LEXTON & LEXTON

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEXTON & LEXTON

[2020] FCCA 39

Catchwords:
FAMILY LAW – Interim parenting on discrete issues – where final orders made in relation to all other parenting issues – interim orders made.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant:

MS LEXTON

Respondent:

MR LEXTON

File Number:

WOC 463 of 2016

Judgment of:

Judge Altobelli

Hearing date:

5 November 2019

Date of Last Submission:

5 November 2019

Delivered at:

Wollongong

Delivered on:

23 January 2020

REPRESENTATION

Solicitors for the Applicant:

Maguire & McInerney Lawyers

Solicitors for the Respondent:

Southern Coast Lawyers & Conveyancing

Solicitors for the Independent Children's Lawyer:

Illawarra Family Lawyers

ORDERS

There be no Order for telephone contact.
The Child X born in 2009 spend time with the Father during school holidays and special occasions as follows:
(a)During the Christmas/New Year school holiday from 3:00pm 2 January until 3:00pm 16 January or as otherwise agreed in writing.
(b)Each year the children, Y born in 2005 and X born in 2009 (“the children”), will spend time with the Father from 3:00pm Christmas Day until 3:00pm on Boxing Day.
The children’s time with the Father be suspended and the children spend time with the Mother as follows:
(a)Each year the children will spend time with the Mother from 3:00pm Christmas Eve Day until 3:00pm on Christmas Day.
Each party is restrained from attending the children’s school at any other time unless for the purposes of attending a function or activity normally attended by parents or taking or collecting the children from school in accordance with the Orders herein.
Save and except in circumstances where X travels 400 metres or less to school from the Father’s home, until X commences High School the Father will ensure that X be delivered to school by either him or his nominee and he will not allow X to travel to school by public transport.
The matter be listed for a 2 day Final Hearing on dates to be fixed.
The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

NOTATIONS

(A)These Orders are intended to be read in conjunction with the Orders made 5 November 2019.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 463 of 2016

MS LEXTON

Applicant

And

MR LEXTON

Respondent

REASONS FOR JUDGMENT

Introduction

This case is about two children, Y 14 years old, and his sister X 10 years old. After many years of litigation the parents were able to enter into final consent orders dealing with most of the parenting issues relating to the children that have been in dispute since 2016. There were a number of discrete issues left for the Court to determine, albeit on an interim basis. These Reasons for Judgment explain the orders made, and the basis for making them. The matter will be set down for a Final Hearing not exceeding two days, to deal with the remaining discrete parenting issues, and to determine property matters.

Background

The present proceedings were commenced by the Mother in 2016, initially for the recovery of Y after the Father failed to return him to her care pursuant to the existing arrangement in place at the time. His Honour Judge Harman made interim Orders on 20 June 2016 for the children to live with their mother, and to spend time with their father each alternate weekend from after school Friday to before school Monday, and each week from after school Thursday to 8:00pm, as well as half of the school holidays.
On 30 June 2017 the Mother was forced to bring fresh recovery proceedings in relation to Y after the Father did not return him to her pursuant to the interim orders made. On 27 October 2017 Judge Harman made an Order that the children live with their mother, spend supervised time with their father at Contact Centre G, City H, and that the Father be restrained by injunction from again removing the children from the Mother’s care, approaching or communicating with the children except in accordance with these Orders.
Despite the fact that these Orders were made 27 October 2017, the Father’s supervised time did not, in fact, commence until 20 February 2018 when an Order was made allowing the parties to use a supervised contact service other than Contact Centre G. Thereafter, the Father spent time with X, and sometimes Y, supervised by Contact Centre J.
There is much further background that could be set out in these Reasons for Judgment, but the Court declines to do so in circumstances where it is largely counterproductive, given the final parenting Orders entered into by the parents. Suffice it to say that this case is clearly one of intense, possibly intractable, conflict between the parents who do not trust each other and who are palpably unable to communicate constructively about their children.
The parents have had the benefit of three family reports: by Family Consultant K in September 2017, Family Consultant L in June 2018, and Family Consultant Ms C in May 2019. Whilst having so many reports by different consultants is less than ideal, the reality is that the parents had ample guidance to enable them to settle their case after each report. There are good reasons, from the Court’s perspective, why the same Family Consultant could not prepare the report in respect of this family.
The case has also had an unfortunate litigation history. For circumstances beyond the Court’s control, it was not possible for the one judge to deal with this matter continuously. The matter was set down for Final Hearing on three separate occasions. Whilst it was less than ideal that these Hearings did not proceed, in each case there were good reasons, including the need for updated family reports, given the complex family dynamics in this case, as well as inadequate judicial resources to deal with the case in a more timely fashion.
Despite these difficulties, the parents did exceedingly well, no doubt assisted by their legal representatives, the Independent Children’s Lawyer, and the expert advice provided to them in the family reports, to reach final orders in relation to most of the outstanding parenting issues.
The Court records its own disappointment that it could not deliver a more timely Judgment in relation to these discrete, interim issues. The Interim Hearing was heard on 5 November, but the sheer pressure of work in the Wollongong Registry meant it was not possible to attend to this matter until early in the New Year, during the December/January closure.

