Mitchell and Fichte

[2018] FamCA 942

FAMILY COURT OF AUSTRALIA

MITCHELL & FICHTE [2018] FamCA 942

FAMILY LAW – CHILDREN – contested residence – issues of family violence and mental health issues – assessment of risk of both parents – orders made in the best interests of the children.

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

Goode & Goode (2006) FLC 93-286

APPLICANT: Ms Mitchell

RESPONDENT: Mr Fichte

FILE NUMBER: SYC 1832 of 2016

DATE DELIVERED: 20 November 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 21, 22, 23 & 24 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr J Selfridge

SOLICITOR FOR THE APPLICANT: Brooke Winter Solicitors & Advisors

COUNSEL FOR THE RESPONDENT: Ms K Oakley

SOLICITOR FOR THE RESPONDENT: Twohill Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms D Wardle

INDEPENDENT CHILDREN’S LAWYER: Seth Solicitors

Orders

1. That all previous parenting orders be discharged.

2. That the parents shall have equal shared parental responsibility for the major long term issues of the children, B born … 2010 and C born … 2013 (“the children”), including but not limited to:

   (a)the child’s education (both current and future);

   (b)the child’s religious and cultural upbringing;

   (c)the child’s health;

   (d)the child’s name; and

   (e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

3. That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)they shall inform the other parent about the decision to be made and their position in regard to the decision in writing;

   (b)they shall consult with each other on terms that they agree;

   (c)they shall make a genuine effort to come to a joint decision; and

   (d)if the parents are unable to reach an agreement in relation to a major long term issue affecting the child then the parents shall engage in mediation through the family dispute resolution centre or another appropriately approved dispute resolution provider.

4. That notwithstanding the provision of Order (3):

   (a)the mother shall be responsible for the daily care, welfare and development of the children when the children are living with or spending time with her; and

   (b)the father shall be responsible for the daily care, welfare and development of the children when the children are living with or spending time with him.

5. That the children live with the father.

6. That unless otherwise agreed between the parents in writing, the children shall spend time with the mother as follows in a fortnightly cycle:

   (a)To the end of the 2018 school year from after school Friday to 4.00pm Sunday;

   (b)From the start of 2019 school year:

   (i)from after school Thursday to before school Monday; and

   (ii)in the off week from after school Thursday to before school Friday.

School holidays

1. That unless otherwise agreed between the parents in writing, commencing from 2019, the children shall spend time with the parents in the end term one (1), two (2) and three (3) gazetted school holiday periods as follows:

   (a)with the father for one half of all end of term one (1), two (2) and three (3) gazetted school holiday periods, being the first half in odd numbered years and the second half in even numbered years; and that any provision for time in this Order that is inconsistent with school holiday time be suspended during school holiday periods; and

   (b)with the mother for one half of all end of term one (1), two (2) and three (3) gazetted school holiday periods, being the second half in odd numbered years and the first half in even numbered years; and that any provision for time in this Order that is inconsistent with school holiday time be suspended during school holiday periods.

2. That unless otherwise agreed between the parents in writing, the children shall spend time with the parents in the end of term four (4) (Christmas) school holiday gazetted period as follows:

   (a)       For 2018:

   (i)with the mother from after school on the last day of the school term (14 December 2018) for two (2) weeks (including Christmas day); then

   (ii)with the father for the following two (2) weeks; then

   (iii)with the mother for an additional one (1) week; and then

   (iv)with the father until the commencement of the 2019 school year (29 January 2019).

   (b)       For 2019:

   (i)with the father from after school on the last day of the school term (13 December 2019) for two weeks (including Christmas day); then

   (ii)with the mother for the following two weeks; then

   (iii)with the father for an additional one week; and then

   (iv)with the mother until the commencement of the 2020 school year (28 January 2020).

   (c)       For 2020 and each subsequent year:

   (i)with the father for one (1) half of the end of term four (4) (Christmas) school holiday gazetted periods, being the first half in odd numbered years and the second half in even numbered years; and that any provision for time in this Order that is inconsistent with school holiday time be suspended during such school holiday periods; and

   (ii)With the mother for one (1) half of the end of term four (4) (Christmas) school holiday gazetted periods, being the second half in odd numbered years and the first half in even numbered years; and that any provision for time in this Order that is inconsistent with school holiday time be suspended during school holiday periods.

   (d)That unless otherwise set out in these Orders or agreed between the parents in writing, all changeovers during holiday periods shall occur at 4:00 pm.

Special occasions

1. That unless otherwise agreed between the parents in writing, the children shall spend time with the parents on special occasions as follows:

   (a)with the mother from 9:00 am until 5:00 pm on Mother’s Day if the children would ordinarily be in the father’s care;

   (b)with the father from 9:00 am until 5:00 pm on Father’s Day if the children would ordinarily be in the mother’s care;

   (c)for both children’s birthdays and the birthdays of the parents the children shall spend time with the parent who they are not otherwise living with in accordance with these Orders at such times as may be agreed between the parents in writing, but failing agreement from the conclusion of school (or 3:30 pm if a non-school day) until 7:00 pm on that day and that any provision of time under the Orders that is inconsistent with this paragraph be suspended;

   (d)For Easter:

   with the father from 3:00 pm Easter Saturday to 3:00 pm Easter Sunday in odd numbered years and from 3:00 pm Easter Sunday to 3:00 pm Easter Monday in even numbered years; and

   (i)with the mother from 3:00 pm Easter Sunday to 3:00 pm Easter Monday in odd numbered years and from 3:00 pm Easter Saturday to 3:00 pm Easter Sunday in even numbered years;

2. That the parents will make a genuine attempt to facilitate the children attending any major and important paternal and maternal family events should they not otherwise be in that particular parent’s care.

Changeovers

1. That changeovers shall occur at the children’s school.

2. That any changeovers that do not occur at school on a school day shall occur:

   (a)at the X Centre for 2018, with the parents to share equally the cost of such service; and

   (b)from 2019, changeovers shall occur at the Suburb K McDonalds.

3. That both parents be at liberty to have another responsible adult known to the children attend to collection and delivery of the children at changeovers.

Telephone communication

1. That unless otherwise agreed between the parents in writing, the parents shall do all things necessary to facilitate the children communicating with the other parent by telephone or Skype or Facetime between:

   (a)6:30 pm and 7:00 pm each Sunday the children are not otherwise in their care; and

   (b)9:00 am and 9:30 am each Christmas Day the children are not otherwise in their care.

2. That communication is to be initiated by the parent without care of the children, with such calls to be unrecorded, uninterrupted and private.

Education

1. That unless otherwise agreed, the children shall attend the Suburb K State Primary School until the conclusion of their primary school education.

2. That the parents shall do all things necessary to ensure both parents’ names are listed with the children’s school, with the father to be the primary contact and the mother to be the secondary contact and an emergency contact.

3. That the parents be at liberty to attend and facilitate the children’s attendance at all school and other educational functions to which parents are usually invited.

4. That each parent is hereby authorised to contact and obtain (at their expense) from the children’s school and extra-curricular organisations all notices, letters, school reports, school work, newsletters, photos, and attend all assembly invitations, parent/teacher interviews or other activities, including school sporting and special events and other school or extra-curricular matters involving the children.

5. That the parents do all things necessary to facilitate the children’s attendance at all extra-curricular activities in which they are enrolled and school events and social events to which the children are invited.

Medical

1. That save in the event of an emergency, the children attend upon one (1) medical practitioner, namely H Medical Centre.

2. That the parents:

   (a)shall authorise any health care professional attending upon the children to release information concerning the children to both parents (at their expense);

   (b)inform each other forthwith of any medical appointment the children have attended and the reason for same and do give each other permission to enable the other of them to discuss the reason for the consultation and any treatment in relation thereto with the treating medical practitioner; and

   (c)forthwith notify the other of any serious accident or injury suffered by the children and obtain the consent of the other before any major medical procedure is undertaken.

International travel and passports

1. That the parents shall do all acts and things and sign all documents necessary to obtain an Australian passport for the children and to ensure that the children’s passports are kept up to date at all times including signing and returning any document required to apply for or renew the passport within seven (7) days of the other parent delivering the documentation; and the parent that seeks the issue of passports shall bear the costs.

2. That the father shall, within seven (7) days of receipt of the children’s passports, provide the mother with a copy of each passport’s front page, by email.

3. That:

   (a)the father be at liberty to travel with the children to Country JJ during 15 September 2019 to 29 September 2019;

   (b)the children’s time with the mother be suspended for the period from 15 September 2019 to 29 September 2019; and

   (c)the father provide all information required for normal travel overseas as set out below in Order (27).

4. That neither parent shall take the children outside of the Commonwealth of Australia without the written consent of the other parent (and such consent shall not be unreasonably withheld).

