10] Exhibit ICL10

Relevant Background

Because of the limited affidavit material read by the parties there was very little evidence of the parties’ history before the Court.
The applicant father was born in 1972.[11] He is now 38 years of age.
[11] Father’s affidavit filed 30/11/09 par 1
The respondent mother was born in 1972.[12] She is now 37 years of age.
[12] Father’s affidavit filed 30/11/09, par 2
The parties began cohabitation in about 1995, were married in 2000, and finally separated in about September 2005.[13] The parties were divorced with effect from 17 November 2007.[14]
[13] Father’s affidavit filed 30/11/09, par 3
[14] Mother’s affidavit, par 3
Following separation in late 2005, the children lived with the mother. They spent time with the father each alternate weekend and also on intervening days.[15] That arrangement was reached consensually between the parties, although the parties sometimes did not adhere to the arrangement.[16]
[15] Family Report, par 8
[16] Family Report, par 8
That arrangement lasted for some 12 months until about September 2006. At that point the mother precluded the children from spending time with the father at any time other than on alternate weekends.[17]
[17] Family Report, par 10
That arrangement prevailed for some 7 months until April 2007, when the mother stopped the children from spending any more time with the father. The parties give different reasons for why that occurred.[18] The father says that it was because the mother was retaliating against him because of her knowledge that he was about to commence these proceedings against her, and the mother says that it was because of the father’s harassment of her.
[18] Family Report, pars 14, 61
The father commenced the proceedings by filing his Application for parenting orders on 10 May 2007.
The parties reached agreement on property adjustment orders on 23 July 2007, but they remained in dispute about parenting orders.
On 20 August 2007, interim parenting orders were made by the Court with the parties’ consent, including the following:
1.The children [K] born […] January, 2003 and [R] born […] March, 2005 live with the mother.
2.The children spend time with the father each alternate weekend from 10:00am Saturday to 12 noon Sunday or such other time being as near as practical to those times as determined by the Director or Manager of the […] Children’s Contact Service or her nominee.
Although there is some dispute between the parties about compliance with those orders, by and large those orders regulated the children’s time with the father until around June 2008. Thereafter, the mother stopped the children spending time with the father. The mother took that decision after the father threatened to assault her partner, which the father admits he did because it was reported to him that the mother’s partner was smacking the children.[19]
[19] Father’s affidavit filed 1/7/09 pars 37-49; Mother’s affidavit pars 37-49
On 22 December 2008, the Registrar made an order appointing an Independent Children’s Lawyer, because of the intractable conflict between the parties and the fact that neither party was then legally represented.
The matter came before Justice Flohm for the first day of less adversarial trial on 20 March 2009. On that day, further interim parenting orders were made, including the following:
1.That all previous orders in relation to [K] born […] January 2003 and [R] born […] March 2005 (“the children”) spending time with [Mr Jordan] (“the father”) are vacated.
2.That the father is to spend time with the children each alternate weekend from 4:30pm Friday to 4:30pm Saturday commencing on Friday 27 March 2009.
3.That for the purpose of the orders referred to above [Ms Jordan] (“the mother”) or her nominee is to deliver the children to the father at the […] Contact Centre at the commencement of the father’s time with the children and the father or his nominee is to return the children to the mother or her nominee at the same location at the conclusion of the father’s time with the children.
4.That for the first four occasions on which the father spends time with the children pursuant to these orders the father is to ensure that the children spend overnight at the home of the paternal grandparents at [S] and thereafter they are to spend overnight at the father’s home at [S].
On 8 May 2009, further interim parenting orders were made by Justice Flohm, including the following:
1.That Order 2 made by the Court in these proceedings on 20 March 2009 be varied to delete “27 March 2009” and insert in lieu thereof “8 May 2009”.
2.That Order 3 made by the Court in these proceedings on 20 March 2009 be deleted and in lieu thereof:
“3. Each party must:
(a) comply with all reasonable rules of the Contact Centre; and
(b) comply with all reasonable requests or directions of the staff of the Contact Centre;
(c)if after the assessment intake procedure the Contact Centre is unable or unwilling to provide supervision of changeovers as set out in Order 2 made by this Court in the proceedings on 20 March 2009 then each party and the Independent Children’s Lawyer has leave to restore the matter to the list on seven (7) days written notice to the other party and to the Court;
(d)if after assessment the parties are accepted by the Contact Centre as suitable for supervised changeovers the Father is to spend time with the children, [K] born […] January 2003 and [R] born […] March 2005 (“the children”) in accordance with Order 2 of the Order made by the Court in these proceedings on 20 March 2009 as varied by this Order made 8 May 2009 and such time is to implemented by the Father collecting the children from the Contact Centre at the start of each period of time that the children are to be with the Father and returning to the children to the same place at the end of each period of time which the children are to spend with the Father;
(e) the Mother must cause herself or some other responsible adult known to the children and nominate beforehand in writing to the Contact Centre, the Father and the Independent Children’s Lawyer, to deliver the children to and collect the children from the Contact Centre at the times specified by the Contact Centre and on each occasion promptly leave the building and the vicinity;
(f)the Father must not attend the Contact Centre or its vicinity before the time the Father’s time is to start and must promptly leave the Contact Centre and the vicinity at the time the Father’s time with the children is to end;
(g)if the Contact Centre, during the currency of this Order declines or is unable to continue to provide its services, or the Director of the Contact Centre recommends in writing to the parties a variation of this Order, then either party or the Independent Children’s Lawyer may on seven (7) days notice to the other party and the Court restore the matter to the list.
(h) if during the currency of this Order the parties and the Independent Children’s Lawyer agree in writing to vary this Order the parties have leave to list the proceedings in chambers urgently for consent orders to be made”.
3.That each of the parties attend a Parenting after Separation course in an effort to acquire skills and strategies to quarantine the children from the high level of conflict and the Independent Children’s Lawyer is to nominate the organisation and program to be attended by the parties.
The proceedings were removed from the docket of Justice Flohm and transferred to a different judicial docket for administrative reasons.
On 28 July 2009 the Family Report prepared by the Family Consultant was released to the parties and Independent Children’s Lawyer.
The proceedings came before the Court for further hearing on 26 October 2009. At that time the matter was fixed for further hearing on 14 December 2009, and it was consensually ordered[20] that the only remaining issues to be determined between the parties were:
a)The allocation of parental responsibility for the children.
b)Whether the time spent by the children with the father each alternate weekend should extend beyond 9.00 am on Sunday morning, and if so, the time on Sunday that such time should conclude.
c)Whether the time spent by the children with the father during the Christmas school holidays should exceed one week in duration, and if so, the manner in which that time is to be spent.
[20] Order 5
The parties and their respective solicitors attended mediation with the Family Consultant on 20 November 2009. The Independent Children’s Lawyer also attended. The meeting was not intended to be confidential, and each of the parties acknowledged in evidence that they understood that their negotiations were not privileged. The Family Consultant prepared a Memorandum following that meeting, which records that the only issues that remained in dispute between the parties were:
a)The time at which the children’s time with the father should conclude each alternate Sunday.
b)Whether any time would be spent by the children with the father on the children’s birthdays.
c)What arrangements would be made with respect to the children’s sporting and extra-curricular activities.
The proceedings came before the Court for continuation of the final hearing pursuant to Rule 16.09 of the Family Law Rules on Monday 14 December 2009, and continued until Thursday 17 December 2009, at which time further procedural and interim orders were made and the matter was adjourned part-heard until 29 March 2010.
The adjournment was necessary because of the structural change in the parenting orders proposed by the Independent Children’s Lawyer, and the support for that position offered by the father. The Family Consultant was the final witness and was due to give evidence in circumstances where she was completely unaware of the reasons for the change in position of the Independent Children’s Lawyer and the father, her not having heard the evidence of the mother.
It was initially considered that the Family Consultant could be advised, in summarised form, of the evidence given by the mother which caused the Independent Children’s Lawyer to revise her position. However, that option became untenable. The mother objected to the accuracy of the written summary of her evidence prepared by the Independent Children’s Lawyer. That objection could only be cured in one way – by having the Family Consultant read and listen to the evidence as it had actually been given. The hearing was adjourned in order for that to occur.
Procedural orders were made for a transcript of the evidence to be taken out and for the Family Consultant to both read the transcript and listen to the evidence. As the Independent Children’s Lawyer correctly submitted, the inflection of the mother’s evidence was potentially as important as the words she spoke. The Family Consultant was ordered to prepare an updated Family Report in light of that evidence.
Further interim parenting orders were made pending the resumption of the hearing on 29 March 2010, providing as follows:
5. All previous parenting orders relating to the children [K] born […] January 2003 and [R] born […] March 2005 (“the children”) are suspended.
6.The children shall live with the mother.
7.Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or otherwise agreed:
a.During the New South Wales school terms on each alternate weekend from 5:00pm Friday until 5:00pm Sunday commencing the second weekend of each school term.
b.During the New South Wales school holidays at the end of terms 1, 2 and 3 from 9:00am on the middle Saturday of the holidays until 5:00pm on the next Saturday of the holidays.
c.During the New South Wales Christmas school holidays:
i.From 2:00pm on Christmas Day until 9:00am on 31 December in Christmas holidays that commence in odd numbered years;
ii.From 2:00pm on Christmas Day until 5:00pm on 1 January in Christmas holidays that commence in even numbered years;
iii.From 2:00pm on 16 January until 5:00pm on 23 January each and every year.
d.For a period of 3.5 hours on [R’s] birthday as agreed or, failing agreement, from 4:00pm until 7:30pm on that day.
8.The operation of Order 7 is suspended on Mother’s Day from 9:00am until 5:00pm.

