Mallory & Mallory
[2018] FCCA 2335
•30 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MALLORY & MALLORY | [2018] FCCA 2335 |
| Catchwords: FAMILY LAW – Parenting – allegations of family violence – alienation of the children’s relationship with the mother – change of children’s primary carer – moratorium on the father’s time with children in effort to restore the mother’s relationship with the children. |
| Legislation: Evidence Act1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 68B, pt.VII |
| Cases cited: In the Marriage of Rice and Asplund (1978) 6 Fam LR 570 Lennon & Lennon [2011] FamCA 571 |
| Applicant: | MS MALLORY |
| Respondent: | MR MALLORY |
| File Number: | MLC 4927 of 2016 |
| Judgment of: | Judge Williams |
| Hearing dates: | 11-14 December 2017, 1-2 March 2018, 9-11 May 2018 and 15 June 2018 |
| Date of Last Submission: | 15 June 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 30 August 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms B. Lane |
| Solicitors for the Applicant: | Geelong Family Lawyers |
| Counsel for the Respondent: | Mr J. Mellas |
| Solicitors for the Respondent: | Aitken Partners Pty Ltd |
| Counsel for the Independent Children’s Lawyer: | Ms A. Boymal |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
All previous orders be hereby discharged.
The Independent Children’s Lawyer remain in this matter for a period of 12 months.
Parental responsibility
The parents have equal shared parental responsibility for the children [W] born on 2006 (“[W]”), [X] born on 2008 (“[X]”), [Y] born on 2010 (“[Y]”) and [Z] born on 2013 (“[Z]”) (collectively, “the children”).
Primary care of the children
The children live with the mother, with such arrangement to commence forthwith.
Moratorium periods
There be a moratorium on the father’s time with:
(a)[W] and [X] for a period of six (6) months (“the moratorium period for [W] and [X]”); and
(b)[Y] and [Z], whichever is later of:
(i)a period of eight (8) weeks; or
(ii)until the return of the mother and children from Sydney (as contemplated in paragraphs 7 and 8 herein) (“the moratorium period for [Y] and [Z]”).
For the purpose of paragraph 5 herein:
(a)the moratorium periods for all four children shall commence forthwith following judgment delivery;
(b)on 30 August 2018, the children shall be brought by the father and/or mother to the Federal Circuit Court of Australia in Melbourne (“the Court”) and the children shall remain in the childcare facility at the Court;
(c)following judgment delivery:
(i)the father shall immediately leave the Court and forthwith return to Town A;
(ii)Family Consultant S, the Independent Children’s Lawyer and the mother’s uncle Mr A meet with the children at the Court and explain to them the nature and effect of these orders;
(iii)the mother and / or her nominee(s) shall be permitted to remove the children from the childcare facility at the Court and leave Court with the children.
Conditions and obligations during the moratorium periods
During the moratorium period for all four children, the mother shall be at liberty to:
(a)travel with the children interstate and / or arrange for her nominee(s) to travel with the children interstate;
(b)remain interstate with the children for such a period as she considers appropriate.
For the purpose of paragraph 7 herein, it is contemplated that the interstate travel will take place at or around the commencement of the moratorium periods, subject to the needs and conduct of the children.
During the moratorium period for [W] and [X] as defined in paragraph 5(a) herein, the mother shall:
(a)engage in and continue to attend family therapy with [W] and [Y] with the Family Services, or with such other service as recommended by the children’s treating general practitioner;
(b)engage [W] and / or [X] with such other Professionals as recommended by their treating general practitioner;
(c)engage in and accept any and all support services offered and recommended to her by the professionals with whom she is engaged;
(d)continue to engage with Mr S of Psychology Service as directed by that professional;
(e)advise the father forthwith by text message or email in the event of an emergency concerning the children or any of them;
(f)pass on to the father any letters / messages written by the children for special occasions including Father’s Day, Christmas and birthdays and / or any other communications which the mother deems are appropriate, with the mother to be guided by the professionals involved with the children;
(g)be at liberty to attend all school events that parents ordinarily attend including school concerts and excursions and to assist in the children’s classrooms as a parent helper;
(h)keep the father informed in writing (by email) of any activities in which she enrols the children;
(i)be at liberty to bring the children into contact with any and all maternal family members and to allow such family members unlimited contact with the children including, but not limited to, the maternal grandmother Ms C and the maternal uncle Mr P and for the purpose of same, any contact between Ms C and the children shall not be a breach of the current Intervention Order in place between Ms C and the father (upon which the children are also listed as affected family members);
(j)be at liberty to engage the children with her general practitioner, Dr T of the Medical Centre or such other general practitioner as nominated by the mother;
(k)be at liberty to provide a copy of these Orders to the children’s school;
(l)be at liberty to post photographs / images and / or other information concerning the children on social media as deemed appropriate by the mother.
During the moratorium period for [W] and [X] as defined in paragraph 5(a) herein, the father:
(a)be at liberty to receive information from the children’s school which parents ordinarily receive including school reports, newsletters, etc.; and
(b)if he engages in professional counselling or therapy, provide copies of the following documents to any person with whom he engages in professional counselling or therapy:
(i)the Family Reports prepared by Dr B on 16 November 2017 and 12 April 2018;
(ii)the Judgment; and
(iii)the Final Orders;
(c)engage in and complete a Post-Separation Parenting Course which focuses on the need for children in separated families to be encouraged to have meaningful relationships with both parents and for the purpose of same, the father shall provide the Certificate of Completion to the mother or the mother’s solicitors;
The father be restrained by way of injunction from having any contact at all with:
(a)[W] and [X] during the moratorium period for those children as defined in paragraph 5(a) herein; and
(b)[Y] and [Z] during the moratorium period for those children as defined in paragraph 5(b) herein.
For the purpose of paragraph 11 herein, during the moratorium periods relevant to each of the children (as defined in paragraph 5 herein), if the children or any of them make contact with the father (subject to paragraph 9(f) herein) and / or attend at the father’s residence:
(a)the father shall immediately notify the mother in writing (by email or text message);
(b)the father shall respond by re-directing the children to the mother and he shall not engage with them at all;
(c)the father shall provide the mother with a copy of any handwritten communication from the child/ren (where applicable);
(d)the mother shall be at liberty to attend at the father’s residence in order to personally collect the child/ren (where applicable).
During the moratorium period for [W] and [X], the father be restrained by way of injunction from attending:
(a)at School 1 or any other school at which the children attend; and / or
(b)any school events for the children which parents would ordinarily attend SAVE FOR the sole purpose of complying with paragraph 16(a) herein.
Subject to paragraph 20 herein, during the moratorium period for [W] and [X], the father shall be restrained by way of injunction from personally attending at any extra-curricular events in which the children or either of them are engaged.
Resumption of father’s time with [Y] and [Z]
Upon the conclusion of the moratorium period for [Y] and [Z] as defined in paragraph 5(b) herein, the father’s time with [Y] and [Z] shall take place as follows:
(a)during school term:
(i)in week 1, from after school (or 3:30 p.m.) Friday to before school (or 9:00 a.m.) Monday;
(ii)in week 2, from after school (or 3:30 p.m.) Thursday to before school (or 9:00 a.m.) Friday;
(b)for one half of the first, second and third term school holidays as agreed and in the absence of agreement, for the first half, commencing from the last day of term until 2:00 p.m. on the middle day;
(c)for one half of the Christmas Holidays as agreed and in the absence of agreement, on a week-about basis and for the purpose of same:
(i)such time shall commence from the last day of term;
(ii)changeovers during this holiday period shall occur at 2:00p.m.;
(d)by telephone / video call on [Y] and [Z]’s birthdays, in the event that those children are not otherwise in the father’s care on those days, with the father to initiate the calls by telephoning the mother’s mobile number at 5:00 p.m. on those days;
(e)for Father’s Day, in the event that [Y] and [Z] are not otherwise in the father’s care on that weekend, from 6:00 p.m. on the Saturday preceding such occasion to before school (or 9:00 a.m.) Monday;
(f)by telephone / video call on Christmas Day in 2018 at 10:00 a.m. on Christmas Day, with the father to initiate the call by telephoning the mother’s mobile;
(g)by telephone / video call at 6:00 p.m. on the father’s birthday, in the event that [Y] and [Z] are not otherwise in the father’s care on that day, with the father to initiate the call by telephoning the mother’s mobile;
(h)for Easter in 2019, from 10:00 a.m. Good Friday to 3:00 p.m. Easter Sunday;
(i)at such other times as agreed between the parties in writing.
The father’s time with [Y] and [Z] as provided for in paragraph 15 herein shall be suspended to allow the mother to communicate/spend time with those children on special occasions and holidays as follows:
(a)for one half of the first, second and third term school holidays as agreed and in the absence of agreement, for the second half, commencing from 2:00 p.m. on the middle day;
(b)for one half of the Christmas holidays as agreed and in the absence of agreement, on a week-about basis and for the purpose of same:
(i)such time shall commence from 2:00 p.m. in the second week of the holidays; and
(ii)changeovers during this holiday period shall occur at 2:00p.m.;
(c)by telephone / video call on [Y] and [Z]’s birthdays, in the event that they are not otherwise in the mother’s care on those days, with the mother to initiate the calls by telephoning the father’s mobile number at 5:00 p.m. on those days;
(d)for Mother’s Day, in the event that [Y] and [Z] are not otherwise in the mother’s care on that weekend, from 6:00 p.m. on the Saturday preceding such occasion to before school (or 9:00 a.m.) Monday;
(e)by telephone / video call at 6:00 p.m. on the mother’s birthday, in the event that [Y] and [Z] are not otherwise in the mother’s care on that day, with the mother to initiate the call by telephoning the father’s mobile;
(f)for Easter in 2019, from 3:00 p.m. Easter Sunday;
(g)for the whole Christmas period in 2018 from 6:00 p.m. on 22 December 2018 to 6:00 p.m. on Boxing Day;
(h)at such other times as agreed between the parties in writing.
For the purpose of the living arrangements contained in paragraphs 15 and 16 herein:
(a)during the moratorium period for [W] and [X] as defined in paragraph 5(a) herein, all changeovers for [Y] and [Z] shall take place at the School 1 side street gate (on Street 1) in order to avoid direct contact between the father and [W] and [X];
(b)where changeovers fall on a non-school day, the changeovers shall be shared equally by the parties so that the mother delivers the children to the father at the commencement of his time and the father delivers the children to the mother’s residence at the conclusion of his time, and for the purpose of same:
(i)the travelling parent shall remain in their vehicle when attending at the other parent’s residence for the changeover; and
(ii)where possible, the mother shall not bring [W] and [X] to the changeovers that take place at the father’s residence;
(c)each of the parties shall be at liberty to wait outside their home at the time of changeover, but shall refrain from approaching the other parent’s motor vehicle.
