Kellett and Gaylord
[2011] FMCAfam 1025
•13 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KELLETT & GAYLORD | [2011] FMCAfam 1025 |
| FAMILY LAW – Parenting. |
| Family Law Act 1975, ss.60B, 60CA, 60CC(2)-(3), 61DA(2)-(4), 65DAA, 69ZN |
| Collu & Rinaldo (2009) FamCAFC 164 Goode & Goode (2006) FLC 93-286 Marvel (2010) FamCAFC 101 SS & AH (2010) FamCAFC 13 Zabini (2010) FamCA 10 |
| Applicant: | MS KELLETT |
| Respondent: | MR GAYLORD |
| File Number: | SYC 882 of 2011 |
| Judgment of: | Foster FM |
| Hearing date: | 12 September 2011 |
| Date of Last Submission: | 12 September 2011 |
| Delivered at: | Sydney |
| Delivered on: | 13 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hogg |
| Solicitors for the Applicant: | Denniston & Day |
| Solicitors for the Respondent: | Merrick Spicer & Associates |
| Independent Children’s Lawyer: | Legal Aid NSW Sydney Central Family Law |
ORDERS
THE COURT ORDERS PENDING FURTHER ORDER THAT:
All previous parenting Orders be discharged.
The children, X, born (omitted) 2006 and Y, born (omitted) 2007 live with the Mother.
The children spend time and communicate with the Father as agreed between the parties in writing, or in default of agreement, as follows:
(a)On the 3rd and 9th weekend of each school term, commencing 3pm on Friday and concluding 3pm on Sunday, with changeover to occur at Coles in (omitted);
(b)On the 6th weekend of each school term, in (omitted), commencing after school on Friday until 3pm Sunday, with changeover to occur as agreed by the parties, or in default of agreement, at the (omitted) Town Hall and for the purposes of such contact the Mother shall make a reasonable contribution to the Father’s fuel costs;
(c)For the first half of each school holiday period from 3pm on the first day of such holiday period until 3pm on the middle day of such holiday period, with changeover to take place at Coles in (omitted); and
(d)By telephone each Monday and Wednesday at 5pm and each Friday at 5pm, when the children are not otherwise spending time with the Father and for the purposes of such telephone contact, the Mother shall provide to the Father a landline or mobile telephone number upon which the children can be contacted at that time.
Each parent submit to urine analysis testing, no more than once every 3 weeks, under the following conditions:
(a)The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration.
(b)The drug testing shall be broad spectrum including checking for the following substances, alcohol, cannabis metabolites, opiates, sympathomimetic amines, cocaine metabolites, ecstasy and benzodiazepines.
(c)The drug testing shall meet the Australian/New Zealand Standard 4308/2001.
(d)The results shall be provided to the Independent Children’s Lawyer not later than 3 days of receipt by the parties.
(e)Each parent submit to the random drug testing within 48 hours of the parent receiving the request from the Independent Children’s Lawyer, and such request is to be made by the Independent Children’s Lawyer emailing or faxing each parent’s solicitors directly, with the solicitor to notify the parent of the request as soon as reasonably practicable.
Each parent shall meet the costs associated with the urine testing as ordered.
As soon as reasonably practicable the Mother shall obtain for her General Practitioner a mental health referral to a psychiatrist and shall thereafter follow all reasonable directions of her General Practitioner and psychiatrist with regard to any medication and treatment prescribed and the mother shall within 14 days from this date notify the Independent Children’s Lawyer of the details of her General Practitioner and the psychiatrist to which she has been referred.
Both parties are restrained from physically punishing the children while the children are in their care, or allowing any other person to do so.
Neither party shall denigrate the other parent to the children or in the children’s hearing, or allow any other person to do so.
The Mother is restrained from moving the children’s residence from the (omitted) area of NSW, without the prior written consent of the Father, or an Order of this Court.
The Mother shall ensure that the children are taken to any and all specialist and general medical appointments that they are scheduled to attend, including but not limited to: paediatric appointments, psychologist/counselling appointments and podiatry appointments.
Both parties shall ensure that the children take all medications prescribed to them while in their care.
Both parties are to keep other fully informed in relation to address, mobile number, landline number and email address and are to notify the other parent forthwith upon any change occurring.
Each party shall keep the other informed of all medical appointments and medical emergencies that occur while the children are in their care and provide the other parent with contact details of the treating practitioner.
Each parent may receive from the school, copies of all school reports, notices and photographs and may attend at the children’s school for the purpose of discussing progress with staff and accessing info about the children and otherwise are at liberty to attend on any occasion relating to the welfare, education, health, religious education, sporting events or any other events where the attendance of one or both parents would be reasonably expected.
Within 21 days from this date both parties must obtain from the Manager of Child Dispute Services of the Sydney Registry a nomination of an appropriate parenting skills course and thereafter must:
(a)Enrol in the course nominated by the Manager of Child Dispute Services;
(b)Pay the reasonable fees for the course;
(c)Upon completion, obtain a letter as to completion; and
(d)Provide a copy of that letter to Independent Children’s Lawyer and the other party.
Pursuant to s91B of the Family Law Act 1975 the Director-General of the Department of Family and Community Services NSW or their delegate be requested to intervene in these proceedings in relation to the children X, born (omitted) 2006 and Y, born (omitted) 2007.
The Court is to notify the Director General of the Department of Family and Community Services NSW within 48 hours of this Order.
The solicitors for the parties are to forward to the solicitors for the Director-General of the Department of Family and Community Services NSW no later than 4pm on 27 September 2011 copies of documents filed by their respective clients in these proceedings to date.
The Registry Manager of the Sydney Registry allow the Director-General of the Department of Family and Community Services NSW or their delegate to inspect the Court file and the subpoena material upon receipt of such request.
Within 21 days the Mother do all things necessary to re-engage with the Brighter Futures program and within that time provide written confirmation to the Independent Children’s Lawyer of her application to re-engage in that program. Thereafter the Mother obey all reasonable directions of that program.
THE COURT FURTHER ORDERS THAT:
The matter be adjourned to 2 November 2011 at 9:30am for mention in Sydney before Federal Magistrate Kemp.
THE COURT NOTES THAT:
a)It is proposed that there be a Pt 15 Expert appointed and the matter has been stood over until 2 November at 9:30am so as to facilitate discussions about appropriate Orders and funding.
