Meller and Fabian and Anor

[2020] FamCA 215

FAMILY COURT OF AUSTRALIA

MELLER & FABIAN AND ANOR [2020] FamCA 215

FAMILY LAW – CHILDREN – INTERIM – Where the parents have previously agreed on parenting arrangements for their two children – Where the mother’s husband has been charged with the rape and indecent treatment of his 15 year old daughter – Where the father retained the children in his care after the mother breached a safety plan in place with the Department of Child Safety, Youth and Women with respect to her husband – Where the parents now cannot agree on school term living arrangements for the children and matters pertaining to the children’s attendance at extra-curricular activities – Where the children are currently living in a week-about arrangement – Where the father seeks a continuation of that arrangement – Where the mother seeks that the children live primarily with her and spend alternate weekends from Friday to Monday as well as a night in the other week with the father – Where the children have always primarily lived with their mother and an increase to week-about is a substantial increase in time away from her – Where there is evidence that the younger child is struggling with the current week-about arrangement – Where a week-about arrangement is not in the best interests of the children – Where the children will live with the mother and spend each alternate weekend from Friday to Monday and overnight on Thursday in the other week with the father – Where the mother will be restrained from bringing the children into contact with her husband – Where the father will not be compelled to take the children to extra-curricular activities that were unilaterally organised by the mother whilst they are in his care.

Family Law Act 1975 (Cth)

APPLICANT: Ms Meller

FIRST RESPONDENT: Mr Fabian

SECOND RESPONDENT: Department of Child Safety, Youth and Women (Queensland)

FILE NUMBER: BRC 14978 of 2019

DATE DELIVERED: 26 February 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 24 February 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Horsley

SOLICITOR FOR THE APPLICANT: DA Family Lawyers

COUNSEL FOR THE FIRST RESPONDENT: Mr Slade Jones

SOLICITOR FOR THE FIRST RESPONDENT: James Noble Law

SOLICITOR FOR THE SECOND RESPONDENT:

Ms Walsh

Department of Child Safety, Youth & Women

COUNSEL FOR THE PROPOSED INTERVENERS:

Mr Gordon

SOLICITOR FOR THE PROPOSED INTERVENERS: Hopgood Ganim

Orders

UPON THE WITHOUT ADMISSION UNDERTAKING OF MR MELLER tendered to this Court on 10 December 2019

AND UPON THE WITHOUT ADMISSION UNDERTAKING OF THE FATHER, given verbally to the Court on 24 February 2020, not to possess or access any pornography in the presence, hearing or eyesight of the children when they are in his care

IT IS ORDERED

Discharge of previous Orders

1. That Orders 1 to 5 of the Orders made 10 December 2019 be discharged.

Live with and spend time with

1. That the children live with the mother.

2. That the children spend time with the father as agreed between the parents but failing agreement, during school terms, as follows:

   (a)commencing this weekend, each alternate weekend from after school or 3.00 pm Friday until before school or 9.00 am Monday;

   (b)in each other week from after school or 3.00 pm Thursday until before school or 9.00 am Friday.

3. That the children spend time with the mother and father at all times as may be agreed between the parents and failing agreement during school holidays and other special days as follows:

   (a)for the term 1, term 2 and term 3 school holiday periods as follows:

   (i)with the father for the first half of the term 1, term 2 and term 3 school holiday periods in every even numbered year with time to commence after school on the last day of school term and conclude at 5.00 pm on the day which represents a mid-way point of such period.

   (ii)with the mother for the second half of the term 1, term 2 and term 3 school holiday periods in every even numbered year with time to commence at 5.00 pm on the day which represents a mid-way point of such period and conclude at 9.00 am on the first day of the recommencement of school.

   (iii)with the father for the second half of the term 1, term 2 and term 3 school holiday periods in every odd numbered year with time to commence at 5.00 pm on the day which represents a mid-way point of such period and conclude at 9.00 am on the first day of the recommencement of school.

   (iv)with the mother for the first half of the term 1, term 2 and term 3 school holiday periods in every odd numbered year with time to commence after school on the last day of school term and conclude at 5.00 pm on the day which represents a mid-way point of such period.