Once the father’s time with [Y] and [Z] has resumed as provided for in paragraph 15 herein, the parents shall communicate with one another once per month by telephone in order to discuss the children and for the purpose of same:
(a)such telephone communication shall take place in the middle of each month;
(b)the father shall nominate the date and time for the call by sending those details to the mother by email;
(c)the mother shall initiate the call by telephoning the father on the agreed date and time;
(d)in the event that the parents agree to communicate with each other by telephone about the children more flexibly in the future, such agreement shall be confirmed in writing and shall be implemented thereafter.
The father shall ensure that [Y] and [Z] attend all extra-curricular activities in which they are engaged if those events fall on days when they are in the father’s care.
Post-moratorium periods
Resumption of father’s time with [W] and [X]
Upon the completion of the moratorium period for [W] and [X]:
(a)the father’s time with [Y] and [Z] shall continue in accordance with paragraphs 15(a) and 15(b) herein;
(b)paragraphs 21 and 22 herein shall apply with respect to the parents’ contact with the children on special occasions and during holiday periods;
(c)the father’s time with [W] and [X] shall resume, with those children to stay with the father at the same times as [Y] and [Z] as provided for in paragraphs 15(a) and 15(b) herein, namely:
(i)in week 1, from after school (or 3:30 p.m.) Friday to before School (or 9:00 a.m.) Monday, to be extended to 9:00 a.m. Tuesday where Monday is a non-school day; and
(ii)in week 2, from after school (or 3:30 p.m.) Thursday to before school (or 9:00 a.m.) Friday;
(d)the balance of these Orders shall come into full force and effect;
(e)both parties and the children shall continue to engage in family therapy, professional counselling or psychological treatment as recommended and directed by their treating professionals.
Father’s time with the children for special occasions and holiday periods
The father shall spend time and communicate with the children as follows on special occasions and during holiday periods:
(a)for half of the first, second and third term school holidays as agreed and in the absence of agreement, for the first half commencing from the conclusion of school on the last day of Term to 2:00 p.m. on the middle day;
(b)for half of the Christmas holidays as agreed and in the absence of agreement, on a week-about basis, with the father’s time to commence in the first week in even numbered years (commencing from the last day of term) and from the second week in odd numbered years and for the purpose of same:
(i)changeovers during this period shall take place at 2:00 p.m.;
(ii)the children shall always be returned to the mother at least two (2) days prior to the commencement of the new school year irrespective as to with whom the children are staying in the last week of the holidays;
(c)by telephone on the children’s birthdays, in the event that those birthdays fall on a day when the children are not otherwise in the father’s care, with the father to initiate the call by telephoning the mother’s mobile at 5:00 p.m. on those days;
(d)for Father’s Day, in the event that the children are not otherwise in the father’s care on that weekend, from 6:00 p.m. on the Saturday preceding such occasion to before school (or 9:00 a.m.) Monday;
(e)for Christmas as agreed and in the absence of agreement, from 10:00 a.m. 23 December to 6:00 p.m. Boxing Day in odd numbered years, commencing in 2019;
(f)by telephone / video call at 6:00 p.m. on the father’s birthday, in the event that the children are not otherwise in the father’s care on that day, with the father to initiate the call by telephoning the mother’s mobile;
(g)for Easter from 6:00 p.m. Easter Thursday to 2:00 p.m. Easter Saturday in odd numbered years (commencing in 2020) and from 2:00 p.m. Easter Saturday to 6:00 p.m. Easter Monday in even numbered years (commencing in 2021);
(h)at such other times as agreed between the parties in writing.
Mother’s time with the children for special occasions and holidays
The father’s time with the children shall be suspended to allow the mother to spend time with the children on special occasions and holidays as follows:
(a)for half of the first, second and third term school holidays as agreed and in the absence of agreement, for the second half commencing at 2:00 p.m. on the middle day;
(b)for half of the Christmas holidays as agreed and in the absence of agreement, on a week-about basis, with the mother’s time to commence in the first week in even numbered years (commencing from the last day of term) and from the second week in odd numbered years and for the purpose of same:
(i)changeovers during this period shall take place at 2:00 p.m.; and
(ii)the children shall always be returned to the mother’s care at least 2 days prior to the commencement of the new school year, irrespective as to with whom the children are staying in the last week of the holidays;
(c)by telephone on the children’s birthdays, in the event that those birthdays fall on a day when the children are not otherwise in the mother’s care, with the mother to initiate the call by telephoning the father’s mobile at 5:00 p.m. on those days;
(d)for Mother’s Day, in the event that the children are not otherwise in the mother’s care on that weekend, from 6:00 p.m. on the Saturday preceding such occasion to before school (or 9:00 a.m.) Monday;
(e)for Christmas as agreed and in the absence of agreement, from 10:00 a.m. 23 December to 6:00 p.m. Boxing Day in even numbered years, commencing in 2018;
(f)by telephone at 6:00 p.m. on the mother’s birthday, in the event that the children are not otherwise in her care on that day, with the mother to initiate the call by telephoning the father’s mobile;
(g)for Easter from 6:00 p.m. Easter Thursday to 2:00 p.m. Easter Saturday in even numbered years (commencing in 2021) and from 2:00 p.m. Easter Saturday to 6:00 p.m. Easter Monday in odd numbered years (commencing in 2020);
(h)at such other times as agreed between the parties in writing.
During the holiday time provided for in these orders, the school term living arrangements shall be suspended and such arrangements shall re-commence following the holiday time, with the pattern of alternate weekends and mid-week time resuming as if no suspension had taken place.
Changeovers
Changeovers shall take place in accordance with paragraph 17 herein SAVE THAT after the completion of the moratorium period for [W] and [X] as defined in paragraph 5(a) herein:
(a)the father shall be at liberty to collect the children from their classrooms at school or any other location contained within the school;
(b)there shall be no limitations on the father’s involvement with and attendance at the children’s school(s).
Telephone communication with the children
The father shall communicate with the children by telephone / video call every Wednesday at 6:00 p.m. when the children are not otherwise in his care and at such other times pursuant to the expressed wishes of the children and for the purpose of such communication:
(a)the father shall initiate the call by telephoning the mother’s mobile;
(b)the mother shall:
(i)ensure the children are made available for the call and shall actively encourage the children to participate in the call;
(ii)allow the children to telephone the father at any other time pursuant to their expressed wishes (where appropriate);
(iii)ensure the children return the father’s telephone call in the event that the father calls and the children are not available to speak with him at that time.
The mother shall communicate with the children by telephone / video call at times pursuant to the expressed wishes of the children and during the school holiday periods, each Wednesday at 6:00 p.m. when the children are not otherwise in her care and for the purpose of such communication:
(a)the mother shall initiate the call by telephoning the father’s mobile;
(b)the same obligations as set out in paragraph 25(b) shall apply to the father.
Parental communication
The parties shall communicate respectfully with one another by:
(a)email; and
(b)text messages in emergencies, and for the purpose of same, all correspondence shall be solely in relation to the health, welfare and development of the children and / or regarding the living arrangements as contained in these Orders.
The monthly parental phone-calls provided for in paragraph 18 herein shall continue to occur each Monday at 8:30 p.m.
Education
THAT both parents shall do all such acts and things and sign all such documents in order to request and authorise:
(a)any school(s) at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent / teacher interviews and any other information relating to the children to both parents at their own respective costs (if any);
(b)both parents access to the website used by the children’s current school for the purpose of exchanging information.
The parents be permitted to attend all school events, including concerts, sports finals, plays, productions, significant competitions, confirmations, excursions, parent/teacher interviews and like events normally attended by parents.
Both parents shall be at liberty to assist in the children’s lessons as a parent helper and any parent based activity including excursions and for the purpose of same:
(a)each parent shall assist during any day when the children were / are in that parent’s care unless otherwise agreed in writing;
(b)each parent shall provide the other with at least 48 hour’s written notice via text message or email of their time allocation for such assistance in order to avoid both parents being present at the same time.
The parents be at liberty to provide a copy of these Orders to any school at which the children attend from time to time.
Extra-curricular events
Both parents shall ensure that the children attend their extra-curricular activities which fall in their respective time and for the purpose of same, if either parent is unable to do so, the other parent shall be offered the opportunity to take the child/ren to that event instead, in which case, that parent shall return the child/ren to the other parent’s care immediately following such event.
The parents shall only attend extra-curricular activities for the children when such event falls during his / her time with the children as provided for herein SAVE THAT both parents shall be at liberty to attend special events such as concerts irrespective as to with whom the children are staying at the time of such special event.
Medical
The parents shall immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars or any treatment received by the children together with the name and address of the treatment provider and / or the location at which the child/ren is / are a patient.
Both parents do all such acts and things and sign all such documents to request and authorise any medical practitioner or treatment provider at which the children attend from time to time to provide copies of all reports, notices, correspondence and information concerning the children’s health to both parents at their own respective costs, if any, including speaking to both parents by telephone and / or in person as may be required.
Both parents shall provide the other with advanced written notice (where possible) of any and all medical appointments they make for the children including:
(a)the date, time and location of the appointment;
(b)the name and contact details of the practitioner; and
(c)the reason for the visit.
The parents shall each make available to the other any medication prescribed for the children to enable the other party to administer such medication to the children and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parents so as to ensure that it is in the possession of the party with whom the child/ren is / are living or spending time.
Restraints
Both parents be restrained by themselves, their servants and agents from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or the other parent’s family members or friends to the children or in the presence, sight or hearing of the children;
(b)communicating about adult issues or parenting issues or contact arrangements through the children or directly with the children;
(c)interrogating the children about the other parent or the other parent’s family;
(d)physically disciplining the children; and
(e)knowingly allowing any third party to engage in conduct which is otherwise prohibited in accordance with this paragraph.
Interstate and overseas travel
If either parent seeks to take the children outside of the State of Victoria during periods when the children are in that parent’s care, s/he shall provide the other parent with at least seven (7) days advanced written notice and if relevant, the flight and accommodation details.
In the event that either parent intends to travel with the children outside of the Commonwealth of Australia, the travelling parent shall:
(a)not less than 42 days prior to the planned travel, notify the other parent in writing as to all relevant details regarding the proposed trip including, but not limited to:
(i)the country/ies to which the children will travel and with whom the children will travel;
(ii)the airline/s upon which the children will travel including flight details;
(iii)the date upon which the children will depart from and return to the Commonwealth of Australia; and
(iv)the address/es at which the children shall reside and a telephone number on which the other parent can communicate with the children;
(b)provide the other parent with make-up time if the other parent misses out on time due to the planned travel;
(c)provide a final itinerary for the children to the other parent (where applicable) not less than seven (7) days prior to the planned departure;
(d)endeavour to arrange the holiday during a holiday period where the children are otherwise in his / her care;
(e)arrange the holiday so it impacts as little as possible on the children’s schooling, with no more than one (1) week of school to be missed;
(f)organise, at his / her own expense, all necessary injections for the children for the purpose of such travel.
Other matters
Unless agreed between the parties in writing, no child shall be authorised to have his / her own mobile telephone within their possession during contact with the other parent.