IT IS NOTED that publication of this judgment under the pseudonym Kellett & Gaylord is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 882 of 2011
| MS KELLETT |
Applicant
And
| MR GAYLORD |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings in relation to the children X, born on (omitted) 2006, and Y, born on (omitted) 2007. The proceedings commenced by way of the parties filing an application for consent orders in the Local Court at Taree on 2 December 2010. Pursuant to the application for consent orders, orders were made on 10 December 2010. Those orders provided in short that the parties have equal shared responsibility for the children, that the children live with the applicant father, that the children spend prescribed times with the respondent mother and there were various orders made by way of specific issues orders and the orders were orders by consent pending further order.
Subsequently, proceedings were commenced by the mother by way of an application in a case filed in the Taree Local Court on 19 January 2011. It is that application in a case and the father’s response to that application in a case that have come before the Court for interim hearing in these proceedings. The mother’s application in a case sought orders that the orders made at the Court at Taree be revoked, that the children live with her, that the parties have equal shared parental responsibility for the children and that the father have telephone contact with the children and spend time with the children by agreement, with changeovers to be at the (omitted) road stop, (omitted), New South Wales.
As a consequence of the mother’s application in a case, the proceedings were transferred to the Federal Magistrates Court on 8 February 2011. Subsequently, the father filed a response to the mother’s application in a case, that response being filed on 4 April 2011. In that response, the father sought a dismissal of the mother’s application in a case and a recovery order in relation to the children, seeking their immediate return to his care.
The proceedings were first listed before the Federal Magistrates Court in Sydney on 9 May 2011. On that day, the parties were referred to section 11F counselling and following the conclusion of the counselling it appears that, following negotiations, orders were made by consent, and on 9 May 2011 the Court adjourned proceedings to 22 June 2011, made an order for the appointment of an independent children’s lawyer and made orders by consent in terms of the document signed by the mother and the father on that day.
Those consent orders in relation to the children provided as follows:
(1)that the children live with the mother;
(2)that the children spend time with the father each third weekend from 8.30 am Friday to 3 pm Sunday and for the first half of each holiday school period;
(3)that changeovers take place at the Coles Supermarket at (omitted);
(4)that the father have telephone communication with the children each Monday and Wednesday at 5 pm and each alternate Friday when the children were not otherwise travelling to Sydney with the mother; and
(5)the mother be restrained from relocating the children’s residence from (omitted).
The Court noted on 9 May that the father intended to press his interim application once the independent children’s lawyer became engaged in the proceedings. The proceedings again came before this Court on 22 June 2011. On that day the Court ordered that proceedings be adjourned to 12 September at 2.15 for interim hearing. The Court made directions as to the filing of further updated material and also directed that the parties attend a further 11F conference at 9 am on 12 September 2011.
The Court also on that date made orders by consent which provided as follows:
(1)that the interim orders made on 9 May 2011 continue; and
(2)that each parent submit to urinalysis testing no more than once every three weeks in a prescribed manner at the request of the independent children’s lawyer.
These proceedings thereafter came before me for the purposes of interim hearing on 12 September 2010. In relation to that hearing, the mother relied upon the following affidavits: (1) her affidavit filed on 19 January 2011, being the affidavit filed in support of her interim application when that was filed in the Taree Local Court; (2) an updating affidavit by her filed on 1 September 2011; and (3) an affidavit by Mr D filed on 1 September 2011, that affidavit being an affidavit by her present partner. The father relied upon the following affidavits: (1) his affidavit filed on 8 February 2011 in the Local Court at Taree, (2) his affidavit filed on 4 April 2011, (3) his updating affidavit filed on 31 August 2011.
A short history of the relationship is as follows: The respondent father was on born 8 December 1980; he is currently 30 years of age. The applicant mother was born on 28 October 1981 and she is currently 29 years of age. In 1999, a care order was made in relation to a child of the applicant mother, M. That child was born on (omitted) 1998 when the mother was aged 17 years and, as a consequence of her then circumstances, that child was made a ward of the state and taken into care.
In May 2001, the parties met and commenced a relationship. Some time in 2003, the parties commenced cohabitation in (omitted), New South Wales. On 7 April 2006, the eldest child, X, was born. That child is now five and a half years of age.
On 23 May 2006, there was an incident when the father overdosed on a prescription medication. As a consequence of that overdose, the father was admitted to (omitted) Hospital, part of the (omitted) Area Health Service. His admission records in relation to that incident are before the Court as exhibit E.
The circumstances of that admission, the husband describes in his affidavit material as an accidental ingestion of the prescription drugs. However, notwithstanding the husband’s assertion of such a circumstance, the discharge documents and hospital inpatient records clearly indicate that the overdose of drugs was of a sufficient quantity and accompanied by an intention professed by the father, on his admission, to take his own life. The overdose was sufficiently serious to cause the husband to be medicated, intubated and effectively in a coma for about 10 days whilst in hospital. That, in itself, demonstrates the seriousness of the quantity of drugs that he self-administered.
However, following the father’s release from hospital, the parties resumed their relationship and within 12 months of their relationship there was a further incident between them. The father was charged with common assault on the mother and in proceedings at Taree Local Court the offence was found proved and the offence was discharged upon the father entering into a section 10 reconnaissance to be of good behaviour for a period of 12 months.
The youngest child of the relationship, Y, was born on (omitted) 2007. In late 2007, the parties separated in circumstances where they were at that time living in (omitted). The father asserts that following separation in (omitted) he had time with the children each Sunday. In late 2008, some 12 months after separation, the mother relocated her residence to (omitted), New South Wales, with the children. The father, about one month after her relocation to (omitted), he himself relocated to (omitted) and obtained some employment in that area. Whilst the father was in (omitted) and until about March of 2009, he asserts that he was having regular time with the children. He asserts seeing the children almost each day whilst they remained in the primary care of the mother.
That circumstance came to an abrupt halt on 26 March 2009 when the father once again assaulted the mother. The circumstances of that assault are set out in exhibit I, comprising the police COPS records relating to the incident on 26 March 2009. The police records indicate that the father pushed the mother into a plywood bench causing that bench to break and the mother to fall to the ground, hitting her head. The father then lifted the mother off the floor by her throat, held her around her throat with both of his hands, restricting her breathing. The father eventually let go of the mother and the police subsequently attended at the premises.
As a consequence of that assault, the father was convicted at the Hay Local Court and upon finding the offence proved, the Court, pursuant to section 9 of the relevant legislation, deferred sentence upon the father entering into reconnaissance to be at good behaviour for a period of 12 months. On 6 May 2009, the father was charged with breaching an AVO order which was made in conjunction with the Court’s findings of the assault arising from the incident of 26 March 2009. Subsequently that charge was withdrawn. Following the incidence in mid 2009, the father, about mid-2009, returned to reside in (omitted), leaving the children in the care of the mother in (omitted).