   (b)If the Easter special days do not fall within the term 1 school holiday period, then as follows:

   (i)with the father from 3.00 pm on the day prior to Good Friday until 9.00 am on Easter Sunday in every odd numbered year.

   (ii)with the father from 9.00 am Easter Sunday until before school the following Tuesday in every even numbered year.

   (iii)with the mother from 9.00 am Easter Sunday until before school the following Tuesday in every odd numbered year.

   (iv)with the mother from 3.00 pm on the day prior to Good Friday until 9.00 am Easter Sunday in every even numbered year.

FURTHER, IT IS ORDERED BY CONSENT

Parental Responsibility

1. That the mother and father shall have equal shared parental responsibility for the major issues concerning Y born … 2011 and X born … 2012 (“the children”).

   IT IS NOTED

   The Court understands the term “major issues” as agreed to by the parents in this paragraph to mean the same as “major long-term issues” as that term is defined in s 4 of the Family Law Act 1975 (Cth). If the parents did not intend that then they will need to cause this paragraph to be amended to reflect their actual intention.

Restraint

1. That the mother is restrained and an injunction issue so restraining her from permitting the children or either of them, to spend time or communicate or come into contact either directly or indirectly with Mr Meller.

Family Report

1. That Mr B be appointed as the family report writer pursuant to Rule 15.44 of the Family Law Rules 2004 (Cth).

2. That the mother and the father attend and ensure the attendance of the children, upon the family report writer on 23 March 2020.

3. That the parties’ legal representatives are granted leave to provide to the family report writer copies of all documents filed in the proceedings.

4. That the family report writer is granted leave to inspect any documents produced pursuant to subpoena issued in the proceedings, subject to the requisite Notice of Request to Inspect being filed and approved by the Court.

5. That the family report writer be provided with a joint letter of instruction within 7 days of confirming the appointment date/s.  In the event the parents are unable to agree on a joint letter of instruction, the mother and father shall provide them with their own separate letters of instruction.

6. That the mother and father share equally in the family report writer’s fees associated with preparation of the family report.

School holidays and special days

1. That the children spend time with the mother and father at all times as may be agreed between the parents and failing agreement during school holidays and other special days as follows:

   (a)with the mother from 5.00 pm Saturday until 5.00 pm Sunday on Mother’s Day weekend;

   (b)with the father from 5.00 pm Saturday until 5.00 pm Sunday on Father’s Day weekend;

   (c)on the children’s birthdays as follows:

   (i)if the birthday falls on a school day with the parent who is not ordinarily caring for the children from after school until 7.00 pm;

   (ii)if the birthday falls on a non-school day with the parent who is not ordinarily caring for the children from 9.00 am until 1.00 pm;

   (d)with the mother on the mother’s birthday from 5.00 pm on the day prior to her birthday until before school the following day or 5.00 pm if such day is a non-school day;

   (e)with the father on the father’s birthday from 5.00 pm on the day prior to his birthday until before school the following day or 5.00 pm if such day is a non-school day;

   (f)in the term 4 school holiday periods as follows, in an agreement which sees the children spending:

   (i)in every even numbered year:

   (A)with the mother for the first three weeks, from the conclusion of school on the last day of term 4 until the day falling three weeks later;

   (B)thereafter, with the father for a period of three weeks;

   (C)thereafter, with the mother for a period of one week; and

   (D)thereafter, with the father for the remainder of the school holidays until the commencement of school in term 1; and

   (E)with all non-school day changeovers to occur at 5.00 pm;

   (ii)in every odd numbered year:

   (A)with the father for the first three weeks, from the conclusion of school on the last day of term 4 until the day falling three weeks later;

   (B)thereafter, with the mother for a period of three weeks;

   (C)thereafter, with the father for a period of one week; and

   (D)thereafter, with the mother for the remainder of the school holidays until the commencement of school in term 1; and

   (E)with all non-school day changeovers to occur at 5.00 pm;

   (g)for Christmas as follows:

   (i)with the father from 9.00 am Christmas Eve until 3.00 pm Christmas Day in every odd numbered year and from 3.00 pm Christmas Day until 5.00 pm Boxing day in every even numbered year;

   (ii)with the mother from 3.00 pm Christmas Day until 5.00 pm Boxing Day in every odd numbered year and from 9.00 am Christmas Eve until 3.00 pm Christmas Day in every even numbered year.