The hearing resumed on 29 March 2010 and was concluded on that day. Judgment was reserved.

Evidence of the Family Consultant

The Family Consultant, Ms C, prepared numerous documents for the benefit of the Court, which included her:
a)Children and Parents Issues Assessment Memorandum dated 18 December 2008.
b)Family Report dated 23 July 2009.
c)Child Responsive Program Memorandum dated 20 November 2009.
d)Updated Family Report dated 9 March 2010, which was prepared following her review of the evidence given at trial by the parties, pursuant to further procedural orders made on 17 December 2009.
The Family Consultant was called to give oral evidence when the hearing resumed on 29 March 2010. She adopted the contents of her earlier memoranda and reports, and elaborated her opinions in cross examination.
Having heard and read the transcript of the evidence taken during the hearing conducted in December 2009, the Family Consultant was unsurprised that the mother had maintained that she did not wish the children to have anything to do with any member of the paternal family. The lack of surprise on the part of the Family Consultant was not because the mother’s attitude was considered logical, but merely because it was consistent with the mother’s statements to the Family Consultant in the past.
The Family Consultant was questioned as to whether she regarded the mother’s views to be entrenched. She was unable to say. The Family Consultant recognised that the mother’s views had apparently vacillated several times between not wanting the children to see the paternal family at all and being content for the children to see the paternal family.
The Family Consultant was asked to comment upon the distinction between concepts described as “verbal consent” and “emotional consent” in reference to the consent offered by a residential parent for children to freely interact with a non-residential parent. In explanation, the Family Consultant described a situation where a residential parent may pay mere lip service to a child spending time with a non-residential parent by saying that such interaction can occur, but believing the opposite. The Family Consultant described how children are intuitive and can usually identify when a residential parent is only paying lip service to their interaction with the non-residential parent, giving “verbal consent” but withholding “emotional consent” to such interaction. The Family Consultant considered that a child in that predicament will suffer from loss of self-esteem because it will be apparent that the residential parent regards the non-residential parent as defective in some way. The child then realises that if one of his or her biological parents is defective, the child is genetically tainted by the same defect.
The Family Consultant recognised that in this case the mother really was withholding “emotional consent” for the children to freely interact with the father. That was apparent to her in July 2009 at the time of preparation of the Family Report,[21] and it was abundantly apparent from the evidence given by the mother during the hearing in December 2009.
[21] Family Report, par 109
The Family Consultant was questioned as to whether the mother’s participation in counselling could ameliorate the mother’s disaffection towards the father and persuade her to offer up her “emotional consent” to the children spending time with the father. The Family Consultant was unable to say so with any sense of confidence, but she said that counselling always offers opportunities. The Family Consultant was aware of, and endorsed, the counselling programs known as “Transitions” and “Keeping in Contact” conducted by Unifam Counselling and Mediation (“Unifam”).
The mother formerly told the Family Consultant that she did not think she would benefit from any counselling.[22] The mother flatly said the same thing from the bar table during the hearing on 29 March 2010, and implied as much when she was cross examining the Family Consultant during the day. Despite the mother’s hardened attitude against her participation in counselling, the Family Consultant thought that the mother would experience some benefit from counselling, but she was far less optimistic about a wholesale change.
[22] Family Report, par 60
The Family Consultant recognised that the attitude of the mother is dismissive of the emotional needs of the children.[23] She agreed with questions posed during cross examination by the Independent Children’s Lawyer that the mother thinks that she knows best for the children and that the mother regards her view as the only one that matters. The Family Consultant agreed with the proposition that if the mother remains staunchly resistant to the facilitation of a relationship between the children and the father, then the children would be at risk of emotional harm. That is a very important consideration.
[23] Family Report, par 65
When cross examined by the mother, the Family Consultant conceded that she had previously told the mother that if she was unprepared to compromise on her views that the children should spend no time with the father then she faced the prospect that the Court would “make orders of a kind that she didn’t like”. The Family Consultant explained the circumstances of her having made that comment to the mother by stating that she was not intending to exert pressure on the mother, but rather to furnish the mother with a realistic appraisal of the outcome of the proceedings. I accept the genuineness of the Family Consultant in that regard. It is obvious from her evidence that the Family Consultant had also contemplated the possibility of the children living with the father because of the mother’s refusal to countenance any relationship between the children and the father. The Independent Children’s Lawyer and the father were therefore not alone in contemplating such an outcome.
The mother continued to press the Family Consultant in cross examination, inviting comment from her upon whether it is possible for children to have a meaningful relationship with a father who threatens physical harm to them. The mother was surprised to hear the Family Consultant’s affirmative answer, conditioned as it was with recognition that the physical and emotional risks for the children always need to be weighed and assessed.
The Family Consultant was then asked to briefly summarise the past behaviours of the father which posed some level of risk to the children. She catalogued the father’s past abusive behaviour towards the mother, the father’s failure to accept responsibility for his past behaviour, his recidivism following expressions of remorse, and his past alcohol abuse and use of cannabis. For reasons which will be explained, I am not satisfied on the evidence that those past behaviours of the father pose any present risk of harm to either the children or the mother.
After weighing the risks, the Family Consultant ultimately adhered to her recommendation that the children continue to live with the mother, and that they spend time with the father on alternate weekends and for half of school holidays.[24] She regarded the risk of emotional harm to the children through being removed from the primary care of the mother to live with the father to be more potent than the risk of emotional harm that would be suffered by the children in having their relationships with the father compromised by the mother’s attitude.[25]
[24] Family Report, pars 114-118; Update Family Report, par 21
[25] Update Family Report, pars 17 and 21

Summary of Parenting Law

Orders in respect of children are regulated under Part VII of the Family Law Act (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).
When called upon to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).
When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).
The Court is required to apply a rebuttable presumption that it is in the best interests of a child for the child’s parents to be allocated equal shared parental responsibility for the child (s 61DA). That parental responsibility pertains to the major long-term issues concerning the child (ss 65DAC, 65DAE), being matters such as education, religion, culture, health, name, and living arrangements (s 4).
However, the presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The legislation makes it clear that the presumption applies to the allocation of parental responsibility and is not a presumption about the amount of time the child should spend with each parent.
In the event that an order is made allocating equal shared parental responsibility, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child spending equal, or alternatively, substantial and significant time with each of the parents (s 65DAA).
If the presumption of equal shared parental responsibility does not apply, or is successfully rebutted, and a different form of parental responsibility order is made, then the Court’s discretion is at large in the determination of the parenting orders warranted, although that discretion must still be exercised within the parameters of the prevailing legislative provisions.
The principles outlined above have been authoritatively examined in Goode & Goode (2006) FLC 93-286.

