KAMANO & KAMANO

FAMILY COURT OF AUSTRALIA

KAMANO & KAMANO

[2013] FamCA 348

FAMILY LAW – CHILDREN – Children’s living arrangements – Where the children live with the mother for six nights and the father for eight nights every fortnight – Where the children live with both parents for half school holidays – Where the children would benefit in continuing their meaningful relationships with both parents – Where there was no risk of harm to the children through exposure to abuse, family violence or neglect in either parents care – where the father had a meaningful relationship with the children – where the father was best able to support the children’s emotional needs - where the mother failed to encourage or support the child’s relationship with the father – where the mother lacked insight into the impact of her anxieties and fears on her care of the children – where the children’s views were not given weight – where the children were under significant pressure to conform with the mother’s views about the father – where the children would benefit from the parents’ diverse cultural and religious backgrounds – where the mother had contravened previous orders to facilitate time between the children and father

FAMILY LAW – CHILDREN – Parental Responsibility – where the father has sole parental responsibility – where the father retains an obligation to provide the mother notice and consider her views regarding any decision affecting the child’s long term care, welfare and development – where the presumption of equal shared parental responsibility was rebutted by evidence that the parties had continually failed to co-operate about decisions relating to the children’s major long-term issues – where the father alleged the mother was overmedicating the children – where the mother alleged the father was negligent in attending to the children’s medical needs – where the mother had frustrated the father’s attempts to participate in medical decisions affecting the children – where the mother contravened previous orders to jointly make decisions in relation to the children’s health care

FAMILY LAW – CHILDREN – Family Violence – where there was no finding of family violence – where the mother alleged the father had perpetrated family violence upon her and the children – where the mother was required to advise the father of her current address – where the mother had concealed her address from the father

FAMILY LAW – COSTS – Parties pay half the costs of the Independent Children’s Lawyer – where there would be no hardship to either party in meeting a costs order – where the parties high conflict necessitated the appointment of an Independent Children’s Lawyer

Family Law Act 1975 (Cth) ss 60CC, 61DA, 62B, 65L, 65DA, 65DAA and 117

Telfer & Telfer (1996) FLC 92-688

APPLICANT:

Mr Kamano

RESPONDENT:

Ms Kamano

FILE NUMBER:

NCC

2413

2008

DATE DELIVERED:

22 May 2013

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Cleary J

HEARING DATES:

11, 12, 13 and 14 March 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Hannaway Lawyers

Mr D Hannaway

COUNSEL FOR THE RESPONDENT:

Ms Merkin

SOLICITOR FOR THE RESPONDENT:

Mr Linderman (withdrew on first day of hearing)

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Bateman

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Craney Family Lawyers

Orders

That all prior parenting Orders for J born … May 2002 and T born … May 2004 (together known as “the children”) are discharged.
That the father have sole parental responsibility for the children on issues not otherwise defined by these Orders and in that regard shall take the following steps when a long term issue arises for either or both of the children:
(a)notify the mother in writing (including by email) of the issue to be determined;
(b)ask the mother to express her views on the appropriate way to address the issue within a reasonable period defined by him in the correspondence;
(c)consider the views of the mother;
(d)advise the mother of the decision taken on the issue.
NOTING that long term issues include but are not limited to:
(i)Medical issues:
-doctors, psychologists and other health professionals to be consulted by the children;
-medication, treatment and diet.
(ii)Education:
-high school to be attended;
-extra-curricular activities.
The mother is to advise the father in writing of her current residential address and contact telephone number.
The children shall live with the mother as follows and with the father at all other times:
4.1During school terms:
4.1.1from after school each alternate Wednesday until before school the following Monday (“longer period”) commencing Wednesday 29 May 2013;
4.1.2
from after school each other Wednesday overnight until before school Thursday (“overnight period”) commencing Wednesday

5 June 2013.
4.2Periods of time referred to in Orders 4.1.1 and 4.1.2 shall recommence in each school term as follows:
4.2.1where the children have lived with their mother in the first half of the preceding holiday period then the longer period will commence on the first Wednesday of the new term;
4.2.2where the children have lived with their mother in the second half of the preceding school holiday period then the overnight period will commence on the first Wednesday of the new term.
4.3During school holidays periods:
4.3.1for one half of each school holiday period applicable in the State of New South Wales, as agreed between the parties or failing agreement to be the first half of all school holiday periods which commence in odd numbered years commencing after school on the last school term day until 12.00 noon on the middle day of the period; and
4.3.2the second half of holiday periods which commence in even numbered years from 12.00 noon on the middle day until 5.00 pm on the last non-school day (including pupil free days as non-school days).
4.4At additional times as follows for which time with the father is suspended accordingly:
4.4.1each Easter period which falls outside school holiday periods from 5.00 pm on the Thursday immediately before Good Friday until 5.00 pm on Easter Monday;
4.4.2for Mother’s Day from 6.00 pm on the Saturday before Mother’s Day until before school on the Monday after Mother’s Day.
In the event that the children are spending a longer period with their mother which includes Father’s Day then time with the mother shall be suspended from 6.00 pm on the Saturday before Father’s Day for the balance of that period.
For each child’s birthday:
6.1if a school day and the children are then living with the father pursuant to these Orders, from the end of the school day for the school(s) attended by the children until 7.30 pm and if not a school day, from 9.00 am until 1.00 pm:
6.2if a school day and the children are then living with the mother pursuant to these Orders, from the end of the school day for the school(s) attended by the children until 7.30 pm and if not a school day, from 9.00 am until 1.00 pm:
The father shall advise the mother in writing of:
6.1the name, medical practice and contact details of the general practitioner treating the children;
6.2the name and contact details of any medical specialist treating the children and in particular, shall instruct a paediatrician, which may or may not be the current treating paediatrician, to provide advice and each of the parents shall forthwith attend on the nominated paediatrician at a mutually convenient date to provide a medical history of the children NOTING that the parents may attend together but are not obliged to do so;
6.3the name and contact details of any dentist treating the children
AND the appropriate treatment for each of the children.
Unless with the prior written consent of the father, the mother is restrained from taking the children to medical and dental practitioners other than those nominated by the father pursuant to Order 7 herein.
During school terms the children are to have communication by telephone with:
9.1the mother on Tuesdays between 6.00 pm and 6.30 pm to be implemented by the mother telephoning the children on a mobile number nominated by the father;
The parties shall maintain a communication book for the benefit of the children for the delivery of information relating to the health and education and welfare of the children and for no other purpose.
Each parent shall keep the other advised in writing of any changes to residential address and contact telephone number not less than 7 days prior to the change.
The father shall provide information to the mother in writing of the medication, if any, required by the children or either of them.
The Independent Children’s Lawyer shall provide a copy of these Orders to:
13.1the school which the children presently attend; and
13.2Dr H.
Each parent is restrained from:
14.1criticising the other parent or members of that parent’s family and household;
14.2denigrating the cultural background or religious practice of the other parent
In the presence or hearing of the children or either of them and further each parent shall use his/her best effort to restrain third parties from doing so.
The father may provide to any paediatrician, psychologist or counsellor assisting the children a copy of the following:
15.1these Orders;
15.2the Reasons for Judgment;
15.3
the reports of Dr RR of 5 August 2011 and