Telephone communication

1. That the parents shall have telephone communication with the children at all times as may be agreed between the parents and failing agreement each Tuesday and Thursday between 7.00 pm and 7.30 pm when the children are in the other parent’s care and whenever the children request such communication the parent caring for the children at the time shall assist the children to communicate with the other parent.

2. That the parents will make the children available to receive telephone calls from the other parent at all times as agreed upon, and pursuant to these Orders, and will encourage the children to answer the telephone directly for contact.

Changeovers

1. That unless otherwise agreed between the parents, in the event changeover is unable to take place at the children’s school/s, it shall occur at E Business at Suburb C.

Authorities and exchange of information

1. That these Orders act as an authority to the schools and education providers engaged with the children to provide to the father and mother, at their request and cost, any information that may be requested in relation to the children.

2. That each parent keep the other parent informed of the names and addresses of any and all medical practitioners who are involved in treating or caring for the children and shall inform the other of any medications prescribed for the children and provide the medication and any instructions for its administration at the next changeover.

3. That these Orders are authority for any treating medical practitioner, specialist or dentist to release the children’s medical information to each parent and for this purpose both parents shall as soon as reasonably practicable, and at least at the next changeover, inform the other of any medical condition, health issue or illness suffered by the children whilst the children are in their care and the names and contact numbers of any practitioners upon whom they had attended with the children.

Schooling

1. That the children attend the F School.

Travel

1. That the children not be taken interstate or overseas without the consent of both parents.

2. That the parents will not inform the children of any planned or proposed holidays which would impact upon the children’s time with the other parent, without first consulting and reaching written agreement with the other parent as to the arrangements to be made.

Uniforms

1. That the mother will return to the father two full sets of school uniforms for each of the children with those uniforms to remain in the father’s residence.

IT IS FURTHER ORDERED

1. That the Application in a Case for leave to intervene, filed by the maternal grandparents on 23 December 2019, be adjourned for mention at the directions hearing on 24 March 2020.

NOTATION

(A)It is noted that both parents agree to the involvement of the maternal grandparents in the family report interviews and to the release of the report to the maternal grandparents once issued.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 14978 of 2019

Ms Meller

Applicant

And

Mr Fabian

First Respondent

And

Department of Child Safety, Youth and Women (Queensland)

Second Respondent

REASONS FOR JUDGMENT

1. Competing interim applications in this parenting matter were listed before me in the Judicial Duty List on Monday, 24 February 2020. The mother and the father of two children, Y, aged 9, and Y, aged 7, are in dispute about parenting arrangements as between them.

2. Represented and assisted by solicitors and counsel, on the morning of the hearing, the mother and the father were able to resolve much of what was in dispute between them and hand up terms of agreement that they asked the Court to make into parenting Orders with their consent. I will do that.

3. What they were unable to agree upon were the school term living arrangements for the two children, matters pertaining to the children’s attendance at extra-curricular sporting and cultural activities, and whether or not an injunction restraining the father from looking at pornography whilst the children were around him in his care was necessary.

4. As for the latter of those remaining issues, after some discussion between me and counsel for the father, counsel obtained instructions from the father that he was willing to give an undertaking not to look at pornography whilst the children were in his care, without making any admission that such an undertaking was necessary. That satisfied the mother and such an undertaking on a “without admissions” basis was accepted by the Court.

5. The dispute about school term living arrangements is as between an arrangement proposed by the mother in which the two children live principally with their mother and spend each alternate weekend from Friday after school to Monday before school with their father as well as overnight on the Thursday in the other week and a week about living arrangement as proposed by the father.

