LANSDOWNE & SHANNON

Case

[2014] FamCA 331


FAMILY COURT OF AUSTRALIA

LANSDOWNE & SHANNON [2014] FamCA 331

FAMILY LAW – CHILDREN – Best interests – Where a significant issue in the proceedings is parental responsibility – Where the court found that the father has engaged in family violence – Where pursuant to s 61DA(2) the presumption that it is in the best interests of the child for there to be equal shared parental responsibility does not apply – Where, notwithstanding that the presumption does not apply, there may still be an order for equal shared parental responsibility if that is in the best interests of the children – Whether granting equal shared parental responsibility would be in the best interests of the children – Where the court was not satisfied that the family violence that has occurred would prevent there being equal shared parental responsibility.

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61DA, 65DAA
Dundas & Blake [2013] FamCAFC 133
APPLICANT: Ms Lansdowne
RESPONDENT: Mr Shannon
FILE NUMBER: SYC 370 of 2013
DATE DELIVERED: 22 May 2014
(As amended pursuant to rule 17.02 of the Family Law Rules 2004 on 4 July 2014)
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Aldridge J
HEARING DATE: 10-13 February 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Harper
SOLICITOR FOR THE APPLICANT: Kyle Family Lawyers
COUNSEL FOR THE RESPONDENT: Ms Clifford
SOLICITOR FOR THE RESPONDENT: Hamish Cummings Lawyers

Orders

  1. That the parties shall have equal shared parental responsibility for the children X born … 2004 and Y born … 2006 (‘the children’).

  2. That the children shall live with the mother.

  3. That the father shall forthwith take all necessary steps to enrol in, and to complete the Relationships Australia course ‘Taking Responsibility: A Course for Men’.

  4. That commencing on the second weekend after the making of these orders the children shall spend time with the father as follows:

    (a)During school terms in a fortnightly cycle as follows:

    (i)Each alternate weekend from after the children’s Saturday morning activities when the father will collect the children from BB Park, Suburb CC to the commencement of the next school day; and

    (ii)In the following week commencing each alternate Tuesday from after school until before school the next day.

    (b)Then upon the father enrolling in and successfully completing the Relationships Australia course ‘Taking Responsibility: A Course for Men’ each alternate week during school terms, from after school or 3pm Friday until before school the following Wednesday.

  5. That in school holiday periods the children shall spend time with the father as follows:

    (a)In the short June 2014 school holidays from 9am on the first Sunday until 7pm the following Friday;

    (b)That until the father enrols in and successfully completes the Relationships Australia course ‘Taking Responsibility: A Course for Men’ the father shall continue to spend time with the children in the short school holidays from 9am on the first Sunday until 7pm the following Friday.

    (c)Then upon the father enrolling in and successfully completing the Relationships Australia course ‘Taking Responsibility: A Course for Men’ thereafter all short school holiday periods the father shall spend time with the children for the first half of each holiday in even numbered years and the second half in odd numbered years.

    (d)In the long Christmas school holidays in 2014, 2015 and 2016, in alternate weeks, by agreement and failing agreement in 2014 and 2016 weeks 1, 3 and 5 with week 1 commencing at 9 am on the first Saturday of the holidays and concluding at 9 am on the following Saturday and in 2015 for weeks 2, 4 and 6 commencing at 9 am on the second Saturday after the commencement of the holidays and concluding at 9 am on the following Saturday,  (noting that week 6 may be less than seven (7) days).

    (e)In the long Christmas school holidays commencing 2017 and each year thereafter, for one half of the school holiday period being the first half in even numbered years and the second half in odd numbered years.

  6. That notwithstanding the above orders, the children shall spend time with the parent with whom they will be spending the second half of the long Christmas school holidays, from 6 pm on Christmas Eve until 12 noon Christmas Day.

  7. That notwithstanding the above orders the children shall spend time with the father as follows:

    (a)On Father’s Day from 9 am until 5 pm and if not already with the father that day the mother shall deliver the children to the father at the commencement of such time and the father shall return the children to the mother at the conclusion of that time.

    (b)On the father’s birthday from after school until 7 pm and if the father’s birthday falls on a weekend then from 12 noon until 7 pm. 

    (c)On each of the children’s birthdays when the children are not otherwise spending time with the father, from after school until 6 pm when the children’s birthdays fall on a weekday and when the children’s birthdays fall on a weekend from 12 noon until 4 pm.

  8. That notwithstanding the above orders the children shall spend time with the mother as follows:

    (a)On Mother’s Day from 9 am until 5 pm and if not already with the mother that day the father shall deliver the children to the mother at the commencement of such time and the mother shall return the children to the father at the conclusion of that time.

    (b)On the mother’s birthday from after school until 7 pm and if the mother’s birthday falls on a weekend then from 12 noon until 7 pm. 

    (c)On each of the children’s birthdays when the children are not otherwise spending time with the mother, from after school until 6 pm when the children’s birthdays fall on a weekday and when the children’s birthdays fall on a weekend from 12 noon until 4 pm.

  9. That where changeover of the children, from one parent to another, does not occur at school or after an activity undertaken by the children, such changeover shall occur at DD Park, Suburb CC or such other public place as agreed between the parties.

  10. That each of the parties shall communicate with the children by phone, Skype or FaceTime every second day that the children are in the other party’s care, to commence on day two of such a period and such communication shall occur between 6.30 pm and 7pm.

  11. That each party shall advise the other, as soon as reasonably practicable but within twenty-four (24) hours, of any medical emergency in relation to the children.

  12. That each party shall notify the other of any attendance by the children upon a medical practitioner and any diagnosis or treatment plan and prescribed medication, if any.

  13. That neither party shall terminate the enrolment of the children in any current extra-curricular activity or afterschool activity or enrol the children in a new extra-curricular activity or afterschool activity without the prior written consent of the other party.

  14. That neither parent will attend the children’s extra-curricular events whilst the children are in the care of the other parent except:

    (a)if invited by the other parent in writing to attend; or

    (b)in the case of significant events such as presentation or award ceremonies, concerts or final performances or sporting finals.

  15. That the parties shall contact Ms B to obtain the names of three counsellors for the purpose of the children undertaking targeted counselling.  The parties shall agree to one counsellor within seven (7) days of the provision of the names and failing agreement Ms B will select the Counsellor.

  16. That the parties shall request Ms B to provide written guidelines to the counsellor pursuant to Order 16 with the intention of targeting the counselling to building the children’s resilience and ability to cope with changes in their two households.