The final parenting orders

On 5 November 2019, the Court made Orders by consent, and on a final basis. The final consent Orders are reproduced in the First Schedule to these Reasons. By way of summary, the parents agreed that the Mother would have sole parental responsibility for the children, that the children would live with her, that Y would spend time with the Father subject to his own wishes, and in accordance with the time that X spends with the Father. X would spend time with the Father each alternate weekend from the conclusion of school Friday until the commencement of school Monday and for half of the mid-year school holidays, and on special occasions.
The consent Orders make provision for communication, except by telephone, impose a number of restraints and, importantly, provide for family counselling between the Father and Y through Counselling Centre M in City H. Only a few discrete issues remained for determination, and the Court was asked to deal with these on an interim basis.

The issues in dispute

The first issue in dispute related to telephone communication. At Order 20 of the minute proposed by the Father, he sought an order that each parent encourages and facilitates telephone communication between the children and the other parent whilst the children is in their care and as requested by the children. Both the Mother and Independent Children’s Lawyer proposed there being no order for telephone contact.
The second issue in dispute related to the children’s time with their father during the Christmas holiday period. At Order 10 of the Father’s minute he proposed a detailed arrangement in which X would spend time with both her mother and father in a precise fashion as set out in his order. The Mother and Independent Children’s Lawyer proposed that X spend time with the Father in accordance with orders 2 and 3 of their proposed order. This provided for time from the 2nd to the 26th of January, as well as from 3:00 pm Christmas to 3:00pm on Boxing Day.
Once again, the Court records its disappointment, and indeed apologises to the parents, for not being able to adjudicate on this issue before the Christmas/New Year holiday period. What those who fund the Courts do not seem to realise is that when judges are not given adequate resources to deal with the cases in their substantial dockets, parents and children miss out. Unless the parents were able to otherwise reach agreement, therefore, it is likely that the Father did not spend time with the children over the Christmas/New Year school holiday period. Given the intractable conflict between the parents, the Court would be surprised indeed if they were able to compromise, even though this would have been most beneficial to their children. The Court also notes, of course, that the Father could have accepted the Mother’s proposal on an interim basis, pending the Court’s Judgment in this matter. Nonetheless, it is less than ideal that this discrete issue could not have been determined in a more timely fashion.
The third issue in dispute is the Mother’s proposal that each parent be restrained from attending the children’s school at any time not otherwise permitted by the orders, unless with the purposes of attending a function or activity normally attended by parents or taking or collecting the children to/from school in accordance with the orders. The Father opposes this injunction. The Independent Children’s Lawyer supports the Mother’s proposal in this regard.
The next issue in dispute was the order proposed by the Mother that until X commences high school the Father is to ensure that she is delivered to school by either him or his nominee, and that he will not allow X to travel to school by public transport. The Father opposes the need for this. The Independent Children’s Lawyer supports the Mother’s proposal.
The final issue in dispute relates to the Mother’s proposal that the Father be restrained from approaching her, or coming within 10 metres of the Mother, or communicating with the Mother other than by way of a parenting application or mobile telephone in an emergency. This is supported by the Independent Children’s Lawyer, but opposed by the Father.

