LAMBERT & ADAMSON (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMBERT & ADAMSON (No.2)

[2013] FCCA 276

Catchwords:
FAMILY LAW – Parenting – parental responsibility – whether children should live with mother or father – spend time arrangements contingent upon residence outcome – acrimonious parental relationship – children from Aboriginal and (omitted) cultures.

Legislation:
Family Law Act 1975, ss.4, 60CA, 60CC, 61B, 61C, 61DA, 64B, 65DAA

In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713
Lambert & Adamson [2011] FMCAfam 1116
McCall & Clark [2009] FamCAFC 92

Applicant:

MS LAMBERT

Respondent:

MR ADAMSON

File Number:

PAC 322 of 2009

Judgment of:

Judge Monahan

Hearing dates:

2, 3 and 4 April 2012; 30 July 2012

Date of Last Submission:

2 May 2013

Delivered at:

Sydney

Delivered on:

31 July 2013

REPRESENTATION

Counsel for the Applicant:

Ms Druitt

Solicitors for the Applicant:

Dignan & Hanrahan

Counsel for the Respondent:

Not Applicable

Solicitors for the Respondent:

Legal Aid NSW

Counsel for the Independent Children’s Lawyer:

Mr Guterres

Solicitors for the Independent Children’s Lawyer:

Ross A Clarke & Associates

ORDERS

All previous parenting orders be discharged.
The parties have equal shared parental responsibility for X, born (omitted) 2007, and Y, born (omitted) 2009, (“the children”).
Subject to paragraph 4 herein, the children live with the father.
The father and the children remain living with, and in the home of, the paternal grandmother and the father ensure the children sleep in their own bedroom at the paternal grandmother’s home.
The children spend substantial and significant time with the mother as agreed between the parties or, failing agreement, as follows:
(a)during NSW gazetted school terms each alternate weekend commencing on the first Friday in each school term, on Friday from after school (or 3:00pm if a non-school day) until Sunday at 5:00pm (or until Monday at 5:00pm if any Monday is a non-school day);
(b)during NSW gazetted school holidays each year:
(i)at the end of Terms 1 and 3, for one half of each school holiday period as agreed by the parties or failing agreement, for the first half of the holiday period;
(ii)at the end of Term 2, for the whole of the school holiday period; and
(iii)at the end of Term 4, and subject to paragraph 6(c) herein, for one half of the long summer school holiday period as agreed by the parties or failing agreement, for the first half in years ending in an even number and for the second half in years ending in an odd number;
and for the sake of clarity, paragraph 5(a) herein is suspended during NSW gazetted school holidays and recommences on the first Friday of each NSW gazetted school term.
(c)in the event that the children are not spending time with the mother on their birthdays, such time as may be agreed by the parties or, failing agreement, on the birthday of each child from 10:00am until 3:00pm on non-school days and from after school until 6:00pm on school days;
(d)in the event that the children are not spending time with the mother on her birthday, such time as may be agreed by the parties or failing agreement, on that day from 10:00am until 5:00pm on non-school days and from after school until 6:00pm on school days.
Notwithstanding any other order herein contained and unless otherwise agreed by the parties:
(a)in the event that the children are spending time with the mother on the weekend which includes Father’s Day the time with the mother on that weekend conclude at 5:00pm on Saturday;
(b)in the event that the children are living with the father on the weekend which includes Mother’s Day, the children spend time with the mother from 5:00pm on Saturday until 5:00pm on Sunday of that weekend;
(c)the children spend time with the mother from 5:00pm on 24 December 2013 until 5:00pm on 25 December 2013 and again from 5:00pm on 24 December 2015 until 5:00pm on 25 December 2015; and
(d)the children spend time with the father from 5:00pm on 24 December 2014 until 5:00pm on 25 December 2014;
(e)in the event that the children are spending time with the mother during any (omitted) holy periods, then the time with the mother be suspended as agreed, and failing agreement, the father may, not more than once in any calendar year, give one month’s written notice to the mother seeking to spend time with the children on one specified (omitted) holy day (“the nominated holy day”), and in that event, such time be suspended from 5:00pm on the evening before the nominated holy day and such time resume, if applicable, at 5:00pm on the nominated holy day.
For the purposes of paragraphs 5 and 6 herein, and subject to paragraph 9 herein, all changeovers occur at a suitable public place as agreed between the parties, or failing agreement, at a contact centre as agreed between the parties or, failing agreement, a contact centre as nominated by the Independent Children’s Lawyer.
For the purpose of paragraph 7 herein, where changeover is effected at a suitable public place as agreed and:
(a)where the father is unable to effect changeover, the father may, on reasonable notice being given to the mother, nominate that a suitable third party, such as the paternal grandmother, effect changeover; and
(b)the father (or his nominee) must immediately withdraw once the children come into the mother’s care.
The parties each be restrained from effecting changeover at the residence of either party or allowing any third party to effect changeover at the residence of either party.
The parties each:
(a)have and facilitate reasonable telephone communication with the children when they are not in their care as agreed or, failing agreement, the mother may telephone the children between 5:30pm and 6:00pm on Tuesdays and Thursdays when the children are living with the father and the father may telephone the children between 5:30pm and 6:00pm on Mondays and Thursdays when the children are spending time with the mother.
(b)keep each other informed of their respective telephone numbers (including landline and mobile) and addresses and notify each other within 7 days of any change;
(c)do all such acts and things and sign all documents necessary for each of them to receive all school notices, information newsletters, school reports and school photographs regarding the child directly from the school;
(d)advise the other immediately in the event that the child suffers any serious illness or injury including details as to any medical practitioner, hospital or medical practice attended;
(e)authorise any medical practitioner, hospital or medical practice at which the child may attend from time to time, to communicate with the other party in respect to the child’s medical condition and/or requirements; and
(f)reasonably encourage and facilitate the children participating in any events, gatherings or activities relevant to their Aboriginal heritage as the mother may advise.
Each party be entitled to attend all pre-school, school and extra-curricular activities involving the children, including:
(a)sporting fixtures;
(b)extra-curricular activities that allow for parental attendance;
(c)pre-school and school functions and events that allow for parent attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews and canteen duties.
The parent who has care of the children on the day of any activity referred to in paragraph 11 herein be responsible for the children’s day to day care at such activity and the transportation of the children to and from the activity.
If either parent receives an invitation for either child to attend or participate in a social activity which will take place when the children will be living with or spending time with the other parent then the parent who has received the invitation shall provide the original or a copy of the invitation to the other parent as soon as practicable so that the other parent can reply to the invitation for the child.
Subject to paragraph 15 herein, both parties keep the other informed about the children’s activities, health, education and development through the use of a communication book to be exchanged between the parties each time the children moves from the care of one party to the other, as well as at other times should there be a need for communication about such matters, with such communication book to be initially purchased by the father and replaced by the party with whom the children are living or spending time at the time when the existing communication book is filled (“the communication book”).
The parties each be restrained from writing anything in the communication book which is not related to the children and from using offensive, discourteous or derogatory language in the book.
Each party be restrained from:
(a)using or being affected by any illicit drug or non-prescribed medication whilst the children are in their care;
(b)making any critical, disparaging or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party, to either of the children or in the presence or hearing of either of the children, with such order to include verbal, written or electronic means including email and text message.
(c)allowing any other person or persons to make any critical, disparaging or derogatory remarks about the other party or any member of the other party’s family including any partner of the other party to either of the children or in the presence or hearing of either of the children, such order to include verbal, written or electronic means including email or text message.
(d)physically disciplining the children, or from smacking, hitting, pinching or pushing the children for any reason; and
(e)making any threat to either of the children or from otherwise saying or doing anything in the hearing or presence of either of the children which either of the children might find intimidating or threatening.
The mother be restrained from allowing Mr M to attend any occasion where the father is likely to be present with the children, including changeovers.
In the event that they are unable to reach agreement relating to the children’s long term care, welfare and development, the parties participate in family dispute resolution.
Pursuant to s.13C of the Family Law Act 1975 the parties:
(a)attend and complete, as soon as practicable, a post separation parenting program (“the Program”) at an organisation as agreed or, failing agreement, as recommended by the Information Referrals Officer of the Sydney Family Relationships Centre;
(b)sign all such documents and do all such acts and things as shall be necessary to enrol in, undertake and successfully complete the program;
(c)if applicable, pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of completion of the program to the other party or the other party’s solicitor.
Subject to paragraph 7 herein, the appointment of the Independent Children’s Lawyer be discharged.
All extant applications be otherwise dismissed.

AND THE COURT NOTES THAT:

(A)Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and those particulars are included in these orders.

IT IS NOTED that publication of this judgment under the pseudonym Lambert & Adamson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

PAC 322 of 2009

MS LAMBERT

Applicant

And

MR ADAMSON

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings commenced by the Applicant, MS LAMBERT, (“the mother”) against the Respondent, MR ADAMSON, (“the father”). The parties are in dispute as to the parenting arrangements for the children of their relationship being X, born on (omitted) 2007, (“X”) and Y, born on (omitted) 2009 (“Y”) (together, “the children”).
This matter proceeded to Final Hearing on 2 April 2012, however at the conclusion of the third day, 4 April 2012, it became clear that the matter would require further time. Accordingly, I adjourned the matter part-heard to my next available day on 30 July 2012 (“the Final Hearing”). Although the oral evidence was concluded on that adjourned date, the matter was further delayed by the filing of Applications in a Case following the conclusion of the Final Hearing. This is discussed below.
At the Final Hearing, the mother was represented by her counsel, Ms Druitt, the father by Ms Harland, solicitor, (as she then was) and the Independent Children’s Lawyer (“ICL”) by Mr Guterres of counsel.

