Mishari & Hanu
[2023] FedCFamC1F 457
•7 June 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mishari & Hanu [2023] FedCFamC1F 457
File number: MLC 575 of 2021 Judgment of: WILLIAMS J Date of judgment: 7 June 2023 Catchwords: FAMILY LAW – PARENTING – Highly conflictual parenting dispute – Where the mother seeks sole parental responsibility and the father seeks equal shared parental responsibility – Agreed children live with the mother – Dispute about the time the children spend with the father – Allegations of sexual abuse but no allegation of unacceptable risk – Where the parties have differing observances of Judaism and religious practices –Where there is alleged inconsistency in care between households – Consideration of the transition between households and its impact on the children – Orders that the parents have equal shared parental responsibility of the children and children spend significant and substantial time with the father Legislation: Evidence Act 1995 (Cth) s 140.
Family Law Act 1975 (Cth) ss 4, 4AB, 60B, 60CA, 60CC, 60CC(2), 60CC(2)(a), 60CC(2A), 60CC(3), 60CG, 61DA, 61DA(2), 65DAA, 65DAA(3), 65DAA(5).
Cases cited: Banks & Banks [2015] FamCAFC 36
G & C [2006] FamCA 994
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Mazorski v Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
Naparus & Frankham (No. 3) [2021] FamCAFC 150
Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division: Division 1 First Instance Number of paragraphs: 350 Date of hearing: 17–21 and 24 April 2023 Place: Melbourne Counsel for the Applicant: Mr Stanley Solicitor for the Applicant: Southern Family Law Counsel for the Respondent: Mr Puckey KC Solicitor for the Respondent: Taussig Cherrie Fildes Counsel for the Independent Children's Lawyer: Ms Colla Solicitor for the Independent Children's Lawyer: CE Family Law Pty Ltd ORDERS
MLC 575 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MISHARI
Applicant
AND: MS HANU
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
WILLIAMS J
DATE OF ORDER:
7 JUNE 2023
THE COURT ORDERS THAT:
1.All previous parenting orders be and are hereby discharged.
2.Both parents have equal parental responsibility for the children of the marriage namely X born … 2019 and Y born … 2021(“the children”).
3.The children live with the mother.
4.The children spend time and communicate with the father as follows:
(a)Immediately upon the Court making these orders:
(i)On the first weekend of each calendar month from 5.00pm Saturday until 5.00pm Sunday;
(ii)On the second and third weekend of each month from 9.30am to 5.00pm Saturday;
(iii)On the fourth weekend of each month from 9.30am to 5.00pm Sunday.
(b)Commencing 1 October 2023:
(i)Each alternate weekend from 5.00pm Saturday to 5.00pm Sunday;
(ii)Each alternate Thursday 9.30am until 5.00pm.
(c)Commencing 1 April 2024:
(i)Each alternate weekend from 9.30am Saturday to 5.00pm Sunday;
(ii)Each alternate Thursday from 9.30am to 5.00pm.
(d)Commencing 1 November 2024:
(i)Each alternate week from 5.00pm Friday to 5.00pm Sunday;
(ii)Each alternate Thursday from 9.30am to 5.00 pm.
(e)Upon X commencing primary school in 2025:
(i)Each alternate week from 5.00pm Friday to 5.00pm Sunday;
(ii)Each alternate Thursday from 3.30pm until 9:00am or the commencement of school Friday.
(f)Commencing 1 July 2025:
(i)Each alternate weekend from 3.30pm or the conclusion of school Friday to 9.00am or the commencement of school Monday;
(ii)Each alternate Thursday from 3.30pm until 9.00am or the commencement of school Friday.
(g)Upon Y commencing primary school in 2026:
(i)Each alternate weekend from 3.30pm or the conclusion of school Friday to 9.00am or the commencement of school Monday;
(ii)Each alternate Wednesday from 3.30pm until 9.00am or the commencement of school Friday.
School holiday periods
(h)Until the commencement of holiday time in term 1 2024 school holidays, the children’s time with the father shall continue in accordance with the term arrangements referred to in orders 3-4 hereof.
(i)Upon commencement of holiday time as referred to in subsequent orders, the children’s usual term time with the father shall be suspended and recommence at the conclusion of the holidays in the week immediately after the conclusion of the holidays in the same cycle as prior to the school holidays.
(j)For school term time in 2024:
(i)In week 1 for two (2) consecutive nights, as agreed and in default of agreement, from 5.00pm Monday to 5.00pm Wednesday;
(ii)In week 2 for two (2) consecutive nights, as agreed and in default of agreement from 5.00 pm Friday to 5.00pm Sunday.
(k)For the 2024/2025 long summer holidays:
(i)In week 1, 3 and 5 for two (2) consecutive nights, as agreed and in default of agreement, from 9.00am Monday to 5.00pm Wednesday;
(ii)In week 2, 4, 6 for two consecutive nights, as agreed and in default of agreement, from 9.00am Friday to 5.00pm Sunday.
(l)For school term time in 2025:
(i)In week 1 for three (3) consecutive nights, as agreed and in default of agreement, from 9.00am Monday until 5.00 pm Thursday;
(ii)In week 2 for three consecutive nights, as agreed and in default of agreement, from 9.00am Thursday until 5.00 pm Sunday.
(m)For the 2025/2026 long summer holidays:
(i)In week 1, 3 and 5 for three (3) consecutive nights, as agreed and in default of agreement, from 9.00am Monday to 5.00pm Wednesday;
(ii)In week 2, 4, 6 for four (4) consecutive nights, as agreed and in default of agreement, from 9.00am Wednesday to 5.00pm Sunday.
(n)Commencing term 1 2026 and each school term thereafter for one half of the school term holidays as may be agreed between the parties in writing, and failing agreement alternating as to the first and second halves with the father to spend time in the first half of each term holidays in 2026.
(o)For one half of the long summer holidays in 2026/2027 on a week on/week off basis as may be agreed between the parties in writing and failing agreement the father spend time in weeks 1, 3 and 5.
(p)Commencing in the long summer holidays in the year 2028/2029 for one half of the long summer holidays as may be agreed between the parties in writing and failing agreement alternating as the first and second halves with the Father to commence with the first half.
Special occasions
5.The children spend time with each parent on special occasions as follows:
(a)On the following Jewish holidays:
(i)In the year 2023 and each alternate year thereafter:
A.For Purim - with the father from 4.00pm on the day prior to Purim to 4.00pm on the day;
B.For Pesach (Passover) - with the mother from 4.00pm on the day prior to Passover to 4.00pm on the first day of Passover and with the father from 4.00pm on the first day of Passover to 4.00pm on the second day of Passover;
C.For Pesach (Passover) - with the mother from 4.00pm on the sixth day of Passover to 4.00pm on the seventh day of Passover and with the father from 4:00pm on the seventh day of Passover to 4:00pm on the eight day of Passover;
D.For Rosh Hashanah - with the mother from 4.00pm on the day prior to Rosh Hashanah to 4.00pm on the first day of Rosh Hashanah and with the father from 4.00pm on the first day of Rosh Hashanah to 4.00pm on the second day of Rosh Hashanah;
E.For Shavuot - with the mother from 4.00pm on the day prior to Shavuot to 4.00pm on the first day of Shavuot and with the Father from 4.00pm on the first day of Shavuot to 4.00pm on the second day of Shavuot;
F.For Yom Kipper - with the father from 1.00pm of the Eve to 9.00am on the day following Yom Kipper;
G.For Sukkot - with the mother from 4.00pm on the day prior to Sukkot to 4.00pm on the first day of Sukkot and with the father from 4.00pm on the first day of Sukkot to 4.00pm on the second day of Sukkot.
H.For Shemini Atzeret/Simchat Torah - with the mother from 4.00pm on the day prior to Shemini Atzeret/Simchat Torah to 4.00pm on the first day of Shemini Atzeret/Simchat Torah and with the Father from 4.00pm on the first day of Shemini Atzeret/Simchat Torah to 4.00pm of the second day of Shemini Atzeret/Simchat Torah.
(ii)In the year 2024 and each alternate year thereafter
A.For Purim - with the mother from 4.00pm on the day prior to Purim to 4.00pm on the day;
B.For Pesach (Passover) - with the father from 4.00pm on the day prior to Passover to 4.00pm on the first day of Passover and with the mother from 4.00pm on the first day of Passover to 4.00pm on the second day of Passover;
C.For Pesach (Passover) - with the father from 4.00pm on the sixth day of Passover to 4.00pm on the seventh day of Passover and with the mother from 4.00pm on the seventh day of Passover to 4.00pm on the eighth day of Passover;
D.For Rosh Hashanah - with the father from 4.00pm on the day prior to Rosh Hashanah to 4.00pm on the first day of Rosh Hashanah and with the mother from 4.00pm on the first day of Rosh Hashanah to 4.00pm on the second day of Rosh Hashanah;
E.For Shavuot - with the father from 4.00pm on the day prior to Shavuot to 4.00pm on the first day of Shavuot and with the mother from 4.00pm on the first day of Shavuot to 4.00pm on the second day of Shavuot;
F.For Yom Kipper - with the mother from 1.00pm of the Eve to 9.00am on the day following Yom Kipper;
G.For Sukkot - with the father from 4.00pm on the day prior to Sukkot to 4.00pm on the first day of Sukkot and with the mother from 4.00pm on the first day of Sukkot to 4.00pm on the second day of Sukkot;
H.For Shemini Atzeret/Simchat Torah - with the father from 4.00pm on the day prior to Shemini Atzeret/Simchat Torah to 4.00pm on the first day of Shemini Atzeret/Simchat Torah and with the mother from 4.00pm on the first day Shemini Atzeret/Simchat Torah to 4.00pm on the second day of Shemini Atzeret/Simchat Torah.
