MORTON & ALLAN (No.2)
[2018] FCCA 2493
•5 October 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MORTON & ALLAN (No.2) | [2018] FCCA 2493 |
| Catchwords: FAMILY LAW – Parenting – where there is past family violence – where risk of harm has abated – whether the children should spend unsupervised time with their father. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA. |
| Cases cited: Morton & Allan [2015] FCCA 1477 MRR v GR [2010] HCA 4 |
| Applicant: | MR MORTON |
| Respondent: | MS ALLAN |
| File Number: | WOC 1069 of 2014 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 23 July 2018 |
| Date of Last Submission: | 23 July 2018 |
| Delivered at: | Sydney |
| Delivered on: | 5 October 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Lawrence |
| Solicitors for the Applicant: | Legal Aid NSW |
| The Respondent appeared in person |
| Counsel for the Independent Children's Lawyer: | Mr Grew |
| Solicitors for the Independent Children's Lawyer: | Acorn Lawyers |
ORDERS
Subject only to Order 10 below, that all previous parenting Orders are hereby discharged.
That, subject to Orders 3, 4 and 24 below, the Mother has sole parental responsibility for the children [W] (born 2002), [X] (born 2006), [Y] (born 2008) and [Z] (born 2009) in relation to the care, welfare and development of a long-term nature.
That the Mother and Father have equal shared parental responsibility for the said children in relation to any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.
That the Mother must notify the Father of any long-term decisions she has made as soon as is practicable after the making of the decision.
That the children live with the Mother.
That the child [W] spend time and communicate with the Father at any time as arranged directly between [W] and the Father in accordance with his wishes.
That, subject to Orders 8, 9 and 10 below, the children [X], [Y] and [Z] spend time with the Father as follows:
(a)Stage 1: from the date that the Father moves into larger accommodation and continuing for a period of 8 weeks:
(i)Commencing on the first Friday, and thereafter on each alternate Friday from after school (or 1:00pm on non-school days) until 7:00pm Saturday;
(ii)Commencing on the first Sunday, on each alternate Sunday from 1:00pm to 7:00pm; and
(iii)On each Tuesday from after school (or 1:00pm on non-school days) to 7:00pm;
(b)Stage 2: thereafter for a period of 8 weeks:
(i)Continuing in the same alternate weekend pattern in Order 7(a) above, on each alternate Friday from after school (or 1:00pm on non-school days) until 7:00pm Saturday;
(ii)Continuing in the same alternate weekend pattern in Order 7(a) above, on each alternate Sunday from 1:00pm to 7:00pm; and
(iii)Each week from after school Tuesday (or 1:00pm on non-school days) until the start of school Wednesday (or 7:00pm on non-school days);
(c)Stage 3: thereafter, and for a period of 12 weeks:
(i)In Week One:
A.From 1:00pm Sunday to before school Wednesday (or 7:00pm Wednesday on a non-school day); and
B.At other times as agreed between the parents.
(d)Stage 4: thereafter:
(i)In Week One, from 1:00pm Sunday to before school Wednesday (or 7:00pm Wednesday on a non-school day)
(ii)In Week Two, from Friday after school (or 1:00pm Friday if a non-school day) to 7:00 pm Saturday and continuing in the same pattern;
(iii)During the end of Terms 1, 2 and 3 school holidays the Father’s time with the children in accordance with Order 7(d) above will continue in school holiday periods but will be extended by one night in Week One;
(iv)During the Christmas school holidays, the Father’s time with the children in accordance with Orders 7(d)(i), 7(d)(ii) and 8(b) will continue in Christmas school holiday periods except if the Father is able to obtain leave from his employment he can spend time with the children for a period of two weeks excluding the special occasion days of Christmas Day and Boxing Day and provide the Mother with two weeks’ notice of the intended two week period. In the event the Father spends a two week block with the children then the time in accordance with Orders 7(d)(i), 7(d)(ii) and 8(b) is suspended.
(e)At such other times as are agreed to between the parents.
That the children [X], [Y] and [Z] will also spend time with the Father on such special occasions as the parents agree, but specifically as follows:
(a)From 1:00pm until 7:00pm on Father’s Day;
(b)From 1:00pm on Christmas Day until 1:00pm on Boxing Day (or, in the event the Father has not yet secured larger accommodation, from 2:00pm until 7:00pm on Christmas Day).
That the children [X], [Y] and [Z] will spend time with the Mother on such special occasions as the parents agree, but specifically as follows (and the Father’s time with the children as set out in Order 7 above will be suspended):
(a)From 1:00pm on Christmas Eve until 1:00pm on Christmas Day;
(b)From 9:00am on Easter Saturday until 9:00am on Easter Monday;
(c)It is noted that, in the event the children are due to spend time with the Father on the weekend that includes Mother’s Day, the children will spend time with the Mother on Mother’s Day until 1:00pm.
That the children’s overnight time with the Father pursuant to Order 7 above will not commence until the Father has secured larger accommodation. Until such time that this occurs, the children [X], [Y] and [Z] will continue to spend time with the Father pursuant to Orders 17(c) and 17(g) of the Orders made on 8 August 2017. The Father’s solicitor will notify the Mother in writing once the Father has secured larger accommodation and include in such notification the date that the Father will be moving into the larger accommodation (and, if required, an alternate changeover venue as per Order 11(c) below) and the spend time with arrangements as set out in Order 7 above will apply from that nominated date.
That, for the purposes of Orders 7 to 10 above, unless as is otherwise agreed to between the parents, changeover will occur as follows:
(a)Unless the children’s time with the Father begins at the end of a school day, in which case the Father is to collect the children from school, the Father or his agent will collect the children from the Mother or her agent at the start of each visit in the carpark of the Supermarket in Suburb A;
(b)Subject to (c) below, unless the children’s time with the Father ends at the start of a school day, in which case the Father is to deliver the children to school, the Mother or her agent will collect the children from the Father or his agent at the end of each visit in the carpark of the Supermarket in Suburb B;
(c)In the event the Father’s accommodation is transferred to a different suburb, the Father will nominate in writing to the Mother an alternate changeover venue for the end of the children’s time with the Father on non-school days, and it is noted that the venue will most likely be a supermarket closest to the Father’s new home;
(d)The parent (or agent) arriving with the children shall deliver them to the parent (or agent) collecting the children and shall immediately leave the changeover location and shall not remain in the vicinity for any more than 5 minutes;
(e)Each parent (or agent) is to ensure that changeover proceeds as quickly as possible;
(f)Each parent is to ensure that they keep a reasonable physical distance from the other parent and refrain from communicating directly with the other parent, except for exchanging brief greetings and/or farewells.
That:
(a)the children [X], [Y] and [Z] will communicate with their parents via telephone, Skype, FaceTime, email and/or any other form of communication at any reasonable time; and that each parent will facilitate any reasonable request made by the children to contact the other parent; and
(b)each parent is permitted to contact the children by telephone at any reasonable time when the children are in the other parent’s care, and that each parent will facilitate any reasonable attempt the other parent makes to contact the children by telephone.
That each parent will ensure that the other parent is kept informed of:
(a)any serious medical problems or illnesses suffered by the children, with the other parent to be notified as soon as possible;
(b)any medical emergencies involving the children, with the other parent to be notified immediately;
(c)any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent, with the other parent to be notified at the time of changeover;
(d)any specialist appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);
(e)any change to the parents’ contact mobile telephone numbers, with any such changes to be advised within twenty-four (24) hours;
(f)any other matter relevant to the welfare of the children, with the other parent to be notified as soon as is reasonably practicable.
That each parent will provide to the other parent full particulars of any medical practitioner, health service provider or institution attended by the children; and that this Order operates as the authority of each parent to the medical practitioner, health service provided or institution attended by the children to provide to either parent such information as he or she may seek in relation to the children.
That each parent is permitted to liaise directly with the children’s school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children’s progress; and that this Order operates as the authority of each parent to the children’s school(s), sporting bodies and/or extra-curricular organisations to provide to either parent such information as he or she may seek in relation to the children.
That this Order operates as the authority of each parent to the children’s school(s) to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
That each parent and member of their respective families is entitled to attend all events involving the children including, but not limited to:-
(a)sporting fixtures;
(b)extracurricular activities that allow for parental attendance or participation;
(c)school functions and events that allow for parental attendance or participation.
That each parent is restrained by injunction from making critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the children; and that each parent must do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the children.
That, without admissions, each parent is restrained by injunction from:
(a)using and/or being affected by any illegal substance while the children are in their care;
(b)drinking alcohol to excess while the children are in their care;
(c)exposing the children to any other person who is using or who is affected by any illegal substance or who has consumed alcohol to excess;
(d)physically disciplining the children or allowing any other person to do so; and
(e)leaving the children without proper adult supervision.
That, for the purposes of parental communication, unless as otherwise agreed to between the parents:
(a)Parental communication will be facilitated by the Father communicating with the maternal uncle Mr K by telephone and/or text messages (or, in the event the maternal uncle becomes unable or unwilling to assist, the Mother will nominate another agent to assist with parental communication or the Mother will advise the Father that she is prepared to directly participate in such parental communication);
(b)That each parent is restrained from using abusive and/or aggressive language in any form of communication between them;
(c)The parents will be courteous and civil towards each other at all times but especially in the presence or within the hearing of the children;
(d)The parents will do all things reasonably necessary to ensure that no other person (including but not limited to members of their families or any agent nominated by the Mother as per 20(a) above) uses abusive and/or aggressive language towards the other parent, especially in the presence or within the hearing of the children.
That all items that the children take with them when they are spending time with the Father be returned with the children at the conclusion of time (e.g. toys and clothing); and that all items that the children take with them after they have spent time with the Father be returned with the children on the next occasion they spend time with the Father.
That in the event either parent intends to travel with the child for a holiday out of the State of New South Wales, they are to advise the other parent no later than seven (7) days prior to the intended departure date, with such advice to include departure and return dates, general holiday location information and emergency contact details.
