N & M

[2006] FamCA 958

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA AT SYDNEY	No. SYF4770 of 2005
IN THE MATTER OF	N [Applicant Mother]
AND	M [Respondent Father]
Coram:	The Hon. Justice Rose
Dates of Hearing:	3 April 2006; 2 May 2006; 4 May 2006; 15 May 2006; 11 August 2006; 4 to 7 September 2006
Date of Interim Hearing:	14 July 2006
Date of Judgment:	29 September 2006
Date of Orders:	29 September 2006
Amended pursuant to Rule 17.02(2)	4 October 2006

JUDGMENT OF THE HONOURABLE JUSTICE ROSE

*Appearances:*	L Snelling of counsel instructed by Milne Berry Berger & Freedman, Solicitors, DX 11606 Sydney Downtown NSW, appeared on behalf of the applicant mother.
R Peattie of counsel instructed by Hannaway, Lawyers PO Box 364, Port Macquarie NSW 2444, appeared on behalf of the respondent father.
P Cook of counsel instructed by Robertson, Solicitors DX 245 Sydney NSW, appeared on behalf of the independent children’s lawyer.

INTRODUCTION

The applicant in these proceedings N (who for convenience I shall refer to as “the mother”) seeks parenting orders in accordance with her Amended Application filed 18 August 2006.
The substantive orders sought by the mother are that the two children of the parties’ relationship live with her and that they spend periodic time with the respondent father, the frequency of which would depend upon whether he returned to live in Sydney or continued to reside in Port Macquarie.
The two children of the parties’ relationship (“the two children”) are:
(a)E who is 7 years of age having been born in 1998.
(b)G who is 5 years of age having been born in 2001.
Although the mother had sought an order for equal shared parental responsibility, it was made clear by counsel that that order was no longer sought and instead the mother have the parental responsibility for the two children with certain exceptions consistent with the submissions made by counsel for the independent children’s lawyer.
The respondent father, M (who for convenience I shall refer to as “the father”) opposed the orders sought by the mother. The orders sought by the father were set out in his Amended Response filed 21 August 2006, further amended by the “Minutes of Orders” which became Exhibit 3. In substance, the father sought orders that the two children live with him; the parties have equal shared parental responsibility; and that the two children spend time with the mother on the fifth weekend of each school term and half of school holiday periods.
During the course of submissions, counsel for the independent children’s lawyer submitted that it was in the best interests of the two children that they live with the mother and have regular periods of time with the father both during school term and in school holidays, the frequency of which would depend upon whether the father continued to reside in Port Macquarie or lived within two hour radius of the mother’s home in Sydney.
There was a dispute as to the commencement of cohabitation between the parties. The mother contended that it commenced on 30 August 1996 whilst the father alleged that the relevant date was 1 January 1997.
Each party’s affidavit evidence in that regard was not the subject of challenge nor was this issue referred to in counsel’s submissions. No doubt that was due to the much greater importance of other issues to which subsequent reference will be made. It is sufficient for me to find that cohabitation commenced in or about the second half of 1996 or beginning 1997.
The mother contends that the parties separated in 2005 when the father left the premises in which they were residing with the two children and travelled to Port Macquarie.
The father claims that the parties had separated under the same roof in 2003 and have lived in that manner or in separate premises in Sydney other than about four weeks spent with him in Port Macquarie in October 2004 until the father did travel with the two children to Port Macquarie on 7 December 2005.
The mother is 42 years of age and is employed as a catering manager at U.
The father is 47 years of age. The father is unemployed and engaged in domestic duties. The father receives a disability pension.
The two children have lived with the father in Port Macquarie since 7 December 2005 subject to such periods of time spent with the mother in both Port Macquarie and Sydney as well as recently in Newcastle.
The mother lives in Sydney in the home of the maternal grandparents and S who is 20 years of age. S is the child of an earlier relationship of the mother.
The father lives with the two children in rented premises in Port Macquarie.
E and G are pupils at primary schools in Port Macquarie.

HISTORICAL BACKGROUND

The following are further brief relevant historical matters.
On 21 December 2005 the mother instituted proceedings in the Family Court of Australia by an application in which she sought orders in her favour for residence and sole responsibility for the care of the two children with supervised contact in favour of the father. Although a recovery order was not specified in that application, it is clear from the notation to the orders made on 22 December 2005 that such an order was sought by the mother ex parte.
On 22 December 2005, Loughnan JR made an order for confidential counselling and provided procedural directions. Loughnan JR also included a notation that the mother had sought an ex parte recovery order, that the father participated in the hearing by telephone and that he claimed his departure on 7 December 2005 was due to proceedings for an apprehended violence order on behalf of the two children against the mother’s sister.
On 8 February 2006, Loughnan JR made interim orders which provided for the two children to live with the father and the appointment of a children’s representative (since 1 July 2006 legislative amendments now known as “the independent children’s lawyer”).
On 13 March 2006, Loughnan JR made interim contact orders in favour of the mother. Those orders provided for the mother to have contact with the two children for two weeks commencing 14 April 2006; one weekend per month; the period 1 to 14 July 2006; and thereafter each fourth weekend as well as contact in Port Macquarie as agreed. Telephone contact was also ordered.
On 15 May 2006 these proceedings commenced to be heard under the Children’s Cases Program (“CCP”). Directions were made for a child expert’s report to be prepared and furnished by Dr M, a child psychiatrist.
On 14 July 2006 interim parenting orders were made which provided for the two children to spend time with the mother in Sydney and Newcastle.
On 11 August 2006 further directions were made.

RELEVANT LEGAL PRINCIPLES PURSUANT TO THE FAMILY LAW ACT 1975
AS AMENDED (“THE ACT”)

Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:

“A Court must regard the best interests of the child as the paramount consideration.”