Best Interests of the Children – Primary Considerations

Section 60CC(2)(a)

The children have meaningful relationships with both parents.
The mother has been the primary carer for the children since their births. The case has been conducted by the parties on the basis that the children are both closely attached to the mother. There is obviously a benefit to be derived by the children in retaining their meaningful relationships with the mother.
K is also clearly closely attached to the father.[26] R too enjoys her relationship with the father, even though she was not as exuberant with him as K.[27] In her oral evidence, the Family Consultant described the children as engaging with the father both physically and emotionally. She attributed the subdued state of R on the second occasion to her being aware of the court proceedings and parental conflict, and being under pressure as a consequence, because she had not been subdued in that way on the first occasion she had been observed by the Family Consultant.
[26] Family Consultant Assessment 18/12/08 p.3; Family Report pars 79, 81, 87, 91
[27] Family Consultant Assessment 18/12/08 p.3; Family Report pars 85, 87, 88, 91
The mother acknowledges that the children love the father and enjoy spending time with him. She said so to the Family Consultant[28] and in her evidence.
[28] Family Report par 62
The mother called her friend, Ms N, as a witness. She said in her evidence that the children speak about their visits with the father, saying that they like the visits. She observed them to be happy when visiting the father.[29]
[29] Transcript p.86
The Family Consultant asserts that the children will suffer feelings of grief, loss, and rejection if they are not permitted to spend time with the father.[30] I accept that evidence.
[30] Family Consultant Assessment 18/12/08 p.3; Family Report par 111
The mother conducted her case on the basis that the children would be benefitted by eradication of the father from their lives. I do not accept her evidence or submissions to that effect. I find that the children would both benefit from maintenance and cultivation of their relationships with the father.
Although the mother concluded the case with a submission that the children should spend time with the father on weekends and for half of school holidays, I think it most probable that that proposal is not reflective of her true wish, which is that the children have nothing to do with the father. Her evidence was too vehement and persistent to believe otherwise.
It is a matter of considerable weight in this case that the mother genuinely desires an outcome which is completely repugnant to the Court’s finding on one of the two primary considerations influencing the Court’s determination about the best interests of the children.

Section 60CC(2)(b)

Neither party submits that the children have been subjected to physical or verbal abuse.
The father has faintly complained about the mother physically disciplining the children,[31] but that issue was not pursued at all during the hearing. I pay it no heed.
[31] Family Report, par 107
Although there is no allegation of actual physical abuse, the mother alleges that the father has been verbally abusive to her, and that the children have been exposed to that abuse. Without expressly saying so, it is implicit that the mother contends for a finding that the children have been adversely affected by such exposure, such as to warrant a determination that the father have no further involvement in their lives.
The father conceded in his evidence that one or both of the children had witnessed arguments between the parents at times in the past.
The children are certainly currently aware of conflict between their parents.[32] The Family Consultant was satisfied that the children were suffering from great emotional strain due to being immersed in that conflict.[33] However, emotional strain caused by exposure to parental conflict, which is often manifest between parents in unresolved litigation, is to be distinguished from psychological harm caused by exposure to “abuse” or “family violence”, as those terms are defined in the Act.[34] Conflict does not necessarily entail “abuse” or “family violence”.
[32] Family Consultant Assessment 18/12/08 p.2
[33] Family Report, par 100
[34] Section 4(1)
It is regrettable that the children may have been occasionally exposed to past incidents of heated argument between their parents, but there is no satisfactory evidential basis to conclude in this case that the children have suffered psychological harm as a consequence of past exposure to abuse or family violence between their parents.
Most of the unpleasant interaction between the parents has occurred by voice messages or text on mobile telephones, which the mother has seemingly had the good sense to keep from the children. The available evidence discloses that there have been no incidents of conflict between the parents in person since early 2006, at a time shortly following their separation.
I therefore infer that the children have not been exposed to conduct that could amount to either “abuse” or “family violence”, within the meanings attributed to those terms under the Act, since early 2006.
I also infer that there is no reasonable prospect of the children being exposed to abuse or family violence in the future. The parties have no wish to interact with one another. The prospect of a future abusive or violent incident between them is improbable. There is no risk of the children being exposed to abuse or violent conduct in the individual households of the parties.
Consequently, there is no tangible risk to the physical or psychological safety of the children, at least by reason of abuse or family violence, against which the Court must be on guard.
The issue of the commission of “family violence” as between the parties will be separately addressed later in these reasons.

Best Interests of the Children – Additional Considerations

Section 60CC(3)(a)

The children are still quite young. K is presently aged 7 years and R 5 years.
K told the Family Consultant that he wished to continue living with the mother and spend each alternate weekend with the father.[35]
[35] Family Report, par 80
I do not repose any real weight in the expressed view of K for two reasons.
Firstly, he is acutely aware of the parental conflict,[36] and he told the Family Consultant that the mother has instructed him, at least in respect of some issues, to “tell the Courts”.[37] The mother concedes that she has said that.[38] Given that he is conscious of the conflict between his parents, and of the mother’s desire that he should be outspoken, it may well be that he says things that he knows will resonate with the mother, with whom he currently lives. The views expressed by him may not genuinely reflect his true feelings. The Family Consultant was alive to the prospect of the children feeling a need to “choose sides”.[39]
[36] Family Consultant Assessment 18/12/08 p.2; Family Report par 100
[37] Family Report, par 76
[38] Transcript p.187
[39] Family Consultant Assessment 18/12/08 p.5
Secondly, even if his expressed views are authentic, he is too young for his views to carry substantial weight in the determination of proper parenting orders.
The Family Consultant did not seek to ascertain the views of R because of her young age.[40] There is no other evidence of her expressing any view which would materially bear upon the outcome of the case.
[40] Family Consultant Assessment 18/12/08 p.3; Family Report par 86

Section 60CC(3)(b)

There is an abundance of evidence that the children enjoy warm and loving relationships with both parents, and both the maternal and paternal families of origin. That was also the opinion of the Family Consultant,[41] and no submission has been made to the contrary.
[41] Update Family Report, par 10

Section 60CC(3)(c)

Once the mother commenced giving evidence, the principal issue in this case quickly evolved to be the willingness and ability of the mother to facilitate and encourage a close and continuing relationship between the children and the father.
As the mother gave evidence, her opposition to the retention of any form of relationship between the children and the father was oft repeated and became increasingly strident. The following excerpts of her evidence exemplify her conviction:
a)Q:       Do you think that the children would like to see more of their father?
A: Well I don’t – well, I can’t say what they think – I only know that they’re happy at home with me – I can’t – you have to ask them that.[42]
[42] Transcript p.158
b)Q:       Do you believe the children would gain anything beneficial if they stayed with me [the father] on a more – more time?
A:       No, I don’t, Mr [Jordan].[43]
[43] Transcript p.159
c)A:       …you [the father] haven’t seen the children, you’ve kept out of – out of our lives so it’s been very peaceful, indeed, and enjoyable.[44]
[44] Transcript p.159
d)A:       …but when it comes down to the mental side of it and the rearing of the children to be decent citizens, no, I feel that they’re [the children] not benefitting there [at the father’s home], no.[45]
[45] Transcript p.165
e)Q:       And you thought that it was good for the children to know that they were part of their father’s family as well as part of their mother’s family?
A:       Of course I’ve always thought that, in the beginning.
Q:       All right, do you still think that now?
A:       No.
Q: Are you saying that you don’t think it’s of benefit to the children to have relationships, now, with their father and members of his family?
A:       No, I don’t.[46]
[46] Transcript p.174
f)Q:       You agree that you told Ms [C] [the Family Consultant], in July of this year, that what you were seeking was that the father spend no time with the children, is that a correct statement?
A:       Yes.
Q:       Is that a correct statement of your position today?
A: Yes, yes, I would – I would have to say, I mean, after hearing, even in the evidence – even in sitting in this box under oath, still lying, yes, yes, yes.[47]
[47] Transcript p.178
g)A:       …Mr [Jordan’s] behaviour, over the last four years, foregoed rights like that [to see the children at Christmas] and what else can you do? I mean, we don’t – it’s not a perfect environment.[48]
[48] Transcript p.182
h)Q:       Do you think any of the answers you’ve given, since lunchtime today, would encourage his Honour that you are willing, and have an ability, to facilitate and encourage a relationship between the children and their father and his family?
A: Why would I do that when the father is abusive and threatening the lives of myself and the children. I mean, what are you saying, that it doesn’t matter what the other parent does, or the other party does? Are you saying that – that you should facilitate your children to a potential monster. Is that what you’re saying? Because if that’s the case, what’s the use in all of it? That it does not matter what the other party behaves like, or does, to the children….And I fully admit I’m not facilitating my children to – to bad behaviour. No, I’m not. And I’m proud of it. I have a standard in my home, and in my life, and I’ll continue to do so, whether this court likes it or not.[49]
[49] Transcript p.183
i)Q:       Do you propose the children have no time with their father, or time with their father, in accordance with the orders from May this year?
A: Well after – after this hearing – after this man, and his parents, sitting in this witness box and lying, no I don’t – I’m back to – I don’t want them near my children. I cannot believe that they would blame – adults blame children, like they have – their flesh and blood and say that they’re lying and actually blame me for what – for what the children are saying. I’m disgusted, I’m appalled, I’m – it’s just – I’m back to nothing. I’m back to don’t even come near – near me and the kids because it’s just not a decent – none of it’s decent, at all. It’s appalling – appalling behaviour by adults.[50]
j)Q:       But if you have your way they [the children] won’t see their father any more, is that right?
A: Well, now, yes. Because it’s just – he’s [the father] not learning. He’s not learning. He’s not understanding of what being a decent father is all about.[51]
k)Q:       Do you think the children should be with their father on the father’s day weekend?
A: If he – if he wants it he – if it was a perfect world and he was a decent father and – yes. As I’m saying, I don’t want him near my children….But I’m saying: no time, nothing, kaput. Finished. They [father and paternal grandparents] want to lie, they want to call my children liars, fine.[52]
[50] Transcript p.185
[51] Transcript p.187
[52] Transcript p. 189

