MESSANA & MESSANA

[2018] FCCA 3284

FEDERAL CIRCUIT COURT OF AUSTRALIA

MESSANA & MESSANA [2018] FCCA 3284

Catchwords:
FAMILY LAW – Interim parenting – high conflict parental relationship.

Legislation:

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

Cases cited:

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

Applicant: MS MESSANA

Respondent: MR MESSANA

File Number: WOC 152 of 2017

Judgment of: Judge Altobelli

Hearing date: 2 November 2018

Date of Last Submission: 2 November 2018

Delivered at: Wollongong

Delivered on: 2 November 2018

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

Solicitors for the Independent Children's Lawyer: Legal Aid NSW Wollongong Family Law

ORDERS, PENDING FURTHER ORDER:

1. All previous parenting Orders are hereby discharged.

2. The Mother and Father each have sole responsibility for making decisions about the day to day care, welfare and development of [X] during those periods that [X] is living with them or spending time with them.

3. [X] live with the Mother.

4. Pending further Orders and without prejudicing the parties’ respective applications on a final basis, the Mother is restrained by injunction from changing the Child’s school.

5. Pending further Orders and without prejudicing the parties’ respective applications on a final basis, the Mother is restrained by injunction from relocating the Child’s residence outside of the Region 1.

6. Subject to Orders 7 and 8 below, [X] will spend time with the Father as follows:-

   (a)Stage 1:-

   (i)Commencing on the second Saturday after the making of these Orders and continuing until Thursday, 11 April 2019, on each alternate Saturday from 10am until 4pm;

   (b)Stage 2:-

   (i)Commencing on Friday, 12 April 2019 until Thursday, 23 May 2019, on each alternate weekend from after school (or 3pm on a non-school day) Friday until 4pm Saturday;

   (c)Stage 3:-

   (i)Commencing on Friday, 24 May 2019 until Sunday, 21 July 2019, on each alternate weekend from after school (or 3pm on a non-school day) Friday until 4pm Sunday;

   (d)It is noted that the arrangements in Orders 6(a), (b) and (c) above will continue during the 2018/19 Christmas school holidays, the end of Term 1 school holidays in 2019 and the end of Term 2 school holidays in 2019;

   (e)Thereafter, during school term:-

   (i)Commencing on Friday, 26 July 2019, on each alternate weekend from after school (or 3pm on a non-school day) Friday until the start of school (or 3pm on a non-school day) Monday;

   (ii)From the end of Term 3 school holidays and each school holiday period thereafter, the arrangements in (i) above are suspended during school holiday periods and will resume on the first Friday of each new school term;

   (iii)In the event a public holiday falls on the Friday, the time will be extended to commence from after school (or 3pm on a non-school day) Thursday;

   (iv)In the event a public holiday falls on a Monday attached to [X]’s weekend time with the Father, the time will be extended to conclude at the start of school (or 3pm on a non-school day) Tuesday;

   (f)From the end of Term 3 school holidays in 2019 onwards, in the end of Terms 1, 2 and 3 school holidays as follows:-

   (i)For one week as agreed or, failing agreement, from 4pm on the first Saturday until 4pm on the second Saturday of the school holiday period;

   (g)From the 2019/20 Christmas school holidays onwards, in the Christmas school holidays as set out in Order 8 below.

   (h)At such other times as are agreed to between the parents in writing.

7. Notwithstanding any other Order, [X] will spend time with the parents on such special occasions as the parents agree and failing agreement as follows:-

   (a)[X] will spend time with the Father on Christmas Day in 2018 from 1pm to 7pm;

   (b)From 2019 onwards, [X] will spend time with the Mother and the Father over the Christmas period in alternate years as set out in Order 8 below,

   (c)[X] will spend time with the Father:-

   (i)Commencing in 2020 and continuing thereafter, from after school (or 3pm on a non-school day) on Holy Thursday until 4pm on Easter Saturday in even years;

   (ii)Commencing in 2021 and continuing thereafter, from 4pm on Easter Saturday until 4pm on Easter Monday in odd years;

   (iii)Father’s Day - in the event [X] is not otherwise spending time with the Father on the weekend that includes Father’s Day, [X] will spend time with the Father that weekend (in accordance with the times as set out in Order 6(e)(i) above) but, by way of substitution, [X] will remain with the Mother on the following weekend;

   (iv)On [X]’s birthday as agreed or, failing agreement, the arrangements in Order 6 above will apply (and telephone communication as set out in 7(e) below will occur);

   (v)On the Father’s birthday as agreed or, failing agreement, the arrangements in Order 6 above will apply (and telephone communication as set out in 7(e) below will occur);

   (vi)On the anniversaries of the paternal grandparents as agreed or, failing agreement, the arrangements in Order 6 above will apply (and telephone communication as set out in 7(e) below will occur);

   (d)[X] will spend time with his Mother (and the Father’s time with the Child in Order 6 above will be suspended):-

   (i)From after school (or 3pm on a non-school day) on Holy Thursday until 4pm on Easter Saturday in odd years;

   (ii)From 4pm on Easter Saturday until 4pm on Easter Monday in even years;

   (iii)Mother’s Day - in the event [X] is not otherwise spending time with the Mother on the weekend that includes Mother’s Day, [X] will remain with the Mother that weekend but, by way of substitution, [X] will spend time with the Father on the following weekend (in accordance with the times as set out in Order 6(e)(i) above);

   (iv)On [X]’s birthday as agreed or, failing agreement, the arrangements in Order 6 above will apply (and telephone communication as set out in 7(e) below will occur);

   (v)On the Father’s birthday as agreed or, failing agreement, the arrangements in Order 6 above will apply (and telephone communication as set out in 7(e) below will occur);

   (vi)On the anniversaries of the maternal Grandmother as agreed or, failing agreement, the arrangements in Order 6 above will apply (and telephone communication as set out in 7(e) below will occur);

   (e)In the event [X] is unable to spend face-to-face time with both parents on a special occasion, the parent with whom [X] is not living or spending time with on that date will contact [X] by telephone between 7pm and 7:30pm and the other parent will facilitate this communication (and the arrangements for telephone communication as set out Order 10 below will apply).

8. Unless as otherwise agreed to between the parents in writing, from the end of Term 4 in 2019, [X] will spend time with his Father and his Mother during the Christmas school holidays as follows:-

   (a)In 2019/20 and each alternate year thereafter:-

   (i)[X] will spend time with the Mother from the last day of Term 4 until 4pm on the day twenty-eight (28) days later;

   (ii)[X] will then spend time with the Father until 4pm on the day before he is due to return to school in Term 1 the following year;

   (b)In 2020/21 and each alternate year thereafter:-

   (i)[X] will spend time with the Father from 4pm on the day after the last day of Term 4 until 4pm on the day twenty-eight (28) days later;

   (ii)[X] will remain with the Mother for the remainder of the school holiday period.