  17. That for the purposes of Orders 15 and 16 above the parties shall be at liberty to provide Ms B with a copy of these Orders forthwith.

  18. That leave is granted to the parties to provide a copy of Ms B’s report to the counsellor selected by her or the parties for the purpose of counselling the children.

  19. That the parties shall not otherwise arrange or facilitate any form of counselling or therapy for the children or one of them without the prior written consent of the other parent.

  20. That where the mother is unavailable for the children’s overnight care, because of interstate or overseas travel for work commitments, in the event the period of unavailability is five (5) days or less, the father shall be given the first opportunity to undertake the care of the children in substitution of the mother. If the period of unavailability is more than five (5) days the mother shall give the father as much notice as is reasonably practicable and, if necessary, the children’s time with the father shall be suspended for the time that they are away with the mother.  By this order the mother is permitted to take the children interstate or overseas for that purpose.

  21. That in the event the children’s time with the father is suspended pursuant to Order 20 above then the father shall be entitled to have make up time with the children that he would otherwise have spent with them pursuant to these orders.  Such make up time shall be equal to the time that the father would have otherwise have had with the children and such make up time shall be as agreed between the parties and failing agreement as nominated by the mother. 

  22. That the father shall ensure that any clothing, shoes and other items the children bring with them when they spend time with the father, are returned to the mother with the children or, if accidentally left behind, within twenty-four (24) hours of returning the children to the mother.

  23. That if the mother becomes aware of an invitation for either child to attend a birthday party or other special occasion, on a day the child is otherwise to spend time with the father pursuant to these orders, the mother shall notify the father by email as soon as possible but within twenty-four (24) hours.

  24. That the father shall facilitate the children attending birthday parties and other special occasions associated with their school or extra-curricular activities, such as performances and competitions, during the time the children are in his care.

  25. That each parent shall keep the other parent informed of his/her residential address, telephone number and email address at all times.

  26. That each parent is restrained from doing any of the following:

    (a)denigrating the other parent to or within hearing distance of the children or allowing any other person to do so;

    (b)       denigrating the other parent either verbally or in writing;

    (c)causing or allowing the children to have contact with the paternal grandfather in any circumstances;

    (d)asking the children to keep anything said or done while in that parent’s care, a secret from the other parent;

    (e)allowing the children unsupervised access to internet browsing unless parental controls are in place;

    (f)leaving the children unsupervised at any time or place, including in a vehicle.

  27. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

  28. That all applications and cross applications be and are hereby dismissed.

  29. That all issues be removed from the Active Pending Cases List.

  30. That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC370 of 2013

Ms Lansdowne

Applicant

And

Mr Shannon

Respondent

REASONS FOR JUDGMENT

Introduction

  1. These are parenting proceedings relating to X (aged 9) and Y (aged 7) (‘X’, ‘Y’ or ‘the children’). 

  2. Pursuant to interim orders made by Judge Altobelli on 16 August 2013 the children live with Ms Lansdowne (‘the mother’).  They spend time with Mr Shannon (‘the father’) during school terms each alternate weekend from after the children’s Saturday morning dance class until 4 pm Sunday.  They also spend time with him each Tuesday from after school, or school activities until 7 pm.  During the short school holidays the children spend time with the father from 9 am on the first Saturday of the holidays until 7 pm the following Tuesday.  His Honour also ordered that the children spend time with their father in three block periods over the 2013/2014 Christmas school holiday periods with the first of the block periods consisting of two consecutive days and the second and third block periods consisting of three consecutive days.  Time was also provided for the children to spend time with the father on special occasions.

  3. A significant issue in the proceedings is parental responsibility.  The mother seeks an order that she have sole parental responsibility for the children.  The father seeks an order that there be equal shared parental responsibility.

  4. The position of both parties as to the balance of the orders sought by them changed throughout the hearing.  Both parties proposed that the children continued to live with the mother.  Initially the mother opposed there being any or significant increase of time that the children spend with their father. 

  5. However in final submissions, having regard to the evidence given in the proceedings and, in particular the evidence given by the single expert Ms B, the mother substantially amended the orders proposed by her.  She proposed that the children spend each alternate weekend with the father from after their Saturday morning activities until the commencement of the next school day.  In the alternate week the children were to spend time with their father on Tuesday from after school until before school the next day.  The minute of order proposed by the mother also permitted an extension of the time that the children would spend with their father.  In the event that the father successfully completed the Relationships Australia course ‘Taking Responsibility: A Course for Men’ or the commencement of the school holidays at the end of Term 3 of 2014 (whichever was the later) the children would spend time with their father from after school Friday until before school the following morning.  She proposed that for the short school holidays this year the children spend time with the father in the first school holiday period from 9 am on the first Sunday following the end of term until 7 pm the following Thursday.  For the next two school holiday periods the time spent with the father was from 9 am on the first Sunday following the end of term until 7 pm the following Friday. 

  6. In the event that the father completed the Relationships Australia course then the time for the first school holiday would be from 9 am from the first Sunday following the end of term until the following Saturday and in the subsequent two holidays from the first Sunday following the end of term until 7 pm the following Sunday.  The mother’s minute provided for two blocks of time during the Christmas holidays, each of five days.  In the event the father completed the Relationships Australia course that was to be two blocks of six days. 

  7. The father proposed a graduated regime as follows: 

    a)During school terms in a two weekly cycle for a period of six months from the date of the orders:-

    i)In week 1 from after school or 3 pm Friday until 6 pm Sunday; and

    ii)In week 2 each Tuesday from after school until 7 pm.

    b)During school terms in a two weekly cycle commencing six months from the commencement of the date of order a):

    i)In week 1 from after school or 3 pm Friday until before school Monday, and where Monday is a public holiday, before school Tuesday; and

    ii)In week 2 from after school Tuesday until before school Wednesday.

    c)During school terms commencing six months from the commencement date of order b) each alternate week from after school or 3 pm Friday until before school Wednesday.

  8. For the short school holidays the father proposed a block of five nights in the April 2014 holidays and thereafter a block of seven days.  In the long school holidays the father proposed the children spend time with him each alternate week and in the holidays commencing 2016, a block of one half of the holidays.

  9. It can be seen that apart from the issue of parental responsibility the issue between the parties was the extent of the time the children should be with their father and when any changes should be implemented.