7 February 2013.
For the purposes of the collection and delivery of the children unless the parties otherwise agree:
16.1During school terms:
16.1.1the father or his nominee shall collect the children from school at the commencement of his time with the children and return them to their school(s) at the conclusion of his time; and
16.1.2the mother or her nominee shall collect the children from school at the commencement of her time with the children and return them to their school(s) at the conclusion of her time.
16.2In the event that the children are not due to attend school on a day the father is due to collect the children, the father or his nominee shall collect the children from and return them to McDonald’s Family Restaurant, BB Street, Town CC.
16.3In the event that the children are not due to attend school on a day the mother is due to collect the children, the mother or her nominee shall collect the children from and return them to McDonald’s Family Restaurant, BB Street, Town CC.
The parties shall each pay within 28 days of the date of this Order, one-half of the Independent Children’s Lawyer’s costs and disbursements estimated at $3,300 (including GST), one-half being $1,650, such payment to be made to the Proper Officer, Legal Aid New South Wales (Reference …) 323 Castlereagh Street, Haymarket NSW 2000.
Pursuant to s 65L of the Family Law Act 1975 a Family Consultant shall give any party to the parenting order such assistance as is reasonably requested by that party in relation to the carrying out of the parenting order for a period of

12 months from the date of these Orders.
Pursuant to s 65DA(2) and s 62B of the Act, the particulars of the obligations 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.

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

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC2413 of 2008

Mr Kamano

Applicant

And

Ms Kamano

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

This is a dispute between parents over the parenting arrangements for their two children now aged 11 and nine years.
The applicant father is Mr Kamano, (“the father”). The respondent mother is Ms Kamano, (“the mother”). Both parents are aged 51 years.
The parties began living together in 1983 when they were in their early twenties. They married eight years later in 1991. Approximately

10 years after they married, in 2002, their first child J was born and his brother T two years later.
In 2005 when the second child was almost one year old the parties separated. The children remained with their mother. Hostility and mistrust has characterised the parties’ relationship from that time. There have been ongoing disputes in the Court for the eight years since separation.

History of Litigation

The first (interim) orders were made in July 2005. Subsequent interim orders provided for progression of time for the children with their father.
In mid 2006 the orders were not complied with. The mother raised allegations of abuse perpetrated by the father including, sexual abuse of J and later T. These allegations were investigated, not substantiated and comprehensively rejected. There is this reference in the Joint Investigation and Response Team (“JIRT”) report[1]:
The mother was then questioned regarding her actions bordering on public mischief and using her son for own advantage (sic).
[1] Affidavit of the father filed 6/02/2013, Annexure A (JIRT Report, p 2)
The mother made a formal complaint about the inclusion of the above comment in the JIRT report. There was a retraction to the stated extent by the Professional Standards Unit of New South Wales Police, although the allegations were confirmed as unsubstantiated.
The father made a successful Contravention Application. Additional time was ordered.
On 26 September 2007 final parenting orders were made following a hearing over three days. These orders provided for the parties to have equal shared parental responsibility and the children to live with the mother and spend time with the father on a graduated basis. These are the operative orders (“2007 Orders”) with some minor variations made pending this hearing.
In July 2010, further Contravention proceedings were commenced by the father in the Federal Magistrates Court. Those Contraventions either related to the mother exercising parental responsibility without reference to the father, particularly in relation to medical and educational decisions; or the decision of the mother to withhold the boys from spending time with their father. There had been an incident on the 28 June 2010 at a changeover, by which the children were said by their mother and her friend, present at the changeover, to have been traumatised. The mother said she had relied on information she received from a psychologist, to discontinue the contact.
On 4 March 2011, an order was made, by consent, for the appointment of a single expert witness, Dr RR, Child and Family Psychiatrist. The first two matters for consideration by the doctor were:
1)A psychiatric assessment of the children and the parties with consideration to any mental health issues that may effect the children or impinge on the parents ability to care for the children;
2)The apparent cause of the children’s resistance to spending time with the father and the apparent cause for angry outbursts in the presence of the mother
On 31 March 2011, multiple Contraventions without reasonable excuse were found. There was an unsuccessful Appeal by the mother.
Orders were made that the children spend supervised time with the father at Interrelate in order to restore the relationship. Nine months had passed without the children seeing their father.
In August 2011, the Single expert Report was released. Included in the recommendations was this:
1. The children continue to reside with their mother on condition.
i) [The mother] ensures she and the boys participate in family therapy, including the boys attend with their father.
ii) [The mother] always makes the children available for time with their father. If not a change of residency needs to occur.
On 26 August 2011 the father filed an application for residence.
On 29 November 2011, the penalty in respect of Contraventions was determined. The mother was required to enter into a Bond for

12 months to comply with orders. A substantial costs order was made against her.
On the same day interim consent orders were made, by consent, directing the family to undergo family therapy with Mr DD. The matter was transferred to this Court.

Current dispute

On 13 December 2011 an order was made for the appointment of an Independent Children’s Lawyer.
The family therapy commenced, but did not progress.
An updating report by Dr RR was ordered. This was over the strenuous opposition of the mother, who had filed an application in a case[2] for another expert witness to be appointed. The mother submitted that an expert with knowledge of the nature and consequences of family violence be appointed. Two psychologists were nominated. This application was opposed and refused.
[2] Application in a Case filed 06/08/2012
In February 2013 the report was released. Dr RR was clear to say that she did not support a change of residence for reasons which did not relate to the father’s capacity as a parent. The central recommendation was week about equal shared care with parallel parenting. Dr RR referred the Court to a particular article from the Family Court Review in relation to the concept of parallel parenting[3].
[3] Single Expert Report of Dr RR dated 7/02/2013, pp 22-23: Jaffe et al ‘Custody Disputes Involving Allegations of Domestic Violence: Towards a Differentiated Approach to parenting Plans’ 46(3) Family Court Review 500
Dr RR expressed the view that the parties would not be able to co-parent. This accords with my own observation of the parties. Clearly there has been no improvement in the hostility and lack of direct communication between the parents for the benefit of the children. This was on display during the proceedings.
The household of the mother is herself and the two children. The mother will not disclose her current residential address.
The household of the father is himself and the two children when they are spending time with him. He has a partner, Ms EE, who maintains a separate residence, but is regularly present in the home when the children are there and at other times.