(b)With the father from 4.00pm Christmas Eve until 4.00pm Christmas Day in each year.
Birthdays
6.In the event that the children’s birthdays do not fall within the father’s usual spend time periods, both children spend time with the father on each of their birthdays as follows:
(a)If such day falls on a weekday, from 3.30pm to 6.00pm;
(b)If such day falls on a weekend day, from 9.00am to 2.00pm.
7.In the event that the father’s birthday does not fall within his usual spend time periods, the children spend time with the father on his birthday as follows:
(a)If such day falls on a weekday, from 3.30pm to 6.00pm;
(b)If such day falls on a weekend day, from 9.00am to 2.00pm;
(c)With the same time to be afforded to the mother for her birthday.
8.The children spend time with the father on Father’s Day 2023 from 9.30am until 4.00pm and from 2024 and each year thereafter, from 3.00pm Father’s Day Eve to 5.00pm Father’s Day, with the same time to be afforded to the mother for Mother’s Day
Communication
9.The father is at liberty to contact the children via FaceTime on a Wednesday and Sunday (unless such day is a spend time day for the Father) between 5.00pm and 5.30pm with the mother to facilitate such calls and the father to initiate such calls to a device or number nominated by the mother.
10.Upon the children commencing two consecutive nights of overnight time, the mother is at liberty to contact the children on one occasion via FaceTime between 5.00pm and 5.30pm with the father to facilitate such calls and the mother to initiate such calls to a device or number nominated by the father.
11.In the event either parent travels overseas with the children, the non-travelling parent is at liberty to contact the children every third day via FaceTime with the travelling parent to facilitate such calls and the non-travelling parent to initiate such calls to a device or number nominated by the travelling parent.
12.Each parent facilitate the children electronically communicating with the other parent at all times as may be reasonably requested by the children or otherwise as agreed between the parents.
13.Communication between the parents about the implementation and operation of these orders shall be in writing (via SMS, email or OurFamilyWizard) save for in the case of an emergency and in those circumstances only, each parent is permitted to telephone the other.
14.Each parent must keep the other advised as to any changes to their residential address, landline, mobile telephone numbers, and email addresses, and notify the other of any change to such details within twenty four (24) hours of such change.
Changeover
15.All changeovers which occur on a crèche/childcare, kindergarten or school attendance day are to occur at the child’s education facility.
16.All other changeovers occur with the father to collect the children from the mother’s home if time commences during Shabbat and if time does not commence during Shabbat, the mother or her nominee deliver the children to the father’s home at the commencement of time, and the father deliver the children to the mother’s residence at the conclusion of his time, or such other location as may be agreed to the parties in writing.
17.Both parents shall facilitate the children transitioning to the other parent’s home with any comfort items, which are to be returned with the children at changeover.
Children’s health and wellbeing
18.X continue to attend upon Ms B, psychologist, or such other psychologist as may be nominated and recommended by her for therapeutic counselling and psychological support.
19.That for the purpose of attending upon Ms B or her nominee:-
(a)The parents must each facilitate X’s attendance as recommended by Ms B.
(b)The parents must personally attend sessions as recommended by Ms B.
(c)The parents must participate in sessions with X or the other parent as recommended by Ms B.
(d)Follow all reasonable directions of Ms B in promoting a relationship between each parent and X and otherwise improving their co-parenting.
(e)Each parent is to pay the costs of any individual session or their sessions with the child and any joint sessions or sessions with the child alone are to be paid by the parents equally.
(f)That both parents are to ensure X’s ongoing attendance at C Therapy and are mutually restrained from taking X to any other mental health practitioner unless recommended by Ms B or by written agreement between the parents.
20.Both parents are permitted to provide to Ms B or such other therapist nominated by her, a sealed copy of these orders, a copy of these reasons, copies of Dr D’s family reports and Ms E’s sleep report.
21.Both parents keep the other advised about:
(a)the name and address of any of the children’s health professionals;
(b)any medication prescribed for the children, and required by the children during the other parents time period, with any such mediation to be provided by way of exchange at changeover;
(c)except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any medical appointments for the children;
22.Both parents authorise and direct any and all health and allied health professionals to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time.
23.The parents advise each as soon as practicable of:
(a)any significant injury or illness affecting the children or either of them;
(b)any required referral upon a medical specialist including details of such referral;
(c)any illness requiring the provision of any medication prescribed by a Medical Practitioner;
(d)any hospital attendance or proposed hospital attendance by the children or either of them;
(e)When the children are in their respective care , both parents administer all medicines as prescribed by the children’s treating doctors;
Educational and extracurricular activities
24.The parents do all things necessary to authorise and keep each other authorised to receive information at their respective expense copies of childcare/educational facility/school reports, newsletters, school photographs and all such other information that would normally be received by a parent from any childcare, kindergarten, school or before/after school provider.
25.Both parents and their respective extended families are be permitted to attend the child’s crèche/childcare, kindergarten, school or extra-curricular activity providers for sports days, concerts, parent/teacher interviews, first day of term and otherwise usual activities affiliated with the crèche, childcare, kindergarten, school or extra-curricular activity providers to which parents/family are invited or welcomed to attend.
26.Both parents will keep the other advised as to any school absence days for the children including the reason for such absence.
27.Both parents are permitted to each have access to all communication portals operated by any child care, kindergarten or school, subject to any formal school policy.
Travel
28.Both parties are at liberty to travel interstate with the children provided that such travel is undertaken during their respective live with/spend times periods pursuant to these orders and the other parent is advised twenty eight (28) days prior to departure of travel dates, location and contact details for the children for the duration of such travel.
29.That upon the commencement of holiday time when the children commence week about with each parent during the long summer holidays, both parties are at liberty to travel overseas with the children provided that:-
(a)such travel is undertaken during their respective time with periods or such other time with the express written agreement of the other parent;
(b)the travelling parent provide to the other parent at least twenty eight (28) days prior to departure a copy of a return airline flight, itinerary, location and contact details for the children for the duration of the travel period.
(c)such travel not to be travelling to, or transitioning through, any country listed on the Australian Government’s Smart Traveller website with “Do Not Travel” overall advice level for that country.
Passports
30.Both parents do all acts and things within twenty eight (28) days of any request to the other, to obtain an Australian passport for each of the children and equally pay one half of any costs associated with obtaining or renewing a passport.
31.The Mother retain the children’s passports, and make the passports available to the Father to enable him to obtain any visa and for the purpose of any overseas travel.
32.The father shall return the children’s passports to the Mother within seven (7) days of the children’s arrival back in Australia.
Therapeutic support
33.The father continue to attend upon Ms F as may be recommended by her to assist him with co-parenting, communication and otherwise any issues which may arise as to the operation or implementation of these orders.
Restraints
34.The mother and father, together with their servants and agents, be and are hereby restrained from enrolling the children or either of them at any child care, educational facility or extracurricular activity, or referring to the children in any documentation at such facility or activity or instructing that the children be called any name other than X or X Hanu and Y or Y Hanu.
35.The mother and father be restrained by injunction from:
(a)discussing these proceedings or the contents of any documents filed in these proceedings with or in the hearing or presence of the children or either of them, or permitting anyone else to do so; and
(b)denigrating, rebuking or speaking negatively about the other parent or each parent’s extended family and friends to or in the hearing or presence of the children or either of them, or permitting anyone else to do so.
36.The father be and is hereby restrained by injunction from consuming illicit substances and/or psychotropic medications (other than those prescribed by a medical professional) during, or within twenty four (24) hours immediately preceding any period the children spend with him pursuant to these orders.
37.That to the extent that any orders are inconsistent with any intervention order, these orders will prevail pursuant to s 68P of the Family Law Act 1975 (Cth).
38.The Independent Children’s Lawyer is hereby discharged.
NOTATIONS
A.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the fact sheet attached hereto and these particulars are included in these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Mishari & Hanu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILLIAMS J:
INTRODUCTION
The applicant is the father and the respondent is the mother of the children, X (“X”) born in 2019 and Y (“Y”) born in 2021.
They are in dispute about the allocation of parental responsibility for the children and the time the children should spend with their father. There is no dispute the children should remain living with their mother.
BACKGROUND
The father is aged 40 years and is employed as a consultant.
The mother is aged 40 years and is a professional who is currently on maternity leave.
The parties intermittently dated since 2001 and commenced a serious and committed relationship in 2017. They commenced cohabitation upon their marriage in 2018, then separated on 15 December 2019, according to the father and on 8 October 2020, according to the mother.
In 2019 their first child X was born.
In or around November and December 2019 the father “withdrew” from the marriage and commenced spending several nights a week in his property in Suburb G. In December 2019 the father travelled overseas and returned in mid-February 2020. Upon his return to Australia, the father resumed living in his Suburb G property.
According to the father, he visited X in the mother’s home on an almost daily basis. The mother contends the father stayed with her and X one or two nights a week.
In or around March 2020, at the commencement of a Covid-19 lockdown, the father began staying at a countryside property which belonged to a friend. The mother contends the father continued “living away” until July 2020 and occasionally visited X. There were disputes about the father visiting friends and family during Covid-19 lockdowns.
In June 2020 the father resumed limited contact with X when Covid-19 restrictions began to ease.
In July 2020 at a family gathering, there was an argument between the father and the maternal extended family about X’s name. Thereafter the parents commenced professional marriage counselling until around September 2020, when the mother asserts the father ceased to provide financial support for the family
In late 2020 the mother advised the father that she was pregnant with their second child.