Background

  1. The father was born in 1968 and is 45 years old.

  2. The mother was born in 1969 and is 45 years old. 

  3. The parties met in 2000 and commenced cohabitation in 2001.  They were married in February 2004. 

  4. X was born in July 2004 and Y in October 2006.

  5. The parties separated in May 2011.  They are not yet divorced.

  6. On 12 October 2011 the parties attended a mediation which resulted in agreement as to the time the children were to spend with the father. 

  7. In December 2012 the parties agreed to a parenting plan which provided for the children to spend one night per fortnight with the father and each Tuesday after school. 

  8. On 29 January 2013 the mother filed an Initiating Application seeking property orders.  On 26 March 2013 the father filed a response seeking both parenting and property orders. 

  9. On 16 August 2013 Judge Altobelli made the orders identified  earlier together with a number of other orders and transferred the matter to this Court.

  10. The issue of family violence played a central part in the evidence in this case.  In a long affidavit the mother made extensive allegations of a history of domestic violence from early in the relationship and continuing.  She alleges that she was pushed and shoved on some occasions.  The principal conduct however alleged by the mother was that the father was frequently and nastily verbally abusive and intimidating and used foul and denigrating language towards her.  It was said that this conduct had frequently occurred in the presence of the children. 

  11. The father’s initial response was to deny the allegations in total.  This is clear from his affidavit sworn on 5 February 2014 in which he referred to his earlier affidavits (sworn on 21 March 2013 and 8 May 2013).  He said:

    92.In each of those affidavits I denied categorically that I had been guilty of any family violence.  With the benefit of hindsight, and as a result of my attendance at an extensive course in anger management and the continuation of my personal psychological therapy, I have come to a realisation that my total and absolute denial was wrong.

    93.In November 2011 I found [the mother’s] electronic diary in the desk top.  [The mother] had been referring to it in some of our arguments.  I read the diary.  In it she referred to arguments between us several times.  It covered the previous 18 months.  She described me in the diary as “aggressive” and “abusive” and described her need “to reduce [a form of the father’s surname]’s influence on the children’s lives”. 

    94.I struggled to accept her words about me then and later in material filed by her in these proceedings such as ‘abuse’, ‘violence’, ‘bullying’ and ‘control’.  At that time I was repulsed.

  12. In that affidavit the father refers to what he states as many arguments, with the mother.  He also dealt with a number of specific allegations of incidents in which he gave a different view of the incident to that described by the mother. 

  1. A single expert, Ms B, provided a report to the court dated 28 June 2013.  In that report she said:

    66.[The father] told me that he found that [the mother’s] allegations of domestic violence and abuse to be “absurd”.  He told me that in some ways he finds it angers him because it is “an insult to people who actually are victims of domestic violence”.  For example, he told me that on one occasion he found a diary that [the mother] had left and he found “it was delusional” because it “completely twisted events” and he formed the view that he was “being framed” and this prompted him to seek legal advice.

  2. The father told Ms B that he thought that in some ways that he did contribute to the tension and fighting at home.  Ms B reached the following conclusion:

    118.Undoubtedly these children have been exposed to family violence as documented by both of the parents.  When questioned about this I found the father gave a full and frank disclosure of his own contributions to family violence.  He told me that he behaved in a manner which was mean spirited, controlling and verbally abusive of the mother at times.  He also told me, with regret, that at times he behaved in this manner in front of the children.

  3. Thus it may be seen that the position described by the father about the diary to Ms B was not quite the same as it was described by him in his affidavit. 

  4. Minimising the impact of his behaviour on the mother and the children, as the husband has done for some time, even to Ms B, is concerning.

  5. From the careful and concise cross-examination of the mother and a similar examination-in-chief of the father, about the mother’s recent affidavit, it became clear that many of the mother’s allegations were not seriously in dispute.  Generally speaking, it was the severity of the allegation and, in particular, the nature of the language used by the father that was in dispute between them.  As the cross-examination of the father proceeded it became clearer that the denials of the father were not again as absolute as he had previously asserted.  It is clear from the evidence and in particular the father’s own evidence during cross-examination that he was frequently verbally abusive of the mother and used nasty, denigrating and foul language towards her. 

  6. In those circumstances I do not propose to traverse all of the allegations of domestic violence raised by the mother in her affidavit.

  7. It follows even if when on occasions, particularly when the children were younger, the father would come home and start kicking items that had been left on the floor shouting and swearing at the mother, abusing her for X waking and him not being able to sleep.  On those occasions the father used foul language and behaved in an abusive and intimidating manner in front of the children.

  8. The father specifically denied, in answer to a series of questions, using the word ‘fuck’ or ‘fucking’ in arguments with the mother.  He later admitted that when he swore he did use those words.  However, his denial of what was said was based on what he said were phrases or turns of speech he did not recognise.  Having regard to that evidence and to the evidence of the father I find that the version of the conversations, generally speaking, given by the mother is to be preferred. 

  9. It follows that in 2008 there was an incident when the parties and the children were in the car with the father driving, Y was crying and the father started yelling at Y saying ‘Shut up’, ‘Shut the fuck up’ and then to the mother ‘Shut that fucking kid up’.  The father then punched the windscreen so hard that the windscreen either smashed or cracked.  The father pulled the car over got out and walked away. 

  10. In cross-examination the father agreed that at the time he was not in charge of his emotions and that it was an unpleasant incident which would have made the mother anxious.

  11. When Y was being weaned at about eighteen months of age he frequently cried when he woke in the night.  On the first occasion the father angrily said to the mother ‘Shut that kid the fuck up, I am trying to sleep’. 

  12. In December 2009 the father smashed a window at the family home.  Although he initially denied that the children had been home it emerged in cross-examination that in fact the children and the mother were just leaving the home as he did so.  He agreed at that time he was not in control of his emotions.  He agreed that the mother would have been frightened by that behaviour.

  13. When asked was that all the mother would feel, he then added that she would feel scared and intimidated as well.  The father agreed that this was not normal behaviour.

  14. The father said he would not have broken the window if there had not been an argument.  He agreed that the children would also have been frightened by his behaviour. 

  15. In May 2011 the parties agreed that the father would be able to take Y to Melbourne to visit the father’s family.  The mother proposed that the father should prepare Y for the trip by taking steps to settle him at night.  The father refused.