6. The dispute about extra-curricular activities involves the mother wanting orders that compel the father to ensure the children’s attendance at all extra-curricular activities already arranged for the children whether he agreed to them or not, and any future extra-curricular activities that the parents agree the children attend. The father opposes orders compelling him to ensure the children attend extra-curricular activities that are scheduled during his time with the children in circumstances where the mother unilaterally engaged the children in those activities.

Some Background

1. The mother and father commenced their relationship in 2006 in Canberra. They married in 2008. Their two children were born in 2011 and 2012. Their relationship broke down and they separated in April 2013. The children remained living with the mother but spent significant amounts of regular time with the father

2. The mother unilaterally moved herself and the children to Suburb D in Queensland to live in the latter part of 2013 and has lived there since then. Though the father did not want them to leave Canberra, he followed them to Queensland to be able to continue spending time with the children on a regular basis.

3. The mother commenced a relationship with her current husband in 2014. The former couple’s marriage was formally dissolved in 2015 and from the end of 2016, the children were spending every second weekend from Friday night until Sunday night with the father as well as each Thursday evening for dinner.

4. In … 2017, the mother and her current husband had a son together and they married a year later in … 2018. Another year later, in … 2019, the father and his current wife married.

5. In February of 2019, the mother’s current husband’s eldest daughter of his former marriage moved in to live with him and the mother following some troubled times in her relationship with her mother. She was 15 years old at the time. This brought the number of children in the blended family home to four.

6. In September 2019, two months before her 16th birthday, the mother’s step-daughter who was living with the mother and her husband (the girl’s father) “ran away from home” and made complaint to the Queensland Police that her father (the mother’s husband) had sexually abused her. The mother’s husband was charged by Queensland Police within a day or so with the criminal offences of rape and indecent treatment of his 15 year old daughter.

7. The Department of Child Safety, Youth and Women (“the Department”) became involved with the mother’s family straight away.  Safety plans in respect of the two children of the mother and the father and the young son of the mother and her current husband were entered into.

8. The mother and her current husband met with the father and his current wife on 11 September 2019 and informed the father of the developments. According to the father, the mother’s husband told him he had done nothing wrong and the mother said things to him that indicated that she believed her husband’s denial of wrongdoing and considered the 15 year old girl to be a troubled adolescent, prone to lying.

9. It appears from the evidence, the Queensland Police considered there was sufficient evidence to charge the mother’s husband and the Department considered that there was enough in the allegations to determine that there was an unacceptable risk of harm to the remaining three children if they were not removed from being cared for by the mother’s husband.

10. Relations between the mother and the father quickly deteriorated further and more conflict and disagreement emerged. On 2 November 2019, the father retained the two children of him and the mother in his care after a scheduled weekend visit. He did that as he had learned that the mother had breached an agreed Safety Plan that had been put in place between her and the Department in relation to the young child of her marriage to her current husband. She had let her husband see their son at a coffee shop one morning when she had agreed not to let him see him. She was apparently observed by a Departmental Officer who, by chance, was at or passing the same coffee shop.

11. On 9 December 2019, the mother filed an Initiating Application in this Court. The mother sought interim orders on an urgent basis and those included orders in the same terms as she now seeks – that the children live with her and spend alternate weekends and Thursday nights with the father.

12. On 10 December 2019 the matter was before a Registrar.  Both parents were represented by solicitors and counsel. The Director General, Department of Child Safety, Youth and Women was also represented and became a party to the proceedings. The maternal grandmother was also represented though did not seek to join as a party to the proceedings.

1. On that day, the mother’s husband gave the Court an undertaking, without making any admissions, that he would not have any contact with the two subject children of the mother and the father and that he would not communicate with them, by any means.

2. An Order was made by consent on 10 December 2019. The mother was restrained from permitting the two children of her and the father or either one of them, from spending time with, coming into contact with either directly or indirectly, or communicating with her husband. The mother and the father agreed that the children would live in a week about arrangement between them starting from Friday, 13 December until the interim hearing that was listed before me on Monday, 24 February 2020. That was done in circumstances where the Registrar did not have the power to make parenting orders in contested hearings and the children were being kept by the father in his full-time care at that time. As such, it is clear the mother never gave up her position that the children should be returned to her principal care, consistent with the arrangements that had been consensually in place since the mother and the father separated several years ago.