It exercised the mind of the Court that the mother may have unintentionally become enmeshed in the emotion of the proceedings, and that perhaps she was giving vent to her feelings and saying things that did not genuinely represent her true opinion about a proper parenting outcome in the case. That was explored with, and unambiguously clarified by, the mother. It was a misconception, as the following excerpt of evidence demonstrates:
Q: You’ll have a chance to tell me what you think about the case, in due course, but I just want to make sure that I understand your position correctly. And I’m inviting you to try and cut through the emotion. Is it your genuine position, having had the opportunity to think about what you’ve heard in the course of this case, that the children should not spend any time with their father?
A: I believe that – yes. After what I’ve heard in this witness box, I don’t want my children – I don’t want my children there [at the father’s home]. It’s not healthy for them to be there. It’s your flesh and blood, like, come on.
Q:So its not just emotion speaking – that is, really, your honest position?
A:       It’s – it’s – to me, now, it’s the best interest of the children….
Q: Ms [Jordan], you’re not actually answering the question I’m posing to you?
A: I know but that’s how – yes, I’m angry. I’m angry as hell. No, I don’t want him [the father] near them [the children].
Q:       Okay, so I can take it that that’s your genuine wish?
A:       Mm[53]
[53] Transcript p.190-191
The cross examination of the mother progressed and she continued to maintain that position, as demonstrated by the following excerpts of evidence:
a)Q:       And if there was an invitation for the parents to attend a presentation day, or a parent-teacher evening, you understand that [the father] will be invited to those as well?
A:       No, I disagree with that – I wouldn’t want that, no.
Q: As an alternative would you be prepared to furnish him [the father] in writing with copies of all reports concerning the children?
A:       No. No, too much work for me – too busy.[54]
b)A:       …I do not want [the father] around me, around my community, around people I know – I don’t want him there…[55]
c)Q:       Do you think they [the children] have a right to know their father?
A: I think – I think – I think they have a right to know who there father is – of course, I think all children have that right and all – everybody should have that right – good or bad, warts and all – yes, I do but it doesn’t mean that they have to be in that person’s life if it’s bad for their health.
Q: So you are telling the court, Ms [Jordan], that the children are having contact with their father is bad for their health?
A: Yes, I am saying that – of course it is – if they’re telling the children to lie – if he’s telling the children to lie to their mother about things, yes, it is.[56]
d)A:       …obviously these orders [orders proposed by the Independent Children’s Lawyer in Exhibit ICL7] given to some misfit of a parent [the father] that has neglected their children somehow.[57]
[54] Transcript p.193-194
[55] Transcript p.194
[56] Transcript p.195
[57] Transcript p.207
It is true that the mother has in the past, often but not always, facilitated the implementation of the children’s time with the father in accordance with interim orders.[58] She also complied with the interim orders made on 17 December 2009, when the matter was adjourned part-heard until 29 March 2010. However, the mother’s stated desires are incompatible with a commitment by her to facilitation and encouragement of relationships between children and father either in the mid or long term, and perhaps even short term.
[58] Family Report, pars 68, 108
It should be acknowledged that the mother did profess a commitment to comply with any orders made by the Court providing for the children to spend time with the father, as shown by the following excerpt of evidence:
Q: But do you say to his Honour that if the court does make orders that the children do spend time with their father, you will comply with those orders even if you don’t necessarily think it’s in their best interests?
A: Well – well, I’ll – what do I do? I mean, like I’ve stated in the family report, it’s on the court’s heads – if anything happens to my kids, I’ll hold the judge and this court personally responsible, and I’ll shout it from the rooftops.
Q: Just answer the question though, Ms [Jordan], will you comply with the orders if there are orders made for the children…?
A: Of course I have to comply, I’m not a criminal.[59]
[59] Transcript p.178
I do not however accept the expression of that sentiment by the mother as reliable, for several reasons.
Firstly, I did not regard that portion of her evidence as a genuine reflection of her conviction. The concession was drawn from her. It was not volunteered in answer to the question posed at first instance.
Secondly, even if it was genuine at the time she said it, I am not persuaded that it remained her genuine intention thereafter. She offered that assurance well in advance of many other statements that she made during the remainder of her cross examination, where she convinced me that it was her genuine desire to eradicate the father from the lives of the children. All of the evidence extracted above from paragraph 133(g) to paragraph 135(d) inclusive was given by the mother after the evidence extracted at paragraph 137.
Thirdly, that portion of the mother’s evidence was not consistent with her past behaviour, and there is a real prospect of history repeating. In the past the mother has unilaterally either terminated or restricted the children’s time with the father. The mother admits that to be so.[60] It occurred in September 2006,[61] April 2007,[62] and June 2008.[63] The mother asserts that she had good reason for acting in that way. That may be so, but it clearly illustrates that the mother is more than willing to exert control over the relationship between the children and the father at her whim, irrespective of any prevailing private agreement or court orders. The fact that her conduct was in breach of court orders made in August 2007 was of no moment to her.
[60] Family Report, par 61
[61] See paragraph 65 of these reasons
[62] See paragraph 66 of these reasons
[63] See paragraph 70 of these reasons
The mother was afforded an opportunity to cross examine the father a second time. During that cross examination there was an exchange between the Court and the mother about her future parenting proposals. That exchange developed from some questions posed by the mother to the father that inferred that she was prepared to see the existing interim orders continue as final orders.[64]
[64] Transcript p.276-277
The mother said:[65]
“Your Honour, I am still attending the contact centre as per court orders. So I am still of that view.”
[65] Transcript p.276
Despite any uncertainty that may have arisen from the mother’s comments at that point, there is really no doubt about the mother’s genuine view. She shortly thereafter said, during her exchange with the Court:[66]
“…because if it was my decision, without the courts, he [the father] would not see his children – definitely.”
[66] Transcript p.277
I am not persuaded that the mother has had a dramatic and genuine change of heart, evidenced by her compliance with the interim parenting orders between December 2009 and March 2010, and her proposal in final submissions for effective continuation of that regime. The mother must have realised that the Sword of Damocles was hanging over her following the evidence she gave during the hearing in December 2009 and the radical change of opinion by the Independent Children’s Lawyer. I am convinced that the mother adopted such a position at the last minute to avert, as she would perceive, the potential disaster of the children being removed from her care to live with the father.
The authenticity of the mother’s view that the children should have no interaction with the father is also highlighted by her explanation for the inconsistent positions about proper parenting orders that she has adopted at earlier times in the proceedings. She repeatedly asserted that she had been “railroaded”, “bullied”, or “pressured” to propose regimes which did not coincide with her genuine desire for the children to spend no time with the father.
On 12 March 2009 the parties attended a meeting with the Family Consultant, at which time they reached agreement on some interim parenting orders by which the children would spend time with the father. The mother asserts that she was “pressured” to agree to that arrangement against her wishes.[67]
[67] Transcript p.174-175
It was that agreement which became the subject of consensual interim parenting orders little more than a week later on 20 March 2009, and again on 8 May 2009.
When the mother was asked to explain her Amended Response filed on 17 November 2009, in which she proposed that the children spend frequent time with the father, she said that she was “bullied” by her own solicitor to make that proposal.[68]
[68] Transcript p.222-223
The mother attended mediation on 20 November 2009, at which time the father, Independent Children’s Lawyer, and Family Consultant all thought that an agreement had been reached with the mother for the children to spend frequent time with the father. The mother says that she felt “railroaded” by the Independent Children’s Lawyer and the Family Consultant to reach agreement on that occasion.[69] In any event, contrary to everyone else’s belief, the mother asserts that no agreement was concluded at that mediation.[70]
[69] Transcript p.170-171
[70] Transcript p.168-169
When the mother was asked to explain how her affidavit sworn and filed on 25 November 2009 came to propose that the children spend frequent time with the father, she explained that she had again been “railroaded” by her own solicitor to make that proposal.[71]
[71] Transcript p.170-171
If the mother’s evidence is accepted as truthful, then it is utterly plain that her genuine desire over a long period of time has been for the children to have no interaction of any sort with the father. Until literally the last moments of the trial, the mother explained any contrary view expressed by her to have been due to her volition being overborne by some person or other to adopt a false position. The mother did not appreciate the paradox in her then making a final submission, whilst clearly not overborne by anyone, that the children should spend regular time with the father.
While I do not find as an objective fact that the mother’s will was actually overborne, I do accept that the mother has an honest perception that she was pressured, and that her true wish is for the children to have nothing further to do with the father. Her contrary proposal in final submissions was no more than an attempt to shore up her position as residential parent of the children, which she perceived was under threat.
I am satisfied on the evidence that making parenting orders that leave the residence of the children with the mother will give rise to a substantial risk that she will act to cut the father from the lives of the children in accordance with her stated desires. In that event, the children would not be able to continue enjoying the benefit of their meaningful relationships with the father. That is a finding that carries much weight in these proceedings, and it must be balanced against the considerations which militate in favour of the children remaining resident with the mother and spending frequent time with the father.
The father said in response to cross examination by the mother words to the effect of “The best interests of the children are to spend quality time with both parents. You are not prepared to let that happen. I am.” I accept that the father meant what he said. I believe that he is willing and able to promote the relationship between the children and the mother, irrespective of whether he is the residential parent or the parent with whom the children spend frequent time. The Family Consultant agrees.[72]
[72] Update Family Report, pars 14, 16

