O’HARA & O’HARA

[2020] FCCA 569

FEDERAL CIRCUIT COURT OF AUSTRALIA

O’HARA & O’HARA [2020] FCCA 569

Catchwords:
FAMILY LAW – Parenting – risk of harm.

Legislation:

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

Cases cited:

Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC
MRR v GR [2010] HCA 4
Salah & Salah [2016] FamCAFC 100
Slater & Light [2011] FamCAFC 1

Applicant: MS O’HARA

Respondent: MR O’HARA

File Number: PAC 96 of 2017

Judgment of: Judge Obradovic

Hearing dates: 18 and 19 February 2020

Date of Last Submission: 19 February 2020

Delivered at: Parramatta

Delivered on: 19 March 2020

REPRESENTATION

Counsel for the Applicant: Ms Swarmi

Solicitors for the Applicant: Watson Law

Appearing for the Respondent: In person

ORDERS

1. All prior parenting orders with respect to the children X born in 2014 and Y born in 2016 (“the children”) are discharged.

2. The parents shall have equal shared parental responsibility for the children.

3. The children shall live with the mother.

4. The children shall spend time with the father until the conclusion of the 2020 school year and commencing the first Saturday following the making of these orders as follows:

   (a)In week one:

   (i)From 10am until 6pm on Saturday.

   (b)In week two:

   (i)From 10am on Saturday until 10am on Sunday.

5. Thereafter the children shall spend time with the father each alternate weekend from 6pm on Friday until 3pm on Sunday.

6. For the purpose of changeover the parents or their nominees are to collect and deliver the children at Suburb A McDonald’s.

7. The father is at liberty to FaceTime the children each Wednesday at 5pm by calling the children’s Apple ID or as otherwise agreed.

8. Unless otherwise agreed, and upon the commencement of Order 5 above and thereafter, the children shall spend time with the father during school holidays as follows:

   (a)At the conclusion of Terms 1, 2 and 3:

   (i)For the first half of each school holiday period from 6pm on the last day of the school term until 3pm on the middle Saturday of the holiday period in even numbered years; and

   (ii)For the second half of each school holiday period from 3pm on the middle Saturday of the holiday period to 6pm on the last Sunday of the holiday period in odd numbered years.

   (b)At the conclusion of Term 4:

   (i)Until the conclusion of Y’s first year of formal schooling; on a week about basis to commence in the first week of such school holidays in even numbered years and in the second week of such school holidays in odd numbered years.

   (ii)After the conclusion of Y’s second year of formal schooling:

   1.   For the first half of each school holiday period from 6pm on the last day of the school term until 3pm on the middle Saturday of the holiday period in even numbered years; and

   2.   For the second half of each school holiday period from 3pm on the middle Saturday of the holiday period to 6pm on the last Sunday of the holiday period in odd numbered years.

9. Unless otherwise agreed, the children shall spend time for Easter and Christmas with the parent with whom they would usually be spending time with pursuant to Order 4, 5 and 8 herein.

10. In the event each child’s birthday falls on a weekday, the parent that is not already spending time with the child shall FaceTime the child, at a time agreed between the parents and failing agreement at 5pm.

11. In the event the parent’s birthdays fall on a weekday, the parent that is not already spending time with the children will FaceTime the children, at a time agreed between the parents and failing agreement at 5pm.

12. The children shall spend time with the father on the Father’s Day weekend, if not already in his care, from 6pm on Friday until 3pm on Sunday.

13. The children shall spend time with the mother on the Mother’s Day weekend, if not already in her care, from 6pm on Friday until 3pm on Sunday.

14. The father is restrained by injunction from permitting or allowing the children to be left alone with Mr B or from allowing or permitting any other third party from doing so.

15. The mother is to provide to the father with her residential address and telephone number within seven days’ of the making of these orders.

16. Each party is to inform the other of a change in address or telephone number within 48 hours of such change occurring.