9. For the purposes of Orders 6 to 8 above, unless as is otherwise agreed to in writing between the parents, changeover will occur as follows:-

   (a)During school term the Father will collect [X] from school and return [X] to school on school days;

   (b)On non-school days and during school holidays, changeover will occur at the Service Station Suburb A;

   (c)For changeovers that occur pursuant to Order (b) above:-

   (i)The Mother will remain in or stand at the driver’s door of her car and watch [X] walk to or from the Father’s car;

   (ii)The Father will remain in or stand at the driver’s door of his car and watch [X] walk to or from the Mother’s car;

   (iii)The Father and the Mother are restrained by injunction from approaching each other during changeover;

   (iv)The Father and the Mother will refrain from communicating directly with the other parent, except for exchanging brief greetings and/or farewells;

   (v)In the event any other person travels with the Mother or the Father for changeover, the Mother and the Father are to ensure that such person(s) remain in the car and does not actively participate in the changeover;

   (vi)Each parent will ensure that changeover is facilitated quickly and takes no longer than 5 minutes;

   (vii)In the event either parent is running more than 10 minutes late for changeover due to traffic or other unforeseen difficulties, they are to send a text/SMS message to the other parent advising them that they are running late and indicating an estimated time of arrival.

10. [X] will communicate with the parents as follows:-

    (a)By telephone on each Wednesday between 7pm and 7:30pm;

    (b)Each parent will ensure that their mobile telephone is switched on and adequately charged at all reasonable times;

    (c)The parent that [X] is not living or spending time with will initiate the call;

    (d)The parents that [X] is living or spending time with will ensure that the call is answered and that [X] is available to take the call;

    (e)The parents will ensure that [X] is given privacy during this telephone communication;

    (f)The Mother and Father are to refrain from placing the telephone on speaker during this telephone communication;

    (g)Each parent will facilitate any other reasonable request made by [X] to contact the other parent via telephone, video call, email, in writing and any other agreed form of communication.

11. Each parent will ensure that the other parent is kept informed of:-

    (a)any serious medical problems or illnesses suffered by [X], with the other parent to be notified as soon as possible;

    (b)any medical emergencies involving [X], with the other parent to be notified immediately;

    (c)any medication that has been prescribed for [X] including medication that needs to be taken during the time [X] is with the other parent, with the other parent to be notified as soon as possible and no later than four (4) hours prior to changeover (and with each parent to ensure that the medication travels with [X]);

    (d)any specialist appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding [X], with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);

    (e)any change to the parents’ contact mobile telephone numbers and email addresses, with any such changes to be advised within twenty-four (24) hours;

    (f)the suburb that they are living in, with any changes to be advised within twenty-four (24) hours;

    (g)any other matter relevant to [X]’s welfare, with the other parent to be notified as soon as is reasonably practicable.

12. Each parent will provide to the other parent full particulars of any medical practitioner, health service provider or institution attended by [X]; and that this Order operates as the authority of each parent to the medical practitioner, health service provided or institution attended by [X] to provide to either parent such information as he or she may seek in relation to [X].

13. Each parent is permitted to liaise directly with [X]’s school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about [X]’s progress; and that this Order operates as the authority of each parent to [X]’s school(s), sporting bodies and/or extra-curricular organisations to provide to either parent such information as he or she may seek in relation to [X].

14. This Order operates as the authority of each parent to [X]’s school(s) to ensure that the school forwards to both parents copies of [X]’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.

15. Subject to Order 18 below, each parent and member of their respective families is entitled to attend all events (including those that involve [X]) including, but not limited to:-

    (a)sporting fixtures;

    (b)extracurricular activities that allow for parental attendance or participation;

    (c)school functions and events that allow for parental attendance or participation;

    (d)religious events; and

    (e)community events.

16. Without admissions, each parent is restrained by injunction from:-

    (a)Speaking or permitting any other person to speak to or about the other parent or members of their family in a negative, offensive, threatening or unpleasant fashion in [X]’s presence or within his hearing;

    (b)Discussing the parental relationship or separation in [X]’s presence or within his hearing;

    (c)Questioning [X] about his time with the other parent (beyond simple pleasantries when [X] returns to their respective care);

    (d)Using physical discipline on [X] or allowing any other person to do so;

    (e)Verbally abusing [X]; and/or

    (f)Using [X] to pass messages to the other parent;

    (g)Posting photos or videos of [X] on social media and/or any other online platform without the other parent’s written consent;

    (h)Enrolling [X] into any extra-curricular activity that runs in [X]’s time with the other parent without the prior consent of the other parent;

    (i)Attending the other parent’s place of work;

    (j)Attending the other’s parent’s home unless agreed in advance in writing.

17. For the purposes of parental communication, unless as otherwise agreed to between the parents in writing:-

    (a)Telephone communication will be used for emergencies only;

    (b)For all other parenting issues, the parents will communicate by email and the parent who receives an email will respond (even if only to confirm receipt) within a reasonable period of time;

    (c)That each parent is restrained from using abusive and/or aggressive language in any form of communication between them;

    (d)The parents will be courteous and civil towards each other at all times but especially in [X]’s presence or within his hearing;

    (e)The parents will do all things reasonably necessary to ensure that no other person (including but not limited to members of their families) uses abusive and/or aggressive language towards the other parent, especially in [X]’s presence or within his hearing.

18. In the event the parents attend the same school, extra-curricular, religious or community event, or in the event that the parents see each other in public, they will each ensure to keep a reasonable physical distance from the other parent and refrain from communicating directly with the other parent, except for exchanging brief greetings and/or farewells. In relation to church on Sundays and on Holy Days (such as Good Friday and Easter Sunday) the parents are to ensure that [X] attends church with them on the Sundays and Holy Days when he is in their care but are not to attend the church at the same time.

19. Each parent will use their best endeavours to facilitate [X]’s attendance at special events (for example, birthday parties, community and religious events) and to provide as much advance notice to each other of the events.

20. Each parent will ensure that [X] has his own bedroom with appropriate bedding in their home.

21. The Father will ensure that he purchases a summer and winter school uniform for [X] each school year.

22. Unless as otherwise agreed in writing, all items purchased by the Mother that [X] takes from the Mother’s home to the Father’s home must be returned with [X] at the conclusion of time; and that all items purchased by the Father that [X] takes with him from the Father’s home to the Mother’s home must be returned with [X] on the next occasion he spends time with the Father.

23. In the event either parent intends to travel with [X] for a holiday out of the State of New South Wales (but within the Commonwealth of Australia), they are to advise the other parent no later than seven (7) days prior to the intended departure date, with such advice to include departure and return dates, general holiday location information and emergency contact details.

24. The Mother and Father are permitted to temporarily remove [X] from the Commonwealth of Australia for a period of travel, subject to Order 27 below and also PROVIDED THAT (unless as otherwise agreed between the parties in writing):

    (a)The Mother will travel with [X] in the twenty-eight (28) day period as set out in Order 8(a)(i) above;

    (b)The Father will travel with [X] in the twenty-eight (28) day period as set out in Order 8(b)(i) above;

    (c)In the event the Mother and Father agree in writing to [X] travelling overseas at other times (including in the event of an emergency, serious illness or death in the family):

    (i)Such travel will not exceed 30 consecutive days including travel time;

    (ii)[X] cannot miss more than 10 days of school without written consent from the non-travelling parent;

    (iii)The non-travelling parent will not unreasonably without their consent in the event of an emergency, serious illness or death in the family;

    (iv)If the period of overseas travel takes time with [X] away from the non-travelling parent, the non-travelling parent will have make-up time with [X], with such time to take place in the school holiday period immediately following the period in which [X] travelled;

    (d)Neither parent is permitted to take [X] to a country where a DFAT travel warning has been issued without the express written consent of the other parent;

    (e)The travelling parent provides the other parent with forty-two (42) days' notice of their intention to travel overseas with [X];

    (f)In the event the non-travelling parent is required to sign a travel document to facilitate [X]’s overseas travel, they must sign and return the travel document to the travelling parent within seven (7) days of receiving the document;

    (g)The travelling parent provides the other parent with a full itinerary of their proposed travel including details of return flights/tickets, transfer, accommodation and contact details for [X] not less than twenty-one (21) days prior to departure and copies of travel documents where possible;

    (h)[X] will communicate with the non-travelling parent by telephone at least once per week taking into consideration time difference and flights etc.