5. That in the event either parent wishes to take the children outside of Australia for the purposes of a holiday or family event during school holiday periods, the parent who proposes such travel shall provide the other parent with the following information not less than forty five (45) days prior to the date of intended travel:

   (a)an itinerary and details of the destination of intended travel, including departure and return dates, proposed accommodation details and copies of travel documentation which includes return flight details;

   (b)notification of where the children will be staying and mobile telephone numbers or other means of contact on which the children may be contacted; and

   (c)proposal for makeup time between the children and the non-traveling parent if their time will be interrupted by the travel.

6. That the other parent shall respond to the travelling parent within fourteen (14) days’ notice pursuant to Order (27) above.

7. That the parent who has last travelled with the children shall retain the children’s passport.

8. That the parent who holds the passport shall provide the passport to the travelling party upon written consent of both parents at least twenty-one (21) days prior to travel.

Communication

1. That either by communication book, email, other agreed written electronic means or telephone (in emergency only) both parents shall ensure the other parent is kept informed as soon as reasonably practicable but no later than twenty four (24) hours after the event:

   (a)any serious medical problems/ emergencies or illness suffered by either of the children (notification is to be provided forthwith with details of the illness/injury as well as the treating doctor/hospital if applicable); and

   (b)their current residential address and contact telephone number and advise the other of any change.

2. That either by communication book, email, other agreed electronic means or telephone (in emergency only) both parents shall ensure the other parent is kept informed as soon as is reasonable practicable but no more than seven (7) days after the event of:

   (a)any medication that has been prescribed for the children;

   (b)any referral made by the doctor including but not limited to specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

   (c)provide a copy of all written information provided by any practitioner and advise of all recommendations made during that referral; and

   (d)any other matters relevant to the welfare of the children including but not limited to matters like sporting activities, special school events and any special days for extra curriculum activities.

3. That each parent is to inform the other if the children are travelling interstate and provide a contact telephone number seven (7) days in advance of travel.

Restraints

1. That during the time the children are with either parent, that parent shall:

   (a)respect the privacy of the other parent and not question the children about the personal life of the other parent;

   (b)speak of the other parent respectfully;

   (c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children;

   (d)not discuss adult issues with the children including but not limited to these court proceedings and will refrain from involving the children in any parental conflict and use their best endeavours to ensure that others do not discuss adult issues in the hearing or presence of the children; and

   (e)not physically discipline the children.

2. That the parents shall not:

   (a)discuss allegations as to their respective mental health with any third party and other issues relating to these proceedings;

   (b)disseminate any document filed in these proceedings including medical reports to any third party;

   (c)provide any third party with information as to the contents of any report (inclusive of medical reports); or

   (d)record (i.e. video, audio or in writing) communication between the children, themselves and/ or the other parent.

General

1. That the father shall enrol and complete a Triple P Parenting Course (not online) within twelve (12) months of the date of this Order and provide written confirmation to the mother upon completion of such Course.

2. That both parents shall be at liberty to provide a copy of these Orders to any governmental body, education or medical institution attended by the children.

3. That the Independent Children’s Lawyer be discharged.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: SYC 1832 of 2016

BETWEEN

Ms Mitchell

Applicant

AND

Mr Fichte

Respondent

REASONS FOR JUDGMENT

introduction

1. The parents of B (now aged eight years) and her brother C (aged five and a half years) have never seen their parents co-parent under the one roof.  Sadly however, in their short lives, they have been exposed to and are aware of their parents’ toxic relationship.

2. Other events, dealt with later in these Reasons, have seen the children being required to live in various locations since December 2015 and at times primarily in the care of the mother; then in the care of the maternal grandmother and, as a result of an order of this Court, with the father.

3. Much has happened in the period since the relationship ended by late 2015 and, as the Reasons reveal, it is neither helpful nor necessary for every event to be examined in detail.

4. This position has been reached because, by final submissions both parents made proposals that the other parent’s time be unsupervised (although both have competing applications for residence) – which is a far cry from the position maintained previously by the Applicant mother and the Respondent father – namely that the other parent represented an unacceptable risk to the children.

5. The Court was greatly assisted in this highly emotional and complex case, by Counsel for the mother (Mr Selfridge); Counsel for the father (Ms Oakley) and Counsel for the Independent Children’s Lawyer (“ICL”) (Ms Wardle) who could have said nothing more than they did to advance their client’s case.

6. The Reasons which follow seek to explain the pathway adopted by the Court to reach its ultimate conclusion as to what orders are in the best interests of the children.

Parenting principles

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Competing proposals

1. The Applicant mother did not significantly deviate from the proposal set out in her Case Outline filed 15 May 2018, which is attached and marked Appendix One.  She seeks sole parental responsibility and for the children to live with her and either spend four days each fortnight during school terms (clarified to be after school Friday to before school Monday) or, as a second alternative, week-about with changeovers each Monday.  Sharing of school holidays is proposed.

2. During the course of final submissions, and confronted by the articulated proposals of the ICL and father, as a very much non-preferred position, Mr Selfridge submitted that if the children are to live with the father, then they should spend time with the mother each alternate weekend and some time in the off week, including a share of school holidays.

3. The father’s position significantly altered from that identified in his Case Outline filed 14 May 2018 where he proposed the children live with him (and he have sole parental responsibility), with the children spending supervised time with their mother for six months and then, subject to reassessment by the family report writer, unsupervised time building to each alternate weekend from 9.00 am Saturday to 5.00 pm Sunday.  Apart from some extra time on specified special occasions, the father did not, in his Case Outline, suggest the children spend any significant school holiday time with the mother.

4. At the commencement of the trial, the Court expressed some concerns about the form of the father’s order (relying as it did on an updated family report), however the father’s position altered and he tendered (as Exhibit 9) a proposal which is Appendix Two to these Reasons, for the children to spend time each alternate weekend extending to after school Friday to before school Monday from the commencement of the 2019 school year, together with school holiday time – culminating in half of the long school holidays at the end of term four, 2019.

5. The ICL, when filing his Case Outline on 14 May 2018, felt unable to make a proposal “due to the complex issues alleged and the competing serious claims made by each of the parties, without seeing the witnesses under cross-examination”.  The Court regarded that as an entirely reasonable position to adopt, however as the trial proceeded, the ICL was able to determine a view about the matter and tendered as Exhibit 10, a minute of order.

6. The essence of the order, for which Counsel for the ICL in final submissions contended, provides for the children to live with the father and for the parents to have equal parental responsibility and for the children to spend time with the mother:

   -    until the child, B reaches High School, in week one from after school Wednesday to before school Friday and in week two from after school Friday to 4.00 pm Sunday; and

   -    at the commencement of the 2021 school year in a block each fortnight from after school Wednesday to before school Monday; and finally

   -    when B reaches high school, which I estimated to be the start of the 2023 school year, or a rotation of two weeks about equal time.

7. The ICL proposed school holidays shall be shared equally.  The full text of the ICL’s proposed minute is attached to these Reasons and marked Appendix Three.

8. What becomes readily apparent, is that by the time of final submissions, neither parent nor the ICL were urging for a finding that the parents present as an unacceptable risk to these children, such that supervised time should be ordered.

9. Consistent with desire, it seems, not to further inflame this still volatile relationship between the parents the witnesses relied upon were reduced and mostly adult children and their Affidavits were not read and relied upon, and for completeness I record that:

   a)Mother’s case

   The mother relied upon her trial Affidavit and the following witnesses:

   -     the maternal grandmother Ms M (save for paragraphs 14 and 19 and those after paragraph 22);

   -     The mother’s treating Psychologist Dr Y; and

   -     The mother’s treating Psychiatrist Dr Z.

   but did not rely upon Affidavits of her adult children Mr S, Ms Q and Ms L.  Importantly as well, the mother did not rely upon the Affidavit evidence of Mr N Nugent filed 8 May 2018.

   b)Father’s case

   The father relied upon his trial Affidavit and the following witness, his partner Ms AA.

   He did not rely upon Affidavits by Ms BB, Ms CC, Ms T and Ms DD.

   c)The ICL

   The ICL relied upon the Affidavit of Dr EE (Consultant Psychiatrist) and the family report of Dr FF.

10. All witnesses relied upon were the subject of cross examination.

11. I give credit to the parties in electing to reduce the collateral witnesses, particularly those of adult siblings to B and C.  Cross examination about many historical events was likely to be painful; of little probative value now; and likely to damage future relationships between the siblings.  The relative narrowness of the areas in dispute, although still extremely important, supports the decision made to run their respective cases in a particular manner.  In this case, as in all parenting cases, the evidence of the parents is always the most useful.

12. To create some overall context to the difficult decision the Court is asked to make, what follows is the background that seeks to set the relevant history.  As I have already stated, the Court will not deal with every issue or past event in dispute.

13. I make no overall credit finding, and was not urged to do so by any of the Counsel.  It is fair to observe that both the mother and father have endured prolonged and difficult litigation in both this Court and the Domestic Violence Court.  Family members and third parties (such as Mr N Nugent) have been drawn into the conflict and parental character assassination.