17. Whilst the children are in each parent’s respective care, the parents shall advise each other as soon as reasonably practicable of any major medical issues involving the children and each parent shall keep the other properly informed of any required treatment or medication required in relation to the children and the parents shall ensure the proper administration of such medications and treatments is performed by them.

18. The mother is to authorise all treating and consulting medicos together with other service providers for the children and the children’s schools to provide the father with relevant information and copies of reports and for the purposes of such authorisation this order shall be sufficient. 

19. The father is at liberty to contact the children’s schools from time to time for the purpose of arranging to have access to school newsletters, details of parent/teacher interviews, school photographs and all such other material as is normally forwarded to parents of enrolled students.

20. The parents are both entitled to attend extra-curricular events at the children’s day care, pre-school or school involving the children, whether those events fall on a weekday or weekend. Both parents will discuss any extra-curricular activities that the children want to do before enrolment.

21. The mother shall be permitted to travel overseas with the children during her time with the children.

22. The father shall be permitted to travel overseas with the children during his time with the children upon commencement of Order 5 above.

23. Orders 21 and 22 above are subject to the following conditions:

    (a)In the event that either parent wishes to travel overseas with the children, they shall provide written notice to the other parent of their intention to travel, such notice is:

    (i)To include details as to destination, travel arrangements, itinerary and contact information;

    (ii)To be provided six weeks prior to any proposed overseas travel;

    (b)Such overseas travel does not occur on a day or days when the children are required to be in attendance at school or day care unless agreed by both parties.

    (c)That the travelling parent shall provide to the to the other parent:

    (i)A copy of the return air or travel ticket;

    (ii)A final itinerary identifying where the children will be staying and a phone number for contact in the case of emergency; and

    (iii)A copy of valid travel insurance.

    (d)Each parent shall do all such things and sign all documents necessary to obtain Australian passports for the children and the parent seeking to travel shall meet all expenses associated with obtaining these passports.

    (e)The mother shall keep the passport in her possession and provide the passport to the father within seven days of his request.

    (f)The father is to return the passport to the mother within 14 days of his return from international travel.

24. Neither parent shall denigrate the other parent, their family or any other person with whom they may live in a bona fide domestic relationship within the presence or hearing of the children or allow the children to remain in the presence or hearing of any person who is denigrating either party, their family or any other person with whom they may be living in a bona fide domestic relationship.

25. The parents shall use their best endeavours to provide flexibility to each respective parent concerning major events, such as, family events, birthdays, schooling events or child commitments where a change in the time spent with either parent.

26. Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 96 of 2017

MS O’HARA

Applicant

And

MR O’HARA

Respondent

REASONS FOR JUDGMENT

Introduction

1. These are parenting proceedings in respect of the parties’ two children, X born in 2014 and Y born in 2016. 

2. The children presently live with their mother, who is the applicant in these proceedings, and spend time with their father, who is the respondent in these proceedings, each weekend for day time only on a Saturday.  

3. The father was self-represented at the final hearing and, understandably, had some difficulties in running the hearing and understanding fully the relevant matters for the Court’s consideration. 

4. The mother on the other hand was represented not only by capable solicitors but also by Counsel. Her position changed significantly not only from the start of the hearing but from the date of the filing of her Further Amended Initiating Application in August 2019 to her final position at hearing. 

Issues in Dispute

1. The issues for determination at final hearing are the time that the children should spend with the father and whether or not there are particular risks in the father’s household such that restraints should be made in respect Mr B, being the father’s wife’s oldest child, coming into contact with the children the subject of these proceedings.

2. The parties are in agreement that there should be an order for equal shared parental responsibility and that the children should live with the mother on a final basis. Notwithstanding the detailed and lengthy proposed minute of order handed up at final hearing by the mother’s counsel, there are, as the Court has already indicated, only very few issues for determination by the Court. 

Relevant Legal Principles

1. The central enquiry is for the Court to determine the outcome that will be best for the children the subject of these proceedings.