  16. On 17 June 2011, as recounted by the mother, the father arrived late to collect Y for the trip.  Y started crying, ran inside and hid.  The father started shouting ‘Get him in the car now or this is on your head!’.   The father got louder and Y too got louder and more upset.  Y was screaming, struggling, kicking and pleading saying ‘I don’t want to go, I don’t want to go, No Mummy don’t make me go’.  Again the father said to the mother, ‘You get him in the car now or this is on your head.  This is the END – you get him in the car’.  He also said ‘your parenting has made them like this’, ‘This is your fault’ and repeating ‘GET HIM IN THE CAR!’.  The father also said ‘Oh my god, oh my god you have done this you have ruined my trip’.  Shaking with rage, the father’s hands trembling, the father grabbed Y and forced him into the car.  The father admitted that in the car he said ‘this is your separation anxiety, this is ruining our marriage’.  The mother also said the father said ‘you tyrant’, ‘you sick revolting tyrant’, ‘You nutter, you mad nutter’, ‘you have caused this, this is all your doing’.  I accept that the father made those comments. 

  17. When they arrived at the airport Y continued screaming that he did not want to go and would not get out of the car.  As a result the father simply walked off and walked home.  When he got to the family home he took all the wedding photos off the wall and destroyed a large number of them. 

  18. In April 2012 the father attended the family home and accessed the mother’s diary without her permission, took the children’s passports and a letter to her from the police force.  The father then sent the mother silly and sarcastic emails.  The father said that he read the diary because he was concerned about what was going on and the use of unusual language by the wife.  This coincides with his earlier evidence that he was concerned that the wife had had an agenda for some years to attempt to minimise his role with the children. 

  19. This incident caused the mother to change the locks on the family home. 

  20. The father had moved out in May 2011.  Over the ensuing nine months there were nights when the mother woke up and found the father staring at her.  The mother’s perception was that he was standing over her bed.  The father said that he was simply standing in the doorway, he was simply wanting to talk to the mother and it was not intended to be scary.  Notwithstanding what he said his intent was, it was clearly scary and intimidating behaviour on either version. 

  21. On 27 March 2013 the father sent the following text to the mother:

    You were always going to fight dirty.  I hate you for what you are doing you are a coward and a liar.  I hate you.  Your behaviour is appalling.  I vomited after I drove off after your hideous words.  I hate you.

  22. On 16 October 2009 a friend of the mother’s Ms EE arrived at the family home.  The two of them were planning on having dinner out.  As they were leaving, according to her, Y started to cry and called for his mother.  The mother said to him words to the effect:

    Mummy is going to have dinner with [Ms EE] and you and [X] are going to have a lovely time with Daddy

    The mother and Ms EE left and as they were in the car about to leave Ms EE said the father came out holding Y in front of him, with Y facing forward and crying.  Ms EE continued “[The father] yelled out a stream of abuse at [the mother]” he said, “This is your fucking fault, what a cunt of a mother you are, you’ve turned my son against me”.  He then plonked Y roughly down on the pavement and yelled, “You fucking deal with it”.  “[Y] was screaming hysterically and sobbing”. 

  23. The father denied this in his affidavit.  In cross-examination he said that there were aspects of that version that he did not agree with.  He said he did not say ‘cunt’.  This is consistent with his earlier evidence that he had only used that word towards the mother on two occasions and this was neither of those.  As the cross-examination on this topic continued it became clear that the father had no real recollection of this incident.  Ultimately, he said words to the effect ‘I remember [Ms EE] coming I don’t recall this description’. 

  24. There is no reason to doubt Ms EE’s evidence and it is accepted. 

  25. It is troubling that the father does not recollect this incident.  It was submitted by the mother that this incident was so common place that it does not stand out in his mind or that he had so lost his control.  It suggests the father was not aware of what he was doing.  I accept that submission.

  26. It also establishes that the father’s evidence about the use of language that he used towards the mother cannot be accepted for the same reasons for preferring the mother’s evidence as to the conversations.

  27. It remains to deal with the mother’s allegations that on occasions, particularly early in the relationship, the father pushed and shoved her. 

  28. In 2003 the mother told Ms EE she had been pushed. 

  29. On 20 May 2004 the mother attended FF Hospital where the hospital notes (Annexure ‘D’ of the mother’s affidavit affirmed 5 February 2014)  record her as saying that the father was verbally aggressive but ‘Never physically aggressive towards her but frequently physically aggressive towards furniture, objects’.  On 18 June 2004 the mother again informed the hospital that there had not been any physical violence.

  30. After the birth of X the mother sought the assistance of GG Family Care Centres.  The GG Team Leader made a notification to the Department of Community Services in relation to what she understood to be family violence.  The GG notes do not record any complaint of physical violence but do record the verbal abuse and the throwing of objects. 

  31. The GG notes (Annexure ‘E’ of the mother’s affidavit affirmed 5 February 2014) indicate that when the mother became aware that GG were proposing to make a notification to the Department of Community Services she begged them not to.  The notes of 8 September 2004 say:

    ‘[The mother] sounded very anxious is “petrified” of her husband’s reaction to the notification – fears he will leave her.  [The mother] stated that [Ms HH] had not told her that she was a mandatory notifier and that if she had been aware of this she would not have disclosed so much about her husband’. 

  32. The mother asserts that she did not disclose the physical violence because she was afraid that person to whom she would make that disclosure, such as the police or FF Hospital, would make a notification to the Department of Community Services.  However, when the mother informed the GG nurse Ms HH of her complaints about her husband she was, as the above note makes clear, unaware that Ms HH was a mandatory notifier.  Even then she made no allegation of physical violence. 

  33. Taking all the evidence into account, it is more likely than not that at times there was some pushing involved but that it was such that when viewed in the context of the other conduct of the father it did not assume any particular significance or importance.

  34. These proceedings were commenced by an Initiating Application filed by the mother on 29 January 2013. Thus the present definition of family violence contained within s 4AB(1) of Family Law Act 1975 (Cth) (‘the Act’) applies. It states:

    For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

  35. Section 4AB(2) gives examples of behaviour that may constitute family violence. These include repeated derogatory taunts, intentionally damaging or destroying property and unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, of his or her child, at a time when the family member is entirely or predominantly dependent upon the person for financial support.

  36. The father conceded that on at least one occasion he withheld housekeeping money from the mother because he was frustrated with her expenditure and that there were ‘times when I was punishing and so I would take a day or two’ to give the mother money. 

  37. Taking the above matters into consideration the mother has clearly established that the father engaged in family violence.  It was not seriously contended that he had not. 