In the event that the children are invited to a party or other special occasion at a time during the other party’s care, the parent receiving the invitation shall forthwith provide the other parent with a copy of it to enable that parent to respond to the invitation as the parent may choose.
Each party shall notify the other with no less than seven (7) days prior written notice of any change of residential address, telephone number, email address or other contact details.
The mother shall be at liberty to bring the children into contact with any and all maternal family members and to allow such family members unlimited contact with the children including, but not limited to, the maternal grandmother Ms C and the maternal uncle Mr P and for the purpose of same, any contact between Ms C and the children shall not be a breach of the current Intervention Order in place between Ms C and the father (upon which the children are also listed as affected family members).
Both parents shall be at liberty to post photographs, images and / or any other information regarding the children on social media as deemed appropriate by that parent.
IT IS NOTED that publication of this judgment under the pseudonym Mallory & Mallory is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 4927 of 2016
| MS MALLORY |
Applicant
And
| MR MALLORY |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is the mother and the respondent is the father of the children [W] born 2006 (“[W]”), [X] born 2008 (“[X]”), [Y] born 2010 (“[Y]”) and [Z] born 2013 (“[Z]”) (collectively, “the children”).
The parties are in dispute about the living and spend time with arrangements for the children.
Issues in dispute
The following issues were in dispute in the proceedings:
a)whether both parents should have equal shared parental responsibility for the children, or whether the father should have sole parental responsibility;
b)with whom the children should live;
c)the time the children should spend with the parent with whom they do not live;
d)if the children live with the father, whether:
i)the mother’s time with [W] and [X] should be consistent with the time between the mother and [Y] and [Z];
ii)the mother’s time with [W] and [X] be supervised;
iii)the mother have no time with [W] and [X];
e)if the children live with the mother, should there be:
i)a moratorium on the father’s time with the children;
ii)if a moratorium is appropriate:
(1) the length thereof;
(2)should orders be made for the father’s time with the children at the expiration of a moratorium.
Synopsis
I have determined it is in the children’s best interests that:
a)the parents have equal shared parental responsibility;
b)the children live with the mother;
c)there be a moratorium period of time between the children and the father as follows:
i)for [W] and [X], a period of six months; and
ii)for [Y] and [Z], a period of eight weeks, or until the return of the mother and children from Sydney (as contemplated by her final proposed minute of orders);
d)at the conclusion of the respective moratorium periods, the children spend time with the father as follows:
i)during school term, in week one, from the conclusion of school on Friday to the commencement of school on Monday (or Tuesday where Monday is a non-school day), and in week two, from conclusion of school on Thursday to the commencement of school on Friday;
ii)half of all school holidays; and
iii)special occasions.
The reasons for my determination follow.
Background
The mother was born on 1975, and the father was born on 1975. They commenced a relationship in the late 1990s, and married on 1999. They separated on 14 May 2016.
In 2001, the parties relocated to Tasmania.
In 2006, shortly prior to [W]’s birth, the mother ceased her previous employment as a (occupation omitted).
In 2007, the mother unsuccessfully sought to return to her previous employment following completion of maternity leave. The father was employed on a full-time basis, and the mother was the primary carer of the children. Additionally, she worked part time from home as a (occupation omitted).
In 2009, the family relocated from Tasmania to Town A in Victoria. The mother remained as the primary carer of the children, and the father obtained full-time employment.
In October 2010, the mother attended a maternal health appointment and discussed family violence issues. The father alleges that between that time and 2013, the mother physically grabbed [X] and dislocated his elbow.
In 2011, the father commenced a (occupation omitted) position at (employer omitted).
From 2011, the father alleges that [W] struggled to cope with the mother’s parenting and experienced distress.
In February 2014, the father asserts that on two occasions, the mother hit [X] in the face in anger.
In early 2014, the father asserts that the mother left [Z] in the bathroom with a pair of scissors.
In March 2014, the father asserts that the mother left all four children unaccompanied for a lengthy period of time in a motor vehicle at a large shopping centre.
In April 2014, the mother commenced full-time work in her business. The father asserts that he then assumed primary care of the children. The parties dispute the circumstances surrounding the father assuming primary care of the children.
On 28 January 2015, the mother attended a maternal health appointment, and again discussed family violence issues. The father claims that the mother acknowledged to the maternal child health nurse that she had slapped [X] in the face.
On 24 April 2015, the mother slapped [W] in the face whilst she was in the shower.
On 22 December 2015, the mother pinched [X] on the bicep.
On 19 February 2016, the mother pushed [X]’s chair and he fell off it. The mother asserted that [X] had hit her at the dining table, and she pushed his chair away because she thought he was going to hit her again. The father disputes the mother’s version of events.
In February 2016, the family’s general practitioner referred the family to Child FIRST family support service.
On 27 February 2016, the mother and [W] were involved in a physical altercation, where [W] fell on a drum and hit her arm. The father alleges the mother pushed [W].
In March 2016, the family general practitioner, Dr S, referred the mother to Dr G, psychiatrist, for psychiatric assessment.
On 7 May 2016, after the family cat urinated in the mother’s handbag, the mother had an outburst. [W] was allegedly upset and distressed at the mother’s behaviour, grabbed a knife from the dishwasher, and threatened to kill herself if the mother did not cease her behaviour. The police were called.
On the same day, the father applied for and obtained an interim ex parte intervention order against the mother, which prevented her from committing family violence.
On 13 May 2016, the mother obtained an interim intervention order against the father, restraining him from committing family violence.
On 14 May 2016, the father asserted that the mother assaulted [W].
On the same day, the parties separated. The father removed the children from the family home to the paternal grandmother’s home.
Between 21 May 2016 and 14 July 2016, the children spent time with the mother for one hour each week, supervised by a person nominated by the father. The mother asserts that the father was also present during the mother’s supervised time with the children.
On 25 May 2016, the father asserts that the mother sought to remove the children from his care at the home of the paternal grandmother.
On 28 May 2016, the father applied for and obtained a more extensive intervention order against the mother, which also included the children as affected family members.
On 31 May 2016, the mother issued an application for a recovery order in this Court. The relevant procedural history of the matter is set out in these reasons.
Between May and June 2016, [W] attended counselling with Ms E through a mental health plan arranged by Dr S. The mother asserted that she was not involved in the arrangements.
From 14 July 2016 until 1 August 2016, the children did not spend any time with the mother prior to the commencement of the intensive family therapy with Dr J, clinical psychologist.
On 4 August 2016, Dr J conducted the first observational session with between the mother and the children.
Between 18 August 2016 and 19 December 2016, the children spent time with the mother on a weekly basis. The time between the two younger girls took place together, with [W] eventually attending with them. [X] attended time on his own. The mother alleges that various issues arose during that period, which were as follows:
a)the ongoing negative attitude and rejecting behaviours of [W] and [X];
b)derogatory comments repeated by the children;
c)the father’s ongoing involvement of the children in the parenting issues and family law proceedings;
d)[W]’s use of her mobile phone to communicate with the father during time with the mother;
e)the father’s overreaction incidents which occurred during visits;
f)the father’s ongoing use of intervention order proceedings to limit the mother’s time with the children;
g)the father asserts that the mother’s behaviour and parenting was inappropriate and defective whilst the children were in her care.
Between July and August 2016, [X] attended counselling with Ms E through a mental health plan arranged by Dr S. The mother asserted that she was not involved in the arrangements.
On 31 August 2016, the parties agreed to mutual undertakings in order to resolve outstanding intervention order proceedings.
During September 2016, the mother spent time with [W] at (hobby), however after the second visit, time did not continue. The father asserts that the mother was verbally abusive to [W].
On 15 December 2016, Dr J recommended that [W], [Y] and [Z] commence overnight time with the mother for a trial period over the long summer holidays.
On 23 December 2016, the mother spent time with [W], [Z] and [Y], however [W] refused to attend at the maternal family’s Christmas celebrations. Thereafter, the mother’s time with [W] was terminated, and did not re-commence until March 2017.
Between 23 December 2016 and 18 February 2017, the mother continued to spend overnight time with [Z] and [Y].
Between late 2016 and July 2017, the mother was charged with minor breaches of the intervention order, and she was placed on a diversion plan.
On 18 February 2017, the mother and all four children attended a second observational session with Dr J. Dr J proposed that overnight time with [Y] and [Z] continue, and that day time with [W] and [X] commence.
On 4 March 2017, all four children spent time with the mother. The mother asserts that halfway through the visit, [X] and [W] called the father on [W]’s mobile phone, and he instructed them to run to the house of a neighbour, Ms S. The time was terminated early as a result of the police attending at the father’s request. The father asserts that a significant altercation occurred between the mother, the children and the maternal grandfather, and that the children removed themselves from the mother’s care.
On 16 March 2017, the father applied for and obtained a reinstatement of his intervention order against the mother, and for an intervention order against the maternal grandmother. Orders were made on an interim ex parte basis.
Between 4 March 2017 and 19 July 2017, the mother’s time with [W] and [X] did not take place. The mother asserts the father unilaterally terminated the time, albeit with Dr J’s support. The mother’s time with [Y] and [Z] was reduced from weekly overnight time to fortnightly day visits.
On 13 May 2017, the mother forwarded small gifts for [W] and [X], and a note for [W]. The father reported her actions as a breach of the intervention order. The police did not charge the mother with a breach of the intervention order.
On 19 May 2017, Dr J prepared a report as to her observations of the parents and the children. The report identified significant problems with the mother’s parenting.
In June 2017, the mother commenced counselling with clinical psychologist, Mr S.
From 19 July 2017 until the commencement of the trial, the mother continued to spend weekly overnight time with [Y] and [Z]. The mother asserts that various problems were encountered by her during the children’s time with her.
Between 19 July 2017 and the commencement of the trial, the mother spent time with [W] on two occasions as follows:
a)30 October 2017 for a privately supervised visit with the Family Contact Service; and
b)31 October 2017, during the observational session conducted by Dr B for the purposes of a family report.
Between 19 July 2017 and the commencement of the trial, the mother spent time with [X] on three occasions as follows:
a)30 October 2017 for a privately supervised visit with the Family Contact Service;
b)31 October 2017, during the observational session conducted by Dr B for the purposes of a family report; and
c)18 November 2017 for a supervised visit at Contact Centre.
On 18 November 2017, [X], [Y] and [Z] spent supervised time with the mother at the Contact Centre. The supervisor, Mr G, provided an observational report of the visit.
On 21 December 2017, orders were entered into by consent providing for the discharge of paragraph 6 of the interim orders made on 19 July 2017.
The December 2017 orders provide that the mother spend time with [Y] and [Z] as follows:
a)in week one, from conclusion of school on Friday (or 12 noon if Friday is a non-school day) to 6:00pm on Sunday, commencing on 22 December 2017; and
b)in week two, from the conclusion of school on Wednesday (or 12 noon if Wednesday is a non-school day) to the commencement of school on Friday (or 6:00pm if Friday is a non-school day), commencing on 27 December 2017;
c)on various special occasions, including Mother’s Day, Easter, the children’s birthdays, the mother’s birthday and great grandma Ms B’s 100th birthday party.