That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to children of their parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
(a)children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that section 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration and the finding of fact in that regard that is required for the purpose of making a parenting order. It has been my experience in practice at the Bar and since I have been on the Bench that at times, one or more parties to parenting proceedings lose sight of the exception to the principles underlying the Objects, to which I have referred, in the course of becoming focused and at times fixated upon one or more of those Objects as provided in the legislation.
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the two children, the subject of these proceedings.[2]
[2] B and B, ibid
In carrying out my task it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of the proceedings.[3]
[3] B and B, ibid
The matters to which I referred in paragraphs 30 and 31 established in the leading Full Court judgment of B and B, Family Law Reform Act 1995 as a matter of law do not appear to me to have been displaced by the legislative amendments which came into force on 1 July 2006. This is especially so, due to the continued emphasis upon the paramountcy principle of the best interests of the child to which I have made reference, both for the purpose of making a parenting order as well as the exception to the principles underlying the Objects of Part VII to which I have also referred and assistance gained from the Explanatory Memorandum provided by the Attorney-General to the Parliament upon the reading of the Family Law Amendment Bill (Shared Parental Responsibility Bill) 2005. [4] The first Reading Speech in the House of Representatives provides additional emphasis of the paramountcy of the best interests of the child.[5] That Bill was ultimately passed and enacted with the consequential major amendments to the Act included in the new Part VII which exclusively deals with child related issues.
[4] Paras 31, 32, 43, 44, 180 of the Explanatory Memorandum to the Family Law Amendment Bill
[5] First Reading Speech, p. 8

RELEVANT MATTERS PURSUANT TO SECTION 60CC

Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[6] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
[6] Section 60CC(1)
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.”[7]
[7] Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the nature of the relationship that a child has with each parent and the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”.[8]
[8] Section 60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.

Views expressed by the two children and relevant factors

Each of the parties has given evidence of statements made by each of the two children which suggests that their views are to live with that particular party.
Independent evidence of the views of the two children was given by the Court appointed single expert, Dr M, child and family psychiatrist. Dr M’s evidence was given both by her report and summary report annexed to her Affidavit sworn 2 August 2006 as well as during the course of her oral evidence.
I accept the evidence of Dr M, which I found to be professionally considered and consistent throughout.
That evidence was to the effect that whilst E did express the view that she continue to live with the father, it was an ambivalent view. So far as G is concerned, the view he consistently expressed was that he continue to live with the father.
Dr M’s evidence was that each of the two children demonstrated, directly and indirectly, that they have been affected by the parental conflict. I accept Dr M’s evidence that “the children have a specific knowledge where they may live rather than a detailed knowledge”. An illustration of the pressure that G in particular has been feeling is explained by Dr M when she stated “he became quite distressed when discussing when [sic] the father and the children departed from Sydney”. This was a reference to the father and the two children leaving that part of the premises of the mother’s sister and husband on 7 December 2005 and travelling to Port Macquarie where they have since remained.
The two children are still quite young being aged 7 and 5 years respectively. They appear to have a maturity commensurate with those young ages notwithstanding the concerning parentified behaviour of E with anxiety driven by the parental conflict which was described in detail by Dr M.
Accordingly, I find that E has expressed an ambivalent view in relation to continuing to live with the father whilst G has expressed a consistent view of continuing to live with the father in circumstances where his overall behaviour has concerning features about it suggesting anxiety and stress as described by Dr M.

The nature of the relationship of the two children with each of the parties and other persons

There is no issue that the two children have a loving relationship with each of the parties.
Section 60CC(3)(b)(ii) whilst referring to “other persons (including any grandparent or other relative of the child)” does not provide a limitation so far as relatives are concerned. Implicitly, other persons are those of significance in the lives of the two children. There is also no issue that the two children have a fond relationship with the maternal grandparents and other members of the mother’s extended family including S and the paternal aunt.
It was not an issue in these proceedings that the two children have a positive relationship with their teachers. No submission was made to the contrary in relation to all or any of those matters.

The willingness and ability of each of the two children’s parents to facilitate and encourage a close and continuing relationship between themselves and the other parent

There was no submission made by way of criticism of the mother in relation to her “willingness and ability” in respect of both facilitating and encouraging the type of relationship referred to above as between each of the two children and the father.
The mother, as reported by Dr M and otherwise as demonstrated in her evidence, has historically endeavoured to maintain the family unit in the face of significant difficulties centering upon the deterioration in the relationship of the parties marked by the father’s:
(a)episodes of violence,
(b)consumption of alcohol to excess,
(c)gambling, and
(d)other behaviour to which subsequent reference will be made,
as well as the mother’s efforts in:
(e)maintaining her employment to further the financial position of the family in the face of the father’s lack of employment income other than spasmodic periods of employment in which he was engaged.
In addition, the mother has quite openly, and in my view, sincerely recognised without qualification the attachment between the two children and the father and the need for regular and significant periods of time to be spent with him to the extent to which practicalities permit given the mother’s application that the two children primarily live with her in Sydney leaving the father the option of returning to live in Sydney, rather than continuing to live in Port Macquarie.
The mother has fulfilled her parental responsibilities in relation to major long-term issues.
The mother has been devoted to the care and welfare of the two children, worked hard in her employment to provide financial support for the family in circumstances where the father has been unemployed (apart from very short periods) and the family has been under financial pressure.
The mother has also made arrangements with her sister K for accommodation for the family, whilst far from ideal, was the best available alternative for the purpose of living arrangements given the father did not provide any other viable choice.
The mother has been immersed in religious and cultural matters and encouraged the two children’s participation for their benefit.
A significant issue in these proceedings has been the corresponding “unwillingness and ability” of the father to be active in relation to the type of relationship previously described as between the two children and the mother.
Unfortunately, there was a dramatic change in the father’s attitude as borne out by his actions and omissions when he took the two children and travelled with them from the premises previously occupied by the parties to commence living in Port Macquarie on 7 December 2005.
The parties and the two children had been utilising both a granny flat or otherwise referred to as “a shed” with self-contained accommodation at the rear of the house occupied by the mother’s sister, K and her family, as well as using certain of the facilities of that household. That position had existed for the previous period of approximately 11 months.
The father unilaterally decided to travel with the two children to commence living in Port Macquarie. Before doing so, the father removed the washing machine, dryer and much of the other contents of the parties’ accommodation whilst the mother was at work. The father did not give the mother any prior verbal notice of his intention to travel with the two children to Port Macquarie, nor did he leave her a note that he had done so.