Principles to be applied

  1. I must apply the relevant principles of the Act having regard to the objects of that part of the Act dealing with children as set out in s 60B. Section 60CA provides that the court must regard the best interests of the children as the paramount consideration. I am obliged to consider the matters set out in s 60CC of the Act.

  2. Section 61DA(1) provides:

    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. 

  3. Section 61DA(2) further provides:

    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

    (a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

    (b)family violence.

Section 60CC considerations

  1. I shall deal with the s 60CC considerations and then return to the issue of parental responsibility.

  2. There are two primary considerations raised by s 60CC. The first is the benefit to the child of having a meaningful relationship with both of the child’s parents. The second is the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.

  3. The mother is and will remain the primary carer of the children.  They clearly have a close and loving relationship.  Ms B described it as relaxed, intimate, playful and warm. 

  4. The children also have a good relationship with their father.  Ms B described it as extremely warm and engaged. 

  5. The orders proposed by both the father and the mother seek to maintain these two relationships.

  6. The need to protect the children from physical or psychological harm from being subject to or exposed to abuse, neglect or family violence is an important consideration. Section 60CC(2A) requires that when considering the two primary considerations set out in s 60CC(2) the court is to give greater weight to the considerations in paragraph (2)(b).

  7. Here, there is no suggestion that the children have been subjected to or exposed to abuse or neglect.  Although there is some evidence that on one occasion Y was ‘dropped’ it was not clear by whom he was dropped.  There is evidence that Y was ‘plonked’ on a couple of occasions.  The children have not been exposed to physical harm. 

  8. On the other hand, as I have found the children have been exposed to and, to some extent, subjected to family violence at the hands of the father.  It is therefore necessary to examine the effect of this family violence upon the children. 

  9. There was some attempt made by the mother to characterise the conduct of the father as coercive, controlling violence.  This is to distinguish the conduct from couples situational violence.  The distinction between the two is important as was explained by Ms B in oral evidence when she stated: 

    …[T]here are particular patterns of violence that are much more lethal, much more likely to be less amenable to therapeutic interventions and much more, therefore, dangerous to children.  And the sort of pattern of coercive controlling violence is one of those patterns, particularly when it’s characterised by these – a need to dominate and control another person.  The common-couple typology that I’m talking about is, you know – whilst I’m not excusing it – is more characterised by conflicts that occur around particular issues and both parties seem to be acting in these kind of conflicts, not from equal footing, but there’s no submission or dominance of one over the other, and so they’re seen as – well, exposure to conflict is not good for children, but these are seen as less sort of pervasive and dangerous in the long term and, similarly, there can be a typology of violence that is around the time of separation when people’s emotions are running very hot but out of character for how that person would behave in the general course of parenting or relationships.

  10. Ms B rejected that proposition saying the sort of family violence evident in the relationship was not consistent with there being coercive controlling violence.

  11. The real issue is how the children were affected.  The mother’s view is that X, at least, was traumatised by the family violence.  Ms B did not agree.  Taking into account the children’s regular attendance at school, regular friends, lack of continuing sleeping problems, no ongoing body pains, head-aches, no problems moving between the parents, undertaking many extra-curricular activities and performing at school concerts she was of the view that any family violence had not traumatised the children.  That view is accepted.

  12. The orders proposed by both sides will see the children spending significant time alone with the father.  The real difference is between the commencement of the extra time and the length. 

  13. The concern of the mother is that the children have longer periods of time with the father the greater the risk of him becoming frustrated with them and what will most certainly be, at times, their bad behaviour leading to an angry if not violent response. 

  14. It is clear, and indeed the father himself said, that there had been times when he has struggled to care for the children.  However, as has been described earlier, most of the incidents described by the mother have occurred between the mother and the father, albeit with the children present. 

  15. The mother said that in September 2013 Y said to his mother ‘Daddy hurts me.  He holds me so tight that it hurts and I say ‘stop stop’ but he doesn’t stop and he doesn’t listen to me and he says don’t tell mummy you must not tell mummy because you make trouble’.  It is difficult to conclude from that that the father was physically violent towards Y. 

  16. Apart from that, there are no instances of family violence directed towards the children when they have been alone with the father. 

  17. There were occasions when the parties were living together where the father made denigrating comments to Y (calling him a whimp, mimicking him) but they arose in the context of arguments between the mother and the father.  I accept Ms B’s opinion that there is nothing ‘that suggests that when dealing with the demands of children that he has lost his temper in any more than the normal range’.

  18. The father has taken a course in anger management and has seen a therapist on twelve occasions over the last year to deal with that issue and other issues.  Pursuant to these orders he will be attending a further course in anger management.

  1. On 22 January 2014 the mother and her father took the children to the father’s residence to spend time with him.  Neither of the children particularly wanted to go.  Both children said they did not want to go prior to leaving the mother’s residence and upon arrival at the father’s residence.  X went to the father when he called out to her and after seeking an assurance from her mother that she would call X.  The mother then went back to the car to get Y as he had locked himself in the car.  He then continued to have a massive tantrum crying, screaming and kicking.  The mother and father were both present as was the maternal grandfather.

    The mother described the incident as follows:

    I went back to getting [Y] out of the car.  [Y] continued having a massive tantrum, crying and screaming and kicking.  I opened the front door and put my hand through and unlocked the passenger door and opened it and [Y] kicked me and said ‘you can’t make me go I don’t want to go you can’t make me I am staying right here’.  I tried to calm and encourage him.  I said ‘Come on [Y] daddy will have some good stuff for you and I will get you something really special for when you get back’.  [Y] cried and tried to lock the door again.  [The father] came out again and said ‘what’s going on?’ [X] said ‘[Y] isn’t coming’ and [the father] tried to walk back inside ushering [X] to come.  [X] went for a little bit then [X] ran back to me, and said ‘Is [Y] coming’ I said ‘yes’.  I got in the car and said to [Y] ‘come on love we can work something out I need you to go to Daddy’s and he is waiting for you and you will have a good time and I will ring you ok?’ [X] started to open the doors and climbed in the boot to get [Y] out.  [Y] crawled into the boot of the car.  [Y] said ‘I am not coming.  I’m not coming’ I said ‘Come on [Y] you have to’ and [Y] said ‘I am not going unless I get a nerf gun now! I went around and opened the boot and [the father] came over with water guns and I said ‘Come on [Y] hop out’ [Y] looked at me and [the father] brought over a water gun, [Y] crawled out and went.  [X] squirted the car door with the water gun and I hooted and we left.  It was nearly quarter past nine and very stressful.