Background

Certain background information for this matter has been provided in paragraphs 15 to 20 of my interim decision delivered ex tempore on 30 March 2011 (“the interim decision”).[1] Nonetheless, a more fulsome summary of the parties’ background is set out below.
[1] Lambert & Adamson [2011] FMCAfam 1116.
The mother was born on (omitted) 1976 and is currently 36 years of age. The father was born on (omitted) 1981 and is currently 33 years of age.
The mother has a daughter from a previous relationship, Z (“Z”), born on (omitted) 1995, who recently celebrated her 18^th birthday. Z is not a subject of these proceedings and, at the time of the Final Hearing, was living with her father, Mr T, in Queensland.
It is clear that the parties have had a tumultuous relationship and, as is often the case, the parties differ greatly in their accounts of various events in their relationship. That said, the chronology prepared by the Independent Children’s Lawyer (“the ICL”), whilst not an agreed timeline, assists in understanding the background to this dispute.[2]
[2] ICL’s Case Outline document, pages 3-4.
It would appear that the parties commenced a relationship in (omitted) 2006. X was born on (omitted) 2007. The parties’ second child, Y, was born on (omitted) 2009. The parties both state that they did not live together ‘full-time’ during the course of their relationship as the father spent three or more nights per week with the mother at her home and lived the remainder of the time with his brother in a unit at (omitted).[3]
[3] See the father’s affidavit sworn on 29 March 2012 at [5] and the mother’s affidavit sworn on 27 February 2011 at [4].
The parties finally separated in 2009.[4] Despite this, there is evidence of an ongoing, sporadic, emotional and sexual relationship between the parties which subsisted until a few days prior to the Final Hearing (and even following the Court initially reserving its decision on 30 July 2012 – a curious issue which will be discussed in greater detail below).
[4] See the Amended Initiating Application filed by the mother on 23 March 2012.
Proceedings were initially commenced by the mother in 2009 when she filed an application in the Federal Magistrates Court in Parramatta seeking a recover order. The proceedings were dismissed by Dunkley FM (as he then was) on 4 February 2009 when the mother failed to appear. I note that the father did, however, appear in person on that occasion.
It appears that there was a domestic violence incident in early 2009 with the father alleging the mother was the instigator. In November 2009, the father was arrested for domestic violence and charged with resisting arrest, malicious damage, breach of AVO and assault. Placed on remand for approximately 1 month and then sentenced for 250 hours of community service. Further incidences of family violence are alleged, and indeed are recorded, to have occurred throughout 2010. In particular on 23 December 2010 there was an incident between the parties involving allegedly abusive phonecalls. The police were involved and the Department of Community Services (as it then was) removed the children from the mother’s care and placed them in the care of the father. Since then, the children have continued to live with the father and have spent time, mostly supervised, with the mother.
It appears that both parties have sought AVO’s against the other on several occasions. On 17 January 2011 a final order was made at Bankstown Local Court for the mother’s protection against the father for a period of two years which expired in January 2013.
On 4 March 2011, the mother filed a further Initiating Application, which led to the present proceedings in the Sydney registry of this Court. The matter first came before me in a duty list on 30 March 2011. On that date the parties were afforded the benefit of an urgent Child Dispute Conference (“CDC”), the outcome of which will be detailed below. I also deemed the matter suitable for the appointment of an ICL and, following a brief interim hearing, delivered an ex tempore decision and made Orders that the children live with the father and spend supervised time with the mother, initially by means of a paid professional supervisor (who was to subsequently provide a short report to the parties), and later at a contact centre.[5]
[5] Lambert & Adamson [2011] FMCAfam 1116.
When the matter returned to Court on 27 April 2011, the mother was unrepresented and sought an adjournment to enable her to obtain a new lawyer. The supervised time between the children and the mother had not commenced by that time. On 1 June 2011, the matter was again adjourned, this time to allow the parties the opportunity to formulate a consent minute or otherwise isolate the issues remaining in dispute at an interim stage.
On 17 June 2011, the matter was listed for Final Hearing on 18 July 2012. Trial directions were made and a family report was ordered. At a subsequent mention on 18 August 2011, the Final Hearing listing was vacated and the matter was allocated an earlier listing, this time on 2 April 2012 for 3 days. The family report Order was accelerated accordingly.
As stated, the Final Hearing occurred on 2, 3 and 4 April 2012 and 30 July 2012. Consent Orders were also made following the adjournment of the final hearing part-heard on 4 April 2012 and again following the conclusion of the Final Hearing on 30 July 2012. In summary, the interim parenting Orders agreed to by the parties provided for the children to remain living with the father and spend unsupervised defined time with the mother (that extended to overnight time on and from 4 August 2012).
The interim parenting Orders made by consent following the adjournment of the final hearing part-heard on 4 April 2012 were in the following terms:
“4. The children X, born (omitted) 2007, and Y, born (omitted) 2009, (‘the children’) live with the Respondent.
5. The children spend time with the Applicant each Saturday from 10:00am to 5:00pm, with such time to commence on 7 April 2012.
6. For the purposes of the children spending time with the Applicant pursuant to paragraph three (3) herein:
a. at the commencement of such time the maternal aunt, Ms R, collect the children from the paternal grandmother, Ms M, (‘the grandmother’) or the paternal aunt, Ms F, (‘the aunt’) at McDonalds Family Restaurant, (omitted), NSW, (‘the McDonalds’); and
b. at the conclusion of such time, return the child to the grandmother or the aunt at the McDonalds.
7. During the time that the children spend with the Applicant pursuant to paragraph three (3) herein, the Respondent be restrained from contacting, or being in attendance with, the children.
8. The Applicant ensure that the children do not come into contact with Mr M at any time while the children are in her care.
9. Each party be and is hereby restrained from the following:
a. Denigrating the other party, or any member of the other party’s family, to or in the presence or hearing of the child, or allowing any other person to do so; and
b. Discussing these proceedings with, or in the presence or hearing of, the children, or allowing any other person to do so.”

I also made the following Notations, inter alia, to the interim parenting Orders made on 4 April 2012:
“A. The Independent Children's Lawyer will make one (1) request per month of each of the parties for them to attend supervised urinalysis testing and the parties will each undertake same within 48 hours of the request and forthwith thereafter forward the results to the Independent Children's Lawyer.
B. The parties will enrol in and attend counselling at a place(s) to be recommended by Ms E, family consultant, with the Independent Children's Lawyer to approach her for such recommendation(s).”
The interim parenting Orders made by consent following the conclusion of the final hearing on 30 July 2012 were in the following terms:
“1. The children X, born (omitted) 2007, and Y, born (omitted) 2009, (‘the children’) live with the Respondent.
2. The children spend time with the Applicant as follows:
a. commencing on 7 August 2012, each Tuesday from 10:00am to 5:00pm;
b. commencing on 4 August 2012 and each alternate week thereafter from 10:00am on Saturday until 5:00pm on Sunday; and
c. at such other times as may be agreed between the parties.
3. For the purposes of paragraph 3(a) herein, the Applicant collect the children from, and return them to, the paternal grandmother at the paternal grandmother’s home.
4. For the purposes of paragraph 3(b) herein, the paternal grandmother deliver the children to, and collect the children from, the Applicant’s home.”

Subsequent developments

On 28 November 2012, the Court was in the latter stages of finalising its decision when an email from the mother’s solicitors, copied to the father’s solicitors and the ICL, was received by my Chambers. That email stated:
“Out of courtesy to His Honour I wish to advise that I am in the process of preparing an application in a case to vary the interim orders as the father has been incarcerated and is bail refused.
I anticipate to able to file by Friday, 30 November 2012, on which I will also seek that the matter be short listed.”
The mother did indeed file an Application in a Case on 30 November 2012, in which she sought the following orders:
“1. That leave be granted to serve short notice of this Application on the respondent father.
2. That the children, Y, born (omitted) 2009, and X, born (omitted) 2007, live with the mother.
3. That until the father is released from custody, the children spend time with the paternal grandmother each alternate weekend from 10:00 am Saturday until 5:00 pm Sunday.
4. That for the purpose of Order 3, the paternal grandmother collect from and return the children to the mother’s residence.
5. That upon the father’s release from custody, the father spend time with the children each alternate weekend from 10:00 am Saturday until 5:00 pm Sunday.
6. That for the purpose of Order 5, the paternal grandmother collect from and return the children to the mother’s residence.
7. In the event that Christmas falls on a weekend when the father would otherwise have the children, then the father’s time be suspended.
8. That each of the father and the mother be and is hereby restrained from denigrating the other or permitting any other person to denigrate the other in the presence of or in the hearing of the children.”
On 4 December 2012, the paternal grandmother, Ms M (“the paternal grandmother”), also filed an Application in a Case. In addition to seeking leave to intervene in the proceedings, the paternal grandmother sought various parenting orders including orders for the children to live with herself and the father and for the application to be listed urgently.
Given the two Applications in a Case, and the apparent change in residence for the children, I determined to list the matter for mention on 17 December 2012 in order to clarify the father’s circumstances and the issues raised by the parties and the paternal grandmother.
On the 17 December 2012 I was advised that the father had been released on bail pending a sentencing hearing in the new year and that the father would be pleading guilty to the charges associated with the breach of the AVO. I also made the following further parenting orders with the consent of the parties:
“PENDING FURTHER ORDER:-
1.That in addition to the Orders dated 30 July 2012, the mother shall spend time with the children on the following times:
a.    from 12:00 pm Monday 17 December 2012 until 3:00 pm Wednesday 19 December 2012; and
b.    from 12:00 pm Monday 24 December 2012 until 2:00 pm Tuesday 25 December 2012;
c.    at other times as agreed between the mother and father.
2.That in order to give effect to Order 1 above, the Mother shall collect the children from the Paternal Grandmothers residence at the commencement of her time, and the Paternal Grandmother shall collect the children from the Mother’s residence at the conclusion of her time.
3.That the father is restrained by injunction from being present when the children are delivered to or returned by the mother and is restrained from attending at the mother’s home at any time when the children are spending time with the mother.
4.That the mother is restrained from allowing the father into her home at any time she spending time with the children.”
The matter was otherwise adjourned to 18 February 2013, and again to 2 May 2013, to allow the father’s criminal proceedings to be finalised.
On 2 May 2013, the parties informed me that the criminal proceedings against the father had concluded and that he had been sentenced to perform community service rather than a custodial sentence. In the circumstances, the mother and the paternal grandmother each withdrew their Applications in a Case and agreed that, rather than reopening the case, regard could be made to the parties’ affidavit material filed in support of, and in opposition to, the various Applications in a Case. Accordingly, I once again reserved my decision.

Issues and proposals

As at the conclusion of the Final Hearing, the issues in dispute were as follows:
·which party should have parental responsibility for the children or whether parental responsibility should be equally shared;
·with which party (or parties) the children should live; and
·the amount of time that the children should spend with the party with whom they are not otherwise living.
The parties’ respective proposals were altered somewhat dramatically a number of times during the course of these proceedings.
It is noted that the mother does not seek any order with respect to parental responsibility. Nevertheless, the mother’s case outline states the following:
“1. The court would conclude that the family violence was such as to rebut the presumption of equal shared parental responsibility.
2. The court would conclude that it is not in the children’s best interest to have an ESPR [equal shared parental responsibility] order and that in these circumstances equal time or substantial and significant time is not in the children’s interests.” [6]
In her oral submissions, Ms Druitt, for the mother, later confirmed that the mother seeks an order for sole parental responsibility for the children.[7]
[6] The mother’s Case Outline, undated, page 7.
[7] Transcript, 30 July 2012, page 319.
By the conclusion of the Final Hearing the father sought orders for the parties to have equal shared parental responsibility in relation to all major long-term issues except for education and health where he sought an order for sole parental responsibility.
The parties are also in dispute as to with whom the children should live, both parties respectively seeking that the children live with them, although the mother proposes that any return of the children to her full-time care occur on a graduated basis over a 12 week period.
The parties’ proposals for the children to spend time with the ‘non-live-with’ parent also differ, with the mother proposing that the children spend time with the father from 5:00pm on Friday until 4:00pm on Sunday on each alternate weekend, subject to special arrangements on Fathers’ Day and Mothers’ Day, and at agreed times during (omitted) religious holidays.
On the other hand, the father proposed a complex spend time regime which, until the commencement of Term 1 of the 2013 NSW public school year, builds up to from 5:00pm on Friday until 5:00pm on Sunday (extended in January 2013 to 5:00pm on Mondays) in each alternate weekend and for 7 hours each Tuesday. There are also provisions for special days. Of course, aspects of the father’s proposal have been superseded by the delay in the delivery of this decision due to the father’s more recent criminal proceedings. In any event, the father also proposes that following the commencement of the 2013 school year, and during school terms, that the children spend time with the mother from after school on Friday until 5:00pm on Sundays in each alternate week and from after school on Thursday to before school on Friday in each alternate week. In terms of school holiday times from 2013 to 2014, the father proposes that the children spend 4 consecutive nights with the mother, progressing to half of the school holiday periods from 2015 onwards. There are also particular arrangements for Christmas Day and Boxing Day in 2014.[8]
[8] As set out in the document handed to the Court during the course of the Final Hearing titled “(Revised) Minute of Orders Sought by the Respondent Father”.
The ICL did not provide the Court with a definite view at the outset of the final hearing, seeking instead to form a definite view following the reception of the evidence. Accordingly, in his closing submissions made on the fourth day of the Final Hearing, Mr Guterres outlined the orders sought by the ICL as being to the following effect:
·that the parties have equal shared parental responsibility for the children;
·that the children live with the father provided that the children and the father continue to reside at the home of the paternal grandmother;
·that the father ensure that the children sleep in their own bedroom at the home of the paternal grandmother;
·that the children spend time with the mother during school terms as sought by the father, save that the ICL advocated for orders which would immediately see the children spending overnight time with the mother from 5:00pm on Friday to 5:00pm on Sunday in each alternate weekend; and
·that the children spend time with the mother during school holidays as sought by the father, but once X commences school (which she did in January 2013), the children spend half of all school holidays with the mother.
Both parties also seek various restraints and associated parenting orders such as advising the other of important information and mutual non-denigration orders and the like.