In August of 2009, the mother moved to (omitted), where she was accommodated in emergency accommodation at a women’s shelter, and at about that time the children spent some two weeks with the father. The mother also, in mid-August of 2009, commenced her engagement with the Brighter Futures Program run through the (omitted) Regional Family Services. The documents relating to that early engagement with the Brighter Futures Program are before the Court and comprise exhibit J. It is clear from those documents that, as a consequence of the circumstances she found herself in in 2008 and the first half of 2009 in (omitted), the mother was struggling with two young children and the proper disposition of her parenting responsibilities in relation to those children.
The exhibit indicates that the Brighter Futures Program ceased its contact with the mother in about February 2010, at about the time the mother relocated her residence. Subsequent to the father returning to (omitted) in late 2009, the mother came under notification of the Department of Family and Community Services and documents are before the Court in relation to those notifications. The first notification appears to be a notification in October 2009, following an injury to the child Y.
It appears that that injury was investigated by the department and on 7 October 2009 the department authored a judgment and decision document of that date. That document concluded that the children were safe in their current circumstances with the mother, saying as follows:
X resides with his mother and brother. The injuries sustained by X when he fell from the bed were accidental and his mother did ensure he received appropriate medical protection.
A second factor was noted:
Are the protective factors adequate for future safety?
The departmental officer answered yes.
Ms Kellett, the mother is currently working with the Brighter Futures Lead Agency and has reportedly engaged well with that service. Brighter Futures will be able to provide ongoing support and parenting classes for Ms Kellett and the children.
The department then noted that:
Any protective action by the department can be ceased. Brighter Futures are remaining involved with this family to offer parenting support and domestic violence counselling.
The subsequent notification was on 6 January 2011. That also comprises part of exhibit F. That notification is as a consequence of observations by the mother of bruising and other injuries on both children subsequent to the children being placed in her care for the purposes of holiday time on 19 December 2010. The department noted that the children were interviewed by the investigating police officer and Constable Mr M indicated that, on interviewing the children, the children asserted that the bruises were inflicted upon them by the father hitting them with a spoon.
The departmental documents indicate the mother had photos of the bruising and had previously sought to have the children assessed at the local hospital but they were refused treatment or assessment as a consequence of it being a non-emergency situation. However, it is noted that the department does express some concerns at the delay in the mother’s notification. That delay as yet remains unexplained by the mother in the context of these proceedings.
On 7 January 2010, there was an agreement between the parties that the father would have the children for several weeks over the January holiday break. The children were made available to the father for that time and were taken back by him to (omitted). The children were to be returned to the mother on 28 January 2010. The mother attended at (omitted), being the agreed changeover place, and the children were not returned. The father subsequently advised the mother that he was not returning the children to her care. Thereafter, the mother’s circumstances throughout 2010 remain somewhat unclear.
She gives evidence that she sought urgent legal advice in relation to having the children in respect of whom she had been the primary carer since birth returned to her care. She had made an application for legal aid; that grant had been refused. She had appealed the Legal Aid determination, had been invited to retain her solicitor on a private basis, with the provision of a significant cash sum of which she did not have, and otherwise it appears that, notwithstanding her actions, there seemed to be no direct communication between the parties in relation to the children and the mother’s time or indeed restoring the children to the mother’s care.
The mother, of course, is subject to criticism in terms of not commencing proceedings at an earlier date, notwithstanding her legal aid circumstances. The father, of course, is also subject to criticism, as there is simply no evidence that he made any endeavour, whatsoever, to make the children available to the mother of his own volition unilaterally so that the children’s relationship with the mother would continue, at least during the period that he sought to withdraw them from her care.
Notwithstanding what transpired during 2010, it appears that in August of 2010 there was some offer from the father to facilitate the children having time with the mother, provided she sign some orders. In November 2010, the parties attended mediation and there was some agreement, it appears, relating to the circumstances of the children on an interlocutory basis and that agreement is reflected in the consent orders made at the Local Court at Taree on 10 December 2010.
Subsequent to the orders made at the Taree Local Court on 19 December, the children were placed in the mother’s care for an agreed holiday period until about 9 January 2010. The mother asserts that on the children being returned to her care she noticed scratches and bruises on the children and, as I have said, took the children to the hospital emergency for assistance but was declined assistance at the hospital. The mother asserts that she has taken photos of the children’s bruising and injuries at that time. Subsequently, the mother spent time with the children in (omitted) in circumstances where it appears that the father took it upon himself also to visit that town.
On a number of occasions the mother saw the father in the township of (omitted) and there was little contact between them. That circumstance in itself was distressing to the mother. On 6 January 2011, the mother spoke to a constable from the (omitted) Police and the constable observed the injuries on the children and the children asserted that those injuries were inflicted upon them by the father. As I have said, the constable then notified the department and the department undertook, probably albeit, a brief investigation of that circumstance.
Subsequent to speaking to the constable and to the department, the mother refused to return the children to the father’s care at the conclusion of the agreed time and commenced proceedings by way of application in a case at Taree Local Court as the Court is referred to above. Those proceedings now come before me for interim determination as outlined in terms of the course of the proceedings referred to above. The circumstances are that during the course of these proceedings the father himself has made several further notifications to the department in relation to the children being in the mother’s care.
The first of those notifications appears to have been on 24 February 2011 where the father reported to the department that he had been told by a third person that the child Y had been “flogged” at the primary school by the mother for walking too slow. Regrettably the weight of such notification pales into insignificance as a consequence of the maker of that complaint, who clearly is known to the father, not providing any affidavit material in support of the father’s assertion in the context of these proceedings.
The father’s second notification was, in fact, the following day on 25 February 2011 and the father once again makes a notification in relation to the assertion that the child Y was left unsupervised between 3 pm and 3.45 pm whilst the mother went to school to pick up the child X. That observation was also made by some third person who appears to have communicated that to the father. Once again, that person, who is known to the father, is not on evidence before this Court and so the context of the notification can be given little weight in the context of these proceedings.
The mother’s proposal in relation to these proceedings is that the children reside with her and spend time with the father roughly in terms of the interim orders that are presently in place. She sets out in her affidavit at paragraphs 23 to 28, that is, her affidavit filed on 1 September, her current circumstances. She tells the Court that she is engaged to be married to her present companion on 11 November 2011, that they have been living in a relationship or been in a relationship since late 2009.