25. Until [X] turns 14 years of age, the travelling parent will do all acts and things and sign all documents necessary to bond (‘Bond’) of $20,000 as follows:-

    (a)The Bond will be paid by the travelling parent drawing a bank cheque made payable to the other parent and delivering that bank cheque at the Wollongong Registry of the Federal Circuit Court fourteen (14) days prior to [X]’s departure;

    (b)The bank cheque will be held in the safe at the Wollongong Registry of the Federal Circuit Court on trust for the non-travelling parent pending [X]’s return to the Commonwealth of Australia;

    (c)Immediately upon seeing [X] in person, the non-travelling parent will direct the Registry Manager of the Wollongong Registry of the Federal Circuit Court to release the bank cheque to the travelling parent; and

    (d)The non-travelling parent may direct the Registry Manager of the Wollongong Registry of the Federal Circuit Court to release the Bond to the non-travelling parent if [X] has failed to return to the Commonwealth of Australia without the non-travelling parent’s knowledge and consent seven (7) days after [X] was booked to return to the Commonwealth of Australia.

1. The Mother will hold [X]’s Australian passport except in accordance with Order 27 below.

2. In the event that the Father intends to travel outside of the Commonwealth of Australia with [X] pursuant to Order 26 above, the Mother will provide the Father with [X]’s passport at least fourteen (14) days prior to the departure date (or an earlier date, in the event that the Father requires the passport to finalise travel arrangements) and the Father will return [X]’s passport to the Mother within seven (7) days of their return.

3. Within fourteen (14) days of the date of these Orders each parent is to make contact with Relationships Australia to arrange an appointment as soon as reasonably practicable for an initial post-separation parenting assessment; that they are to attend any appointments at any reasonable location and time as nominated by Relationships Australia and complete all necessary assessments; and that, if assessed as suitable and Relationships Australia nominates counselling, mediation or a program to attend (including but not limited to the Parenting Orders Program), the parties must attend and undertake the appropriate program (as the provider directs) as soon as is reasonably practicable.

4. Leave is granted to the parents (and each parent must) provide a copy of the Family Report dated 14 August 2018, together with a copy of these Orders, to the intake officer at Relationships Australia during each parents’ initial intake appointment.

FURTHER ORDERS

1. The matter be adjourned to 2 August 2019 at 9:30am for Mention.

2. The matter be listed for a 2 day Final Hearing (Part Heard) on 26 – 27 September 2019 at 10:00am.

NOTATIONS

(A)The purpose of the Mention is to review the progress with implementing the Orders made today and to consider further trial directions.

(B)In relation to the weekend of 24 November 2018, the Mother has indicated that she has a family event and would like [X] to attend. The Father has indicated to the Court that if he is spending time with [X] on this weekend, that he consents to swapping that weekend with the Mother so that [X] can attend the event.

(C)The Father has requested Holy Communion photos from the Mother which she has declined due to fears about how the Father will use those photos. The Court will consider this issue when the matter resumes.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 152 of 2017

MS MESSANA

Applicant

And

MR MESSANA

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

1. I am presently Hearing a case in relation to a child, [X], who is 9 years old. [X] is the much loved son of his two parents. His Mother is the Applicant in this case and his Father the Respondent. The issue before the Court is what time [X] should be spending with his Father and under what conditions. I have heard 2 days of evidence and the matter has regrettably needed to go part-heard. However, I have heard enough evidence, I think, to make an informed interim decision that will govern the arrangements for [X] until the matter is resumed in September next year.

2. There was substantial evidence before the Court. The Mother's evidence is referred to in her case outline and consisted of:

   a)Amended Initiating Application of Ms Messana filed 14 February 2017;

   b)Affidavit of Ms Messana filed 26 October 2018;

   c)Affidavit of Mr A filed 26 October 2018;

   d)Affidavit of Ms B filed 26 October 2018;

   e)Affidavit of Ms C filed 26 October 2018;

   f)Affidavit of Ms D filed 26 October 2018; and

   g)Notice of Risk filed 14 February 2017.

3. The Father's evidence is referred to in his case outline and consisted of:

   a)Amended Response to Initiating Application of Mr Messana filed 29 October 2018;

   b)Affidavit of Mr Messana filed 26 October 2017; and

   c)Notice of Risk filed 10 April 2017.

4. The Independent Children's Lawyer's evidence consisted of the evidence of Ms E, the Family Consultant. I had the benefit of extensive case outlines from all parties. The Mother was cross-examined. The Father was cross-examined. Ms E was cross-examined.

5. In the Independent Children Lawyer's case outline at pages 6 to 20, there is a very helpful, detailed chronology of events, which draws from the various sources and seems consistent with the evidence before the Court and I adopt and incorporate that chronology into the First Schedule to these Reasons for Judgment.

The applicable law

1. The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)     The objects of this Part are to ensure that the best interests of children are met by:

   (a)     ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)     protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)     ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

   (2)     The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (a)     children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and

   (b)     children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and

   (c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and

   (d)     parents should agree about the future parenting of their children; and

   (e)     children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

   (3)     For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)     to maintain a connection with that culture; and

   (b)     to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)     to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

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

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

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

   (b)     family violence.

   (3)     When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)     The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)     If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)     consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)     consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)     If:

   (a)     a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)     the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)     consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)     the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)     days that do not fall on weekends or holidays; and

   (b)     the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)     occasions and events that are of particular significance to the child; and

   (c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)     Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)     In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

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

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

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

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

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

5. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

   (a)  any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

   (ca)  the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

   (g)  the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

   (i)  the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

   (j)  any family violence involving the child or a member of the child's family;

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

   (l)  whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;

   (m)  any other fact or circumstance that the court thinks is relevant.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The evidence

1. A number of observations need to be made about the evidence that I heard today and yesterday. Ms E gave her evidence first. There was a sense from her of the complex dynamics of the parents in this case and the interrelationship and involvement of extended family members. There was a palpable sense of her frustration, indeed, with the challenges that the parents themselves were presenting to finding a child-focused outcome.

2. She was very clear in articulating that the greatest risk of harm to [X] in this case was the conflict between his parents and his exposure to it. Ms E was of the view, in effect, that despite the fact that [X]’s Mother and Father clearly love him, they seem totally oblivious to the risk that their parental conflict presents to him. They both presented, albeit it in different ways, of not appreciating the need for them personally to change. She intimated at times, and I have myself found, that the parents were so self-absorbed with the conflict between them that they were not able to prioritise the needs of their son.

3. The recommendations that she made in her Report were confirmed mostly, but modified to some extent. The recommendations she gave in cross-examination are consistent with two things. Firstly, the evidence that I have heard so far and secondly the Orders that I have made. The Court accepts the evidence of Ms E. 