Section 60CC(3)(d)

A change of residence for the children from the home of the mother to the home of the father would represent a significant wrench for them. Neither the father nor the Independent Children’s Lawyer argued to the contrary.
The father admitted in his cross examination by the mother that it would be a difficult adjustment for the children. He acknowledged that it would initially be difficult for the children to separate from the mother and their established friends, but as he poignantly indicated to the mother as she asked him questions about that - “better to be taken away from your friends than your father”.
The case put by the Independent Children’s Lawyer and the father is that a change of residence would probably be best for the children in the mid to long term, albeit not in the short term, and that their mid to long term interests justify the short term disturbance in their lives. It was contended that any harm to the children in the short term caused by a change of residence was outweighed by the harm to the children caused by the probable deprivation of their relationship with the father if they stay with the mother.
The children are still quite young. They will each continue to spend their lives in the combined care of the parents for many years yet. The best interests of the children must therefore be considered in the mid to long term, and not just the short term.
The Family Consultant contended that a change of residence for the children, from the mother to the father, would negatively influence their relationship with the mother, because she has historically been their primary attachment figure and primary caregiver.[73] That was the consideration which weighed most heavily in the mind of the Family Consultant when she came to recommend that the children remain living with the mother.[74] That is a factor that must carry considerable weight in the Court’s determination.
[73] Update Family Report, par 17
[74] Update Family Report, par 21
The emotional difficulty that would undoubtedly be experienced by the children in changing primary residences militates in favour of the children remaining resident in the mother’s household. However, it must still be weighed as a consideration against the mid to long term emotional benefit to the children in being able to maintain healthy relationships with both parents, which will more likely occur if they live with the father.

Section 60CC(3)(e)

There will be no practical difficulty or expense incurred by the parties ensuring that the children spend time and communicate with whichever parent is the non-residential parent.
Each of the parties can drive and both have access to cars. The mother intends to remain resident in the E area. The father intends to remain resident in the S area. They have successfully implemented interim parenting orders for several years between those residential locations. There is no reason advanced to indicate that they cannot continue doing so, irrespective of the household in which the children primarily live.

Section 60CC(3)(f)

The mother can capably provide for the physical and intellectual needs of the children. She has been predominantly doing so since the parties separated. The shortcoming of the mother’s parenting capacity is her ability to provide for the children’s emotional needs.
The mother is incapable of properly providing for the emotional needs of the children if she genuinely desires complete severance of the relationship between them and the father. The mother does not possess the insight to understand the damage that would wreak upon the children’s psychological health in the mid to long term. She believes that children will be unaffected.[75] With a determination to see an end to the relationship between the children and the father, and the lack of insight to appreciate the adverse emotional implications for the children, there is a real risk that the severance of the children’s relationship with the father will be achieved.
[75] Family Report, par 65
The maternal grandparents are generally supportive of the mother’s stand in relation to the father. They will not be a bulwark against the mother’s drive to sever the relationship between the children and the father. Any higher level of insight that they may possess will probably not thwart the mother’s objective. They do not have the capacity to provide for the children’s emotional needs in the face of the mother’s single-mindedness.
The father has had limited experience as a single parent since the parties’ separation. He would find adjustment to the role of primary carer for the children a substantial change. However, the evidence demonstrates that he has the capacity to provide for the children’s physical and intellectual needs. The evidence also demonstrates that, at least equipped with his renewed insight about the destructive nature of his past conduct towards the mother, he has the capacity to provide for the emotional needs of the children.
The father works for the local Council, and has done for the last six or seven years. He is employed in the capacity of supervisor. He works from 6.30 am until 3.10 pm on Monday to Friday each week. He is not required to work overtime against his wish.
His work entitlements are such that he can guarantee that he will be available to care for and supervise the children during their school holidays. He has flexible holiday arrangements, and he has accrued long service leave as a consequence of his employment beyond his current job with the Council. He believes that he has accumulated leave approximating 800 hours. The father guarantees that he will make his work conditions accommodate his child care obligations.
The father lives within a very short walking distance of both the paternal grandparents and his sister. They live in the same local community. They are all prepared to assist the father with his care of the children.
The father would leave for work by 6.00 am each weekday. He envisages that the paternal grandmother would come to his house each morning before the children rise from bed to supervise their breakfast, preparation for, and delivery to school. The paternal grandmother confirms her willingness and ability to take on that role. She is retired from her work in nursing but is still in good health. She drives and has her own car.
The father would be home from work on weekdays by 3.25 pm. His sister and the paternal grandmother are able to supervise the children after school for the short while before the father’s arrival home.
The public school that would be attended by the children is also within a relatively short distance of their homes. The father’s sister’s youngest child will attend the same school. The children’s older cousins will attend a secondary school in the same area.
The father is prepared to swap emergency contact details with the mother, and resort to them if necessary. It remains quite uncertain whether the mother has a similar view. She said in evidence that she was keen to know where the father lived, and had not learned of the address until March 2009. That was because she wanted to know something about the house where the children stayed with the father. On the other hand, she conceded that she did not want the father to know where she lived. As things stand, both parties are aware of the current address of the other.
The home of the maternal grandparents is situated in the same local community as the father and paternal grandparents. The maternal grandfather estimates that his home is no more than two kilometres away from the paternal grandparents’ home, and even closer to the father’s home. The father and the paternal grandparents are prepared to call upon the maternal grandparents for assistance with the children if the need arises.