14. Although in the end analysis, I formed the view that the mother and father were both giving their best recollection of the history, it was clear that the entrenched animosity and distrust each feels for the other (fuelled, I assess in part by this litigation) means their recollections are viewed through a distorted prism at times.  I suspect each parent will be a little disappointed that I have not found it necessary to make hurtful findings about the other parent’s character – although in some respects I have preferred one version of the facts over the other.

15. I am mindful, of course, that after the delivery of these Reasons the orders that require, at some level, the parties to interact as their young children grow older will not be assisted by “kicking’ each parent as the other probably thinks they deserve.

Contextual background

1. Statements of fact which follow should be construed as findings of fact.

2. The father was born in 1966 and the mother in 1971.  Both parents had been involved in a long term marriage that produced children (all now adults), before they commenced a relationship together in June 2008.  The mother had been involved in a motor vehicle accident in mid-1994, resulting in physical injuries she still carries today.  Furthermore, that incident lead the mother to being diagnosed with Post Traumatic Stress Disorder – a combination of all challenges culminating in the mother receiving a disability pension from 1997, which she still receives.

3. The parties’ relationship, from the start, was at times volatile.  Seeing the parties in the witness box demonstrated they are very different in personality and these differences caused arguments, mostly verbal to erupt fairly regularly.

4. Although the parties regarded themselves, in those early years as a committed couple, they did not live together – but spent significant time together – and this did not alter during the birth of their children B (2010) and C (2013).

5. The mother had family living in Sydney, and spent significant blocks of time there- particularly from mid-2013, when the mother’s grandfather was ill and then passed away.  The mother says that most of the time from June 2013 to August 2013 she stayed in Sydney.  The father says that B returned to Queensland with him for 11 weeks during this period and went to daycare; the mother said the period was shorter.  The baby C stayed with the mother.

6. By mid-2014, the relationship was in trouble, with disputes erupting between the father and the mother’s daughter Ms GG in June 2014; the mother’s daughter Ms Q in September 2014 and the parties in December 2014 (the mother alleging that the father caused her injury when her hand got caught in a car door).

7. I am satisfied some of the father’s angry outbursts at the time were witnessed by the children, although B was only about four years old at the time.

8. Although each party has their own versions of the increasing angry interactions, some involving the mother’s adult children, tensions about parenting styles (including table manners) continued to escalate and after the mother sought and obtained a temporary Domestic Violence Order against the father, she moved to Sydney with the children in December 2015.  At the time B was five years old and C was two and a half years of age.

9. The commencement of the domestic violence proceedings became a significant focus for the mother with numerous Court events during 2016, before a final hearing in May 2017 culminating in a Judgment in November 2017.  I deal with the findings of that process in the State Magistrates Court later in these Reasons.  What is clear, on all the evidence, is that these pressures exacerbated the mother’s underlying mental health challenges, such that she voluntarily entered into rehabilitative therapy for her anxiety and panic attacks in the U Clinic (“the Clinic”) during 2016, for two extended periods, namely from 18 January 2016 to 24 March 2016, before readmission on 4 August 2016 to 10 September 2016.  The notes from the mother’s time in the Clinic are Exhibits 2 and 3, but more importantly the mother’s treating Psychiatrist Dr Z (who oversaw her treatment in the Clinic) gave evidence and was cross examined.  I deal further with this evidence below.

10. Amazingly in many respects, despite all these issues (and even though the father was spending no time with the children after the mother moved to Sydney), it was the mother who commenced proceedings in the Federal Circuit Court in Sydney for parenting orders.  I am satisfied that the father wished to see his children, but that the mother’s position that his time be supervised was not acceptable to him.  When the mother was not in the Clinic, or otherwise traveling back to Queensland (where she owned a home) for Court events and medical appointments, the children were primarily cared for by the maternal grandmother Ms M in Sydney.

11. The first orders made by Judge Boyle in Sydney on 11 July 2016, resulted in the matter being set down for an interim hearing in September 2016; the appointment of an ICL; the requirement for the parties to attend a Child Inclusive Conference, and with the only substantive parenting order being that the mother “ensure the children live at the maternal grandparents residence pending further order”.

12. When the mother returned to the Court for interim hearing, her Honour Judge Boyle ordered, inter alia, the children live with the mother who was to reside with the maternal grandparents; that the children not spend overnight periods away from the home unless accompanied by the maternal grandmother; the father have supervised visits for two hours a fortnight at the Suburb HH Children’s Contact Centre as well as time supervised for three hours monthly; the appointment of a single expert psychiatrist and transferred the matter to the Family Court of Australia.

13. Clearly the father spending limited supervised time in Sydney created challenges, however he spent time with the children in October 2016, for the first time for nearly 10 months.  Further monthly visits occurred, and on 13 February 2017, by consent Johnson J made a number of orders which were negotiated by the parents and their lawyers, within the context of the mother’s decision to return with the children to her home in Suburb K, Queensland (in Region I).  Those orders provided, inter alia, that:

    -    the matter be transferred to the Family Court of Australia at Brisbane;

    -    the mother shall ensure the children live at the Suburb K home and shall not spend overnight periods away from the home unless accompanied by their sibling Ms L or the maternal grandmother;

    -    the children’s schooling was to commence in Suburb II;

    -    the mother was required to maintain her relationship with Dr Z; and

    -    importantly, the children were to spend supervised time with the father in Queensland at F Group (Ms JJ).

14. One might have expected that at least the mother returning to Queensland; returning to her home; having easier access to her Psychiatrist and the father having the opportunity to spend more regular (albeit supervised) time with the children might have caused the turmoil in these young children’s life to “settle down”.  Alas though that was not to be.

15. When the matter came before Berman J, sitting in Brisbane in a judicial duty list, as his Honour’s considered Reasons demonstrate, events over the preceding month had raised significant concerns about the mother’s mental health stability and behaviour.  An incident had occurred between the mother and her daughter Ms Q; the mother was upset that plans she felt she had made to bring the children home by car were changed without her consent by her daughter Ms L; an altercation occurred between at least the mother and Mr P Nugent involving a number of other persons; there was conflict at the hospital with the mother whilst Ms L was admitted on 20 February 2017 with a kidney infection; police were engaged by both the mother and the father around allegations of breaches of the Domestic Violence Order, with the father also alleging on 24 February 2017, the mother assaulted Ms L, which was not able to be determined by the Court.

16. In attempting to make some sense of these numerous untested but very troubling allegations, Berman J, for considered Reasons he published on 31 March 2017, made a very significant interim decision, expecting it seems that the matter would be the subject of further hearing in less than 14 days before another Judge.  In the hearing before Berman J, the father was represented by Senior Counsel and the mother was unrepresented.  The ICL appeared.  It is clear the mother was doing her case no favours by, at one stage, suggesting to the Judge it would be better for the children to be taken into foster care.

17. Berman J made orders, on an interim basis, that the children immediately commence residing with the father and the children were to spend supervised time with the mother.  The children commenced living with the father for the first time since their birth (save as set out in this background for B in June 2013).  It must have been a very difficult time for the children, but the father, I find, did his best and was assisted by his new partner Ms AA.

18. This change of residence was, for the mother, understandably a significant stressor.  She was not only in the midst of protracted and unfinished domestic violence proceedings, but her role as the primary carer had been disrupted.  The proceedings returned to management by Registrars after the Court event of 12 April 2017, for a number of investigations to be undertaken by the ICL.

19. The first supervised visit between the mother and the children occurred on 4 April 2017 and continued for three hours weekly until the time reduced to 1 ½ hours because of costs, for a short time in October 2017, before again resuming for three hours around 21 November 2017.  Notes of the visits were tendered and marked Exhibit 7.  The usual supervisor Ms JJ was the subject of cross examination.  In circumstances where supervised time moved to unsupervised time, as a result of an order made on 5 March 2018 by Senior Registrar Spink (after an interim hearing on 16 February 2018), the evidence of the supervised visits are of less significance now.  It is, however, worth noting that the records of Ms JJ and her evidence confirm the strong relationship the children had with the mother and, as the father conceded during his testimony, their desire to at least spend much more time with the mother has not diminished since April 2017, but has got stronger.

20. Senior Registrar Spink, in identifying the need to move to unsupervised time, was understandably cautious in ordering time occur each Sunday between 12.00pm and 5.00pm; that the child remain at Suburb K School and expedited the progress of the matter for a case management hearing before me on 23 March 2018, when I listed the matter for a hearing to commence, as it did, on 21 May 2018 – which proceeded for four days.

21. The Reasons of the Senior Registrar, which I have read, referred to the apparent conflicting versions of events sworn to be true, by Mr P Nugent and Mr N Nugent.  Those witnesses were not before me for cross examination and I make no findings, beyond those already made about the events of February 2017 in particular.