The issues

Family violence

For the mother the real issue for these proceedings and probably past proceedings, is the violence which she alleges has been perpetrated on her and the children by the father. The father denies violence.
The mother had wished to rely in this hearing on evidence going back to separation, of allegedly violent and overbearing conduct by the father. I did not allow her to do so. Consent orders had been made on a final basis in 2007 inconsistent with a need for protection of the children. Subsequent complaints were aired and dealt with in two hearings in the Federal Magistrates Court. I confined the evidence in affidavits to events since the Contraventions were heard and determined. Nevertheless such matters were referred to however briefly[4].
[4] Affidavit of the mother filed 04/03/2013, paras 7-10
I formed the strong impression that the mother believes that Courts, including this Court, do not take her allegations of past violence by the father, as a husband, seriously. Further that she is the protector of the children from the roughness if not cruelty of their father, by necessity standing her ground against harmful orders. This is a significant issue in determining appropriate parenting arrangements.
The mother seeks to justify her non-compliance or reluctant compliance.

The state of the children’s health

The position of the father was that there was no disagreement about diagnosis, but there was disagreement about ongoing treatment for the children. Put simply, the father fears that the children are both taking too much medication of various kinds and attend doctors more often than is necessary. J was diagnosed with an allergy to egg and nuts as a much younger child. He carries an epipen and worries about his own diet in terms of risk. Both children have asthma action plans. One or both boys take laxatives, allergy medication and use eye drops. The father wants to be sure of current diagnoses. The parents agree that J has never suffered from anaphylactic shock. Neither boy has had an asthma attack in their father’s care.
The position of the mother is that both children are sick and vulnerable to illness. During her oral evidence, she stated that she receives a Carer’s Pension for J. One or both children is said to suffer from asthma, rhinitis, allergies, constipation and rashes. The mother is constantly vigilant in relation to J’s allergy to nut and egg. She is concerned and angry that the father does not apparently act on her instructions in relation to medication for the children. In her view, he is not sufficiently careful about avoiding allergic reactions. She rejected his position in relation to administration of asthma medication, seeing it as laxity.
No treating doctor gave evidence. The mother had asserted when directions for trial were given on 5 September 2012, that she would rely on the affidavit of a treating doctor for the children. She did not. Annexed to her affidavit[5] were the following:
[5] Affidavit of the mother filed 4/03/2013, Annexures ‘LK8’ to ‘LK15’
(a)     Asthma plans for both boys dated February 2009.
(b)    Letters from [Dr FF], Consultant Paediatrician, dated:
-2 September 2005 and 10 November 2005, finding a reaction to eggwhite and nuts for [J];
-28 November 2005, diagnosing recurrent constipation for [T]. Diet sheet attached.
-Letter dated 19 October 2009 from [Dr GG], Opthalmologist, regarding a chronic ocular allergic condition for [J] and noting no threat to vision.
(c)     Letters from [Dr H] dated:
-4 October 2006, “To whom it may concern” diagnosing “emotional child abuse” and allergies - “egg white, Nutilis”;
-From 2007 to 2011 to father’s solicitors raising the doctor’s concerns about the children’s medical health and behaviour;
-Four pages of printed clinical notes from appointments with [Dr H].
Such material falls far short of evidence of the current diagnoses and prognoses and prescribed medication if any, for each child in respect of conditions identified in earlier years. There is a real possibility that the children are being overmedicated and taken to doctors unnecessarily.

Changes to current parenting Orders

The orders sought by each of the parties are superficially similar, but require careful analysis. The application of the father and the response of the mother were ultimately superseded by the minute of orders sought in each case outline document.

Parental responsibility

The mother proposes continuation of equal shared parental responsibility between the parents.
The father agrees other than for the issue of medical care of the children, in which he seeks sole parental responsibility, based on his assertion that the mother seeks medical attention for the children beyond what is actually needed and that they are at least to some extent, overmedicated.

Residence

Each party asks for residence with the children.

Time spent

The father proposes that the children spend time with their mother:
(a)each alternate weekend from after school Friday until before school Monday;
(b)each Wednesday from after school until Thursday before school;
(c)for half school holidays and other special times;
(d)changeover to be at a named family restaurant
The mother proposes that the children spend time with their father:
(a)each alternate weekend from 5:00 pm Friday until 8:30 am Monday;
(b)for half school holidays and other special times;
(c)changeover at a named contact centre whenever available.
However, holiday time is not to commence until the father has undertaken five nominated courses of instruction (order 21) with proof of completion to be supplied to the mother’s solicitor.
There is significance, in my view, in the threshold requirement contained in order 22.