They reside in a large three bedroom home where the children have their own rooms and is comfortably and adequately furnished for the children. The children, she says, receive phone calls from the father three times per week and they have had time with the father in accordance with the current orders. The child X is now currently enrolled at (omitted) Public School, where he is in kindergarten, and she observes that the child X seems to be enjoying his current engagement with school.
Before the Court, as exhibit M, is the child’s school report for the half-year 2011 and at the conclusion of that report is the observation by the school as to X’s general progress. That general comment observes as follows:
X has made significant progress in all areas of school life since starting at (omitted) Public School. His social development has improved greatly and he can now cope with change and flexibility more readily. X’s reading and writing skills have also developed well. His understanding of sounds and blending has improved and he now has the skills of an early reader and writer. X’s fine motor skills have also improved and his letter formation and neatness have come along in leaps and bounds. It is a pleasure to teach X. Keep up the great work.
The mother has also facilitated the attendance of the child X at Dr H, a consultant paediatrician with rooms at the (omitted) Hospital, (omitted). Before the Court, as exhibit K, is a medical report prepared by Dr H as a report back to the child’s general practitioner Dr N at the (omitted) Surgery in (omitted). The report observes that on examination Dr H found:
…a pleasant and cooperative young boy who played imaginatively during the consultation with good eye contact and was well grown, with height in the 75th percentile and weight in the 50th to 75th percentile. Systems are unremarkable, including his pragmatic language.
The doctor makes observations in relation to some suggestion that the child may suffer from some attention disorder and also suffers historically from long history of nocturnal limb pains. Dr H recommends that X be reviewed again in about four months time but there be some school counselling engaged in relation to the child in terms of his learning circumstances. The mother has facilitated that counselling taking place and before the Court, as exhibit L, is the school counsellor’s report from (omitted) Public School by Ms W, that report dated 5 May 2011.
I observe that the report is extensive in relation to the child undertaking a series of objective tests and, perhaps to some satisfaction for the parents in this case, the school counsellor observes that the child is functioning in the high average intelligence range. His overall thinking and reasoning abilities are equal or better than 79 per cent of children of his age. The child presented as a friendly and talkative boy. No difficulty in establishing rapport for any of the assessments and he happily left his classroom to walk to the counsellor’s office.
The counsellor did observe that the child was somewhat fidgety during assessment and noted that the child would indeed, in due course, need to be redirected to various tasks during the course of the assessment. The child was referred following X’s teacher expressing concern about his receptive and expressive language delay, difficulty following instructions, crying easily and frequently and difficulty mixing with other students. The counsellor observes that X had previously been diagnosed as showing signs of Asperger’s syndrome and ADHD and that X was to be reviewed in relation to this aspect of his development in due course.
The counsellor’s report is optimistic in relation to the wellbeing of the child X and certainly shows that, in terms of Dr H and the school counselling, that the mother has engaged appropriate services on behalf of the child whilst the child has been in her care. Otherwise, the mother’s affidavit is supported by her partner Mr D. Mr D is in full-time employment as a full-time (omitted) and gives evidence in his affidavit of a significant engagement into the day-to-day lives of the subject children, to the extent that he has been involved in attendances at the children’s therapeutic interveners and has been involved, of course, in the travel to facilitate the children meeting the father for the purposes of his time with the children.
Mr D gives evidence as to the engagement of the children with Ms C, a podiatrist, who the children saw on 28 July 2011 and, I assume, will continue to see. Also the children or the child X has been engaged with an optometrist, Mr T, who travels to (omitted) once a month. In addition, the children have now seen Ms T, a child psychologist, for counselling. The first of those appointments was on 12 August 2011. No documents have been produced on subpoena by the children’s counsellor. The independent children’s lawyer, I think, expressing to the Court the view that she would rather not at this stage interfere with that therapeutic relationship by forcing a production of documents before the Court at an early stage.
The father’s proposal is that the children are returned to reside with him in (omitted) and that, pursuant to the orders made at the Taree Local Court, time between he and the mother or the children and the mother be simply as agreed between the parties. The independent children’s lawyer has provided to the Court a minute of order sought by her.
She seeks orders that the previous parenting orders be discharged, that there be equal shared parental responsibility for the children, that the children live with the mother and that the children spend time and communicate with the father on three weekends during each school term – two of such weekends to be in (omitted), one to be in (omitted) – and that otherwise the father have time during half of the school holidays with the children and telephone contact.
The independent children’s lawyer also seeks a continuation of the arrangements in relation to urinalysis, that the mother obtain a referral to a psychiatrist for ongoing specialist attention in relation to her mental health and parenting difficulties; that both parents be restrained from physically punishing the children; neither parent denigrate the other parent to the children or in the presence of any other person; the mother be restrained from moving the children’s residence from (omitted), the mother ensure that the children are taken to all their specialist and counselling appointments; that both parents ensure the children take all prescribed medications; that both parents keep each other informed of their address, mobile telephone number, landline telephone number and email address and notify the other of any change; that each parent be informed of all medical appointments and emergencies; that each parent receive, from the school, copies of all reports and may attend at the children’s school for the purposes of discussing progress and other activities that parents would be able to attend; that the parents enrol in a parenting skills course; and there will be a notification to the Department of Family and Community Services in relation to the circumstances of these children.
During the course of the interim hearing, the family consultant gave evidence. Prior to giving evidence, the family consultant had produced two reports. The first of the reports was dated 9 May 2011 and was admitted into evidence as exhibit D. The report noted a number of concerns and, of course, clearly outlined that the major dispute between the parties was the living circumstances of the children and who would be the resident parent.
The issues noted by Ms R, the family consultant, were geographical distance, that is, that the parties live respectively for the mother in (omitted) and the father (omitted); allegations from both parties regarding physical abuse of the children and the risk of physical and emotional harm, the mother reporting that the children had disclosed to them in December 2010 the injuries caused by allegedly the father striking the children with a spoon and, in fact, some scarring on the child Y’s stomach with a nail at the instigation of the paternal grandfather.
The father denies those allegations. The father reported concerns that the mother had harmed the children in the past, causing the children to miss medical appointments, has moved away from extended family, and the mother denies all allegations in relation to physical abuse of the children or that the children are at risk with her.
The father also noted the children’s maternal grandmother had little or no contact with the children. Both parties made allegations in relation to mental health issues and suicide attempts as referred to above in my reasons for judgment. Both parties made allegations to the counsellor as to histories of drug misuse, although neither party raised any current concerns in relation to the other. Both parties raised allegations to the consultant about neither party adequately addressing the medical needs of the children. The mother reports the children were scared of the father.