Evidence

The mother relied on the following documents at the Final Hearing:
·Amended Initiating Application filed on 23 March 2012;
·the mother’s affidavit sworn and filed on 22 March 2012; and
·the affidavit of Ms R (“the maternal aunt”) sworn and filed on 22 March 2012.
The mother also provided the Court with a Case Outline document which, although undated, was provided to the Court on 30 March 2012.
Following the Final Hearing, the mother filed the following affidavits which the parties have agreed should also be considered by the Court:
·the mother’s affidavit sworn on 29 November 2013 and filed on 30 November 2012; and
·the mother’s affidavit sworn on 12 February 2013 and filed on 13 February 2013.
In addition to these documents, the mother also relied on a number of documents that were tendered into evidence as exhibits. These were:
·Exhibit “AM1” – a handwritten list of dates prepared by the mother;
·Exhibit “AM2” – the parties’ criminal records, produced under subpoena issued to the NSW Police;
·Exhibit “AM3” – pages tabbed in pink from bundle of material produced under subpoena issued to the Department of Corrective Services;
·Exhibit “AM4” – pages tabbed in pink from bundle of material produced under subpoena issued to the NSW Police;
·Exhibit “AM5” – material produced under subpoena issued to they Sydney Children’s Contact Service;
·Exhibit “AM6” – letter dated 12 July 2012 from (omitted) Community Centre together with attached support plan;
·Exhibit “AM7” – letter dated 23 July 2012 from ‘Enough is Enough’, tendered only on the basis that is relied upon as evidence that the mother has engaged with the service;
·Exhibit “AM8” – pages between red tags in bundle of typed notes produced by the paternal aunt, Ms F, dated 23 December 2010; and
·Exhibit “AM9” – bundle of correspondence and reports relevant to the mother’s urinalysis testing.
The mother presented as sincere in advocating her proposals for the children, she was vague at times and slow to make reasonable concessions. While the mother was inclined to minimise her own past behaviour, there were some examples to the contrary expressed during her cross-examination by the ICL’s counsel.
The maternal aunt also gave oral evidence mainly going to issues associated with past incidents between the parties.
The father relied on the following documents at the Final Hearing:
·Response filed on 30 March 2011;
·the father’s affidavit sworn and filed on 29 March 2012;
·affidavit of Ms F (“the paternal aunt”) sworn and filed on 28 March 2012
·affidavit of Ms M (“the paternal grandmother”) sworn on 28 March 2012 and filed on 29 March 2012; and
·Notice of Risk of Child Abuse of Family Violence filed 20 April 2011;
The father also provided the Court with a Case Outline document (entitled “Amended List of Witnesses and Chronology”), which, although undated, was provided to the Court prior to the commencement of the Final Hearing. As previously stated, during the course of the final hearing, the father also provided the Court with a Revised Minute of Orders sought.
In addition, the parties agreed that the father be entitled to rely on the following affidavits filed following the Final Hearing:
·the affidavit of the paternal grandmother sworn on 27 November 2012 and filed on 4 December 2012; and
·the father’s affidavit affirmed on 30 April 2013 and filed on 1 May 2013.
The father also relied on a number of tendered documents:
·Exhibit “RF1” – Child Support Assessment notices for the periods 1 December 2009 to 31 October 2010, 1 February 2010 to 21 February 2010 and 22 February 2010 to 24 March 2010;
·Exhibit “RF2” – Child Support Assessment notices for the periods 25 March 2010 to 28 March 2010 and 29 March 2010 to 11 May 2010;
·Exhibit “RF3” – pages tabbed in red from bundle of material produced under subpoena issued to the NSW Police;
·Exhibit “RF4” – pages tabbed in red and marked ‘F1’ and ‘F2’ from documents produced under subpoena issued to (omitted) Hospital;
·Exhibit “RF6”[9] – Certificate issued to the father from ‘Enough is Enough’ dated 1 June 2012;
·Exhibit “RF7” – Bundle of correspondence between the ICL and the father’s solicitors, together with urinalysis reports, including a urinalysis report dated 30 July 2012 (that is, the fourth day of the Final Hearing); and
·Exhibit “RF8” – Letter from the Department of Community Services (as it was then known) dated 5 January 2010 regarding the children addressed “to whom it may concern”.
[9] Due to a clerical error, there was no Exhibit “RF5”.
Generally speaking, the father was well spoken and answered the questions that were put to him, particularly during some rigorous cross-examination by the counsels for the mother and the ICL. The father was less inclined to minimise his own mistakes and was able to make concessions when faced with reasonable propositions.
In addition, both the paternal grandmother and the paternal aunt gave oral evidence. The paternal grandmother was particularly impressive as a witness notwithstanding her rigorous cross-examination by the mother’s counsel. Although English was not the paternal grandmother’s first language, she was well spoken and was candid in her responses which were generally child-focussed and she presented as a clearly organised person. The paternal aunt was also articulate and appeared genuine in her responses.
The ICL provided the Court with a Case Outline dated 30 March 2012. In addition, the ICL tendered the following:
·the Family Report by Ms E, family consultant, dated 23 December 2011 and released to the parties on 12 January 2012 (hereafter referred to as “the Family Report” and marked as Exhibit “ICL1”); and
·the pages tabbed in orange and marked ‘ICL3’ to ‘ICL9’ from bundle of material produced under subpoena issued to the NSW Police (marked as Exhibit “ICL2”).

The Child Dispute Conference memorandum

As stated above, the parties had the benefit of a CDC with Ms E on 30 March 2011 and the parties were provided with the memorandum of the same date. The same issues as were in dispute at the Final Hearing are noted to have been in dispute at the time of the CDC. In the memorandum (which was also referred to in paragraphs 8 to 15 of the interim decision), Ms E noted the following issues as impeding resolution:
“High level of conflict between the parents
Poor communication between the parents
Allegations of family violence from both parties:
The mother alleges that there has been family violence since the beginning of their relationship in the form of physical violence and anger management issues on the part of the father
The father alleges that the mother has made threats of self harm and threats to harm the children in December 2010 and that she smacks the older child
Irrespective of whose allegations of family violence are accepted, it is evident that the children have been exposed to an ongoing level of family violence and instability that is unacceptable for children of any age and especially for such young children
Both parents claim to be the primary caregiver and further information and clarity is needed
High level of mistrust between the mother and the father and his family
The father alleges that the mother is unable to care for both children together and the mother denies this
The mother alleges that the father does not have parenting skills and is not the main caregiver in his home but that this is provided by his mother for the children”
Of concern to Ms E was, inter alia, the children’s attachment to their primary carers and the “instability of care for the children” caused by the parents’ dispute. Ms E also recommended the appointment of an ICL and the preparation of a family report.