  2. Throughout this episode the father did not lose his temper, got angry or frustrated.  It was rightly relied upon by the father as real evidence of a change in his behaviour and approach. 

  3. The father says that he looked into domestic violence and his behaviour and realised that things were not black and white as he had previously thought.  He realised that he is intense and could come across as intimidating.  This realisation is greater than the realisation he demonstrated when he was interviewed by Ms B for the purposes of her report. 

  4. Hopefully this realisation will continue to develop.  There remains a risk that when pressured and in a difficult situation the father might display violent tendencies.  I am not satisfied that there is an unacceptable risk that he will do so and that the family violence that has occurred would prevent there being equal shared parental responsibility or prevent the time that the father or the mother proposes the children spend with him. 

  5. Pursuant to the orders that will be made changeovers will take place at school so the parties will not have to deal with each other in relation to those events.  This should go a long way to diffusing the continuing tension and conflict between the parties thus reducing the intensity and frustration the father believes he feels in relation to those events. 

  6. Section 60CC requires consideration of a number of additional factors.

Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children’s views

  1. Each of the children would like to spend more time with the father.  Given their ages, particularly X’s age, this is a factor that must be given some weight. 

The nature of the relationship of the children with each of the parents and other persons (including any grandparent or other relative of the children)

  1. The relationship of the children with their parents has already been discussed.  The orders proposed by both sides will seek to maintain and develop those relationships.  The children also have good relationships with their grandparents who live in Adelaide and Geelong.  Both parties have proposed orders that will see the children spending Christmas with their grandparents in alternate years thus maintaining and developing that relationship. 

The extent to which each of the children’s parents have taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the children, to spend time with the children and to communicate with the children

  1. Most of the long term decisions in relation to the children have made by the mother.  This is particularly so since separation and it is not surprising since the mother has been the primary care giver.  The father is critical of some of the mother’s decisions to enrol the children in extra-curricular activities especially those activities which impinge on the father’s time with the children. 

  2. Having said that, the parties engage in extensive email and particular text communication about the day to day issues of parenting.  Both are concerned to do the best for their children and as described by Ms B have similar goals for the children but different philosophies in approach as to how to achieve those goals.  There is no suggestion that the parents do not spend time and communicate with the children when they can and when they are able.

The extent to which each of the children’s parents have fulfilled, or failed to fulfil, the parent’s obligations to maintain the children

  1. The father is some $4 000 approximately in arrears in child support payments.  Early in the children’s lives there was some withholding of housekeeping money as described earlier.  Other than that each of the childrens’ parents has fulfilled their obligations to maintain the children.

The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of their parents or any other children, or other person (including any grandparent or other relative of the children), with whom they have been living

  1. The only significant change in the children’s circumstances will be the spending of greater time with their father.  Dealing with the father’s original proposal that entailed the children immediately spending five nights consecutively with him Ms B said in her report:

    114.…Although the children’s age and developmental stage means it is likely that they would be able to tolerate separation from their mother well, in this case I think a number of things need to be taken into consideration.  It is likely considering the acrimony to which these children have been exposed that they will find such a lengthy separation from their mother to be emotionally taxing.  That is not to say the Court should not give due consideration to this proposal, it is just that its implementation may need to be sensitively attuned to the children’s needs.  It is possible, however, that if the children are suddenly thrust into this arrangement with little preparation then they may pine for their mother, their behaviour may regress and they may act out or internalise their emotional experience.  In my view, if the children are to spend more extended time apart from their mother then this time needs to be organised in a graduated way.

  2. In cross-examination Ms B said the children are getting older and will be able to cope with the orders that will be made in this matter.  They are the orders suggested as appropriate by Ms B in that cross-examination.

  3. I am satisfied that the likely effect of the changes in the children’s circumstances that will occur under either set of proposed orders will not be detrimental.  Whilst a short period of adjustment will be made both sets of orders propose sensible graduated changes in their circumstances to which the children should adapt well. 

The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis

  1. The parties live relatively closely together.  There is no practical difficulty about them spending time or communicating with either of the parents.

The capacity of each of the children’s parents and any other person (including any grandparent or other relative of the children) to provide for the needs of the children, including emotional and intellectual needs

  1. Both parents have an adequate capacity to deal with the children’s physical needs.  As Ms B said the mother has an excellent capacity to provide for the children’s emotional and intellectual needs.  She is emotionally attuned to them and sensitive to their needs including their intellectual and educational needs. 

  2. The father is less well equipped to deal with the children’s emotional needs.  Ms B said in her report:

    113.…Although the father demonstrated a considerable degree of insight in his interview with me as to the impact of his behaviour upon the children, I found that he also had minimised the degree to which his behaviour had impacted on the children’s emotional experience.  The father agreed that some of his volatile and angry outbursts had occurred in front of the children and he was aware that he had behaved in a manner that was inappropriate particularly with respect to [Y] when he mocked and mimicked the child.  Despite the frustrations he was experiencing, the father also failed to restrain his behaviour and curtail his impatience to have the children separate from their mother and spend time with him.  On the other hand, however he did display an excellent understanding of the children’s need to have age-typical experience with friends, other relatives and to take steps towards independence and build positive interpersonal relationships...

  3. She also said that the father appeared to have an excellent capacity to provide for the intellectual and creative needs of the children.  These factors support the mother remaining the primary carer for the children but do not prevent the children spending extending time with the father provided by the short minutes of either party. 

The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children’s parents

  1. The mother clearly has a responsible attitude to parenthood and indeed she gave up a career in the entertainment industry to promote the children’s needs above her own.  However, there is an intense parenting relationship to the point of perhaps being over-protective or, as Ms B put it, hyper-vigilant, to the children’s psychological experience. 

  2. The father’s attitude is, generally speaking, more immature particularly so in relation to the episodes of and attitude towards the family violence.  There were some examples of making inappropriate parenting decisions.

  3. On two to three occasions the father has given Y ‘time out’ in the back - yard. He said that he did not lock him out and was surprised if it was in the dark.  The mother asserts that Y told her that ‘Daddy locked me out of the house in the dark for fighting with [X]’.  This was originally denied by the father but he subsequently agreed that a young child could get the impression that he was locked out particularly if it was at night time.  The father did not appreciate the effect of this upon Y at the time, saying in evidence ‘I was distressed to read it was distressing to him’ (or words to that effect).