The Evidence

Applicant father, Mr Kamano

The father relied upon the following affidavits:
(i)affidavit of the father filed 6 February 2013;
(ii)affidavit of the father filed 18 February 2013.
The father impressed as a thoughtful witness. His evidence reflected an unfailing commitment to his children through the challenges and expense of the last eight years.
There is no direct communication between himself and the mother. Communication books have passed between the parents. One of those books was tendered into evidence[6]. There are many entries where the mother gives instructions about medication the children were to be given, but without the information about the illness or other basis for it. There were also many criticisms of the father. For instance, providing a communication book with a cover which the mother thought inappropriate[7]. This cover was tendered into evidence and is unexceptional. The mother was also critical of the father for having his partner write in the book on his behalf. The mother included food alerts for certain confectionary and other items. The tone of the mother’s notes is one of resignation about the father’s many failings and concern about his misconduct as reported by the children. One example of this is as follows:
19/9/12
Can you please explain why you were unable to follow the instruction of the Curam Duo medicine for [T]. I advised you in this book that 7.5 ml was required morning and night just prior to eating. The same instructions were on the chemist label on the bottle, the manufacturer’s label on the bottle, the box the bottle came in and on the instruction sheet in the box. Both [J] and [T] advised that you did not follow these instructions - forgetting medicine at times or giving after food was consumed - this makes the medicine less effectice (sic). In future please follow the instructions given.
[6] Exhibit 15
[7] Exhibit 9
As in so many instances, the mother has assumed that the children’s statements were accurate and reliable and took the father to task on that basis.
I accept the evidence of the father that it is his genuine wish that the parents be able to speak to each other directly and to enjoy a better relationship, but he appears to have accepted that it is unlikely.
The father readily conceded that in 2005 and 2007 he received medical reports about J’s allergy to nuts and eggs. The father does not doubt this diagnosis, or the diagnosis of both children being asthmatic or that J has corneal condition which requires eye drops.
His concern is the possibility of overmedication by the mother beyond the level required, or that the conditions have changed. He has not always been able to get access to the children’s medical practitioners, although I accept he has made strenuous efforts to do so.
A clear example of this is that the mother had instructed the father to administer Ventolin on a daily basis in the prescribed amount. When the father learned that the instructions were to give medication daily as required he changed his practice. The father says, and I accept, that he has never seen either of his sons affected by asthma or wheezing and that therefore, in his view, the medication has not been required. The mother’s evidence is that the instruction from the doctor was twice daily as required and she has administered it twice daily.
The real difficulty here is that the parents do not see the doctor together. They do not have a common approach to the treatment of the children. If the father is right, the children are receiving unnecessary treatment. From the perspective of the children, their mother’s anxiety that they are not taking their medication must affect them and they are old enough to understand the different regimes in each house.
There is also the issue of the nut and egg allergy. The father says, and I accept, that he is conscious of the allergy, accepts that it exists. In his experience his son J has never had an anaphylactic reaction, but he accepts that he could. The father carries an epipen, he understands its use and he understands the signs and symptoms of an anaphylactic reaction. He is careful in the preparation of food and only provides J and indeed both children, with products which are certified to be egg and nut free.
The mother takes much more extensive precautions. She does not allow the children to eat food prepared outside the home. Her house is “free of egg and nut”. When the children go to school from their father’s home with lunch, the mother prepares and sends them an additional lunch. There is no current medical evidence about J’s condition and there is no common position between the parties, although both parents are conscientious and careful. The mother likewise conceded, although reluctantly, that there had been no anaphylactic reaction by her son in her care. He has on occasions had rashes.
The cross-examination of the father over more than four hours, focused almost exclusively on these medical issues. I formed the impression that the mother believes that she has a complete understanding of the children’s needs and her mission is to force the father to comply with the guidelines she has developed in her own home. She sees him both as obstructive and negligent.
The father quite reasonably said he had been assisted from time to time by information provided by the mother from doctors, but had made his own inquiries and significantly the children were well. They did not suffer any signs or symptoms of the illnesses that had been diagnosed. He had been unaware of a change of paediatrician until the commencement of these proceedings. He readily conceded that “on a couple of occasions” he had forgotten to give J his eye drops. Likewise, he agreed that on one occasion he had sent his son to school without an epipen.
I accept his explanation that Dr FF, the children’s first paediatrician, had advised that J was not required to carry an epipen. The evidence confirms that advice[8]. Further, the school had one for emergencies. The father revealed an uneasiness over J carrying an epipen as a further precaution beyond what the paediatrician recommended, but had been compliant with it.
[8] Affidavit of the mother filed 4/03/2012, Annexure LK9 (Letter from Dr FF, dated 20 September 2005 )
Significantly, there was no evidence whatsoever that the children’s health had suffered as a result of the father’s care, nor that the father had knowingly disregarded any medical advice which had been conveyed to him. The parents each agreed that they would consent to an order that they would attend on the children’s paediatrician together to seek medical advice from him about the treatment of the children’s health, the necessary medication and the regularity of its administration. This is essential whichever parent the children are living with. Their medical treatment must be consistent between the households. Orders have been made accordingly, with the father having overall authority for treatment.

Ms EE, the father’s partner

Ms EE relied on her affidavit filed 7 February 2013.
Ms EE works in customer service. She has known the father since they were at school together. They resumed a friendship in late 2008 and lived together in 2009 to 2010. Although not presently living together, I formed the impression that there is a committed relationship between the father and Ms EE. I accept that she withdrew to a separate household at least until these proceedings were resolved because:
The kids needed time with their father. They didn’t need me there all the time.
Ms EE was patient and restrained during cross examination. She accepts that the children probably did make complaints to their mother about her and in coarse terms for instance, “Mum I hate that fucking [Ms EE].” She readily conceded that the children had complained about her to Dr RR, denying their complaint that they were forced by their father to hug her. Her comment that the father prompts the children to affectionately greet family members is consistent with my impression that the father has standards of behaviour, which the boys know they are expected to meet when they are with him.
J had complained to Dr RR that his father yells[9]. When asked to demonstrate what his father does, J modelled his father saying quietly, “Stop it or …..” presumably nominating a consequence. If this is the case it does not seem inappropriate.
[9] Single Expert Report of Dr RR dated 07/02/2013, p 7
I am satisfied that Ms EE understands the difficulty of the children’s position and the reason why they make wildly inconsistent statements in the two households. She is sympathetic with their dilemma. For instance, the mother turned the children round and walked away when the parties met by chance in public. There is nothing to indicate that Ms EE did then or would in future criticise the mother in front of the children.
Ms EE readily conceded rough play on the floor with the children as the likely cause of a carpet burn for J. The videos presented by the father in Court suggest that the children enjoy physical play. Ms EE is probably a source of activities which are fun for both boys. She has a lot to offer them.

Ms HH, neighbour of the father

Mrs HH relied on her affidavit filed 6 February 2013.
Ms HH is a retired sales assistant in her late sixties. She and her husband have three children and seven grandchildren. The father has lived next door to them for six years. The father’s partner is well known to them and was described as a “very dear friend”.
Ms HH gave her evidence in a considered calm way. I have no hesitation in accepting her evidence as truthful.
The two families have visited each others home, socialised together at home barbecues and on combined family outings. She and her husband had looked after the children on two occasions, once in their own home, and once in her home when “he ([the father]) ducked out to the shop briefly”.
Ms HH described the children as affectionate polite children, who she was happy to have in her home and playing with her grandchildren.