2. Parenting proceedings are governed by the provisions of Part VII of the Family Law Act 1975. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the children as the paramount consideration.

3. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.

4. In determining what is in a children’s best interests, the Court must consider the matters set out in section 60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the children. The Act does not mandate the discussion of considerations under s60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations.[1]

   [1] see for example Slater & Light [2011] FamCAFC 1at [45]

5. In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the children of having a meaningful relationship with both of their parents.

6. A meaningful relationship “is one which is important, significant and valuable to the child.”[2] The focus is not on the relationship as such, but on the benefit the relationship might have for the children.[3]

   [2] Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 at [121]

   [3] McCall & Clark at [122]

7. In addition, in considering what order to make, the Court must, to the extent that it is possible to do so consistently with the children’s best interest being the paramount consideration, ensure that the order does not expose a person to an unacceptable risk of family violence[4]. The Court may include[5] in the order any safeguards that it considers necessary for the safety of those affected by the order.

   [4] s60CG (1)(b); See the brief discussion of s60CG in Salah & Salah [2016] FamCAFC 100 at [35] (although in the context of an interim hearing)

   [5] See s60CG(2), such safeguards are for the purposes of sub-paragraph (1)(b)

8. Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the children for the children’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the children or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the children’s best interests.

9. In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of section 65DAA which provide for a consideration of the children spending equal time with the parents. If the Court finds that it is not in the children’s best interests or reasonably practicable, then the Court must consider the children spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms.[6]

The Evidence

[6] MRR v GR [2010] HCA 4 at [15]

Short Chronology

1. The mother was born in 1977 and at the time of Judgment will be 43 years of age.

2. The father was born in 1977 and is presently 42 years of age. 

3. The parties were married in 2014 and they separated in or about April 2016. 

4. The parties’ first child, X, was born in 2014, shortly after the parties were married.

5. The parties separated before their second child Y was born in 2016. 

6. Fairly quickly after the parties’ separation, the father commenced a relationship with Ms C, who is now his wife and has adopted the father’s surname. 

7. The father and his current wife commenced cohabitation in 2016, a few months after the parties separated and before Y was born.

8. It is not in dispute that after separation and until orders for supervised time at a contact centre were made, that the father spent very limited time with the children and that there were significant periods of time when the father did not spend any time with the children.  For example, after Y was born there were three occasions when the father visited her, and thereafter, between about mid-August 2016 and March 2017 the father did not spend any time with the children. 

9. In January 2017, the mother commenced the current proceedings.  The final orders that she sought at that time were significantly different to the orders which she presently asks the Court to make.

10. On 8 March 2017 being the first return date of the mother’s Initiating Application, the parties attended Court and reached an agreement in respect of the father spending time with the children.  Such time was to be supervised by the maternal grandmother and was to be on the basis of one hour each fortnight.  The father commenced spending time with the children in accordance with these orders on 11 March 2017. 

11. There were difficulties very early on in respect of the supervision of the father’s time with the children by the maternal grandmother, so much so that time did not occur in accordance with the agreement reached between the parties in March 2017.  There were occasions, for example, in June 2017, where the father spent time with one of the children only, but there were prolonged periods of time when the father did not see either of the children. 

12. In September 2017, the mother became aware that Ms O’Hara’s son had pending criminal charges for sexual assault against his brothers.  Shortly after finding out, she filed an Amended Initiating Application. 

13. On 15 September 2017 when the matter was listed for an undefended hearing, the father attended and was given an opportunity to respond to the proceedings. 

14. The parties attended mediation in January 2018 and in February 2018 there were further orders made by this Court with the consent of the parties for the father to spend supervised time with the children at D Contact Centre, Suburb E.

15. On 24 May 2018, a Child Dispute Conference memorandum was prepared which made certain recommendations to the Court. 

16. The father continued to spend supervised time with the children at D Contact Centre in Suburb E after an initial break between June and October 2018 up until mid-2019. 