It is common ground that, at that point in time, the mother was preventing the children from spending time with the father. The mother says that she was doing so because of the father’s harassment of her.[101] The father’s position is that he was contacting the mother to persuade her to let him see the children.
[101] Family Report, par 61
The police records imply that no action was taken in relation to the mother’s complaint on or about 22 May 2007. No charge or conviction is recorded against the father for any contravention of the AVO at or about that time,[102] and there are no police COPS records confirming any further enforcement action.[103] Any indication to the contrary in the Family Report is inconsistent with the primary records.[104]
[102] Exhibit ICL1
[103] Exhibit ICL2
[104] Family Report, pars 16, 28
In June 2007 the father undertook a course in anger management.[105] Although the father reports deriving considerable benefit from that course,[106] it has not been a panacea. There have still been occasional incidents of aggression since then.
[105] Family Report, par 17
[106] Family Report, par 38
In January 2008 the father apparently left more abusive telephone messages for the mother.[107] The mother’s friend, Ms N, listened to the messages. When questioned about those messages Ms N said that she did not recall any threats being made in the messages. She only recalled abusive language.
[107] Affidavit of Ms N, pars 12-13
In June 2008 the father threatened to assault the mother’s partner.[108] Although the father says that he did so because he believed that the mother’s partner had been smacking the children,[109] threatening to assault that person in retribution was obviously not the sensible way to address the problem.
[108] Family Report, par 20
[109] Father’s affidavit filed 1/7/09, pars 37-48
On 21 September 2008 the father left two voice messages on the mother’s mobile telephone. Those messages were as follows:[110]
a)“You are a fucking Thing you are, if you want to play games I’ll bloody play games.”
b)“Listen here you Thing you owe me the money from the last four months for maintenance. I want it back, I’ll come and get it.”
[110] Exhibit M4
By then the prior AVO had expired. The mother reported the messages to police on 22 September 2008. The police then contacted the father. He admitted leaving the messages, allegedly because the mother had been preventing him from seeing the children in contravention of Court orders. The mother concedes that to be correct.
The police then applied for a further AVO on behalf of the mother, which order was made on 5 February 2009.[111]
[111] Exhibit ICL4; Family Report, par 21
That history demonstrates that the father has good reason to be ashamed about his past behaviour. The real questions are whether he realises that, whether he accepts responsibility for his behaviour, and the chance of his relapse.
The father expressed his contrition for the way in which he has behaved towards the mother in the past. He did so in a past affidavit,[112] and he did so repeatedly when cross examined. He accepted responsibility for past events of hostility and explained that his behaviour was due to a combination of his depression at losing his marriage and not being able to see the children regularly. In the witness box he was apologetic to the mother. He acknowledged that the mother would have been alarmed at his disgraceful behaviour and that she would have lost trust in him as a consequence. He asserted that he had changed within the last year or so, after he realised that his relationship with the mother was over.
[112] Family Report, par 15
I accept that the father’s expressions of remorse are genuine. The father guaranteed to the Family Consultant that his abusive behaviour of the past would not be repeated.[113] I accept that the father’s intention is honest. Having observed the father being cross examined over many hours, I am more convinced about the authenticity of the father’s contrition than the Family Consultant appears to have formerly been.[114] The Family Consultant did however report that she regarded the father as highly motivated in his desire for co-operation and improved communication with the mother,[115] and more recently noted that the father had acknowledged the unacceptable nature of his past behaviour and prioritised the child’s need above his own.[116]
[113] Family Report, par 37
[114] Family Report, par 104
[115] Family Consultant Assessment 18/12/08 p.6
[116] Update Family Report, pars 15, 16
Upon resumption of the hearing on 29 March 2010 the mother was permitted to re-open her case and adduce further evidence. She tendered[117] an AVO Application made by police on her behalf on 19 February 2010 against the father, together with a copy of the interim AVO made by the Local Court of NSW on 4 March 2010 in response to that Application. The Act required that those documents be tendered (s 60CF).
[117] Exhibit M7
The gist of the mother’s most recent complaint against the father is set out within the body of the AVO Application. Essentially, the mother alleges that she received a telephone call from the father on 5 February 2010 concerning arrangements the mother had made for one of the children to attend a friend’s birthday party on a day when the child was to spend time with the father. She describes the father’s manner as intemperate, but not threatening. The mother alleges that she received another unpleasant telephone call from the father on 8 February 2010 concerning their dispute over a variation of the child support assessment. The Application records that the mother told police that “she is fearful that the POI [a reference to the father] may hurt her or her children one day.” The police prepared the Application on 19 February 2010, which suggests some little delay in the mother making her complaint to the police.
For a final AVO to be granted under the Crimes (Domestic and Personal Violence) Act 2007 (NSW), in respect of persons like the parties who have shared a domestic relationship, the underlying application and supporting evidence must prove, both objectively and subjectively, that the person seeking the protection of the AVO fears subjection to conduct that amounts to a personal violence offence, intimidation, or stalking.[118] However, the threshold is much lower for the making of an interim AVO, which may be made by the court merely if it is considered appropriate to do so in the circumstances.[119]
[118] Section 16, Crimes (Domestic and Personal Violence) Act 2007 (NSW)
[119] Section 22, Crimes (Domestic and Personal Violence) Act 2007 (NSW)
The evidence is that the Local Court of NSW has so far made only an interim AVO against the father. The interim order discloses that the father was present at the time that the interim order was made, and that the matter has been stood over in that court until 22 April 2010. The mother informed this Court that the father denied the allegations made against him in the pending AVO proceedings, and protested the making of the interim AVO.
No evidence has been adduced in these proceedings to elaborate the factual circumstances just described. Even if the mother’s untested version of recent events, described in the AVO Application, is accepted at face value, she articulates her fear of the father as being confined to the possibility of him hurting her or the children “one day”. Given that she made that complaint on or about 19 February 2010, and she then told this Court some six weeks later on 29 March 2010 that binding orders should be made providing for the children to spend alternate weekends and part school holidays with the father, her AVO complaint seems quite ethereal.
In the circumstances, little weight can be attributed in these proceedings to the interim AVO made by the Local Court of NSW on 4 March 2010, and the untested allegations upon which it is based.
On the tested evidence adduced before this Court, the father last made terse or intimidatory comments to the mother in September 2008 when the mother was admittedly preventing the children from spending time with him.
Whether the father will act abusively towards the mother again at some point in the future is uncertain, although I am satisfied that he probably will not.
Throughout the hearing the mother persistently referred to the recorded messages left by the father in early March 2007 as a proper basis for the children not seeing the father in the future. Even though the mother may have genuinely believed at that time that the father did threaten the lives of her and/or the children, the passage of time since then without any indication that the father would act on such a threat, and his contrition, leads me to find on the balance of probabilities that the father does not pose any unacceptable risk of physical harm to either the mother or the children.
Inferentially, the mother must concede that to be so, otherwise she would not have consented to the orders made on 20 August 2007 for the children to spend time with the father, even though she later breached those orders in June 2008. She did not say that her consent to those interim orders was vitiated by pressure exerted upon her by another person. Her proposal in final submissions on 29 March 2010 that the children spend frequent time with the father also tends to prove that the mother’s assertion of the risk of physical harm posed by the father is disingenuous. Whatever else might be said about the mother, I do not accept that she would willingly expose the children to physical danger. The mother was self-represented at the hearing when she made her final submissions about proper parenting orders on 29 March 2010, and she was not then subjected to any pressure by any other person.
I reject the mother’s contention, which is now impliedly abandoned, that the father’s past conduct towards her is a proper reason why it is in the best interests of the children for them to have no further interaction of any sort with the father.

Section 60CC(3)(k)

As noted above, there was previously an AVO in existence between the parties.[120] It was made pursuant to an Application dated 22 September 2008,[121] which arose out of two unpleasant telephone messages left by the father for the mother the day before.
[120] Exhibit ICL4
[121] Exhibit M4
The AVO was made by the Local Court of NSW on 5 February 2009 for a period of 12 months, and expired on 4 February 2010.
The AVO did not expressly include the children as “protected persons”, although the provisions of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) included them incidentally.[122] The AVO was expressly made for the protection of the mother only, and its terms were as follows:
1.a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person (s) has/have a domestic relationship.
1.b.The defendant must not engage in conduct that intimidates the protected person (s) or a person with whom the protected person(s) has/have a domestic relationship.
1.c.The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
3. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specified premises.
[122] Sections 16, 36, 38, and 42
That AVO was not inconsistent with the interim parenting orders made in these proceedings in March, May, and December 2009.
The interim AVO recently made on 4 March 2010 by the Local Court of NSW was made for the protection of the mother.[123] Similarly, it did not expressly include the children as “protected persons”, and its terms are as follows:
1.a. The defendant must not assault, molest, harass, threaten or otherwise interfere with the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.b. The defendant must not engage in any other conduct that intimidates the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
1.c. The defendant must not stalk the protected person(s) or a person with whom the protected person(s) has/have a domestic relationship.
3. The defendant must not enter the premises at which the protected person(s) may from time to time reside or work, or other specific premises.
[123] Exhibit M7
The terms of that AVO are not inconsistent with the parenting orders set out at the commencement of these reasons.