On 25 October 2020 and 29 October 2020 X spent limited time with his father. The mother alleges the father attended her home on the latter occasion without her agreement, having done so previously on 13 October 2020 and again on 1 November 2020.
In early November 2020 the mother asserts the father let himself into her home around 9.00am using his key because the door was locked. The mother was asleep after having dropped off X at her parents’ home earlier in the morning as she was feeling unwell with morning sickness. The father entered the mother’s bedroom and made comments to the effect that he was worried about her welfare and would have to call the CAT team. She asked him to leave on multiple occasions and to return his key to her. He sat on the couch smiling and refused to leave, telling the mother there was no point calling the police. He eventually left after the mother called her brother-in-law to assist her.
After the incident in early November 2022 the mother attended the local Police Station and reported the event.
In November 2020 Victoria Police applied for and obtained an interim family violence intervention order against the father. In January 2021 the father was subsequently charged with breaches of that interim intervention order, but the charges were subsequently withdrawn.
On 20 January 2021 the father filed an Initiating Application in the Family Court of Australia.
In 2021 the second child was born. The parents were unable to agree on the baby girl’s name.
On 28 February 2021 the mother filed a Response to the father’s Initiating Application.
On 1 March 2021 interim orders were made for the children to spend time with the father as agreed by the parties and restraining the mother from naming the baby girl without the father’s consent.
Further interim orders were made on 16 March 2021 for X to spend supervised time with the father on a gradually increasing basis, the unnamed baby girl to spend time with the father at the mother’s home for up to thirty minutes and for the father to undergo hair follicle testing for illicit substances.
On 25 March 2021 orders were made for registration of the baby girl’s name as Y Hanu and restraining the parents from enrolling X at any educational or extracurricular activity under any name except X Hanu.
Between April 2021 and June 2021 the children spent time with the father supervised by H Family Services.
On 29 June 2021 orders were made for the parties to have equal shared parental responsibility for the children, specifying the parties’ communication as to the children’s care, welfare and development and for the children to spend unsupervised time with the father on a gradually increasing basis. The orders further specified that the father was not to feed Y.
On 5 July 2021 correspondence from the mother’s solicitors alleged the father fed Y and cut X’s hair.
Between 7 December 2021 and May 2022 the father engaged H Family Services to observe his time with the children.
On 15 December 2021 an Independent Children’s Lawyer was appointed by Her Honour Judge Bender and consent orders were made for time with the father to be suspended and rescheduled to special occasions.
On 27 January 2022 orders were made for the children to spend further time with the father, the appointment of Ms E as sleep consultant, restraining the parents from cutting X’s hair and for the mother to provide the father with Y’s diet and feeding schedule.
In March 2022 X was admitted to J Hospital with breathing difficulties and was thereafter referred to the L Clinic, where he was diagnosed with asthma by Dr M.
In early May 2022 the mother was interviewed by a child protection worker because of alleged disclosures of sexual abuse made by X to staff at N Day Care. The following day the mother filed an updated Notice of Child Abuse arising from X’s alleged disclosures.
In mid-May 2022 the Department of Families, Fairness and Housing (“DFFH”) attended the father’s home.
On 22 June 2022 the care diary records of N Day Care state that X disclosed “daddy smacked my back, punch my head, cut my hair and touch my peepee”.
On 24 June 2022 the mother reported X said to her “you want to see how my [penis] gets bigger? You touch it and it gets bigger. Dad told me it’s a secret. He said a monster will hurt me if I tell” and “I’m touching my [penis] to make it bigger. I can make my [penis] big. It can be big or it can be small. It hurts. Dad showed me. If you pull it”
In June 2022 the mother took X to a paediatrician, Dr O, who later referred the child to psychologist, Ms B.
In June 2022 the mother reported X’s comments to the police and the child was interviewed by the Sexual Offences and Child-Abuse Investigation Team (“SOCIT”) the same day.
In July 2022, the N Day Care care diary recorded alleged disclosures by X as follows:
Today [X] came up to me and said “daddy showed me his peepee get hard and then touched my peepee really hard”. I asked him if he was okay and he replied “no it hurt, I’m scared of daddy” I asked him if he wanted a hug and he said yes, so I hugged him.
On 11 July 2022 the mother filed a further Notice of Child Abuse, Family Violence or Risk, arising from the disclosures X made to herself and staff at N Day Care.
On 20 July 2022 orders were made for the children to spend time with the father on two occasions per week of eight hours duration together with various procedural orders.
On 21 July 2022 the parents commenced attending upon Ms F, psychologist of Q Therapy for educational co-parenting counselling, as recommended by the Independent Children’s Lawyer.
When the matter was listed before Judge Bender on 6 March 2023, agreement was unable to be reached and the matter was transferred to Division 1 of the Federal Circuit and Family Court of Australia. The trial in this Court commenced on 17 April 2023.
THE PROPOSALS OF THE PARTIES
The father’s proposal
The minute of orders proposed by the father is Annexure A to these reasons.
Documents relied upon by the father
The father relied upon the following documents:
a)Second Further Amended Initiating Application of the father filed on 27 February 2023.
b)Trial affidavit of the father filed on 13 February 2023 together with the annexures thereto.
c)Affidavit of Ms P filed 13 February 2023.
d)Affidavits of Ms R as filed in these proceedings.
e)DFFH s 67Z report dated 26 February 2021.
f)DFFH report dated 7 June 2022.
g)Outline of Case document filed by the father on 27 February 2023.
h)Documents tendered by Counsel, including documents produced pursuant to subpoena.
The mother’s proposal
The minute of orders proposed by the mother is Annexure B to these reasons.
Documents relied upon by the mother
The mother relied upon the following documents:
(a)Third Further Amended Response filed by the mother on 21 February 2023
(b)Trial affidavit filed on 21 February 2023 together with annexures therein.
(c)Affidavit of Dr D filed 2 February 2023
(d)Affidavit of Ms E, sleep consultant, filed 8 July 2022.
(e)Affidavit of Dr D filed 8 December 2021.
(f)Affidavit of Ms S filed 28 February 2023.
(g)Affidavit of Ms T filed 28 February 2023.
(h)Documents tendered by Counsel, including documents produced pursuant to subpoena.
The Independent Children’s Lawyer’s proposal
At the conclusion of the trial, Counsel for the Independent Children’s Lawyer did not provide a minute of proposed orders, nor any proposal for the father’s future time with the children.
The only proposal proffered by Counsel for the Independent Children’s lawyer was for the mother to have sole parental responsibility for health and education, subject to notification of proposed decisions to the father, and otherwise for the parents to have equal shared parental responsibility for the children.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following documents:
(a)Affidavit of Ms R filed 24 June 2021.
(b)Affidavit of Dr D filed 8 December 2021.
(c)Affidavit of Ms R filed 13 December 2021.
(d)Affidavit of Ms R filed 27 January 2022.
(e)Affidavit of Ms E filed 8 July 2022.
(f)Affidavit of Ms R filed 12 July 2022.
(g)Affidavit of Dr D filed 2 February 2023.
(h)Affidavit of Ms R filed 13 February 2023.
(i)Documents tendered by Counsel, including documents produced pursuant to subpoena.
THE APPLICABLE LAW
Evidence
The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject- matter of the proceeding; and
(c) the gravity of the matters alleged.
The father and mother relied upon their respective affidavits. The affidavits exhaustively recount the history of the parties’ relationship and various parenting disputes. I have examined that evidence and do not propose to repeat it in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial.
In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
Credibility of Witnesses
Father’s witnesses
The father gave evidence and was cross-examined by King’s Counsel for the wife and Counsel for the Independent Children’s Lawyer. The father’s initial presentation was somewhat flat and repetitive of his desire for peace with the mother. He seemed emotionally exhausted from the toll of the extensive conflict and somewhat immature in his ability to handle conflict with the mother in an appropriate manner. He attempted to answer questions in a responsive manner, although it was sometimes difficult to reconcile his answers with objective evidence. An example was his denial of use of the word c---, when the mother produced a video of him using that word. He expressed remorse for his prior conduct, including comments to the mother and seemed genuine in that regard. It was apparent he viewed the parental dynamic as incessant criticism from the mother and the harder he pushed for what he considered appropriate, the more resistance he met from the mother and her family members. I have no doubt about the sincerity of his desire for the conflict to abate and for him to have a loving and positive relationship with his children in the future. He was not truthful about some of his evidence, but did make concessions and admissions contrary to interest, for example admitting to telling the mother to “fuck off”. Generally I regard him as a truthful witness.
None of the other witnesses relied upon by the father were required for cross-examination.
The father issued subpoena to give evidence, addressed to two childcare workers from N Day Care. Ms W was in Country U and not available for cross-examination, even electronically and Ms V objected to attending Court to give evidence, citing various reasons including not wanting to be absent from her new employment. Neither witness made themselves available to the Court.
Mother’s witnesses
The mother was cross-examined by Counsel for the father and the Independent Children’s Lawyer. The mother’s evidence was at times problematic and she frequently did not directly answer questions. She initially presented as somewhat demure but as cross-examination continued she became feistier and sometimes gave non-responsive answers. An example was her response about whether she considered the father had sexually abused X. Her responses to questions were answered in the context of her somewhat myopic view of the conflict, namely she was a victim in the parental dynamic and the father was the aggressor. She attempted to exaggerate and elevate the parental conflict and the children’s behaviour subsequent to time with the father, to achieve her desired outcome of minimising time between the children and their father and to obtain an order for sole parental responsibility. She did not disclose to the Court her involvement in obtaining the report from Dr O, nor her part in arranging an appointment with Dr Z for litigation purposes, until subpoenaed documents disclosed her role. At times she appeared over focused on tailoring her answers to achieve her desired result. Despite these observations she was generally a truthful witness.