17. The Family Report which is in evidence in these proceedings was released to the parties in late February 2019, and after the release of the Family Report the matter was listed for directions on 19 March 2019, that date subsequently being vacated on the parties’ application to allow them to attend mediation and further being listed for directions on 3 May 2019. 

18. Trial directions were subsequently made after a further by-consent order for the directions hearing to be vacated. The father made an oral application to the Court on 30 August 2019 which resulted in interim orders for the parents to have equal shared parental responsibility for the children and for the father to spend unsupervised time with the children on an increasing basis and with a restraint in place in respect of Ms O’Hara’s oldest child coming into contact with the children.  The matter was also set down for final hearing.

19. On 20 December 2019 the father filed an Application-Contravention alleging that the mother without reasonable excuse refused to allow the father to spend time with the children on 14 December 2019. Such application was returnable on 10 February 2020.

20. On 10 February 2020 the mother plead not guilty to the alleged contravention. The Court found the mother guilty of the alleged contravention on the balance of probabilities and ordered that time resume in accordance with the Orders made on 30 August 2019. The Court also made some slight amendments to the Orders made on 30 August 2019.

21. One of the difficulties in this matter that the Court sees is that the various documents which have become available to the parties through the issue of subpoenas have resulted in, particularly the mother, acting in a manner which while on the one hand might seem protective, on the other hand might be viewed as an overreaction.  This is particularly so when one considers the weight of the evidence or rather, the complaints and allegations which have been made to various authorities, the circumstances in which those complaints may have been made, and the veracity of the allegations and whether or not they have been tested in any meaningful way. 

22. Certainly, it is the Court’s view that the lack of reasonable communication between the parties has fuelled the fire of conflict that has burned between them since separation. 

23. Some of the early communication by the father and his current wife with the mother is more than inappropriate.  It is downright rude, abusive and unacceptable.  Some of the behaviours described by the mother in her evidence by the father and by his current wife early on after separation are once again unacceptable, rude and should never have happened. 

24. The Court, in its experience, understands that parents behave badly, that people behave badly, and that lapses in appropriate behaviour do, from time to time happen and that they are not necessarily an indicator of what a person is truly like.  This is not said to minimise the bad behaviour exhibited by the father and his current wife. It is also not to say to the mother that her reactions from time to time in respect of the time that the children were or were not spending with the father are, completely understandable. 

25. The father maintains however that the reason that the children have spent such limited time with him post-separation to date is because of the mother’s consistent and continued failure to facilitate that relationship.  Such a view given the case which the mother ran up until partway through the final hearing, and given her lack of willingness to accommodate the recommendations in the Family Report of Dr F, a very experienced Regulation 7 Family Consultant, is also understandable, although ultimately subjective. 

1. The Court finds that both of the parents have, from time to time, acted in a manner towards the other parent which was negative and derogatory, and they have both, from time to time, placed their own needs above those of the children. 

2. The mother has now had, no doubt, the benefit of some legal advice as a result of Counsel being retained to represent her at final hearing.  She has also had the benefit of hearing the father being cross-examined and of hearing his evidence in cross-examination. The Court accepts the submission made by her Counsel that as a result of the evidence in the proceedings that she has now changed her position significantly. The Court accepts these are matters which show that the mother has a capacity to put the children’s needs above her own and to consider the children’s needs above her own hurt feelings and concerns and the father’s historical bad behaviour. 

Assessment of Risk

1. The facts of this matter are quite unusual. Ms O’Hara, the father’s wife, has five children from previous relationships. Her oldest child is Mr B and he is currently 19 years old.