Section 60CC(3)(l)

Although the parenting orders identified at the beginning of this judgment are broadly consistent with the final proposal of the mother, there is every chance that she will instigate an appeal or further proceedings if she is dissatisfied with them in any respect. She has threatened as much to the Family Consultant.[124] She also said during cross examination:
a)“I just find this so bizarre that I – when this is all over I can’t wait to tell everybody. Mark my words, I will be. I’ll make it public.”[125]
b)“I am going to let – I am – when this – I mean when the whole thing’s done and dusted. I mean when this whole thing is – I am going to expose what the orders – of course I am going to expose…”[126]
[124] Family Report, par 66
[125] Transcript p.215
[126] Transcript p.230
I believe that the mother is genuine in her expressed intention to rail against the orders made by the Court in the event that they are not to her liking. That should not of course deter the Court from making orders that meet the children’s best interests.
I harbour great concern that orders which vest principal control of living arrangements for the children with the mother will lead to further litigation in due course. There is a considerable chance that the mother will tenaciously work to cut the father from the lives of the children by frustrating the expenditure of time by the children with him, with a view to the father and children abandoning hope of retaining a relationship with one another. The father would likely object to that process and instigate further litigation to avoid that outcome.
Alternatively, if orders were made that the children live primarily with the father, further litigation by way of appeal at the instigation of the mother would be almost inevitable.
Whatever course the Court takes, unfortunately, further litigation seems a probability. The Family Consultant agrees with that assessment.[127]
[127] Family Report, par 113

Section 60CC(3)(m)

As earlier mentioned, the mother alleged that during the settlement negotiations on 20 November 2009 the father had offered to pay her legal costs and rectify child support payments if she discontinued the outstanding contravention application brought by her against him. The mother interpreted that offer as “emotional blackmail” of her by the father.
The father admits that he had made an offer to pay the mother’s legal costs to resolve the pending contravention application.[128]
[128] Transcript p.108
However, there was no concession by the father that he offered to rectify any child support payments as part of that offer. As already set out in these reasons, the father asserted that in November 2009 there were no child support arrears to rectify. The mother disagrees. Nonetheless, for reasons already explained, there were probably no child support arrears of any consequence. It follows that it is improbable that the father offered to remedy child support arrears if there were no arrears to remedy.
Even though the mother interpreted the father’s offer to pay her legal costs as “emotional blackmail” by the father, the father did not accept that characterisation of events.
It is clear from the evidence that the parties embarked upon a settlement conference on 20 November 2009. They were each then legally represented. The conference was also attended by the Independent Children’s Lawyer, and was facilitated by the Family Consultant. The discussions were not intended to be confidential. All but the mother, apparently, departed the settlement conference with the belief that the parenting issues in dispute had all been resolved, with the exception of some peripheral details about the time of the children’s return to the mother on Sundays, time to be spent with the father on the children’s birthdays, and commitment to extracurricular activities for the children.
I readily infer from the evidence that the offer made by the father to the mother concerning the resolution of the part-heard contravention proceedings was merely a component of their negotiation of the overall settlement of the outstanding litigation.
The mother says that the father’s “emotional blackmail” of her occurred in the presence of everyone else at the mediation.[129] It is therefore certain that the father made his offer to the mother openly. It was not covert. There was no secrecy about it. It is unlikely that the father indulged in any conduct that could reasonably be regarded as blackmail in those circumstances.
[129] Transcript p.169
Whilst the mother may genuinely adhere to the belief that the father was mischievously trying to induce her to withdraw from the proper prosecution of his allegedly disgraceful breach of Court orders, that is not the inference I draw from the evidence. I am satisfied that the father was attempting to minimise the extent of the litigious dispute between them. Parties should be commended rather than criticised for attempting to compromise their disputes.
I reject the mother’s contention, which is now impliedly abandoned, that the offer made by the father to resolve the contravention proceedings is a valid reason for the children not having any further interaction with the father.

Parenting Orders

A finding has already been made that the father has engaged in conduct towards the mother at times in the past which amounts to “family violence”. As a consequence, the presumption of equal shared parental responsibility for the children does not apply. The allocation of parental responsibility in respect of the children therefore depends upon a finding as to what parental responsibility order will meet their best interests.
Neither the parties nor the Independent Children’s Lawyer contends for an order allocating equal shared parental responsibility to the parties. The mother wants sole parental responsibility for the children, and the father also now seeks sole parental responsibility for the children in accordance with the stated position of the Independent Children’s Lawyer.
The enmity between the parties is too entrenched for any conclusion to be fairly reached that the parties are capable of rationally discussing and making decisions about the major long term issues that will arise in the lives of the children. I am satisfied that there is very little prospect of the parties working harmoniously to co-parent the children effectively. I agree with the position mutually adopted by the parties and the Independent Children’s Lawyer that an allocation of equal shared parental responsibility would be a mistake. The question then becomes which party is better suited to the allocation of sole parental responsibility for the children. That is a decision inextricably bound to the determination about the children’s living arrangements.
Given that equal shared parental responsibility is not allocated to the parties, no occasion arises for the Court to consider the children spending either equal time or substantial and significant time in the respective households of the mother and father. That does not mean that that such an outcome is precluded. The residential outcome is informed by the children’s best interests.
Neither party, nor the Independent Children’s Lawyer, advocates for an outcome of equal time or substantial and significant time in each household. Each contends for an outcome where the children live predominantly with one parent and spend frequent time with the other parent. I agree that such a parenting regime is the most practicable and also promotes the children’s best interests. Although the parties’ households are not too geographically distant, they are far enough apart that it would be impracticable for the children to attend the same school if they lived between both households, particularly when the parties’ employment commitments are factored into consideration.