In the event either parent wishes to spend an extended holiday period with the children, which would impact on the children’s time with the other parent:
(a)The parent planning the extended holiday must provide no less than 3 months’ notice to the other parent (unless as otherwise agreed);
(b)The other parent will give reasonable consideration to the proposal and will not unreasonably withhold their consent;
(c)The children will spend additional time with the non-travelling parent to make up for any time missed, with such make up time to occur prior to and/or within 60 days of the children’s return from the extended holiday period as agreed between the parents or, failing agreement, as nominated by the non-travelling parent.
That, notwithstanding Order 2 above:
(a)In the event a staff member from one of the children’s schools are unable to contact the mother by telephone and the child/ren have a pressing need of concern to the school, that staff member can contact the father by telephone and the father is permitted to respond to that need whether or not the children are due to come into the father’s care after school that day;
(b)Such response from the father can include (but is not limited to) providing directions to the school that are required to address the need of concern and/or collect the child/ren from school if necessary;
(c)In the event the father does collect the child/ren from school, the father will forthwith notify the mother and make arrangements for the child/ren to be returned to the mother as soon as is reasonably practicable, or otherwise in accordance with the spend time with arrangements set out in these Orders.
NOTATIONS
A.It is noted that [X] is likely to attend School 1 High School in 2019. On school days that the children spend time with the Father in accordance with these Orders, the Father will make arrangements to collect the younger children from (or deliver them to) School 2 Public School and then [X] from (or to) School 1 High School (unless the Father and [X] make arrangements for [X] to catch public transport to and/or from school).
B.The father’s solicitor will prepare a calendar of the spend time with arrangements for the Father and will provide a copy to the Mother.
IT IS NOTED that publication of this judgment under the pseudonym Morton & Allan (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 1069 of 2014
| MR MORTON |
Applicant
And
| MS ALLAN |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about four children, [W], who is 16 years old; [X], who will be nearly 11 by the time Judgment is delivered; [Y], who is 10; and [Z], who will be nearly 8 by the time of this Judgment. These Reasons for Judgment explain the Orders that the Court has made for the children to spend time with their Father.
Background
The Father in this case is the Applicant. He is 47 years old and describes himself as a (occupation omitted). The Mother is the Respondent. She is 39 years old and describes herself as undertaking home duties.
The family has had a very traumatic life. They met and commenced their relationship whilst they were living in the (country omitted). They married, but shortly thereafter the civil war in the (country omitted) resulted in their separation and becoming refugees. They were reunited after several years. [W] and [X] were born in (country omitted), where their parents were refugees. In mid-2007, the family, consisting of the parents and the two older children at that time, resettled as refugees in Australia, living in the Region I region.
The two younger children were born. The relationship between the parents appears to have deteriorated from about 2010. Separation probably occurred early in 2011. The children remained in the Mother's care, but the Father was involved in their lives. He says he was heavily involved in their lives, but the Mother denies this. It is not necessary to determine this disputed issue. The evidence of both parents suggests that even after separation their relationship was somewhat ambivalent, and they probably saw each other quite often, as the Father wanted to spend time with his children, and the Father's care of the children enabled the Mother to do other things.
In October 2014, there was a serious incident of family violence that was perpetrated by the Father against the Mother in the presence of the children. My Reasons for Judgment delivered on 15 May 2015, and reported as Morton & Allan [2015] FCCA 1477, refer in detail to this event, to the surrounding history and to the impact on the Mother and children of the event. There is no need revisit those findings in the present context. My Reasons for Judgment, on an interim basis, ordered the children to live with their mother, but to have no contact with their father.
In the penultimate paragraph of my Reasons for Judgment, I foreshadowed a willingness to re-examine the Orders once an expert evaluation of the case had been obtained. As will be seen, that is exactly what happened.
Dr M was appointed as the Single Joint Expert in this case. He is a forensic and clinical psychologist. He has provided two Reports to the Court, one on 1 February 2016, the second on 6 June 2018.
When his first Report was released, the matter came before me and further Interim Consent Orders were made, which provided for the three younger children to have supervised contact with their father, and with any time between the Father and his oldest son, [W], to be initiated by [W].
The supervised contact appears to have gone well. Indeed, on 6 February 2007, when the matter came back before me for Interim Hearing, I made further Interim Orders for unsupervised contact between the three younger children and the Father, but with supervised changeover.
The matter was originally listed for Final Hearing on 8 August 2017. Regrettably, the matter could not be reached. However, Consent Orders were made on a final basis for most of the disputed issues, and on an interim basis, for the Father to spend time with the children on a daytime, but unsupervised basis. The parents agreed, for example, that the Mother should have sole parental responsibility, but equal shared parental responsibility in relation to any change to the children's living arrangement that might make it significantly more difficult for the children to spend time with either parent.
The children were to live with their mother. [W] was to spend time and communicate with his father at any time arranged directly between [W] and the Father. There were Orders about communication, provision of information, direct liaison with schools, non-denigration, and a number of restraints. The outstanding issue remained, the Father's time with the three younger children.
From August 2017, and ongoing, the Father has been spending time with the three youngest children each alternate Sunday from 1:00pm to 6:00pm. In those Orders, the time increased from 7 October 2017 to each alternate Saturday from 10:00am to 4:00pm, (and then to 7:00pm from 1 January 2018), each alternate Sunday from 1:00pm to 6:30pm and on each Tuesday from after school to dinnertime. All of the evidence suggests that this contact has proceeded very well from both the Father, and the children's perspective.
The matter was originally set down for Final Hearing on 26 and 27 April 2018, but those dates, regrettably, had to be vacated and the matter was set down for Final Hearing on 23 July 2018.
At the Final Hearing, the competing proposals were as follows. (The focus will be on the contentious issue, i.e. the younger children's time with their father.)
The Independent Children's Lawyer proposed that [X], [Y] and [Z] spend time with their father in three stages. Stage 1 would commence from the date that the Father moved into larger accommodation, and would continue for eight weeks. The children would spend time with him each alternate Friday from after school until 7:00pm Saturday, and then each alternative Sunday from 1:00pm to 7:00pm. In addition, the children would spend time with the Father from after school to 7:00pm on each Tuesday.
Stage 2 would continue for a period of four weeks. The alternating weekend pattern would continue. However, each Tuesday, the children would spend time with their father from after school until the start of school the following day. Thereafter, stage 3 would provide the following arrangement, which would encompass the 2018/19 Christmas school holidays, as well as the school terms thereafter. In week 1, the children would spend time with their father from Friday after school to 7:00pm on Sunday, and in week 2, it would be from 1:00pm on Sunday to before school on Wednesday.
By the time of stage 3, therefore, the children would be spending time with their father four nights each fortnight. The Independent Children's Lawyer proposal also dealt with school holiday and special times. There was a specific order dealing with the commencement of the Father's overnight time once he had secured larger accommodation. There were detailed arrangements about changeover and communication. The Independent Children's Lawyer's Minute of Order is reproduced in the First Schedule to these Reasons.
The Mother's proposal was set out in her Amended Response filed 10 July 2018. Whilst the Mother was representing herself at the Hearing, it is clear that she had been legally assisted up to and including the preparation of this Amended Response. Likewise, her Trial Affidavit filed 10 July was prepared with the assistance of her lawyer at the time. She proposed that the three youngest children spend time with their Father on each alternate Saturday from 10:00am until 7:00pm and each alternate Sunday from 1:00pm until 6:30pm.
She also proposed time each Tuesday from after school until 6:30pm, and proposed an arrangement for special days. The Orders proposed by the Mother are also reproduced in the First Schedule to these Reasons.
The Father's proposed Order is set out in his Amended Application that was filed 5 July 2018. His was also a staged proposal. Stage 1 was similar to that of the Independent Children's Lawyer, i.e. that from the date that he moved into larger accommodation, and for a period of eight weeks thereafter, the children would spend time with him each alternate Friday from after school until 7:00pm Saturday, and each alternate Sunday from 1:00pm to 7:00pm, and each Tuesday from after school to 7:00pm.
Stage 2, to continue for four weeks, would introduce overnight time on Tuesday nights. The third stage and ongoing, again similar to, but not identical to the Independent Children's Lawyer's proposal, provided that each alternate weekend the children would spend time with their father from 1:00pm Sunday to the start of school on Thursday, and each alternate weekend from after school Tuesday until the start of school Wednesday. Effectively, the difference between the Father's proposal, and the Independent Children's Lawyer's proposal, was one extra overnight each fortnight. The Order proposed by the Father is also reproduced in the First Schedule to these Reasons for Judgment.
The issues therefore present as being what time the children should spend with their father, whether and when it should progress to overnight time, the role of supervision, and the weight that should be given to the views expressed by the children. At a deeper level, and at the heart of the Mother's concerns, was whether the children were at some form of risk of harm in their father's care, and how this risk might be adequately managed.
The Independent Children's Lawyer prepared a very useful chronology, which is reproduced in the Second Schedule to these Reasons. Most of the assertions therein are non-contentious. Where matters are in contention, and the facts required determination, it will be dealt with in these Reasons.
The evidence
In the Father’s case, he relied on the following documents:
a)Amended Initiating Application, filed 5 July 2018;
b)Affidavit of Mr Morton, filed 5 July 2018; and
c)Affidavit of Mr Morton, filed 14 July 2017.
In the Mother’s case, she relied on the following documents:
a)Amended Response to Initiating Application, filed 10 July 2018;
b)Affidavit of Ms Allan, filed 10 July 2018; and
c)Affidavit of Ms Allan, filed 17 July 2017.
The following materials were tendered as evidence during the proceedings:
a)Expert’s Report of Dr M dated 1 February 2016;
b)Updated Expert’s Report of Dr M dated 6 June 2018;
c)Documents produced in answer to subpoena on Dr S at Medical Centre;
d)Documents produced in answer to subpoena on Ms L at Medical Centre;
e)Documents produced in answer to subpoena on School 2 Public School; and
f)Documents produced in answer to subpoena on Relationships Australia.