The December 2017 orders provide for:
a)[W] and [X] to attend non-reportable family therapy with Ms A;
b)immediate resumption of supervised time with [W] as provided in paragraph 3 of the July 2017 orders;
c)resumption of supervised time with [X] as provided in paragraph 3 of the July 2017 orders, in accordance with the recommendations and directions of Ms A;
d)a resumption of telephone communication between the mother and the children as provided in paragraph 8 of the July 2017 orders;
e)arrangements for change over;
f)that each parent:
i)be at liberty to obtain information from school the children attend and access the school’s website;
ii)be permitted to attend all school events normally attended by parents, so that the mother shall not attend school excursions for [W] and [X] unless requested by them;
iii)both parents be at liberty to assist in the children’s lessons as a parent helper, subject to various terms and conditions;
iv)both parents be at liberty to provide a copy of the orders to any school the children attend.
On 31 January 2018, the mother attended [Z]’s first day of school. The father was outraged by her conduct and involved the police, as he considered the mother’s actions to be a breach of the intervention order.
Procedural history
On 31 May 2016, the mother commenced proceedings in this Court, seeking interim and final parenting orders. The mother sought that the children be immediately returned to her care, and if the father did not return the children to her, she sought the issue of a recovery order. The Initiating Application was listed on 22 June 2016.
On 17 June 2016, the father filed a Response seeking final and interim parenting orders. He sought that the children remain living with him, and that the mother’s time with the children take place at the Contact Centre. He also sought an order that the mother be psychiatrically examined.
On 22 June 2016, orders were made for a section 11F assessment. The matter was adjourned to 14 July 2016.
On 14 July 2016, the report of Family Consultant S, who conducted the section 11F assessment, was made available to the parties. The family consultant recommended:
a)the children’s time with the mother should immediately recommence;
b)the children spend five nights per fortnight with the mother; and
c)a possible change in primary care arrangements, and suspension of the father’s time if he failed to encourage the children to attend time with the mother.
On 14 July 2016, orders were made as follows:
a)the family to engage in intensive family therapy conducted by Dr J;
b)the mother to be psychiatrically assessed; and
c)the appointment of an Independent Children’s Lawyer.
On 18 August 2016, orders were made for the mother to spend limited time with the children, in accordance with the recommendations of Dr J. The matter was fixed for trial, and relevant procedural orders were made.
On 18 October 2016, orders were made for the children to spend time with the mother on at least one occasion per week, and for the parties to attend a further session with Dr J on 28 October 2016.
On 19 December 2016, orders were made for the children to spend limited time with the mother, and for the parties to attend a further review with Dr J on the first weekend of February 2017.
On 26 June 2017, the mother filed an Application in a Case seeking a variation of the time the children spend with her and termination of the intensive family therapy. The Application in a Case was abridged, and listed on 19 July 2017.
On 19 July 2017, orders were made to for the mother to spend specific time with the children, and for the family to attended psychologist, Dr B, to prepare a family report.
On 11 December 2017, the trial commenced.
On 21 December 2017, orders were made in chambers in accordance with the minute of proposed interim parenting orders submitted by the parents, which is referred to at [56] to [58] hereof.
The proposals of the parties
The mother’s proposal
The orders which the mother initially sought from the Court are set out in her Outline of Case document filed on 7 December 2017.
In summary, they are as follows:
a)the parents have equal shared parental responsibility for the children;
b)the children live with the mother, to commence forthwith;
c)the children spend time with the father, initially supervised at Contact Centre, then unsupervised daily visits, and thereafter time as prescribed by the Court;
d)the children attend professional counselling and the SCASP Program conducted by Contact Centre;
e)in the event, the Court does not consider it appropriate to make orders, as referred to in paragraphs a) to d) above, the children live with each parent on equal shared basis, with the mother’s time to gradually increase as deemed appropriate by the Court;
f)special occasions to be shared equally between the parents;
g)the children not be permitted to have a mobile telephone during periods of time they spend with the mother; and
h)the father engage with regular counselling/professional treatment.
The final orders which the mother sought from the Court differed from her initial proposal, and are set out in Appendix A to this decision.
Documents relied upon by the mother
The mother relied upon the following documents:
a)Amended Initiating Application filed on 27 November 2017;
b)Trial Affidavit of the mother sworn on 24 November 2017 and filed on 27 November 2017;
c)the Mother’s Proof of Evidence signed on 8 May 2018;
d)the Affidavit of Mr S, psychologist, sworn and filed on 1 December 2017;
e)the Affidavit of Ms C, the maternal grandmother, sworn on 30 November 2017 and filed on 1 December 2017;
f)the Affidavit of Mr P, the maternal uncle, sworn on 29 November 2017 and filed on 1 December 2017;
g)the Affidavit of Ms V sworn on 23 November 2017 and filed on 24 November 2017;
h)the Affidavit of Ms O sworn and filed on 1 December 2017;
i)the Affidavit of Mr A sworn on 6 May 2018;
j)the Affidavit of Ms M sworn on 6 May 2018;
k)Neuropsychological Report of the mother prepared by Dr C, dated 6 September 2016;
l)Psychiatric Assessment of the father prepared by Dr R, dated 14 October 2016;
m)Section 11F Report conducted by Family Consultant S, dated 27 June 2016; and
n)Family Reports of Dr B dated 16 November 2017 and 12 April 2018.
The father’s proposal
The orders which the father initially sought are set out in his Outline of Case.
They are, in summary, as follows:
a)the father have sole parental responsibility for the children, subject to him advising the mother of relevant decisions;
b)the children live with the father;
c)[Y] and [Z] spend time with the mother:
i)after school on Friday to 5.00pm on Sunday each alternate weekend, and each Tuesday from the conclusion of school until 7.00pm;
ii)during the school term holiday periods on a graduated basis until 2020, when holidays are shared;
iii)special occasions.
d)[W] and [X]:
i)engage in the SCASP program offered by Contact Service;
ii)spend time with the mother each Tuesday from after school until 7.00pm, and such other times as recommended by the counsellor, including overnight time;
iii)limited special occasion time;
e)the mother’s time with [W] and [X] be supervised by a third person;
f)the mother undertake professional treatment as ordered by the Court, and upon completion of same, the parents to engage in family therapy through the Family Relationships Centre.
The final orders which the father sought from the Court also differed from his initial proposal. They are set out in Appendix B to this decision.
Documents relied upon by the father:
The father relied on the following documents:
a)Further Amended Response filed on 7 December 2017;
b)Trial Affidavit of the father sworn on 7 December 2017 and filed on 8 December 2017;
c)the Affidavits of Ms R filed on 17 October 2017 and on 24 June 2016;
d)the Affidavit of Mr T filed on 7 December 2017;
e)the Affidavit of Ms H filed on 7 December 2017;
f)Psychiatric Assessment of the father prepared by Dr R, dated 14 October 2016;
g)the Affidavit of Dr J filed on 14 November 2017;
h)Family Report of Dr B dated 16 November 2017.
The proposal of the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer did not advise the Court of her proposal until final submissions.
The final proposals of the Independent Children’s Lawyer were in accordance with the mother’s proposal (see Appendix A to this decision), with the following amendments:
a)no necessity for each parent to attend a post separation parenting course;
b)a slightly shorter moratorium period for [W] and [X], although unspecified.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following documents:
a)the Affidavit of Mr G, supervisor at the Contact Centre, filed on 4 December 2017; and
b)Family Reports of Dr B dated 16 November 2017 and 12 April 2018.
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject‑matter of the proceeding; and
(c) the gravity of the matters alleged.
The mother and the father relied upon their respective affidavits. The affidavits were lengthy, and recounted the history of the parties’ marriage pertaining to parenting matters.
I do not intend to recite the evidence of all parties at trial. However, all of that evidence, together with the affidavits that the parties relied upon, the exhibits tendered and submissions made by Counsel for the parties, have been considered and taken into account.
In Bell & Nahos [2016] FamCAFC 244, Strickland J addressed the obligations of a trial judge in that regard as follows (at [28]-[29]):
28. Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
29. I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
Both the mother and the father gave evidence and were cross-examined. I therefore had the immeasurable benefit of observing both parties in the witness box for a considerable period of time, and observing their demeanour in Court throughout the protracted proceedings.
The mother’s psychologist, Mr S, prepared a report. He gave evidence and was cross-examined.
Dr J prepared a number of reports/letters. None of the parties required her for cross-examination.
Dr B, psychologist, prepared two family reports dated 16 November 2017 and 12 April 2018. Dr B gave evidence and was cross-examined by all parties.
I refer, in detail, to the evidence of each of the professional witnesses later in these reasons.
The mother’s evidence was candid and truthful. She presented as a generally honest and reliable witness, who sought to answer questions that were asked of her, even when adverse to her interests.
She made appropriate concessions, particularly when cross-examined about her unacceptable physical chastisement of the children; (particularly of [W] and [X]). She demonstrated unexpected insight into the children and their relationship with her. She appeared to have made diligent attempts to attend on her psychologist, Mr S, and to generally understand and adopt strategies suggested by him.
She answered questions appropriately, with as much detail as she possibly could, and remained calm and controlled.
Her attitude in Court was appropriate and contained.
The maternal grandmother, as expected, was supportive of her daughter. She impressed me as a witness of truth.
The maternal uncle, Mr P, gave evidence and was cross-examined. He also gave evidence in support of his sister, as expected. He impressed me as a witness of truth.
The mother’s uncle and aunt, Mr A and Ms M, swore affidavits, but were not required for cross-examination by either Counsel for the father or Counsel for the Independent Children’s Lawyer.
The deponents of all other affidavits the mother sought to rely on were not required for cross-examination.
The father’s presentation was more problematic. He was rigid and uncompromising about his evidence. He had a very specific recollection of events, as he saw them, and thought that any contrary view was simply not telling the truth. He was not open to any nuanced thinking about past events. His attitude towards the mother was unwavering and pervasive throughout all of his evidence. As the trial progressed, he became even more rigid in his evidence, and it was apparent that he had no desire or ability to facilitate a meaningful relationship between the children and the mother.
The paternal grandmother, Ms H, gave evidence and was cross-examined. She was clearly aggrieved by the whole proceedings, and was generally argumentative and combative. She was, however, generally a witness of truth, although she sought to give answers which she perceived would be most favourable to her son. She also believed that [W] and [X] would benefit from having no relationship with the mother.
Mr T gave evidence and was cross-examined. He impressed me as a witness of truth.
The neighbour, Ms R, swore two affidavits, but was unable to/unwilling to attend personally for cross-examination. I was advised that she would be available to give evidence by telephone, however that was opposed by Counsel for the mother. I do not place significant weight on her evidence.
Neither Counsel for the mother nor Counsel for the father sought to cross-examine Mr G.
The Applicable Law
Part VII of the Family Law Act1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how Court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
(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).
The matters set out in sub-s.(2) are primary considerations, and the matters set out in sub-s.(3) are additional considerations.