Two pieces of helpful information emerged during cross examination. In her affidavit Ms RR said that she had seen the boys “out and about in [Town CC] with their mother” and on these occasions neither child had acknowledged her and seemed scared to do so. When questioned about this, the witness said:
They look the other way. They don’t want to talk to me. They call out ‘Hello [an abbreviation of Ms HH’s first name]’, and talk to me all the time in our neighbourhood.
This evidence is similar to that of Ms EE.
I conclude that the mother actively tries to maintain separation from everyone associated with the father. That is her right as a personal choice. However, it creates hurtful difficulties for the children. On balance, I consider that the mother did not turn her mind to that aspect or if she did assumed that the boys would feel the same way as she did.
Ms EE and Ms HH are both important people in the lives of the children. They probably love both of them. To deny those feelings in public is an indication of the likely belief that their mother would be emotionally upset if they did otherwise.
This suggests that in the care of their mother there is a stark choice to be made. To be loyal to their mother they must reject their father and everyone associated with him. The mother probably believes she is being protective of her children. She is not. She is in such situations causing them to be untrue to their own feelings.

The respondent mother, Ms Kamano

The mother relied on her affidavit filed 4 March 2013.
The mother entered the witness box and was introduced to the Court on the basis that she did not want the father to know her address. She confirmed that she lived in the Town CC area. Her answer as to why the father was not to know was, “Our history, unfortunately”.
This was instructive. The mother appeared to feel under pressure both from the father and the Court. The mother asserts that she has felt afraid of the father at least since separation. There was no reference to the children or the effect on them of concealing their address if that is what they have been asked to do. It is a significant matter. Each parent should know where the children are living when in the care of the other parent. Further, it is unreasonable to involve the children in concealing basic information about their life.
The mother had the opportunity to respond in the witness box to material in the father’s second affidavit. Her focus was the physical health of the children and her view that the father failed to adequately attend to it. It was clear that the mother has been intensely focused on second guessing the father.
In 2009 the father had taken the boys out to a club for Father’s Day. Next day one of the children said at school he wasn’t feeling well. The mother picked him up. She was fearful about food eaten. She asked the father for information about all food consumed in the last 24 hours. The father provided that information. The mother responded, “It’s a wait and see situation.” There is no evidence to suggest that the child was sick, certainly not that he had an allergic reaction to any extent but the mother was clearly highly anxious.
Later it was revealed that in her care the children eat only food prepared by the mother at home. Both children have become anxious about cross-contamination. The mother has an “egg and nut free home.” T has to wash his hands and clean his teeth before he touches J. The mother has gone to school with substitute lunches because the children had expressed fears to a teacher about eating those packed by their father. The mother did not tell the father she was doing that. It must have reinforced the sense of danger for the children. These are extreme measures. The medical evidence before me does not justify their use.
Further, although the mother said she did not see J’s allergies as a disability, cross-examination revealed that the mother receives a Carer’s Pension for J. The basis for the pension is said to be managing J’s allergies and an alleged diagnosis of Post Traumatic Stress Disorder. The material which supported the pension application was not in evidence.
The children are taken by the mother to the doctor routinely for minor matters, an ant bite, a small burn, being knocked over in the playground. Counsel for the mother referred to J and T as “high needs children”. This must have reflected the mother’s view.
Again there was no current medical evidence to support the level of medical attention and preventative arrangements put in place by the mother. One inference is that evidence from the children’s current paediatrician would not support the mother’s position about their health. I am inclined to draw that inference.
Dr H, the mother’s own treating doctor for many years, has also treated the children. Dr H is said to have told the father that she had a “conflict of interest” and could not speak to him about the children’s health. The father was understandably puzzled by this response. He consulted another doctor who was happy to see the children in the care of either parent[10]. The mother did not agree to that change.
[10] Affidavit of the father filed 06/02/2013 para 146
On 8 June 2012, orders were made directing the parents to take the children to a named general practitioner, Dr JJ, other than in a medical emergency. Nevertheless, the mother continued to regularly consult Dr H about the children whenever Dr JJ was not immediately available. That will be a matter for further comment. The mother knew that Dr H would not speak to the father. Dr H appears to have taken on the role of advocate for the mother. That is suggested by her correspondence with the father’s solicitors.

I conclude that the mother was content for the frustration of the father’s access to direct medical information.
I also conclude that:
(i)the mother wished to maintain total control of the management of the children’s health and which doctors they attended;
(ii)she intended to inundate the father with medical information regarding the children; and.
(iii)She was indifferent in her failure to strictly comply with Court orders.
During the course of her oral evidence, I formed the conclusion that when a third party says something the mother already believes or agrees with the mother accepts it as truth. When it is something the mother disagrees with she rejects that information without doubt or hesitation. This is especially so with the children. One night at dinner J said this to his mother[11]:
[T] was crying because that big ‘[Mr KK]’ hit the table – he whipped the table and made the table break on [T]. My dad and him, they were fighting about the [animals] and big [Mr KK], he punched dad into the glass – he punched him up the chin and he flew back, hit the glass window and then went outside and hit the [motorbike] and then kinda somersaulted in the air. [T] had his hands over his eyes and I had my fingers in my ears.
[11] Affidavit of the mother filed 04/03/2013, para 6
The mother did not test the story or contact the father, she simply believed the child. T was not said to be injured at all despite having a table broken on him. What would have been terrifying events had no other consequences and had not been mentioned immediately after time with their father. It is inherently unbelievable or at best highly exaggerated. The mother smilingly conceded the proposition that the story “sounded like a Jackie Chan movie” but nevertheless believed it happened. Dr RR has assessed the mother as “insightless” and this is an example of that problem.[12]
[12] Single Expert Report of Dr RR dated 7/02/2013, p 21
The mother came to these proceedings as someone who has been found to contravene Court orders and been ordered to pay significant costs. She has not taken the step of seeking professional advice to see if there is something amiss with her reactions or capacity as a parent. The mother apparently does not experience self doubt.
The mother sees herself as a victim of domestic violence. That is her perception. Unfortunately she conducts herself on the basis that the children necessarily need protection from their father. The mother is entitled to hold a negative view about the father based on whatever unhappy and frightening events gave rise to separation in 2005. However, it is a deficiency in parenting to blindly accept every negative statement the children make and assume that their relationship with their father is a negative one because hers is.
She also in my view perceives herself as a protective parent doing her best to remediate the consequences of the father’s poor parenting. She rejects the opinion of Dr RR that the father does not lack capacity as a parent. The mother does not see the children’s needs as separate to her own. It is a critical failing and is causing harm to her children whom she deeply loves.
There are grounds for some concern about the physical and psychological health of the mother. Dr RR observed her to be “guarded and inflexible”. In the doctor’s opinion, she remains affected by unaddressed childhood trauma resulting from her own father abandoning the family when she was a very young child.[13]
[13] Single Expert Report of Dr RR, pp 20-21
Included in the document from the New South Wales Police[14] is this statement: [15]
[The mother] suffers from a medical condition which explains her reactions to Detective Taylor’s comment and no adverse view should be inferred from her reaction.
[14] Par 6 of these Reasons for Judgment
[15] Affidavit of the mother filed 04/03/2013, Annexure LK-7(Letter from NSW police)
In cross-examination the mother was asked about this medical condition. She said it was a low blood pressure reaction: “I can faint”.
The mother was also asked about a reference in October 2007 in her medical records to her suffering from compulsive behaviour and delusions.[16] The mother denied a problem, “I never had those things”.
[16] Exhibit 11