The applicable law
The applicable law is found in Part VII of the Family Law Act (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.
Determining child's best interests
(1) Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i) each of the child's parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j) any family violence involving the child or a member of the child's family;
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
The Case Law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The expert evidence
It is convenient to deal with the evidence of the Expert in this case, Dr M, before considering the other evidence. The advantage of Dr M’s evidence is that it is both independent and expert.
Whilst Dr M prepared two Reports, as mentioned earlier in these Reasons, the focus will be on the latter Report. Dr M’s earlier Report clearly informed the Consent Orders for the children to spend supervised time with their father.
At the time of preparing his second Report, Dr M had available to him all of the material which was available to the Court, as at the date of the interviews in May 2018.
His recommendations come in on page 19 and warrant reproduction full:
The author is of the opinion that contact between Mr Morton and his children [Z], [Y] and [X] be continued unsupervised. The author further recommends that the father’s time be enhanced by the gradual implementation of overnight stays, dependent upon his obtaining suitable accommodation. During school terms, in the first instance, overnight accommodation should occur on alternate Friday evenings from 3.30pm or after school until 7pm on the Saturday night on a fortnightly basis. From the commencement of this arrangement (dependent upon suitable accommodation), four consecutive fortnightly overnights should occur to allow the children to acclimatise and overcome any apprehension. During this time, the father’s regular alternate Sunday afternoon should continue. However, the Tuesday after school contacts should continue on a weekly basis. Following four consecutive fortnightly overnight Fridays (8 weeks), the contact should be enhanced to include Tuesday overnight stays on a weekly basis, from 3.30pm or after school until 9am or the beginning of school on a Wednesday, thus affording the father an opportunity to engage in the school routine. The father should purchase a spare uniform for each child so that they may attend school on the Wednesday in a clean uniform. During the period of Tuesday night stays, the Friday night, Saturday and Sunday afternoon arrangements should continue.
Following four consecutive Tuesday overnights (incorporating 2 ongoing Friday nights), the father’s contact should be extended on the alternate Sundays that he has access to the children, such that the children remain with the father from Sunday 1pm through to Wednesday 9am or the start of school. The Friday night and Saturday until 7pm should continue, as should the regular Tuesday night in alternate weeks. In effect, this will provide the father with 5 nights per fortnight. It is not recommended that there be any further extension of the father’s access unless agreed in writing between the parties. However, the father should have reasonable access to 1 the children on special occasions in accordance with the Father’s Amended Initiating Application, with the exception of Easter, given that the children have a specific relationship with the mother with respect to religion and the significance of this period in their religious experiences.
With respect to school holidays, the above recommendations should be maintained until the commencement of the 2019 school year. From the first vacation, excluding Easter (as above), the father should have access from 9am Monday morning until 7pm Saturday night on alternate weeks of the holiday period during the short holidays (thus enabling the continuation of the children’s church activities with the mother). During the long break, the father should be accorded a two week block period in the middle of the vacation, thus enabling him to take holidays with the children if he so wishes. During this time the children’s Church activities will be suspended (no more than two Sundays). Either side of that 2 week block, the mother should have custody and the school term arrangements should be suspended. This will minimise the time that the father has no contact with the children, while maintaining the bulk of time with the mother, as requested by the children.
With respect to Parental Responsibility, the mother should retain sole PR for the children, except with respect to any change in the children’s living arrangements that might affect the access of either parent to the children, wherein this instance PR is shared. It is further recommended that in the event that the school is unable to contact the mother and the children have a need of concern to the school, that the father be permitted to respond to that need when the children are not in his care.
Earlier in his Report, Dr M expressed the view that notwithstanding the lengthy period of the Father having no contact with the children, and then a further period of having supervised contact with the children, what he had observed suggested that the Father had re‑established an attachment relationship between the children and himself. His view was, therefore, that the children (in this regard, meaning the younger children), had a meaningful relationship with both their father and mother.
He commented on the question of risk of harm. When the Mother's case is considered later in these Reasons, it will be seen that foremost in her mind was a concern that the children were still at risk of harm from their Father, who had been violent to her in their presence in 2014. Dr M was firmly of the view that there was no risk of harm from the Father. The material before him suggested that the Father had been strictly compliant with Orders of the Court, which served to keep the parents apart and provide no opportunity for conflict or violence between them.
Dr M was of the view that the Mother remained focused on her past experiences of the father in the relationship. The Court will later describe this as being a subjective fear with no objective basis. Dr M’s view was that the only risk to the children was a psychological one, associated with parental conflict, and denigration. He was concerned that the Mother was, through her actions and attitudes, conveying the view that the Father was untrustworthy, and a risk to the children. The risk of psychological harm was one that could be met by the Mother receiving counselling to assist her to separate her fears and her relational beliefs from her parenting of the children.
In relation to the children's views, Dr M’s opinion was that the history of the matter indicated that the children had moved from what was clearly an initial reticence to engage with their father, over time, to accepting and enjoying increasing engagement with their father. Whilst the children were still reflecting their mother's view that the Father was untrustworthy, he found that the children were unanimously and reliably consistent in their view that they wanted to spend time with their father.
His view was that given the children's age and maturity, their view should be given weight. He believed that they would become comfortable with overnight stays.
He was of the view that the children had a good relationship with their father, as well as with their mother. He had no concerns about the Father's ability to encourage the children's relationship with their mother, but was concerned about the reverse. Dr M was concerned about sudden changes in the children's lives, for example, a rapid move towards significant separations from their mother. He thought that the children's well-established routines and peer relationships needed to be respected.
Dr M thought there were no significant issues of parental capacity. The parents shared the same cultural background. In the Mother's home, the children have a strong connection to their mother's church and faith, and it was thus important not to disrupt their religious activities.
He opined that whilst it was obvious that the children had been exposed to past family violence, there was no observable fear or anxiety evidenced by the children when seen with their father. The effect of the violence they had experienced in the past is not determined by the Father's ongoing or recent actions, but rather by the Mother’s continued antipathy. He thought it was very important for the Mother to release the children from her own fears about the Father. There were no mental health, drug or alcohol or personality issues to be concerned about.
The parents do not communicate directly and handovers had been managed without issue by the maternal uncle.
A gradual progression to increase the children’s time with their father was in their best interests, but it was equally clear to respect their desire to spend the majority of their time with their mother.
From the Court's perspective, it was important to understand the Mother's concerns, albeit as viewed from Dr M’s perspective. He found her to be a person who struggled to trust anyone except God. She presented as still traumatised by the Father's past violence. She was trusting God to help her to overcome this trauma.
When given the opportunity to set out concerns about how the children are coping with time with their Father, nothing of any significance was raised. Indeed, the Mother said that the children are never upset when they return home from spending time with their Father, something that she accepted was a good thing. One concern the Mother had, based on what the children reported to her, was that the children were uncomfortable when their Father purchased alcohol when he was with them, though acknowledging that she knew nothing which suggested that the Father drank alcohol when he was with the children.
Dr M sought her opinion about increasing the Father's contact. The Report states as follows in this regard:
Ms Allan expressed concern that, although the children appear happy with their contact with the father, they may be pretending to be OK when “inside they are not OK”. When asked if she thought that the father was a danger to the children, Ms Allan said “Yes. I do not trust him at all”. The author probed, asking what danger she thought the father presented, to which she responded “Only God knows”. The author further probed, asking if she thought that the father might physically harm the children. Ms Allan replied “Harm is not just physical. Can be mind – psychology. They may be affected in the future”. The author asked how they might be affected, and Ms Allan replied “I don’t know”.
Ms Allan returned to her thoughts about Mr Morton’s trustworthiness, stating that she does not “have even small trust because I what kind of man he is”. She reiterated her argument detailed to the author in the first assessment that the father was not interested in the children when they were together, and therefore questions the validity of his desire to be a father now. She added that the father lies to the children about the amount of Child Support he pays to the mother, adding that she has had to show [X] her bank records to prove that the father does not pay the amount he (allegedly) tells the children that he pays.
Dr M was interested in the Mother's perspective on whether the Father could change. He records the Mother's scepticism in this regard. She was concerned that he had not taken responsibility as a Father, but could not articulate to Dr M what exactly this meant. The Mother continued to be concerned about the Children coping with overnights, saying; “Anything can happen. I don't know, because I am not in his heart. I am worried there might be bad things.”
Interestingly, the Mother told Dr M that she was not frightened of the Father.
Dr M met with the Father. Under the heading ‘Compliance’, he records the following:
Mr Morton emphasised that it was a struggle for him previously to not see his children for two years (following the assault) and that he has been diligent in not doing anything wrong since, noting that he has fully understood that “this is not the (country omitted) and I must obey the law”. Dr M commented on the assault, acknowledging his guilt and expressing remorse, but also saying that he is focussed on the future and doing the best for his children. He said that he avoids any form of “drama” because he loves his children. He acknowledged his responsibility to pay Child Support and outlined amounts paid, varying according to the extent to which he obtains casual employment. He noted that he struggles financially and that in addition to the Child Support, he pays for [X]’s (hobby) lessons and spends money on the children when he sees them. The author questioned Mr Morton as to his compliance with the recommendations of the author’s previous report, given Ms Allan’s allegations (in affidavit) that he had not complied. Mr Morton stated that he attended Relationships Australia and undertook training on “raising kids together” (shared care).
He noted that the Father denied any mental health issues. He does consume alcohol on Saturdays when with friends, but not to excess, and never in the presence of the children. The Father communicated a positive view about the Mother, describing her as “good. She loves her children.”
He lamented the fact that the Mother thought so badly of him, commenting that just because a person has a criminal record (the assault) that did not define him. He wanted to be meaningfully involved in the children's lives. The Father acknowledged that overnight stays would be difficult for the Mother.
Dr M met with the children. [Z] was enthusiastic about spending time with her father, but clearly reticent about spending longer periods with him or overnights. Nonetheless, [Z] said that if [Y] and [X] were there, she would be much more comfortable about overnights. [Y] was also enthusiastic about spending time with his father. He seemed to be much more aware of the violence, including, Dr M noted, alleged violence that could only have occurred before [Y] was born.