22. The Registrar also, at paragraphs 18.19 and 18.20 said:

    18.19  [In] November 2017 Magistrate … found that the parties’ relationship was tumultuous and that each had committed domestic violence against the other. In respect of the mother, the Magistrate found that the domestic violence included physical violence and sexual misconduct. The Magistrate ordered that until 15 November 2019 the father:

    •Must be of good behaviour towards the mother and not commit domestic violence against her;

    •Must be of good behaviour towards the children and not commit domestic violence against them or expose them to such; and

    •Must not go within 500 metres, enter or remain at any place where the mother lives, stays or works.

    These restraints do not apply to the extent that it is necessary for the parties to attend conference, counselling, mediation session or when spending time with a child in compliance with an order of a Court or when having contact with a child authorised by the Department of Child Safety, Youth and Women.

    18.20  While the Magistrate found that the mother had perpetrated domestic violence against the father, the Magistrate did not make an order against the mother.”

23. I agree this summary is accurate, and of course the mother relies on the findings and decision of the Magistrate before me.  Furthermore, the Registrar had evidence from the mother’s treating Psychiatrist Dr Z and the independent Psychiatrist (retained by the ICL) Dr EE as well as the family report of Dr FF dated 1 February 2017, arising from interviews on 23 January 2018.  The first visit of unsupervised time occurred on 11 March 2018, and although, perhaps not surprisingly, there have been allegations by the parents since then, overall I am satisfied the children have enjoyed this time with the mother and have not come to any harm, other than, as I soon observe, these children are well aware of the conflict and have heard things in both households that should have been spoken about in their absence.

24. The Court regrets the delay in finalising these Reasons since the trial was completed on 24 May 2018.

25. In the analysis, soon to follow, within the matrix of the relevant s.60CC(2) and s.60CC(3) considerations. I thought it helpful to deal discretely with some issues of risk in a concise way (considering the positions now taken by the parents) and the report of the family report writer.

Allegation that the mother is a risk to the children

1. Considering the parents’ relationship did not involve really living together, it is likely they know less about each other.  Then after conflict began to increase and the mother moved unilaterally to Sydney and time ceased between the children and the father, it is hardly surprising the father began to have concerns about the mother’s mental health (from his perspective) and, perhaps her willingness to support his relationship with the children.

2. That the mother then had two long periods in the U Clinic only caused to exacerbate his concerns.  The mother, on the evidence, fuelled I believe by some events involving her adult children and an unsubstantiated concern that B may have been the subject of some inappropriate sexual contact from an acquaintance of the father, became fixated in proving the father was a violent person, who was a risk to the children.

1. These events, considered within an intense period of just over 12 months, and with the mother’s underlying condition of Post-Traumatic Stress Disorder having contributed to the mother’s clearly erratic behaviour demonstrated in February 2017, ultimately led to the interim orders made by Berman J on 31 March 2017.

2. Since that major change in the parenting arrangements and the subsequent limiting of the mother’s time for almost 12 months to weekly supervised time it is hard to imagine the mother could be under any greater strain.

3. The events, from time to time, at the supervised visits where the mother may have said things she should not, must be seen in this context.  Throughout these difficult times, she maintained a therapeutic relationship with her Psychologist Dr Y and, as required, her treating Psychiatrist Dr Z.  It bears noting, that the mother’s admission to the Clinic was voluntary – showing a level of insight into her coping at the time.  Her time at the Clinic coupled with the evidence of both Dr Z and Dr Y satisfy me that the mother has some insight into her vulnerability.  It will continue to be a vulnerability, which at times will erupt because of her combination of Cluster B personality traits and her hysterical demeanour.  The evidence suggests that she can become agitated at times with her family.  I am satisfied the records of the Clinic about an argument the mother had with the maternal grandmother was “played down” by the mother.  However, it was again within the context of her desperately missing her children.  Although she has engaged in conflict at times with her adult children, they firmly support her now.  She draws comfort from those important relationships.  The mother maintains employment in the service industry – helping others.  All these indications persuade me that the cautionary tone of some of Dr EE’s analysis, can be satisfied.  To his credit, Dr EE, when reflecting on the limitations of the cross sectional analysis he undertook, observed that he would be strongly guided by the longitudinal assessment of treating Psychiatrist Dr Z, given she knows the patient better.

4. Dr Z regards the mother as “in remission” from the symptoms of her Post-Traumatic Stress Disorder.  She has not observed “flashbacks” or recent “panic attacks”.  She believes the mother’s treatment is best managed by her Psychologist who she sees regularly.  Dr Z has seen no need to prescribe medication since December 2016 – even after the events leading up to the change of residence order.  In summary, both Dr Z and Ms Y opined the mother is motivated to maintain good mental health and her functioning has improved since her time in the U Clinic.  Ms Y went as far as to opine, that at present she is stable psychologically.  I accept these opinions.

5. As the mother was concluding the, at times, necessarily probing cross examination she indicated that she had experienced a tragic event the Thursday before the hearing.  Whilst driving her car under an overpass, a person who had apparently decided to take their own life, jumped off the overpass and came into contact with the mother’s car in some way.  She described the incident in a rather pragmatic way.  Sensibly, she said she had an appointment scheduled with Ms Y the next day and was debriefed.  Ms Y felt, and I agree, that the way the mother coped with this confronting incident so well, is a demonstration of her improved mental health and robustness.

Allegation that the father is a risk to the children

1. By final submissions, the mother did not contend that the children were at a risk in the father’s care per se, but maintains the position that the father has been domestically violent towards the mother (and her adult children at times) and that some early incidents were witnessed by the subject children.  Furthermore, the mother contends the father’s lack of understanding that the children should have spent more time with her as they have continued to express and his maintenance of an allegation that the mother is “unwell” until the end of the hearing, reveal lack of insight and fairness which, as a primary carer, is concerning.

2. The father sought to minimise, explain or simply deny nearly every allegation of family abuse (adopting a broader definition to simply inter party domestic violence) and, I was not entirely persuaded by his absolute denials.  I accept the father became very frustrated by the lack of time with the children initially.  I am satisfied he has firm views about how adults should treat and respect each other and is quick to point out failings in others, but less able to see his behaviour at times being angry and aggressive.

3. I do not ignore the findings made by the Magistrate supporting his decision to make a Domestic Violence Order continuing to 2019.  The proceedings before me was not a forum for re-litigating all the incidents dealt with by the Magistrate.  In any event, with the mother not relying upon her children’s evidence, it meant that their versions of various historical events could not be tested.

4. Sadly, as often now occurs in parenting cases, the parties to a Domestic Violence Order are quick to engage Police in sometimes trivial allegations of breach so as, I suspect, to gain some evidentiary basis to assist their cause in the parenting dispute.  In this case, the mother’s assertion that the father (when spending time with his partner Ms AA at her home) came within 500 metres of her adult children (who were protected under the Domestic Violence Order), is a prime example.  The father gave evidence that he parked 458 metres away (and then walked to his partner’s home) and reveals his focus.  The mother sought to enquire from the children (when living with the father) where they were staying in an endeavour, I find, to try and prove the father was within the boundaries of the Domestic Violence Order and committing a breach.  The children should not have been engaged in this folly by the mother.

5. I had the advantage of also seeing the father’s partner in the witness box.  I regarded her as a stabilising influence on her partner, the father.  I accept her truthful recollections of what physical discipline the father delivered to the children.  I suspect there were other times the father has disciplined the children, as he admits, but they are now at an age where other methods must be used.  The children have remarked about the discipline, and do not like it.  It may have been a major contribution to the “fear” they have expressed from time to time.  I intend to make an order that neither party shall use physical discipline.

6. Outside the family context, there are no compelling examples of the father’s behaviour being aggressive or inappropriate – at work or in the community.  My overall assessment is that the rather intense and at times historic behaviour of the mother provoked the father who has at times demonstrated a “short wick”.  They are both capable of pushing the other person’s buttons – prompting an angry verbal response.

7. Overall, these parents are old enough and sensible enough now to concentrate on their children’s future best interests.  They need to take time to reflect on their contribution to the conflict, for in my assessment both have contributed, and this must cease for the children’s benefit.  Subject to the findings made, I do not assess the children are at an unacceptable risk of harm in the father’s care, subject to what I have already said about the ongoing parental conflict.

Family report

1. Dr FF interviewed the parents and the children on 23 January 2018 and her report is in evidence.  Her report identifies the extensive material provided to her by way of background by the briefing ICL, and she indicated that since the report was released she had received further material from the ICL, but most helpfully the Affidavit of the mother’s treating Psychologist.

2. Dr FF observed the children after they had been living with the father (and his partner) for over eight months.  The assessment of them at paragraph 22.01 as well groomed, well behaved and exhibiting skills “appropriate for their ages and stages of development” was comforting, particularly considering that Dr FF opines, and I agree, that “the children were exposed to a highly conflicted and changeable family environment throughout their most vulnerable years of development”.