The mother alleges a history of controlling behaviour and violence perpetrated by the father and that the children had witnessed this violence historically. The other concern, of course, was over the past two years, prior to the report in May 2011, the family consultant noted that the children had spent periods between 4 and 12 months living with one parent and not seeing the other parent, with only sporadic phone contact. It is possible, notes the family consultant, that this has caused significant stress for the children and there are a number of observations as to the children’s behaviour in some of the subpoenaed material before the Court that clearly indicate that the children have been adversely affected by their various movements, lack of stability and absences from each of the parents from time to time.
The consultant in the memorandum of May 2011 recommended there be a family report prepared and an independent children’s lawyer be appointed. On 9 May, as referred to above, the parties themselves agreed, subject, of course, to the father’s reservation that he would press his application for residence of the children following the appointment of the independent children’s lawyer, that the children would remain resident with the mother and there would be certain arrangements in relation to the father spending physical time and telephone contact with the children.
The parties subsequently attended again upon the family consultant on 12 September 2011. Once again, the issue was noted by Ms R as an issue as to with whom the children shall live. The issues that were impeding resolution were, of course, that each parent considered they were better able to care for the children and that there were potential risks alleged one against the other in relation to the children being in each other’s care. There were certain issues noted for the children. One was that there had been the commencement of disrupted toileting since the children had commenced seeing the father pursuant to the interim orders made in May.
The other issues related to instability referred to above; possible trauma to the children, involving an observation of violence between the parents; the father’s allegation of physical abuse of the children. The extent of their relationships with the mother and the father were not known as the children were not seen in observation. The father alleged that the children would be exposed to the mother’s unstable mental health, the reporter noting that the mother acknowledged that she had in the past struggled but now, with the support of her partner, is much more stable.
She, as at 12 September, indicated she was not accessing any services and was not on any medication. The reporter observed that she presented well in interview and did not exhibit any signs of being unstable and showed some insight into her past problems. The other issues noted for the children were the unknown influence of the stepfather, that is, the mother’s partner. He, of course, has given evidence in the proceedings and I have made reference to that. There also was observed an unknown influence of the paternal grandparents, particularly in relation to the allegations of abuse by the paternal grandfather on the child Y.
Other issues for the children were, of course, that X is now in school and has commenced counselling through the school and privately and that Y has also commenced counselling with the counsellor referred to above. As a consequence of her observations, the family consultant simply noted that a family report should be ordered. As a consequence of that, the family consultant was invited to attend and gave oral evidence before the Court. In cross-examination by the independent children’s lawyer, the family consultant conceded that from information on the subpoenaed material, historically it was clear that the mother had struggled with the care of the children.
However, observed the consultant, the mother had now accessed appropriate services and is receiving appropriate medical and counselling services for the children. The consultant was asked whether there are any risk issues in her observation for the children with the mother and the consultant replied that, of course, historically there was a mental health consideration and made a reference probably unqualified but that the mother may have had a borderline personality disorder.
The consultant was encouraged by the engagement of the mother in the Brighter Futures Program, although the Court does note that her engagement with that program ceased effectively upon the children being withdrawn from her care by the father in 2010. The Court would certainly be minded in any circumstance to recommend an order that the mother re-engage with the Brighter Futures Program, in the context of these proceedings. The family consultant also conceded, as she said in her report, that the mother was very upfront about her past struggles with her parenting in relation to the children and that her life with her current partner has now made her more able to cope and placed her in a better circumstance.
In relation to risks with the father, there is historically an issue in relation to his suicide attempt and clearly in the affidavit material the father has made reference to that in a way which seeks to diminish what was, in fact, when one looks at the subpoenaed material, a most life-threatening and overt attempt to end his life. In relation to the impact or risk to the children, there is always, said the consultant, if the father experiences depression and exhibits self-harm tendencies, that may place the children at risk if in his care.
In relation to the toileting issues, the consultant said that was more a matter for the paediatrician to address and, no doubt, that in the context of the present consultations with Dr H that will be raised with Dr H or such paediatrician as the father may, if the children return to his care, seek to engage the children with. The consultant was asked questions in relation to the issue of travel and quite properly conceded that, on either side of the ledger in terms of whether the children live with the father or live with the mother, the travel issue is problematic simply by reason of the distance.
To some extent, should the children remain with the mother, that is an issue that can be addressed by the father having weekend time, should he so choose, with persons in Sydney who he has previously spent time with as set out in his affidavit, or indeed, should he be able – it appears that he also has friends and acquaintances in (omitted), who are referred to in his affidavit material – he would be able to have time, if he was voluntarily wishing to seek to reduce travel time, he could seek to have some time in (omitted) with the children by the agreement of the mother. However, the consultant did say that contact should continue as often as possible for either party with these children.
It was put to the family consultant, in the context of the father’s historical mental health issues, that, in circumstances where he would be living with the children’s grandparents, if that would provide to some extent a protective measure, and the consultant agreed that that, in fact, would be the case. I note that the father’s proposals are that he will either continue to live with his parents in (omitted) or obtain a home unit where he would live separately from them with the children but I think the inference is that he would still engage with his parents on a regular basis.
The law in relation to interim parenting proceedings is well settled. More particularly, the Full Court of the Family Court of Australia has recently revisited the issue in the decision of Marvel (2010) FamCAFC 101. In that decision, the Court was dealing with an appeal for an interim parenting order and the Full Court observed at paragraph 78:
At paragraph 56 in Goode the Full Court explained:
In our view the Act makes it clear that when a parenting order is sought, whether it be an interim or final order, the starting point is the application of a presumption that it is in the best interests of the children that the children’s parents have equal shared parental responsibility as expressed in section 61DA, subject to the qualifications in subsections (2), (3) and (4).
The Full Court also discussed 61DA(3) in Goode & Goode and concluded at paragraph 78:
The combination of the Revised Explanatory Memorandum and the comments of the House of Representatives Standing Committee on Legal and Constitutional Affairs suggests that 61DA(3) provides a discretion not to be exercised in a broad exclusionary manner, but only in circumstances where limited evidence may make the application of the presumption, or its rebuttal, difficult. In this case for example, we respectfully agree with his Honour’s decision that this consideration meant it was inappropriate to apply the presumption.
The Court in Marvel went on to say:
As further explained in Goode if the presumption applies “it triggers the application of section 65DAA”.
Those provisions are commonly referred to in the context of these proceedings as the statutory pathway.