The father claimed that a police constable had told him that he would “inform the family”. In the absence of corroboration, I do not accept that evidence given that either a police officer had contacted the mother or any member of her family or had made any commitment to do so. No doubt, if there had been a police record to that effect, which is reasonable to have anticipated given that it was in the context of a police presence due to an argument between K and the father, then such a police record would have been tendered.
At no time during the ensuing two weeks did the father communicate or make any effort to communicate with the mother either directly or indirectly to inform her of the two children’s whereabouts, their health and well-being. The father’s explanation was two-fold, apart from the reference to the police officer. The father claimed that he was focused upon finding suitable alternative accommodation for himself and the two children and that otherwise his failure to communicate or have both or either of the two children communicate with the mother was “an oversight”.
It was only following the mother’s filing of an application for a recovery order in the Family Court of Australia and during the subsequent urgent hearing before Loughnan JR on 22 December 2005 that communication ultimately took place in an indirect way between the parties as a consequence of a staff member of the Court being able to speak to the father by telephone which led to his appearance in the proceedings on that day via telephone link.
I find that the father has shown an appalling lack of willingness and ability to provide “a close and continuing relationship” between the two children and the mother as demonstrated by his actions and omissions to which I have referred consequent upon his decision to travel with the two children to Port Macquarie on 7 December 2005.
The two children have lived with the father in Port Macquarie since 7 December 2005. Time has been spent between the two children and the mother in accordance with the various interim orders earlier referred to. Those orders required a judicial determination and were not made by consent. That was partly due to the mother seeking an order that the two children return to live with her and the corresponding application of the father that the two children continue to live with him until further order.
The mother has given detailed evidence of the difficulties that she has had from time to time in telephone communication with the two children since they have lived in Port Macquarie, specifically due to the controlling behaviour of the father in monitoring such calls. The mother’s evidence was both detailed and plausible and not the subject of challenge. I accept the mother’s evidence and make findings accordingly.
Due to the mother’s modest means, it has not been possible for her to maintain a close and continuing relationship with the two children in terms of proximity to them or ability to see them at least on a weekly basis as she has had to continue to live and work in Sydney, whilst the father continued having the two children live with him in Port Macquarie.
The father has even more limited financial resources, and from a practical viewpoint it was not possible for him to either finance the mother having more frequent time with the two children in Port Macquarie or for him to bring them more regularly to Sydney.
Accordingly, I find that the father has continued his lack of both willingness and ability to facilitate and encourage a close and continuing relationship between the two children and the mother throughout the period from the time that he commenced living with the two children in Port Macquarie from December 2005.

The likely effect of any changes in the two children’s circumstances, including the likely effect of any separation from either parent or other child or person with whom the two children have been living

It has been both the application and the proposals of each of the parties that the two children live with one or other of them and not be separated.
Currently, the two children live with the father which has been the situation since 7 December 2005.
There are a number of likely effects of changes in those circumstances.
Firstly, the daily relationship with the father will come to an end in the event of the two children living with the mother, especially if the father continues to live in Port Macquarie given the distance, time and expense of travel between that town and Sydney.
Secondly, the frequency with which the two children may spend time with the father may be greatly reduced in the event of him continuing to live in Port Macquarie, although ameliorated to a considerable extent in the event of him moving to Sydney.
As the mother volunteered, the two children are likely to miss the father especially G and adjustment in that regard will be required by them.
Additionally, the two children will need to adjust to change of school and pre-school respectively. E has been a good pupil by all accounts and in the event of her living with the mother in Sydney would return to the school where she had attended in kindergarten. On the evidence before me, E is likely to adjust to such a change. G has been attending pre-school and to that extent the likely effect of change so far as this stage of his schooling should not be difficult.
The two children would of course need to adjust to changes so far as no longer seeing the paternal aunt and her family as frequently as has been the case in recent times. It was not suggested in submissions that that represented a significant matter.
Amongst the major likely effects of any changes is that the two children will be reunited with the mother and members of her family, especially the maternal grandparents and S, on a daily basis. They are a warm and loving family who, on the evidence before me, are devoted to the care and well-being of the two children.
I accept the evidence of the mother and the maternal grandmother that they will ensure the two children attend school punctually without interruption barring unforeseen circumstances such as illness. This is likely to be a major advance so far as the two children are concerned, having regard to the last three years of E’s frequent absences from school whilst under the sole responsibility in that regard of the father. I will refer to those matters in more detail in my findings with respect to the capacity of each of the parties in providing for the needs of the two children.
The two children are also likely to benefit from the maternal family’s stable and supportive family environment which provides both stability and routine for the two children.

The practical difficulty and expense of the two children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the two children’s right to maintain personal relations and direct contact with both parents on a regular basis

There have been considerable practical difficulties and expense in relation to the above matters since 7 December 2005 when the father unilaterally decided to take the two children with him to commence living in Port Macquarie.
I have previously referred to the difficulties in terms of distance, time and expense which have made spending time with and communicating with the mother very difficult from a practical viewpoint, apart from telephone communication.
That situation is likely to continue should the two children continue living with the father with the exception that the mother’s evidence was that should that occur, she will have to seriously consider her options in terms of moving to Port Macquarie so as to ensure more frequent time spent by her with the two children.
In contrast, the father’s evidence was that in the event of the two children living with the mother in Sydney then it was unlikely he would move to Sydney as he considered he had more support in Port Macquarie and that Sydney was more expensive. The father did not disclose the same urgency as the mother so far as meeting the priority of spending as much time with the two children as possible by moving back to Sydney, if necessary. The father claimed he could not sustain employment. Yet, during the course of the father’s oral evidence he informed the Court that he was employable and would seek employment for the benefit of the two children and himself. To that extent, he said he had made preliminary enquiries of Centrelink without specifying the area or areas of employment for which he considered he was suited. On the assumption that the latter evidence of the father regarding his employability from a positive viewpoint was genuine, then there is no reason why he could not seek employment in Sydney if he is able to do so in Port Macquarie. One could imagine that there may be differences between both Port Macquarie and Sydney so far as employment prospects are concerned. However, the father did not give any evidence on that matter and nor did any other witness.
Consequently, I find that there is considerable practical difficulty and expense involved in the two children spending time with and communicating with either parent with the corresponding substantial effect on their relations each parent in the event of one parent living in Port Macquarie and the other in Sydney.
I also find that the mother may well make serious efforts to overcome that difficulty by making a considerable sacrifice in terms of her relations with her extended family, church and employment by possibly moving to Port Macquarie.
I also find that the father did not seem to be driven in prioritising any need to spend greater time with the two children by relocating to Sydney in the event of the two children primarily living with the mother.