2. The evidence in respect of Mr B is as follows: 

   a)On 13 May 2016, Mr B was charged at Suburb G Police Station with having sexual intercourse with a person over 10 years of age and under 14, and with two counts of indecent assault of a person under the age of 16 years;

   b)The charges related to the period 3 April 2015 to 1 January 2016;

   c)In March 2017, the charge of having sexual intercourse with a person over 10 and under 14 was withdrawn and on 1 June 2017 one of the charges of indecent assault was dismissed; and

   d)On 1 June 2017, Mr B was sentenced to a two-year bond, to participate in behavioural and psychological counselling supervised by Juvenile Justice.  That sentence was in respect of a plea of guilty for the charge of indecent assault. 

3. Exhibit 1 contains a pre-sentence report in respect of Mr B which contains the following psychiatric opinion and recommendations: 

   Whilst it is not possible to determine with any meaningful precision a probability as to whether Master B may reoffend in the future, the absence of any significant risk factors for sexual violence, such as the absence of any paedophilic urges, absence of substance misuse, absence of antisocial attitudes or peers, absence of other sexual offence (contact or non-contact) and absence of other offending history support a view that the likelihood of future sexual offending would be low.

4. At the time that the pre-sentence report was written, Mr B was 16 years old and living in shared accommodation which he was funding himself.  He was working full time, having left school, and prior to that he had lived with his mother.  He told the psychiatrist writing the pre-sentence report that he was unable to live with his mother and brothers at present because of the terms of an Apprehended Domestic Violence Order which prevented contact between him and all of his siblings. Mr B acknowledged the alleged offences and did not dispute the agreed facts. 

5. According to the pre-sentence report, Mr B had a very troubled childhood where he, himself, was the subject of physical and verbal abuse at the hands of his stepfather, who is also the father of two of his siblings.  At the time of the report Mr B was tearful when he described missing his brothers’ birthdays and Christmas and being away from his family with whom he said he had a close relationship.  He acknowledged that it was possible that he would be unable to live with his brothers and he said that he would just be happy to see them.  Mr B’s circumstances certainly are very sad and it must have been very distressing for Ms O’Hara to have to report her oldest son to the police for indecently assaulting one of her younger children. 

6. Exhibit 1 also contains a report of a psychologist from Suburb H Juvenile Justice Community Office who confirmed that during treatment Mr B was able to display an excellent understanding of sexual consent and apply this understanding to his own offending.  He demonstrated an improved understanding of factors that contributed to his offending and how to manage such factors to prevent any reoccurrences of his offending behaviour.  Mr B completed his behaviour and psychological counselling as required by the orders and had not committed any further offences.  He maintained ongoing employment and he was noted to have the support of his mother and also stable accommodation.

7. The Family Report of Dr F contained a number of opinions which the Court accepts; these are Dr F’s assessment as to the father’s bona fides of the risk which Mr B may or may not pose to the children and the father’s capacity to act protectively towards the children if they were to spend time with him or if they were to continue to spend time with him on an unsupervised basis. 

8. Dr F recommended that the parents have equal shared parental responsibility, that the children live with the mother and that the children spend unsupervised time with the father with a proviso that there be a legal restraint on their coming into contact with Ms O’Hara’s son Mr B. 

9. There were then further recommendations in respect of an increase in time with the father and when that ought to occur. Those recommendations, or at least some of those recommendations found themselves into the orders which were made by the Court on 30 August 2019 by way of the interim orders which were made on that date.

10. Dr F was cross-examined by Counsel for the mother and was cross-examined at some length about the opinions which she expressed in her report. 

11. Dr F remained unmoving in respect of her views and opinions that the father has the capacity to act protectively, and she also gave evidence that the issue is whether the father has the capacity to act protectively, not whether the father has knowledge of the particulars of the offences which Mr B was either charged with or had committed. 

12. The evidence is that Ms O’Hara, as soon as she found out about the allegations which were made against Mr B, took Mr B to the local police station and reported the matter. There was criticism of Ms O’Hara for not sharing the particulars with Mr O’Hara at the time of the commencement of their relationship or, indeed, until much later on, but that is not a complaint that can be sustained on the evidence.  That is, while it is accepted that those details were not shared with Mr O’Hara, there was certainly no need, in the Court’s view, for those matters to be shared with Mr O’Hara at the commencement of Mr and Ms O’Hara’s relationship.