Ms LL, Support Worker

Ms LL relied upon her affidavit filed 27 February 2013.
Ms LL is a faith based Support Worker. She has acted as a chaperone at contact changeovers on 50 to 60 occasions. She agreed that the mother had told her that the father was abusive during their marriage. She went to changeovers alert for violence although she hoped there would not be any.
A rather bleak picture emerged of the two adults in the mother’s car with the children arriving at the changeover venue, a market car park. The boys reluctant to go, their mother saying, “You have to go with your Dad”, both women coaxing them to go over to their father.
There was one incident where voices were raised in September 2009.
The children must have wondered about the need for Ms LL to be there. She was not otherwise a friend to the family or part of their life. There was no explanation for why the mother had a support worker, perhaps as a witness. What is most puzzling is why the mother attended at all, while Ms LL managed the changeover. It could not have been a pleasant experience for the children and probably contributed to anxiety.

Dr RR, Child and Family Psychiatrist - Single Expert

Dr RR prepared two reports in this matter, one dated 8 August 2011 and one dated 7 February 2013.
In her first Report Dr RR recommended that the children continue to live with their mother on two conditions:
1)That the mother ensure the participation of herself and the children in family therapy with the father; and
2)That the mother always makes the children available for time with their father.
In her second report 18 months later, Dr RR identified the following matters giving rise to her ultimate recommendation of equal shared care week about :
1)the need to provide stability and continuity for the boys;
2)the dynamics and personalities involved in this family;
3)the failure of an effective therapeutic intervention; and
4)the probability any orders similar to those currently operating will meet with significant difficulties in their execution, resulting in ongoing legal action.
Shared care week about represents a recommendation for an increase in time for the children with their father from four nights per fortnight to seven. I agree that an increase in time will be beneficial for the children, although not necessarily equal time.
I agree that an increase is necessary. Dr RR identified that after a period of 12 months of no contact, other than some supervised time, the children related to their father well and were not afraid of him. The relationship survived and was not disrupted. However, they are caught up in an alienation process, overtly rejecting their father, his partner and the extended paternal family despite true feelings of love and affection for all of those people.
There are benefits to the children from increased time. They will have the benefit of their behaviour being firmly, kindly and appropriately managed. The father is and shall be able to manage their behaviour and set appropriate limits. Spending more time with their father, will mean they also spend less time hiding their feelings and making rude and hostile statements about him to their mother and others.
In the first interviews, Dr RR directly observed “unpleasantly cheeky” and immature conduct by the children which their mother was unable to contain[17].
[17] Single Expert Report of Dr RR dated 08/08/2011, p 3
In the interviews conducted for the second report the children stated that their mother allowed them to “play around, joke, muck around ,find toys that have been opened in shops” but complained that their father didn’t like that:[18]
He says ‘stop mucking around...gets up [J]’ by telling him to stop doing things or he will be ‘in trouble’ when means ‘he yells at us’ (sic).
[18] Single Expert Report of Dr RR dated 7/02/2013, p 4, para 5
There is clearly a great difference between the parents in terms of limit setting and discipline. In my view the children will do better to spend more time in an environment where rules are known and consistently enforced. It is also clear that the mother has sympathised with the children about the perceived unfairness or harshness of their father. T was checked by his mother for referring to a school teacher as “mean” but not at all in relation to their father.
The next benefit is in relation to their health. Dr RR expressed the view that the mother is pre-occupied and over-anxious about their health and is taking the children too often to doctors. That accords with my own view.

Dr RR expressed two concerns:
· that the children could become pre-occupied with their own health; and
· that they might focus on bodily complaints because they cannot express how they feel.
Dr RR expressed the view that if either parent takes over sole responsibility, there will be more complaints. That may well prove to be true. Certainly, Dr RR was extensively cross-examined on behalf of the mother about the physical health of the children. However, it is essential that one parent manages the long term issues and communicates clearly to the other. The father is most likely to be compliant with such a regime, given the mother’s history of withholding information about the children’s health from him.
The parties agree that they should see one paediatrician for a thorough review of the current state of health of each child and an order has been made accordingly. However, one parent needs authority in the overall management of their health.
That role has been taken by the mother to date. It has not been a successful arrangement. The mother sidestepped the Order[19] for the children to see the nominated general practitioner, other than in an emergency. Despite that Order the mother continued to very regularly take the children to see her own doctor of choice knowing that doctor would not see the children with their father.
[19] Order 2 made 08/06/2012

Domestic Violence

Dr RR had been conscious that the mother held the view that she had been subjected to domestic violence by the father. In her oral evidence, the doctor said she took the time to talk to the mother about that. The thrust of the mother’s concerns was that the father was going to take the children, that he was domineering, controlling and verbally abusive. In support of this, she described how he had taken the children to his family, prior to separation, over her opposition.
Dr RR considered that the mother did feel threatened by the father and that feeling arose from her perceptions and experiences, rather than the nature of the father. However, Dr RR did not consider that the father was a perpetrator of domestic violence. In the absence of obvious risk factors, injuries, alcohol abuse, domestic violence reports and weapons, and on the basis of her own observations, Dr RR did not come to the conclusion that the father was perpetrating violence.
Her conclusion was that there was a perceptual difference. The father told the doctor that he did take the children to see his parents and did follow through on parental issues using his own judgment. I interpret this to mean that the mother felt frightened, controlled and overborne when the father made decisions about the children which she disagreed with.
I take into account that the parties had lived together for 19 years before their first child was born and that parenthood had a negative impact on their personal relationship, although the children themselves were welcomed and loved.
I accept that the mother genuinely holds the view that she has been subjected to domestic violence and that the father changed in a way that bewildered her. The mother might consider therapeutic intervention for herself, to assist her to separate her feelings about those events from her belief that the father is a dangerous abusive parent to his children. The objective evidence does not support that proposition.