The capacity of the parties and any other person to provide for the needs of the two children including emotional and intellectual needs

It was not an issue that each of the parties has the capacity to provide for the accommodation needs of the two children, albeit that in each instance they are not ideal.
The evidence of the father is that the mother did not have the capacity to provide for the physical safety or emotional needs of the two children. The mother was “damned with faint praise”[9] by the father describing her as a “warm person” who in effect neglected the physical safety of the two children whilst they attended church on Sunday due to an absence of, or inadequate supervision on her part and otherwise did not listen to the two children.
[9] A. Pope, “Epistle to Doctor Arbuthnot”
I am satisfied that there is no substance in those contentions.
The evidence of the mother, supported by members of her family, was that she was a loving and devoted parent. So far as the activities of the church are concerned there was one particular incident, according to the father, when G was allowed to wander towards or on the roadway. The evidence of the mother and other witnesses are to the contrary. I accept all of the evidence given by them which was consistent throughout and clearly they were well aware of the relevant circumstances.
Significant factual issues arose in relation to the capacity of the father to provide for both the emotional and intellectual needs of the two children.
I am satisfied that the father is seriously lacking in both areas.
I have made findings in relation to the father’s removal of the two children from Sydney whilst the mother was at work and the lack of any communication or attempted communication with her for two weeks from 7 December 2005, all of which represent a serious lack of insight and sensitivity to the emotional needs of two young children. It also shows a callous and cruel disregard of the mother and her feelings.
I have also made findings in relation to the manner in which the father has controlled telephone communication with the mother by the two children from time to time.
In addition, I also refer to my subsequent findings of the father’s violence and excessive consumption of alcohol in and about one or other of the premises occupied by the parties and the two children, all of which can hardly provide a positive platform for the emotional needs of the two children so far as ensuring they have a stress-free home environment.
So far as the intellectual needs of the two children, the detailed evidence before me,[10] initially disputed by the father in cross-examination and then conceded by him, is that during the last three years when he claimed he was principally (if not solely) responsible for the daily care of the two children including attendances at school so far as E is concerned and pre-school of late so far as G is concerned, reveals serious absences from school.
[10] Exhibit 6
In one term in 2004, E missed 23 days. In another term, E missed 10 days. According to the father, those absences were due to either E having bronchitis or accompanying him whilst he inspected possible alternative accommodation.
In 2005, E was absent from school on an average of three days per week in one term. Again, this was allegedly due to E having severe bronchitis and/or accompanying the father whilst he inspected accommodation in Newcastle and the Central Coast. Why that was necessary was never explained by the father in any cogent manner. Even if the mother was absent in her employment, then arrangements could have been made with one or more members of the family for the care of E, or alternatively the father could have inspected properties on weekends rather than disrupting E’s schooling to such an extent.
In 2006 in Term 2, E missed about one day per week. Again, this was allegedly due to her suffering from bronchitis as well as time spent with the mother.
The father stated that he “did not have a chance” to inform Dr M of E’s health problems of bronchitis which allegedly affected her during the past three years.
So far as Dr M was concerned, her evidence was that the father claimed that any illness of the two children was only after they had been in Sydney seeing the mother. The father also provided his extraordinary explanation for E’s alleged chronic bronchitis in that the mother was prone to illness having had tuberculosis. There was not a shred of evidence to support those contentions.
Accordingly, I find that the father has a significantly limited capacity to provide consistently for the intellectual needs of the two children.
G has also had frequent absences from pre-school this year. Such absences were not explained by the father on some readily understandable basis. The father stated the absences were not due to behavioural problems.

The maturity, sex, lifestyle and background (including culture and traditions) of the two children and of the parties with other relevant characteristics

As is apparent the two children are female and male respectively.
E has a maturity perhaps greater than expected for her age. However, that appears to be her response to the conflict driven relationship between the parties raising concerns for her emotional development as detailed by Dr M.
G has the maturity commensurate with his age. However, G appears to show behaviour at times of a nature which is of concern in respect of his emotional development as described by Dr M.
The two children have a multicultural background as the father is Caucasian whilst the mother is Fijian. The mother and the maternal grandparents in particular have ensured that the two children have been immersed in Fijian culture and traditions, not only in the family life of the mother’s extended family but also due to Sunday church attendance and activities.
The evidence does not suggest that the father has any particular background culture or tradition.

The parental attitude of the parties

As previously recorded, there is no issue that the parties have a loving relationship with each of the two children. The mother has demonstrated positive aspects of her parental attitude ranging from her care for each of the two children to engaging in her employment with overtime in order to ensure that the family unit, and in particular the two children, have been adequately provided for as well as arranging accommodation at the premises of her sister, K and her husband rent-free, albeit far from ideal in circumstances where there was no other realistic option at that stage.
The mother has sought to maintain her relationship with the two children since the father unilaterally decided to move with them to Port Macquarie, notwithstanding the serious practical obstacles that were created in that regard, to which earlier reference has been made, as well as making it clear that if necessary she would move to Port Macquarie despite the difficulties that would create. Implicitly, being near to and furthering her relationship with the two children was her priority.
Earlier in this judgment I made findings in relation to the father’s unilateral removal of the two children from Sydney to Port Macquarie whilst the mother was at work and without her prior knowledge, as well as his lack of communication with the mother on that day or subsequently over the next two weeks. That finding together with my previous findings in respect of the father’s lack of responsibility so far as the two children’s educational needs since 2004, highlighted by the many absences from school, demonstrate a lamentable parental attitude on his part.