The Full Court said at 86 in Marvel:
On the material we have read there were so many factual matters in dispute and little uncontested evidence, it could well have been appropriate for his Honour to have found:
a) he was asked to make a parenting order;
b) the presumption should apply (as it was not rebutted or not in the children’s best interests); but
c) because of the nature of the material before him it was inappropriate to apply the presumption and that 61DA(3) should apply.
The Full Court went on to say at paragraph 87:
The legislative pathway to be considered since the amendments in 2006 is convoluted. It has been aptly described by Warnick J in Zabini (2010) FamCA 10 as “a dilemma of labyrinthine complexity”.
In considering the issues in Marvel, the Full Court made these general observations in relation to interim proceedings at paragraphs 119 to 123:
We acknowledge that the legislation since the amending Act is complex and does not in any significant way differentiate between matters which must be taken into account in a final hearing or those at an interim hearing.
As has frequently been emphasised in interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing pursuant to the provisions of section 61DB.
The issue of when the makings of findings on contested evidence will constitute appealable error has been considered in a number of Full Court decisions (see Goode at paragraph 82(d)).
The Full Court then went on at paragraph 122 to say this in Marvel:
In SS & AH (2010) FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 the reasons the care necessary to be exercised in making findings in interim parenting proceedings…:
In our view, findings made at interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.
Later at paragraph 100 in SS & AH, their Honours amplified their comments and said this:
The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence from being tested. Apart from relying upon uncontroversial or agreed facts, the judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible in dealing with the immediate welfare of children simply to ignore an assertion because inaccuracy has been put in issue.
The Court in these proceedings has had regard to the objects and principles set out in section 60B of the Act and the principles for conducting child-related proceedings set out in section 69ZN and the paramountcy of the best interests of the children set out in section 60CA.
In the circumstances of this matter, the Court is confronted with a number of issues. The matter involves significant issues of fact, allegations of parental conflict, parental and child abuse, drug abuse, parental capacity and violence. None of these matters can be resolved by the Court today in the context of the interim hearing, save for such of those issues to the extent that they are resolved by the documents exhibited in the proceedings, particularly the father’s prosecution and penalties imposed by him in relation to instances of domestic violence alleged by the mother.
But the Court in these proceedings is not prepared to apply the presumption in section 61DA, and the presumption is precluded or is excluded by application of section 61DA(3). In those circumstances, the Court proceeds to consider the best interests of the children by reference to the best interests consideration set out in section 60CC of the legislation. The primary considerations to best interests are set out in section 60CC(2). They are, of course, firstly the benefit to the children of having a meaningful relationship with both of the children’s parents and, in this case, more importantly, the need to protect the children from physical or psychological harm or from being subjected to or exposed to abuse, neglect or family violence.
In respect to those issues, the Court has regard to the observations made by the Full Court in Collu & Rinaldo. In that decision, the Full Court considered it more appropriate for a Court to consider the additional considerations set out in 60CC(3) and then turn to the primary considerations in section 60CC(2), as many of the considerations will overlap. In section 60CC(3), the additional considerations are as follows:
(a) any views expressed by the children.
In these proceedings, the children are of tender years. There is no objective evidence in relation to their wishes, nor would the Court in these circumstances expect there would be. The father gives evidence, as does the mother, of the children’s behaviour and distress to changeovers, and it is not surprising, bearing in mind the movements in the last three years of these children’s lives, that they would be upset or exhibit behavioural manifestations as a consequence either separating from or coming into contact with the other parent until such time as their circumstances settle down.
(b):
the nature of the relationship of the children with each of the child’s parents.
It is clear that until the father’s unilateral withdrawal of the children from the mother in January 2010, the mother was the primary carer for the children. Following separation, the mother continued to reside in (omitted), the father, on his own evidence, was having time with the children each Sunday. Following the mother’s move to (omitted), shortly followed by the father’s own relocation to (omitted), the mother maintained her role as primary carer for the children, subject to the father having much more time with the children because he was living in closer circumstances in (omitted).
But it would be a strong inference that the children continue to be primarily attached to the mother. They have now been back in the mother’s primary care since December 2010, in circumstances where they have only more recently commenced spending regular time with the father. Clearly the children also have a significant and substantial relationship with the father. That is by reason of the children living with the father for that block period during which he withdrew the children from the mother between January and December 2010. The mother’s relationship with the children to some extent has been touched upon by her own concessions as to her shortcomings in terms of her parenting ability and she attributes much of that to the nature of the conflictual and violent relationship with the father.
Those issues probably remain to be determined at a final hearing. There is no doubt that the children have a relationship with their paternal grandparents in respect of which they have time when they are in (omitted) with the father. Significantly, and as set out in the affidavit of Mr D in the proceedings, the children appear to have a significant relationship with him in circumstances where, indeed, they go out to the farm where he is engaged to work on weekends when they are not with their father and also they have, it appears, significant contact with Mr D’s brothers and sisters and their children, who all live in the (omitted) area. There are four step-aunts and uncles who between them have nine children and it appears from what Mr D says that the children are in close contact with that extended family on a regular basis.
The next factor:
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent.
Well, the Court can only say that neither parent comes before the Court with any credit in relation to this issue. Firstly, the mother appears unilaterally relocated to the (omitted) area. That may or may not have been as a consequence of the ongoing conflict and the nature of the relationship between her and the father following separation in (omitted). That is yet to be tested at a final hearing.
The father then, to his credit, relocated himself to (omitted), where he was able to obtain some employment. But it is clear that the nature of the parties’ relationship remained strained, conflicted and touched with violence as a consequence of the police charges that flowed whilst the father was in (omitted). The parents now exhibit a willingness to agree to orders, provided they get residence of the child, that the other parent have regular and defined times with the children. The Court considers that in the present circumstances, the willingness and ability of each of the child’s parents to facilitate the children’s relationship with the other remains problematic and probably will only be facilitated at this stage by the making of appropriate orders.
(d):
the likely effect of any changes in the children’s circumstances.
The children since December 2010 have been in a stable circumstance in (omitted). Fortunately, and probably a factor that has assisted the mother’s parenting capacity, the oldest child has now started school and, notwithstanding the various observations of that child by both the mother and the father in relation to asserted behavioural issues, one can only say that the child’s school report, as an exhibit, demonstrates some optimism and encouragement that this young man has taken to school favourably and will continue to grow and develop, should he remain in the same circumstances, at least into the foreseeable future.
The eldest child has support and other services in terms of his paediatrician, podiatrist, counsellor, optometrist all engaged in his present circumstances where he is living with the mother and, of course, a removal of him from those present circumstances would be significantly disruptive and effectively mean a complete change in his medical and counselling and therapeutic intervention arrangements.