The evidence before the Court

In the Mother’s case, she relied on the following documents:
a)Response to an Application in a Case filed 29 October 2019;
b)Affidavit of Ms Lexton sworn and filed 1 November 2019;
c)Affidavit of Ms Lexton sworn and filed 29 October 2019; and
d)Case outline document filed 1 November 2019.
In the Father’s case, he relied on the following documents:
a)Application in a Case filed 17 October 2019;
b)Affidavit of Mr Lexton affirmed 16 October 2019 and filed 17 October 2019;
c)Affidavit of Ms D affirmed and filed 10 February 2018;
d)Affidavit of Ms E affirmed and filed 5 February 2018;
e)Affidavit of Ms B affirmed 1 February 2018 and filed 5 February 2018;
f)Affidavit of Mr A affirmed 23 January 2018 and filed 5 February 2018;
g)Affidavit of Ms Lexton sworn 15 October 2018 and filed 17 October 2018;
h)Notice of Risk filed 16 May 2016;
i)Written submissions filed 4 November 2019; and
j)Case outline document filed 1 November 2019.
The Independent Children’s Lawyer relied on the following documents:
a)Case outline document filed 3 November 2019;
b)Family Report prepared by Family Consultant Ms C dated 29 May 2019;
c)Family Report prepared by Family Consultant L dated 14 June 2018; and
d)Family Report prepared by Family Consultant K dated 27 September 2017.

The applicable law

The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1)   The objects of this Part are to ensure that the best interests of children are met by:
(a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)   The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)     parents should agree about the future parenting of their children; and
(e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)     to maintain a connection with that culture; and
(b)     to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)     to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)   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.
(2)   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.
(3)   When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)   The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2)   If:
(a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only 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.
(4)   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.
Reasonable practicality
(5)   In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must 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.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any 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;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(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;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(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;
(m) any other fact or circumstance that the court thinks is relevant.

The Case Law

In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The Family Report of Ms C dated 29 May 2019