None of the other witnesses relied upon by the mother were required for cross-examination.
ICL witnesses
The only witness relied upon by the ICL who was required for cross-examination was the family report writer, psychologist, Dr D.
Dr D prepared two family reports dated 22 November 2021 and 6 January 2023. She was cross-examined by all three Counsel and gave evidence in a professional and competent manner. She sought to directly respond to many difficult questions and propositions put to her during cross-examination. I refer to her reports and evidence in greater detail later in these reasons.
The following documents were tendered during the course of the trial:
Exhibit Number
Description
A-1
Asthma plan of Dr AA dated February 2023.
A-2
Diary note of Ms BB (Maternal Child Health Nurse) dated 25 October 2019.
A-3
Child Safety Wellbeing Report on outreach visit of March 2021.
A-4
Notes of Ms CC (child maternal health nurse).
A-5
Video named “soothing and settling Y to sleep”.
A-6
Video named “X and Y in playroom/kitchen”.
A-7
Photos demonstrating Xs’ hair (46 items).
A-8
Notes of child maternal health nurse, page 91 of the fathers tender bundle.
A-9
Notes of child maternal health nurse, dated 15 September 2021.
A-10
Notes of child maternal health nurse, dated 29 July 2021.
A-11
Notes of Dr O (paediatrician), dated 5 July 2022.
A-12
Consultation notes of Dr Z (paediatrician), dated October 2021.
A-13
Notes of Dr O, dated 17 November 2022.
A-14
Therapy report of Ms DD for Ms Hanu, dated 21 August 2021 (tendered by consent).
A-15
Letter to Dr O (paediatrician) from Ms B (C Therapy), dated 21 November 2022.
A-16
SOCIT records regarding alleged unlawful assault, dated 10 March 2022.
A-17
SOCIT records regarding alleged sexual assault, dated 28 May 2022.
A-18
SOCIT records, dated 28 June 2022.
A-19
SOCIT records regarding alleged sexual assault, dated 15 July 2022.
A-20
SOCIT typed record of interview with X, dated July 2022.
A-21
SOCIT handwritten notes of interview with X, dated July 2022.
A-22
SOCIT records regarding August 2022 notification and interview with X.
A-23
N Day Care enrolment form completed by the mother for X.
A-24
Letter of EE Organisation, dated 10 February 2022.
A-25
Letter of N Day Care regarding limited access to father of parent app, dated 8 July 2022.
A-26
Video named “I love you Daddy”.
A-27
Text messages between the mother and father, dated 5 December 2021.
R-1
Text messages between the father and Ms T, dated 17-19 February 2021.
R-2
Copy of emails sent from the mother to the father on 30 October 2020 and 1 November 2020.
R-3
Video dated 6 August 2020.
R-4
Video dated 2019 of the child’s Bris.
R-5
Birth announcement for X in the news.
The legal principles applicable to parenting disputes
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles underpinning the Act. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how the Court is to determine what is in a child's best interests by reference to primary considerations (s 60CC(2)), the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence and additional considerations (s 60CC(3)) including any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make an order which would be least likely to lead to the institution of further proceedings in relation to the child and any other relevant fact or circumstance.
In applying the primary considerations, the Court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence (s 60CC(2A)).
Abuse in relation to a child is defined in s 4 of the Act and means:
(a)an assault, including a sexual assault, of the child; or
(b)a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c)causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d)serious neglect of the child.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family for causes the family member to be fearful.
In considering what order to make, s 60CG of the Act requires the Court, to the extent possible, ensure that the order does not expose a person to an unacceptable risk of family violence and enables the Court to include in the order any necessary safeguards.
I have considered all relevant sections of s 60CC(3) in reaching my decision, although I have not specifically referred to each consideration: Banks & Banks [2015] FamCAFC 36.
Primary Considerations
I will firstly address the primary considerations.
The benefit to the child of having a meaningful relationship with both of the child’s parents
In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
…The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
In Mazorski v Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
At [117] of McCall & Clark, the Full Court said:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].
The Full Court said there were differing possible approaches to s 60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:
…
(a)one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
(c)the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). In this dispute I prefer the prospective approach.
Because of the very young age of the children and the children’s lack of experience living in an intact family household, I prefer the prospective approach in this matter.
X was born in 2019, just under a year after the parties’ commencement of cohabitation. In or around November/December 2019, when X was a few months old, the father “withdrew” from the marriage and begun intermittently residing in his Suburb G property. In December 2019 the father travelled overseas for work and did not return until mid-January 2020 at which time he continued to reside in his Suburb G property. The family did not live together after X was approximately two months old.
The mother deposes that final separation occurred on 8 October 2020 whilst the father submits November 2020. Y was born in 2021, many months after the separation of her parents.
The children’s current relationship with the father has evidently developed after the family ceased living together. The future orders for the children’s time with their father will need to be crafted to promote and foster the relationship between the children and their father.
One of the significant disputes between the parents is whether the existing time between the children and their father should be reduced to enable the relationship to be maintained, as propounded by the mother, or whether the children’s time with their father should be increased in a developmentally appropriate manner, to enhance and develop their relationship, as sought by the father.
There is no dispute that the mother will continue her role as primary carer of the children and they will accordingly continue to enjoy a meaningful relationship with their mother.
The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse
Neither parent asserted that the other parent posed an unacceptable risk of harm to the children. They did however make allegations about the risk the other parent posed to the children.
The father contended the mother’s plethora of allegations against him regarding his inability to care appropriately for the children are substantially based upon the mother’s “suspicions or beliefs”, which are contrary to evidence. The allegations have been constant and oppressive and include the children not sleeping in his care, the father under feeding and overfeeding the children, failing to provide them with nutritious food, the father being the sole and unilateral cause of illness or injury, cutting the children’s hair contrary to the mothers wishes, using illicit substances, engaging in unsafe driving practices and generally not caring for the children to the satisfaction of the mother.
The father denies the mother’s allegations and contends his care of the children has always been appropriate and neither child is at risk in his care. He has adopted the recommendations of professionals, undertaking courses as recommended and his confidence and competency as a parent has increased. He has cooperated with DFFH and relevant authorities about the purported disclosures of abuse made by X. In support of his contentions he relies on the unchallenged evidence of the professional supervisors, videos of him caring for the children which are Exhibits A-5, A-6 and A-26 in addition to the insight he has acquired through his sessions with Ms F.
As to the mother’s allegations of family violence during the marriage and at separation, whilst the father agrees there was conflict between himself and the mother, he does not agree with her allegations. In November 2021 he agreed to a final intervention order without admission and there has been no substantiated allegations of breach nor charges arising from a breach of this order. The parents have not had any direct contact since separation many years ago.
From the mother’s perspective there are a number of issues which give rise to a need to protect the children from harm. These include medical care of the children, in particular management of X’s asthma, exposure to family violence, consistency in care between the parent’s homes and allegations of inappropriate conduct by the father, which culminated in X’s alleged disclosures to N Day Care workers. I will address each of these issues under the heading additional considerations, as I do not necessarily agree these issues should be categorised as giving rise to a need to protect children from harm.
Additional Considerations
The additional considerations are set out in s 60CC(3) of the Act. I will now consider the additional considerations.
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
X is three and a half years old and Y is two years old. The children are not sufficiently mature nor do they have a level of understanding to express a view.
The nature of the relationship of the child with:
(i) each of the child's parents;
(ii) other persons (including any grandparent or other relative of the child)
It was common ground that the children enjoy a loving relationship with both parents, extended families and each other.
The children were observed by Dr D, the family report writer, to “be exploring confidently and happily using the mother as a secure base to check-in via eye gaze and touch”. The mother has been and will remain the children’s primary carer.
In the second family report the children were observed by Dr D to demonstrate a strong relationship with their father. After expressing some initial resistance to seeing his father, during the observation session Dr D noted X responded positively to his father including by asking if he could stay at his home. Y “used her father in a similar fashion to how she used her mother, moving away to explore but reconnecting through eye contact and verbal exchanges and “was observed to move to [Mr Mishari] for a cuddle on several occasions”.
The reports of the Independent Supervisors obtained pursuant to court orders and thereafter by the father, describe the positive nature and extent of the children’s relationship with their father.
The children live in the household of the maternal grandparents and spend regular time with the maternal cousins, some of whom are similar in age and some of whom are older, and maternal aunts and uncles with whom they socialise a few times per week.
The children also spent significant time with their father in the company of paternal family members including the paternal great-grandmother, grandparents, aunts and uncles and cousins.
The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
to participate in making decisions about major long-term issues in relation to the child;
to spend time with the child; and
to communicate with the child
There has been significant past disagreement about major long-term issues for the children including choice of name and choice of childcare/education for the children. Educational choices for the children remains in dispute.
The father contends the mother has sought to actively undermine his desire and ability to parent and reach joint decisions for the children. He alleges the mother has continuously sought to exclude and ostracise him from parenting or being included in long-term decision-making, and when he has sought to do so, his bona fides have been questioned.
In support of his submissions he relies upon the notes of the Enhanced Maternal and Child Health Nurse (EMCHN), Ms CC of November 21, which is Exhibit A-4.That document records the mother as having advised Ms CC that the father should not see the EMCHN. He also alleges the mother has unilaterally chosen the childcare centres for the children and his ability to participate in the children’s early learning and education has been restrained by court orders. The mother has also completed enrolment forms for X at N Day Care, Exhibit A-23, which name her family members as emergency contacts for the child to the exclusion of the father and also arranged for the father to be blocked from the childcare parent’s app. The documents relied upon by the father unequivocally demonstrate the mother has sought to exclude the father from contact with the EMCHN and N Day Care. I accept the father’s contention that his participation in making decisions about major long term issues has, to some extent, been hampered by the mother’s conduct.