The Family Report

As referred to above, the parties in this case have also had the benefit of the Family Report. The interviews for the Family Report occurred on 8 November 2011, that is, about 7 months after the CDC.
Ms E makes a number of comments about the level of conflict between the parties and their respective extended families. For example, at paragraph 6 of the Family Report, she notes:
“The high level conflict, between Ms Lambert and the family of Mr Adamson, was observed in the waiting room of the Court and reported by all of the parties… Ms Lambert was verbally abusive and very angry towards Mr and Mrs Adamson Senior. This occurred in front of the children as they were leaving and had come to say goodbye to their mother. The children looked quite frightened and uncertain about what to do.”
From her interviews with the parties, Z and the father’s parents, Ms E records the following details:
“13. Ms Lambert (aged 35 years) was born in (omitted), of an indigenous family background. She said that she ‘grew up everywhere’ as the family moved around a lot. Her mother is from (omitted) and her stepfather, whom she had thought was her father, died when Ms Lambert was 12 years old. Her mother re-partnered and has been with her current partner for the past 22 years. Ms Lambert said that she had had a difficult relationship with her mother and went to a counsellor about this at the beginning of 2011. She said that things are now more open and are much better between her and her mother. Ms Lambert said that she is close to her five siblings, four of whom live nearby. She sees them everyday. Ms Lambert’s mother and stepfather live in (omitted) and Ms Lambert’s stepfather is agreeable to providing supervision for Ms Lambert to spend time with Y and X.
14. Ms Lambert had a previous relationship with Mr T and they were together for 11 years. Ms Lambert said that it was a good relationship and they remained friends after they separated and are able to discuss Z’s needs and have parented her together. She said that Z lived with her until she was in Year 7 of high school, and when Ms Lambert and Mr Adamson moved in together, Z moved in with her father because she did not get on with Mr Adamson. Z returned to her mother’s care in April 2011. Ms Lambert maintained regular contact with Z throughout the four years that she lived with her father in Queensland and Z came regularly to Sydney in school holidays to spend time with Ms Lambert and X and Y.
15. Ms Lambert said that she met Mr Adamson in May 2006 and began a relationship in August 2006. According to Ms Lambert, the relationship has been violent from the beginning. It appears that they lived together for approximately three years.
16. Ms Lambert has been spending time with Y and X every fortnight for two hours at the Sydney Children’s Contact Centre since August 2011. She said that she finds this difficult as she travels on public transport. Ms Lambert said that, at first, she was uncomfortable being observed when with the children, but now believes that it is a good thing, because everything will be reported and there is an external person who sees how she is with the children. Ms Lambert said that she has not missed any visits and that the time goes quickly with the children. She said that Z is allowed to come every third visit to see her sisters.
17. Ms Lambert said that she believes that Mr Adamson has limited parenting skills and that his mother is the primary caregiver of the children. However, she said that he is a good father in playing with the children and taking them to the park. Ms Lambert is concerned that the children sleep in the same room and bed as Mr Adamson and said that she believes that there are not enough bedrooms in Mr Adamson’s family home.
18. Ms Lambert alleges that the whole of the Adamson family have threatened her and that she feels especially at risk from Mr Adamson’s brother, Mr S, whom she alleges, often drives past her home and has threatened her. She alleges that, when she and Mr Adamson were together, there had been several occasions when he had ‘smashed’ the house when the children had been present. Ms Lambert alleges that there has been extensive family violence with many violent incidents including verbal and physical abuse, Mr Adamson assaulting her while pregnant, intimidation, threatening behaviour and breaking of windows and other objects by Mr Adamson. She said that X was often present and witnessed these incidents. It appears that X witnessed many more incidents being two years older than Y who was about three months old when Ms Lambert and Mr Adamson separated. The family violence continued after separation. Ms Lambert had a previous AVO against Mr Adamson in 2009, during which year there appears to have been the great majority of incidents reported to Police by both parents.
19. Ms Lambert alleges that Mr Adamson had often kept the children from her in the past, prior to this year, and that he had kept the children from her even after repeated requests to return them. She said that on many occasions he was supposed to bring either X or both children back to her and did not return the children to her sometimes over a period of weeks. This was a high source of stress and conflict for her and between them.
20. Ms Lambert said that she understands that her behaviour has been wrong towards Mr Adamson Senior and Mrs Adamson Senior and that she has been rude to them because she is distressed that they have her children. She said that it was extremely difficult for her to spend the day at the Court knowing that she was in close proximity to Mr Adamson and his family, in the waiting area. Ms Lambert said that she was experiencing uncomfortable memories and ‘flashbacks’ of previous difficult times and this was why she was becoming more upset over the course of the day. Ms Lambert was observed to become increasingly agitated as the day progressed but chose not to go to a private room to wait. It appeared extremely difficult for Ms Lambert to contain her emotional responses culminating in her shouting at and verbally abusing Mr and Mrs Adamson Senior when they were leaving the Court with the children.
21. Ms Lambert said that X seems more distant from her now and was very upset that she seemed initially detached when Ms Lambert was physically affectionate with her. She said that X was not like this when the children lived with her nearly a year ago. Ms Lambert was able to keep an eye on both children when in the childcare room and was mindful of attending to X even though Y was constantly demanding of her attention. Ms Lambert was able to engage X and she played with her and was also able to be affectionate with her.
22. Ms Lambert said that she is not using drugs now but that, in the past, she and Mr Adamson both used marijuana. She said that she did not use other drugs. Ms Lambert said that Mr Adamson originally introduced her to marijuana and she alleges that, he smoked it a lot and that it became a source of conflict between herself and Mr Adamson, when he would smoke marijuana in the their laundry with his friends. Ms Lambert said that she has had five urine tests between April and July 2011. She said that she planned to provide regular drug and alcohol urine test results every month until they go back to Court.
23. In discussion with Ms Lambert about her mental health, she said that she has been depressed at times because of the difficult year that she has experienced with the loss of her children. However, she said that she believes that she is now a stronger person as a result. She said that she attended counselling at the beginning of 2011 and that this helped her address issues from her past, including her relationship with her mother, and that things are now much better between her and her mother. Ms Lambert said that she had attended a mental health assessment through NSW Health in December 2010. This was required after she had gone to the Adamson home in December 2010, in a very upset state, because they would not return her children to her at Christmas. She had then been removed by the Police.
24. Ms Lambert alleges that Mr Adamson has been coming to her home at night since they separated, on a weekly basis, for sex with her. She said that, even though he is breaking the AVO, she has allowed him to come because she feels intimidated by him. Ms Lambert said that she had told Mr Adamson in the week before coming to the Court that he cannot come to her home anymore. She said that she had not wanted him to come to her home but had agreed to it, because she believed, if she did not agree, Mr Adamson would not allow her to see the children.
25. Ms Lambert is indigenous and said that she is now also Christian and that this provides some support to her. She said that she is trying not to let it upset her that the children are being raised in the (omitted) faith by the paternal grandparents. Ms Lambert said that her children are not (religion omitted) and that she believes that the girls should be able to decide about their religion when they are older.
26. Mr Adamson (aged 30 years) was born in Australia and his parents immigrated to Australia from (omitted) about thirty years ago. Mr Adamson is the eldest child in the family and he has a sister and brother who live nearby. Mr Adamson said that he left school in Year 10 and had been in a special ‘IM’ class for learning disabilities because of his difficulties in learning to read and write. Mr Adamson completed an (omitted) course at TAFE and said that he ran his own business in 2006 -2008. He said that he had worked for a (omitted) company for seven years and eventually became the (omitted). Mr Adamson is not currently employed and said that he is a full time carer for the children and is attending TAFE two days a week doing a (omitted) course because he wants to learn to read and write. Mr Adamson has not re-partnered.
27. Mr Adamson said that he met Ms Lambert through friends and they never married. He said that the relationship was good until she became pregnant with X and she then began telling him with whom he could spend time and was more demanding of him. He moved in with Ms Lambert during this time. Mr Adamson said that, after X was born, Ms Lambert did not want his family to be involved. They separated for a week or two after X was born and finally separated when Y was three months old. He said that Ms Lambert was suffering anxiety and post-natal depression at this time and he took Y with him for a period when he moved back to his parents’ home. Mr Adamson said that they separated because of Ms Lambert’s behaviour towards him and that she used to put him down in front of people.
28. Mr Adamson breached the current AVO in August 2011 and he received a three month suspended sentence. The AVO excludes the times when the father approaches the mother for the purpose of her spending time with the children. He said that he is worried that, if he approaches the mother, she may accuse him and he will then have to go to prison. Mr Adamson said that he is currently on a good behaviour bond for two years, has been attending Probation and Parole weekly from October 2011 and that this will be reduced to fortnightly in the near future. Mr Adamson alleges that it is always Ms Lambert assaulting him rather than the reverse. Mr Adamson also said ‘it is a lie’ that he is going to Ms Lambert’s home for sexual intercourse. Rather, he alleges that she telephones him and asks him for favours. Mr Adamson alleges that Ms Lambert has been verbally abusive to him and his family and that in December 2010 she was shouting at his family and broke a glass door. The subpoenaed material indicated that it was difficult to attribute responsibility for the breaking of the glass door as there were glass fragments on both sides.
29. Mr Adamson said that he is caring for the children on a full time basis and that his mother helps him with the children. He said that he and his mother both put the children (who sleep in the same room as the grandmother) to bed. He said that he sometimes sleeps on X’s bed after putting her to bed but that he has a separate bed outside of the bedroom in a small sunroom area. He said that his mother looks after Y two days a week when he attends TAFE and that next year he plans to enrol her into childcare at TAFE. Mr Adamson said that he has no plans to move out from his parents’ home with the girls. He said that if he did decide to move out, he would not move until the children were in school and his mother would still be available to help him.
30. Mr Adamson acknowledges that two hours a fortnight with their mother is not enough for them because they miss her but he said that he wants to be sure that Ms Lambert will be reliable and will not harm the children. He alleges that, in December 2010, Ms Lambert had said that she would self-harm and harm the children and that he is still concerned for the safety of the children if they were to stay overnight with her. Mr Adamson said that, Ms Lambert could not manage with both children and often called him to help with them when they were living with her, and he therefore believes she is unable to have the children living with her. He alleges that, Ms Lambert does not commit to what she says she will do and is emotionally unpredictable, although he said that the fortnightly visits have been going well and Ms Lambert has attended all visitations. He said that he believes that Ms Lambert has been happier since she has had time with the children. Mr Adamson said that he had paid for supervision for three contact visits in May and June 2011 for the children to spend time with their mother. He said that he is agreeable for Ms Lambert’s stepfather to be a supervisor for Ms Lambert to spend more time with the children but said that this has not been organised by the ICL yet. Mr Adamson said that Ms Lambert calls the children every couple of days and speaks to them. He said that Ms Lambert prepares them for when they will next see her: There was some contradiction in Mr Adamson’s comments about Ms Lambert’s ability to commit and the actuality of her consistency in attending all visitations.
31. Mr Adamson said that X worries about what her mother will think. He gave an example of when he prepares sandwiches for the visits of the children with their mother, and that X tells him that her mother is making the sandwiches and that she appears worried that he is still making the sandwiches. He said that he makes them anyway in case the mother has not made them. It appears that X is worried that he makes them even though the mother has made sandwiches for the children and that she feels uncomfortable about this. More likely, X may be feeling uncomfortable and caught between her parents in this small example.
32. When observed with the children, Mr Adamson was relaxed and warm with them. Y ran up to him when he came in and initially, X looked up but did not acknowledge him. She later showed him some pictures they had painted but did not want to give them to her father. Mr Adamson was able to organise food, for the children to wash their hands and sit at the table. It was apparent that this is a routine activity for them, as was nappy changing of Y. He was able to engage with X and Y in make-believe games and they enjoyed this. Mr Adamson was affectionate with the children although X was observed to maintain a level of slight distance from her father.
33. In relation to the drug and alcohol allegations, Mr Adamson said that he has not used cannabis for the past two years and that he does not drink alcohol now. Mr Adamson alleges that Ms Lambert used more cannabis than he did and denies that he introduced her to marijuana. He alleges that Ms Lambert uses alcohol to excess but said that he was unaware that Ms Lambert had undergone urinalysis on five occasions. Mr Adamson said that, even if Ms Lambert is ‘clean’ of drugs and alcohol, he remains concerned because he believes that ‘she still hangs around with the same crowd’. Although Mr Adamson said that he was concerned about Ms Lambert’s drinking, he could only remember one occasion when he believed that she was drinking and that was when there was a party at her home after their separation. He said that he had been driving past her home and observed people outside drinking. Mr Adamson alleges that Ms Lambert drinks alcohol with her sister regularly.
34. Mr Adamson said that he was depressed in 2008 for about five or six months because of his relationship with Ms Lambert and the closure of his business. He said that he is fine now and with family support, recovered. However, he said that he believes that, Ms Lambert had post-natal depression after X’s birth for three months, and also after Y’s birth from which, he believes, she has not recovered.
35. Z (aged 16 years and five months) said that she had been living with her father in Queensland since the end of 2007 but came back to Sydney because she wanted to live with her mother. She said that she sees her father every school holiday and that she gets along with her father very well. Z said that she went to live with her father because she had not liked her mother living with ‘Mr Adamson’. After Z left her mother’s home she still saw her mother frequently, often daily, as Ms Lambert drove her to and from school at that time. Z said that her mother is a “great mum” and said that, she does not know about any of the problems which her mother is accused of, and why she cannot have the children living with her. Z said that she is intending to remain in Sydney with her mother and will be attending (omitted) College next year to complete her HSC and Year 12 studies.
36. When asked about Mr Adamson, Z said that he had visited the weekend before the last [before coming to the Court] late at night and that she had seen his car parked outside the house. She said that she does not know if he comes often.
37. Ms M, (aged 52 years), paternal grandmother, said that Mr Adamson (father of the children) had a learning difficulty at school but is now learning to read and write. She said that Mr Adamson is a good father and that he makes the children breakfast, often takes them all day and that he cares for the children. Mrs Adamson Senior said that she cooks, cleans, washes and helps with the children. It appears that she contributes a considerable amount of time to the children and that this ensures that things run smoothly in the home.
38. Mrs Adamson Senior said that she would be worried for the children’s safety if they were to stay overnight with their mother, because she believes that Ms Lambert is angry and cannot make a commitment to the children.
39. Mrs Adamson Senior said that the children are now used to seeing their mother in the contact centre and that, while she knows that the children miss Ms Lambert, she said that she believes that Ms Lambert needs psychiatric help to manage her anger before the children spend overnight or unsupervised time with her. Mrs Adamson said that, as the children get older they are getting easier to look after, and this may be easier for the mother.
40. Mrs Adamson Senior alleges that Ms Lambert swore at her at lunchtime at the Court.
41. Mr Adamson, paternal grandfather, said that his wife [paternal grandmother] and his son provide the main care for the children. He said that he sometimes goes with his son and the children on outings, such as the beach.
42. Mr Adamson senior alleged that Ms Lambert abused the family verbally outside the Court on the day of interviews. He said that he does not know why she is so angry at them. There was no interaction observed between the paternal grandfather and the children even when in the same area together.”