4. I need to make observations about the evidence of both parents. What became very clear is that both parents were highly intelligent and articulate individuals, but, of course, they are parties to proceedings involving the person they consider the most important person in their lives; that is, their son. And, hence, despite their obvious intelligence, they allowed their emotion to get in the way of seeing things clearly. Their trust for each other is non-existent. Their communication is almost impossible at a constructive level.

5. They have deluded themselves about their capacity to reach constructive agreements about their son. They have lost their capacity, it would seem, to even focus on what is important for their son. They are completely self-absorbed in a competition between them, where, in reality and from where I sit, [X] is on the sidelines, while the parents engage in this unholy, undignified competition about him. Both demonstrated a capacity to manipulate their recollection of past events to suit their agendas.

6. Both I found to be unreliable historians of past events to different degrees. Both seemed hopelessly locked into the past and seemingly unable to look into a future when they can put aside and put behind them what has happened. The dynamics that exist between the parents is truly complex. The relationships that they have had with others in the past within their own family has merely added to the complexity that is faced by their son.

7. I find it amazing that notwithstanding those palpable matters from the Court's perspective, the ambit of the dispute was as narrow as it was. That probably reflects the tireless efforts of those representing their son. Nonetheless, the issues in dispute were significant. Under the Family Law Act, I am required to have regard to a number of considerations, and I proceed to do that now.

8. I have to consider the benefit to [X] of having a meaningful relationship with both of his parents. [X] clearly has a meaningful relationship with both of his parents, notwithstanding what they have both done and failed to do in the past. There seems to be this admirable quality of resilience in [X]’s life. The Orders that I have made and arguably even the orders that were put forward by both parties would see that continue.

9. I need to consider the need to protect [X] from the risk of physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence.  There is no doubt on the evidence that I have seen and heard so far that in the past [X] was exposed to family violence. Is that a risk for the future? There is little evidence to suggest that that is the presenting risk in his life at the moment. Ms E was quite right in saying to the Court and clearly to these parents that the greatest risk for their son is not what may have happened in the past, but how they are conducting themselves in this insidious conflict about him. For present purposes, there are no issues of risk that contraindicate the making of the Orders that I have.

10. I must consider a range of additional considerations; the views that [X] has expressed, which I accept are probably to spend more time with his Father. The Orders that I have made do that. I must consider the nature of his relationships with each of his parents. Those relationships appear to be quite good ones in both cases, save for the matters that I will articulate shortly. There is no doubt that his Mother is his primary carer. There is no doubt that his mother is the one who he has historically turned to as the person to meet his needs, but his Father, I would not say, has an equally strong relationship, but an equally important relationship.

11. I must take into account the extent to which each of the parents has taken or failed to take the opportunity to participate in decision making, to spend time with the child, to communicate with him. There are many issues in this regard. The strong impression created from the evidence I have heard so far is that for a considerable time, decision‑making has been undertaken by the Mother to the exclusion of the Father. I heard extraordinary evidence today about the Mother not telling the Father about their son going through the rites of Holy Communion in the Catholic Church, a mere 5 weeks ago.

12. I found the Mother's explanation for this totally glib and unacceptable, and it was yet another example of how a loving parent can be so wrapped up in their ill feeling towards their son's other parent that they cannot see the implications of their actions. But the evidence also suggests that the Father has had opportunities to spend time and communicate with his son that he has not taken up. And it may well be that further evidence will need to be led about this when the matter resumes.

13. One of the things the Court must consider is the likely effect on [X] of making orders that see him spend progressively more time with his Father. The expert evidence from Ms E in this regard suggests that there will no problems anticipated. I have to consider issues of practical difficulty and expense of [X] spending time with his Father. And, on present indications, there are no such issues.

14. I need to consider the issue of parental capacity. That is, of their capacity to provide [X]’s emotional and intellectual needs, as well as his physical needs.  [X] is very lucky at one level; he has two intelligent, loving, professional parents who should be able to meet his intellectual needs, his physical needs, and who, at one level, should be able to provide him with every opportunity in his life. But the need that Ms E focused on as being the most at risk is are emotional needs. Ms E presented a rather bleak picture of the potential risks to [X] as he grows older of his parents not being able to meet his emotional needs.

15. She described how he might be torn, how he might have divided loyalties between two parents that he loves and who love him, but who probably, and I use this word reservedly, hate each other. The capacity of the parents to meet the emotional needs of their son is a real concern I have in this case. It is a matter however where all the Court can do is to comment, encourage, perhaps make orders (as it has) about the parents doing education, but ultimately this is a matter for them. The risk to their son has been clearly indicated by an expert of unparalleled experience in the Family Law Courts.  It is a matter for the parents now what they do.

16. The Court must take into account the maturity, sex, lifestyle and background culture and traditions of the Child. [X]’s [nationality omitted] background and his upbringing in the Catholic Church are important aspects of his life that I am satisfied both parents will continue to foster and encourage. The Act requires me to take into account issues of parental attitudes, responsibilities of parenthood and those matters. The behaviour of these parents and their attitudes is extraordinary, but I repeat myself.

17. I ask the parents just to think again about that picture of their son standing on the sidelines whilst they are engaged in this competition with each other to win. To win what? one might ask rhetorically. Their indifference to the needs of their son is startling in a case where they clearly love him so much. Their inability to let go of the past, their insensitivity to the needs of their son to have a relationship with the other parent is of deep concern. These are preliminary observations obviously, because the case has not concluded.  But it is because of these matters that the Orders that I have made have necessarily needed to be very prescriptive and provide an incremental progression in the Father's time, as well as set out a number of restrictions.

18. The Court must take into account family violence and family violence Orders. In this regard, the Court finds that there has been family violence. The Court finds that the Father was quite disingenuous about his accounts of the events in question. The Court finds that the Father, through his emails and his behaviour with the Mother, has sought to control her in sometimes the most intrusive aspects of her life.

19. This behaviour is clearly identified in section 4AB of the Act as being family violence and it is totally unacceptable. Whether it may be acceptable in another cultural context is completely irrelevant to this Court. The violent behaviour, and that is what it was, that is perpetrated by the Father against the Mother, often in the presence of his son in the past, is completely unacceptable. It is a role model for his son that is abominable. And let it be very clear, if there had been more recent evidence of this behaviour and if the Court had not had the reservations that it has about aspects of the Mother's evidence of the family violence that is probably exaggerated, but for those things, the Order that the Court has made would have been far, far more conservative.

20. All I can say, it is no wonder that the Interim Orders that were made before today were, in fact, made in the fashion that has been made. The Father needs to reflect on this behaviour. The Father needs to reflect on how the Mother of his child has experienced in his behaviour and might continue to experience. In many other cases involving family violence, this Court has observed that family violence often casts a giant shadow, well affecting the victim into the future and long after the behaviour has ceased.

21. Indeed, that may well explain some of the Mother's behaviour. But, you see, the role of this Court is not to punish people for criminal behaviour. It is to make orders that are in the best interests of the Child, taking into account matters such as family violence. The Orders that I have made, carefully crafted by those representing [X], I am satisfied protect him. They ensure as far as is possible that these parents do not come into unnecessary contact with each other. 

22. The next almost 12 months will be an important time, not just for [X], but also for his parents. They might be able to demonstrate to [X] and, indeed, to each other and, who knows, possibly even to the Court that they can put the past behind them and work within the confines of a prescriptive order that allow a measure of cooperative parenting in the context of parallel arrangements.