Nonetheless, [Y] was enjoying the increased time with his father, but was resistant about the prospect of overnight stays. [X] was also enjoying her extra time with her father. She was reticent about extending the time further and moving to overnights.
On reading Dr M’s Report, it is clear that he was concerned that the Mother's views and concerns about the Father may well have been assimilated by the children and hence their seeming reluctance to progress their time with their Father.
Dr M was cross-examined. His view of the Mother was that even though she was resistant to the progression of the Father's time with the children, including overnight times, she would acclimatise and accommodate the same without ever really accepting the outcome, referring to her concerns about the Father. Dr M explained that the Mother does not use objective evidence to assess the risk of harm to the children.
Referring to the Mother's background of trauma and not just from the violence perpetrated by the Father, Dr M acknowledged that he had not asked the Mother to undergo psychometric analysis and it was thus not possible to actually evaluate the impact of trauma on her life. He did refer to the Mother's firm religious beliefs as mitigating factors, which will help her to cope, but will not change her view of the Father as unsafe. Dr M accepted that the Mother's fixed views about the Father could be a risk for the children if their relationship with him is not continued.
Implicit in Dr M’s professional opinion, the Court finds, is the risk of psychological harm to the children if their relationship with their father is not progressed.
Dr M was cross-examined about his specific proposal in relation to the number of nights each fortnight. He agreed that there was "no magic" in his recommendation and that the number of nights chosen was somewhat arbitrary. The important principle is that the children wanted to spend more time with their father, whilst living with their mother. The children regarded their church involvement as important, and this should not be interfered with. He emphasised the importance to the children of introducing change incrementally.
The Court accepts Dr M’s evidence, but his assessment about the weight to be given to the children's views needs to be considered carefully and with discernment. It is not clear from the evidence whether their reticence to more time and overnights is attributable to their own traumatic experiences of their Father or their Mother's continued projection of her traumatic experiences with their Father on to them or a combination thereof. The Court would have been assisted by a more trauma-focused assessment of this family, particularly the impact on both parents of what must have been the highly traumatic experience of war, separation, refugeeship and then immigration and assimilation.
The complicating factor of violence is self-evident. Nonetheless, the Court finds compelling Dr M’s opinion that there is a risk to these children if their time with their father is not increased.
The Mother's evidence
The Mother relied on her Affidavits sworn 17 July 2017 and 10 July 2018. The focus will be on relevant issues to the Final Hearing. At paragraphs 74 to 77 of her second Affidavit, she sets out her current concerns about potential psychological harm and past family violence. She explains that she worries about the children when they are with their father. At paragraph 75 she says; “I considered that my anxiety will get worse if the children were to spend overnight time with their father.”
The Court notes the Mother's focus on her anxiety. She goes on to explain that she is concerned that the Father will psychologically harm the children, and in particular that he will talk to them inappropriately and that “…the children will keep this inside and not express this to me.” She goes on to explain that the children have witnessed, as well as being subject to the Father's domestic violence and that if they were exposed to any whilst in the Father's care “...they would not tell me.”
She also explains that she does not believe the Father has the capacity to care for all of the children overnight.
The Mother expresses concerns about the Father's present accommodation – a concern, the Court notes, that the Father's proposal takes on-board. The Mother expresses concerns about the Father's alcohol use, but does not depose that the children have told her that he drinks in their presence. The Mother raises particular concern about [Z] spending overnight time with her father, noting for example, that [Z] often sleeps with her. The Mother also openly expresses her lack of trust for the Father, in that she “…will always be concerned for the children in his care.”
The Mother openly acknowledges the trauma that she believes she has suffered being in a relationship with the Father, and thus remains concerned about the children's safety in his care. Nonetheless, she remains committed to the Father having daytime time with the children.
The Mother was cross-examined. She accepted that it was important for the children to spend time with their father. She could not explain, however, whether time with their father was in their best interests or whether they loved him. She sought to distance herself from any responsibility or ownership of the children's love with their father saying; “It's up to them … it's not about me.” She did not believe that the children felt loved by their father, referring to the word "pretending" in this regard.
She would not accept that he was an important person in the children's lives. Her view is that he was not present when they needed him most. She accepted, however, that there was no other person in the children's lives who was a father-figure for them. Nonetheless, she insisted there are many children who grow up without fathers in their lives. She remains implacably convinced that the Father would neglect the children in his care. Nonetheless, the Mother made it very clear throughout her cross-examination that she would abide by any decision of the Court, even though this would not necessarily address her anxiety.
Her lack of trust for the Father was pervasive. She was open in saying she would always be in fear. She firmly denied discussing with the children the violent event in 2014, insisting that she did not want to talk about it and the children were, in any event, present during the incident. Whilst accepting that she did not have a positive view of the Father, she did not accept that she communicated this to the children.
The Mother presented as an intensely private and independent person. There is no reason to doubt her evidence that none of her friends, including no one at her church, were even aware that she was at Court. The Mother's isolation is of concern, particularly in view of the anxiety about the children spending time with the Father. Her willingness to engage in services to assist her is untested.
The Court concludes about the Mother's evidence that her fears and concerns pertaining to the Father spending extended time with the children are genuinely held, but no longer have any objective basis. She presented as a deeply traumatised woman. It is not possible for this Court to differentiate between the possible sources of trauma. It is clear that she is still traumatised by the violence that she experienced at the Father's hands. She cannot accept that he might have changed. Her trust for him as been lost forever.
Whilst she will abide by an order of the Court, she will always remain fearful and anxious, and the Court doubts her ability to sustain any counselling to assist her in this regard. Her strong faith in God will be a sustaining and protective factor for her. The Court is inclined to the view that she has not deliberately projected her views and anxieties onto the children, but it is highly likely that they have nonetheless discerned and absorbed the same.
The Father's evidence
The Father relied on his Affidavits sworn 13 July 2017 and 4 July 2018. He gives extensive evidence about the time that he has spent with the children and how it has progressed satisfactorily in terms of resuming his relationship with them. He appeared to have a sensitive understanding of the difficulty that the Mother might experience if orders were made for him to spend more time with the children, including overnight time.
The Court was particularly interested in the Father's evidence about engaging in counselling and support services to assist him. It is clear that he has completed the Relationships Australia "Focus on Kids" course. He was open to any counselling or parental education that might help him better communicate with the Mother. Nonetheless, he deposed to being of the view that it might be best for the Mother and himself “…to continue to keep our distance and find other ways of communicating about the children.”
The Court was also interested to read the Father's evidence about the violence that he perpetrated on 10 October 2014. This evidence is found in his Affidavit of 13 July 2017. Whilst he describes the incident in minimalistic terms, he certainly annexes to his Affidavit all of the relevant documents, including the Mother's statement to Police and the somewhat graphic photograph of the injuries sustained by the Mother. At paragraph 27 of the said Affidavit, he explains that whilst he does not agree with all of the contents of the Mother's statement to Police, he understands, however “…that the incident was very serious and I am truly sorry for what occurred that evening.”
He explains that he saw his Doctor, Dr L, in the period after the assault and was on antidepressants for a short period.
The Father's description of the parental relation as being a highly tumultuous and often mutually violent one is found at paragraphs 101 to 105 of his Affidavit. The Father was not cross-examined about this, which is unsurprising, given that the Mother was representing herself. However, the Father's evidence in this regard was not put to the Mother either, so what the precise nature of their relationship was really is unknown to the Court. In his evidence, he clearly accepts that he has been violent towards her, referring to an incident that occurred whilst they were living (country omitted), in which he slapped the Mother across the face. He provides some context, whilst emphasising that he did not “…want to make excuses for my totally inappropriate behaviour on this occasion.”
It is clear that even the Father acknowledges that he perpetrated family violence, even putting aside his assertion that the Mother was also violent to him at times. It could not be said of the Father, for example, that he has sought to minimise the event, the violent assault on 10 October 2014. Indeed, his disclosure to the Court of the relevant facts and assertions goes well beyond that typically experienced in this Court; that he had a different perspective on the event is not something that he shirks from. He ultimately accepts the incident was serious and expresses sorrow for what occurred.
However, the absence of any evidence from the Father about attending an anger management course or some form of education or support services for the perpetrators of violence is significant. Indeed, the impression formed is that the Father could have done much, much more to deal with these issues and to thus provide some reassurance to the Mother. Whether anything the Father did would have been reasonably acceptable to the Mother is hypothetical, but the Court doubts this.
The Father was cross-examined. He seemed to accept that his current accommodation was unsuitable. He seemed confident that if the Court ordered overnight time, this would lead to Housing New South Wales providing more appropriate accommodation for him. He explained that he would change his working hours to accommodate the children spending more time with him. He would always prioritise his children, over his work commitments. He accepted, however, that at least for the time being he could not communicate with the Mother to make changes to any parenting arrangements put in place.
The Father seemed to understand that it would be difficult for the Mother when the children are away from her, especially overnights. All that he could do, he thought, was to ask her to trust him. He explained that he had always trusted her as a good mother, and that had not changed.
He explained in cross-examination that his real desire was for equal time, recognising that he had not proposed that. He wants to build up his time with his children. He expressed commitment to abiding with the law and wanting to avoid any form of trouble. His evidence of alcohol use was moderate – no more than one or two bottles each week. He did not agree that his drinking was problematic at any time in the relationship. He was forced to recant on this evidence, when taken to medical records suggesting that about the same time he had assaulted the Mother, he was drinking more than he acknowledged. He emphasised that by saying: “I have changed a lot.”
It is interesting, the Court notes, that the Father sought psychological assistance when his car was torched, but not in respect of any other issues. If the Father is traumatised by his past experiences, he has not acknowledged the same.