Ms E also observed the interactions between the children and the parties and between the children and the paternal grandparents.[10] I will return to these observations later in this decision.
[10] At paragraphs 43-49 of the Family Report.
Under the subheading “Evaluation”, Ms E states the following:
“50. The critical concerns in this matter are the serious allegations and incidences of family violence, the history of apparent lack of control by each parent in their anger towards the other and the changes of care experienced by the children through the unplanned removals of the children from the mother on several occasions, either when these occurred at the mother’s request for help or because the father had felt that the children should remain with him. The above may have impacted on the parents’ parenting capacity, their awareness of the needs of the children and being able to put the children first and provide safety and security for them. It would appear that the children’s security of attachment to their mother has been affected. An examination of the risks for Y and X with each parent is presented below. Whether or not the children are at risk in the respective households, and what the ongoing risks may be, may well emerge as the determinative factor in this matter.
51.From the subpoenaed material and from each parents’ allegations, there is an extensive history of police events with both parties being either the victim or the person of interest. It indicates that there has been a repetitive pattern of frequent family violence, which the children have often witnessed, with both parties having difficulty in controlling their feelings and showing impulsivity. Both parents attribute blame for the violence to the other. Ms Lambert did acknowledge that she had been angry and rude to the paternal grandparents and attributed this to her deep sense of loss and that she is angry that they are caring for her children. Irrespective of whose allegations of family violence are accepted, it is evident that the children, especially X, have been exposed to an ongoing level of violence, conflict and instability that is disturbing for young children. Any future relationship of the children with their parents is dependent on both parties being able to control their anger with the other.
52.The relationship of the children to their mother has been fraught with loss and ongoing conflict between her and the father and his family. However, it appears that in spite of the current extensive separation and previous separations from their mother, there is a continuity of attachment between Y and X and their mother and that, from reports by all parties, including X, the children miss their mother. Both children appear to have spent sufficient time in their early attachment-making period to make a sustained bond with their mother. X’s watchfulness in regard to Ms Lambert indicates attachment, although it has wariness about it. Of concern is that X’s attachment to her mother may be bound up with feelings of rejection and hurt, as a child of this age does not understand the adult behaviours and why she was taken from her mother in December 2010. Y’s behaviour indicates a somewhat anxious attachment and fear of parting from her mother. She was unwilling to play on her own or to be separated physically from Ms Lambert when in her presence.
53. If the children were to live with the father they would, at the least, have some stability provided by the paternal grandmother. The children also have a relationship with their father, who seems able to provide basic care for them with the support of his mother.
54. If the children were to live with their mother, there is some degree of uncertainty as to how she would manage to provide the care for them. It appears from the reports of the father and his family that Ms Lambert often requested support from them, when the children lived with her, and that the children stayed for several extended visits with the father’s family. If it is considered that the children should live with their mother, it is critical that Ms Lambert be part of intensive and extended programs such as Brighter Futures and an Intensive Family Support program. Any consideration of restoration to their mother’s care should be part of a planned and supervised process.
55. There is a high risk that the parents would not be able to manage the arrangements for the children to see the other parent without conflict. It is difficult to see how such a volatile situation would be managed. A concern remains that if the children were to be in an arrangement of spending time with both parents that there may be a risk they would not be returned to the other parent at the changeover time. There is a reported history, of the father not returning the children to the mother, when they were living with her. Changeovers could be facilitated at a contact centre or other monitored and supervised venue as a way of reducing the risk for the children or by an independent individual or organisation.
56. If the mother’s allegations regarding Mr Adamson continuing to visit her, and the maintenance of their sexual relationship were true, it would suggest that they are in some kind of relationship still and that there is an ambivalent separation between the two of them. It is not possible to ascertain the accuracy of these allegations or what the implications are for the children. However, ambivalent separations are often characterised by conflict and volatile behaviours, including a love/hate dynamic, which makes it difficult for the parties to separate. From subpoenaed documents it would indicate that the parties have been intimate on and off for several years including the time that they were together when periods of intimacy were interspersed by periods of separation and animosity. It appears that there was a history of family violence, aggression and retribution against each other, often occurring in front of the children. This is supported by a large number of police events by both parties as victim and as person of interest in different incidents.
57. With regard to the allegations of both parties against the other in relation to drug and alcohol overuse, it is difficult to ascertain the current use of both drugs and alcohol as both parties each assert that they do not now use drugs or alcohol to excess. The Police reports indicate that, for all bar one incident, Ms Lambert was not affected by alcohol or drugs at the many incidents reported. Ms Lambert has indicated a willingness to continue to undergo drug and alcohol testing if required by the Court.
58. It is difficult to assess the allegations that Ms Lambert is mentally unstable in isolation from the experience of the loss of her children from her care over the past year. Ongoing family violence may also be a contributing factor to unstable mental health. From subpoenaed documents, there did not appear to be any diagnosis of psychosis when Ms Lambert was assessed in December 2010. An extensive mental health assessment may be helpful in examining other factors, which may provide also some support to Ms Lambert in dealing with her anger and loss.
59. The presence of the paternal grandmother in the lives of the children appears to provide some level of a protective factor for them. However, the anger and bitterness on both sides towards each other may have a serious impact on the emotional security of the children. It would appear that both children have already been affected by the losses and changes they have experienced, albeit in different ways[.]
60. There are many cultural variables in this complex family situation and they need to be considered for the future identity development of the children.”
Ms E expressed her misgivings in preferring either parent over the other to be the primary caregiver for the children going forward. At paragraphs 62 to 64 of the Family Report, Ms E outlined the competing ‘live-with’ proposals of the parties and set out the concerns attaching to both:
“62. The option of the children living predominantly with their father and grandparents may reduce their exposure to the conflict and anger of the parents and the risk to the children of sudden changes in their place of residence and primary carer. The children have been living with the father and grandparents, (especially with the security of the grandmother) for a year, and this would represent the easiest path for the children in terms of stability; the children have a warm relationship with their father and he is reportedly able to provide the basic care of the children with the support of his mother. Most seriously, this option will increase the sense of loss by the children of their mother and their attachment to her will further suffer. It may also make it harder for the children when, if they are able at a later age, to begin to spend significant time with her. The mistrust [felt by] the Adamson family [for] the mother may also mean that the children do not receive a positive view of her as they grow up and their own sense of positive identity may be affected as well as the knowledge and familiarity with a significant part of their cultural identity. Indeed, this option may mean that the children will become alienated from their mother and her extended family. This option may also require the continued use of a contact centre or supervised contact for an extended period.
63. The option of the children living predominantly with their mother may mean that their attachment to her will be maintained, especially if she is able to provide a secure and safe environment for them. The strength of the children’s attachment to their mother, in spite of the extensive separation they have experienced, indicates that the mother is an emotionally central figure for X and Y and is important for their positive development. Ms Lambert’s inability to control her anger in the Court in front of the children is of great concern, as is whether she will be able to provide the care for the children. An external organisation such as Brighter Futures and Intensive Family Support is essential if the children are to live with her. It is, however, difficult to foresee the families co-operating in a graduating plan for the children to return to their mother and because of the young age of the children, this would be essential. The children are now settled with their father and grandparents and it will mean further upheaval for them to move without a careful and supported restoration plan.
64. Irrespective of which parent the children live with, it is critically important that how they spend time with the other parent is managed in such a way as to limit the parents’ acrimony and conflict.”
The decision of the Full Court of the Family Court of Australia (“the Full Court”) in In the Marriage of Hall (1979) 5 Fam LR 609; (1979) FLC 90-713 contains an authoritative statement about how family reports should be treated in proceedings such as this case:
“In view of the comments in this case as to the weight to be given to a family report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a)    There is no magic in a Family Report. A judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the judge is abdicating his responsibilities: In the Marriage of Wood (1976) 2 Fam LR 11,182; (1976) 11 ALR 657; [1976] FLC 90-098 at 75,447; In the Marriage of Harris (1977) 3 Fam LN No 33; (1977) 29 FLR 285; [1977] FLC 90-276.
(b)    Family reports are meant to be, and almost invariably are, valuable and relevant material to assist a judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the judge has found them consistent with the rest of the body of evidence before him.
(c)    While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d)     Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong, or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e)    Sometimes the family report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f)     Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
(g)It follows that in some cases it may be desirable to question counsellors about the bases of their recommendations. Indeed, there will clearly be some cases where a practitioner would be failing in his duty to his client if he did not seek to test the recommendations of the counsellor in the light of instructions given to that practitioner. To cross-examine a counsellor is to do no more than to test an expert witness in the same way as any other expert witness may be tested or challenged. Naturally, the decision to cross-examine carries with it the usual hazards involved in cross-examining any witness but more particularly an expert.
(h)    Where there is proper reason for cross-examination, the court will be assisted and, we have no doubt, so will the counsellors. No expert should cavil at any questioning of his role or the foundations of his opinions. We consider that it is always a valuable opportunity for the counsellor himself to examine and test his own methods under critical investigation …
(i)     Finally, and most importantly, and as a matter of public policy, no party should leave the court with a belief that justice has not been done because an opportunity to test part of the evidence has been denied …”[11]
[11] In the Marriage of Hall (1979) 5 Fam LR 609 at 614-616; (1979) FLC 90-713 at 78,819-78,820 (per Evatt CJ, Asche SJ and Hogan J).

Ms E’s oral evidence

Ms E was cross-examined at some length about her report on the first day, and the last day, of the Final Hearing.
Ms Druitt for the mother, asked Ms E about the problems the ‘ambivalent separation’ of the parties may cause to the children. Ms E responded:
“… it increases unpredictability, and ambivalent separations are often linked with anger and emotionality, rejection, loss, re-starting, closing up. And because it’s constantly a changing relationship, and there is no clarity about what the boundaries are between the parents, that’s why it creates a risk for the children.” [12]
Ms Druitt then asked Ms E, given this context, whether the limited time that the mother was spending pursuant to the then parenting orders added a further problem for the children. Ms E responded:
“I think it definitely muddied the waters and made it very difficult to work out what motivations were occurring. And at one stage the mother said to me that she continued allowing the father because she would hope that she would be able to see the children. And so there was a level of control in that aspect of the visit and in the ambivalent relationship.” [13]
[12] Transcript, 30 July 2012, page 290.
[13] Ibid.
Ms Druitt thereafter asked Ms E whether she could proffer any view as to how long the children should spend with their mother “to meet their emotional needs at the moment” and given the context of this case. Ms E responded:
“It would really depend on how well the parents are able to manage changeovers in a peaceful and civil way, and how well they’re able to facilitate the children in that. They are young children and Y is, what, only – not quite three, so they are quite young and they need to have a consistent base of where they’re living, regardless of where they’re living, with the … mother or the father …
It is difficult to predict, not having seen the children again, but if the parents are genuinely able to maintain civil exchanges, it would be to X’s advantage to have more time with the mother, whether it’s two or three days a day, or a couple of days a week, rather than just the weekends, and while the time is increasing or depending on the outcome of this matter, how the decision might be made of where the children will live.
… they have been 18 months in one place, and their attachment to their grandmother and their father also is something that has to be considered as to how, if that change was decided on, how that change would happen so that it didn’t further destabilise the children..” [14]
[14] Ibid, pages 290-291.
Ms E also confirmed, in answer to a question from Ms Druitt, that should Y remain living in the father’s household then the child would certainly benefit from spending regular “weekly” time with the mother.[15]
[15] Ibid, pages 291-292.
Mr Guterres, for the ICL, asked Ms E about the children’s attachment to their parents. In the context of the mother, he asked whether the attachment needs of the children could be met by them spending periods of time with the mother, as compared with a “live-with arrangement with the mother”.[16] Ms E responded:
“Again, it’s difficult for me to say, not assessing their current situation and the current relationship. It’s difficult to know because every child is different and … Attachment can be repaired providing there is sufficient opportunity for that to occur, and it has to happen in a positive way. But generally attachment of young children is dependent on intensive contact and time.
… For very young babies, it’s not, but for older children it probably is to maintain regularity of tasks as well as fun time, rather than just being a fun-time parent and not doing the day-to-day tasks that a child requires.
… The absence of violence and the absence of conflict between the two families is critical in determining how the children are going to develop and how they are going to cope with any arrangements made” [17]
[16] Ibid, page 296.
[17] Ibid, page 296.
Mr Guterres also asked Ms E whether she would agree:
“that the primary [consideration] for his Honour in relation to this particular matter would be to find an arrangement which would minimise, as much as it possibly can, the children’s exposure to violence between the parents?”
Ms E responded:
“Safety is very important and minimising any exposure to conflict is critical for the children. And whether that’s done by exchange at a contact centre or by an external person, such as what they have been doing with the grandmother …everything like that will help to build safety into any exchange.” [18]
[18] Ibid, pages 296-297.
Lastly, Mr Guterres asked Ms E whether she was now able to make a recommendation about the children remaining in the care of the father or returning to live with the mother. Ms E appeared to be unable to do so and responded:
“Well, it’s dependent on the factors that I have mentioned; how well the parents are able to come to an arrangement, how well the exchanges are able to happen. And the fact that the children are, from what has been mentioned, that X is still really, really wanting to see more of her mother, is something that I would see as a concern indicator, that one would need to take that well into account.” [19]
[19] Ibid, page 297.

I also asked Ms E a question relevant to the issue of changeover. Ms E recommended that at changeovers, the parties (and their extended family), need to “try and be more civil in front of the children” because that is “very important for the children’s understanding of where they belong and who they belong to”.[20]
[20] Ibid.
Overall, given that Ms E is an independent party in these proceedings, the Family Report and the recommendations contained therein, as expanded upon in her oral evidence, are entitled to be given considerable evidentiary weight by the Court.

Law and discussion

All parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975 (“the Act”).
Parenting orders are defined in s.64B of the Act and provide for, inter alia:
·where a child is to live;
·the time a child is to spend with another person; and/or
·otherwise allocate parental responsibility in relation to a child.
Section 60CA of the Act makes it clear that, for the purposes of making a parenting order, the Court must regard the best interests of a child as the paramount consideration. What is considered to be in the best interests of a child in parenting disputes depends on the particular circumstances in each case; different circumstances require different resolutions.
That said, to determine the best interests of a child, the Court must consider the primary and secondary considerations under s.60CC of the Act. These specific provisions will be examined in light of the evidence shortly.