Ms C's Report is the only independent and expert evidence before the Court and is thus very useful, even though her evidence has not been tested in cross-examination. It is clear to the Court that Ms C's Report largely informed the final consent orders that the parents entered into. The focus will be on what, if anything, Ms C says about the discrete issues before the Court. It must be remembered that this is a case characterised by serious allegations that each parent makes against the other about almost every aspect of their relationship and the parenting issues in dispute between them. With the greatest of respect to the parents, until their evidence is tested, it remains unreliable in comparison to the independent and expert evidence of Ms C. The value of some of the parents’ evidence, however, is by the concessions made.
On the telephone contact issue, the Father’s Solicitor relied on paragraph 80 of Ms C's Report:
The report writer strongly agrees with the view of the previous Family Consultant that the only way to ensure this toxic conflict ends (or at least reduces enough so that the children are less impacted) is with highly prescriptive orders that proscribe certain behaviours of the parties. That is, for example, that neither party can withhold the children for any reason; that the children should be able to speak with the parent they are not living with, at their discretion and without any expectation placed on them by their parents in this regard; that the parties should commit to using a mobile App to communicate and diarise important events; and that the children’s exposure to their parents being in proximity to one another, should be limited and if it should occur, does so in a planned and predictable manner (for example, at a school function).
Mr Murphy, who appeared for the Father at the Interim Hearing, submitted that the Father’s proposed order was consistent with Ms C’s recommendation that the children should be able to speak with each parent they are not living with as they decide and without any expectation placed on them by their parents.
The Mother and Independent Children’s Lawyer acknowledged paragraph 80 of the Family Report, but submitted that this recommendation needed to be understood in the context of paragraph 76 to 78 of the Report:
[76] It is hard to see how Ms Lexton can profess to have her children’s best interests at heart, yet ask for an outcome that is so clearly not child focused. She was able to acknowledge that X would be (briefly) “sad” but this was the lesser concern when compared with what might happen if X were to continue spending time with her father. Ms Lexton did not articulate the precise nature of these fears, other than that Mr Lexton would start behaving in the way that he has previously done. The report writer accepts, based on the material before the Court, that there is a very real possibility that if X spends unsupervised and extended periods of time with her father in the future, he will attempt to recruit her to his “side” of the dispute – that is, to encourage her to choose him and reject her mother. This is, however, precisely what Ms Lexton appears to have done with Y.
[77] Regrettably, Mr Lexton’s capacity for self-insight and self-reflection is similarly limited. He is both incensed and deeply emotionally wounded by how things have turned out and professed himself to be despairing of having a relationship in the future with Y, yet he was unwilling to be open about what part he might have played in that outcome, when the material before the Court indicates that in the past, he has put both children but particularly Y, under a huge amount of emotional pressure to choose one parent over the other. Mr Lexton too, deflected all responsibility, which is concerning in the context of future behaviour, although when pressed by the report writer Mr Lexton indicated he would “not say anything at all” to X about her mother, acknowledging that it would have an impact on her.
[78] It cannot be emphasised and reiterated enough that the harm being done to these children is harm that has been perpetrated by both parties more or less equally. There is nothing to be gained from denigrating or demonising the other parent to the children, or in attempting in a myriad of ways to undermine the child’s relationship with the other parent because in the past it has been evident the children love both of their parents and wish to have a relationship with both of them. The parties need to respect this and understand that having meaningful relationships with both parents is the only way these children will be protected from emotional harm, the longer-term effects of which will be devastating in terms of the children’s psychological functioning.
Both Ms Hewlett, for the Mother, and Ms Collis, the Independent Children’s Lawyer, urged caution about telephone contact, particularly given Ms C’s stated concerns about both parents’ lack of insight into how their own behaviours have contributed to the current problems. Indeed, the Court adds, both parents presented as being manipulative of the children’s relationship with the other.
The Court also accepts the submissions made by Ms Hewlett and Ms Collis that when the matter is viewed in terms of its history, the telephone communication between the children and the parents, particularly the Father, suggests that it has been counterproductive. Indeed, even the Father’s evidence provides alleged facts from which the Court could conclude that potential telephone communication between the children and their father in particular, but also their Mother, could rapidly undo the good work that has been achieved through the final consent orders.
The Court accepts that, for the time being, pending a Final Hearing, which is expected to take place in the second half of 2020, a cautious approach is warranted. No order for telephone contact will be made, for the time being. The Court reiterates that, presently, its greatest concern is that telephone contact could undermine the good work that the parents have done in reaching agreement about most of the parenting issues that have been in dispute for many years. Once things have settled down for the children, and especially if the counselling with Y does assist his relationship with his father, this is an issue that can be easily revisited.
In relation to school holiday time, Ms C’s recommendation at paragraph 84 is quite clear – the Father should spend time with X for two consecutive weeks in the January school holiday period. The Mother’s proposal, supported by the Independent Children’s Lawyer, meets this recommendation, whereas the Father’s does not. Each of the parents made submissions about the importance of Christmas to the children, and to their broader families, including children of their respective partners.
In another case, where the conflict was less intractable, and where the parents could communicate and cooperate, those submissions would probably receive more weight. In this case, however, and to quote from paragraph 80 of Ms C's Report, the need for: “highly prescriptive orders that proscribe certain behaviours of the parties…” necessitates two things: firstly, focusing exclusively on the needs of Y and X and, secondly, making it very clear what boundaries exist for this family.
On either proposal, the children get to spend time with their father on Christmas Day. There is no discernible basis from either the evidence filed in the Father’s case, or submissions made on his behalf, as to why the Court should ignore the independent expert evidence and adopt his proposal.
The next issue relates to the restriction on the parents attending the children’s school except in accordance with the orders, or on occasions where parents would be normally expected to attend. The focus here is on the capacity of these parents to allow even a chance, but unnecessary, encounter at school to become flash points of conflict. The need to avoid this is self-evident from the Family Report. Again, the impression the Court forms from paragraph 80 of Ms C's Report with its reference to “this toxic conflict”, is consistent with the Court’s own impression gleaned from the totality of the evidence in this case.
Interestingly, the Father’s opposition to this order did not seem primarily based on any disagreement with this notion. Indeed, in his Solicitor’s submissions filed 4 November 2019, Mr Murphy concludes with a statement referring to the reactive behaviour towards the Father, of both the Mother and her family, and the need for orders to minimise the periods of time that the parents may come into contact with each other.
The submissions made in opposition to the order focused on the circumstances of the Father’s blended family, i.e. that his parent’s children will attend the same school that X attends, and he may be involved in delivering or collecting the children from school. Whilst the Father’s concern is understandable, the Court’s focus is on X and Y, and not on the children of the Father’s partner. This is a high conflict case, and every opportunity for unnecessary contact between the parents needs to be avoided. The order proposed by the Mother, and supported by the Independent Children’s Lawyer, will thus be made.
The next order in dispute is the restriction proposed by the Mother that until X commences high school, the Father will ensure that she is delivered to school either by him, or his nominee, and that he will not allow X to travel to school by public transport. This is supported by the Independent Children’s Lawyer, but opposed by the Father, albeit purely it would seem, on the basis of evidence from the Bar table. On the Father’s behalf, Mr Murphy explained that the Father’s partner has purchased a home 400 metres away from X’s school, and that they were planning to move in over Christmas, as would the Father. In the circumstances, it would submitted on the Father’s behalf that the restriction was unnecessary and overprotective.
The Court notes that the order proposed by the Mother is not inconsistent with what was submitted on the Father’s behalf. The restriction is against travel to school by public transport. Presumably, if X is with her Father and is either coming to her father’s home, or travelling to school from her father’s home, it will only be a distance of 400 metres, which mitigates the need for him, or his nominee, to personally deliver her to school.
The order proposed by the Mother will therefore be amended such that the obligation imposed will not apply if X has to travel 400 metres or less from her school to her father’s home. The Court notes in this regard that the Family Consultant made no recommendation on this discrete issue. In particular, there is nothing about X that would support the Mother’s need for this order.
The final issue in dispute was the Mother’s proposed order by way of an injunction restraining the Father from approaching her or communicating with her other than by way of a parenting application or mobile telephone in an emergency. The Father opposed this as being unnecessary. The Independent Children’s Lawyer opposed it on the basis that the Orders already provided protection in the form of prescriptive Orders that limited communication. The Family Report is silent on the issue.
The Court declines to make the order sought by the Mother. It is unnecessary. There is no evidence the Court is prepared to accept at an Interim Hearing that will justify the making of this order. Mr Murphy, on the Father’s behalf, submitted that the Mother’s proposal simply reflected the Father’s deep concern that the Mother’s real interest was in controlling his behaviour and relationship with the children. There may well be substance to this.