Family violence and any family violence orders

The recent amendments to section 4 of the Act defines “family violence” as follows:
“Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.
Note: a person reasonably fears for, or reasonably is apprehensive about, his or her personal well-being or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal well-being or safety.”
An issue of statutory interpretation arises for the purpose of the meaning of “a reasonable person” in the circumstances referred to in the notation to section 4 above. The Explanatory Memorandum seeks to provide guidance by referring to “fear or apprehension of violence must be reasonable” with reference to the Domestic Violence Act 1994 (SA).[11] The Reading Speeches do not provide further assistance.
[11] The Explanatory Memorandum, ibid, paras 20-22
Unfortunately, the South Australian legislation does not advance the matter any further, although, consideration of it is relevant, especially as the standard of proof is the civil standard. I make a similar observation in relation to section 562AE(1) of the Crimes Act 1900 (NSW). The reported judgments in relation to the legislation in South Australia and New South Wales that I have read do not assist in the issue of statutory interpretation. Similarly, I have not been able to gain specific guidance from a review of the Anti-Discrimination Act 1997 (NSW) or the Sex Discrimination Act 1984 (Cth).
However, assistance is gained from section 5B(2) of the Civil Liability Act 2002 (NSW) which provides criteria for determining “whether a reasonable person would have taken precautions against a risk of harm” which includes “the probability that the harm would occur if care was not taken”.
In the tort of negligence the standard of the reasonable man is well known. In Cook v Cook, the High Court followed the earlier definition given in Commissioner of the Railways (NSW) v Anderson[12] namely, “the conduct that would be expected of a reasonably careful man in such circumstances”.[13] The well known earlier English decisions made reference to “the ordinary person” which seemed to be synonymous with the “reasonable man” as being a “hypothetical person of ordinary prudence, intelligence and skill under the circumstances”.[14]
[12] Commissioner of the Railways (NSW) v Anderson (1961) 105 CLR 42 at 56
[13] (1986) 162 CLR 376 at 382
[14] Heaven v Pender (1883) 11 QBD 503; King v Phillips (1953) 1 AER 617

I have not researched this matter further as it would be important to have received considered and analytical submissions from counsel. Without being critical of them, that did not occur as understandably their submissions were focused on other issues which appeared to have more emphasis in the evidence that was adduced.
My conclusion in the circumstances is that “what is reasonable is clearly going to depend upon the position and perspective from which the question is viewed”.[15]
[15] Pace “Concepts of reasonableness” and the academic material referred to therein (2003) QUT LJJ12
Applying as best I can the guidance in legislation and the cases to which I have referred, I have concluded that for the purpose of the definition of “family violence” the “reasonable person” is a person of ordinary prudence and intelligence who would have the fear or apprehension in the circumstances of the person who is alleged to have it in a particular case. In this case, it is the mother.
Affidavit evidence of the mother[16] provides evidence of conduct of the father both actual and threatened towards the mother including but not limited to threats to kill her.
[16] Affidavit sworn 24 January 2006, paras 10, 11, 12 and 17
The father has denied the mother’s allegations of violence towards her, although he did qualify his denial in the course of his oral evidence by stating that he had not “consciously” been violent.
The evidence of the mother was that the father’s alleged violent conduct was at times, in circumstances when he had allegedly suffered from “a panic attack” and/or had been consuming alcohol to excess.
The father’s evidence is that he has suffered from panic attacks from time to time. The father has a history of unstable behaviour which has required medical attention including at a hospital. The father denies the allegations in relation to alcohol consumption so far as recent years are concerned. The mother’s evidence in that regard is corroborated by K and in relation to one occasion by a pastor.
I accept the evidence of the mother and her witnesses, all of whom were not the subject of any substantial challenge (if at all) during the course of cross-examination. They impressed me as sincere people who are witnesses of truth. My categorisation of that evidence also includes the evidence given by the mother substantiated by the father’s own qualified denial, to which I have referred.
The detailed evidence of the mother is such that I am satisfied that “a reasonable person”, in accordance with section 4(1) as previously interpreted by me, would fear for, or be reasonably apprehensive about his or her personal well-being or safety in the particular circumstances described. Indeed, no contrary submission was made.
The mother has also given evidence of the father’s physical chastisement of G, in particular an incident outside the church in November 2005 when the father hit the child across the head and on the back when the child had fallen to the ground. That evidence is corroborated by the evidence of the mother’s sister V and a pastor. In addition, K has given evidence of the father’s threatening behaviour towards G. The father has denied all of the allegations.
I accept the evidence of the mother and her witnesses. That evidence was given in a detailed and consistent manner and not shaken during the course of cross-examination.
The affidavit evidence of V[17] refers to an occasion in October 2003 when E allegedly told her that the father had put a knife to the mother’s neck. The mother allegedly informed V that the incident as described by E did in fact happen. It is obvious that such alleged violent behaviour by the father towards the mother was very serious. Yet, no such evidence was given by the mother in any of her four affidavits sworn this year and which were relied upon by her. Curiously, nor was leave sought by the mother’s counsel to adduce oral evidence-in-chief from the mother.
[17] Affidavit of V sworn 24 January 2006, para. 14
During the course of cross-examination of the mother, she stated that the father had held a knife to her although she had not suffered an injury. The mother agreed that this incident was not referred to in any of her affidavits. No satisfactory evidence was given to explain its omission.
Certain police records are in evidence.[18]. Those records refer to an incident on 2 October 2003 when the police attended the parties’ premises following a complaint of a domestic argument. A notation is made in the records of the mother’s allegation that the father picked up a knife and pointed it at her. The police record also states that the father did not remember threatening the mother. The police further noted that in their opinion the father was in need of psychiatric assessment.
[18] Exhibit 5
The standard of proof that applies in relation to this allegation of violence, and indeed all other factual matters in dispute, regardless of the topic, is the civil standard whereby I must be satisfied on the balance of probabilities for the purpose of a finding of fact being made.
In that regard, section 140 of the Evidence Act 1995 (Cth) provides that I may take into account, on the balance of probabilities, the gravity of the matter alleged for the purpose of being so satisfied.
It is clear that the allegation amounts to serious criminal conduct by the father. To that extent the High Court has held that I should not “lightly” make such a finding on the balance of probabilities.[19] Applying that approach I am not satisfied, on the balance of probabilities, that the allegation in relation to the knife incident has been made out due to the lack of evidence-in-chief given by the mother either in any of her affidavits or orally, and the absence of any evidence explaining that lack of evidence-in-chief, as well as the inconsistency between the representation made by E to V and the police records. I have come to that conclusion for the reasons expressed by me, notwithstanding the reservation that I have in that regard.
[19] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at pp 170-171
The matter of previous family violence orders does not apply.