Section 60CC(2) of the Act provides that:
(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.
Subsection 60CC(2A) of the Act provides that:
(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).
I will firstly consider the primary considerations of the Act.
Section 60CC(2)(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
109. The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
At [117] of McCall & Clark, the Full Court said:
117. Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].
The Full Court said there were differing possible approaches to s.60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:
…
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). In this dispute I prefer the prospective approach.
The mother seeks to have a relationship with all four children. At present she has a relationship with the two younger children, [Y] and [Z]. She does not have a meaningful, or indeed, any relationship with the two older children, [W] and [Z]. She asserts that the two older children are aligned with, and have been significantly influenced by the father.
The father and all four children have an appropriate relationship. He has been their primary carer since separation on 14 May 2016. He also asserts that he has been the children’s primary carer since April 2014, when the mother resumed full-time work. The circumstances of how this eventuated are disputed by the mother.
The mother does not dispute that the children should continue to have a meaningful relationship with the father.
The father is of the view that any relationship between the mother and the older children would be detrimental to their physical safety and their emotional welfare. He tolerates the relationship of the younger children and the mother, but seeks to reduce the time they spend with the mother. This will obviously impact the nature of the children’s relationship with the mother.
From the father’s perspective, nothing can be gained from [W] and [X] having a relationship with the mother. He perceives them to be at risk of physical assault, emotional and psychological damage, and generally unsafe in the mother’s care.
Dr B, psychologist and family report author, has had the benefit of the preparing two family reports. The first family report is dated 16 November 2017, with clinical interviews and observation sessions occurring on 31 October 2017. The second family report is dated 12 April 2018, with clinical interviews and observations sessions occurring on 4 April 2018.
In his first family report, Dr B opined that [Y] and [Z] love both of their parents. They are well-connected to the father, and strongly attached to the mother. He states at [56] of the first family report:
56. …I do not believe that the younger two siblings are particularly fearful or uncomfortable or uncertain in the care of either parent.
The relationship between the mother and [W] and [X] is entirely different to that of the younger children. Dr B was of the view that [W] and [X] had become quite aligned with the father; completely negative about the mother, and entirely positive about the father. At that time in November 2017, they were refusing to spend any time with the mother and had no relationship with her. In his opinion (at [59]):
59. …In this case, with the veiled endorsement of their father, these children have simply discarded their mother entirely... When combined with the reality that [the father], himself, is evidently a competent and invested parent, [W] and [X] have simply split off emotionally from the mother.
In the second family report at [23], Dr B describes his observations of the four children with the father. His observations were largely unremarkable, and that the children played happily with each other. There was no evidence of difficult or oppositional behaviour, and the children were pleasant to the father. The father’s style of play and direction of the children was appropriate.
The comments by and observations of the children with the mother were more diverse and fractured.
At [21] of the second family report, Dr B states:
21. [Y] presented as the most balanced reasonable, insightful of all the children. She described that her visits with her mother were proceeding quite comfortably for her. She described that her mother has spoken in positive terms about her father. She made reference to her mother attempting to create a sense of continuity for herself and [Z]…
[Y]’s preference for her future living arrangements was to spend equal time in each of her parent’s households.
[Z] stated to Dr B, in an age-appropriate context, that she enjoyed spending time with the mother, and that her preference was to spend time between both households.
During the observation sessions between all four children and the mother, Dr B observed [Y] to be restricted in her affect and behaviour, and avoidant of the mother, which was inconsistent with her behaviour with the mother in the waiting room. There was no such inconsistency in [Z]’s behaviour.
The comments and observations of both [Y] and [Z]support the proposition that they both have a meaningful relationship with the mother. They are both acutely aware of the negative sentiment of the father and two older siblings towards the mother. It is not known whether the younger children will be able to continue to maintain their relationship with the mother, given the environment of the father’s household and their awareness of the attitude of both the father and the older siblings.
During the observation sessions of the second family report, it transpired that the relationship between the mother and [W] and [X] was even more negative than first observed by Dr B. The escalation of their behaviour and contempt for the mother is discussed under the heading of s.60CC(3)(b) of the Act.
It is apparent that neither [W], nor [X], currently has a meaningful relationship with the mother. It is also possible that the trajectory of the current relationship between [Y] and [Z] and the mother is not optimistic, given the hostility towards the mother in the father’s household.
In terms of a prospective approach, at [62] of the first family report, Dr B is of the view that although the mother has behaved inappropriately towards the children, she would have done many things well with them over the years, which the father fails to acknowledge.
Dr B states in the first family report at [62]:
62. …The reality is these four children have a mother; they need a mother; and they will benefit in the long run by maintaining a relationship with her…
At [66] of the first family report, Dr B states:
66. …I would, however, highlight for this Honourable Court that simply because [the mother] may struggle with some aspects of parenting four energetic children, it does not logically follow that she should not spend considerable time with them…
At [32] of the second family report, Dr B refers to the scientific research which indicates the risks to children who disproportionately/ unreasonably/pathologically reject a parent.
These risks include highly undesirable long-term outcomes, which include a tendency to become very maladjusted adults where there is no significant intervention. The future possible problems which may be experienced by such children include personality disorders, relationship problems and entitlement/egocentrism.
Dr B was not challenged about the matters referred to in the preceding paragraphs, and I accept his evidence.
One of the critical issues in this case is to assess and balance the long-term emotional and psychological benefits of all of the children having a meaningful relationship with the mother, with the risks which the father asserts arise from the children having a relationship with the mother.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
Both parents assert that the children are at risk in the other parent’s care, and should be protected from physical and psychological harm and/or exposure to abuse, neglect or family violence.
Psychiatric assessments of both parents were undertaken by Dr R (the father) and Dr G (the mother). Both assessments conclude that there is no evident major mental illness.
The mother filed a Notice of Risk on 31 May 2016. The father filed a Notice of Risk on 17 June 2016.
The mother’s Notice of Risk asserts that the children have been abused by the father. The particulars of alleged abuse include ongoing emotional abuse, intimidating and frightening the children with his aggressive manner, excessively controlling, coercing and manipulating the children, being dismissive of [W]’s anxiety, allowing [X] to watch age-inappropriate shows, neglecting their physical health, and taking the children away from the mother and home against their will.
The mother’s Notice of Risk also asserts that the children have been subjected to, or are at risk of family violence perpetrated by the father, and that the father has mental ill-health; in particular, his sociopathic/narcissistic personality.
The father’s Notice of Risk asserts that [W] and [X] have been physically abused by the mother in the past. He refers to the children being slapped, pushed and pinched, as well as being exposed to the mother’s yelling and aggressive behaviour within the home.
The mother’s asserted risks to the children in the father’s care
The mother currently asserts that the father has:
a)engaged in a deliberate process of “alienating” the children from her;
b)told the children that the mother is crazy;
c)traumatised the children by reinforcing aggressive physical incidents perpetrated by the mother;
d)crafted a narrative that the mother is unstable, incompetent, reactive, uncaring and unsafe; and
e)positioned himself as the children’s saviour and protector.
I will collectively address the matters referred to in the preceding paragraph as “risk of alignment factors”.
The mother’s case may be summarised as follows:
a)as a result of the children’s extreme alignment with the father, if they remain in the father’s care, [W] and [X] will continue to have no relationship with her, and it is likely that [Y] and [Z] will succumb to the negativity of the father’s household, so that the two younger children will eventually have no relationship with her;
b)the rejection of a relationship with the mother will almost certainly expose the children to the future emotional and psychological risks identified by Dr B and referred to in these reasons.
During the first family report interview, the mother raised two additional concerns with the father’s care of the children. These were:
a)the father neglected their health, sport/medical needs; and
b)the father had not been attending to the children’s developmental needs, specifically continuing with [Z]’s toilet training.
Neither of these two concerns was significantly pressed during the hearing of the matter. The primary focus of the mother was the children’s extreme alignment with the father, and the consequent risk of long-term emotional and psychological harm for all children.
I will address in-detail the mother’s asserted risks to the children in the father’s care.
Risk of alignment factors
The only issue upon which the parties agree is that [W] and [X] do not presently have a relationship with the mother.
According to Dr B in his first family report at [57], both [W] and [X] have very fervent and strident views of their parents. Neither child is amenable to a contrary view. Dr B states:
57. …During my interviews with these older children, they were almost wholly negative about their mother, while entirely positive about the father. They currently refuse to spend any time with their mother. They perceive her as aggressive, violent, and reactive. They perceive all aspects of her behaviour with negative intent.
The mother asserts that the views of the children have been influenced by the father, and he is primarily responsible for their rejection of her. If the children were to remain living with the father, [W] and [X]’s views would continue to be stridently rejecting the mother, and eventually [Y] and [Z] would also reject the mother.
Dr B, quite rightly, identifies that the relevant issues are whether:
a)the children’s views are anchored in reality, and have been formed as a result of their experiences;
b)their reaction to the mother is proportionate with their experiences.
The mother’s own evidence is that she has engaged in physical assaults of the children, and at times has been aggressive and reactive with the two older children. In her letter/report, Dr J also describes the mother’s aggressive disciplinary actions towards the children and her lack of parenting skills.
During cross-examination, the mother expressed remorse and abhorrence at her former conduct, and to her credit, since May 2017 she has diligently attended a psychologist, Mr S, to address her conduct and parenting capabilities.
In the first family report, Dr B comments that because the children’s views are based on inappropriate conduct by the mother, it is not necessarily the case that their views have not been accentuated by the father. Both possibilities may occur simultaneously.
At [59] of the first family report, Dr B identifies that:
a)the father has cast himself as safe, and as the children’s protector from the mother;
b)the mother is portrayed as dangerous;
c)the father has unashamedly negative views of the mother;
d)his negative views of the mother have not always been quarantined from the children;
e)use of phrases by [W] and [X] such as “she terrorises us” may have been acquired indirectly from the father;
f)with the “veiled endorsement” of the father, the children may have “simply discarded” the mother;
g)[W] and [X] have simply split off emotionally from the mother; and
h)[X] takes cues from [W], who is the most hostile toward the mother.
At [62] of the first family report, Dr B states that his opinion is that the children have absorbed some of the father’s negative sentiment in his household, however that is not necessarily by a deliberate process.
When Dr B interviewed the family for the second family report in April 2018, the dynamic of [W] and [X] differed from their presentation in November 2017.
The children’s expressed views, as recounted to Dr B, are referred to elsewhere in these reasons.