The Independent Children's Lawyer's Counsel explored with the Father how he might deal with any anxieties expressed by, for example, [Z] in spending overnight time with him. He explained that he would understand that [Z] would miss her Mother, but he was confident that he could calm her down and try to understand her. He was open to [Z] ringing her Mother, if the Mother would accept the call.
The Father's evidence reassures the Court that he is committed to the children, understands how the Mother will experience any progression of time for them with their father and that he suffers no physical, mental or emotional incapacity in terms of caring for the children. The Father showed some insight about family violence, but could have engaged far more in services available to assist him as a perpetrator of violence, had he so chosen. This would have provided reassurance not just to the Court, but importantly to the Mother.
The best interests of the Children
It is common ground that the Mother should have sole parental responsibility in relation to the children, except in relation to any change to the children's living arrangements that may make it significantly more difficult for the children to spend time with either parent. Even the Mother consented to this limitation on her sole parental responsibility in the Orders made in August last year. As there is no order for equal shared parental responsibility, the Court notes that it need not consider equal time or substantial and significant time.
Equal time was not sought, but the practical effect of the Father's proposal, indeed, even the Independent Children's Lawyer's proposal, was that in time it would be a substantial and significant time arrangement. The Court will need to consider whether this is in the best interests of the children and reasonably practicable.
There is no issue in this case about the benefit to the children of a meaningful relationship with both parents. Even the Mother's proposal recognises this. It is a question of degree, however, and the Court is concerned that if it made orders consistent with the Mother's proposal, in a prospective sense, it would be harder for the children to develop the meaningfulness of their relationship with their father beyond that which it is at the moment. Nonetheless, this primary consideration is not determinative in this case.
The Court must consider the need to protect the children from physical and psychological harm. There is no evidence to suggest that the children are at risk of physical harm in their father's care. Indeed, the totality of the evidence before the Court leads it to find that there is no risk of any harm to the children in their father's care, but especially psychological risk. Dr M was of this view. The Mother's belief that the children are at the risk of psychological harm in their father's care, whether that be from what he might say to them, or otherwise, is unsupported by the evidence.
The Mother's concerns are genuinely held, but lack objective basis. Her genuine beliefs are based on her experiences of violence perpetrated by the Father, some of which he admits, and some of which he does not. The most recent and most serious incident of violence perpetrated by him is not put in contention. It fuels the Mother's subjective belief. Indeed, it is understandable. However, when all the evidence is viewed objectively by the Court, there is no evidence to suggest there is a risk of harm to these children arising from the past or future violence.
The Court must consider the views of the children. They certainly want to continue to spend time with their Father. There was some reluctance about extending this too much and including overnights. The Court cannot discount the impact of the Mother inadvertently projecting her fears and concerns on the children in assessing the weight to be given to the children's reservations. Dr M was certainly of the view that the Mother had influenced any reluctance expressed by the children.
Whether the degree of influence was as great as Dr M seems to suggest or is, to a lesser degree, as the Court seems to think; on balance the Court is prepared to interpret the children's views as wanting more time with their Father, but for this to proceed in a conservative manner and one which is respectful of their existing life commitments, including church. The Court takes into account the children's views. The Mother's proposal would largely ignore their views. It is possible the Father's proposal, whilst it reflect Dr M’s recommendations, goes too far, insofar as it is dependent on the children's views.
The Court must consider the nature of the children's relationships with their parents and other significant persons in their life. They clearly have a good relationship with their mother and are, for all practical purposes, dependent on her. The objective evidence also suggests that the children have a good and happy relationship with their father, even if the Mother cannot accept this. Conversely, the Father's perspective of the children's relationship with their mother is positive. He knows that she is a good mother, who loves her children.
The Expert's observations of the children and their father were very positive. This is an important consideration, which assists the Court in concluding that the Father should be spending more time with his children. It is a consideration which is inconsistent with the Mother's proposal.
The Court must take into account the extent to which parties have taken or failed to take opportunities to participate in decision-making, spending time with or communicating with the children. The evidence about the nature and extent of the Father's involvement in the children's lives is contradictory and, in this case, it is actually unnecessary to make findings in relation to the same. Whatever the past may have been in this regard, he has been consistently involved in the children's lives to the extent that Court Orders have facilitated this. His longer term commitment to the children was palpable in his evidence.
The Court must consider the likely effect of any change in the children's circumstances. The Mother's proposal is, in effect, for no change. The Father and Independent Children's Lawyer's proposal both share elements of incremental progression, eventually to either four (the Independent Children's Lawyer) or five (the Father) nights per fortnight. The Court accepts that this is significant change for the children. Even on both proposals for the Court, it is likely that the children will experience the increment as occurring quickly.
By 2019, on either proposal, the children will be spending at least four nights in a row with their father. This is quite a dramatic change for the children, occurring in a relatively short period of time. It means that they start the 2019 school year in a manner which they have not experienced before since at least separation, i.e. being in the sole care of their father for several nights in a row. The Court is concerned about what it considers to be unnecessarily rapid progression in time. Counsel for the Independent Children's Lawyer urged the Court, in closing submissions, to: “…be cautious, be pragmatic.”
The Court accepts this. Perhaps even the Independent Children Lawyer's proposal is not cautious enough? Perhaps the background issues of trauma in this case – for the parents and the children – have not been adequately factored in? The children have certainly become accustomed to the Father as a regular part of their lives, but overnights present a new challenge for these children, given their trauma history, and thus needs to be addressed sensitively. There is already evidence that [Z] sleeps in her mother's bed.
The Court must consider issues of practical difficulty and expense with spending time and communicating with parents. There are no such issues in this case. It is important that the parents not come into contact with each other. The Orders proposed address this in a reasonable fashion.
The Court must consider the capacity of each parent to provide for the children's needs. The Court must also explore issues of parental attitudes towards the children and to the responsibilities of parenthood. These considerations are very important and influence the Court's decision about how to progress the children's time with their father. At one level, the physical capacity of the parents to meet the children's needs is not in dispute. The Father's emotional attunement seems positive, but is probably still developing.
He has enjoyed time with the children in a somewhat rarefied environment. Spending four or five nights in a row with the children presents different challenges. Whilst Dr M is optimistic in this regard, and the Mother pessimistic, the reality is that it is untested. The need to be conservative is, again, palpable. Both parents love the children. The Court concludes that the children love both parents. The Mother's subjective concerns about the Father, albeit rooted in relatively past traumatic events, does not justify her resolute stance against a progression to overnight time.
These are genuinely held concerns. It is not possible to be critical of a person who has suffered lifelong trauma, including comparatively recent serious family violence, to be concerned about her children. Nonetheless, the Court must make an objective assessment of risk. The Mother's ability to meet the emotional needs of her children must include a capacity to at least tolerate the Father's role in their lives. By indicating to the Court that she would abide by Court orders, she has addressed this, albeit in a minimalistic way.
Perhaps, in time, and as the children become mature, as well as more eloquent, they will be able to reassure their Mother, and she can then adapt.
There are lingering concerns in the Court's mind, however, about the Father's failure to more overtly and constructively address the fact that he was a perpetrator of serious family violence. Even if one puts aside the disputed contentions about violence, the undisputed facts would have warranted him engaging more constructively in learning more about what caused him to be violent, and the broader impacts of his behaviour on others, but especially the Mother and his children. The confounding complication of the past trauma that he has experienced was unexplored.
All of this is reason to be conservative and cautious in progressing the Father's time with the children. All of this means that Dr M’s recommendations need to be scrutinised carefully and in light of the Court's concerns.
The Court must consider the maturity, sex, lifestyle and culture of the children and their parents. There are no real issues in this regard. The parents were born in the (country omitted). Two of the children were born, it would seem, in a refugee camp in (country omitted). The other two were born in Australia. There is no reason to suspect that they will not be appropriately exposed to their cultural background. For the Mother and the children, their faith in God and attendance at church is an important part of who they are. It is important to ensure that the orders do not unnecessarily infringe on this.
The Court must consider family violence and family violence orders. Clear findings of past violence have been made. Family violence orders have been made in the past, but have lapsed. There are no ongoing concerns in this regard.
The Court must make the order that is least likely to lead to further proceedings. The Mother's proposal was highly problematic in this regard. It is an order that allows for no change in the future, despite the fact that these children will become older, and probably more assertive in their views. Their developmental progression is largely ignored in the Mother's proposal, and this is a recipe for future litigation, the Court believes.
When all of these matters are taken into account, and when all of the evidence, expert and lay, is closely scrutinised, it becomes apparent that the Mother's proposal is not in the best interests of the children. The Father's proposal, whilst seemingly reflecting Dr M’s recommendations, also goes too far and too quickly. Counsel for the Independent Children's Lawyer was correct in urging the Court that it should be cautious, albeit pragmatic. But even the Independent Children's Lawyer proposal perhaps goes too far in this regard. Thus, stage 2 should be 8 weeks rather than 4 weeks, and the progression of time in school holidays should be slowed down.
The Court further believes that stage 3 proposed by the Independent Children's Lawyer should, in fact, be split into two stages. Stage 3 should last for 12 weeks and will mean that the children can spend time with their father from 1:00pm Sunday to before school Wednesday. Thereafter, in stage 4, the children’s time with their father can conclude before school on Wednesday in week 1 and increase to a fourth overnight on Friday in week 2.
It is interesting that Dr M conceded in cross‑examination that there was no magic in his recommendations; that his choice of days and nights was arbitrary. Indeed, he even conceded the possibility of introducing another stage. What the Court proposes, therefore, is not inconsistent with his expert evidence. Importantly, however, it provides some reassurance both to the Court, and would suspect perhaps even to the Mother, that the incremental progression in the Father's time with the children is being achieved sensitively, recognising some reluctance expressed by the children in their views, and with a focus to minimising change on them.
The differences in the Orders proposed by the Mother, Father and Independent Children's Lawyer in relation to the other matters raised in their Minutes do not, to the Court, appear to be significant. The Court will adopt the Independent Children Lawyer's Minute in this regard. Very little attention was paid to these issues in the course of cross-examination and submissions.