There was no suggestion that the mother has not been fully involved in making decisions about long term issues pertaining to the children. She clearly has done so.
The children currently live with their mother and spend regular time with their father. The father has sought to have a meaningful relationship with the children and to spend as much time as possible with them. His proposed orders seek a gradual increase in his time with them, commensurate with age and development.
The father contends he has consented to and continued with supervised time, despite his view that supervision is not required. He submits he has demonstrated flexibility with respect to time arrangements and has been amenable to expert parenting advice. During periods when he has been overseas he has communicated with the children.
The final orders sought by the mother provide for limited future time between the children and their father.
Parental obligation to maintain the child
The child support assessment for the children requires the father to pay $9 per day for the benefit of both children. According to the mother his reported taxable income is around $36,000 per annum, but she understands his income is actually around $100,000 and receives numerous other benefits such as international travel.
The father does not contribute to the costs of the children’s childcare nor the medical appointments or treatments, beyond providing private health insurance for the children.
Because of the low child support assessment the parents agreed the father would provide the mother with the use of the family motor vehicle, Motor Vehicle 1. The father agreed to pay for the registration, insurance and other expenses of the vehicle to ensure it was maintained to a safe standard. The parental dispute about repair of the vehicles brakes is referred to later in these reasons.
The mother meets the childcare costs of the children and the cost of their care in her household and the father otherwise meets the cost of the children when they are spending time with him. Apart from the dispute about the cost of repairs to the vehicle, this was not a seminal issue in dispute in the proceedings.
The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents
The children will remain living with their mother in her household and will spend time with their father. The father correctly acknowledges the children’s primary attachment is to their mother. The children currently spend time with their father on two occasions per week in accordance with the orders of 20 July 2022.
The father seeks orders for significant and substantial time with the children, to increase in graduated increments which are commensurate with the children’s ages and stages of development, including an immediate progression to overnight time.
On the other hand the mother seeks a reduction in current weekly time, in accordance with the recommendations of the family report. The mother concedes that young children generally benefit from regular periods of contact with their non-residential parent. She submits that Y’s connection to her father is secure and a reduction in her time to once weekly is not likely to have any significant impact on her, or indeed on X, other than purporting it will maintain the children’s relationship with their father.
The mother is opposed to the commencement of overnight time between the children and the father and considers it will be a change in the children’s circumstances which will require significant adjustment. She contends the father does not ensure the children sleep in accordance with their schedules and that Y repeatedly wakes during the night and requires breastfeeding to settle.
Notwithstanding her opposition, the mother agrees overnight time should progress in accordance with Dr D’s recommendations because that time would only occur once per month and for not more than one consecutive night until 2024.
The practical difficulty and expense of a child spending time with and communicating with a parent and whether that the difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Both parents live within a short distance of each other and there was no identified practical difficulty or expense which would affect the children’s right to maintain a relationship and contact with their father on a regular basis.
To the credit of the maternal family and in particular the maternal grandmother, she has in the past facilitated change over at the children’s home and those arrangements were proposed by the mother for future change over.
The capacity of each of the child’s parents to provide for the child’s needs, including his emotional and intellectual needs and
The attitude to the children, and to the responsibilities of parenthood, demonstrated by each and any other person (including any grandparent or other relative of the child)
The mother has been the children’s primary caregiver since birth and has attended to their needs, including seeking out and following professional advice and engaging X with a counsellor, Ms B.
During the observation session for the second family report Dr D observed the mother as attuned, warm, calm and capable of balancing the needs of the children in a practised manner, which was consistent with her previous assessment. I do not have concerns about the mother’s capacity to provide for the children’s needs, other than her obvious desire to minimise the children’s time with their father and further align them with her beliefs, as is evident from her final proposals.
The mother contends the father has demonstrated a propensity for ignoring the needs of the children when they do not align with his own views or plans for the day, such as not putting the children to sleep when his preference is to take them out for activities and refusing to comply with the mother’s directives for administration of medication.
The father contends each parent has the capacity to attend to the needs of the children including their emotional and intellectual needs. He acknowledges the mother has been substantially compliant with providing the children to spend time with him including when they have been unwell. That has enabled the father to attend to the children’s medical needs and to demonstrate to the children that both parents are able to care for them, even when unwell and to provide emotional and physical comfort.
The father disputes the mother’s contentions about his lack of parental capacity and relies upon the supervision reports, obtained both pursuant to court order and privately by the father, which demonstrate the children are happy, content and safe in his care, albeit each parent has a different parenting style.
According to the father he has accepted professional advice and implemented routines for the children consistent with that advice, contrary to assertions of the mother. He has attended upon medical and allied health professionals, including appointments with X’s counsellor and has completed recommended courses to enhance his parenting skills.
The father contended his capacity to adequately engage with the children’s care providers has been negatively impacted by their alliance with the mother, demonstrated by the comments of Ms FF to Dr D and the receipt of a letter from the EE Organisation, Exhibit A-24, which refers to his alleged family violence as ongoing. I accept the father would encounter difficulties engaging with staff at N Day Care, both after X’s alleged disclosures and the staff’s apparent acceptance of the mother’s family violence narrative.
After observing and listening to the evidence of both parents during the course of the trial, it is obvious both have an unwavering love for their children and want to do the best possible by them. I am satisfied each parent has the capacity to provide for the children’s needs, despite the mother’s criticism of the father. It is also obvious each parent has a different parenting style and the constant tug of war of the litigation has contributed to the mother’s lack of confidence in the father’s parental capacity. In reaching my conclusion about the father’s parental capacity I have also had regard to the unchallenged supervisor reports of Ms GG which show an unremarkable and harmonious interaction between the children and their father and Exhibits A-5 and A-26 which demonstrate he has appropriate capacity to soothe and manage the children’s sleep. I am aware the videos only depict a moment in time; but I accept the father has adequate parenting skills. Dr D’s observations during the assessment for the second report of the children’s interaction with their father were relatively positive. She observed that he engaged [X] with the toys he’d brought as well as others [X] seemed to like from the pretend play box in the clinic room and [X] appeared content playing with [Mr Mishari]. She recorded [Y] used her father in a similar fashion to how she used her mother, moving away to explore but reconnecting through eye contact and verbal exchanges. [Y] was observed to move to [Mr Mishari] for a cuddle on several occasions, to which [Mr Mishari] responded affectionately.
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 is relevant
The mother is a practising and involved member of the Jewish community,. She and her family are involved in the Jewish community and according to her, love and support all members of her family irrespective of their degree of religious observance.
The mother is critical of the father’s position about Judaism, which she perceives has changed during the litigation. She accuses the father of attempting to minimise the “Jewishness” of the children and to remove the children from their ability to practice their faith. She relies on comments by the father to Dr D in the first family report minimising his family’s connection to Judaism and describing his parents as “Jewish friendly”. He also described himself in the first family report as “raised in the [Jewish] community but maintains a secular lifestyle”. To the contrary, in his trial affidavit affirmed in February 2023 he deposes to his “strong connection with my Jewish culture and identity” and that he celebrates religious days.
In the second family report the father raised Santa and making gingerbread houses and was observed by Dr D to talk about Christmas rituals with X. He reported to Dr D that “we do both” inferring both December celebrations, which he did not depose to in his trial affidavit.
The mother contends the father’s change in religious connection, identification and celebration is duplicitous as he has expressed a significant distaste for and distrust of the maternal family and their religion. The mother relies on his statements to Dr D in the first family report when he described the mother’s family “like the Amish, like a cult,” the maternal grandfather and aunt as “militant Jews”, and the maternal aunt “as an extremely [religious] woman.[...] He also advised Dr D he was fighting the “[...] mother’s family” and he “never wanted [X] to have a name that was readily identified as Jewish and that it should be up to [X] to disclose being Jewish if he so wished”.
Dr D noted in the first family report the father “made other comments about negative connotations with […], noting that this was not his history and not a history he wanted to impose on [X]”.
It is evident the practice of Judaism and adherence to cultural celebrations and traditions is an important feature of life in the mother’s home and involvement in culture traditions and the religious heritage is something the children should be entitled to enjoy.
The mother interprets the father’s comments referred to in previous paragraphs and his attitude as deliberately and systematically launching a campaign against her culture, her right, and the children’s right to be practising members of her religious community. She is sceptical about the bona fides of the father’s assertions that he wishes to share religious holy days with the children and regards that statement is an attempt to prevent the mother enjoying holidays with the children.
For the reasons referred to in the previous paragraph the mother seeks specific orders in relation to particular religious holidays which she wishes to celebrate with the children, and in return proposes the children’s spend Christmas with their father, which he has advised Dr D he wishes to do.
According to the father, the children are of Jewish heritage on both the maternal and paternal sides of their extended families. Because of that heritage the children will be afforded cultural offerings and traditions of both parents. Despite the mother’s criticisms of the father and his religious practices, or lack thereof, the father embraces his religious culture and faith, although individual choices regarding traditional observances differ between the mother and the father.
He submits that one parents view is not superior to the other and the children should be exposed to the differential practices of Judaism in each parent’s household. They have a right to experience religious celebration with both parents and that should be reflected in the orders for the children to spend time with him.
The father seeks to share in cultural and religious days of significance, as does the mother. Orders providing for that to occur will enable the children to engage in family gatherings and celebrations of both the paternal and maternal families.