13. Dr F was also of the view that the fact that Ms O’Hara notified the police shows that she acted protectively towards her own children and that she does have the capacity to act protectively. Dr F had assumed that the allegations and the convictions against Mr B were of a serious nature, but having said that, her focus was on the father’s capacity to act protectively.  She was of the strong opinion that the father does have that capacity, as does his wife:  the father’s willingness to go to the supervised contact centre and to spend time with the children, that there was no challenging of the risk to the children that Mr B may pose; all of that was accepted and worked with. 

14. Dr F was also of the view that an ongoing injunction preventing Mr B from coming into contact with the children would pose a logistical nightmare for Mr O’Hara and his household, and that while she accepted that safety in all respects was always more important than logistics, long-term, an ongoing injunction would be problematic for the O’Hara household. 

15. The Court is satisfied having regard particularly to Exhibit 1 and Dr F’s evidence that Mr B’s presence in the home of Mr O’Hara and/or around the children does not pose an unacceptable risk harm to the children. 

16. At the time of the offence, Mr B was 14 years old.  He has had counselling and he has fulfilled all the requirements imposed on him by his sentence.  He does not live with Mr O’Hara or his wife.  When he does come to their house, to date, it has not been when the children the subject of these proceedings have been present, but certainly the Court accepts the evidence of the father and of his wife that Mr B will not be left alone with the children and that there will always be somebody else present when Y or X are at home and Mr B happens to be there.

17. The father himself asks the Court to make an order that he shall ensure that the children are not left alone with Mr B.

18. However, given:

    a)the ongoing concerns that the mother has;

    b)the conflict which has existed between the parents;

    c)the parents’ inability to communicate effectively from time to time, particularly in relation to the matter of Mr B and what risk he might pose;

    d)the anxiety that the mother feels and the likely or potential effect that this might have on her moving forward, noting that she is and will remain the children’s primary carer;

    warrants the type of order which the father proposes with respect to Mr B.  Not only is it an order that is protective of the children, it is also providing protection for the father and would provide peace of mind to the mother. It is an order which ameliorates the risk which Mr B might pose.

Relevant s.60CC Considerations.

1. Both of the children have a meaningful relationship with both of their parents and there is an ongoing benefit to the children of maintaining and continuing to have that meaningful relationship with both of their parents. 

2. The mother is the children’s primary attachment figure and she is the person to whom the children will turn primarily in times of need, and she is the person with whom the children will remain living pursuant to these orders. 

3. The need to protect the children from physical or psychological harm is something that the Court has already considered in its reasons.  For reasons which have been explained, the Court does not find that there is an unacceptable risk of harm to the children in the father’s household, but that there is some need for the injunctive relief which has been proposed by the father. 

4. The children are still very young and their views are not particularly well expressed, although it is clear that both of them want to see their father and like spending time with their father.  Their views, however, are not determinative in any way given their young ages and the other matters which have been identified in these proceedings. 

5. The children have established and loving relationships with both of their parents. They have established relationships with the maternal grandmother and they also have established relationships with Ms O’Hara. 

6. In respect of the extent to which each of the parents have taken or failed to take the opportunity to participate in making decisions about major long-term issues in relation to the children, spend time with the children and to communicate with the children, the evidence shows that, from time to time, the mother has excluded the father from participating in making decisions about major long-term issues, in particularly, X’s school.  The reasons for why she has done that are still unclear.

7. The father has certainly not taken every available opportunity to spend time with the children, and the mother has not afforded him all opportunities to spend time with the children.  There has certainly been times of conflict between the parties which has resulted in either or one or the other parent cancelling time between the children and the father.  There have been certain instances when the mother has, for reasons which are not appropriate or adequate, not facilitated time with the children, including the time in respect of which she was found to have contravened the parenting orders. 