Parental responsibility

Section 64B(2) of the Act stipulates that a parenting order may include the allocation of parental responsibility for a child. That order “may deal with the allocation of responsibility for making decisions about major long term issues in relation to a child”.[21] In the absence of a parenting order, s.61C of the Act stipulates that “each of the parents of a child who is not 18 has parental responsibility for the child.”
[21] Section 64B(3) of the Act.
Section 61B of the Act states that parental responsibility “means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.” This not only includes those duties and responsibilities relating to such matters as health and education, but also the “general direction in life that is so important for children in teenage years.”[22]
[22] Lindell & Ranteri [2010] FamCA 52 at [31] (per Cronin J).
In s.4 of the Act, the relevant definition of what the law expects of parents in relation to this decision-making states:
“‘major long-term issues’, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.”
Section 61DA of the Act requires the Court to presume that it is in the best interests of a child for his or her parents to have equal shared parental responsibility.
However, s.61DA(2) of the Act makes it clear that the presumption does not apply if there are reasonable grounds to believe that there has been abuse of a child or family violence.
In addition, under s.61DA(4) of the Act, the presumption may be rebutted if its application could be contrary to a child’s best interests. Those interests are determined by reference to the matters in s.60CC of the Act in light of the evidence. If the presumption of equal shared parental responsibility is not applied, or is rebutted, then the Court must still make an order which is in the best interests of the child – again, taking into account the considerations set out in s.60CC of the Act.
There is a live dispute between the parties in this case as to whether the presumption favouring an outcome of equal shared parental responsibility should apply, or not. Both parties seek sole parental responsibility orders; that said, the father seeks that such an order in his favour be limited to education and medical matters. The ICL proposes that the parties have equal shared parental responsibility.
Despite the difficulties and dysfunction between the parties, there is evidence that they have been able to agree on a number of important major decisions with respect to the children, particularly X, during the time following the Final Hearing. Both parties give evidence of taking an active and mutually cooperative role in X’s life when hospitalised for tonsillitis and suffered complications in August 2012.[23] The parties took turns staying at the hospital with X and taking care of Y. They were also able to agree on a medical procedure for the removal of X’s tonsils,[24] cooperate in caring for the children on 21 August 2012 when X had to attend an optometrist appointment,[25] and jointly attended at X’s orientation day at (omitted) Public School on 6 November 2012.[26]
[23] The mother’s affidavit filed 30 November 2012, paragraph 8; the father’s affidavit 1 May 2013, paragraphs 13 and 14.
[24] The father’s affidavit 1 May 2013, paragraph 15.
[25] The mother’s affidavit filed 30 November 2012, paragraph 10; the father’s affidavit 1 May 2013, paragraphs 25.
[26] The mother’s affidavit filed 30 November 2012, paragraph 11(h); the father’s affidavit 1 May 2013, paragraphs 18.
That all said, the parties both give evidence of friction between them on the occasion of X’s tonsil removal operation in November 2012, friction which escalated to the point that the father was arrested, refused bail and charged with breaching the AVO protecting the mother. Both parties give evidence about the circumstances in their respective affidavits and their evidence is, not surprisingly, contradictory. On balance, while it is clear that both parties acted extremely poorly, I am satisfied the father was honest and forthcoming in his affidavit evidence and is attempting to move on and take steps to improve his behaviour and parenting with therapeutic intervention. The mother may benefit from similar assistance.
The Court also notes the evidence in the father’s affidavit filed on 1 May 2013 which indicates that the mother may have had a preference for X to attend (omitted) Public School. That is not surprising given the proximity of that school to the mother’s home. Despite this, it appears that the parties were still able to facilitate the child attending (omitted) Public School.
Notwithstanding the incidents of November 2012, the Court takes heart from the fact that the parties put aside both their differences, and the dangerously ambivalent nature of their relationship, in order to make important decisions in relation to X and to provide support and care for both children during the relevant periods.
On this basis, the Court is inclined to agree with the ICL’s proposal that the parties equally share parental responsibility for the children. The Court will consider this issue further following its discussion and analysis of the matters relevant under s.60CC of the Act.

Equal time or substantial and significant time

If a parenting order is to provide for a child’s parents to have equal shared parental responsibility, the Court is then required under s.65DAA of the Act to consider whether the relevant child’s best interests would be served by making an order that the child spend equal time,[27] or alternatively substantial and significant time,[28] with each parent.
[27] Section 65DAA(1) of the Act.
[28] Section 65DAA(2) of the Act.
Either outcome requires the Court to consider whether a child spending equal time, or substantial and significant time in lieu, with each parent would be in the “best interests of the child” and is “reasonably practicable” given the circumstances. I note that neither party in this case is seeking an equal time parenting arrangement.
Section 65DAA(3) of the Act stipulates that a child will only be taken to spend “substantial and significant time” with a parent if:
“(a) the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.”
That said, s.65DAA(4) of the Act stipulates that:
“Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.”
In considering the reasonable practicality issue for both an “equal time” or a “substantial and significant time” order, s.65DAA(5) of the Act requires the Court to have regard to:
“(a)how far apart the parents live from each other; and
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.”
The Court acknowledges that the parties have been able to cooperate in making major decisions with respect to the children. However, based on the evidence, the Court has concerns about the parties’ capacity to communicate with each other in relation to parenting matters, particularly given the destructive “ambivalent separation” between the two and the demonstrated tendency for interaction between the two to become angry and abusive in each other’s company.
These difficulties may abate with the passage of time and with the use of other means of avoiding conflict, such as a communication book and restraints on the manner in which communication occurs.
Under the current interim Orders made on 30 July 2012, the children spend time with the mother on Tuesdays from 10:00am to 5:00pm as well as on alternate weekends. However, the paternal grandmother deposes that despite Orders entitling the mother to spend time with the children on Tuesdays, she had not come to the paternal grandparents’ home to collect the children and spend time on Tuesdays prior to Tuesday, 20 November 2012.[29] The mother does not deny or even comment on this assertion at any point in her affidavit filed on 13 February 2013. While the Court accepts that the parties may have sporadically altered the spend time arrangements by agreement between themselves, the Court cannot ignore the evidence that the mother was not taking advantage of the time allotted to her during the week. The Court is inevitably drawn to the conclusion that an Order for the children to spend block weekend time with the mother is more likely to result in a firm routine for the children.
[29] Paternal grandmother’s affidavit filed on 4 December 2012, at paragraph 29.
Also regarding the mother’s mid-week time on Tuesdays, the father gives the following evidence[30]:
“…Also in this conversation [on 14 February 2013] Ms Lambert said to me: ‘I won’t see the kids on Tuesdays coz they are at school.’ I replied: ‘X is at school, not Y.’ Ms Lambert responded: ‘What’s the use of picking up one kid?’”
The Court appreciates that this evidence has not been tested by cross-examination.
[30] See the father’s affidavit filed on 1 May 2013 at paragraph 64.
The Court also notes that the mother was not present to support X on for her first day of primary school,[31] despite alleged arrangements between the parties for this to occur. In paragraph 28 of her affidavit, the mother asserts that the father made threats of violence to her over the telephone which caused her to be too fearful to attend the school on X’s first day. Specifically, the mother alleges that the father said to her:
[31] See the father’s affidavit filed on 1 May 2013 at paragraph 63; mother’s affidavit sworn 13 February 2013, at paragraph 28.
“If you go anywhere near the school I am going to punch your head in.”
The Court finds it difficult to accept the veracity of the mother’s evidence in this respect. The alleged threat was made on 30 January 2013. The mother’s affidavit was sworn on 13 February 2013, two weeks later. The mother provides no evidence that she reported the alleged threats to the Police. This is in the context of the events on 11 November 2012 and the succeeding months in which, following a complaint by the mother to the Police, regarding threats made to her by the father, the father was arrested and charged. On 30 January 2013, the father was in fact on bail awaiting trial and sentence for the incident in November 2012. Had the father indeed made threats against the mother on 30 January 2013 which made her fearful, it is only reasonable to assume that the mother would have reported these to the Police. In the absence of any evidence that she did so, the Court cannot accept the mother’s assertion about threats made by the father on 30 January 2013. Consequently, the Court finds that the mother chose not to participate in the child’s first day of school for other reasons known to her.
When the lack of participation in X’s first day of school is considered in the light of uncontroverted assertions in the father’s evidence that the mother has expressed to X her preference for her to attend school at (omitted), the Court has concerns about the mother’s commitment to supporting X’s schooling at the school at which the child is presently enrolled and to reliably spending mid-week time with the children.
Although the father’s affidavit was only filed on 1 May 2013, the mother was legally represented and chose neither to put on evidence in reply to the father’s assertions nor to press for there to be cross-examination on the new affidavit material. Instead, the mother consented to the affidavit evidence being received by the Court and considered on the papers. In the circumstances, the Court accepts the father’s evidence of the conversations and facts alleged that are referred to in the immediately preceding paragraphs.

Injunctions and restraining orders

As stated previously, both parties seek orders for the imposition of various injunctions and restraints.
The power of the Court to grant injunctive relief in areas relating to a child arises from s.68B of the Act. This section is directed to a child (but includes adults in a situation associated with a child).
Section 68B of the Act states:
“(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
(b) an injunction for the personal protection of:
(i)a parent of the child; or
(ii)a person with whom the child is to live under a parenting order; or
(iii)a person with whom the child is to spend time under a parenting order; or
(iv)a person with whom the child is to communicate under a parenting order; or
(v)a person who has parental responsibility for the child; or
(c) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of the child; or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i); or
(d) an injunction restraining a person from entering or remaining in:
(i)a place of residence, employment or education of a person referred to in paragraph (b); or
(ii)a specified area that contains a place of a kind referred to in subparagraph (i).
(2)A court exercising jurisdiction under this Act (other than in proceedings to which subsection (1) applies) may grant an injunction in relation to a child, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.
(3)An injunction under this section may be granted unconditionally or on such terms and conditions as the court considers appropriate.”
There is an overlap between ss.68B(1) and 68B(2) of the Act, in that similar orders may be made under either provision. That said, s.68B(1) of the Act is a stand-alone, or independent, power, meaning that there is no necessity for the existence of other proceedings. In contrast, s.68B(2) of the Act is ancillary and only operates in the context of existing proceedings and would be in aid of those proceedings. It appears that in the exercise of these injunctive powers, the “best interests of the child” is an important, but not paramount, consideration, unless the order or injunction is a parenting order.[32]
[32] Flanagan & Handcock [2000] FamCA 150; (2001) 27 Fam LR 615; (2001) FLC 93-074; Bennett v Bennett [2001] FamCA 462, (2001) 28 Fam LR 231; (2001) FLC 93-088.
Consequently, I will consider these issues further following a consideration of the statutory provisions relevant to the determination of the children’s best interests.

Best interests of a child

As stated previously, the Court is under an obligation to make parenting orders that it determines are in the children’s best interests. For this purpose, the Court will now turn to a consideration of the factors in s.60CC(2), (3) and (4) of the Act in the context of this case.

Primary considerations: section 60CC(2)

Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents

The Full Court considered this provision and the concept of ‘meaningful relationship’ in McCall & Clark [2009] FamCAFC 92 (“McCall”).[33] In McCall the Full Court stated:
“109. The Act does not contain a definition of ‘meaningful’, nor does it provide any specific criteria to assess how parents either have, or should have, a ‘meaningful involvement’ in a child’s life. It does not give guidance to the interpretation of the phrase ‘meaningful relationship’.
110. It is necessary we construe the language of the statute to determine whether the import of the legislation is clear without reference to extrinsic material.
111. The Macquarie Dictionary defines the adjective ‘meaningful’ as ‘full of meaning, significant’. Significant is defined as ‘important; of consequence’
112. The Shorter Oxford English Dictionary defines ‘meaningful’ as ‘Full of meaning or expression; significant …’ ‘Significant’ is defined as ‘Having or conveying a meaning; Expressive; suggesting or implying deeper or unstated meaning … important, notable; consequential ...’”
[33] The Full Court, comprised of Bryant CJ, Faulks DCJ, Boland J.
The Full Court later stated, at [118] to [122]:
“118.It appears to us that there are three possible interpretations of s 60CC(2)(a):
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is ‘the prospective approach’ although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
120. We reject the interpretation in sub-paragraph (b). In our view if the legislature intended to elevate the benefit to a child of a meaningful relationship to a presumption it would have said so in clear and unambiguous language.
121. In coming to our conclusions we accept as appropriate the interpretation of ‘meaningful relationship’ set out by Brown J in [Mazsorski & Albright (2007) 37 Fam LR 518]. Consistently with our conclusions we also agree with the reasoning of Bennett J in G & C [2006] FamCA 994].
122.In reaching these conclusions, we also consider the legislation requires a court to focus on the benefit to the child of a meaningful or significant relationship. No doubt in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived by a child by a court attempting to craft orders to foster a relationship with one parent if this would not be in the child’s best interests.”

In summary, what the Court is required to do is consider and weigh the available evidence and determine (assuming the Court is satisfied that it is in the children’s best interests) how and what orders can be framed in order to ensure that the children have a meaningful relationship with both of their parents (and by implication their extended family).
Generally speaking, it is beneficial for children to have a meaningful relationship with the each of their parents and extended family. However given the level of acrimony that exists between the parties in this case, the involvement of family members in this dispute and the incidents in which racially abusive epithets have been ‘hurled’ between the two sides of the children’s families, it is likely that both parents do not truly understand this fact.
The optimum outcome in this case would be where both of the parents are able to support and be involved in the children’s activities and daily routines. This desirable outcome must be realistically balanced against the overarching consideration of protecting the children’s best interests. The Court refers again to its comments set out above.