Whilst I am cognisant of the mother’s attitude about how she celebrates her religion and her criticisms of the father, this is a secular court which cannot and should not prefer one religion, or one parent’s religious practices over those of the other parent: see in In the marriage of Pasio (1978) 26 ALR 132 [134]:
“An Australian court, cannot commence with any premise that as a matter of public policy one religion is to be preferred to another or that a religious upbringing is to be preferred to a non-religious one.”
In my discussion of what orders are in the children’s best interests, I have referred to why I consider the children’s time with their father should occur on both Saturday and Sundays, to enable them to experience the celebration of Shabbat in both households.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
During the litigation the mother expressed concerns about the father’s drug use. As a result the father undertook a hair follicle test for illicit substances. The results of the test, which are negative for illicit substances are dated May and December 2021, and are annexed to the father’s trial affidavit.
The mother was cross-examined about this and described the father’s drug use as historical. She also referred to the father having shaved his head and body and then having to wait a couple of months for hair to grow prior to undertaking the tests. She conceded that she had the benefit of three clean drug tests and was glad the tests were negative. She did not assert that the children were at an unacceptable risk of harm in the father’s care arising from alleged drug use and that was apparent from her Kings Counsel’s opening address.
I have otherwise considered the parental attitude to the child and the responsibilities of parenthood in my discussion of parental capacity, as there is considerable commonality in these two considerations.
Any family violence involving the child or a member of the child’s family and relevant inferences that can be drawn
Throughout the trial the mother went to great lengths to emphasise family violence which she alleges the father has perpetrated on her. These allegations include: -
(1)Controlling her food intake during pregnancy;
(2)Denigrating and disparaging comments about the mother following X’s birth, including comments that “any 16-year-old from [Suburb HH] can have a baby, it’s not a big deal” and “any chick with a tit can feed this baby”;
(3)In July 2020 swearing in the presence of the child and calling the mother an “evil conniving witch”;
(4)In March and April 2021 making comments in relation to X’s food, diet and his love of sugar;
(5)The father’s comments to Dr D which denigrated the mother’s family and her faith; and
(6)The father’s comments to the DHHS workers during interviews conducted for the s 67Z report dated 26 February 2021.
The father was cross-examined about most of these allegations. He attempted to justify the remarks about having a baby and breastfeeding as comments to encourage the mother when she was experiencing some challenges after becoming a first time mother. He was also challenged about his denigration of the mother, as deposed by her sister Ms S. He sought to justify many of the comments as wanting to engage in discussion whereby the context of the exchange was not apparent from Ms S’s affidavit. He denied he used the word “cunt”, referred to in paragraph 12.3 of the affidavit, despite admitting to calling the mother an “evil witch”. Subsequently Kings Counsel for the wife played a video to the court, Exhibit R-3 which depicted the father in the living room of the mother’s apartment and referring to the maternal family as “cunts” on two occasions. He also admitted to telling the mother to “fuck off”. During cross-examination he expressed regret and apologised for his conduct, saying it was said in anger during a very stressful time following X’s birth and around the separation.
He also conceded he had made allegations about Ms S in an application for an intervention order against her. When questioned why allegations about Ms S’s behaviour towards her children was relevant in an application to allegedly protect himself, he said he also sought to protect his children from her and did not want his children to be exposed to her violent practices.
The father denied his application for an intervention order against the wife’s family members arose from a desire to make life difficult for the maternal family.
The mother asserts the father has been rude to the maternal grandmother at changeover on occasions, although the maternal grandmother is still prepared to effect change over at her home.
In November 2020 the mother obtained an intervention order against the father naming X as an affected person. The events giving rise to the intervention order occurred on 1 November 2020 when the father let himself into the mother’s home around 9.00am using a key. This incident is referred to under the heading Background. The father was initially charged with breaches of the order by communicating with the mother on the night he was served with the intervention order and failing to return her key, which were ultimately not pursued by the police.
The father was cross-examined about the events of that day. He agreed he let himself into the mother’s apartment with his key and started to film her when he let himself into her apartment. He agreed he had suggested the CAT team should be called because he saw vomit and blood and thought the mother needed help. The mother’s evidence was that she had morning sickness while she was pregnant with Y and was trying to sleep whilst X was being cared for by her relatives. He also agreed that she asked him to leave multiple times and he sat on the couch and refused to leave. He categorised the discussions with the mother as a conversation about her health and the children and he left when the mother called a relative, Mr JJ, before he turned up at the apartment.
According to the father he had previously let himself into the mother’s apartment on numerous occasions and had even brought coffee for her. He had a fob key to enable himself to do so. The mother produced emails dated 30 October 2020 and 1 November 2020 from her to the father (Exhibit R-2) which demonstrate the father was on clear notice that he was not welcome at the mother’s apartment. He agreed any suggestion that he had been invited to attend the mother’s apartment was directly inconsistent with the emails. He did not agree that the mother might perceive his actions as bullying, although he agreed that on the night after he was served with the intervention order he called the mother and did not return the key to her.
The mother also relies upon the father’s text message to her about Munchhausen by proxy in the context of an exchange of text messages about X’s asthma and the ongoing communication difficulties about the children’s health in January 2023. This is in addition to the father’s concerns about the mother’s mental health expressed to Dr D, which she opines may be a strategy of emotionally abusive men and the s 67Z report of 26 February 2021 which effectively recounts the mother’s complaints about the father.
According to the mother in her Case Outline document the father’s general attitude towards her and his disregard for the terms of the intervention order warrant a finding that the children should be protected from ongoing exposure to family violence, particularly in circumstances where the child is a protected person.
I accept the father acted in the manner as alleged by the mother, in particular the events of 1 November 2020, and that his actions amount to family violence. I do so because of the father’s own admissions of his conduct and the video evidence relied upon by the mother .The comments to the mother subsequent to X’s birth were reprehensible and offensive and cannot be construed as an attempt to encourage the mother in a difficult time immediately following the child’s birth .The serious incidents occurred following separation and what must have been a tumultuous time for the couple amid separation and Y’s birth.
Other than the telephone call to the mother on the night the father was served with the intervention order and his failure to return the mother’s key (for whatever reason), there have been no further allegations of similar incidents between the parents. It also seems that the heat and volatility between the father and the maternal family has abated, as changeover occurs at their home with the assistance of family members, in particular the maternal grandmother.
The father has had a lengthy opportunity to reflect on his unacceptable and offensive conduct. He expressed remorse during cross-examination and has obtained professional assistance from Ms F which he says has provided him with insight about his conduct and previous interactions with the maternal family.
I am cognisant the intervention order will expire in November 2023 and that both the mother and X are protected persons. The intervention order was made by consent without admission and apart from an attempt to charge the father with a breach because of his contact with the mother on the night he was served and failure to return her key, which was subsequently withdrawn, there have not been any breaches of the intervention order since it was made in November 2020.
I do not accept the mother’s contention that the father’s current attitude warrants a finding that the children should be protected in the future from the father’s conduct. I have also had regard to the mother’s attitude to the court about X’s alleged disclosures and there was no suggestion by her a further intervention order is warranted to protect X from the father in that regard. The submission that the children require orders to protect them from historical conduct of the father, in the context of the mother’s attitude towards later alleged disclosures, does not sit comfortably.
I accept the father’s remorse is genuine and his evidence of insight gained during his many sessions with Ms F. The father proposes the parties continue to consult Ms F in the future, and although I do not propose to make such an order in the face of opposition from the mother, I am confident the father will continue to obtain her assistance and indeed will make an order requiring him to do so, and continue to attend upon her in accordance with Ms F’s recommendations.
I also have regard to the mutual restraints proposed by the parties which include non-denigration orders, restraints on discussing the proceedings or the contents of any documents in the hearing or presence of the children, and am confident compliance with those restraints will protect the children from any denigration of their mother or maternal family members and vice versa, in respect to the paternal family.
I will now turn to X’s alleged disclosures.
Involvement with child protection and the police arising from X’s alleged disclosures
The mother’s evidence about the involvement of child protection is found at paragraphs 127 to 140 of her trial affidavit. Despite that evidence, Kings Counsel for the mother in his opening emphasised the mother did not assert the father posed an unacceptable risk to either child and her final proposal was for the children to spend unsupervised time with their father, including limited overnight time. Any suggestion that the father poses an unacceptable risk to the children is inherently contrary to the mother’s final proposal for the children’s time with their father.
X commenced childcare at N Day Care when he was around 16 months old and concluded at the end of 2022.
Between 16 February 2022 and 2 May 2022 Ms V, one of the workers at N Day Care, made notes in the observation book and app about comments made by X whilst at childcare. She was subpoenaed to attend the trial, but by that time she had left N Day Care and had a new job. She repeatedly objected to appearing at court and ultimately did not give evidence nor was she cross-examined at the trial.
At an interim hearing on 27 January 2022, Ms V gave evidence, along with another N Day Care staff member, who by the time of the trial was living in Country U and did not give evidence at the trial.
Annexure W-12 to the mother’s trial affidavit is a copy of a selection of entries from the N Day Care observation book for X in February 2022 and March 2022. Annexure W-13 are screenshots taken by the mother of the parent communication app used by N Day Care from 18 March 2022 to 2 May 2022. X’s comments include, amongst other things the following alleged statements;
· On 16 February 2022 - “Daddy cut my hair yesterday… he hold my arms and cut it, daddy said he will do it again, it was ouchy”;
· On 28 February 2022 - “Daddy smacked me”;
· On 2 March 2022 - “Daddy scratched me”;
· On 1 April - “Daddy cut my hair, and [Y’s], and smacked me too”;
· On 21 April 2022“Daddy put his hands around my neck tight, it hurt”;
· On 27 April 2022 - “Daddy said he is going to take me on a plane and said I’m never coming home”;
· On 29 April 2022 - “Daddy gave me wine because I wasn’t sleeping. It was red and yucky and it hurt my tummy”
10.In the event that either party travels overseas with the children in accordance with paragraph 28 herein each parent is at liberty to contact the children on two occasions via FaceTime with the each parent to facilitate such calls with the non- travelling parent to initiate such calls to a device or number nominated by the travelling parent.