23. The Court hopes a number of things. Firstly, that they will surprise themselves in their ability to actually implement these orders in a civilised and child-focused fashion.  The Court hopes that they indeed might surprise the Court when the matter next comes before it by reporting on how well [X] is going and how well they are coping with it.

24. I want to end on this optimistic note. The Orders that I have made are, I am satisfied and for the time being, in the best interests of [X]. I accept that there is more work to do in this case. There are other witnesses to examine. I ask myself rhetorically what difference will any further evidence in this case make if these Orders, in fact, are successfully implemented by the parents?  Whilst they are busy making these Orders work in their son's best interests, they might just also have a think about those matters. 

25. The Mother has indicated to the Court that on the weekend of 24 November she has a family event. The Father has indicated that if his time with [X] occurs on that weekend, he will swap weekends with the Mother.

26. I am going to further note that the Father has requested Holy Communion photos from the Mother, which she has declined for the time being, because of fears of how the Father might use this material.  The Court will consider this when the matter resumes.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:     17 December 2018

Schedule One

Chronology prepared by the Independent Children’s Lawyer

M  Affidavit sworn by the mother on 25 October 2018 and filed on 26 October 2018
F4-17  Affidavit sworn and filed by the father on 10 April 2017
F10-18    Affidavit sworn and filed by the father on 26 October 2018