The animosity between the parties mandates that there be minimal contact between them. They cannot parent the children co-operatively. The need for communication between them should be minimised. Frequent changeovers of the children should be avoided.
The factors that must be considered under s 60CC of the Act point in different directions when the Court comes to determine with which parent the children should predominantly live in order to promote their best interests.
Some of the factors under s 60CC of the Act militate heavily against the children continuing to live with the mother.
Firstly, I am satisfied on the evidence that the mother genuinely desires that the children have no relationship with the father, notwithstanding that she admits that they have a meaningful relationship with him. Bizarrely, she believes the children will be unaffected if their relationship with the father is severed. As a primary consideration under s 60CC(2)(a) of the Act, the children will certainly benefit from preservation of their meaningful relationship with the father. If the mother seeks to destroy it, and sees no harm in doing so, the children’s interests would be better served by them living with the father.
Secondly, the genuine unwillingness and inability of the mother to facilitate and encourage the close relationship between the children and the father, as an additional consideration under s 60CC(3)(c) of the Act, points to the children living predominantly with the father. Although the father is willing and able to preserve, facilitate and encourage their relationship with the mother, the mother is incapable of reciprocity. This consideration obviously overlaps with that stipulated by s 60CC(2)(a) of the Act.
Conversely, there are other factors under s 60CC of the Act that tend in favour of the children continuing to live with the mother.
Firstly, although the father committed to supporting the parenting orders proposed by the Independent Children’s Lawyer that the children live with him, his clear preference was for them to remain living with the mother – provided that she would ensure that the children spent frequent time with him along the lines proposed by him. The mother belatedly submitted for the making of orders that generally coincided with the parenting orders which the father had been seeking for well over a year. Given that the mother capitulated at the last possible moment to a parenting regime that was the father’s long-stated preference, it would probably be counter-productive to make orders implementing a completely different regime where the children would live with the father. That would bring substantial short term disturbance to the children, and as an additional consideration under s 60CC(3)(d) of the Act, such an outcome should be avoided if reasonably possible.
Secondly, the Family Consultant maintained her recommendation that the children continue to live with the mother, despite the content and virulence of the mother’s evidence. The Family Consultant articulated the balancing exercise to be undertaken between, on the one hand, the emotional harm to the children in being removed from the primary care of the mother, and on the other, the emotional harm to the children in having their relationship with the father severed or impaired if they remain in the primary care of the mother.
I generally accept the evidence of the Family Consultant, but with an important caveat of caution. I am more apprehensive than the Family Consultant appeared to be about the prospect of the mother acting upon her stated desire to excise the father from the lives of the children, I am less optimistic than the Family Consultant about the mother having her attitudes moderated by counselling, and I am not as perturbed as the Family Consultant seemingly was about the previous misdeeds of the father and the influence of that past behaviour on his current parenting capacity.
When the weight attributable to the countervailing factors under s 60CC of the Act is balanced, the evidence ever so slightly favours the children continuing to live with the mother and for the mother to have sole parental responsibility for them – at least for the time being.
I remain deeply disturbed by the mother’s intransigent attitude towards the father and paternal family, and harbour real doubts that the mother will honourably implement the orders made, even though they accord with her last-minute proposal, providing for the children to spend frequent and meaningful time with the father.
My doubts about the mother’s bona fides are so significant that I have concluded that it would be an error to make parenting orders on a final basis. I have elected to make the orders operate as an interim measure to test the mother’s resolve to comply with the orders. Ordinarily the Court should dispose of proceedings, particularly long-running litigation such as this, with binding final orders. The circumstances of this case leave me with such a sense of disquiet that a final resolution would be an incorrect exercise of discretion, especially in circumstances where I have concluded that further litigation between the parties is probable whatever the outcome. The orders made represent an opportunity for the mother to demonstrate that she can now be trusted to comply with Court orders indefinitely, even though the orders may not reflect her genuine feelings about what is best for the children. In the event that the mother fails to adhere to the orders in all respects, occasion will then arise to review the appropriateness of the children continuing to live predominantly with the mother, consonant with the principles discussed in Re David (1997) 22 Fam LR 489 at 506-507.
During the course of the hearing on 29 March 2010 the Independent Children’s Lawyer sought an adjournment of the proceedings for 6 months, with the existing interim parenting regime to continue, in order to test the efficacy of such an arrangement over a longer period than the 3 months elapsed between December 2009 and March 2010. The mother opposed the adjournment application, the application was dismissed, and the hearing then proceeded. But having considered at length the evidence elicited and submissions made I am drawn to the conclusion that the inclination of the Independent Children’s Lawyer was correct. However, the resolve of the mother needs to be tested over a longer period than 6 months.
The Family Consultant recommended that, for the benefit of the mother and the children, and despite the mother’s stated resistance, the mother needed to undertake counselling. The Family Consultant recommended that the mother attend courses known by the names of “Transitions” and “Keeping in Contact”, conducted by Unifam. I accept that evidence. It seems the only way in which the mother might acquire some balance in her views and acquire some insight about the way in which her truculence may deleteriously affect the children. Hopefully the opinion of the Family Consultant will be vindicated and the mother will derive benefit from the counselling courses, which will then indirectly benefit the children. Nothing will be lost by trying.
Having regard to the mother’s failure to attend the “Parenting after Separation” course when previously ordered by the Court, and her stated resistance to participation in any further counselling, it is appropriate that the mother’s participation in that counselling be supervised by the Family Consultant pursuant to s 65L(1) of the Act. I record, pursuant to s 65L(2) of the Act, that I regard such a supervision order to be in the best interests of the children. With supervision in place, non-compliance will be brought to the Court’s early attention.
The parenting regime envisages the children spending alternate weekends and half of school holidays with the father. That accords with the original proposal of the father and Independent Children’s Lawyer. It also accords with the final proposal of the mother.
The interim orders made on 17 December 2009 provided for the weekend time spent by the children with the father to commence on the second weekend of each school term, but that was in circumstances where the children were to spend the second half of mid-year holidays with the father. For the sake of certainty, in 2010 the children will spend the first half of mid-year holidays with the father and the second half with the mother, so the weekend time will re-commence on the first weekend in each school term in even numbered years. In odd numbered years when the children spend the second week of mid-year holidays with the father the weekend time will resume on the second weekend in each school term.
The children spent Christmas Eve and Christmas morning in 2009 with the mother pursuant to interim orders made on 17 December 2009, so that arrangement is reversed for Christmas 2010, and shall alternate in years thereafter (if the interim orders are later ratified as final orders). No evidence was adduced about the reason for the unusual configuration of parenting arrangements in the Christmas school holidays specified in the interim orders made on 17 December 2009. Those orders were simply made by the Court in reliance upon the parties’ consent. For orders which may have a much longer duration it is more appropriate for there to be equivalence of time between households in the Christmas school holidays. Spending time during school holidays in alternating block periods of one week reflects the recommendation of the Family Consultant.[130]
[130] Family Report, par 118
No specific provision is made for the children to spend time with both parents on the children’s birthdays. To minimise the contact between the parties the children will remain with the parent with whom they are already living or spending time on their birthdays. However, provision is made for telephone communication on the children’s birthdays.
The orders made in respect of changeovers impose an equitable distribution of travelling time between the parties. The interim orders made on 17 December 2009 required all changeovers to be effected at the McDonalds Restaurant at G, NSW, which is a location close to the mother’s residence. The mother advocated for changeovers to occur at a contact centre in Newcastle in December 2009. I was not persuaded then, and I am not persuaded now, that changeovers should occur at a contact centre. However, the mother is clearly willing and able to travel to Newcastle to implement changeovers. A convenient location for changeovers that occur in Newcastle is the McDonalds Restaurant at S. That is reasonably close to the father’s home. The parties previously agreed in the presence of the Family Consultant that changeovers could be implemented at the McDonalds Restaurants situated at both G and S.[131] It will benefit the children to see the mother participating equally in the changeover process.
[131] Exhibit ICL5
In her final submissions, the mother agreed to the father contacting her home by telephone to speak with the children. She asserted that should only happen once per week. In her evidence she said that its occurrence more often would amount to her being controlled by the father. I do not accept her evidence or submission. Because of the risk posed by the mother to impairment of the relationship between the children and the father, that risk will be abated by more frequent communication between the children and the father. Two telephone conversations between the children and the father each week, limited to 30 minutes duration at a reasonable hour, is an appropriate communication order. The mother will have the reciprocal opportunity for telephone communication with the children when they are staying with the father in school holidays for a week at a time. There is no need, and every reason, for the party to whose home the telephone call is made to play no part in the telephone communication between the children and the other party.
Interim Order 11 made on 17 December 2009 impeded telephone communication between the parties. That order has not been replicated. If the father sees the need to contact the mother by telephone for reasons other than those envisaged by the orders then he is at risk of breaching the interim AVO secured against him by the mother.
The Independent Children’s Lawyer sought an order that the parties make use of a communication book, and that order is accordingly made. In view of the parties’ inability to verbally communicate in a civil manner, the use of a communication book is a good idea.
No injunctive order has been made replicating interim Order 10 made on 17 December 2009, requiring the father’s abstention from excessive use of alcohol or use of illicit drugs. I am satisfied that the father is well aware of his parental duty to ensure that the children are properly cared for and supervised whilst they are spending time with him. Order 10, which was made on 17 December 2009 in accordance with the parties’ consent, is in a form that would be difficult to enforce, and invites the prospect of the mother interrogating the children to see whether there were grounds for her to bring future contravention proceedings against the father. The remote prospect of the children being exposed to danger by the father becoming intoxicated does not justify the more real danger of the children being exposed to the emotional harm of being regularly interrogated by the mother about the circumstances of their care within the father’s household.
The remaining orders generally accord with the interim orders consensually made on 17 December 2009, or are practical orders about which there could be no sensible controversy.

Costs

Costs are reserved for a period of 28 days. Any application for costs should be made in accordance with the Family Law Rules.

I certify that the preceding two hundred and ninety three (293) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin.

Associate:

Date: 4 May 2010

[2010] FamCA 323

4 May 2010

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