I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 5 October 2018
Schedule One
Orders Proposed by the Independent Children’s Lawyer
Subject only to Order 10 below, that all previous parenting Orders are hereby discharged.
That, subject to Orders 3, 4 and 24 below, the Mother has sole parental responsibility for the children [W] (born 2002), [X] (born 2006), [Y] (born 2008) and [Z] (born 2009) in relation to the care, welfare and development of a long-term nature.
That the Mother and Father have equal shared parental responsibility for the said children in relation to any change to the children’s living arrangements that may make it significantly more difficult for the children to spend time with any parent.
That the Mother must notify the Father of any long-term decisions she has made as soon as is practicable after the making of the decision.
That the children live with the Mother.
That the child [W] spend time and communicate with the Father at any time as arranged directly between [W] and the Father in accordance with his wishes.
That, subject to Orders 8, 9 and 10 below, the children [X], [Y] and [Z] spend time with the Father as follows:-
(a) Stage 1 – from the date that the Father moves into larger accommodation and continuing for a period of 8 weeks:-
(i)Commencing on the first Friday, and thereafter on each alternate Friday from after school (or 1pm on non-school days) until 7pm Saturday;
(ii)Commencing on the first Sunday, on each alternate Sunday from 1pm to 7pm; and
(iii)On each Tuesday from after school (or 1pm on non-school days) to 7pm;
(b) Stage 2 – thereafter for a period of 4 weeks:-
(i)Continuing in the same alternate weekend pattern in Order 7(a) above, on each alternate Friday from after school (or 1pm on non-school days) until 7pm Saturday;
(ii)Continuing in the same alternate weekend pattern in Order 7(a) above, on each alternate Sunday from 1pm to 7pm; and
(iii)Each week from after school Tuesday (or 1pm on non-school days) until the start of school Wednesday (or 7pm on non-school days);
(c) Stage 3 - thereafter, continuing throughout the 2018/19 Christmas school holidays and during school terms in 2019 onwards:-
(i)In Week One –
a. From Friday (or 1 pm Friday if a non- school day to 7.00 pm Saturday and continuing in the same pattern; and
(ii)In Week Two –
a. From 1pm Sunday to before school Wednesday (or 7pm Wednesday on a non- school day); and
(iii)At other times as agreed between the parents.
(d) During the end of Terms 1, 2 and 3 school holidays from 2019 onwards:-
(i)The Father’s time with the children in accordance with Order 7(c)(ii) will continue in school holiday periods but will be extended so that the time occurs on each alternate week during the shorter school holidays from 1pm Sunday until 7pm Friday;
(e) During the Christmas school holidays from 2019/20 onwards:-
(i) The Father’s time with the children in accordance with Orders 7(c)(i) and 7(c)(ii) will continue in Christmas school holiday periods except if the Father is able to obtain leave from his employment he can spend time with the children for a period of two weeks excluding the special occasion days of Christmas Day and Boxing Day and provide the Mother with two weeks notice of the intended two week period. In the event the Father spends a two week block with the children then the time in accordance with Orders 7(c ) (i) and 7 ( c) (ii ) is suspended .
(f) At such other times as are agreed to between the parents.
That the children [X], [Y] and [Z] will also spend time with the Father on such special occasions as the parents agree, but specifically as follows:-
(a) From 1pm until 7pm on Father’s Day;
(b) From 1pm on Christmas Day until 1pm on Boxing Day (or, in the event the Father has not yet secured larger accommodation, from 2pm until 7pm on Christmas Day).
That the children [X], [Y] and [Z] will also spend time with the father on such special occasions as the parents agree, but specifically as follows:-
(a) From 1pm until 7pm on Father’s Day;
(b) From 1pm on Christmas Day until 1pm on Boxing Day (or, in the event the father has not yet secured larger accommodation, from 1pm until 7pm on Christmas Day).
That the children [X], [Y] and [Z] will spend time with the mother on such special occasions as the parents agree, but specifically as follows (and the father’s time with the children as set out in Order 7 above will be suspended):-
(a) From 1pm on Christmas Eve until 1pm on Christmas Day;
(b) From 9am on Easter Saturday until 9am on Easter Monday;
(c) It is noted that, in the event the children are due to spend time with the father on the weekend that includes Mother’s Day, the children will spend time with the mother on Mother’s Day until 1pm.
That the children’s overnight time with the father pursuant to Order 7 above will not commence until the father has secured larger accommodation. Until such time that this occurs, the children [X], [Y] and [Z] will continue to spend time with the father pursuant to Orders 17(c) and 17(g) of the Orders made on 8 August 2017. The father’s solicitor will notify the mother in writing once the father has secured larger accommodation and include in such notification the date that the father will be moving into the larger accommodation (and, if required, an alternate changeover venue as per Order 11(c) below) and the spend time with arrangements as set out in Order 7 above will apply from that nominated date.
That, for the purposes of Orders 7 to 10 above, unless as is otherwise agreed to between the parents, changeover will occur as follows:-
(a) Unless the children’s time with the father begins at the end of a school day, in which case the father is to collect the children from school, the father or his agent will collect the children from the mother or her agent at the start of each visit in the carpark of the Supermarket in Suburb A;
(b) Subject to (c) below, unless the children’s time with the father ends at the start of a school day, in which case the father is to deliver the children to school, the mother or her agent will collect the children from the father or his agent at the end of each visit in the carpark of the Supermarket in Suburb B;
(c) In the event the father’s accommodation is transferred to a different suburb, the father will nominate in writing to the mother an alternate changeover venue for the end of the children’s time with the father on non-school days, and it is noted that the venue will most likely be a supermarket closest to the father’s new home;
(d) The parent (or agent) arriving with the children shall deliver them to the parent (or agent) collecting the children and shall immediately leave the changeover location and shall not remain in the vicinity for any more than 5 minutes;
(e) Each parent (or agent) is to ensure that changeover proceeds as quickly as possible;
(f) Each parent is to ensure that they keep a reasonable physical distance from the other parent and refrain from communicating directly with the other parent, except for exchanging brief greetings and/or farewells.
That:-
(a) the children [X], [Y] and [Z] will communicate with their parents via telephone, Skype, FaceTime, email and/or any other form of communication at any reasonable time; and that each parent will facilitate any reasonable request made by the children to contact the other parent; and
(b) each parent is permitted to contact the children by telephone at any reasonable time when the children are in the other parent’s care, and that each parent will facilitate any reasonable attempt the other parent makes to contact the children by telephone.
That each parent will ensure that the other parent is kept informed of:-
(a) any serious medical problems or illnesses suffered by the children, with the other parent to be notified as soon as possible;
(b) any medical emergencies involving the children, with the other parent to be notified immediately;
(c) any medication that has been prescribed for the children that needs to be taken during the time the children are with the other parent, with the other parent to be notified at the time of changeover;
(d) any specialist appointments with any specialist medical doctor, psychiatrist,
psychologist, counsellor or therapist regarding the children, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);(e) any change to the parents’ contact mobile telephone numbers, with any such changes to be advised within twenty-four (24) hours;
(f) any other matter relevant to the welfare of the children, with the other parent to be notified as soon as is reasonably practicable.
That each parent will provide to the other parent full particulars of any medical practitioner, health service provider or institution attended by the children; and that this Order operates as the authority of each parent to the medical practitioner, health service provided or institution attended by the children to provide to either parent such information as he or she may seek in relation to the children.
That each parent is permitted to liaise directly with the children’s school(s), sporting bodies and/or extra-curricular organisations to obtain any necessary information about the children’s progress; and that this Order operates as the authority of each parent to the children’s school(s), sporting bodies and/or extra-curricular organisations to provide to either parent such information as he or she may seek in relation to the children.
That this Order operates as the authority of each parent to the children’s school(s) to ensure that the school forwards to both parents copies of the children’s school reports as they fall due along with copies of all school circulars, newsletters and invitations to any school activities which parents are invited to attend.
That each parent and member of their respective families is entitled to attend all events involving the children including, but not limited to:-
(a) sporting fixtures;
(b) extracurricular activities that allow for parental attendance or participation;
(c) school functions and events that allow for parental attendance or participation.
That each parent is restrained by injunction from making critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the children; and that each parent must do all things reasonably necessary to ensure that no other person makes critical or derogatory remarks about the other parent or members of their family in the presence or within the hearing of the children.
That, without admissions, each parent is restrained by injunction from:-
(a) using and/or being affected by any illegal substance while the children are in their care;
(b) drinking alcohol to excess while the children are in their care;
(c) exposing the children to any other person who is using or who is affected by any illegal substance or who has consumed alcohol to excess;
(d) physically disciplining the children or allowing any other person to do so; and
(e) leaving the children [X], [Y] and [Z] unattended at home without adult supervision:-
(i)for longer than one (1) hour until the oldest child continuously present at home is 13 years of age;
(ii)for longer than two (2) hours until the oldest child continuously present at home is 14 years of age;
(iii)for longer than four (4) hours until the oldest child continuously present at home is 15 years of age;
(iv)for longer than six (6) hours until the oldest child continuously present at home is 16 years of age.
That, for the purposes of parental communication, unless as otherwise agreed to between the parents:-
(a) Parental communication will be facilitated by the father communicating with the maternal uncle Mr K by telephone and/or text messages (or, in the event the maternal uncle becomes unable or unwilling to assist, the mother will nominate another agent to assist with parental communication or the mother will advise the father that she is prepared to directly participate in such parental communication);
(b) That each parent is restrained from using abusive and/or aggressive language in any form of communication between them;
(c) The parents will be courteous and civil towards each other at all times but especially in the presence or within the hearing of the children;
(d) The parents will do all things reasonably necessary to ensure that no other person (including but not limited to members of their families or any agent nominated by the mother as per (a) above) uses abusive and/or aggressive language towards the other parent, especially in the presence or within the hearing of the children.
That all items that the children take with them when they are spending time with the father be returned with the children at the conclusion of time (e.g. toys and clothing); and that all items that the children take with them after they have spent time with the father be returned with the children on the next occasion they spend time with the father.