Date	Event	Source
1980	The father [X] is born. The father is currently 38 years old.
1981	The mother Ms Messana is born. The mother is currently 37 years old.
2007	The mother is granted permanent residency.	M P7
2007	The mother moves to Brisbane to look for work. She secures a three month contract.	M P8
2007	The mother goes to [country] to get married.	M P9
2007	The mother meets the father.	M P9
2007	The parties marry in [country].	M P4
2007	The mother returns to Brisbane on her own because the father does not have a visa.	M P11
2008	The father is granted a spousal visa.	M P11
2008	The father moves to Australia and lives with the mother in Suburb B in Brisbane.	M P12
2008 onwards	During the first two years of marriage, the father does not have a social life because the mother will not allow the father to see any friends. The mother decides what the father’s email and Facebook account passwords should be and she often questions the father about every email sent.	F4-17 P25 F4-17 P26
2008	The parties buy a car together and the car is put in the mother’s name. The mother pays for all the car expenses and child care expenses from the father’s account that she has the password for and can access.	F4-17 P27
2008 / 2009	The mother often questions the father about every transaction in his bank account using the father’s ATM card.	F4-17 P28
2008 / 2009	During the mother’s pregnancy the mother has mood swings. When she is angry, she smashes photographs, glasses and plates. The mother also leaves home and the father cannot find her.	F4-17 P37
2009	The maternal grandfather comes to Australia from [country] and maternal aunt comes to Australia from [country]. They help the mother with [X].	M P22
2009	The child [X] is born. [X] is currently 9 years old.
2009	The mother only applies for 3 months maternity leave.	F4-17 P42
2009	The maternal aunt leaves Australia after staying for a month.	M P22
2009	The father forces the mother to return to work. The father denies forcing the mother to return to work.	M P F4-17 P42
2009	The maternal grandfather complains about caring for [X] after the mother returns to work. [X] is put in day care.	F4-17 P46
2009	The maternal grandfather returns to [country] after staying with the mother for six months to help care for [X].	M P24
2009 / 2010	[X] commences attending day care 5 days per week after the maternal grandfather goes back to [country].	M P26
2010	The parties go to [country] for [X]’s Baptism. They stay at the maternal grandfather’s home. The father sees the mother and maternal grandfather in a compromising position on the sofa.	F4-17 P50
2010	The mother wants to celebrate [X]’s birthday with a party. She tells the father that the cost of the hall, catering and cake will be about $1,000 to $1,500. The father refuses to pay this and he screams and yells at the mother. The mother gives in and they do not have party for [X]’s birthday. The father wants to have a first birthday for [X]. The mother refuses because she says they spent too much money on his Baptism.	M P29 F4-17 P51
2011	The maternal grandfather comes to Australia and stays with the mother and father. The father alleges that the mother and paternal grandfather abuse him.	F4-17 P56
2011	The father sends the mother an email outlining “Do’s and Do not’s” of activities the mother has to do with threats of slapping if she doesn’t.	M P90 & Annexure ‘B’
2012	The maternal aunt returns to Australia to undertake her course. She lives with the mother and father.	M P33
April 2012	For Easter, the mother, [X], the mother’s sister and the father plan to go to Town L, Qld to visit a Priest and to attend church services. There is an issue about the father wanting to return his friend’s car prior to leaving. There is a disagreement about this. The father abuses the mother and he accuses her of having an affair. The father races the car on the way to Town L and they fear for their life. [X] says, “stop the car daddy I’m scared.”	M P34
2012	The mother and father have a verbal argument about the mother not wanting the father to post a picture of her on Facebook. The maternal aunt witnesses this argument. The maternal aunt sends an email to her friend about witnessing this argument. The father reads the maternal aunt’s email without her permission. The father becomes extremely angry about this. The father punches the maternal aunt in the face and grabs her by the hair and he takes her to the bathroom with the intention of locking her inside the room. The maternal aunt gets away and the maternal aunt, the mother and [X] go outside as the father is getting very violent. The father locks the door from inside and they cannot get back into the house. The mother calls the police. The mother sees the father drive away with documents. The maternal aunt later reports the father to the police. The father denies any wrongdoing and the police do not take action. The mother alleges the father took the maternal aunt’s university degree and other important documents. She also alleges the father later admits to saying, “I shredded them.”	M P40-43
2012	The father posts a family picture on Facebook to celebrate their anniversary. Initially the mother likes the post but later asks the father to delete the post. The father deletes it.	F4-17 P63
2012	The father says to the maternal aunt, Ms C “Please do not tell our family secrets to outsiders.” The maternal aunt becomes furious and abuses the father. The maternal aunt slaps the father hard on the face with her hand. The mother and [X] witness this. The father says to the mother, “Did you see what she has done?” The mother says, “Give him one more slap for me.” The father is shocked and he pushes his hand in the maternal aunt’s face to get her away from him. The father leaves on his push bike. The father denies locking the maternal aunt in the bathroom. He also denies carrying a folder and driving off in a car when the police arrived. The police attend the home. The police apparently say to the father, “Your wife is accusing you of assaulting her however we could not find any evidence of this. You need to be careful and we suggest you attend marriage counselling.”	F4-17 P64-65 F4-17 P66
2012	The police are called two more times. The police advise the parties to seek counselling.	F4-17 P68
2012	The father sends an email to the maternal aunt’s work alleging the maternal aunt’s work experience certificate is false and that she should not be employed. The father denies this.	M P44 F4-17 P77
Nov 2012	The mother asks the father to participate in counselling.	M P45
Nov 2012	The mother says to the father, “I realise the problem creators in our family are my Dad and Sister. I will keep them away but can we go to try marriage counselling?” The father agrees. The mother says she will make an appointment in both their names.	F4-17 P70
Nov 2012	The father attends the GPs office with the mother. The father sees that an appointment is only made for him. The mother begins accusing the father of being controlling and an angry person. The father says, “We are just here for a referral for marriage counselling.” The GP tells the father that since the appointment is in his name, she can only give a referral in his name.	F4-17 P70
Nov 2012	GP Dr F refers the father to a psychiatrist seeking help for the father with anger management and his controlling behaviour.	M P45 & Annexure ‘A’
Nov 2012	The mother emails the father’s referral to a psychiatrist to her father.	F4-17 P70
22 Nov 2012	The father refuses to go to counselling. He says to the mother, “You are trying to make me a mental patient.” He becomes extremely violent and angry towards the mother and shouts at her, “You and your sister planned to trap me.” The mother calls the police because she is frightened. The police attend and they cannot remove the father because his name is on the lease. The mother leaves the home with [X] and goes to stay with a friend in the Region 2. The parties separate for 12 months.	M P46 M P48
Nov 2012	The father refuses to go to marriage counselling because the mother told their family and friends about it. The father says to the mother, “We can go for mediation with someone who is experienced and mature.” The mother refuses because it will reflect badly on her sister. The conversation becomes heated and the father leaves his office. At 2pm, the father receives a call from the police. He is told he has to move out of the house by 6pm and that the police will escort him from the house. The police arrive. The father explains the situation. The police tell the mother they cannot ask the father to move. The mother decides to move out.	F4-17 P71 F4-17 P71
Nov 2012	After a week of no communication from the mother after leaving, the father decides to see the mother at the Region 2 after she says to him, “Come to the Region 2 and we can try and sort it out.” When the father arrives, the mother refuses to talk to the father and she calls the police. The police apply for an ADVO.	F4-17 P72
Nov 2012	The father gets inside the mother’s friend’s security gate which can only be opened by a swipe card. The father is abusive over the intercom. The mother calls the police. The police arrive and search the father. They find three knives in his car. The mother alleges the father punctured her car tyres. The police charge the father and his remains in custody overnight.	M P50
30 Nov 2012	The father is served with a Protection Order by Qld Police, effective to 4 December 2012. The father must not use a weapon, he is to be of good behaviour towards the mother and he must not commit DV against the mother.	S4 Qld Police ICL 20 page 2
4 Dec 2012	The police apply for a Protection Order and an order is made for 2 years. The Protection Order includes [X] and the maternal aunt. At Court, the Magistrate says that [X] should spend time with his father.	M P50 M P52 M P54
4 Dec 2012	The father consents to an ADVO at Court without admissions. At Court the mother and father enter into an agreement for [X] to spend time with the father from 10am until 4pm each Saturday.	F4-17 P72
After 4 Dec 2012	The mother agrees to allow the father to see [X] from 10am until 4pm on the first Saturday after the Court matter. The father does not return [X] at 4pm. The father sends the mother to different places to collect [X] and he does not show up. The mother calls the police. At 8pm, the police call the mother and advise her the father is at the police station with [X]. The mother attends. The father tells her he will return [X] if the mother gives the father their car. The mother refuses. The police allow the father to take [X] to Brisbane without the mother’s consent.	M P55
8 Dec 2012	The father spends time with [X]. The mother is supposed to pick [X] up from the same location, however she does not show. The father attempts to call the mother a number of times but she doesn’t answer her phone. The father goes to the Police station to report this and the police call the mother. The father speaks to the mother and the mother says, “If you agree to alternate week visitation, I will take him back.” The father refuses and he has to take [X] back to Brisbane with him.	F4-17 P73
12 Dec 2012	The father is served with a Protection Order by Qld Police, effective to 3 December 2014. The father must be of good behaviour towards the mother and he must not commit DV against the mother. The father is prohibited from coming within 100 metres of the mother’s residence, except in accordance with Family Law Orders.	S4 Qld Police ICL 20 page 1
Dec 2012	Four days after the father retains [X], the father arranges to return [X] to the mother through one of his friends. Thereafter, the mother does not allow [X] to spend time with the father.	M P55
Dec 2012	After four days, the mother contacts the father. They agree to stick to the original agreement. The father arranges for the mother to collect [X]. After [X] is returned to the mother, she refuses to allow [X] to spend time with the father alleging the father had broken the agreement.	F4-17 P74
2013	The mother takes [X] overseas to [country] without the father’s consent or knowledge.	F4-17 P76
Approx. March 2013	The father calls the mother to spend time with [X]. The mother arranges for the father to see [X] at her friend’s place. The father spends a few hours with [X].	M P57
2013	The mother agrees to allow [X] to spend time with the father on the condition that the father surrenders his passport, licence, car keys and mobile phone to the mother.	F4-17 P75
After March to 2013	The father spends time with [X] three or four times at the mother’s friend’s place over the next four months. The father is abusive on these occasions. He calls the mother, “arsehole” and “motherfucker” in front of [X].	M P58