The preference for an order least likely to lead to an institution of further proceedings in relation to the two children, or either of them

I have concluded that a parenting order whereby the two children primarily live with the mother with orders made providing for the two children to spend time and communicate with the father are orders least likely to lead to the institution of further proceedings.
I am satisfied on the evidence of the mother and the maternal grandmother that the two children will be living in a stable and caring environment, regularly and promptly attending school, subject to unforeseen circumstances such as ill-health, and at the same time their relationship with the father will be facilitated.
Indeed, the father gave evidence of his acceptance of the maternal family, subject to his reservation in relation to their involvement with the church of which he disapproves due to the time that the two children spend there and the alleged unsupervised activity.
So far as church involvement is concerned, I accept the evidence of the mother in particular that the reality is that, including Sunday school, the time at church is approximately two hours in the morning which also includes interaction with other children. Occasionally, further attendance at church takes place late in the afternoon for a relatively short period. I accept the mother’s evidence that the two children enjoy themselves at the church, are properly supervised and are not subjected to the type of adverse control which the father claimed takes place. In that regard, I also accept the evidence given by the pastor of that church.
Quite clearly, the church and its activities are central features of the life of many Fijian members in the community and in particular the mother and members of her extended family which enhance, for the benefit of the two children, awareness of and participation in Fijian culture and traditions much of which are family oriented.
In contrast, I am also satisfied that parental orders made in favour of the father, as sought by him, would not lead me to the same degree of satisfaction so far as:
(a)facilitating time to be spent with the mother
(b)communication with the mother as well as members of her extended family with whom the two children have a fond relationship
(c)the father’s apparent determination to continue living in Port Macquarie, and
(d)the father’s abusive conduct of the mother at times due to his poor view of her as a parental figure for the two children which is illustrated by the father’s actions and omissions during the period of two weeks commencing on 7 December 2005, to which I earlier referred and do not require reiteration.

Other relevant other facts or circumstances

An issue in these proceedings is whether or not the parties separated in October 2003 and have since lived separate and apart from each other, albeit under the same roof, until the father travelled with the two children from Sydney on 7 December 2005 to commence living in Port Macquarie.
The father’s case is that the parties have indeed separated as alleged. The mother denies the alleged separation.
The father places great store on a document signed by the mother for the purpose of the father presenting it to Centrelink which states “I, N confirm the separation from my de-facto M on 19 Oct 03”.[20]
[20] Affidavit of father sworn 6 March 2006, annexure “A”
The father’s evidence is that he provided that document to Centrelink together with other documents completed and signed by him.[21]
[21] ibid, annexures “B” and “C”
The mother’s evidence is that she did sign the documents to which I have referred due to the duress she claimed to be experiencing brought about by the father as a result of:
(a)his alleged violent behaviour,
(b)his frequent demands for money,
(c)threats towards the mother,
(d)the financial predicament the family was in (which included arrears of rent), and
(e)his repeated insistence that the mother sign the above document to enable the father to obtain Centrelink benefits.
The father denies the allegations of any conduct on his part which coerced the mother into signing the relevant documentation.
The father claims the mother, for a period of time, lived separate and apart from him and the two children following the signing of the relevant document which included living in the home of a fellow employee of the mother A and the veiled suggestion that they were in an intimate relationship.
A gave both affidavit and oral evidence. The substance of A’s evidence-in-chief was that in November 2003 the mother moved into the second bedroom of his rented apartment following a request made by her in late October 2003 on the basis that she stay at his home “for a while” due to problems that she and the father were having. Although not precisely clear, it seems the mother lived in A’s apartment until early 2004.
A’s further evidence-in-chief was that from about late 2003 until an unspecified date in December 2003 the father and the two children moved into his apartment and resided with the mother in his second bedroom. A also stated that he regularly observed the father taking the mother to work and collecting her after work had concluded.
During the course of A’s evidence it was suggested to him that perhaps he had a more intimate relationship with the mother. A was clearly surprised at that suggestion and stated that he viewed his relationship with the mother as being a maternal one. Not surprisingly, he was no longer pressed in relation to that issue.
I found A to be a reliable and truthful witness and I have no reservations in accepting the entirety of his evidence.
For the period of about January to November 2004 the parties and the two children lived in rented premises at Sydney. The lease was in the father’s name.
In October 2004 the father and two children travelled to Port Macquarie where they remained for about four weeks. The father contended that this was with the consent of the mother with a view to him being the primary carer of the two children in Port Macquarie. The mother denies those contentions and alleges that in fact the two children went with the father for a holiday. The father claims that he only returned from Port Macquarie to Sydney at the mother’s request and because he did not know his “rights”. The father did not give any evidence to explain why he had not sought legal advice, if necessary, from a chamber magistrate if he had the lack of knowledge that he claimed.
For the period from about November 2004 to 7 December 2005 the parties lived with the two children in the granny flat at the rear of the home of K and her family. The father claimed this was arranged by the mother to accommodate him and the two children on a separated basis. The mother’s evidence is that it was merely alternative accommodation organised by her due to the difficult financial circumstances in which the family found itself, as well as a means of seeking to improve her relationship with the father as detailed in her affidavit evidence. The father contends that he and the mother lived separate lives in that granny flat. That evidence is contradicted by the mother and K.
I accept the evidence of the mother and K. Their evidence was given in a detailed and convincing manner. The evidence of K was not shaken in any material respect. It flies in the face of the evidence, and the close relationship the mother has had with K, that such arrangements would be made between them to accommodate the father with the two children on a separated basis from the mother. Indeed, that was not seriously pressed with K during the course of her oral evidence.
In view of the subsidiary findings of fact that have been made by me, I have concluded that I prefer the case for the mother that the parties had not separated in October 2003 and the document signed by her for the purpose of being presented to Centrelink was due to the mother being over-borne by the father and out of the pressure of their straitened financial circumstances and that subsequent living arrangements between the parties that took place until the father departed with the two children on 7 December 2005 are in accordance with the mother’s evidence.
Indeed, the evidence of A, which I have accepted, flies in the face of the father’s contention that the parties led separate lives.