3. As it turned out, the week about living arrangements did not commence until 10 January 2020. This occurred because the Child Safety Officer at the Department who was handling the matter for the Department informed the father on 11 December that the mother had breached the Safety Plan agreed to in respect of the mother and her husband’s young child, yet again. The father said that the Child Safety Officer advised him against handing the children over to the mother’s care on a week about basis and he followed that advice.

4. On 6 January, this year, the commencement of the week about arrangements for the two children of the mother and the father was supported by the Department of Child Safety and on 7 January the father agreed to commence that arrangement on 10 January. The week about arrangement has been in place since then.

Some Evidence about the impact of the current arrangements on the children

1. Some recent email correspondence between the school the children attend and the parents was adduced into evidence. On Wednesday, 5 February, the parents received an email from the Head of the Junior School advising of two recent reports from the 7 year old female child’s teacher “outlining concerns regarding [the child’s] emotional wellbeing”. Notes made by the class teacher on Monday 3 February and Wednesday 5 February were provided. The children were in the father’s week long care that week. In short, those notes reported that the child presented as “very down” and started to cry when asked how she was feeling. They reported that the child said that she missed her mother. The notes reported the child as having said she was “missing her personal space this week”. They reported the child as going up to the teacher and giving her a hug and starting to cry. They reported that when she was asked what was wrong she said that she missed her mother and her little brother and “wanted to go home”. The notes report that the child became “extremely upset and started to sob”. The child had to be taken for a walk by another staff member so that she could be distracted and settled. The notes report that even after lunch she needed additional support as she was still expressing that she was missing her mother.

2. Another email was sent to the parents by the Head of the Junior School on 20 February. It included notes made by a staff member who was brought in by the female child’s teacher on 19 February to support the child that day when she was again upset. She was again in the father’s care that week. The child is reported to have been weeping again and to have said that she missed her mother and her kitten. She is reported to have said that two other children had said to her that “her mummy was in a car crash and was in hospital”. The two other children were reported to have been asked about this, admitted to having said it and apologised directly to the female child for having said it. The female child is reported to have said that she knew her mother was safe but that she missed her.

Schooling Arrangements

1. Each parent proposes the children continue to attend the school they are currently attending. The mother’s home is ten minutes’ drive time away from that school. The father’s home is forty five minutes’ drive time away from that school. The father works in the Brisbane CBD which is in the opposite direction to the children’s school from his home. He proposes relying principally upon a bus travelling between where his home is located and the children’s school – an hour long journey – to transport the children to school and home again in the afternoon.

Extra-Curricular Activities

1. The children each currently attend activities on two afternoons after school each week. The boy does swimming lessons or training on Monday and Wednesday afternoons and the girl does dance lessons on Tuesdays and Wednesday afternoons. Those activities, I understand, are done in Suburb D. The mother’s counsel told the Court that the boy currently does tennis at 7:30 am on Monday mornings and that it is anticipated that the girl will start that also at that time in the near future.

2. I understood the father’s position to be that he ought not be compelled to take the children to those extra-curricular activities during time that they are in his care as his agreement to the children doing those activities was never obtained by the mother in the first instance.

3. Counsel for the mother also told the Court that other activities, such as Rugby, may also be taken up in the future. Of course, some children’s sporting activities, such as Rugby, are seasonal and do not happen all year round.

4. As I am minded not to make an order that compels the father to take the children to extra-curricular activities that he has not consented to the children taking up, the likelihood of them missing their activities on Mondays, Tuesdays and Wednesdays when they are in his care is a matter for consideration when determining the living regime.

The Parents’ Consent to an Order for Equal Shared Parental Responsibility

1. The first Order the parents agree is to be made with their consent is an order conferring equal shared parental responsibility on each of them in respect of the major issues concerning the two children. I suspect they mean the “major long-term issues” as that term is defined in section 4 of the Family Law Act 1975 (Cth) (“the Act”). I will include a notation on the Orders of that being my understanding upon which the Order is being made and that if the parties did not intend that to be the case that they will need to seek a fresh order by consent that clarifies their intention.