Orders

Having regard to the discussion of the Expert’s evidence, by reference to the submissions made on behalf of and the evidence filed by the parents, the Court will make orders 1 to 5 proposed by the Mother in the document described as the consent order between the Independent Children’s Lawyer and the Mother. However, order 5 will be amended, as indicated above, should the Father in fact live within 400 metres of X’s school. The Court declines to make the further order sought by the Mother by way of an injunction.
As foreshadowed, the matter will be listed for a two day Hearing in the second half of 2020. The Court believes the primary issue at that Hearing will be alteration of property interests, but that the remaining parenting issues, if any, may also need some court time. This case will only be allocated two days. Given the discrete issues, the Court is not sure what benefit would be obtained by cross-examining Ms C or, indeed, any of the previous Family Consultants. Nonetheless, that is a matter that can be discussed when trial directions are made.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 23 January 2020

Schedule One

Final consent Orders dated 5 November 2019

BY CONSENT BETWEEN MOTHER, FATHER & ICL IT IS ORDERED:

That all previous Orders be discharged.
That the Mother have sole parental responsibility for the children Y born in 2005 and X born in 2009 in relation to the care, welfare, and development of a long-term nature involving the children including the issue of a passport.
That each parent be responsible for day to day decisions concerning the care of the children when the children is living with the parent or spending time with the parent.
That the children Y and X live with the Mother.
That the child Y spend time with the Father, subject to his own wishes, in accordance with the time that the child X spends with the Father in the Orders herein.
That the child X spend time with the Father each alternate weekend from the conclusion of school Friday (3.00pm) until the commencement of school Monday (9.00am) unless a Public Holiday or Pupil Free day and then time will conclude at the commencement of school Tuesday (9.00am).
In the event that the child is ill and unable to attend school changeover will take place at Suburb F at the time identified in Order 6 herein.