11.That the children are at liberty to contact either parent in accordance with their specific wishes, with each parent to facilitate such communications.
12.That for the purpose of communication between the parents as to the implementation and operation of these orders such communications are to be undertaken in writing and via the SMS and/or email save for in the case of an emergency and in those circumstances only, each parent is permitted to telephone the other.
13.That each parent must keep the other advised as to any changes to their residential address, landline and mobile telephone numbers, and email addresses, and notify the other of any change to such details within 24 hours of such change.
Changeover
14.All changeovers which occur on a crèche/childcare, kindergarten or school attendance day are to occur at the child’s education facility.
15.All other changeovers at to occur wherein the Mother is to deliver the children to the Father at his residence at the commencement of his time and the Father is to deliver the children to the Mother’s residence at the conclusion of his time, or such other location as may be agreed to the parties in writing.
Children’s health and wellbeing
16.That each parent, together with the child X, continue attend upon Ms B, Psychologist, or such other psychologist in the employ of C Therapy as may be nominated by her for therapeutic counselling and psychological support for X as may be recommended.
17.That for the purpose of attending upon Ms B or her nominee:-
(a)The parents must each facilitate X’s attendance as recommended by Ms B;
(b)The parents must personally attend for sessions as recommended by Ms B;
(c)The parents must participate in sessions with X or other parent as recommended by Ms B;
(d)Follow all reasonable directions of Ms B in promoting a relationship between each parent and X and otherwise improving their co-parenting of X with the X to be supported in transitioning between each parent’s home.
(e)Each parent is to pay the costs of any individual session or their sessions with the child and any joint sessions or sessions with the child alone are to be paid by the parents equally.
(f)That both parents are to ensure the X’s ongoing attendance at C Therpay (sic) and are mutually restrained from taking the X to any other mental health practitioner unless recommended by Ms B or by written agreement between the parents.
18.That both parties will keep the other advised as to:-
(a)The name and address of any health professionals of the children; and
(b)Any medication prescribed for the children, and required by the children during the other parents time period, with any such mediation to be provided by way of exchange at changeover; and
(c)Except in an emergency, or in the case of the need for urgent treatment, advise the other in advance of any medical appointments for the children
(d)Authorise and direct any and all health and allied health professionals to provide any information to either party as requested by them that parents might normally be entitled to receive from time to time;
(e)Each party is at liberty to individually attend upon health and allied health professionals.
19.That the Mother and Father each advise the other as soon as practicable and within upon becoming aware of:-
(a)any significant injury or illness affecting the children or either of them;
(b)any required referral upon a medical specialist including details of such referral;
(c)any illness requiring the provision of any medication prescribed by a Medical Practitioner; and
(d)any hospital attendance or proposed hospital attendance by the children or either of them.
Educational and extracurricular activities
20.That not less than 12 months before each of the children are due to commence primary schooling, the parties are to undertake mediation to discuss their respective proposals for the children’s primary schooling. For the purpose of such mediation:-
(a)The Father is to nominate three proposed mediators to which the Mother is to select one;
(b)Each party is to undertake their due diligence as to their proposed schools and 14 days prior to such mediation they are to provide to the other a list of their options together with a brief overview of their submissions with respect to each school; and
(c)The parties shall each pay one half of the mediator’s fee.
21.That the parties do all things necessary to authorise each other and keep each other authorised to receive information at their respective expense copies of childcare/educational facility/school reports, newsletters, school photographs and all such other information that would normally be received by a parent from any childcare, kindergarten, school or before/after school provider.
22.Both parents and their respective extended families are be permitted to attend the child’s crèche/childcare, kindergarten, school or extra-curricular activity providers for sports days, concerts, parent/teacher interviews, first day of term and otherwise usual activities affiliated with the crèche, childcare, kindergarten, school or extra-curricular activity providers to which parents/family are invited or welcomed to attend.
23.That both parents will keep the other advised as to any school absence days for the children including the reason for such absence.
24.Both parents are permitted to each have access to all communication portals operated by any childcare, kindergarten or school, subject to any formal school policy.
Travel
25.Both parties are at liberty to travel interstate with the children provided that such travel is undertaken during their respective live with/spend times periods pursuant to these orders and the other parent is advised of travel dates, location and contact details for the children for the duration of such travel.
26.That upon the commencement of holiday time in accordance with 5(g) herein both parties are at liberty to travel overseas with the children provided that:-
(a)Such travel is undertaken during their respective time with periods or such other time with the express written agreement of the other parent;
(b)That the travelling parent provided to the other parent a copy of a return airline flight, itinerary, location and contact details for the children for the duration of the travel period.
27.That both parties do all acts and things within 28 days of any request to the other to obtain an Australian passport for each of the children and equally pay one half of any costs associated with obtaining or renewing a passport.
28.That the Mother retain the passport in her possession, save that she is to make passports available to the Father to enable him to obtain any visa and for the purpose of any overseas travel. The children’s passports are to be returned to the Mother within 7 days of the children’s arrival back in Australia.
Restraints
29.The Mother and Father, together with their servants and agents, be and are hereby restrained from enrolling the children or either of them at any childcare, educational facility or extracurricular activity, or referring to the children in any documentation at such facility or activity or instructing that the children be called any name other than X or X Hanu and Y or Y Hanu.
30.Save as is necessary for the parents to explain these orders without admitting the necessity for same, the Mother and Father and their agents be restrained by injunction from:
(a)Discussing these proceedings or the contents of any documents filed in these proceedings with or in the hearing or presence of the children or either of them; and
(b)Denigrating, rebuking or speaking negatively about the other parent or each parent’s extended family to or in the hearing or presence of the children or either of them.
Further orders
31.Both parents will facilitate the children transitioning to the other parent’s home with any comfort items with such items to be returned with the children at changeover.
32.That the parents continue to attend upon Ms F as may be recommended by her to assist them with their co-parenting and communication and otherwise any issues which may arise as to the operation or implementation of these orders.
33.That to the extent that any orders are inconsistent with any intervention order, these orders will prevail pursuant to section 68P of the Family Law Act 1975.
34.Each party may supply a copy of these orders to the children’s schools, carers and treating health and allied health professionals.
35.The Independent Children’s Lawyer is hereby discharged.
NOTATIONS
B.Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
C.The Father does not consent to the child X being called or referred to by [his religious name] or the child Y being called or referred to [by her religious name] and seeks the Mother’s encouragement that the children be referred to by their Christian names.
ANNEXURE B
1.All previous parenting orders be discharged.
Parental responsibility
2.The mother have sole parental responsibility for the children X HANU born on … 2019 (“X”) and Y HANU born on … 2021 (“Y”) (collectively, “the children”).
3.For the purposes of order 2 hereof before any such long term decisions are made in respect of the children or either of them:
(a)the mother advise the father in writing (via SMS, email or OurFamilyWizard) of her proposal relating to the children or either of them;
(b)if the father wishes to comment on the mother’s proposal (or has any alternative proposal he wishes to make relating to the children or either of them) he, within seven (7) days after the date of the mother’s correspondence, advise the mother by one reply (in the manner of correspondence sent by the mother) of his views;
(c)upon receipt of any comment or proposal by the father, the mother give due consideration to his views;
(d)after the mother has considered the father’s comments, she may make a decision and advise the father in writing of the outcome immediately after making that decision; and
(e)if the father does not respond in writing as provided for in order 3(b) hereof, the mother be entitled to presume that the father does not wish to be involved and she may decide the issue.
Living arrangements
4.The children live with the mother.
5.The children spend time with the father as follows:
(a)in 2023:
(i)each Sunday from 9.30am until 5.00pm, with such time to be extended to commence at 5.00pm on Saturday on the first weekend of each calendar month.
(b)as and from 2024:
(i)each Sunday from 9.30am until 5.00pm, with such time to be extended to commence at 5.00pm on Saturday on the first weekend of each calendar month;
(ii)for a two-night block during the April, June and September school term holiday periods, at times to be agreed and failing agreement on the second week of the school holiday periods from 5.00pm on Tuesday until 5.00pm on Thursday PROVIDED ALWAYS THAT such time does not interfere with the special occasions pursuant to order 6 below;
(iii)for a two-night block during the long summer school holidays commencing in 2024/2025 at times to be agreed and failing agreement on the third week of the school holiday period from 5.00pm on Tuesday until 5.00pm on Thursday PROVIDED ALWAYS THAT such time does not interfere with the special occasions pursuant to order 6 below.
(c)at such further or other times as may be agreed between the parties from time to time.