That in the event either parent intends to travel with the child for a holiday out of the State of New South Wales, they are to advise the other parent no later than seven (7) days prior to the intended departure date, with such advice to include departure and return dates, general holiday location information and emergency contact details.
In the event either parent wishes to spend an extended holiday period with the children, which would impact on the children’s time with the other parent:-
(a) The parent planning the extended holiday must provide no less than 3 months’ notice to the other parent (unless as otherwise agreed);
(b) The other parent will give reasonable consideration to the proposal and will not unreasonably withhold their consent;
(c) The children will spend additional time with the non-travelling parent to make up for any time missed, with such make up time to occur prior to and/or within 60 days of the children’s return from the extended holiday period as agreed between the parents or, failing agreement, as nominated by the non-travelling parent.
That, notwithstanding Order 2 above:-
(a) In the event a staff member from one of the children’s schools are unable to contact the mother by telephone and the child/ren have a pressing need of concern to the school, that staff member can contact the father by telephone and the father is permitted to respond to that need whether or not the children are due to come into the father’s care after school that day;
(b) Such response from the father can include (but is not limited to) providing directions to the school that are required to address the need of concern and/or collect the child/ren from school if necessary;
(c) In the event the father does collect the child/ren from school, the father will forthwith notify the mother and make arrangements for the child/ren to be returned to the mother as soon as is reasonably practicable, or otherwise in accordance with the spend time with arrangements set out in these Orders.
NOTATIONS
A. It is noted that [X] is likely to attend School 1 High School in 2019. On school days that the children spend time with the father in accordance with these Orders, the father will make arrangements to collect the younger children from (or deliver them to) School 2 Public School and then [X] from (or to) School 1 High School (unless the father and [X] make arrangements for [X] to catch public transport to and/or from school.
B. The father’s solicitor will prepare a calendar of the spend time with arrangements for the father and will provide a copy to the mother.
Schedule Two
Independent Children’s Lawyer’s Chronology
| 1. Date | Event | Source |
| 2. 1971 | 3. Date of birth F (46 years) | 4. |
| 5. 1978 | 6. Date of birth M (38 years) | 7. |
| 8. 1994 | F says parents met and commenced relationship in the (country omitted) | 9. F aff 14.07.17 para 5 |
| 10. 1995 11. 12. 13. 1997 | 14. F says parents married and commenced living together 15. 16. M says parents commence relationship | 17. F aff 14.07.17 para 5 18. 19. M aff 17.7.17 para 5 |
| 20. 1997 | 21. M says parents marry | 22. M aff 17.7.17 para 5 |
| 23. 02.08.1998 24. 25. 26. 27. 28. 29. 30. 31. 32. Early 1998 | 33. F says he and M physically separated by civil war in the (country omitted). F says he fled (country omitted) that day, travelling through (country omitted) to (country omitted). F says M remained with member of his family, including his cousin (known as his brother), Mr T 34. 35. 36. 37. M says parents were separated by Civil War in the (country omitted) | 38. F aff 14.07.17 para 7, 106 39. 40. 41. 42. 43. 44. 45. 46. M aff 17.7.17 para 5 |
| 47. Early 1998-2000 | 48. M says parents remained separated by war | 49. M aff 17.7.17 para 5 |
| 50. August 1998 to mid-2001 | 51. F says he lived in refugee camp in (country omitted) | 52. F aff 14.07.17 para 7 |
| 53. 2000 54. 55. 56. 57. Mid-2001 | 58. M says she and F were reunited following separation in (country omitted) Civil War 59. 60. 61. F says he and M (and members of F’s family) were reunited in refugee camp in (country omitted) | 62. M aff 17.7.17 para 5 63. 64. 65. 66. F aff 14.07.17 para 7, 106 |
| 67. Mid-2001 to mid-2007 | 68. F says he, M, members of F’s family and two older children (after their births) lived in refugee camp in (country omitted) (he, M and child [W] also spent some time living in (country omitted) in (country omitted)); F says he and M had argument in front of some family members and he slapped M once; F says that he had suspicions that M was involved in intimate relationship with Mr T | 69. F aff 14.07.17 para 7, 103, 106-107 |
| 70. Mid-2001 to 10.10.2014 71. 72. 73. 74. 75. 76. 77. 78. 79. 80. 81. Late 2001 | 82. F says that he and M, at times, had volatile relationship - during periods of significant pressure / difficulties relationship included mutual use of inappropriate physical, verbal, emotional abusive behaviour 83. M states that she (and the children) was the victim of violence, instigated solely by the father. M states this was a feature of the parties relationship, both during and post separation. 84. 85. 86. M recalls incident of family violence in (country omitted), when the F approached and slapped her across the face. M says F family members intervened on this occasion to stop the violence | 87. F aff 14.07.17 para21-27, 101-105 88. 89. M aff 17.717 para 13 – 18, 22-23, 25 90. 91. 92. 93. 94. 95. M aff 17.7.17 para 19 |
| 96. 2002 | Date of birth [W] (15 years) | 97. |
| 98. 2002 | 99. F verbally abused M, child [W] was present. | 100. M aff 17.7.17 para 21 |
| 101. 2006 | 102. Date of birth [X] (10 years) | 103. |
| 104. Mid-2007 | 105. F says he, M and 2 older children resettled as refugees in Australia (in the Region 1); F says he found work within a few months | 106. F aff 14.07.17 para 8, 10 |
| 107. 2008 | Date of birth [Y] (9 years) | 108. |
| 109. 2009 | Date of birth [Z] (7 years) | 110. |
| 111. Early 2010 | 112. F says that he and M began to experience difficulties in relationship; F says that Mr T arrived in Australia | 113. F aff 14.07.17 para 11, 108 |
| 114. About March 2011 | 115. F says he had brief sexual encounter with woman prior to separation | 116. F aff 14.07.17 para 116 |
| 117. Early 2011 118. 119. 120. 121. 17 March 2011 | 122. F says M decided to end the relationship; F moves out of family home; M advises Centrelink of separation 123. 124. 125. M says parties separated on a final basis | 126. F aff 14.07.17 para 11 127. 128. 129. M Aff 17.7.17 para 2011 |
| 130. Early 2011 to about 10.10.2014 131. 132. 133. 134. 135. 136. March 2011 – October 2014 | 137. F says he continued to play active, daily role in M and children’s life as well as working at night as (occupation omitted) and (occupation omitted) at times during day; F says he stayed overnight in M’s home at times; F says he and M continued to be physically intimate at times; F says that M was also involved with Mr T 138. 139. 140. M says F spent some time with the children after separation, M says time was sporadic and irregular. M says she and the F were attempting to resolve issues in their relationship, however maintained separate residences. M says due to ongoing family violence, the parties did not reconcile | 141. F aff 14.07.17 para 12-14, 16, 18-19, 109-112 142. 143. 144. 145. 146. 147. M Aff 17.7.17 para 35 148. 149. |
| 150. Mid-2012 | 151. F says he began to struggle with the separation and daily pressures | 152. F aff 14.07.17 para 14 |
| 153. February or March 2013 | 154. F says he saw his doctor and was referred to Dr L, diagnosed with Post Traumatic Stress Disorder, depression and anxiety, unable to continue working, prescribed anti-depressant medication. | 155. F aff 14.07.17 para 15 |
| 156. Late-2013 | 157. Father enrols in (omitted) course at TAFE | 158. F aff 14.07.17 para 17 |
| 159. March 2014 | 160. F says M obtained drivers licence | 161. F aff 14.07.17 para 13 |
| 162. April 2014 to 10.10.2014 | 163. F says he began spending regular overnight time at M’s home as M was having ongoing difficulties with neighbours | 164. F aff 14.07.17 para 18 |
| 165. May 2014 | 166. F says he commenced volunteer work placement at (employer omitted) | 167. F aff 14.07.17 para 17 |
| 168. June 2014 to 10.10.2014 169. 170. 171. March 2011 – October 2014 | 172. F says he spent Saturdays with children while M did course in Sydney 173. 174. 175. M says F spent sporadic weekend time with the children | 176. F aff 14.07.17 para 16 177. 178. 179. M Aff 17.7.17 para 35 |
| 180. July 2014 | 181. F completes course | 182. F aff 14.07.17 para 17 and Annex A |
| 183. 10.10.2014 184. 185. 186. 11 October 2014 | 187. Incident of family violence occurred at M’s home 188. 189. M says F instigated serious incident of family violence against her in the presence of the children. This resulted in the children [W], [X] and [Y] intervening to attempt to protect his mother. [W] was also physically assaulted by the F. Child [W] contacted the police, police and ambulance attended the home. 190. F charged with various criminal offences, and a Final ADVO made for the protection of the children and the M | 191. F aff 14.07.17 para 21 192. 193. M Aff 17.7.17, para 26 - 31 |
| 194. 10.10.2014 to 12.03.2016 | 195. No time spent between children and F (except for supervised contact visit for Expert Report on 09.12.2015) | 196. F aff 14.07.17 para 47 |
| 197. 11.10.2014 | 198. F charged; police obtain Provisional Apprehended Violence Order | 199. F aff 14.07.17 para 21-25 and Annex B-E |
| 200. Mid-October 2014 to early 2015 | 201. F says he reengaged with Dr L | 202. F aff 14.07.17 para 28 |
| 203. Mid-October 2014 | 204. F says he obtained casual employment at (employer omitted) | 205. F aff 14.07.17 para 17 |
| 206. 22.10.2014 | 207. F says he sought legal advice and applies for Legal Aid to cover FDR conference | 208. F aff 14.07.17 para 32 |
| 209. Early November 2014 | 210. F says he received call from [W]’s mobile telephone | 211. F aff 14.07.17 para 33 |