2. Accordingly, as the parenting Order that I intend to make will provide that the mother and the father have equal shared parental responsibility for the children, s 65DAA(1) of the Act mandatorily requires me to consider whether it is in the best interests of the children to spend equal time with each parent and whether that is reasonably practicable. If I determine each of those matters in the affirmative, I am to consider making the Order the father seeks – that they continue to live week about with each parent.

3. In deciding whether to make a particular parenting order or another in relation to these two children, I must regard their best interests as the paramount consideration (s 60CA) and in determining their best interests I must consider the evidence by reference to the matters set out in s 60CC of the Act.

4. Section 65DAA(5) sets out the matters the Court must have regard to in determining whether it is reasonably practicable for the children to spend equal time with each parent. Those matters are:

   (a)how far apart the parents live from each other; and

   (b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)the impact that an arrangement of that kind would have on the child; and

   (e)such other matters as the court considers relevant.

My Determination

1. I am conscious of the fact that these two children have lived principally with their mother and spent alternate weekends and holiday time with their father since the separation of the parents in 2013 – that is, for most of their short lives to this point in time. The change to that to week about is only very recent and, from the mother’s point of view, was never intended to be permanent or long-term and was only to be in place until the determination of these competing applications. Three of the seven weeks of the current week about regimen were in the school holidays. They have only had four weeks of school term time week about care to this point in time.

2. The independent evidence from the school supports a finding that the 7 year old girl has been struggling with her emotions and missing her mother and her little brother when she and her big brother have been in the week long care of their father. Week about care is a new and significant departure from the care regimen these two children are familiar with and accustomed to.

3. I am satisfied that the two children are clearly primarily emotionally attached to their mother and that regular week about removal from her day to day care during school term would impact upon their sense of emotional stability.

4. The serious development in respect of the mother’s partner being charged with criminal offences of sexually abusing his 15 year old daughter of his former marriage is an extremely important matter in the determination of the living arrangements in respect of the two subject children of the mother and the father. Indeed, the Department has been involved, safety plans have been put in place, the father has been essentially working with the Department and the position he has taken has been reasonably influenced by the Department’s position and advice. At the same time, the father has had to grapple with the undisputed evidence that the mother twice breached safety plans that she had agreed to with the Department, his concern for the wellbeing of his children living in a household with a man who has been charged with committing sexual offences against his own female child and the mother’s clear position that she believes her husband’s denials and regards his now 16 year old daughter as a troubled liar.

5. Nevertheless, the Department was represented before me on Monday, 24 February and made it clear that they did not make any submissions in support of or in opposition to either of the proposed set of living arrangements put forward by the mother and the father and that they did support the agreed terms that were to be made into Orders by consent of the mother and the father. Clearly, the Department has reached a position of accepting that the young child of the mother and her husband will no longer be at any unacceptable risk of sexual abuse at the hands of his father if the mother is present at all times that the child is in the presence of his father. The Department has also clearly reached a position of trusting and accepting the mother’s assurances that she will not leave the child in the unsupervised care of her husband.

6. Significantly, for the purposes of determining the immediate dispute before this Court, what was also confirmed by the representative for the Department was the fact that there will still be a voluntary arrangement between the mother and the Department that will mean that officers of the Department will call on the mother at her home on a random, unannounced basis from time to time. This prospect gives an extra layer of security in respect of the undertaking given by the mother’s husband and the restraining order the mother is consenting to in respect of the two children of the mother and the father not being brought into contact or communication with the mother’s husband. In the circumstances, that is a good thing and should give the father some additional comfort that his children will not be brought into contact with the mother’s husband no matter how many days they are living with the mother.