May 2013	The father tells the mother he wants to resume their relationship. The mother attends the father’s home. She uses his laptop to search for work. She sees emails the father has sent regarding her sister. The mother does not confront the father about these emails.	M P59-62
May 2013	The father sends an abusive and vulgar text to the maternal grandfather.	M P94
2013	The father asks to see [X]. The mother takes [X] to the father’s friend’s place. When the mother arrives the father is abusive and she leaves. When the mother arrives home, the mother finds an iPhone stuck under her car with tape. The mother goes to the police station but decides not to report the father. She throws the iPhone in the bin on the way home. The father later calls and asks for his phone back. The mother alleges the father traced her to the police station. The mother tells him she threw the phone away.	M P63-64
2013	The father visits [X] at a mutual friend’s house. [X] says to him, “Daddy I want to come with you.” The mother becomes furious and she leaves with [X]. She takes the father’s phone with her and she threatens to go to the police station. She says to the father, “You are trying to stalk me by tracking me through your cell phone.” The mutual friend witnesses this and says to the father they will testify. The mother destroys the father’s phone. He does not call the police as he is scared he will lose his visiting arrangement with [X]. After this incident, the mother refuses to allow [X] to spend time with the father for a few months.	F4-17 P79 F4-17 P80
Sept 2013	The mother sees a Facebook chat the father has initiated where the father accuses the mother of having an incestuous relationship with her father.	M P93
Oct 2013	The mother approaches the father and she apologises to him for everything that has happened. They reconcile.	F4-17 P82
Nov 2013	The father apologises to the mother. He tells her he is going to Town M for work. He asks the mother to go. The parties resume their relationship.	M P65
Nov 2013	The parties drive to Town M. On the way, the father asks the mother to delete the phone numbers of her father, sister, aunt Ms B and her close friends. The mother obeys the father because of fear.	M P89
Nov 2013	The day after the parties arrive in Town M, the father smashes the mother’s new phone by hitting it hard at the bedroom side-table corner. The mother lives without a phone for a while and the father eventually allows the mother to use his iPhone.	M P89
2013	After the mother comes to Town M, she starts behaving abnormally. She asks for the father’s iPhone PIN. The father gives it to her. The mother looks at the father’s Facebook, emails and messages. The father does not stop her because he fears another breakup.	F4-17 P84
2013	The parties move to Town N.	M P66
2013	The father does not allow the mother to have contact with her sister and father.	M P66
2013	The father ends the relationship. The mother changes her approach and says, “I need mental support, I’m broken.”	F4-17 P
17 Dec 2013	The father is served with a Protection Order by Qld Police – effective to 2 April 2015. The father is to be of good behaviour towards the mother and the father is not to commit DV against the mother.	S4 Qld Police ICL 20 page 1
Dec 2013	The father returns to Town M. The mother and father go on a few road trips.	F4-17 P86
After Dec 2013	The mother continues to check the father’s emails or Facebook.	F4-17 P87
3 Feb 2014	The father alleges the mother sends him a draft Affidavit outlining the ‘actual situation’.	F10-18 P7 & Annexure ‘A’
Aug 2016	[X] spends 3 weeks with the father in [country] without the mother’s presence at the time of the paternal grandmother’s death.	F10-18 P10
2 Nov 2016	The mother and father exchange text messages. The father alleges the mother is policing him.	F4-17 P90 & Annexure ‘B’
2 Nov 2016	The father confronts the mother about ‘being stalked’ by the mother. The mother becomes aggressive and shouts at the father.	F4-17 P91
Nov 2013 to Nov 2016	[X] does not have any contact with his aunt, grandfather and the mother’s cousin for three years.	M P89
16 Nov 2016	The father sends the mother a text about financial matters. He asks the mother to pay him back some money.	F4-17 P94 & Annexure ‘C’
Nov 2016	The parties disagree about the mother paying for a church function she is to attend. The father tries to take the mother’s keys. He tells the mother to find a house for herself. The father grabs the mother from behind and he squeezes her to get the keys. The mother threatens to call the police. The mother tries to leave for work. The father blocks her way but she manages to get out. The father follows the mother and leaves [X] in the house. The mother decides she won’t go to work after seeing how the father is acting. She fears for [X]’s safety. She goes back to the home and sits outside on the veranda with [X]. The father sits in the car and mocks her to call the police. The father gets out of the car and goes inside the house. The mother receives a call from her friend about attending a church activity. The father grabs the mother’s phone but he can’t gains access. The father takes the mother’s sim card and he gives it to her and he takes her phone. The mother drops [X] to school. After work, she buys a new phone. At home, the father tries to grab this phone and says to the mother, “you have to smash the phone before you come into the house otherwise get out.” The mother does not let the father take the phone. The father squeezes and twists the mother’s hand. The mother tells [X] to get help next door. [X] runs next door and the father lets the mother go. The mother leaves the father after this.	M P72-79
Nov 2016	The mother yells at the father in the morning. She accuses the father of giving money to other women. The father does not want to argue and he goes back to bed and waits for the mother to go to the office. The mother follows him. The father is lying there with [X]. The mother screams, “I will put you behind bars. I am going to call the police” The father says, “We will talk later and sort things out, don’t call the police.” The mother yells and pushes the father into the sofa. To avoid aggravating the situation, the father takes his car key and tries to leave. The mother sees the father heading towards the car and she runs to her car and drives it into the driveway in a dangerous manner, blocking the father’s way. The father hears the mother talking on the phone and he says to her, “Give the phone back to me, there is no need for police interference here”. The mother gives the phone to the father and says, “I am going to police station and to complain.” The father takes the phone inside, he takes the sim card out and hands it to the mother. The mother goes inside the house and says to [X], “Your Daddy hit me [X], he is a bad guy.” The father goes to the corner of the courtyard and he stays there until the mother and [X] go out. At 9.30pm, the mother returns. The father hears an iPhone ringing. He thinks it’s his phone and he goes to answer it. He sees the mother running to the bedroom. The father thinks she is going to answer his phone. He says to her, “Don’t touch my phone.” The mother reaches the bedroom before the father and he sees the mother take out a phone from her jeans, hidden under the bed. They disagree about a new phone being purchased. The mother yells at the father, “It’s my money. I will do whatever I want. Do you want to go to jail again like you went in the Region 2.” [X] comes out of his room and the mother says to him, “Run next door and tell them Daddy is killing me”. [X], run next door.” The father runs out behind him to see that he safely enters the house. The father keeps the door open and goes to his friend’s house.	F4-17 P95 F4-17 P96
17 Nov 2016	The parties separate on a final basis.	M P4
Nov 2016	The father is served with a CAN for two instances of common assault.	F4-17 P98 & Annexure ‘D’, ‘E’, ‘F’
24 Nov 2016	An ADVO is made for the mother’s protection.	M P80
24 Nov 2016	The father is served with an interim ADVO by NSW Police. Orders 1a, 1b, 1c and 4 (not to go within 100 metres from the mother’s home or work) are made. Order expiry dated 13 March 2017.	S1 NSW Police ICL 6 page 1
Dec 2016	The father attends [X]’s school and speaks with him. The father tells [X] that the mother killed his pet chicken. He asks [X] questions about where they live.	M P82
Dec 2016	The father attends [X]’s school. He speaks to him. [X] gives him a hug. [X] says to him, “Daddy you don’t look well. I want to live with both of you. Mummy is moving to another place this Friday. Why can’t we come and live with you.” [X]’s teacher approaches them. The father meets with the Principal to notify him if [X] moves schools.	F4-17 P103
7 Feb 2017	The mother receives a call from the school Principal advising her that the father was at the school to take [X] to an appointment. The mother alleges the father wrote a fake note stating [X] had an appointment to attend and he had to take him out of the school for an hour. [X] refuses to go with the father. The mother calls the police.	M P83-84
8 Feb 2017	The father attends [X]’s school at 10.30am. He is feeling sad at not having seen [X] for a long time. He goes to the office and fills out a form to take [X] out of school. He speaks to the Principal who asks if the mother knows. The father says, “No. There is no parenting plan in place or court orders and I do not mind if you notify her that I want to spend time with [X].” The father goes to [X]’s classroom. [X] says to him, “Mummy told me I cannot go with you. She said that you will cut me into two pieces and give half of me to mum. Then she said she will die.” The father says, “I just wanted to let you know that Daddy loves you.” The father walks away.	F4-17 P104
14 Feb 2017	The mother files an Initiating Application in the Federal Circuit Court at Wollongong and an Affidavit – Non-Filing of Family Dispute Resolution Certificate. She also files a supporting Affidavit sworn 13 February 2017 and a Notice of Risk. The mother makes allegations relating to child abuse, family violence and other risks.
27 Feb 2017	Exparte Orders are made in Chambers by Judge Altobelli dispensing with a 60I Certificate and an exemption is granted as to the time for service of the mother’s Initiating Application. Orders are also made for the child [X] to live with the mother. The father is injuncted and restrained from communicating with the mother and the child or from approaching the mother’s home, school, work, or any extra-curricular activity and he is ordered to attend upon all medical and psychological appointments and to comply with all medications as directed by his treating practitioners. A non-denigration order is made for both parties. The matter is adjourned to 6 March 2017 via Genesis Teleconference.
6 March 2017	The matter is listed via Genesis Teleconference before Judge Altobelli. Ms Kambouris appears for the Applicant mother and there is no appearance by or on behalf of the father. The matter is adjourned to 27 March 2017. The Respondent father is directed to file and serve a Response and Affidavit by 20 March 2017. The mother’s Solicitor is directed to notify the father of Orders made.
13 March 2017	Common assault charges against the father are heard at Court. The father represents himself. The father is found not guilty in relation to sequence 1 on the CAN. He is found guilty of sequence 2 on the CAN. The father is sentenced to a 12 month good behaviour bond. A Final ADVO is made.	F4-17 P102
13 March 2017	The father’s common assault matters are listed at Wollongong Local Court regarding incident occurring on 17 November 2016. In relation to count 1 – common assault, the father is convicted and sentenced to a s9 Bond for 12 months. In relation to count 2 – common assault, this matter is dismissed.	S5 NSW Police ICL 7 page 2
13 March 2017	A Final ADVO is made for 12 months at Wollongong Local Court protecting the mother. Orders 1 (a-c) are made and Order 9 (father not to go within 100 metres). The father is served with this.	S9 NSW Police ICL 8 page 1
27 March 2017	The matter is listed in the Federal Circuit Court at Wollongong before Judge Altobelli. Ms Kambouris appears for the mother and Mr Robinson appears for the father. The father is directed to file and serve a Response and Affidavit by 10 April 2017. Orders are made for a CDC and the matter is adjourned to 3 May 2017 for an Interim Hearing. The parties are directed to file Case Outlines by 26 April 2017.
10 April 2017	The father files a Response and Affidavit in support sworn on 10 April 2017. He also files a Notice of Risk. The father makes allegations about family violence.
20 April 2017	Dr G prepares a MHCP for the father. The father is referred to psychologist Ms H. The father is prescribed Lexapro.