The extent to which each of the parties has fulfilled or failed to fulfil parental responsibilities by each of the parties in relation to major long-term issues, spending time and communicating with the two children

The recent amendments to the Act[22] define major long-term issues as being:
“In relation to a child, means issues about the care welfare and development of a child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.”
[22] Section 4 of the Act
I have previously made findings in relation to the father’s unilateral removal of the two children from Sydney to Port Macquarie whilst the mother was engaged in her employment and without the prior consent or knowledge.
It follows that as a result of the father’s unilateral actions on 7 December 2005; he failed in his responsibility to facilitate participation by the mother in making decisions regarding the education of the two children; their religious and cultural upbringing; and their living arrangements.
All of those matters were changed by the father’s unilateral actions on 7 December 2005, compared to those features of the lives of the two children before that unilateral action was taken by him.
I refer to my previous findings in relation to the father’s unilateral removal of the two children from Sydney to Port Macquarie whilst the mother was engaged in her employment and without the prior consent or knowledge. I give considerable weight to those findings as well as my finding regarding the father’s failure in his parental responsibilities.

CONCLUSION

The proposal of the mother is that the two children live with her and spend time and communicate with the father during each school term each alternate weekend; half school holidays; and on other designated occasions.
The mother also proposes that in the event of the father deciding to remain living in Port Macquarie or on the Central Coast, then the two children spend time with him less frequently due to the travel that would be involved. However, in essence such periods during school terms should occur monthly.
The mother also proposes that she have the sole parental responsibility for the two children, subject to the periods that the two children or either of them spend time with the father. In that event, it is proposed that the father exercise the daily parental responsibility.
The father proposes that the parties have equal shared parental responsibility and that the two children live with him and otherwise spend time with the mother as agreed or on the fifth weekend of each school term.
The father further proposes that the two children spend time with the mother for approximately half of the school holiday periods.
Each of the parties sought orders in relation to communication between the two children and the other party.
I have determined that it is in the best interests of the two children that they live with the mother. The following are my reasons.
I have made findings in relation to the capacity of each of the parties to provide for the needs of the two children as well as the likely effect of any changes in their circumstances.
It is clear to me that the mother is better able to provide for all of the physical, emotional and intellectual needs of the two children compared to the father. The mother is able to provide stable accommodation for the two children in an environment of warmth and support from members of her family with whom the two children have a fond relationship.
The father has been unreliable so far as the intellectual needs of the two children are concerned for the past three years. The school absences of E in particular are disconcerting. The reasons that the father gave for that situation, I have not accepted. I have concluded that in those circumstances there is a significant risk that the pattern of school absences by each of the two children is unlikely to cease in the immediate future.
By contrast, I have accepted the evidence of the mother and generally the evidence of the maternal grandparents that the two children will be attended to and supported in a way that ensures prompt and reliable attendance at school which can only be for their benefit.
I have deep reservations in relation to the father’s capacity to provide for the emotional needs of the two children in the context of their relationship with the mother and other members of her extended family. I have made findings in that regard centered upon the father’s unilateral removal of the two children from the premises in which the family had lived in Sydney to Port Macquarie and the lack of ensuring any communication with the mother over the following two weeks. My findings in that regard and the manner in which they have been described do not require reiteration.
I am further satisfied that the mother has a proven willingness and ability to facilitate and encourage close and continuing relationship between the two children and the father. The father’s actions as opposed to his words have demonstrated the reverse since 7 December 2005.

For similar reasons, I have also attached weight to my findings in relation to the contrasting approach of the parties to the responsibilities of parenthood which each have demonstrated that has led me to conclude that the mother’s proven and reliable attitude to such responsibilities in all of their aspects are far more reliable than that of the father.
In the environment which can be provided by the mother for the two children, they are likely to benefit as they have in the past from the particular culture and traditions that the mother and members of her extended family have followed. That will be of only minimal benefit to the two children should they live with the father in Port Macquarie as proposed by him.
I have taken into account the views expressed by the two children. I have given those views little weight having regard not only to their ages but also the ambivalence shown by E and the behavioural problems of G which Dr M considered to be relevant.
I have been impressed by the written and oral evidence of Dr M, her recommendations and the reasons for them. Whilst Dr M acknowledged that there are likely to be difficulties of adjustment to varying degrees that the two children may have to face as a consequence of living primarily with the mother in Sydney, they are likely to be overcome and overall the two children will benefit from living with the mother as opposed to continuing to live with the father in Port Macquarie.
I have also concluded that the prime considerations in these proceedings are such that the two children will benefit from having a meaningful relationship with both of the parties by living with the mother. The two children will live in a stable environment where all of their needs will be satisfactorily provided for and the mother has a proven ability and willingness to facilitate and encourage a close and continuing relationship between them and the father. I have made findings in that regard which do not require restatement in detail.
In the event of the father taking the same approach as the mother has so far as prioritising the need to spend as much time as reasonably possible with the two children, he may seriously consider moving back to Sydney and seeking employment which he claims he is able to do. In the event the father chooses to remain in Port Macquarie, I am satisfied the mother will do that is reasonably possible to both facilitate time to be spent by the two children as well as communication with the father.
The issue of violence no longer plays as predominant a role as it did when the parties cohabited. Consequently, in my view there is no longer a need to protect the two children from physical or psychological harm as a result of being exposed to “abuse, neglect or family violence”.
Accordingly, it is for those reasons and taking into account the prime consideration referred to in section 60CC(2)(a), the findings of fact that I have made and the weight attached to them, that I have determined it is in the best interests of the two children that they live with the mother.
I will make orders to ensure that whether the father continues to live in Port Macquarie or otherwise lives in Sydney that the two children spend time and communicate with him on a regular basis but obviously more frequently should he live in Sydney.
So far as the presumption of equal shared parental responsibility is concerned, I am satisfied the presumption does not apply based on my satisfaction that it would not be in the best interests of the two children for the parties to have equal shared parental responsibility in accordance with section 61DA(4). I have already made findings as to the best interests of the two children. Those findings support the ground in sub-section (4). They include my findings in respect of the extent to which each of the parties has fulfilled or failed to fulfil responsibilities or the opportunity to participate in decisions about major long-term issues in relation to the two children, poor communication (particularly since 7 December 2005), and the manner in which the father unilaterally has provided an obstacle since that time to the continuation of a beneficial and meaningful relationship between the two children and the mother.
I am concerned that the two children should be made aware of the parenting orders that I will make, without interference from the father who has a history of erratic and unpredictable behaviour. Consequently, I have made an interim order providing for the two children to be in the care of the Manager Child Dispute Services. I will make orders to ensure the mother is able to speak to them before the father for the purpose of collecting them to commence living with her and to ensure that any difficulties so far as the father’s unpredictable behaviour is concerned are kept to a minimum. I will make orders to provide for the mother to leave the Court premises with the two children ahead of the father and to enable police officers to assist in orders being complied with by the parties.