7. It is to be observed that the mother, by seeking to have the two children in her principal care for ten nights out of every fourteen during school terms, is demonstrating an apparent willingness to put what she perceives is in the best interests of the two children ahead of any desire to have the immediate physical and practicable support of her husband around her and in her household for those days. The combination of the husband’s undertaking, the mother’s consent restraint and the living arrangements she seeks for the two children would necessarily exclude her husband from her home for all the time that the two children are living with her. On her proposal that would be ten nights in every fourteen. She seeks to commit to that arrangement knowing that she will have the sole responsibility (with family support) of caring for the two children of her former relationship with the father, the young child of her relationship with her husband during those ten nights in fourteen. Additionally, she has told the Court that she is now almost three months pregnant with another child fathered by her husband, conceived on an occasion when they were together briefly in early December without any children in their care. That child is due to be born in or around September/October, a time by which the criminal proceedings against her current husband are unlikely to be concluded. She will indeed likely need the practical support of her wider extended family unit, given that she will not be able to call on her husband to assist whilst ever the two children of her and the father are in her care.

8. Having considered the evidence, I am not persuaded that it is in the best interests of the two children, at this point in time, to continue spending equal time with each of their parents. I note that the mother’s proposal includes an increase by two nights per fortnight on the time the children were spending with their father during school term before the unfortunate recent disruption to those arrangements has occurred. An increase by two nights is actually double what it was previously. That is, in my judgment, a more appropriate increase at this point in time, particularly given the history of the arrangements, the evidence about the emotional struggle of the female child and the evidence about travel time and arrangements for that travel to get the children to and from school during the time they are living in their father’s care during school term. I also consider that missing swimming and dance classes every other week would be unnecessarily disruptive for the children at this point in time. 

9. The additional time proposed by the mother meets the definition of “substantial and significant time” contained within s 65DAA(3) that must be considered by the Court pursuant to s 65DAA(2) in the event that equal time is not going to be ordered by the Court.

10. I am satisfied that the “substantial and significant time” proposed by the mother for the children to now spend with the father is in their best interests at this particular point in time and I am satisfied, as the mother and the father obviously are, that it is “reasonably practicable” (having regard to the s 65DAA(5) definition of that term) for them to spend that time with the father. It is a good thing for the children’s time with the father to be increased at this stage of their lives, particularly given the difficult circumstances the mother finds herself in in the wake of her husband being charged with criminal offences that will likely see him sentenced to a term of imprisonment if he is convicted of them at a District Court trial.

11. I will make the Orders as proposed by the mother. Counsel for the father appropriately conceded that if I made the Orders sought by the mother with respect to the school term living arrangements for the children that the balance of the proposed orders contained in paragraph 4 of the mother’s proposed orders would necessarily follow and should be made. Accordingly, I will make those orders, too.

12. As for the dispute about extra-curricular activities, as I foreshadowed, I will not make orders actually compelling the father to ensure that the children are taken to all their organised extra-curricular activities on the four nights and less days that the children will be in his care. I well understand his opposition to being required to do that during the limited time that he has the children with him, given the time it would take to drive them to and from those activities and given that he has not been consulted in respect to the children taking them up or has not given his consent to that. As the father made clear, he may still voluntarily facilitate such attendance from time to time and will facilitate their attendance at any extra-curricular activities in the future if he is consulted about them and agrees to the children’s attendance at them before they commence involvement. That way he will be fully aware of what he is committing to.

13. Of course, this may mean that the boy will have to miss tennis lessons each second Monday morning when he is in his father’s care and will not be able to undertake any new activity such as Rugby training on a Thursday night every second week unless the father and the mother reach an agreement that is facilitated, such as by swapping the Thursday night for another night in the week when the children do not have activities. But as I said in exchanges with counsel during submissions before me, separated parents simply cannot expect, where their children spend periods of care in the other parent’s household, that arrangements unilaterally made by them for activities to be undertaken by their children have to be honoured by the other parent during the children’s time with the other parent. They can only expect that, in default of agreement, if a judge of this Court or the Federal Circuit Court orders it and that will only be done if that judge is persuaded that such is in the best interests of the children. I am not in this case. I will not make the Order the mother seeks in this respect.

14. Accordingly, I make the orders that are set out at the commencement of these written reasons.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 February 2020.

Associate: 

Date:  26 February 2020