By November 2017, the attitude of [W] and [X] towards the mother was vastly different to the observations in November 2017. Dr B observes that [W] and [X] were rude, belligerent, and at times, quite aggressive and openly hostile towards the mother. He commented that [X], when reproached about his behaviour, stated that he didn’t need to be polite to “her”. He observed that the older children (the second family report at [24], [27]):
24. …showed an utter lack of compassion or empathy or civility toward their mother…
…
27. …the level to which these children continue to reject their mother is remarkable and conspicuous. There is more to this picture than simply [the mother] disciplining the inappropriately at points or losing her temper. There is something about the father’s environment that is, in my view, perpetuating and augmenting [W] and [X]’s rejection of [the mother]. I cannot state with any certainty that this has been a deliberate process on the part of the respondent father. At base, however, he is doing nothing to arrest this process. It may also be the case that he has subtly been doing considerably more to accelerate the children’s aversion to the mother. The level of his involvement in this process – passive or deliberate – remains opaque. It is noteworthy, however, that the older children’s language, and cited grievances, and perceptions of [the mother], almost totally align with their father’s. I suspect this is not coincidental… There is a pathological dimension to the way in which [W] and [X]’s rejection of their mother has been accepted/incorporated by the paternal side of the family.
In terms of the father’s assertion that the children are fearful of the mother and require protection from him, the observations of Dr B during the interviews for the second family report do not support that proposition.
At [28] of the second family report, Dr B states that [W] and [X] did not present as children struggling with anxiety, or a trauma reaction to the mother. He continued:
28. …What I have seen during the current assessment bears many of the hallmarks of children enveloped in an alienation process. To reiterate, it is not my view that this is a case of obvious parental alienation. However, my observations of these children illustrates a level of rejection of one parent, and a degree of veneration of the other, that is not normal.
During cross-examination, Dr B gave comprehensive evidence about the differences in presentation of the two older children during the two family report interviews
His well-reasoned and considered evidence is set out at paragraphs [319] to [326] hereof. He was of the opinion that [W] and [X] looked like they were having a good time, and were enjoying taunting the mother. Dr B even referred to the children almost having a smirk on their faces, and that behaviour was seen very irregularly in his clinical work, and was most disconcerting.
During cross-examination, Dr B was of the opinion that the reaction of the children was completely disproportionate. In fact, he said the children’s responses are “…abjectly disproportionate to what has occurred in their own experience.”
Apart from his assessment of the children’s behaviour, Dr B’s assessment of the father’s presentation as at April 2018 was that his beliefs and feelings toward the mother had become even more consolidated. He was unable to concede that despite the mother’s problems, it was important for the children to have a relationship with the mother.
During cross-examination, Dr B considered that the father would not be able to contain his demeanour and facial expressions when the mother’s name was mentioned, and the children would be sufficiently perceptive to see that.
That observation concurs with my observation of the father’s evidence; in particular, the father’s view of the events of [Z]’s first day at school. When questioned by me about why [Z] would not be delighted that both parents attended her first day of school, his evidence was unwaveringly negative, and he was unable to see any benefit whatsoever to [Z].
Dr B was not challenged about any of the matters referred to in the preceding paragraph, and I accept his evidence.
I find that:
a)the father has:
i)influenced and exacerbated the negative views of [X] and [W] towards the mother;
ii)become more strident in his own negative views of the mother;
b)[W] and [X] are not fearful of the mother;
c)there is little possibility that the father’s entrenched views are likely to change;
d)the father is never likely to encourage a relationship between the children and the mother.
Accordingly, I intend to make orders for equal shared parental responsibility.
Statutory Pathway
As previously referred to, during final addresses, it was agreed between Counsel that the proposals for the children’s living arrangements were either in accordance with the proposal of the mother, or the proposal of the father.
Neither party sought an order for equal time. The father did not seek an order for the children to spend substantial and significant time with the mother.
The father’s proposal was:
a)for [W] and [X] spend no time with the mother;
b)for [Y] and [Z] to spend:
i)one overnight each fortnight;
ii)each Tuesday after school for a few hours;
iii)limited special occasions.
The father’s proposal for [Y] and [Z]’s time with the mother does not meet the statutory definition of substantial and significant time as provided in s.65DAA(3) of the Act.
The mother’s proposal for the children’s time with the father at the expiration of the moratorium period meets the statutory definition of substantial and significant time.
There were no submissions about reasonable practicality from any party.
However, both parents live in Town A, relatively near each other. The children continue to attend the school they attended prior to separation, with [Z] also commencing this year.
The other matters requiring consideration in accordance with s.65DAA(5) of the Act have been referred to elsewhere in these reasons.
Conclusion
I intend to make orders essentially in terms of the minute of proposed order sought by the mother and the Independent Children’s Lawyer.
I certify that the preceding four hundred and forty-nine (449) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 30 August 2018
APPENDIX A
FINAL ORDERS PROPOSED BY THE MOTHER
THAT all previous Orders be and are hereby discharged.
THAT the Independent Children’s Lawyer remain in this matter for a period of 12 months.
PARENTAL RESPONSIBILITY
THAT the parents have equal shared parental responsibility for the children arising from the marriage - namely, [W] born on 2006 (“[W]”), [X] born on 2008 (“[X]”), [Y] born on 2010 (“[Y]”) and [Z] born on 2013 (“[Z]”) (“the children”).
PRIMARY CARE OF THE CHILDREN
THAT the children shall live with the Mother, with such arrangement to commence forthwith.
MORATORIUM PERIODS
THAT there be a moratorium on the Father’s time with:-
5.1 [W] and [X] for a period of eight (8) months (“the moratorium period for [W] and [X]”); and
5.2 [Y] and [Z]:-
(i)for a period of 6 weeks; or
(ii)until the return of the Mother and children from Sydney (as contemplated in paragraphs 7 and 8 herein) whichever is later (“the moratorium period for [Y] and [Z]”).
For the purpose of paragraph 5 herein:-
6.1 the moratorium periods for all four children shall commence forthwith following Judgment;
6.2 on the day that Her Honour Judge Williams’ Judgment is delivered, the children shall be brought by the Father to the Federal Circuit Court of Australia in Melbourne (“the Court”) and the children shall remain in the child-minding section of the Court;
6.3 following Judgment:-
(i)the Father shall immediately leave the Court and forthwith return to Town A;
(ii)Family Consultant S, the Independent Children’s Lawyer and the Mother’s Uncle MR A shall meet with the children at the Court and explain to them, the nature and effect of the Orders made by the Court;
(iii)the Mother and / or her nominee(s) shall be permitted to remove the children from the child minding section of the Court and leave Court with the children.
CONDITIONS AND OBLIGATIONS DURING THE MORATORIUM PERIODS
THAT during the moratorium period for all four children, the Mother shall be at liberty to –
7.1 travel with the children interstate and / or arrange for her nominee(s) to travel with the children interstate;
7.2 remain interstate with the children for a period of up to 6 weeks.
For the purpose of paragraph 7 herein, it is contemplated that the interstate travel will take place at or around the commencement of the moratorium periods subject to the needs and conduct of the children.
During the moratorium period for [W] and [X] as defined in paragraph 5.1 herein, the Mother shall:-
9.1 engage in and continue to attend Family Therapy with [W] and [X] with the Family Services or with such other service as recommended by the children’s’ treating General Practitioner;
9.2 engage [W] and / or [X] with such other Professionals as recommended by their treating General Practitioner;
9.3 engage in and accept any and all Support Services offered and recommended to her by the Professionals with whom she is engaged;
9.4 continue to engage with Mr S of Psychology Clinic as directed by that Professional;
9.5 advise the Father forthwith by text message or email in the event of an emergency concerning the children or any of them;
9.6 pass on to the Father any letters / messages written by the children for special occasions including Father’s Day, Christmas and Birthdays and / or any other communications which the Mother deems are appropriate, with the Mother to be guided by the Professionals involved with the children;
9.7 be at liberty to attend all School events that parents ordinarily attend including school concerts and excursions and to assist in the children’s’ classrooms as a Parent Helper;
9.8 keep the Father informed in writing (by email) of any activities in which she enrols the children;
9.9 be at liberty to bring the children into contact with any and all maternal family members and to allow such family members unlimited contact with the children including, but not limited to, the maternal grandmother MS C and MR P and for the purpose of same, any contact between Ms C and the children shall not be a breach of the current Intervention Order in place between Ms C and the Father (upon which the children are also listed as Affected Family Members);
9.10 be at liberty to engage the children with her General Practitioner, Dr T of the Medical Centre or such other General Practitioner as nominated by the Mother;
9.11 be at liberty to provide a copy of these Orders to the children’s’ School;
9.12 be at liberty to post photographs / images and / or other information concerning the children on social media as deemed appropriate by the Mother.
During the moratorium period for [W] and [X] as defined in paragraph 5.1 herein, the Father:
10.1 be at liberty to receive information from the children’s’ School which parents ordinarily receive including School Reports, newsletters, etc.
10.2 and if he engages in professional counselling or therapy, provide copies of the following documents to any person with whom he engages in professional counselling or therapy:-
(i)the Family Reports prepared by Dr B on 16 November 2017 and 12 April 2018;
(ii)the Judgment; and
(iii)the Final Orders;
10.3 engage in and complete a Post-Separation Parenting Course which focuses on the need for children in separated families to be encouraged to have meaningful relationships with both parents and for the purpose of same, the Father shall provide the Certificate of Completion to the Mother or the Mother’s Solicitors;
THAT the Father shall be restrained by way of Injunction from having any contact at all with :-
11.1 [W] and [X] during the moratorium period for those children as defined in paragraph 5.1 herein; and
11.2 [Y] and [Z] during the moratorium period for those children as defined in paragraph 5.2 herein.
For the purpose of paragraph 11 herein, during the moratorium periods relevant to each of the children (as defined in paragraph 5 herein) if the children or any of them make contact with the Father (subject to paragraph 9.6) and / or attend at the Father’s residence:-
12.1 the Father shall immediately notify the Mother in writing (by email or text message); and
12.2 the Father shall respond by re-directing the children to the Mother and he shall not engage with them at all;
12.3 the Father shall provide the Mother with a copy of any handwritten communication from the child/ren (where applicable);
12.4 the Mother shall be at liberty to attend at the Father’s residence in order to personally collect the child/ren (where applicable).
During the moratorium period for [W] and [X], the Father shall be restrained by way of injunction from attending :-
13.1 at School 1 or any other school at which the children attend; and / or
13.2 any school events for the children which parents would ordinarily attend SAVE FOR the sole purpose of complying with paragraph 16.1 herein.
Subject to paragraph 20 herein, during the moratorium period for [W] and [X], the Father shall be restrained by way of Injunction from personally attending at any extra-curricular events in which the children or either of them are engaged.