The youngest child continues to be at preschool kindergarten. He, of course, continues to be in the same settled arrangement as his elder brother with his mother. No doubt there is a prospect that he will start school next year at the same school as X, provided he has the maturity to commence as a May baby. He is also engaged in therapeutic and medical intervention in the (omitted) area, particularly in relation to his physical deformity, and counselling services are provided. It is the Court’s view that any interlocutory further change in the child’s circumstances would be detrimental to the children. That is an opinion that was given by the counsellor during the course of her oral evidence.
(e):
the practical difficulty and expense of the children spending time and communicating with a parent.
Well, the temporal and distance difficulties of contact have been referred to above. There is little that the Court can do in relation to that, except hope that perhaps the father will see his way clear to perhaps exercising some time with the children in Sydney or even taking the opportunity of having weekend or other time with the children in the (omitted) area if he can obtain accommodation with friends. That will be a matter for him and for him to weigh that as against his view of the children’s best interests. But as a consequence of the distance, certainly with whom the children reside will mean that the children are not able to have an alternate weekend or substantial and significant time arrangement with the other parent.
(f):
the capacity of each of the child’s parents...to provide for the needs of the children including emotional, intellectual needs.
In relation to each of these parents, a determination of that issue remains problematic. There are allegations one against the other. There are documents that need to be before the Court in due course. It is noted in the material before the Court that the mother, her partner and the children have recently undertaken or commenced to undertake a full family assessment through the Department of Family and Community Services. The outcome of that assessment no doubt will be before the Court in due course and will be the subject of consideration by a single expert. But at this stage, it is the Court’s opinion that the mother has demonstrated, in her present circumstances with her partner and living in (omitted), a proper capacity to provide for the needs of the children, including their emotional, intellectual needs.
As to the father’s capacity, the Court finds that that, indeed, is problematic, as to what would happen if the children were in his care and what approach he would take in relation to the mother’s time with the children and their relevant medical needs. He does give evidence that during the period that he had the children, he commenced to engage the children in appropriate services but, as a consequence of the mother’s withdrawal of the children from him, that never satisfactorily commenced.
Paragraph (g) is not relevant to the present proceedings.
Paragraph (h) – there is some aspect of aboriginality in the background of the father, I think in these proceedings, but this factor at this stage of these proceedings is not relevant.
Factor (i):
the attitude to the children, and the responsibilities of parenthood, demonstrated by each of the child’s parents.
Neither of the parents come out with a glowing result in considering this factor. The mother, for her own reasons, in 2009 was engaged in effectively refuge circumstances. The suggestion is that that is as a consequence of the conflict and violence shown during the course of the ongoing relationship following separation and her own personal circumstances and financial circumstances. She has now restored some sense of solidity to her arrangements with the children and she has proposals to marry her present partner in November of this year.
Historically, the Court could say that neither of these parties have exercised or demonstrated appropriate attitudes and responsibilities. It appears only now, in the context of the children’s present circumstances and in the context of these proceedings, that the parties are properly addressing this issue. However, I think at this stage that this factor favours the mother.
Subfactor (j):
Any family violence involving the child or a member of the child’s family.
There is no doubt that the relationship between the father and the mother during cohabitation and post separation was marked by incidents of conflict and at least two incidents of violence which have been the subject of police prosecution and Court findings. This factor favours the mother. At present, there is no family violence order as between the parties and, indeed, the father’s bond, arising out a most serious assault on the mother in 2009, has now expired.
Subfactor (l):
whether it would be preferable to make any order that would be least likely to lead to the institution of further proceedings.
Well, these are interim proceedings. It is clear that these proceedings are going to move on to a final hearing and the Court – this factor has no relevance.
…any other fact or circumstance the Court thinks is relevant.
This factor has no relevance.
I then turn to look at the primary considerations. The primary considerations, of course, are the benefit to the children having a meaningful relationship with both of the children’s parents. It is unfortunate that, firstly, for the period the children were unilaterally withdrawn from the mother by the father in 2010, the father had not had regard to this issue. He showed scant regard to this issue in the 9 months or 10 months or so the children were with him.
Notwithstanding the mother’s professed difficulties in being able to facilitate the commencement of proceedings to seek to return the children to her care, the father gives no evidence at all of any endeavour to facilitate face-to-face time between the children and the mother, other than some comment that he was able to at least facilitate some telephone time.
The mother, of course, withdrew the children from the father in December 2010 in circumstances where she had concerns as to their welfare. But these children deserve to have a meaningful relationship with both parents and, of course, a meaningful relationship is not in terms of quantity but, as the Full Court has held, is more an issue in relation to qualitative assessment of the children’s relationship with the parents and how that relationship can be variable to the children.
In the present circumstance, the Court finds that it is significant for the children to continue to have a meaningful relationship with the mother in the context of her remaining to be in circumstance of stability as their primary carer. The nature of that relationship is very valuable to the children at this particular time in this interlocutory stage. But the children deserve to have, and will benefit from, a relationship with the father much along the lines of what has been happening since orders were made in May pending final hearing of these proceedings.
The Court also needs to consider the need to protect the children from physical or psychological harm or from being subjected to, or exposed to, abuse, neglect or family violence. There are allegations one against the other in relation to these. Fortunately, in relation to the mother, those allegations in 2008 and 2009, as to some shortcomings in her parenting capacity, are historical. There has been a more recent incident, as I have referred to, in relation to the child, which was looked at by the department and the department assessed that there was no risk to the eldest child in relation to the injury to his face.
The mother’s circumstances now are stable, in a solid relationship, in comfortable accommodation, with one of the children in formal education and the other in preschool. The only concern that the Court has in relation to the mother’s circumstances is, of course, I think as she rightly concedes, her own circumstance where she has taken herself off her medication and, whilst presenting well to the family consultant on 12 September 2011, it is the Court’s view that she should still have some supervisory mechanism in relation to her psychological and psychiatric well-being. The Court will make orders in regard to that at the instigation of the independent children’s lawyer.
In relation to the risk to the children with the father, the matters touching upon that issue have been dealt within the reasons for judgment above. The father has a history of one significant mental health episode. There has been, in the exhibited material, some other contact with the mental health unit of the area health service only involving an assertion as to depression, and the Court finds there is nothing arises from that of any consequence.