3. Dr FF was told by the mother (see paragraph 8.07) that her 16 year marriage with her former husband that ended in 2007, had been “very violent”.  It also seems that around the time she began a relationship with the father she was injured in a motor cycle accident and “spent nearly a year in bed recovering from her injuries”.

4. The mother expressed that a lot of the conflict in the relationship was related to the father “not wanting to spend time with her (older) children and wanting to exclude them from their time together”.  Clearly, in my view, the seeds for the very difficult relationship between the father and the mother’s older children were being sewed.

5. The father explained that his prior 25 year marriage ended in 2007 and there was an amicable separation.  He maintains close relationship with his two adult children.  He met the mother on an internet dating site, but their relationship “was tumultuous from the beginning” and that the mother “was highly emotional about many things”.  He acknowledged to Dr FF, that as the relationship with the mother deteriorated, the mother would often encourage her older children to participate in their arguments.  I accept that occurred.

6. In her assessment, the relationship between the father and Ms AA is solid, caring and stable.  I agree with that general assessment.  I also hold similar concerns, as expressed by Dr FF at paragraph 22.34 of her evaluation, that the mother involves the older children in some conflicts and difficulty in “separating adult’s concepts from child appropriate concepts’.

7. Not surprisingly, under cross examination, Dr FF was questioned about her recommendation that the children live with the father and be “allowed to spend time with their mother on a regular basis”.  Mr Selfridge explored appropriately whether her position as to where the child lived would remain the same, if the Court found:

   -    the mother was the primary carer to April 2017; and

   -    the mother is not an unacceptable risk; and

   -    since April 2017 the children had been expressing a wish to spend more time with the mother.

8. In the end, Dr FF said this would support increasing time, especially if the unsupervised day visits had gone well.  She however re-emphasised that her main concern for these delightful children is that they not be exposed to more conflict.  In this respect, I formed the view, that Dr FF’s opinion about the children living with the father, was based on her expressed view at paragraph 22.32 of her report that:

   22.32  However, the immediate and ongoing priority for the children is to provide them with a family environment that is emotionally and physically calm, stable and predictable allowing them to thrive emotionally and physically.

9. In her opinion, at this time, the father offers that environment with less uncertainties.  I agree with this assessment.

10. Mr Selfridge put to Dr FF, the disclosure made Ms AA at paragraph 45 of her Affidavit, namely that on 25 March 2018 after the children had spent the unsupervised time with the mother, they returned with a full box of hot chips and gravy (from the mother).  When they arrived home, the father said they had eaten enough chips as dinner was ready, to which B responded by saying “I want to kill myself” and proceeded to punch herself in the throat and then ran upstairs.  Ms AA was “alarmed” by the child’s behaviour.  The father went to the child and talked her through her overreaction to being told to stop eating the chips.

11. Dr FF said that although parents should have a concern about any such comments, this “overreaction” could arise from her increased awareness of the conflict between the parents and the uncertainty B may feel about who she is allowed to “like or love”.  Dr FF could not ignore the possibility that the mother, who can present as anxious and emotional, may have done so preceding the changeover.  Certainly, in the opinion of Dr FF it is important when the children are with the mother she does not show signs of being anxious or overly emotional.  Such characterises are not unusual for a person with the mother’s Cluster B personality traits, as identified by Dr EE.

Primary considerations

1. I will now discuss the competing proposals – which essentially hinges on whether the children live primarily with the mother or the father, within the matrix of the relevant primary and additional considerations.  In so doing, I rely upon, but do not repeat findings already made previously in these Reasons.

2. The children will benefit from having a meaningful relationship with each parent.  The parents’ proposals reflect an acknowledgment of that benefit for these children.

3. In considering s.60CC(2)(b), which must be given greater weight, I rely upon my earlier findings on risk. My view is that at times the parents (and in the mother’s household, her older children), have exposed the children to the clear understanding that the parents do not like each other. The mother has, I find, found it much more difficult to protect he children from her views of the father and her strong belief the children should live with her – as they always have done. The father is more controlled in disguising his feelings of frustration and anger towards the mother.

4. With so much having happened and changed in a mere three years since separation, and with the history set out above, the Court should not be too quick to believe the parents’ conduct in, at times finding it hard to support the other parent’s relationship with the children, is likely to continue into the future.  These children now have an attachment to both parents, and attempts by the parents to undermine the other parent’s relationship, will become apparent quickly and will be psychologically damaging to the children’s development.  In my view, at this point in time the father shows more insight and capacity to reflect on his past behaviour.  These parents are mature aged and experienced parents, however I believe at the moment, the mother is less able to disguise her feelings.  Whilst this is a slight risk that I do not ignore, as Dr FF opines, a continuation of the conflict presents as the major long term risk.  It is my hope that if the children have the opportunity to spend significant time with both parents, the “competition” for control will eventually subside.  I accept that the past three years might suggest the hope is filled with optimism.

Additional considerations

1. I will discuss these considerations in a narrative form.

2. Dr FF did not formally interview the children because of their age.  I accept she gleaned their feelings from observing their interaction with the parents, as recorded at paragraphs 15.01 to 15.15 (the mother) and paragraphs 20.1 to 20.05 (the father), and the children were assessed as comfortable with both parents.  On all the evidence, I do not discern that children revealed, by actions or words, any preference with whom they live - although, I accept the abrupt change on 1 April 2017 would have been quite difficult for the children, but they have adjusted to the change; seem happy but are keen to spend more time with the mother.

3. I find that although the mother was the primary carer of the children to April 2017 (and at times relied upon her extended family to assist as the chronology above reveals), since April 2017 the father has been their primary carer.  The observations of Dr FF and the evidence as a whole supports the finding, which I make, that B and C have a strong attachment now to each parent, and through those parents, a relationship with older siblings.  I find Ms AA is now a person in the lives of the children, with whom they have also developed a close relationship.

4. The ineffective communication between the parents and the ongoing litigation has caused difficulties in the children spending time with the father, when they lived with the mother, and with the mother, when living with the father – although once arrangements have been set by Court order, compliance has generally occurred with those orders (save for some issues around telephone contact).

5. I will consider s.60CC(3) when discussing my conclusions in this matter.

6. Both parents live in the same area, proximate to the children’s school at Suburb K, and apart from the use of a Contact Centre for changeovers, no practical difficulties arise in the children spending time with the mother or the father.

7. I find that both parents have the capacity when functioning well, to meet and provide for the needs, including emotional and intellectual needs of both children; neither of whom have any special needs as such.  In my view, at times in the past, the mother has been unavailable to meet the children’s needs because of mental health and travel challenges, but her reliance on her mother Ms M and at times, one of her adult children, has been appropriate.  The father’s capacity is supported by his partner Ms AA, especially around his working hours.

8. As these parents are quite different people by personality, gender and background, it is hardly surprising that they parent differently.  I did not detect, however, any substantial differences in their core value systems or their views rating education for the children, good manners and hard work as important.  The father needs to modify his use of physical discipline, although I accept the evidence of Ms AA that at times he can be too “lenient”.  The father and Ms AA have engaged with high level parenting coach Ms KK, to ensure they properly support the children emotionally – commencing therapy with her after the children came to live with the father.  This was a very sensible decision, as I have no doubt the transition was difficult initially for them at their ages, at the time, of 6 ½ years and 4 years.

9. I have discussed family violence issues already, but for completeness find that the evidence of the father and Ms AA about the close, loving and conflict free elements of their relationship should be accepted.  Certainly there is no evidence to the contrary.  I am aware of, and take into consideration, the nature and effect of the current Domestic Violence Order in the mother’s favour.

10. S.60CC(3)(l) requires the Court to consider “whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child”, and in this respect, where the Court has determined that it is in the best interests of the children that they live permanently with the father, the Court takes into account that the mother’s likely disappointment with this order might cause further proceedings to be instituted.  The mother strongly identifies with the role of being a mother, and no doubt feels a terrible injustice occurred on 31 March 2017 when the children were ordered to live with the father.  I have no confidence at all, from the mother’s viewpoint (shared no doubt by her family members) that anything in these Reasons will justify the decision in the mother’s eyes.  Having made these observations, I nonetheless believe the orders I now pronounce are in the best interests of these two children.

Parental responsibility

1. The findings of family violence that has occurred discharge the presumption, however that is not the end of the matter.  It is the happy situation for most Australian families who have healthy children, that major long term issues as defined by the Family Law Act 1975 beyond schooling and forth, rarely arise.  Certainly high conflict parents find plenty of opportunity to engage in conflict around sport, extra-curricular activities and other such issues.  The father’s application is for sole parental responsibility as he fears the inability to communicate will make equal shared parental responsibility, and the consultation on such matters, completely unworkable.  However, these parents are intelligent enough to be able to communicate by email in a respectful manner, and where I intend to order that the children complete their primary school education at Suburb K State School, the likely next major decision to make will be B’s high school in a few years’ time.  As the children will be spending significant time in the mother’s care, I do not regard it as in the best interests of the children to diminish her role as a parent by allowing the father solely to make long term decisions.  I also believe that the mother, with her knowledge of the children’s upbringing and personalities, can offer a perspective worth considering.  The ICL proposes an order for equal shared parental responsibility, and I agree.