RESUMPTION OF FATHER’S TIME WITH [Y] AND [Z]
Upon the conclusion of the moratorium period for [Y] and [Z] as defined in paragraph 5.2 herein, the Father’s time with [Y] and [Z] shall take place as follows :-
15.1 During school term:
15.1.1 in Week 1, from after School (or 3:30 p.m.) Friday to before School (or 9:00 a.m.) Monday;
15.1.2 in Week 2, from after School (or 3:30 p.m.) Thursday to before school (or 9:00 a.m.) Friday;
15.2 for one half of the First, Second and Third Term School Holidays as agreed and in the absence of agreement, for the first half, commencing from the last day of term until 2:00 p.m. on the middle day;
15.3 for one half of the Christmas Holidays as agreed and in the absence of agreement, on a week-about basis and for the purpose of same:-
(i)such time shall commence from the last day of term;
(ii)changeovers during this holiday period shall occur at 2:00p.m.;
15.4 by telephone / video call on [Y] and [Z]’s birthdays, in the event that those children are not otherwise in the Father’s care on those days, with the Father to initiate the calls by telephoning the Mother’s mobile number at 5:00 p.m. on those days;
15.5 for Father’s Day, in the event that [Y] and [Z] are not otherwise in the Father’s care on that weekend, from 6:00 p.m. on the Saturday preceding such occasion to before School (or 9:00 a.m.) Monday;
15.6 by telephone / video call on Christmas Day in 2018 at 10:00 a.m. on Christmas Day, with the Father to initiate the call by telephoning the Mother’s mobile;
15.7 by telephone / video call at 6:00 p.m. on the Father’s Birthday, in the event that [Y] and [Z] are not otherwise in the Father’s care on that day, with the Father to initiate the call by telephoning the Mother’s mobile;
15.8 for Easter in 2019, from 10:00 a.m. Good Friday to 3:00 p.m. Easter Sunday;
15.9 at such other times as agreed between the parties in writing.
THAT the Father’s time with [Y] and [Z] as provided for in paragraph 15 herein shall be suspended to allow the Mother to communicate/spend time with those children on special occasions and holidays as follows:-
17.1 for one half of the First, Second and Third Term School Holidays as agreed and in the absence of agreement, for the second half, commencing from 2:00 p.m. on the middle day;
17.2 for one half of the Christmas Holidays as agreed and in the absence of agreement, on a week-about basis and for the purpose of same:-
(iii) such time shall commence from 2:00 p.m. in the second week of the holidays; and
(iv) changeovers during this holiday period shall occur at 2:00p.m.;
17.3 by telephone / video call on [Y] and [Z]’s birthdays, in the event that they are not otherwise in the Mother’s care on those days, with the Mother to initiate the calls by telephoning the Father’s mobile number at 5:00 p.m. on those days;
17.4 for Mother’s Day, in the event that [Y] and [Z] are not otherwise in the Mother’s care on that weekend, from 6:00 p.m. on the Saturday preceding such occasion to before School (or 9:00 a.m.) Monday;
17.5 by telephone / video call at 6:00 p.m. on the Mother’s Birthday, in the event that [Y] and [Z] are not otherwise in the Mother’s care on that day, with the Mother to initiate the call by telephoning the Father’s mobile;
17.6 for Easter in 2019, from 3:00 p.m. Easter Sunday;
17.7 for the whole Christmas period in 2018 from 6:00 p.m. 22 December 2018 to 6:00 p.m. Boxing Day;
17.8 at such other times as agreed between the parties in writing.
For the purpose of the living arrangements contained in paragraph 15 and 16 herein:-
17.1 during the moratorium period for [W] and [X] as defined in paragraph 5.1 herein, all changeovers for [Y] and [Z] shall take place at the School 1 side street gate (on Road) in order to avoid direct contact between the Father and [W] and [X];
17.2 where changeovers fall on a non-school day, the changeovers shall be shared equally by the parties so that the Mother delivers the children to the Father at the commencement of his time and the Father delivers the children to the Mother’s residence at the conclusion of his time and for the purpose of same:-
(i)the travelling parent shall remain in their vehicles when attending at the other’s parent’s residence for the changeover; and
(ii)where possible, the Mother shall not bring [W] and [X] to the changeovers that take place at the Father’s residence;
17.3 each of the parties shall be at liberty to wait outside their home at the time of changeovers but shall refrain from approaching the other parent’s motor vehicle.
Once the Father’s time with [Y] and [Z] has resumed as provided for in paragraph 15 herein, the parents shall communicate with one another once per month by telephone in order to discuss the children and for the purpose of same:-
18.1 such telephone communication shall take place in the middle of each month;
18.2 the Father shall nominate the date and time for the call by sending those details to the Mother by email;
18.3 the Mother shall initiate the call by telephoning the father on the agreed date and time;
18.4 in the event that the parents agree to communicate with each other by telephone about the children more flexibly in the future, such agreement shall be confirmed in writing and shall be implemented thereafter.
The Father shall ensure that [Y] and [Z] attend all extra-curricular activities in which they are engaged if those events fall on days when they are in the Father’s care.
POST-MORATORIUM PERIODS
RESUMPTION OF FATHER’S TIME WITH [W] AND [X]
Upon the completion of the moratorium period for [W] and [X]:-
20.1 the Father’s time with [Y] and [Z] shall continue in accordance with paragraphs 15.1 and 15.2 herein;
20.2 paragraphs 21 and 22 herein shall apply with respect to the parents’ contact with the children on special occasions and during Holiday periods;
20.3 the Father’s time with [W] and [X] shall resume, with those children to stay with the Father at the same times as [Y] and [Z] as provided for in paragraphs 15.1 and 15.2 herein – namely:-
(i)in Week 1, from after School (or 3:30 p.m.) Friday to before School (or 9:00 a.m.) Monday, to be extended to 9:00 a.m. Tuesday where Monday is a non-school day; and
(ii)in Week 2, from after School (or 3:30 p.m.) Thursday to before school (or 9:00 a.m.) Friday;
20.4 the balance of these Orders shall come into full force and effect;
20.5 both parties and the children shall continue to engage in Family Therapy, professional counselling or psychological treatment as recommended and directed by their treating Professionals.
FATHER’S TIME WITH THE CHILDREN FOR SPECIAL OCCASIONS AND HOLIDAY PERIODS
THAT the Father shall spend time and communicate with the children as follows on special occasions and during holiday periods:-
21.1 for half of the First, Second and Third Term School Holidays as agreed and in the absence of agreement, for the first half commencing from the conclusion of School on the last day of Term to 2:00 p.m. on the middle day;
21.2 for half of the Christmas Holidays as agreed and in the absence of agreement, on a week-about basis, with the Father’s time to commence in the first week in even numbered years (commencing from the last day of Term) and from the second week in odd numbered years and for the purpose of same:-
(i)changeovers during this period shall take place at 2:00 p.m.;
(ii)the children shall always be returned to the Mother at least 2 days prior to the commencement of the new school year irrespective as to with whom the children are staying in the last week of the Holidays;
21.3 by telephone on the children’s’ birthdays, in the event that those Birthdays fall on a day when the children are not otherwise in the Father’s care, with the Father to initiate the call by telephoning the Mother’s mobile at 5:00 p.m. on those days;
21.4 for Father’s Day, in the event that the children are not otherwise in the Father’s care on that weekend, from 6:00 p.m. on the Saturday preceding such occasion to before School (or 9:00 a.m.) Monday;
21.5 for Christmas as agreed and in the absence of agreement, from 10:00 a.m. 23 December to 6:00 p.m. Boxing Day in odd numbered years, commencing in 2019;
21.6 by telephone / video call at 6:00 p.m. on the Father’s Birthday, in the event that the children are not otherwise in the Father’s care on that day, with the Father to initiate the call by telephoning the Mother’s mobile;
21.7 for Easter from 6:00 p.m. Easter Thursday to 2:00 p.m. Easter Saturday in odd numbered years (commencing in 2020) and from 2:00 p.m. Easter Saturday to 6:00 p.m. Easter Monday in even numbered years (commencing in 2021);
21.8 at such other times as agreed between the parties in writing.
MOTHER’S TIME WITH THE CHILDREN FOR SPECIAL OCCASIONS AND HOLIDAYS
THAT the Father’s time with the children shall be suspended to allow the Mother to spend time with the children on special occasions and Holidays as follows:-
22.1 for half of the First, Second and Third Term School Holidays as agreed and in the absence of agreement, for the second half commencing at 2:00 p.m. on the middle day;
22.2 for half of the Christmas Holidays as agreed and in the absence of agreement, on a week-about basis, with the Mother’s time to commence in the first week in even numbered years (commencing from the last day of Term) and from the second week in odd numbered years and for the purpose of same:-
(i)changeovers during this period shall take place at 2:00 p.m.; and
(ii)the children shall always be returned to the Mother’s care at least 2 days prior to the commencement of the new school year, irrespective as to with whom the children are staying in the last week of the Holidays;
22.3 by telephone on the children’s’ birthdays, in the event that those Birthdays fall on a day when the children are not otherwise in the Mother’s care, with the Mother to initiate the call by telephoning the Father’s mobile at 5:00 p.m. on those days;
22.4 for Mother’s Day, in the event that the children are not otherwise in the Mother’s care on that weekend, from 6:00 p.m. on the Saturday preceding such occasion to before School (or 9:00 a.m.) Monday;
22.5 for Christmas as agreed and in the absence of agreement, from 10:00 a.m. 23 December to 6:00 p.m. Boxing Day in even numbered years, commencing in 2018;
22.6 by telephone at 6:00 p.m. on the Mother’s Birthday, in the event that the children are not otherwise in her care on that day, with the Mother to initiate the call by telephoning the Father’s mobile;
22.7 for Easter from 6:00 p.m. Easter Thursday to 2:00 p.m. Easter Saturday in even numbered years (commencing in 2021) and from 2:00p.m. Easter Saturday to 6:00 p.m. Easter Monday in odd numbered years (commencing in 2020);
22.8 at such other times as agreed between the parties in writing.
During the holiday time provided for in these orders, the school term living arrangements shall be suspended and such arrangements shall re-commence following the holiday time, with the pattern of alternate weekends and mid-week time resuming as if no suspension had taken place.
CHANGEOVERS
Changeovers shall take place in accordance with paragraph 17 herein SAVE THAT after the completion of the moratorium period for [W] and [X] as defined in paragraph 5.1 herein:-
24.1 the Father shall be at liberty to collect the children from their classrooms at School or any other location contained within the School;
24.2 there shall be no limitations on the Father’s involvement with and attendance at the children’s School(s).
TELEPHONE COMMUNICATION WITH THE CHILDREN
The Father shall communicate with the children by telephone / video call every Wednesday at 6:00 p.m. when the children are not otherwise in his care and at such other times pursuant to the expressed wishes of the children and for the purpose of such communication:-
25.1 the Father shall initiate the call by telephoning the Mother’s mobile;
25.2 the Mother shall :-
(i)ensure the children are made available for the call and shall actively encourage the children to participate in the call;
(ii)allow the children to telephone the Father at any other time pursuant to their expressed wishes (where appropriate);
(iii)ensure the children return the Father’s telephone call in the event that the Father calls and the children are not available to speak with him at that time.
The Mother shall communicate with the children by telephone / video call at times pursuant to the expressed wishes of the children and during the school holiday periods, each Wednesday at 6:00 p.m. when the children are not otherwise in her care and for the purpose of such communication:-
26.1 the Mother shall initiate the call by telephoning the Father’s mobile;
26.2 the same obligations as set out in paragraph 26.2 shall apply to the Father.