| 212. 27.11.2014 | 213. F pleads guilty to criminal charges; Final Apprehended Violence Order made by Local Court for 2 years | 214. F aff 14.07.17 para 21, 26 and Annex F |
| 215. 02.12.2014 | 216. F says his solicitor advised that M had declined to participate in FDR + FDR deemed unsuitable | 217. F aff 14.07.17 para 32 |
| 218. 10.12.2014 | 219. F says his solicitor sent letter with interim spend time with proposal to M’s solicitor but no formal response received | 220. F aff 14.07.17 para 34 and Annex G |
| 221. 19.12.2014 | 222. F files Initiating Application, Notice of Risk and Affidavit | 223. |
| 224. 31.12.2014 | 225. F says he received telephone call from child(ren) | 226. F aff 14.07.17 para 36 |
| 227. 23.01.2015 | 228. F convicted and sentenced to 9 months’ prison, 6 months’ non-parole; F files severity appeal | 229. F aff 14.07.17 para 21 |
| 230. Early 2015 | 231. F says his employment at (employer omitted) ended (refusal of Working With Children Check) | 232. F aff 14.07.17 para 126) |
| 233. 19.02.2015 | 234. Mother files Response, Notice of Risk and Affidavit | 235. |
| 236. 24.02.2015 | 237. Proceedings listed before Judge Altobelli for mention – Interim Orders made directing the parents to place their names on the waiting list at CatholicCare, appointing ICL, ordering Child Inclusive CDC on 16.04.2015, setting the matter down for Interim Hearing on 23.04.2015 | 238. |
| 239. 27.02.2015 | 240. F says his severity appeal listed – F placed on suspended sentence | 241. F aff 14.07.17 para 21 |
| 242. 16.04.2015 | 243. Family participates in Child Inclusive Child Dispute Conference | 244. |
| 245. 23.04.2015 | 246. Proceedings listed before Judge Altobelli for Interim Hearing – judgment reserved | 247. |
| 248. 15.05.2015 | 249. Proceedings listed before Judge Altobelli for delivery of Interim Judgment – Orders made for LW M, no contact with F, other restrictions | 250. |
| 251. Mid-2015 | 252. F says that he obtained (employment omitted) ticket and commenced casual/contract (omitted) work in Sydney and also continued casual (omitted) work | 253. F aff 14.07.17 para 128 |
| 254. 25.09.2015 | Interim Consent Orders made appointing Dr M as Expert Report Writer | 255. |
| 256. 03.02.2016 | 257. Expert Report released | 258. |
| 259. 19.02.2016 | 260. Proceedings listed before Judge Altobelli for mention – Interim Consent Orders made for supervised contact between 3 younger children and F, F permitted to send letter to [W] via ICL, time between [W] and F as instigated by [W] | 261. |
| 262. 26.02.2016 | 263. F says that his solicitor sent letter to ICL attaching F’s letter to [W] dated 24.02.2016 | 264. F aff 14.07.17 para 53 and Annex M |
| 265. 12.03.2016 to March 2017 266. 267. 268. March 2016 | 269. F says that supervised contact visits occurred between him and 3 younger children at contact centre 270. 271. M says time between three youngest children and the F commence at CatholicCare (supervised time) in accordance with Court Order | 272. F aff 14.07.17 para 74-79 273. 274. 275. M aff, 17.7.1 para 42 |
| 276. April 2016 to date | 277. F says that he has spent time with [W] in Suburb B area | 278. F aff 14.07.17 para 92-100 |
| 279. 01.09.2016 | 280. F says that parties participate in shuttle FDR – no agreement reached | 281. F aff 14.07.17 para 57 |
| 282. 11.11.2016 | 283. Proceedings listed before Judge Altobelli for mention – matter adjourned to possible Interim Hearing on 06.02.2017 284. 285. F files Application in a Case and Affidavit | 286. |
| 287. 30.11.2016 | 288. Independent Children's Lawyer meets with children. | 289. |
| 290. Mid-December 2016 | 291. F says that supervised visits moved from contact centre to local park | 292. F aff 14.07.17 para 66 |
| 293. 8 December 2016 | 294. M completes “Keeping Kids in Mind” course through CatholicCare | 295. M Aff, 17.7.17 para 66-67 |
| 296. 06.02.2017 | 297. Proceedings listed before Judge Altobelli for Interim Hearing – Interim Orders made for unsupervised contact between 3 younger children and F, changeover supervised, gradually increasing to 5 hours per visit | 298. |
| 299. 3 July 2017 | 300. M secures part time employment | 301. M aff 17.7.17 para 63 |
| 302. 02.04.2017 to date | 303. F says that unsupervised contact visits have occurred between him and 3 younger children, changeover at contact centre, visits have occurred on fortnightly rather than weekly basis (as per Interim Orders) | 304. F aff 14.07.17 para 81-87 and Annex Y |
| 305. 19.7.2017 | 306. Independent Children's Lawyer meets with children | 307. |
| 308. 31.07.2017 | 309. Independent Children's Lawyer meets with children. | 310. |
| 311. 7-9.08.2017 | 312. Matter listed for Final Hearing | 313. |
| 314. 08.08.2017 | 315. Matter not reached for Final Hearing – Consent Orders made on a final basis for the bulk of issues in dispute and on an interim basis for the spend time with arrangements for the children and the F (daytime unsupervised time), matter set down for 2 day Final Hearing on 26 and 27 April 2018 (these dates later vacated and matter set down on 23 and 27 July 2018) | 316. |
| 317. 08.08.2017 to date | 318. F says that he spent time with the children on each alternate Sunday from 1pm to 6pm (and then 6:30pm) and on each Tuesday (from Term 4 in 2017) from after school (or 1pm on non-school days) in accordance with the Interim Orders with a few exceptions where he was not available or the M / maternal uncle were not available. F says that the alternate Saturday visits have not occurred regularly. F says that the children have told him that they have been left home alone on some Saturdays when the M and maternal uncle have been at work. F says that he has continued to spend time and communicate with [W] as arranged between F and [W]. | 319. F aff 05.07.18 paras 9-15, 26-28 |
| 320. 18 August 2017 | 321. F solicitor sends correspondence requesting to amend the end time of contact with the children from 6.00pm to 3.30pm due to work commitments for the visit to take place on 27 August 2017. | 322. M aff 10.07.18 para 10 |
| 323. August 2017 to date | 324. M's friend from Church, Ms A assists by taking the children to school and collecting the children each afternoon. Ms A is employed at a (employer omitted). | 325. M aff 10.07.18 para 59-60 |
| 326. September 2017 to date | 327. M commenced casual employment as an (occupation omitted) by (employer omitted). | 328. M aff 10.07.18 para 58 |
| 329. Late 2017 to March 2018 | 330. F says that he continued to experience difficulties at his Housing NSW rental property, and that these difficulties escalated leading up to March | 331. F aff 05.07.18 para 20-22 |
| 332. Early 2018 | 333. F says that for about 2 months in early 2018, the children would telephone him on a Saturday when they were home alone | 334. F aff 05.07.18 para 13 |
| 335. January 2018 | 336. M says the children ask her to buy them a computer or mobile phone and when the M says that she does not have the money to do so. M says the children tell her 'daddy says he give you every fortnight $150.00'. | 337. M aff 10.07.18 para 70 |
| 338. March 2018 | 339. F says that his car was set on fire at his Housing NSW rental property. F has applied for transfer to new Housing NSW rental property but this has not been approved as yet | 340. F aff 05.07.18 para 22-23 |
| 341. March 2018 to date | 342. F says that he has not stayed overnight at his Housing NSW property and he has not taken the children to the property. F says that he saw his doctor after the incident with his car being set on fire and was referred to a psychologist and attended two sessions | 343. F aff 05.07.18 para 22, 25 |
| 344. 07.03.2018 | 345. F’s solicitor sends letter to M’s solicitor raising concerns about visits not always occurring 346. 347. F solicitor's correspondence also seeks to amend the changeover arrangements. | 348. F aff 05.07.18 para 12 and Annex B 349. M aff 10.07.18 para 19 |
| 350. 23.3.2018 | 351. Independent Children's Lawyer meets with children | 352. |
| 353. 04.04.2018 | 354. F’s solicitor receives letter from M’s solicitor in response | 355. F aff 05.07.18 para 12 and Annex C |
| 356. Early May 2018 | F says that he asked [X] and [Y] to let [W] know that he would come to his school the next afternoon, that he did not receive message that [W] did not want him to attend the school, that when he attended he spoke to a teacher and then the Principal, who told him that [W] did not want to see him so F left | 357. F aff 05.07.18 para 30 |
| 358. 24.05.2018 | 359. M's solicitor sends correspondence to F solicitor as the F had attended [W]’s school without knowledge or request unannounced. | 360. M aff 10.07.18 para 23 |
| 361. Late May early June 2018 | 362. M and children attend interviews with Dr M for preparation of updated Report. | 363. M aff 10.07.18 para 25 |
| 364. 04.06.2018 | 365. Proceedings listed before Judge Henderson for mention – trial directions made | 366. |
| 367. 12.06.2018 | Dr M’s updated Expert Report (dated 6 June 2018) released to the parties | 368. |
| 369. 18.06.2018 | 370. M's solicitor sends correspondence to F solicitor advising that arrangements had been made for counselling appointments. | 371. M aff 10.07.18 para 28 |
| 372. 27.06.2018 | 373. M attends appointment with Uniting. M is advised that Uniting will make enquiries to ascertain whether he will be involved in the process prior to an appointment being made for the children. M is advised the cost is $40 each session. | 374. M aff 10.07.18 para 30-33 |
| 375. 05.07.2018 | 376. F files Amended Initiating Application and updating Affidavit | 377. |
| 378. 5.07.2018 | 379. M has appointment with Relationships Australia. M is advised that she must pay $75 each session for her and the children. | 380. M aff 10.07.18 para 34 |
| 381. 10.07.2018 | 382. M files Amended Response and updating Affidavit | 383. |
| 384. 23 to 24 July 2018 | 385. Matter listed for Final Hearing in Sydney | 386. |
Key Legal Topics
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Family Law
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Jurisdiction
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