That where changeover does not take place at the child's school, changeover will take place at Suburb F and both parents and/or their nominee (being their respective partners or their family members) are to remain in their motor vehicles.
~~That there be no Order for telephone contact.~~
That the child X spend time with the Father during school holidays and special occasions as follows:-
10.1One half of each short New South Wales school holiday from 3.00pm on the middle Sunday of the school Holidays until the commencement of school on the first day of the new school term.
~~10.2During the Christmas/New Year school holiday from 3.00 pm 2 January until 3.00 pm 16 January or as otherwise agreed in writing.~~
10.3If the child/ren are not already spending time with the father then the children will spend time with the Father on the children’s birthday and the Father’s birthday from the conclusion of school until 6.00pm if the birthdays fall on a school day or as otherwise agreed in writing.
10.4That the children will spend time with the Father on the children’s birthday and the Father’s birthday from 2.00pm until 7.00pm if the birthday falls on a weekend or as otherwise agreed in writing.
~~10.5Each year the children will spend time with the Father from 3.00pm Christmas Day until 3.00pm on Boxing Day.~~
10.6Commencing 2021 and each odd numbered year thereafter the children will spend time with the Father from the conclusion of school (or 3.00pm) Thursday until 2.00pm Easter Sunday. ~~2.00pm Easter Sunday until the commencement of school (or 9am if not a school day) Tuesday.~~
10.7Commencing 2020 and each even numbered year thereafter the children will spend time with the Father from 2.00pm Easter Sunday until the commencement of school (or 9am if not a school day) Tuesday.

10.8That the children’s time with the Mother pursuant to Order 4 be suspended and the children spend time with the Father from 5.00pm the night before Father’s Day until the commencement of school on the Monday immediately after Father's Day.

Special Occasion Time with the Mother

That the children's time with the Father be suspended and the children spend time with the Mother as follows:-
11.1That the children will spend time with the Mother on the children’s birthday and the Mother’s birthday from 2.00pm until 7.00pm if the birthday falls on a weekend or during school holidays when the children would otherwise be spending time with the Father or as otherwise agreed in writing.
~~11.2Each year the children will spend time with the Mother from 3.00pm Christmas Eve Day until 3.00pm on Christmas Day.~~
11.3Commencing 2020 and each even numbered year thereafter the children will spend time with the Mother from the conclusion of school (or 3.00pm) Thursday until 2.00pm Easter Sunday.
11.4Commencing 2021 and each odd numbered year thereafter the children will spend time with the Mother from 2.00pm Easter Sunday until the commencement of school (or 9am if not a school day) Tuesday.
11.5That the children’s time with the Father pursuant to Orders 4 and 5 be suspended and the children spend time with the Mother from 5.00pm the night before Mother’s Day and thereafter remain in the Mother's care in accordance with the Orders.

Communication

That the Mother and Father will communicate by way of the MyFamilyWizard Parenting App unless in an emergency they will communicate by way of text message.
That each parent will agree to keep each other updated with their most current telephone number.
That the Mother and Father shall ensure that they keep each other informed as soon as it is reasonably practical by way of text message of:

14.1Any medical problems or illnesses suffered by the children whilst in each parent's care;
14.2Any medications that have been prescribed for the children;
14.3Any specialist medical appointments with any medical doctors, psychologists, counsellors, or therapists regarding the children;
14.4The details of any school(s) attended by the children;
14.5The details of any sporting body that the children are involved in;
14.6Any other important matter relevant to the welfare of the children.

That both parents be permitted to attend all extra-curricular activities and any other sporting event outside of school activities.
That both parents be permitted to attend parent teacher interviews.
That each party is restrained from attending the children's school at any other time unless for the purposes of attending a function or activity normally attended by parents or taking or collecting the children from school in accordance with the Orders herein.
That both parents give the necessary authority and be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress.

Restraints

That the Mother and Father are restrained from communicating through the children.
That the Father be restrained from approaching the Mother, coming within 10 metres of the Mother or communicating with the Mother other than by way of the Parenting App or mobile telephone in an emergency.
That the Mother and Father are to refrain from making critical or derogatory remarks about the other party or members of his or her family in the presence or within the hearing of any of the children and that both the Mother and Father are to do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about either party or members of his or her family in the presence or within the hearing of any of the children.