The father asserts that he suffers from no mental illness at the moment and, of course, the incident that is complained of is now some five years ago. However, the father, in any event, has a close involvement with his parents, at present living with them in (omitted), and notwithstanding his proposal that he may in fact have time with the children whether they reside with him or otherwise in a home unit near (omitted) that is owned by his brother, I think the inference is that he will still have a close and ongoing relationship with his parents. That provides, in the Court’s view, appropriate control and protective measures should there be any subsequent episode involving the father.
The importance of the mother continuing to engage the children in their medical and therapeutic interventions cannot be understressed. These children, leaving aside the issues, the impacts on these children of the relationship between the parties and the respective deprivations of the children from the other party unilaterally in the more recent history, these children have significant other issues and they need to be monitored and continually assessed to ensure the appropriate development of these children in a proper fashion.
No doubt, through the intervention of Dr H and the school counsellor, that is well in hand in relation to the eldest child and, of course, the intervention of the child psychologist in relation to both children will continue to see the children receive appropriate counselling, which will touch upon, hopefully, any functional overlay being suffered by the children as a consequence of the conflictual and violent relationship between the parties and the children’s significant dislocations of more recent history.
Overall, the Court is of the view that on an interlocutory basis the children should remain in their present circumstances. That is the recommendation of the family consultant. On the preponderance of the best interest considerations, that is clearly what should happen, and in considering the primary considerations, the Court comes to the conclusion that those objectives and considerations can be achieved by the children remaining in their present circumstances with appropriate orders.
ORDERS DELIVERED
THE COURT ORDERS PENDING FURTHER ORDER THAT:
All previous parenting Orders be discharged.
The children, X, born (omitted) 2006 and Y, born (omitted) 2007 live with the Mother.
The children spend time and communicate with the Father as agreed between the parties in writing, or in default of agreement, as follows:
a)On the 3rd and 9th weekend of each school term, commencing 3pm on Friday and concluding 3pm on Sunday, with changeover to occur at Coles in (omitted);
b)On the 6th weekend of each school term, in (omitted), commencing after school on Friday until 3pm Sunday, with changeover to occur as agreed by the parties, or in default of agreement, at the (omitted) Town Hall and for the purposes of such contact the Mother shall make a reasonable contribution to the Father’s fuel costs;
c)For the first half of each school holiday period from 3pm on the first day of such holiday period until 3pm on the middle day of such holiday period, with changeover to take place at Coles in (omitted); and
d)By telephone each Monday and Wednesday at 5pm and each Friday at 5pm, when the children are not otherwise spending time with the Father and for the purposes of such telephone contact, the Mother shall provide to the Father a landline or mobile telephone number upon which the children can be contacted at that time.
Each parent submit to urine analysis testing, no more than once every 3 weeks, under the following conditions:
a)The drug testing shall be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration.
b)The drug testing shall be broad spectrum including checking for the following substances, alcohol, cannabis metabolites, opiates, sympathomimetic amines, cocaine metabolites, ecstasy and benzodiazepines.
c)The drug testing shall meet the Australian/New Zealand Standard 4308/2001.
d)The results shall be provided to the Independent Children’s Lawyer not later than 3 days of receipt by the parties.
e)Each parent submit to the random drug testing within 48 hours of the parent receiving the request from the Independent Children’s Lawyer, and such request is to be made by the Independent Children’s Lawyer emailing or faxing each parent’s solicitors directly, with the solicitor to notify the parent of the request as soon as reasonably practicable.
Each parent shall meet the costs associated with the urine testing as ordered.
As soon as reasonably practicable the Mother shall obtain for her General Practitioner a mental health referral to a psychiatrist and shall thereafter follow all reasonable directions of her General Practitioner and psychiatrist with regard to any medication and treatment prescribed and the mother shall within 14 days from this date notify the Independent Children’s Lawyer of the details of her General Practitioner and the psychiatrist to which she has been referred.
Both parties are restrained from physically punishing the children while the children are in their care, or allowing any other person to do so.
Neither party shall denigrate the other parent to the children or in the children’s hearing, or allow any other person to do so.
The Mother is restrained from moving the children’s residence from the (omitted) area of NSW, without the prior written consent of the Father, or an Order of this Court.
The Mother shall ensure that the children are taken to any and all specialist and general medical appointments that they are scheduled to attend, including but not limited to: paediatric appointments, psychologist/counselling appointments and podiatry appointments.
Both parties shall ensure that the children take all medications prescribed to them while in their care.
Both parties are to keep other fully informed in relation to address, mobile number, landline number and email address and are to notify the other parent forthwith upon any change occurring.
Each party shall keep the other informed of all medical appointments and medical emergencies that occur while the children are in their care and provide the other parent with contact details of the treating practitioner.
Each parent may receive from the school, copies of all school reports, notices and photographs and may attend at the children’s school for the purpose of discussing progress with staff and accessing info about the children and otherwise are at liberty to attend on any occasion relating to the welfare, education, health, religious education, sporting events or any other events where the attendance of one or both parents would be reasonably expected.
Within 21 days from this date both parties must obtain from the Manager of Child Dispute Services of the Sydney Registry a nomination of an appropriate parenting skills course and thereafter must:
a)Enrol in the course nominated by the Manager of Child Dispute Services;
b)Pay the reasonable fees for the course;
c)Upon completion, obtain a letter as to completion; and
d)Provide a copy of that letter to Independent Children’s Lawyer and the other party.
Pursuant to s91B of the Family Law Act 1975 the Director-General of the Department of Family and Community Services NSW or their delegate be requested to intervene in these proceedings in relation to the children X, born (omitted) 2006 and Y, born (omitted) 2007.
The Court is to notify the Director General of the Department of Family and Community Services NSW within 48 hours of this Order.
The solicitors for the parties are to forward to the solicitors for the Director-General of the Department of Family and Community Services NSW no later than 4pm on 27 September 2011 copies of documents filed by their respective clients in these proceedings to date.
The Registry Manager of the Sydney Registry allow the Director-General of the Department of Family and Community Services NSW or their delegate to inspect the Court file and the subpoena material upon receipt of such request.
Within 21 days the Mother do all things necessary to re-engage with the Brighter Futures program and within that time provide written confirmation to the Independent Children’s Lawyer of her application to re-engage in that program. Thereafter the Mother obey all reasonable directions of that program.
THE COURT FURTHER ORDERS THAT:
The matter be adjourned to 2 November 2011 at 9:30am for mention in Sydney before Federal Magistrate Kemp.
THE COURT NOTES THAT:
a)It is proposed that there be a Pt 15 Expert appointed and the matter has been stood over until 2 November at 9:30am so as to facilitate discussions about appropriate Orders and funding.
I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of Foster FM
Date: 13 September 2011
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