The Law

Parents of children under 18 years each have parental responsibility unless a Court order is made otherwise pursuant to s 61C of the Family Law Act 1975 (Cth) (“the Act”). In this matter both parties ask that there be an order for equal shared parental responsibility. It is hard to understand why. The evidence clearly rebuts the presumption of equal shared parental responsibility (s 61DA (4)).
The parties are able to communicate information to some extent through communication books, but they do not communicate in person. Indeed, when they are both present at changeovers no word is exchanged between them. The mother, on her own evidence, is deeply mistrustful of the father, seeing him as the man she once knew but no longer understands. The father is immensely frustrated with the mother, who has contravened Court orders and seeks through these proceedings to reduce his time with the children. Eight years on from separation, the relationship between the parties is at a very low ebb indeed. There is no reason to think on the evidence before me that the parties would be able to genuinely consult and consider each other’s point of view on the children’s long-term issues.
During the course of the proceedings, when she was not in the witness box herself, the mother was writing notes with an intensity of purpose inconsistent with listening to any of the evidence given. There was no sign that an improvement in communication is at all likely. Indeed, Dr RR’s recommendation was based on her view that the parents were unable to co-parent. On that basis, it is necessary for one parent to have authority for making long-term decisions. This is especially so where the children will be adversely affected, by prolonged conflict between their parents over matters of immediate concern, such as medical treatment and where they go to school.
On balance, I consider of the two parents that the father is most likely, to communicate information to the mother and to invite her input into decisions. The mother entirely rejected Dr RR’s assessment that she had impaired capacity as a parent.
Accordingly, an order is made for the father to take over all responsibility for the children’s long-term issues, including education and health. Each party otherwise retains parental responsibilities for all short-term issues, for the times when the children are in their care.
Accordingly, I am not obliged to consider equal time with each parent or substantial and significant time with each parent on the basis that there will be an order for equal shared parental responsibility (s 65DAA). However, the recommendation of Dr RR is that there should be equal time, although on the basis of parallel parenting.
The Court was referred to a paper in this regard titled “Custody Disputes involving allegations of Domestic Violence toward a differentiated approach to Parenting Plans”[20]. A copy of that paper was provided to the Court and to the parties. The mother said she had not read it although she said she would like to.
[20] Jaffe et al, ‘Custody Disputes Involving Allegations of Domestic Violence: Towards a Differentiated Approach to parenting Plans’ (2008) 46(3) Family Court Review 500
Parallel parenting is defined in this way:[21]
An arrangement where each parent is involved in the children’s lives but the relationship is structured to minimise contact between the parents and protect the children from exposure to ongoing parental conflict typically by having each parent make day-to-day decisions independently of each other when the children are in his or her care, and responsibility for major decisions (e.g., education) is assigned to one parent. There is limited flexibility in a parallel parenting arrangement and the parents typically abide by a very structured and detailed schedule. Parallel parenting developed in recognition of high conflict separations in which both parents appear sufficiently competent. Rather than encourage co-parenting, the goal of this plan is to disengage the parents from each other and their long standing hostilities.
[21]Ibid, at 516
In this situation where each of the parents loves the children and needs to be involved in their lives, the concept of parallel parenting is helpful and has informed to some extent the decision to give sole parental responsibility to the father. However in this case, I consider that equal shared time would send an unhelpful message to the children. They need to spend just a little more time with their father, whilst spending significant time with their mother whom they not only love, but worry about in a somewhat parentified way. The children need to feel that they have a home base and that should be with their father and to some extent, Ms EE.
In considering what parenting order to make in relation to the children, I have taken into account the matters set out in s 60CC(2) and (3) of the Act.

Section 60CC(2)(a) – the benefit to the children of having a meaningful relationship with both parents.

Despite their stated remarks and difficult conduct, the children are assessed to have a loving and affectionate relationship with their father. That is the observation of Dr RR. It is also the observation of the father himself, his partner Ms EE and his neighbour Ms HH. The children hide those feelings from their mother, which contributes to her difficulty in accepting that they have them at all.
However, they also have a meaningful relationship with their mother, who provides all of their care. Despite the fact that she is preoccupied with their health and over protective in that regard, they need to maintain their relationship with their mother, who has cared for them all their lives.

Section 60CC(2)(b) - the need to protect the children from physical or psychological harm or exposed to abuse or family violence.

The children have not been subjected to or exposed to abuse, neglect or family violence. They have been exposed to anger, mistrust and the lack of support for family relationships.
I note that the mother has attempted to conceal her address as a means of protecting herself from the alleged intimidation and family violence of the father. She may harbour those fears, however, such an arrangement does nothing more than encourage her and perhaps the children that those views are correct and that the father is to be feared. I consider that such an arrangement undermines the children’s ability to have a meaningful relationship with their father. It is not in their best interests for her to continue to do so.
Accordingly, I make an order that the mother is to provide the father with her address.

Section 60CC(3)(a) - any views expressed by the children that the Court thinks are relevant to the weight it should give to the children’s views

The expressed views of the children are that they wish to see very little of their father. Both responded to Dr RR with her question of same, more or less time with dad with the answer “less.” Each referred to only seeing their father on special occasions such as Father’s Day, Christmas Day and birthdays, J explaining that he wanted that “so I get in less trouble”. [22]
[22] Single Expert Report of Dr RR dated 07/02/2013, p 6
The children have been under extraordinary pressure. They have become fearful about their own health, especially J, anxious that their father is unable to care for them properly, which is an anxiety communicated to them by their mother. They can be polite, well-mannered children at school and in certain settings; rude, cheeky and foul mouthed in others.
A boy of just 11 would normally expect to have his views taken into account fairly substantially, slightly less so with a nine year old. However, I accept the submission of the Independent Children’s Lawyer that the children have a conflicted relationship with their parents, clouded by divided loyalties and worry about their mother. Although they are intelligent children, I do not give their expressed views any weight in those circumstances.

I note the evidence of Dr RR that if an arrangement was put into place where they did in fact see very little of their father, it would be likely to reinforce the notion that their father is an unsafe, uncaring and aggressive father, which I do not believe is a realistic evaluation of him. I agree with Dr RR that they have much to gain from being able to experience and identify him as positive and supportive[23].