  4. In June 2012 the mother went to pick up the children.  The father arrived without the children at about 7 pm.  The mother asked where the children were and the father lied ‘safe with friends’.  In fact the children had been left by the father in a car not far away but out of sight. 

  5. The father said ‘I’m not bringing the kids unless you agree to half the holidays’.  After some argument the father left and the mother followed in her car she could not find them so she rang the police.  Shortly thereafter the children were returned to her by the father.  X said to her mother ‘Daddy told us to wait in the car a few blocks away, he said he would be quick.  I was bored and got out of the car and played in the playground.  It was fun’.  Y said “I was too scared to get out”.  Leaving the children of that age alone in a car in the dark is poor parenting.

  6. On a number of occasions the father has required the children to change out of clothes that he has purchased for them and to change into clothes the mother has purchased for them prior to them returning to the mother. 

  7. On 28 May 2013 when the children were returned by the father, the father said to Y ‘Come here mate I need my clothes back’.  The father required to take Y’s clothes off saying ‘my clothes stay with me’.  This is unfortunate implying the children’s clothes are apparently not theirs but rather their father’s. 

  8. In January 2014 the father took the children to the cinema and left them alone inside whilst he waited outside with a coffee checking texts on his phone for the purpose of this case.  Given the age of the children this is far from ideal behaviour.

  9. The father has been tardy in returning the children’s clothes especially X’s dance shoes which are of importance to her.  He has on one occasion caused her to miss dance class which was important to X. 

  10. Whilst being unfortunate examples of poor parenting these episodes do not, of themselves, indicate that the orders proposed by either party are in this regard unreasonable.

Any family violence involving the children or a member of the children’s family

  1. This has been extensively discussed above.

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 children

  1. Both sets of orders provide for graduated time both in term time and holidays stretching for a number of years into the future.  The orders have been drafted by both parties to minimise the need for either party to return to the court. 

  2. An active area of dispute that is likely to remain would be the children’s extra-curricular activities.  The father thinks there are too many.  He also does not support those that impinge upon his time with the children.  He has some support of that in the first of those views from Ms B who is wary of the children having too much structured time.  The children presently carry out fewer extra-curricular activities than they did previously.  They both seem to enjoy them.  To avoid further disputes between the parties it will be appropriate to make an order that extra-curricular activities not be changed except by the parties jointly.  Whilst this will bring them potentially into conflict with each other it is better than the alternative of parents unilaterally making a decision in relation to them. 

  3. There are no other s 60CC factors that are relevant to these proceedings.

Parental responsibility

  1. I have already referred to s 61DA(1). In Dundas & Blake [2013] FamCAFC 133 at 57 the Full Court said of the presumption:

    Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply… Section 61DA is a significant provision of the Act and it requires, in our view, significant attention in the evidence.

  2. The Court held at paragraph [61] that the mandatory requirement to apply the presumption makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted. 

  3. That case applied to s 61DA(4). It highlights the importance of the presumption expressed in s 61DA(1).

  4. I have already found that the father has engaged in family violence. There are thus reasonable grounds that he has engaged in that behaviour and thus pursuant to s 61DA(2) the presumption that it is in the best interests of the child for there to be equal shared parental responsibility does not apply.

  5. That, however, does not answer the question of whether or not there should be equal shared parental responsibility.  Notwithstanding that the presumption does not apply there may still be an order for equal shared parental responsibility if that is in the best interests of the children.

  6. In support of her application for sole parental responsibility the mother points to the difficulties in communication with the father, in particular, that such communication seems to increase rather than diminish the disputes and conflict between them, the father continues to make inappropriate decisions that are not child focused. 

  7. On the other hand, the major decisions that have been made by the parents in relation to the children seem to be appropriate decisions.  The parents share the same goals although not necessarily the same approach as to how to achieve those goals.  Both parents, generally, wish the best for their children.  The children will spend a significant part of their lives as children with the father. 

  8. Each parent will bring a different approach and different strengths to any decision making process about the major long term issues in relation to the children.

  9. The family violence described seems largely directed at the mother and not towards the children. 

  10. Ms B was strongly in favour of there being equal shared parental responsibility noting that it would be important for the children to understand that both parents have a significant say in the future of their lives.  Her opinion, which is accepted, is: 

    I think that both these parents are loving parents.  I think that both these parents have an enormous capacity to give advice, parenting, psychological resources, practical resources to these children.  And I think that each of them – if they could avoid the conflict, could actually complement one another in the parenting roles.  And I think that it would be an extraordinary loss for children to only one parent doing that.  I would also be concerned in circumstances where I think I would send – I mean, whether or not the children knew about it or not, I think that would send a detrimental message to the children about their father.  And I think that would really make his role in their lives peripheral.

  11. I am thus satisfied that, notwithstanding that the presumption contained within s 61DA(1) does not apply (because of the finding about family violence), there should, nevertheless, be an order for equal shared parental responsibility. Such an order is in the best interests of the children. Whilst that order may make the life of the mother more difficult in having to deal with the father, the orders are, ultimately, for the benefit of the children and not the parents.

  12. As an order has been made giving the parents equal shared parental responsibility then pursuant to s 65DAA(1) the court must consider whether the children spending equal time with each of the parents would be in the best interests of the children and consider whether the children spending equal time with each of the parents is reasonably practicable and if it is consider making an order for the children to spend equal time with each of the parents.

  13. It is not in the best interests of the children to spend equal time with each of the parents.  To do so would be deleterious to the children’s best interests.  They are closely and primarily attached to their mother.  The evidence establishes that any change in their circumstances should be managed in a graduated way.  There is no suggestion that equal time with each of the parents, at any stage, is in their best interests.  Neither party seeks such an order.  Notwithstanding that such an order would be reasonably practicable it will not be made. 

  1. If such an order is not made the court must then consider pursuant to s 65DAA(2) whether the children spending substantial and significant time with each of the parents would be in their best interests.

  2. A child will be taken to spend substantial and significant time with a parent only if that time complies with the requirements of s 65DAA(3). Such time requires the child to spend time with a parent on weekdays and holidays, days that do not fall on weekends or holidays and allows the parent to be involved in the child’s daily routine, occasions and events that are of particular significance to the child and occasions and events that have special significance to the parent.