1. As I will make an order for equal shared parental responsibility, I am required to consider whether equal time is in the best interests of the children and reasonably practicable.  In my view, on the evidence, stability is best achieved with the children living for more time with one parent and not equal time.  I do find however that the children having significant and substantial time is in their best interests and reasonably practicable.

2. I have reached a determination that it is in the best interest of the children that they live primarily with the father, who has provided a stable and nurturing home for B and C since April 2017.  The period of some 18 months before then was disrupted.  With the mother currently functioning well, the children will benefit from spending more extended time with her, including overnight time; school term time and holidays.  A change of residence now, as the mother proposes, will be the second major adjustment in less than two years for the children, and whilst they may cope, they should not be required to do so where the current arrangements are stable.  The mother has some vulnerabilities not present, in my view, in the father’s household.  I am sure the children would cope with the change, but the inability of the mother to hide or disguise her emotions and the ever present, if well intended, views of the older siblings being shared could seriously affect the strength of relationship the children have now formed with their father.  In short, my assessment of the likely adverse effects of such a change to the children’s circumstances outweigh the benefits – being majority time with the mother.

Form of order

1. Considering a position that will provide for the best interests of the children when the mother wants more time (and primary care), whilst the father urges progressing cautiously has caused me some need to seriously reflect on all the evidence.

2. I have come to the conclusion that the children will cope with an immediate increase rather than “easing” them into a new regime, however considering the time left in this school term, and the fact that I propose the children spend block time with the mother this school Christmas holiday period, the regime that will be applied on a final basis will commence from the start of the 2019 school year.  The increase in weekend overnight time will commence immediately from after school Friday to Sunday, so as to allow the regime for getting the children to school for the rest of this year will be maintained.

3. The orders provide for the children to spend Christmas Day this year with the mother.

4. I have incorporated into the orders that I pronounce with the delivery of these Reasons and as are set out at the commencement of these Reasons, various specific orders as to some special days and standard orders – many of which are proposed by the parties, but in different drafted terms.

5. I find the orders are in the best interests of the children.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 20 November 2018

Associate:

Date:  20 November 2018

APPENDIX ONE

1. That all previous Parenting Orders be discharged.

Parental Responsibility

1. That the Mother have sole parental responsibility in respect of all major long-term issues/decisions for the children’s welfare, serious medical decisions and development of B born … 2010 and C born … 2013 (hereinafter referred to as “the children”), including but not limited to:

   d)the children’s education (both current and future);

   e)the children’s religious and cultural upbringing;

   f)the children’s health;

   g)any changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent.

Living Arrangements

1. That the children live full-time with the Mother.

2. That the children spend time and communicate with the Father at times to be agreed by the parties but failing agreement not less than four (4) days each fortnight.

Holidays and Special Occasions

1. That the children spend time with the Father for one half of the Winter, Spring and Autumn gazetted school holiday periods, being the first half in odd numbered years and in alternate years thereafter and the second half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holiday periods.

2. That the children spend time with the Mother for one half of the winter, spring and autumn gazetted school holiday periods, being the second half in odd numbered years and in alternate years thereafter and the first half in even numbered years and in alternate years thereafter; and that any provision for time in this order that is inconsistent with school holiday time be suspended during gazetted school holiday periods.

3. For the gazetted Summer school holidays, ending in even numbered years: (2018,2020, etc):

   a)the children spend time and live with the Mother from 3pm after school finishes on the last day of school term in December, until 4.00pm on 4th January the following year;

   b)that the children spend time and live with the Father from 4.00pm on 4th January until school starts on the first day of school term that same year.

4. For the gazetted Summer school holidays, in all odd numbered years (2019, 2021, etc):

   a)the children spend time and live with the Father from 3pm after school finishes on the last day of school term in December, until 4.00pm on 4th January the following year;

   b)that the children spend time and live with the Mother from 4.00pm on 4th January until the start of school term that same year.

5. That the children spend time on Father’s Day with the Father from 8.00 am to 5.00 pm and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

6. That the children spend time on Mother’s Day with the Mother from 8.00 am to 5.00 pm and that any provision under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

7. That the children spend equal time with the Mother and the Father on the children birthdays at times to be agreed between the Mother and the Father, and failing agreement:

   a)from 8:00am until 1:30pm;

   b)and 1:30pm until 7:00pm,

   alternating between the parents for dates falling on weekends and at 3.00 pm until 7.30 pm on weekdays with the Father or the Mother if the children are not already spending time with; and that any provision of time under this order that is inconsistent with this paragraph be suspended.

8. That the children spend time with the Mother and the Father on:

   a)the Mother’s birthday, and

   b)the Father’s birthday,

   at times to be agreed between the Mother and the Father, and failing agreement, from 3.00pm until 7.30pm on a school day and from 9.00am until 3.00pm on a non-school day; and that any provision of time under this order that is inconsistent with this paragraph be suspended.

9. That at all other times the Mother and Father agree that the children will attend all major and important family events on both the paternal and maternal side of their family (engagements, weddings, funerals, significant birthdays, etc.).

10. Unless otherwise agreed between the parents, that changeover is to occur at the children’s school if on a school day or alternatively, at the McDonald’s Restaurant located …, Suburb K if falls on a non-school day and public holidays.

11. That during the time the children are with either parent, that parent shall:

    a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;

    b)Speak to the other parent respectfully; and

    c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other do not denigrate or insult the other parent in the presence of hearing of the children.

12. That the Mother and Father shall:

    a)keep each other informed at all times of their contact telephone number and another alternate contact number for emergencies in case of bad reception;

    b)inform each other as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children;

    c)Communicate at all times with each other about the care, welfare and development of the children by an online communication book to be agreed upon;

    d)Communicate with each other by telephone, internet and SMS for any urgent matters concerning the children;

    e)That either parent is to notify immediately the other parent, of any urgent medical/hospital treatment for the children, and that both parents are allowed to be in attendance.

13. That each party is hereby authorised to contact and obtain from the children’s school all notices, letters, school reports, school work, photos, and attend all assembly invitations, parent/teacher interviews or other activities, including school sporting and special events and other school matters involving the children.

14. That the children continue to communicate by phone or any other internet device made available for the children.  That the parent supply their children with a working device for the children to hold and use freely on their own without interruption and communicate with privacy.  That if the parents fail to agree on a time then either parent is to call after 6:30pm on any day before going to bed until the child wants to end the call but not less than 30 minutes.

15. That the Independent Children’s Lawyer be discharged.

16. Any other Order the Court sees fit.

Alternate Proposal

1. That all previous Orders and Parenting Plans be discharged.

Parental Responsibility

1. That the Mother have sole parental responsibility in respect of all major long-term issues/decisions of the children, B born … 2010 and C born … 2013 (hereinafter referred to as “the children”), including but not limited to:

   a)the children’s education (both current and future);

   b)the children’s religious and cultural upbringing;

   c)the children’s health;

   d)any changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent.

2. In the Alternative, That the Mother and Father have equal shared parental responsibility in respect of all major long-term issues/decisions of the children, B born … 2010 and C born … 2013 (hereinafter referred to as “the children”), including but not limited to:

   a)the children’s education (both current and future);

   b)the children’s religious and cultural upbringing;

   c)the children’s health (and any Counselling for behavioural and emotional issues of the children’s needs);

   d)any changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent.

Living Arrangements

1. The children live with each party in a fortnightly rotation commencing every second Monday at 3.00pm.

2. That each parent be responsible for the children’s day to day care while in their respective care.

Holidays and Special Occasions

1. For the gazetted Summer school holidays, in all even numbered years:

   a)the children spend time with the Mother from after school on the last school day of school term until 4.00pm on 4th January the following year;

   b)that the children spend time with the Father from 4.00pm on 4 January until the start of school term that same year.

2. For the gazetted Summer school holidays, in all odd numbered years:

   a)the children spend time with the Father from after school on the last school day of school term until 4.00pm on 4 January the following year;

   b)that the children spend time with the Mother from 4.00pm on 4 January until the start of school term that same year.

3. That the children spend time with the Father from 8.00 am to 5.00 pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.

4. That the children spend time with the Mother from 8.00 am to 5.00 pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.

5. That the children spend equal time with the Mother and the Father on the children birthdays at times to be agreed between the Mother and the Father, and failing agreement, from 8:00am until 1:30pm or 1:30pm until 7:00pm for birthdays falling on weekends and between 3.00 pm until 7.30 pm weekdays with the Father or the Mother that the children are not spending time already with in that week; and that any provision of time under this order that is inconsistent with this paragraph be suspended.