Section 60CC(3)(b) - the nature of the relationship of the children with each of their parents and other persons

[23] Single Expert Report of Dr RR dated 07/02/2013, p 20, para 2

The children have close dependent relationships with their mother. They have begun to exhibit somatic complaints. Dr RR suggests that they focus on physical ailments due to being unable to express their emotions. The children love their mother and wish to be with her. She provides a high level of physical care. They attend the doctor on a great many occasions for trivial matters. The state of their physical health is uncertain based on the lack of evidence made available in that regard.
The children have important relationships with their paternal family, including grandparents, uncles and cousins. There is also an affectionate and physically playful relationship between the boys and the father’s partner, Ms EE.
I consider that there is also a grandparent like relationship between the boys and the father’s neighbours, Mr and Ms HH. The children have benefited from being included in family occasions with Mr and Ms HH, at the beach, at home barbeques and other settings.

Section 60CC(3)(c) - the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship with the other parent.

The mother appears to have never held the view that the children are entitled to develop an independent relationship with their father. She has at times blatantly contravened Court orders for the children to spend time with their father. More recently she has reluctantly complied with orders, perhaps to avoid further adverse consequences of contravention proceedings. She has been unwilling to facilitate the relationship because she believes the father has little capacity or willingness to adequately care for the children.

Section 60CC(3)(d) - the likely effect of any changes in the children’s circumstances

Giving the father authority over long term issues for the children, including their physical and psychological health and their education, will have quite an impact. The children are used to being regularly taken to the doctor. They are also used to living in a home where extreme measures are taken to avoid the perceived threat of allergic response by J.
They do not eat food other than that prepared in the home by their mother when they are in her care, which is most of the time. They do not go out to eat. All foods containing any trace of nuts or eggs are excluded from the household. There are rules of hygiene imposed on the children to eliminate the possibility of contamination. There is no evidence to support the need for these extreme measures, but the children are used to complying with them. They are not required to do so in the father’s household and this appears to elevate their anxiety that the rules as they know them, are not being kept.
They will gradually have to learn that it is safe for them to behave differently and to trust that their father will protect their interests in health and in other ways. They are also likely to experience more consistent limit setting and discipline, however kindly imposed.
These changes will be stressful for the children in the short term and will provide a benefit in the longer term. The father will have to contain their distress. I believe he can, but may need time off work to do so.

Section 60CC(3)(e) - the practical difficulty and expense of the children spending time and communicating with a parent

Other than a change of changeover venue which should make the changeovers less isolated and stressful, there should be no practical difficulties with the children moving between the two households.
Provision has been made for telephone communication.

Section 60CC(3)(f) - the capacity of the children’s parents to provide for the needs of the children, including emotional and intellectual needs

The mother is assessed as having an impaired capacity, that is, that she lacks insight into the impact of her own fears and beliefs on the children. Whilst trying to protect them she puts pressure on them resulting in poor behaviour and rejection of their father, which they do not truly feel.
The mother is devoted to her children. She has a Carer’s Pension for J. This is a matter of utmost concern, J may believe that he is a child with a disability, or come to do so if the situation continues.
The father to some extent is untested, because he has not had the opportunity to spend as much time with the children as he would like to do. However he is assessed by Dr RR as well able to meet the needs of the children, including their health needs, with the ability to manage and set limits on their behaviour.
Ms EE is a kind, affectionate and playful person and the extended paternal family offers the opportunity for relationships with cousins and trips to rural property, which the children greatly enjoy.

Section 60CC(3)(g) - the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children

The children are two boys aged 11 and nine. Their father is from Pakistan. He is a Muslim and practises his faith. He is interested in the children learning more about his religion, language, background and culture.
The mother was born in Australia. She is a Christian and practises her faith. The children will be exposed to the very different backgrounds and culture of their extended family and have the potential to benefit from that broader experience.

Section 60CC(3)(i) - the attitude to the children, and to the responsibility of parenthood, demonstrated by each of the children’s parents

The mother has been inclined to take over the decision making for the children and to exclude the father to a great extent on the basis that he is inadequate to meet the children’s needs. She does not see her own behaviour in that regard as controlling or exclusive. In my view it has been.
The mother is highly motivated to keep the children safe and to ensure that they receive adequate medical attention. Her concern for their health has led to many trips to doctors for relatively minor matters and reluctance to continuously review the state of their health as they grow older and perhaps begin to grow out of problems from their infancy. There is insufficient evidence for me to come to any conclusion about that.

Section 60CC(3)(j) & (k)– any family violence involving the children or a member of the children’s family

There is no family violence order involving the children or any member of the children’s family. The mother very much perceives herself as someone who has suffered from family violence. The reaction she had to the conflict that arose between herself and the father over the children appears to have deepened her negative opinion of the father.

Section 60CC(3)(l) - whether it would be preferable to make the order that would be lease likely to lead to the institution of future proceedings

The orders provide for the children to spend slightly more time with their father during school terms. They will consistently see their mother on a Wednesday, that Wednesday leading into a longer period in each alternate week. They will spend half school holidays and other special times with each parent.
The father will have authority over the areas which have given rise to the highest level of conflict, that is, the medical health of the children, especially J (allergies).
The orders acknowledge the significance of each parent. They do not reflect the recommendation of Dr RR for equal shared time. Slightly more time with the father is to allow greater opportunity to experience him positively and accommodate his different parenting approach.

Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant

Attempts have been made to involve the family in family therapy. They have been entirely unsuccessful and I do not consider that it would be of assistance to either of the parents or the children to make orders for any further therapy.
Dr RR recommended that the children have a rest from being involved in any further therapeutic intervention. The children simply need time to adjust to the new arrangements and take up the opportunity which will be available to develop the relationship with their father, whilst retaining the best of the relationship with their mother, her love and care for them.
An order has been made for a Family Consultant to assist the parties for a period of up to 12 months with implementation of the orders.

Costs

Through the course of proceedings the Independent Children’s Lawyer, tendered a minute of proposed orders including an application that the parties each bear one half of the Independent Children’s Lawyers costs, pursuant to s 117(3) of the Act [24]. I note that the Act requires that the Court disregard the fact that the Independent Children’s Lawyer is funded under a Legal Aid scheme (s 117(5)).
[24] Exhibit 13, Order 15
Having regard to the considerations in s 117(2A) and s 117(4), I consider both parties have the capacity to pay and that there would be no undue hardship in the parties meeting half the costs of the Independent Children’s Lawyer.
I consider it to be just in the circumstances for the parties to meet the costs of the Independent Children’s Lawyer, the appointment being necessitated by the highly acrimonious nature of the parties parenting relationship (see Telfer & Telfer (1996) FLC 92-688 at 83,140).

Accordingly, I make those orders.

I certify that the preceding one hundred and sixty-four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 22 May 2013.

Associate:

Date: 22 May 2013

[2013] FamCA 348

22 May 2013

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Family Law

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