Section 60CC(2)(b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

Unfortunately, this matter is marred by allegations of violence made by each party against the other. Although neither party makes allegations that violence has been directed by the other at the children, there is evidence to suggest that the children have been exposed to the parties’ serious displays of aggression on a number of occasions.[34] The mother asserts that the father has referred to her as an “Abo slut” while the father asserts that the mother has referred to him and the paternal family as “(omitted) dogs”. The term “dog” is also one that appears numerous times in text messages from the father directed at the mother. Both parties should be deeply ashamed of themselves for continually using language such as this, especially in the presence of their children. Every time that they do so, without fail, they are also insulting and abusing the identities and heritage of their young children.
[34] See, for example Transcript, 3 April 2012, pages 58-59 (mother has “frequently” vilified the paternal family by reference to their religious and ethnic background), 75 (children are alleged to have witnessed violence between members of the paternal household), 85-86 (mother swore and racially abused the paternal family in the presence or hearing of the children); Transcript, 4 April 2012, pages 4-5 (parties have ‘shouted’ and ‘screamed’ in front of the children), 8-9 (parties had a physical altercation while in a car with the children), 14-19 (father assaulted the mother, broke furniture and an air-conditioning unit, resisted and abused Police in the presence and/or hearing of X), 32 (father called the mother a “slut” in front of the children). The father is also the subject of an AVO protecting Mr M, a former partner of the mother, whom the father is alleged to have chased and repeatedly struck with “a corn cob”. Another version of this incident sees the father brawling with and repeatedly punching Mr M with the children looking on from the car. The Police apparently questioned X about the incident (Transcript 4 April 2013, pages 33-34, 40-42). Some of these violent incidents are also described in the parties’ affidavits.
In his closing submissions, Mr Guterres, for the ICL summarised the parties’ history of violence and abusive speech as follows:[35]
[35] Transcript, 30 July 2012, pages 305-306.
“Your Honour would expect in most circumstances that a parent might be on some good behaviour in the face of proceedings before the court. That was not the case. And that incident in and of itself is extremely concerning. Your Honour will recall the evidence – and to her credit, the mother accepted a lot of it in the witness box – in respect of that incident, where she turned up to the house at the paternal grandparents, shouted obscenities to the home. Obscenities that she accepted the children might have considered were directed at them, but quite frankly they were obscenities which were revolting and which she exposed the children to.
In my submission, your Honour would find that in terms of – or since the children have been placed with the father at the home of the paternal grandparents, really the only incidents of violence, or what one might describe as violence, have been the incidents where the mother attended the home of the paternal grandparents and needed to be removed by the police. Your Honour would also be concerned about the mother’s involvement in relationships of domestic violence, and in this regard, in particular in terms of the evidence, her relationship with Mr M [sic]. Importantly, that was not mentioned in any of the mother’s material. And your Honour should place some weight on that, in my submission. Your Honour will recall that the police records in respect of that particular relationship show that as early as February of this year she was involved in a relationship with that gentleman which involved acts of physical violence. And of particular concern, your Honour will recall her evidence that she considered him to still be a friend and that he lived down the street from her.
…
In respect of the incident which lead to the change in the care arrangements of the children the subject of these proceedings, the evidence is also concerning, in my submission. What is apparent is that the mother was upset. It’s unclear though from her oral testimony, really why that was. Your Honour might recall that I asked her why she was so upset when the paternal family had suggested to her that they come and collect the children so she could go and do her Christmas shopping, and she simply couldn’t explain the reasons for it. Whatever it was she said, it was concerning, and it certainly was concerning enough for the police to have attended upon her home and removed those children. I think she conceded during evidence, your Honour, that she has said words to the effect, which were recorded, ‘If I hurt myself, I won’t leave the kids with you. I will take them.’ Something to that effect. Whatever it was she said, even if it wasn’t a specific threat, it was – they were words which were sufficient to have caused not only the paternal family to be concerned but clearly the police also.
Neither parent, in my submission, has been able to put their relationship above the needs of these children. They have both placed them in situations of significant physical danger and they simply haven’t been able to prioritise the needs of the kids. The status of their relationship, in my submission, remains unclear. Notwithstanding things from the bar table today that they have not seen each other or communicated, well, at least since the last court date, the evidence before your Honour that was lead when the matter was before your Honour last, would lead your Honour to find that their relationship is indeed ambivalent as Ms E suggests. Clearly that has implications for ongoing risk.”
Unfortunate though it is, the parties do not seem to be able to maintain a normal, healthy relationship with each other and this has led to numerous damaging and distressing events occurring within the sight and hearing of the children. On the evidence, the Court cannot but conclude that both parties share equally the responsibility for their disgraceful and contemptible behaviour. Both of them need to reflect very deeply on the example that they are setting for their impressionable young children and the lasting psychological and emotional harm that their past and future behaviour may cause to these two little girls. The Court condemns both parties’ actions in the strongest of terms. It is hoped that the parties will actively display the love that they each undoubtedly feel for X and Y by restraining their speech and behaviour within respectable limits in the future. Whatever the feelings of each of them may be toward the other, their children are the innocent parties caught in the middle of their destructive relationship.

Additional considerations: section 60CC(3)

Section 60CC(3)(a): any views expressed by the child and any other factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views

As part of the family report process, Ms E observed X and Y with each of the parties. X was also briefly interviewed although Y, given her young age, was not.
The Family Report contains the following comments:
“43. X (aged four years) presented as a reserved, self-sufficient child who was quite ‘watchful’ throughout the day. She was quite willing to come with the writer for a brief period of assessment. X identified her mother as a ‘happy bear’ and said that she feels sad when [I am] ‘missing mummy’. She said that she often whispers to herself ‘I want mummy’. She said that she is not scared of her mother and is always ‘happy to see mummy’. X was able to identify favourite times with both her mother and her father and identifies (paternal grandmother) Mrs Adamson [sic] as being happy.
44. It was observed that X maintained a distance from Ms Lambert, Mr Adamson and Mrs Adamson senior but stayed within a safe distance from them, not venturing too far away, but playing separately and was somewhat ‘watchful’.
45. When with X, Ms Lambert was able to engage her in different games and conversation and X gradually came closer to her mother. She was eventually close to her mother, playing with her, sitting closely, allowing her mother to stroke her. X was able to relax with her mother and to chat and engage in the activity. X seemed to gravitate towards her mother when all the adults were in proximity.
46. When Mrs Adamson senior came into the room, X demonstrated the most expressive response to her (as compared to other adults), running up to her for a cuddle. She was observed to be initially more reserved when with each of her parents. It is possible that, having experienced instability for a considerable period of her life between her parents, her grandmother represents a safe haven for her as would be consistent with her being her primary carer for the past year of her life.
47. Y (aged two years and one month) presented as an emotionally open young child. Y settled easily into the childcare room and was able to be left. Although she has lived away from her mother for almost 11 months after removal in December 2010, she still appears to have a strong, if somewhat anxious, attachment to her. Y gravitated to whichever adult was in her proximity - her mother, her father or paternal grandmother and wanted to be held. When all adults were in proximity she went directly to her mother.
48. In contrast to X, Y was totally demanding of her mother’s attention and affection and did not want to be separated from her physically when in the room together. Y remained determinedly on her mother’s lap or in her arms the whole time she was in the presence of Ms Lambert and was not observed to play separately, for any length of time, from Ms Lambert when they were together.
49. Y also demonstrated a close relationship with her father and was happy to see him when he came to the room[.]”

Section 60CC(3)(b): the nature of the relationship of the child with each of the child’s parents and other persons …

There is no doubt that both parties love the children. It is all the more unfortunate, therefore, that both parties have been largely unable to subordinate their own emotions and impulses to the extent necessary to adequately protect and promote the children’s welfare.
That said, certain observations made by Ms E are of interest. Ms E commented that X demonstrated a noticeable level of comfort and expressiveness with the paternal grandmother and Y, in particular, showed a strong attachment to the mother. Both children seemed to have a healthy relationship with each of their parents and the paternal grandmother. Ms E’s comments about the paternal grandmother representing a “safe haven” for X (and presumably also Y) are pertinent to the Court’s consideration. Given the parent’s conduct to date, it may be that the paternal grandmother presents as the only really stable influence in the children’s lives at this time.

Section 60CC(3)(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

Both parties have a demonstrably poor record in this regard. During cross-examination, both parties admitted ‘hurling’ racially offensive epithets at each other and family members, often in the presence or hearing of one or both of the children. Neither party has done much to facilitate the children’s relationship with the other party. That said, the father gave evidence that:
“We do prayers and when we pray we include her mother. There’s photos besides the girls’ bedside tables of them and their mother. I’m not – you know, of course I want them to love their mother.” [36]
[36] Transcript, 4 April 2012, page 28.
On the evidence, I am of the view that there is greater support in the father’s household for the children’s relationship with the mother than vice versa. On balance, I believe that this is largely due to the positive influence of the paternal grandmother, who, in spite of extremely vociferous abuse from the mother, continues to be demonstrably supportive of the children’s bond with the mother. In her oral evidence, I asked the paternal grandmother to elaborate on comments that she made about trusting the mother:
“At another point in your evidence you agreed that you trust Ms Lambert – they were your words – can you just explain that to me?‑‑‑
Yes 
Why?‑‑‑
she’s caring, she’s loving, she’s – you know, but she doesn’t – I trust her with me. I trust her with me but she’s – I’m good to her and she’s good to me. We never – she – she abuse me on the phone. See, she think I took her kids from her. Honestly, I didn’t take her kids from her. I want her to be good so she can look after her kids, you know. I didn’t – I’m just helping and it happened – what’s happened – because Mr Adamson living with me I’m involved.” [37]
[37] Transcript, 30 July 2012, page 263.
When questioned by me following cross-examination, the paternal grandmother also gave the following evidence about the maternal grandparents visiting the children at her home:
“… Do you have any relationship with Ms Lambert’s parents at all?
‑‑‑Yes, they – actually, they came and visit me once when – I don’t want to open all this up – they came – her mum –
…
Is it this year? Is it last year?
‑‑‑Yes, yes, no, no, this year. The kids were in my care; before the court – before the first court. And her mum 
Earlier in the year?
‑‑‑Yes, yes.
Right?
‑‑‑They came and – with her sister – the other sister.
When you say ‘They came’ what do you mean by that?
‑‑‑They came and visit us because Z [the older daughter of the mother] was going to leave to New – New Zealand but I don’t know where she goes – Z – and she – she came over to say goodbye to the kids because she was living with 
…
She was going to New Zealand or somewhere?
‑‑‑Yes. She was going to leave and she – she came over and she said goodbye to the kids and the – the next day she left. And she was living with her grandmother because she had a fight with her mother.
All right?
‑‑‑With Ms Lambert.
That was earlier this year?
‑‑‑Yes.” [38]
[38] Ibid, pages 264-265.
Apart from the role that the paternal grandmother has played in facilitating the children’s relationship with the mother, this evidence further demonstrates that the paternal grandmother has the capacity to promote a relationship between the children and members of the maternal family.
The Court respects the role that the paternal grandmother has played in the lives of the children in circumstances where the conduct of both parents has been less than impressive.
In contrast, the Court has very little confidence in the mother’s desire or ability to facilitate a close and continuing bond between the children and the father, given the evidence of her past behaviour.

Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation …

On the evidence, the children have lived predominantly with the father and/or the paternal family since about 23 December 2010, when X was 3 years of age and Y was just 14 months of age.
If the Court were to decide that the children should live primarily with the father and the paternal family, this would not amount to a significant change in the children’s current circumstances.
If the Court were to accept the mother’s proposal that the children live primarily with the mother, it would need to consider the impact that such a significant change in the children’s living arrangements would have on the children. That said, the Court notes that the mother sensibly proposes a graduated period of time building up to the children living with her at the conclusion of 12 weeks. Interestingly, Ms E suggested in her evidence that, should the Court favour an outcome whereby the children returned to live primarily with the mother, then a maximum three month transition period was appropriate, provided the children were reasonably settled.[39]

Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis

[39] Transcript, 30 July 2013, pages 291-292.

No real difficulties arise with respect to the distance between the parties’ respective residences. The parties currently live approximately 17 km apart, which is about 20 minutes travelling time by car or 40 minutes using public transport.[40]
[40] The Family Report, paragraph 7.
However, the practical difficulty that arises between the two parties in this case is almost exclusively due to their volatile, on-again-off-again relationship and the implications that this may have for changeovers and communication between the parties. Both parties should engage in programs of therapy to improve their ability to communicate and care for the children. There are also concerns on the evidence about the viability of changeovers being conducted by the paternal family, particularly given the mother’s demonstrated hostility toward them.[41] For the time being, it may be more preferable for changeovers to occur at a contact centre (or, where applicable, at X’s school) unless the parties agree to a suitable neutral venue so that any interaction between the parties and their families can be avoided. Regrettably, changeovers occurring at the home of either party should be prevented.

Section 60CC(3)(f): the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs

[41] The father’s affidavit filed on 1 May 2013, paragraph 56; see also the mother’s affidavit filed 30 November 2012, paragraph 24, and the mother’s affidavit filed 13 February 2013, paragraph 20.