6. That the children spend time with the Mother and the Father on:

   a)the Mother’s birthday, and

   b)the Father’s birthday,

   at times to be agreed between the Mother and the Father, and failing agreement, from 3.00pm until 7.00pm on a school day and from 9.00am until 3.00pm on a non-school day; and that any provision of time under this order that is inconsistent with this paragraph be suspended.

7. That the Mother and Father agree at all other times, that the children, if invited, are to attend any major and important family events on both the paternal and maternal side of their family.

8. That all changeover days that do not occur at the children’s school on a school day will alternatively occur, at the McDonald’s Restaurant located… Suburb K if falls on a non-school day or public holidays.

9. That during the time the children are with either parent, that parent shall:

   a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;

   b)Speak to the other parent respectfully;

   c)Not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that other do not denigrate or insult the other parent in the presence of hearing of the children;

   d)Provide the children to be seated in the correct safety harnessed booster car seats for the children’s height and weight applicable by Australian standards for transportation.

10. That the Mother and Father shall:

    a)keep each other informed at all times of their contact telephone number and another alternate contact number for emergencies;

    b)inform each other as soon as reasonably practicable of being aware of any medical condition, significant health issue or significant illness suffered by the children and treatment they are prescribed;

    c)Communicate with each other about the care, welfare and development of the children by an online communication book to be agreed upon;

    d)Communicate with each other by email, telephone and SMS for any non-urgent matters concerning the children;

    e)That each parent is to notify the other parent immediately by phone, of any urgent medical / hospital treatment required for the children, to allow for both parents to be in attendance with the child;

    f)Obtain a Mental Health Care Plan for the children from their treating medical practitioner to cover the costs of the counselling and behaviour therapy as required for the children.

11. That each party is hereby authorised to contact and obtain from the children’s school all notices, letters, school reports, school work, photos, and attend all assembly invitations, parent/teacher interviews or other activities, including school sporting and special events and other school matters involving the children.

12. That the children continue to communicate with the other parent by phone or any other internet device made available for the children.  That the parent provides their children with a working device for the children to hold and allow to use freely on their own to communicate without interruption and be given the privacy of not on speaker.  That if the parents can’t agree upon a time, then either parent is to call after 6:30pm and speak not less than 30minutes on a Tuesday and Thursday.

13. That the Independent Children’s Lawyer be discharged.

14. That unless that there are some emergent circumstances, before an Application is made to the Court for a variation of these Orders to take into account the changing needs of the children, each party is to take the steps referred to in the preceding Order.

15. Any other Order the Court sees fit.

APPENDIX TWO

1. That the Father have sole parental responsibility for the children B born … 2010 and C born … 2013 (“the children”).

2. That in the exercise of sole parental responsibility, the Father shall be required to:

   a)Inform the Mother in writing of his intention to make a decision, including the nature of the decision and a summary of his views and position;

   b)Provide the Mother with a copy of any documents and relevant information from any expert or source he has had regard to in informing his views and position;

   c)Invite the Mother to provide her views and position in writing, including the provision of any information, including any expert or source she has had regard to in informing her position;

   d)Give genuine consideration to the Mother’s views and position when reaching a decision; and

   e)Inform the Mother in writing of his decision in advance of the implementation of the decision.

3. That the children live with the Father.

4. That notwithstanding any other order herein, the children shall live with the Father on each Father’s Day, and in the event the children are spending time with the Mother on the weekend on which Father’s Day falls, the children shall be returned to the Father's care at 5pm on the Saturday.

5. That the children spend time and communicate with the Mother as follows:

   a)Until the commencement of Term 1 of 2019:

   i)From 9am on Christmas Eve until 4pm Boxing Day;

   ii)On each alternate weekend from Saturday 9am until Sunday 4pm, commencing 2 June 2018.

   b)During school terms, commencing the first weekend of Term 1 in 2019:

   i)On each alternate weekend from after school Friday until before school Monday;

   ii)Such weekend to extend to include the Thursday or Monday in the event of a public holiday or pupil free day;

   iii)Such time to be suspended at the conclusion of each school holiday period and resume after each school holiday period on the first Saturday of the new term; and

   c)During each school holiday  period (not including  any December/January school holiday period) commencing in the second school holiday period in 2019 for seven consecutive days commencing after school on the last day of term and concluding at 4pm on the second Saturday of the school holiday period; and

   d)Commencing in December 2019 for the second half of each December/January school holiday period in years ending in an odd number and the first half of each December/January school holiday period in years ending in an even number.

   e)On each Mother’s Day, from 9am until 5pm;

   f)By telephone on each Tuesday and Thursday and on each of the children’s birthdays between the hours of 7pm and 7.30pm.

6. That changeovers are to occur at the X Centre or school or such other changeover centre or service as may be agreed in writing with each party to be responsible for 50% of the cost of such service.

7. That both parents shall:

   g)Keep each other advised of their current residential addresses and current telephone numbers and email addresses,

   h)Complete a Triple P Course (not online) as soon as may be reasonably practicable,

   i)Keep each other advised of the details of any health care professional attending upon the children,

   j)Authorise any health care professional attending upon the children to release information concerning the children to both parents,

   k)Keep each other advised of the details of any health care required by and/or provided to the children,

   l)Be at liberty to attend any school, sporting or extra-curricular event attended by the children,

   m)Be at liberty to provide a copy of the orders to the Queensland Police Service, the Department of Child Safety, any health care professional treating the children and any school attended by the children,

   n)Inform the other parent if the children are travelling interstate and provide a contact telephone number,

   o)Ensure the children complete their primary education at Suburb K State School unless the Father is able to arrange for the children's attendance at a private school in the Suburb K area,

   p)Be at liberty to have another responsible adult attend to collection and delivery, provided the children are transported by a driver who holds a licence other than a Learners licence.

1. That each parent shall be restrained from:

   a)Making or permitting derogatory remarks concerning the other parent or members of the children's extended family to or within the hearing of the children;

   b)Approaching the other parent at school, sporting or extra-curricular events attended by the children;

   c)Enrolling the children in any sporting or extra-curricular event that would require the other parent to arrange for the children to attend unless with the consent of the other parent;

   d)Recording the children's interaction with the other parent;

   e)Discussing the evidence in the proceedings with the children;

   f)Using physical discipline on the children;

   g)Communicating with each other in a manner other than by email or sms.

2. That the time the children spend with the Mother be suspended for the period from 15 September 2019 to 29 September 2019 and the Father be at liberty to travel with the children to Country LL during this period.

3. That within 28 day the parties shall do all acts and things and sign all documents required for the children to be issued with Australian passports.

4. That the Father shall be responsible for the children's passports being retained by his lawyers and each party shall advise the other in writing of their intention to access the passports and when the particular travel has been completed the passports shall be returned to the Father's lawyers.

5. That each party be at liberty to travel overseas with the children during periods the children are in their care pursuant to these orders and in the event they do so, must provide written notice to the other party in advance and copies of all travel documents concerning the children.

6. That all previous parenting orders be discharged.

7. That the Independent Children's Lawyer be discharged.

APPENDIX THREE

1. That the parties have equal shared parental responsibility for the children, B (born ...2010) and C (born ...2013) (the children), in relation to the care, welfare and development involving the children, including, but not limited to:

   a)The education of the children - both current and future;

   b)The religion of the children;

   c)The health of the children;

   d)Any change to the children's living arrangements, including their residence that may make it significantly more difficult for the children to spend time with any parent.

2. The parties shall consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   a)Step One:

   i)Inform the other parent about the decision to be made and their position in regard to the decision in writing;

   ii)The other parent provide their position in writing within 7 days;

   iii)Make a genuine effort to come to a mutual decision.

   b)Step Two:

   If a joint decision cannot be reached then the parties shall consult with their therapeutic personnel  about the decision to be made to reflect upon their own decision making and whether other options are available so that the parties can reach a decision,

   c)Step Three:

   If a joint decision cannot be reached or there is a dispute about these orders then:

   i)The parties shall consult with the registered family dispute resolution practitioner;

   ii)The parties shall pay the cost of family dispute resolution practitioner equally;

   iii)In the event that the parties cannot agree on a registered family dispute resolution practitioner, the Mother shall nominate three practitioners and advise the Father in writing details of the experience, fees, and availability of each practitioner;

   iv)The Father shall choose one of the listed practitioners with seven days of receipt of the list;

   v)If the Father fails to choose, then the Mother may choose.

Orders for day to day care, welfare and development

1. That the Father shall have sole responsibility for making decisions about the children's day to day care, welfare and development during times the children lives with or spends time with the Father.

2. That the Mother shall have sole responsibility for making decisions about the children's day to day care, welfare and development during times the children lives with or spends time with the Mother.