That the Mother and Father are restrained from discussing the Court proceedings with the children.
That pursuant to s 65Y of the Family Law Act 1975 each party be permitted to remove the children from the Commonwealth of Australia for the purpose of overseas travel for an agreed period provided the following conditions are met by the parent proposing to depart overseas:
23.1That notice of intention to travel overseas is given not less than two (2) months to the other parent.
23.2That no less than 28 day prior to departure, the parent travelling overseas shall provide a copy to the other parent of return airfare shipping, tickets, itinerary and insurance coverage in respect of the overseas travel.
23.3Telephone contact numbers during the period that the children are overseas.
23.4The time zone(s) of the country or countries that the children are visiting and the time difference in relation to Australian Eastern Standard time.
23.5That upon returning from overseas travel the passports of the children are to be returned forthwith to the Mother.
23.6That make up time with the children will be provided to the non-travelling parent as agreed or failing agreement during the two weeks prior to travel and/or the two weekends following such travel.
The parent with whom the children have travelled with shall do all things necessary and make all appropriate arrangements so as to permit the children to contact the other parent once per week by telephone or skype.
That unless otherwise agreed and approved by the school(s) attended by the children from time to time, both parents will ensure that all vacations are taken during school holiday periods.
Both parents are restrained from travelling interstate or overseas with the children for more than a two week period in any calendar year unless otherwise agreed in writing.
That within 7 days the Mother and Father will do all things and sign all documents necessary to obtain a Passport for the children Y and X and will do all things and sign all documents necessary to obtain a renewal of passport prior to the expiry of the passport.
That both parents will facilitate X attending upon her weekend sport and training and that each parent will provide a uniform.
~~That until X commences High School the Father will ensure that X be delivered to school by either him or his nominee and he will not allow X to travel to school by public transport.~~
That within fourteen (14) days of the date of these Orders each parent is to do all acts and things necessary to facilitate family counselling between the Father and the child Y through Counselling Centre M in City H.
That for the purpose of Order 30 and unless otherwise advised by Counselling Centre M, the parents are to:-
31.1Arrange an appointment as soon as reasonably practicable for an initial assessment of the suitability for the provision of individual and/or joint family counselling through Counselling Centre M and complete all necessary paperwork as may be requested by Counselling Centre M;
31.2Thereafter attend and/or facilitate the children attending any appointments on such days, times and locations nominated by Counselling Centre M (including on school days) and complete all necessary assessments;
31.3If assessed as suitable, thereafter enrol in and/or facilitate the children's enrolment in any individual or joint family counselling as recommended by Counselling Centre M as soon as reasonably practicable;
31.4Thereafter, do all things necessary to attend and/or facilitate the children's attendance and/or participation at such individual or joint family counselling, mediation, course or program on such days, times and locations as nominated by Counselling Centre M (including on school days) until such time as otherwise recommended by Counselling Centre M (and the parent who has the care of each of the children at the time of their respective appointments will be responsible for transporting the children to their respective appointments); and
31.5Comply with any reasonable directions and or recommendations that may be made by Counselling Centre M including, but not limited to, following through with any referrals made for either of the children and/or the parents.
That the mother and father are to share equally any costs associated with the family's engagement with Counselling Centre M pursuant to Order 8.
That these Orders operate as authorisation of both parents to Counselling Centre M to provide any Independent Children's Lawyer that has or may be appointed in these proceedings with any information about the children's and/or the parent's engagement with their service not otherwise protected by section 10D of the Family Law Act 1975 that the Independent Children's Lawyer may require.
That leave be granted for the parties to provide a copy of the Family Reports dated 27 September 2017, 14 June 2018 and 29 May 2019 to be made available to Counselling Centre M in City H.
1. That in the event that Counselling Centre M in City H cannot provide family counselling as envisaged by Order 1, the parents are to do all things necessary to abide by and implement any recommendations made by Counselling Centre M including, but not limited to, acting on any referrals made by Counselling Centre M for either of the parents and/or the children to a more appropriate support service.

[2020] FCCA 39

23 January 2020

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