To their credit, both parents have given evidence of adult education courses being separately undertaken by them. In the father’s case, he gives evidence that (omitted) courses he has undertaken have enabled him to read with the children and help them with their own reading.[42] The Court also draws comfort from the presence of the paternal grandmother in the children’s lives and the role that she will continue to play in their emotional and intellectual development.
[42] The father’s affidavit sworn on 29 March 2012, at paragraphs 131-134.
Ms E’s comments in the family report about the children’s attachment to the mother and her place as an “emotionally central figure” also gives that Court comfort as to the mother’s ability to provide for the children’s needs when they are in her care.

The disturbing trend thus far has been the parties’ tendency to forget the needs of the children in the face of their own conflict on occasions when they come into contact or communication. The Court has formed the view that the use of a communication book will assist the parties into the future in better dealing with the responsibilities of parenthood.

Section 60CC(3)(g): the maturity, sex, lifestyle and background of the child, and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant

The father comes from a (omitted) family and it is clear on the evidence that the paternal family, particularly the paternal grandmother, are observant of certain aspects of the (omitted) faith.
The mother’s Aboriginal background is addressed in greater detail below.

Section 60CC(3)(h): if the child is an Aboriginal child or a Torres Strait Islander child …

This is a relevant consideration in this case, although it must be considered in the wider context of the other factors which a Court must have in mind in determining a child’s best interests. The mother is of Aboriginal Australian heritage, specifically from the (omitted) (also known as (omitted)) people from Central NSW. She has given evidence of her connection to and acceptance by the Aboriginal community, and of her desire to impart knowledge of her Aboriginal culture to the children.[43] The mother has also given evidence that she was enrolled in an Aboriginal studies course at (omitted) College in (omitted).[44]
[43] The mother’s affidavit sworn on 22 March 2012, at paragraph 1.
[44] The mother’s affidavit filed on 22 March 2012, at paragraph 12.
Unfortunately, the mother did not elaborate on the activities or types of cultural engagement in which she would promote the children’s involvement. She did not, for example, provide evidence of the involvement of extended family in the parenting of the children. I do note that there was some evidence that the mother’s brother and other family members joined with her and the children for a birthday party on 25 November 2012.[45] The mother, in both her affidavit and oral evidence, does not make any real reference to the sorts of things that she does, or intends to do, with the children to educate them about their Aboriginal heritage.
[45] The mother’s affidavit filed on 30 November 2012, at paragraph 23.
It is important for children with an Aboriginal heritage to have the opportunity to be involved in family events and gatherings and thus to maintain an affiliation with other Aboriginal people and the Aboriginal community in general. The children should have the benefit of participating in any opportunities to absorb the history, beliefs and values of the Aboriginal side of their family. This may include visits to “country” or sites significant to the (omitted) people. This will be important for the healthy development of the children’s cultural and personal identities.
The Court will expect the father to encourage and facilitate the children’s participation in activities that are significant to their Aboriginal heritage.

Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

As expressed elsewhere in this decision, the parties each have a poor record when it comes to prioritising the welfare of the children over their own emotions and wishes. Each of the parties make allegations against the other with respect to the level of care given to their responsibilities of parenthood.
The mother, in particular, makes allegations that the father “sleeps all day” and leaves the children in the care of “other people while the paternal grandmother is helping care her daughter care [sic] for her two children who are unwell.”[46] A few paragraphs later in her affidavit, the mother asserts that the “respondent is always leaving the children in the care of the paternal grandmother, which causes conflict between all family members.”[47] On one reading, these two assertions may seem slightly contradictory.
[46] The mother’s affidavit filed on 13 February 2013, at paragraph 15.
[47] Ibid, at paragraph 18.
The father, in his evidence, makes assertions about neglect and poor care of the children whilst in the mother’s household. The mother denies these allegations.

Section 60CC(3)(j): any family violence involving the child or a member of the child's family

Sadly, this factor is a major concern for the Court in this case. Even more concerning is the tendency of the father, in particular, to minimise the nature of his past violent behaviour. I am not convinced that this is necessarily due to a failure to recognise the wrongfulness of his conduct, but rather a desire to present himself to the Court in the most appealing light. The mother, to her credit, was more visibly (and, I believe, genuinely) remorseful about the effects that some of her unacceptable actions and comments may have had on the children.
It is also disturbing that neither party has seen fit to completely moderate their behaviour during the course of these proceedings. There is evidence, for example, that the mother made abusive or threatening remarks to the paternal family in the Court building itself following a Court event. The father’s conduct which has seen him facing criminal charges during the period that this decision was reserved is also rather damning. These events are a testament to the extreme acrimony and poor impulse control of both parties, particularly given that most litigants tend to be at pains to be on their best behaviour during the time that their matter is pending before a Court.

Section 60CC(3)(k): any family violence order that applies to the child or a member of the child's family …

This factor is also one of concern to the Court, particularly in light of recent events.
The father remains subject to an AVO protecting the mother. As stated above, it would be prudent to ensure that changeovers are handled in such a way as to prevent contact between the parties – not only for their mutual safety, but more importantly, to avoid the children being witness to further unpleasant scenes and interactions between the parties.

Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Court has some concerns about the impact that the parties’ ‘on-again-off-again’ relationship may have on their stable parenting relationship in the future. This is particularly so given that, during the period that this very decision was reserved by the Court, the parties not only admitted that they had been sexually intimate but were also engaged in another incident involving the Police which led to the arrest and charge of the father for threatening behaviour against the mother.
Nevertheless, the Court is convinced that, with the appropriate set of orders, the likelihood of the parties again needing the intervention of the Court will be dramatically reduced.

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

In their evidence, the parties have admitted to having used recreational drugs in the past, including after the births of the children. The paternal grandmother has also given evidence confirming her knowledge that the father has used marijuana in the past.
The father admitted during cross-examination that he had smoked “on and off” after X was born and before Y was born.[48] The father asserted that he had not smoked marijuana following the birth of Y.[49]
[48] Transcript, 4 April 2012, page 80.
[49] Ibid, page 81.

Section 60CC(4)

The Court is also required under s.60CC(4) of the Act to consider the “extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent”. I refer to my comments made previously in this judgment. Neither party comes before this Court with anything like an impressive record of parenting.

Conclusion

Having considered the evidence and submissions in light of the structured discretion contained in the Act, the Court is satisfied that the following outcomes would be in the best interests of the children in this case.
Firstly, the Court is satisfied that it is in the children’s best interests that the parties equally share parental responsibility for X and Y. The Court is not satisfied that aspects of parental responsibility should be given to one parent to the exclusion of the other.
Secondly, the Court is also satisfied that the children should continue to live with the father, provided that the father continues to live with the children in the home of the paternal grandparents, particularly given the large role that the paternal grandmother has had in the children’s lives and the positive impact she has had. The single most stable element in the children’s lives has been the paternal grandmother and her influence in their lives is more positive than either of the parties have thus far demonstrated they are each individually able to provide.
That said, the Court is of the view that the children should spend substantial and significant time with the mother. In view of the concerns that the Court has expressed regarding the mother spending mid-week, school-term time with the children, the Court is of the view that the children’s best interests would be served by them spending time with the mother on alternate weekends, from after school (or 3:00pm if a non school day) on Fridays until 5:00pm on Sundays. This will ensure that the children continue to receive adequate support for their schooling from the paternal family. In the event that a contact centre is used for changeovers, then these times may need some adjustment to accommodate the needs of the relevant centre.
The Court is satisfied that the children should spend half of the school holidays in Term 1, Term 3 and the Christmas long school holidays with the mother. To make up for the lack of mid-week time, the Court is also satisfied that that the children should spend the entirety of the Term 2 school holidays with the mother. This will give the mother a mid-year block period of time in which to travel with the children if she so wishes and possibly to participate in any family or cultural events.
The parties will, of course, be free to agree on further time that the children can spend with the mother and any such agreement is likely to be of benefit to the children.
I note that both parties propose that there be Orders that would enable the children to spend time with the mother on Mother’s Day and with the father on Father’s Day. I am satisfied that such an outcome is in the children’s best interests. I am also satisfied that there should be Orders reflecting the father’s proposal that would enable the children to spend time with the mother on each of the children’s birthdays, and on the mother’s birthday, in the event that they are not otherwise spending time with her on those special days.
It is somewhat more difficult for the Court to make defined Orders for the children to spend time with their respective parents on certain other significant days in the (religion omitted) and Christian calendars, such as (omitted), (omitted) and Easter, given that the dates vary from year to year and sometimes fall within school holiday periods. That said, I am satisfied that should the children be spending time with the mother during any (omitted) holy periods, then the time with the mother could be suspended as agreed. The mother, to her credit, proposes such an outcome in the final orders she seeks but leaves such to “agreement” between the parties. Given the circumstances, there will be Orders that, in the event of disagreement between the parties as to this issue then, not more than once in any calendar year, the father may give one month’s written notice to the mother seeking to spend time with the children on one specified (omitted) holy day (“the nominated holy day”). In that event, such time will be suspended from 5:00pm on the evening before the nominated holy day and such time will resume, if applicable, at 5:00pm on the nominated holy day.
I am also satisfied that, given Y’s age, there is merit in defining the spend-time arrangements for the next three Christmas/Boxing day periods (ie. 2013, 2014 and 2015).
There will be Orders that the parties each reasonably encourage and facilitate the children participating in any events, gatherings or activities relevant to their Aboriginal heritage as the mother may advise.
There will also be Orders that changeovers occur at a suitable public venue as agreed (such as X’s school and/or Y’s school upon her commencement) or, failing agreement, at a contact centre. The Orders will specifically prevent changeovers occurring at the residence of either party.
In the event that changeovers occur at a suitable public venue and the father is unable to effect changeover, he may, on reasonable notice being given to the mother, nominate that a suitable third party, such as the paternal grandmother, effect changeover. Regardless, the father (or his nominee) must immediately withdraw once the children come into the mother’s care.
I note that both parties seek orders that would facilitate the children communicating with the other parent between 5:30pm and 6:00pm on two days each week. The Court is satisfied that such orders are appropriate. While both parties propose that such communication time occur on Thursdays, the mother proposes that the other day be on Monday whilst the father proposes that the other day be on Tuesday. This issue was not the subject of specific submissions during the Final Hearing. In the circumstances, there will be an Order that failing agreement between the parties, such communication occur between 5:30pm and 6:00pm on Tuesdays and Thursdays when the children are living with the father and between 5:30pm and 6:00pm on Mondays and Thursdays when the children are spending time with the mother.
As stated previously, there will be an Order that the parties communicate by means of a communication book which should travel between the parties with the children. The parties will be restrained from writing anything in the communication book which is not related to the children and from using offensive, discourteous or derogatory language in the book.
I note that both parties also seek orders for non-denigration in the children’s presence. Given the circumstances, I am satisfied that such orders are appropriate. I am also satisfied that the evidence also supports the appropriateness of Orders for the mother and the father to be restrained from:
·using or being affected by any illicit drug or non-prescribed medication whilst the children are in their care;
·physically disciplining the children, or from smacking, hitting, pinching or pushing the children for any reason; and
·making any threat to either of the children or from otherwise saying or doing anything in the hearing or presence of either of the children which either of the children might find intimidating or threatening.
The father asked the Court to impose a restraint upon the mother “allowing the children to come into contact with Mr M at any time when the children are in her care”. I am not satisfied that the evidence suggests that such an injunction is appropriate. Nevertheless, I am satisfied that as to the appropriateness of there being an Order that the mother be restrained from allowing Mr M to attend any occasion where the father is likely to be present with the children (including at changeovers).
In the event that they are unable to reach agreement relating to the children’s long term care, welfare and development, there will be an order that the parties participate in family dispute resolution.
The parties will also be required, forthwith, to each contact an appropriate organisation as agreed or, failing agreement, the Information Referrals Officer of the Sydney Family Relationships Centre, to arrange an assessment for a suitable co-parenting course which they must thereafter separately enrol in and attend. Each party will be required to provide a copy of the certificate of completion of such a course to the solicitor for the other party and the ICL.
There will be Orders and Notations of the Court to reflect these reasons.

I certify that the preceding one-hundred and sixty (160) paragraphs are a true copy of the reasons for judgment of Judge Monahan

Date: 31 July 2013

[2013] FCCA 276

31 July 2013

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