3. That the children live with the Father.

4. That the children spend time and communicate with the mother as agreed between the parties, and failing agreement as follows in a fortnightly cycle

   a)until the child reaches high school:

   i)in week one from Wednesday after school until Friday before school;

   ii)in week two from Friday after school until Sunday at 4.00pm;

   b)at the commencement of school year in 2021:

   i)in week one from Wednesday after school until Monday before school in week two;

   c)after the B reaches high school:

   i)for a period of two weeks with the mother, and

   ii)for a period of two weeks with the father with changeover  to occur on Friday after school.

5. That any changeovers are to occur at McDonalds at Suburb K if changeovers are unable to occur at school. Changeovers can be conducted by the parent or other person authorised by parent as long as they have a valid open licence with each party bearing their own costs of travelling.

6. No parent shall withhold the children from the other, without a substantiated notification against the other parent by the Department of Child Safety and the Department of Child Safety has confirmed that notification in writing.

Orders for parental communication

1. That either by communication book, email, other agreed electronic means or telephone (in an emergency only) both parents shall ensure the other parent is kept informed as soon as is reasonably practicable but at a maximum of 24 hours of any serious medical problems/emergencies or illness suffered by the children, whilst in the care of that parent (notification is to be provided forthwith with details of the illness/injury as well as the treating Doctor/hospital if applicable).

2. That either by communication book, email, other agreed electronic means or telephone both parents shall ensure the other parent is kept informed as soon as is reasonably practicable but at a maximum of 7 days of:

   a)any medication that has been prescribed for the children;

   b)any referral made by the doctor including but not limited to specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children;

   c)a copy of all written information provided by any practitioner in 9 and 10(b) and advise of all recommendations made during that referral;

   d)the telephone contact numbers of the parent and any email address;

   e)any other matter relevant to the welfare of the children including but not limited to matters like sporting activities, special school events (e.g. sporting award being presented) and any special days for extracurricular activities (e.g. trophy day).

School Holidays

1. The parties shall spend time on school holidays as agreed and failing agreement in writing as follows:

   a)That the children spend time with the Father for one half of all school holiday periods, being the first half in odd numbered years and the second half in even numbered years; and that any provision for time in this order that is inconsistent with school holiday time be suspended during school holiday periods;

   b)That the children spend time with the Mother for one half of all school holiday periods, being the second half in odd numbered years and in the first half in even numbered years; and that any provision for time in this order that is inconsistent with school holiday time be suspended during school holiday periods.

   c)That if either parent seeks to temporarily vary the time the children spends with either party, that parent will provide the other with 72 hours notice of that proposal, in writing via  text, email or in a letter. The other party shall respond within 24 hours of receiving the request in writing via text, email or in a letter. If no agreement can be reached in writing then the Orders of this Court will be adhered too.

Special Occasions

1. The parties shall spend time on special occasions as agreed and failing agreement as follows:

   a)The father shall spend time with the children from 3pm Christmas Eve to 3pm Christmas Day in odd years and from 3pm Christmas Day to 3pm Boxing Day in even years;  The mother shall spend time with the children from 3pm on Christmas Day to 3pm on Boxing Day in odd years and on even years from 3pm Christmas Eve to 3pm on Christmas Day.

   b)The father shall spend time with the children from 3pm Easter Saturday to 3pm Easter Sunday in odd years and from 3pm Easter Sunday to 3pm Easter Monday in even years. The Mother shall spend time with the children from 3pm Easter Sunday to 3pm Easter Monday in odd years and from 3pm Easter Saturday to 3pm Easter Sunday in even years.

   c)The mother shall spend time with the children from 9.00am until 5.00pm Mother's Day if the children would ordinarily be in the fathers care.

   d)The father shall spend time with the children from 9.00 am until 5.00pm on Father's Day if the children would ordinarily be in the mothers care;

   e)If the children's birthday falls on a weekend or non school day and is in the Fathers care then the children will spend time with the Mother from 9.00am to 3.00pm in odd numbered years and in alternate years thereafter from 3.00 pm to 7.OOpm.. If the children's birthday falls on a weekend or non school day and is in the Mothers care then the children will spend time with the Father from 3.00pm to 7.00 pm in odd numbered years and 9.00am to 3.00pm in even numbered year.  If the children's birthday falls on a school day and is in the Fathers care then from the Mother shall spend time with the children from after school to 7.00 pm and if the children is in the Mothers care then the Father shall spend time with the children from after school to 7.00pm.

   f)That the children will spend time with the Father from 9.00am to 5.00pm if the fathers birthday falls on a weekend when the mother is due to spend time with the children. That the children will spend time with the Father from after school to 7.00 if the father’s birthday falls on a weekday.

   g)That the children will spend time with the Mother from 9.00am to 5.00pm if the mothers birthday falls on a weekend when the father is due to spend time with the children. That the children will spend time with the Mother from after school to 7.00pm if the mother’s birthday falls on a weekday.

Telephone

1. That when the children are not spending time with the mother, the mother shall be permitted to call or skype the children on Tuesday between 6.30pm and 7.00pm unless otherwise agreed in writing.

2. That when the children are not spending time with the father, the father shall be permitted to call the children on Friday between 6.30pm and 7.00pm unless otherwise agreed in writing.

3. All devices that are utilized for the purpose of communication are to be operable.

4. That the party who the child .is not living with, shall initiate the communication.

5. No party is to record (ie video, audio or in writing) the communication between the children and the other parent and are to provide privacy to the children for the duration of the communication.

6. That the parties are to facilitate communications at the children’s request at all times.

School

1. The children shall attend Suburb K Primary School unless the parties agree in writing prior to any change.

2. The children shall attend Suburb K High School unless the parties agree in writing prior to any change.

3. The contact details for the school shall include both parties’ names with the father to be the primary contact but the mother shall be included as a secondary contact and an emergency contact as well.

4. The parties are restrained from preventing the children to attend upon the school guidance officer.

Information

1. That either parent be permitted to liaise directly with the children's daycare, Kindergarten, pre-school, school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress, at the requesting parties expense.

2. That this order authorises the parties to obtain any information and documents regarding the children from any medical or other health care provider.

3. That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.

4. That neither parent denigrate the other or any members of their extended family to, or in the presence of, or within the hearing of the children and shall direct third parties to refrain from denigrating either party or their extended family to, or in front of, or within hearing of the children and failing the third party's compliance with such a direction shall remove the children from that environment immediately. Neither party is to discuss any court proceedings of any other adult matter with or in the presence of the children and both parties and to encourage and not undermine the children's relationship with the other party.

5. If there is a cost associated with the provision of any information or documents under these Orders from the children's doctors, healthcare and other treatment providers or day care, school, education facility or extracurricular activity provider, the expense shall be borne by the party requesting the information or documentation.

Travel

1. That the mother and father are to do all acts and things and sign all documents necessary to obtain an Australian passport for the children and to ensure that the children's passport is kept up to date at all times including signing and returning any document required to apply for or renew the passport within 7 days of the other party delivering the document to the party; and the parent that seeks the issue of passports shall bear the costs.

2. That the father shall, within seven (7) days of receipt of the children's passports, provide the mother with a copy of each passport's front page, by email.

3. That

   a)the time with the children spent with the Mother be suspended for a the period from 15 September 2019 to 29 September 2019 and the Father be at liberty to travel with the children to Country JJ during this period.

   b)That the father provide all information required for normal travel overseas.

   c)That providing written confirmation of Order 29(b) the Father also nominate when make up time is to occur.

4. Neither of the parties shall take the child outside of the Commonwealth of Australia without the written consent of bo.th parties (and such consent shall not be unreasonably withheld) or the Family Court of Australia.

5. In the event that either party wishes to take the child outside of Australia, for the purposes of a holiday or family event during school holiday periods, the parent who proposes such travel shall provide the other parties with the following information, not less than 45 days prior to the date of intended travel:

   a)An itinerary and details of the destination of intended travel including departure and return dates, flight numbers, accommodation details and copies of travel document which include return flight details;

   b)Notification of where the child will be staying and mobile telephone number or other means of contact on which the child may be contacted and when, and

   c)Proposed plans for make up time if the other parents time will be interrupted.

6. The other parent has 14 days to communicate their decision in writing to the requesting party.

7. The party who has last travelled shall retain the children’s passport.

8. The party who holds the passport shall provide the passport to the travelling party upon written consent of both parties at least 21 days prior to travel.

General

1. That the mother shall:

   a)engage with a psychologist of her choice;

   b)at time intervals as advised by her psychologist,

   and provide written confirmation to the father from the psychologist each 6 months that she is engaged with a psychologist.

2. That the father shall complete:

   a)an anger management course; and

   b)parenting course concerning discipline of children

   within 12 months of this order and provide written confirmation of completion of these courses to the mother.

3. That the parties shall enrol and complete post parenting course within 12 months of this order.

4. That the parties attend one medical practitioner namely U Medical Centre.

5. That the independent children’s lawyer be dismissed.

6. That all previous Orders be dismissed.