PARENTAL COMMUNICATION
The parties shall communicate respectfully with one another by :-
27.1 email; and
27.2 text messages in emergencies, and for the purpose of same, all correspondence shall be solely in relation to the health, welfare and development of the children and / or regarding the living arrangements as contained in these Orders.
The monthly parental phone-calls provided for in paragraph 18 herein shall continue to occur each Monday at 8:30 p.m.
EDUCATION
THAT both parents shall do all such acts and things and sign all such documents in order to request and authorise :-
29.1 any school(s) at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent / teacher interviews and any other information relating to the children to both parents at their own respective costs (if any);
29.2 both parents access to the website used by the children’s’ current School for the purpose of exchanging information.
THAT the parents be permitted to attend all school events, including concerts, Sports Finals, plays, productions, significant competitions, Confirmations, excursions, parent/teacher interviews and like events normally attended by parents.
THAT both parents shall be at liberty to assist in the children’s’ lessons as a Parent Helper and any parent based activity including excursions and for the purpose of same:-
31.1 Each parent shall assist during any day when the children were / are in that parent’s care unless otherwise agreed in writing;
31.2 each parent shall provide the other with at least 48 hour’s written notice via text message or email of their time allocation for such assistance in order to avoid both parents being present at the same time.
THAT the parents be at liberty to provide a copy of these Orders to any school at which the children attend from time to time.
EXTRA-CURRICULAR EVENTS
THAT both parents shall ensure that the children attend their extra-curricular activities which fall in their respective time and for the purpose of same, if either parent is unable to do so, the other parent shall be offered the opportunity to take the child/ren to that event instead, in which case, that parent shall return the child/ren to the other parent’s care immediately following such event.
THAT the parents shall only attend extra-curricular activities for the children when such event falls during his / her time with the children as provided for herein SAVE THAT both parents shall be at liberty to attend special events such as Concerts irrespective as to with whom the children are staying at the time of such special event.
MEDICAL
THAT the parents shall immediately inform the other of any serious illness or injury sustained by the children whilst in their care and further provide any particulars or any treatment received by the children together with the name and address of the treatment provider and / or the location at which the child/ren is / are a patient.
THAT both parents do all such acts and things and sign all such documents to request and authorise any medical practitioner or treatment provider at which the children attend from time to time to provide copies of all reports, notices, correspondence and information concerning the children’s health to both parents at their own respective costs, if any, including speaking to both parents by telephone and / or in person as may be required.
THAT both parents shall provide the other with advanced written notice (where possible) of any and all medical appointments they make for the children including :-
37.1 the date, time and location of the appointment;
37.2 the name and contact details of the practitioner; and
37.3 the reason for the visit.
THAT the parents shall each make available to the other any medication prescribed for the children to enable the other party to administer such medication to the children and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parents so as to ensure that it is in the possession of the party with whom the child/ren is / are living or spending time.
RESTRAINTS
THAT without admitting the necessity for this Order, both parents be restrained by themselves, their servants and agents from:-
40.1 abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or the other parent’s family members or friends to the children or in the presence, sight or hearing of the children;
40.2 communicating about adult issues or parenting issues or contact arrangements through the children or directly with the children;
40.3 interrogating the children about the other parent or the other parent’s family;
40.4 physically disciplining the children; and
40.5 knowingly allowing any third party to engage in conduct which is otherwise prohibited in accordance with this paragraph.
INTERSTATE AND OVERSEAS TRAVEL
THAT if either parent seeks to take the children outside of the State of Victoria during periods when the children are in that parent’s care, s/he shall provide the other parent with at least 7 days advanced written notice and if relevant, the flight and accommodation details.
THAT in the event that either parent intends to travel with the children outside of the Commonwealth of Australia, the travelling parent shall:-
41.1 not less than 42 days prior to the planned travel, notify the other parent in writing as to all relevant details regarding the proposed trip including, but not limited to:-
(i)the county/ies to which the children will travel and with whom the children will travel;
(ii)the airline/s upon which the children will travel including flight details;
(iii)the date upon which the children will depart from and return to the Commonwealth of Australia;
(iv)the address/es at which the children shall reside and a telephone number on which the other parent can communicate with the children;
41.2 provide the other parent with make-up time if the other parent misses out on time due to the planned travel;
41.3 provide a Final Itinerary for the children to the other parent (where applicable) not less than 7 days prior to the planned departure;
41.4 endeavour to arrange the holiday during a holiday period where the children are otherwise in his / her care;
41.5 arrange the holiday so it impacts as little as possible on the childrens’ schooling, with no more than 1 week of school to be missed;
41.6 organise, at his / her own expense, all necessary injections for the children for the purpose of such travel.
OTHER MATTERS
Unless agreed between the parties in writing, no child shall be authorised to have his / her own mobile telephone within their possession during contact with the other parent.
THAT in the event that the children are invited to a party or other special occasion at a time during the other party’s care, the parent receiving the invitation shall forthwith provide the other parent with a copy of it to enable that parent to respond to the invitation as the parent may choose.
THAT each party shall notify the other with no less than 7 days prior written notice of any change of residential address, telephone number, email address or other contact details.
The Mother shall be at liberty to bring the children into contact with any and all maternal family members and to allow such family members unlimited contact with the children including, but not limited to, the maternal grandmother MS C and MR P and for the purpose of same, any contact between Ms C and the children shall not be a breach of the current Intervention Order in place between Ms C and the Father (upon which the children are also listed as Affected Family Members).
THAT both parents shall be at liberty to post photographs, images and / or any other information regarding the children on social media as deemed appropriate by that parent.
APPENDIX B
Minute of Orders Sought by Respondent Father
That the Father have sole parental responsibility for the children [W] born 2006 (“[W]”), [X] born 2008 (“[X]”), [Y] born 2010 (“[Y]”) and [Z] born 2013 (“[Z]”) (together “the children”).
That the children live with the Father.
That the children, [Y] and [Z] spend time with the Mother as follows:
(a)From after school Friday to 5:00pm Saturday and each alternate week thereafter;
(b)Each Tuesday from after school until 7:00pm;
(c)At Christmas as follows:
(i)In 2018 from 10:00am on Christmas Eve until 10:00am Christmas Day and each alternate year thereafter; and
(ii)In 2019 from 10:00am Christmas Day until 10:00am Boxing Day and each alternate year thereafter.
(d)At Easter as follows:
(i)In 2019 from 10:00am on Good Friday until 10:00am on Easter Saturday and each alternate year thereafter; and
(ii)In 2020 from 10:00am Easter Saturday until 10:00am Easter Sunday and each alternate year thereafter.
(e)On [Y]’s and [Z]’s birthdays as follows:
(i)For 2 hours if a school day at such time to be agreed between the parties and failing agreement from the conclusion of school until 5:30pm; and
(ii)For 4 hours if a non-school day at such time to be agreed between the parties and failing agreement from 10:00am to 2:00pm.
(f)On the Mother’s birthday if a school day from the conclusion of school until 7.00pm and if a non-school day from 10:00am to 7:00pm.
(g)On Mother’s Day from 10:00am to 7:00pm.
(h)At such further and other times as agreed between the parties in writing.
That the Mother’s time with [Y] and [Z] be suspended as follows:
(a)At Christmas as follows:
(i)In 2018 from 10:00am Christmas Day until 10:00am Boxing Day and each alternate year thereafter; and
(ii)In 2019 from 10:00am on Christmas Eve until 10:00am Christmas Day and each alternate year thereafter.
(b)At Easter as follows:
(i)In 2019 from 10:00am Easter Saturday until 10:00am Easter Sunday and each alternate year thereafter; and
(ii)In 2020 from 10:00am on Good Friday until 10:00am on Easter Saturday and each alternate year thereafter.
(c)On the Father’s birthday if a school day from the conclusion of school until 7.00pm and if a non-school day from 10:00am to 7:00pm.
(d)On Father’s Day from 10:00am to 7:00pm
That forthwith [W] and [X] engage in the SCASP Program offered by the Contact Service (or such other agreed child counselling program) and that the parents forthwith do all such acts and things to sign and complete any intake process required.
That [W] and [X] spend time with the Mother as agreed between the parties in writing and upon the recommendations of the children’s counsellor.
That the Father notify the mother in writing as soon as practicable after making any decision in relation to major long term issues including but not limited to:
(a)The children’s education;
(b)The children’s religious and cultural upbringing; and
(c)The children’s health.
That each party ensure that they notify the other of all medical, dental and other allied health professional appointments forthwith upon the children attending such appointments and that each party be at liberty to liaise directly with all medical, dental and other allied health professional treating the children.
Each party inform the other of any serious illness or injury affecting the children in their respective care forthwith.
That each party be permitted to provide a copy of these Orders to the children’s schools, carers, and treating health professionals.
That each parent be authorised to attend all school events to which parents are normally invited save that such events shall not include excursions for [W] and [X] unless requested by the children.
That the parents be at liberty to provide a copy of the report of Dr J dated 19 May 2017 together with the family reports completed by Dr B to any counsellor treating [W] and [X].
That changeover occur at the Mother’s home when it does not occur at the children’s school.
That both parents ensure that the children attend their agreed extra-curricular activities which fall in their respective time.
That the Father be permitted to travel overseas and/or interstate/ and or within Victoria with the children provided that:
(a)The Father provide to the Mother 30 days’ notice if he wishes to travel overseas and 14 days if intestate, of his intention to travel;
(b)No later than one (1) month prior to the proposed departure date overseas and 14 days if interstate, the Father provide to the Mother a full itinerary of the proposed travel including the date of departure, flight details and the address and contact numbers at which the children will be staying while away;
(c)The Father shall, whilst he has the children away, arrange for [Y] and [Z] to telephone the Mother at least once a week; and
(d)That there be liberty to the Father to apply to the Court should the Mother object to the Father undertaking the proposed travel with the children.
That the parties:
(a)Keep the other advised at all times of their respective residential addresses, landline and mobile telephone numbers and email addresses and provide the other with no less than seven (7) days written notice of any proposed changes thereto;
(b)Authorise any medical, dental or other health professional upon whom the children attend from time to time to communicate with the other in respect of the children’s medical or other health condition(s) and/or requirements and provide copies of any documents that are ordinarily available to parents;
(c)Do all such acts and things necessary and sign all such documents to authorise and instruct any school at which the children attend to provide both parties, at his or her respective expense the following:
(i)Copies of school reports and photograph orders forms; and
(ii)Copies of notices, newsletters and documents normally provided to parents, including access to school portals.
That the parents shall make available to the other, any medication prescribed for the children to enable the other party to administer such medication to the children (or either of them) and the other party shall thereafter administer the medication as prescribed or required and the medication shall pass between the parents so as to ensure that it is in the possession of the party with whom the child is living with or spending time with.
Without admitting the necessity of such Order, each party, their servants and agents be restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or members of their family in the presence or hearing of the children;
(b)Discussing these proceedings to or in the presence or hearing of the children and permitting any other person to do so; and
(c)Physically disciplining the children.
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 the 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.
Such further and other Orders as this Honourable Court deems appropriate.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Procedural Fairness
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Remedies
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