27 April 2017	The parties attend upon Family Consultant Ms E for a CDC.
27 April 2017	An Order is made in Chambers by Judge Altobelli extending the time for the filing of Case Outline document to 1 May 2017.
3 May 2017	The matter is listed in the Federal Circuit Court at Wollongong before Judge Henderson. Ms Kambouris appears for the mother and Mr Robinson appears for the father. The matter is adjourned for a possible Interim Hearing on 7 September 2017. Judge Henderson directs that if either party seeks to agitate an interim issue, they are to file their Application in a Case and Affidavit in support 42 days before the Interim Hearing and the other party is to respond 21 days before the Interim Hearing. An order is made for an ICL. The parties enter into Interim Consent Orders for [X] to live with the mother and for [X] to commence spending supervised time with the father through Connecting families or another agency. The parties also agree for [X] to communicate with his father by telephone each Wednesday between 7.30pm and 8pm. The parties are to enrol in a parenting after separation course and [X] is to be enrolled in the Anchor Program through [Hospital]. The parties further agree that the mother can travel to [country] with [X] in either November 2017 or January 2018 for a period of up to 4 weeks with the mother to provide the itinerary to the father.
2017	After Orders are made for the father to spend supervised time with [X], the father doesn’t take a real interest in spending time with [X]. The father tells everyone in the community that the mother will not allow him to see [X]. This interferes with the mother’s and [X]’s social life.	M P97 & Annexure ‘D’
10 May 2017	The mother’s Solicitor files a Notice of Withdrawal as Lawyer.
27 May 2017	The father files a further Response and supporting Affidavit sworn on 25 May 2017. He also files a further Notice of Risk. He makes allegations in relation to alleged risk of abuse and family violence.
29 May 2017	Orders made in Chambers by Judge Altobelli granting the ICL leave to issue Subpoenas and for photocopy access.
21 June 2017	The father calls [X]. The father says a number of things that upset [X]. The mother records and transcribes the conversation.	M P98 & Annexure ‘E’
7 Sept 2017	The matter is listed in the Federal Circuit Court at Wollongong before Judge Altobelli. Ms Kambouris appears for the mother and the father appears unrepresented. Ms Temelkovska appears for the ICL. An Order is made for a Family Report and the matter is adjourned to 23 August 2018. The matter is also listed for Final Hearing for two days commencing on 1 November 2018. Orders are also made regarding access to Subpoena documents.
Sept 2017	The mother has a community event called [event omitted]. [X] is due to participate in a children’s dance group. The father tries to withdraw [X] from the dance program. The father spreads rumours about the mother.	M P95
23 Sept 2017	The father commences spending supervised time through [Care Centre].	M P97 & Annexure ‘D’
8 Oct 2017	The father spends supervised time through [Care Centre].	M P97 & Annexure ‘D’
21 Oct 2017	The father spends supervised time through [Care Centre].	M P97 & Annexure ‘D’
2 Dec 2017	The father spends supervised time through [Care Centre].	M P97 & Annexure ‘D’
16 Dec 2017	The father spends supervised time through [Care Centre].	M P97 & Annexure ‘D’
30 Dec 2017	The father spends supervised time through [Care Centre].	M P97 & Annexure ‘D’
13 Jan 2018	The father is due to spend supervised time with [X]. [X] is performing and the father refuses to see him the following day or the next week on 20 January 2018.	M P97 & Annexure ‘D’
27 Jan 2018	The father is due to spend supervised time with [X]. It is a long weekend. The father says he is going away and he won’t be available to see [X].	M P97 & Annexure ‘D’
10 Feb 2018	The father spends supervised time with [X].	M P97 & Annexure ‘D’
24 Feb 2018	The father is due to spend supervised time with [X]. [X] has a retreat day at church. The father refuses to see [X] in the afternoon.	M P97 & Annexure ‘D’
10 March 2018	The father is due to spend supervised time with [X]. The father refuses and says it is too expensive and he’s trying to move it to CatholicCare.	M P97 & Annexure ‘D’
24 March 2018	The father is due to spend supervised time with [X]. The father refuses and says it is too expensive and he’s trying to move it to CatholicCare.	M P97 & Annexure ‘D’
7 April 2018	The father spends supervised time with [X] through [Care Centre]. The father advises that his is not seeing [X] anymore.	M P97 & Annexure ‘D’
21 April 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
5 May 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
19 May 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
30 May 2018	The matter is listed in the Federal Circuit Court at Wollongong before Judge Altobelli. The mother and father appear unrepresented. Ms O’Donnell appears for the ICL. The matter is stood over to 23 August 2018.
2 June 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
16 June 2018	The father spends supervised time with [X] through [Care Centre]. The mother alleges the father says things to [X] that makes him upset.	M P97 & Annexure ‘D’
30 June 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
11 July 2018	Parties attend upon Family Consultant Ms E for Family Report interviews.
14 July 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
18 July 2018	Family Consultant Ms E has a further telephone interview with the mother and father.
28 July 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
11 Aug 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
14 Aug 2018	Family Report prepared by Family Consultant Ms E.
20 Aug 2018	Order made in Chambers releasing Family Report.
22 Aug 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
23 Aug 2018	The matter is listed in the Federal Circuit Court at Wollongong before Judge Altobelli. The mother and father appear unrepresented. Ms O’Donnell appears for the ICL. An Order is made restraining the father from speaking negatively about the mother in front of the child and from discussing the Court proceedings. The mother and father are ordered to reinstate orders of 3 May 2017 and to comply with these. The parties are directed to file their trial documents by 26 October 2018 and Case Outlines by 29 October 2018. The ICL is to file a chronology by 30 October 2018. Hearing dates are confirmed for 1st and 2nd November 2018.
25 Aug 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
8 Sept 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
6 Oct 2018	The father has contact through [Care Centre]. The father says things to [X] that make him upset and worried.	M P97 & Annexure ‘D’
20 Oct 2018	The father is due to spend supervised time with [X]. The father does not spend time with him.	M P97 & Annexure ‘D’
26 Oct 2018	The mother files a further Initiating Application and Affidavit in support from herself sworn 25 October 2018, from her father Mr A sworn 25 October 2018, from her sister Ms C sworn 25 October 2018, from her aunt Ms B and from her friend Ms D.
26 Oct 2018	The father files a trial Affidavit sworn 26 October 2018. He also seeks to rely on his Affidavit sworn on 10 April 2017.
29 Oct 2018	The father files an Initiating Application in error. He outlines the Final Orders he seeks.
29 Oct 2018	The father files a Response.
1-2 Nov 2018	The matter is listed for Final Hearing.