  3. The orders that will be made in this matter comply with those requirements and the children will thus spend substantial and significant time with each parent. They are reasonably practicable within the meaning of s 65DAA(2).

Form of Orders

  1. Both parties proposed a graduated approach to extending the time during school term.  The orders proposed by the father involved an immediate increase from after school or 3 pm Friday until 6 pm Sunday but maintain the present Tuesday time.  That approach is approved by Ms B. 

  2. The immediate change proposed by the mother is that the father collect the children from their after school activities on Friday and the children spend time with him until the commencement of school the following Monday and immediately to extend the Tuesday time to overnight time. 

  3. The advantage of the father’s order is a more graduated time for the children in that there is less immediate overnight time.

  4. The advantage of the order proposed by the mother is that it immediately ends face-to-face changeovers between the parents. 

  5. The minute proposed by the mother is a mature and responsible suggestion by the mother having heard the evidence of Ms B.  I do not think that she would propose this order if she did not think that the children would not properly cope with it. 

  6. There is a great benefit in ending face-to-face changeovers between the parents which are a source of so much conflict.  It is appropriate therefore for the immediate change in term time to be that proposed by the mother. 

  7. The father’s proposal is that the next step after the above changes is to move to five days each alternate week starting from Friday until before school Wednesday. 

  8. The mother’s minute proposed that the extension be simply to three days each alternate week and retaining the Tuesday in the other week being four days a fortnight.

  9. The mother’s concern is that five days as an extended period will be too much for the children. Ultimately, it will be less disruptive for the children to follow the regime proposed by the father and not the mother.  This involves fewer changeovers and a more stable period with the children in each household.  It provides a solid block of time with both parents and will give the children a chance to develop and maintain a meaningful relationship with both parents. 

  10. The mother proposed that the commencement of any further extended time be conditional upon the father enrolling in and successfully completing the Relationships Australia course ‘Taking Responsibility: A Course for Men’.

  11. It is to be remembered that Judge Altobelli ordered the father to undertake such a course.  The father did not do so.  He said that he completed a similar but, as it turned out, a far shorter course.  The father attended the course after hearing Judge Altobelli raise this as an issue at an earlier stage in the proceedings. 

  12. Judge Altobelli was aware of attendance at the earlier course but none the less made the order that he did. 

  13. The father did not comply because he found the course was carried out a long distance away, there was a waiting list, he was busy, the one he attended was more than adequate, he had carried out personal work on his attitude towards domestic violence and so he did not pursue it. 

  14. The explanation was neither convincing nor impressive. 

  15. Judge Altobelli made that order presumably because he thought it was in the best interests of the children and it is disappointing that the father did not see it that way.  Ms B opined that it was perhaps not much point in the father now being ordered to complete this course as, although being more extensive, it is likely simply to repeat the concepts he had learned in the earlier course.

  16. Nonetheless, I propose to order that any second additional time the children are to spend with the father be conditional upon him completing the course and that the father complete the course.  This is for a number of reasons. 

  17. Court orders particularly those made in what the court perceives to be in the best interests of the children should be complied with by the parties regardless of their personal views.  The course being ultimately for the benefit of the children, it should not be up to the father to override the court’s orders.

  18. The father has also demonstrated a cavalier attitude to the times of the return of the children to the mother provided by Judge Altobelli’s order.  Whilst no doubt some of this non-compliance was caused by the ordinary vagaries of life not once did the father apologise or explain rather he argued that as a father he was entitled to more time.

  19. In those circumstances it is important to reinforce the obligation on parties to abide the court’s orders and not to modify them as they see fit. 

  20. More importantly the course will be for his benefit. 

  21. As has emerged in these reasons there is still a developing realisation in the father as to the nature and consequences of his conduct and this should be pursued and reinforced.  The children are entitled to be free from family violence and it is entirely appropriate that the father take reasonable steps to ensure that it does not occur.  This is one such step.

  22. Finally, the mother will derive much comfort from the father being ordered to attend such a course.  The benefit of that is not so much immediately for her benefit but for the children’s benefit.  The completion of the course by the father will, hopefully, make the mother more comfortable about the children being with him for an extended time, reduce her hyper-vigilance and enable her to be more comfortable and relaxed with the children when they return from the father’s care thus aiding the transition between the two households in a way that benefits the children.

  23. The parties disagree as to whether the children should spend four or five days with the father at the school holidays.  Ms B thought the children could easily handle five nights and that that would be appropriate, I agree.  For the balance of the short school holidays this year the children will spend half of the holidays with the father.

  24. Ms B advised against the children spending an extended block of time with either parent during the long school holidays and it is appropriate that for the next three years the children spend each alternate week with their father.  Thereafter they shall spend half the school holidays with each parent in a block.

  25. There was a dispute whether or not the father should be given the first opportunity to undertake the care of the children in substitution for the mother if the mother was unable to care for the children overnight.  The mother opposed that order on the basis that it would restrict her for travelling for work opportunities. 

  26. I do not see why this is so.  If appropriate, as the children have in the past, they can travel with her.  If they cannot travel with her then there is no reason why the father should not care for them, for up to a five day block, as opposed to some other person.  For blocks of over five days the children will stay with their mother and there will be make-up time with the father if that stay prevents them spending the otherwise ordered time with him.

  27. As identified earlier there will be an order that neither parent can unilaterally change the existing extra-curricular activities of the children.  In accordance with the recommendation of Ms B, there will be an order that neither parent attend those events whilst the children are in the care of the other parent unless they are invited or unless it is a significant event. 

  28. The father proposed orders that the children undertake the ‘Keeping Contact Program’ provided by Unifam and that they continue in that program until the Unifam counsellors decide that further attendance is not necessary.  Ms B was of the view that the children should receive some limited form of counselling.  She was of the view that although the children had benefitted from counselling in the past, in the absence of signs of psychological distress or behavioural disturbance, the children would continue to develop normally without it.

  29. In her oral evidence Ms B agreed that there should be some limited and focussed counselling for the children and involving both parents.

  30. Accepting that evidence, there will be an order that the parties take all necessary steps to arrange counselling for the children with a counsellor nominated by Ms B for the period and purposes also nominated by her.

  31. The orders will be as set out at the commencement of my reasons for Judgment.

I certify that the preceding one hundred and fifty-eight (158) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 22 May 2014.

Associate: 

Date:  22 May 2014

Areas of Law

  • Family Law

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Dundas & Blake [2013] FamCAFC 133