ORDERS

Accordingly, I make the following orders:
1.That the mother have the sole parental responsibility for the two children of the parties E born in 1998 and G born in 2001 (“the two children”) subject to Order 2.
2.That each of the parties have the daily parental responsibility for the two children for such periods that the two children or either of them live with or spend time with her or him respectively.
3.That the two children shall live with the mother.
4.That each of the parties shall take all reasonable steps to ensure that the two children spend time with M (“the father”) as follows:
The father residing in Sydney
(a)During each school term each alternate weekend from Friday at the conclusion of school until the commencement of school the following Monday or Tuesday should Monday be a public holiday, the first of such occasions to take place upon the father providing the mother with 10 days notice in writing sent by pre-paid registered post or email should the parties have email addresses.
(b)Each alternate Wednesday from the conclusion of school until 6.00 pm in the week in which the weekend time to be spent with the father will not occur.
In the event of the father living in Port Macquarie or in a place outside the Sydney metropolitan area
(c)The first weekend of each month when either Saturday or Sunday is the first day of the month commencing from the conclusion of school on Friday until the commencement of school on the following Monday or Tuesday should the Monday be a public holiday.
(d)On the second Wednesday of each month commencing from the conclusion of school until 6.00 pm upon the father providing the mother with 10 days written notice sent to her by pre-paid registered post or by email.
School holiday periods
(e)For the period from 9.00 am 15 October 2006 to 3.00 pm on the last Saturday prior to the commencement of the next school term.
(f)For half of each subsequent school holiday period commencing at 9.00 am on the first day and concluding at 3.00 pm on the last day being the first half of such period in the school holiday at the conclusion of the final 2006 school term and thereafter being the first half of each school holiday period in each even numbered year and the second half in each odd numbered year commencing at 9.00 am on the first day of each relevant period and concluding at 3.00 pm on the last day of such period PROVIDED THAT in any event school holiday periods spent with him shall conclude no later than 3.00 pm on the last Saturday prior to the commencement of the next school term.
Generally
(g)Such alternative or further periods whether in school holidays or otherwise as the parties may agree upon from time to time.
5.That unless otherwise specified in these Orders the father shall collect the two children from the mother outside her home and the two children shall be returned by the father to the mother at the same place at the conclusion of each relevant period unless otherwise agreed between them.
6.That each of the parties shall facilitate and encourage the two children to communicate with the other party by telephone in private on a call initiated by the party with whom the two children are not then living between 5.00 pm and 7.00 pm each second day or with such other frequency and at such times as the parties may agree upon.
7.That the mother shall authorise and request the Principal of all schools attended by the two children to furnish to the father at his expense copies of all school reports, notices and correspondence in relation to each of the two children’s academic progress, sport and extra-curricular activities and general school functions and activities.
8.That in the event of the two children or either of them suffering a serious illness or injury then the parent with whom the two children or child concerned was then living shall inform the other party as soon as possible of the nature of such illness or injury and the name, address and telephone number of the relevant hospital or medical practitioner.
9.That each of the parties is restrained from the following and shall use her or his best endeavours to ensure that no other person conducts himself or herself accordingly:
(a)Making any derogatory comment about the other party or her or his relatives to or in the presence or hearing of the two children or either of them.
(b)Commenting, discussing or referring to proceedings between the parties in this Court or the evidence given by either of them or any of their witnesses.
10.That upon these orders being made and published:
(a)the mother shall speak to and collect the two children with their belongings from the Manager Child Dispute Services or her nominee from the Sydney Registry, Family Court of Australia only after those events have occurred. The father shall be permitted to speak to the two children solely for the purpose of greeting them whereupon the mother shall leave the Sydney Registry with the two children; and
(b)the father is restrained from leaving the Sydney Registry until the expiration of 20 minutes after the mother and the two children have left the Registry upon being so notified by the Manager Child Dispute Services.
11.That the Commissioner of the New South Wales Police or the Australian Federal Police and/or the New South Wales Police Force is requested to assist in the implementation of Orders 10(a) and 10(b).
12.That in the event of the father doing any act or thing which contravenes or threatens to contravene Orders 1, 10(a) and 10(b) a police officer of the Australian Federal Police or the New South Wales Police Force may recover the two children or either of them and ensure that the child or two children are delivered to the mother.
13.That pursuant to sections 62B and 65DA(2) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the document entitled “Fact sheet: parenting orders, obligations, consequences and who can help” a copy of which is annexed to these Orders.
14.That all documents produced on subpoena may be returned to the person who produced the same.
15.That the proceedings be removed from the Active Pending Cases List.

I certify that the preceding 186 paragraphs
are a true copy of the reasons for judgment
delivered by the Hon. Justice Rose

……………………………..
Associate

[2006] FamCA 958

29 September 2006