Special occasions
6.Notwithstanding order 4 and 5 hereof, the children spend time with each of the parties on the following special occasions:
(a)on X’s birthday (…) and Y’s birthday (…) with the father from 3.00pm until 6.00pm, if he is not otherwise due to spend time with the children; and
(b)on the father’s birthday (…), if the children are not otherwise spending time with the father:
(i)from 3.00pm until 6.00pm if a weekday; and
(ii)from 11.00am until 3.00pm if a weekend;
(c)on the mother’s birthday (…), should the mother’s birthday fall on the first weekend of [the month] during which the children are to spend time with the father pursuant to orders 5(a) or 5(b)(i), then the father’s time for that weekend be suspended and occur on the previous weekend in lieu;
(d)on Mother’s Day weekend, the father’s time pursuant to orders 5(a) and 5(b)(i) be suspended and occur on the Saturday preceding Mother’s Day in lieu NOTING THAT Mother’s Day is the second weekend of May; and
(e)on the Father’s Day weekend from 5:00pm on Saturday to 5:00pm on Sunday NOTING THAT Father’s Day occurs on the first weekend of September;
(f)on the following religious holidays in each year, with the mother:
(i)for Purim, on 4.00pm on the day prior to Purim until 9.00am on the day after Purim;
(ii)for Pesach (Passover):
A.with the mother from 4.00pm on the eve of the first day of Pesach until 9.00am on the third day (and for this purposes the Father’s time pursuant to order 5 be suspended);
B.with the mother from 4.00pm on the sixth day of Pesach until 9.00am on the morning after the eighth day of Pesach;
C.should the middle days of the Pesach celebrations (other than the days referred to above) fall over the first weekend of the calendar month, then the father’s time pursuant to orders 5(a) or 5(b)(i) be suspended and occur on the previous weekend in lieu;
D.should the middle days of the Pesach celebrations (other than the days referred to above) fall over any other weekend during which the children are to be in the father’s care pursuant to orders 5(a) or 5(b)(i), then such time continue as though the Pesach celebrations do not intervene;
(iii)during Rosh Hashanah, for the duration of the weekend from 4.00pm on the eve of the first day until 9.00am on the day following the second day of Rosh Hashanah;
(iv)during Shavuot, from 4.00pm on the eve of Shavuot until 9.00am three days later;
(v)during Yom HaAtzma’ut, from 4.00pm on the eve of Yom HaAtzma’ut until 9.00am on the day following Yom HaAtzma’ut:
(vi)during Yom Kipper, for the duration from 1.00pm on the eve of Yom Kipper until 9.00am on the day following Yom Kipper;
(vii)during Sukkot:
A.with the mother from 4.00pm on the eve of the first day of Sukkot until 9.00am on the third day (and for this purposes the Father’s time pursuant to order 5 be suspended);
(viii)during Shemini Atzeret/Simchat Torah:
A.with the mother from 4.00pm on the eve of Shemini Atzeret/Simchat Torah until 9.00am on the day following Shemini Atzeret/Simchat Torah;
(g)at Christmas, with the father:
(i)in even years, from 9.30am until 2.00pm on Christmas Day; and
(ii)in odd years, from 12.30pm until 6.00pm on Christmas Day;
(h)at such further or other times as may be agreed between the parties from time to time.
7.The parties facilitate the children’s favourite sleep toys or other comfort items as may be recommended by the mother to accompany the children into and from the father’s care, including but not limited to X’s toys, and the father ensure that such items are returned to the mother at the conclusion of such time.
Changeover
8.For the purposes of changeover unless otherwise agreed:
(a)the father or his nominee collect the children from the mother’s residence (facilitated by either the mother personally or her nominee) at the commencement of the children’s time with him; and
(b)the father or his nominee return the children to the mother’s residence (facilitated by either the mother personally or her nominee) at the conclusion of the children’s time with him.
Communication
9.The parties be permitted to communicate directly via SMS, or if not practicable, via email, on matters pertaining to the operation of these orders and issues relating to X and Y’s care, welfare and development.
10.The children communicate with the father via telephone, FaceTime or like communication at all times as may be reasonably requested by them or otherwise as agreed between the parties.
11.If the father is required to travel overseas for work for a period of more than seven (7) days or the mother is travelling with the children in accordance with order 22 hereof, then the children’s time with the father pursuant to these orders be suspended during that period and in lieu of that time, the children communicate with the father by FaceTime or like communication from 5.00pm (local time per the time zone in which the children are present) each Tuesday and Thursday evening for the duration of travel.
Schooling
12.Provided always mother be at liberty to enrol the children in and facilitate their attendance at:
(a)QQ School for kindergarten and primary school) for X;
(b)N Day Care for day care in relation to Y; and
(c)RR School for kindergarten and primary school in relation to Y.
13.The mother do all such acts and things as may be required to ensure that the father:
(a)have liberty to liaise with any childcare, school or extracurricular activity as may be attended by the children or either of them in respect of their enrolment and progress;
(b)be at liberty to receive any newsletters, photograph order forms, school reports or other communications that parents ordinarily receive from any childcare, school or extracurricular activity attended by the children or either of them;
(c)has liberty to receive any information as may be requested by him to which parents are normally entitled to receive from time to time.
14.Each of the parties are permitted to attend all day care, kindergarten, school and extracurricular events to which parents would ordinarily be invited, including but not limited to concerts, assemblies and parent-teacher interviews.
15.The mother be permitted to serve a sealed copy of these orders on all day care, kindergarten, schooling or extracurricular activities attended by the children or either of them.
Medical and health matters
16.Both parties forthwith:
(a)advise and keep the other advised as to the name and address of any health professionals attended by the children or either of them;
(b)except in the case of an emergency or the need for urgent treatment, advise the other in advance of any medical appointments and the purpose of such appointments; and
(c)authorise and direct all medical and allied health professionals upon which the children or either of them attend from time to time to provide any information to either party as may be requested by them which parents are normally entitled to receive from time to time.
17.The mother and father each advise the other in writing (via SMS), or in the case of an emergency via telephone, upon becoming aware of:
(a)any significant injury or illness affecting the children or either of them;
(b)any illness requiring the provision of any medication prescribed by a medical practitioner; or
(c)any hospital attendance by the children or either of them.
18.The father follow all reasonable and lawful directions and advice, and administer all prescribed recommendations in accordance with the prescription, as may be recommended for treatment of the children or either of them by their medical and allied health professionals, including such recommendations as may be conveyed to him by the mother, including but not limited to all treatment plans, recommendations and administration of prescribed medications in respect of the children’s asthma.
19.The mother be permitted to serve a sealed copy of these orders on all medical and allied health professionals attended by the children or either of them.
20.The parties do all such acts and things as may be required to ensure that X continues to attend on Ms B, at such times and on such days as may be directed by Ms B.
21.The mother be permitted to provide a copy of the following documents to Ms B or such other counsellor, psychologist or like health professional that X, Y and/or the mother may attend upon from time to time:
(a)a sealed copy of these orders;
(b)copies of Dr D’s family reports dated 22 November 2021 and 6 January 2023; and
(c)a copy of Ms E’s sleep report prepared in April 2022 (including the addendum to the report).
Travel
22.The mother be permitted to travel interstate and/or overseas with the children PROVIDED ALWAYS THAT:
(a)such travel does not interfere with the father’s special occasion time pursuant to order 6 hereof;
(b)the mother facilitate FaceTime or telephone communication between the father and the children in accordance with order 11 hereof;
(c)in respect of interstate travel:
(i)such travel not to exceed fourteen (14) days;
(ii)such travel not to interfere with the father’s extended weekend with the children in accordance with orders 5(a) and 5(b)(i) hereof;
(iii)the mother to provide the father not less than seven days’ notice in writing of her travel, including details of destination, contact information and return; and
(iv)such travel to occur no more than twice per calendar year SAVE THAT in the event the father is travelling overseas for work or holiday purposes, the mother be at liberty to undertake further interstate travel (such travel not to be considered as one of the two permissible occasions per year) provided always that she complies with the orders for FaceTime in accordance with order 11 hereof;
(d)in respect of international travel:
(i)such travel not to exceed twenty-one (21) days;
(ii)the mother be at liberty to suspend one period of the father’s extended time with the children in accordance with orders 5(a) and 5(b)(i) hereof and for this purpose, she provide the father not less than 30 days’ notice of her intention to travel, including details of destination, contact information and return;
(iii)such travel to occur no more than once per calendar year; and
(iv)such travel not to be travelling to or transitioning through any country listed on the Australian Government’s website with “Do Not Travel” overall advice level for that country.
23.The father be at liberty to travel with the children within the State of Victoria during his time with the children in accordance with order 5(b)(ii) hereof provided always that he provide the mother with details of location, accommodation and contact details at least seven (7) days prior to his departure.
Passport
24.The mother be permitted to apply for, obtain and renew an Australian passport for X and/or Y notwithstanding the consent of the father has not been obtained.
25.The passports for X and/or Y to be held by the mother
Contact information
26.Each party to keep the other advised as to any changes to their residential address, mobile telephone number and/or email address, and notify the other within 48 hours of any actual or anticipated change.
Injunctions
27.While driving with the children as passengers in a motor vehicle, the father be and is hereby restrained by injunction from using his mobile telephone or other electronic device, for any purpose, including but not limited to recording the children and making phone calls or messaging (including using hands-free functions).
28.The father be and is hereby restrained by injunction from cutting, or allowing any other person to cut, either child’s hair or from piercing or allowing any other to pierce either child.
29.The father be and is hereby restrained by injunction from consuming illicit substances and/or psychotropic prescription medications (other than as directed by a medical professional) during, or within the 24 hours immediately preceding, any period that the children or either of them spend with him pursuant to these orders.
30.Each of the parties be and are hereby restrained by injunction from:
(a)denigrating the other, or members of the other parties’ family and/or friends, to or in the presence and/or hearing of the children or either of them;
(b)discussing family law or family violence matters to or in the presence and/or hearing of the children or either of them;
(c)or from allowing any other person to do so.
31.All extant applications be otherwise dismissed.
32.Such further or other orders as this Honourable Court deems appropriate.
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