8. The interim orders, that is, the orders which the Court made in August 2019, provided for the children to communicate with their father each Wednesday by telephone.  That, in itself, has caused some difficulties for the parties.  While the father understood that order to mean that he was to telephone the children, he has not, every Wednesday, telephoned the children to speak to them, and when he has requested to, instead of speaking to the children over the telephone, to have video conferencing with the children via FaceTime, the mother has refused to facilitate that. 

9. The mother was unfortunately not cross-examined by the father about anything and it would have been of assistance to the Court if her perceived reluctance to facilitate that relationship, given particular instances where she has refused for the children to spend time with the father or has refused to facilitate the children speaking with the father via FaceTime, were put to her so that she could offer an explanation. 

10. As things stand on the evidence, it appears that the mother has acted unreasonably from time to time in, for example, failing to facilitate the children speaking to the father via FaceTime.  Notwithstanding that it appears that this has been unreasonable, when the contravention application was before the Court and the issue was raised by the father in Court, the mother readily agreed to the children having regular FaceTime with the father on two occasions each week.  That shows a willingness by the mother, when particular things might be explained to her, to understand why it is important for the children to have that ongoing contact with the father. 

11. There was no evidence in respect of the parents’ obligation to maintain the children and, in any event, that does not seem to be an issue in the proceedings. 

12. The mother proposes in respect of the likely effect of any change, particularly given the previous conflict between the parties, that there be an order for the children to attend counselling.  There is certainly no evidence in support of an order for the children to attend counselling and, indeed, Dr F was against that proposed order. 

13. The Court is comforted by Dr F’s evidence in respect of how resilient the children, particularly the youngest child, appears to be and how outgoing and happy the children were to spend time with their father or to see their father during the observations for the family report.  There is some evidence before the Court that the children were reluctant to spend time with the father in late December 2019.  However, that is not a matter that was explored in these proceedings, nor is it a matter upon which any submissions were made.  The Court has elsewhere addressed the practical difficulty and expense of the children spending time with and communicating with their parents, given the significant distance between the parents’ household. 

14. The Court has addressed elsewhere the parents’ capacity to provide for the needs of the children, including their emotional and intellectual needs.  It should also be said that neither of the parents appears to the Court to be particularly sophisticated in being able to understand and meet their children’s needs.  It is not a failure of just one of the parents, and it is important for the parents, in the Court’s view, to take steps as parents and adults to address their own shortcomings in being able to meet the children’s needs and to understand the children’s developmental needs and the importance to the children of having and maintaining a meaningful relationship with the other parent. 

15. The mother herself is Aboriginal and the children will be able to maintain their ties to the Aboriginal culture through their mother.  The Court accepts that both the mother and the father have a reasonably responsible attitude to the children, that is, that they appear to do things with a view that it would be in the children’s best interest.  Whether this is truly so is something that Court remains unsure about, that is, that it is their driver and motivation in acting in the manner that they have to date.  Certainly, the father blames the mother and certainly the mother blames the father for the children not spending time with the father. 

16. The Court finds that both of the parents are responsible for the children missing out on important time with their father.  Luckily for them, their relationship with the father, that is, their ability to have a meaningful relationship with the father, has not been detrimentally affected.  Indeed, Dr F spoke of the close relationship that the children have with the father and said that this was due to not only the children’s personalities but also due to the manner in which the father interacts with the children and, lastly, due to the mother encouraging and facilitating that relationship between the children and the father. 

17. While there are some allegations of family violence during the parties’ relationship, that is, the mother raises allegations that the father had, at times, been verbally abusive towards her – and certainly post-separation there were instances of abusive communication, it is not a feature of the mother’s case that due to those matters the children should not be spending time with the father or that their time with the father should somehow be restricted. 

18. There are no family violence orders in place, and given the length of time that these proceedings have been on foot.

19. It is the Court’s view, notwithstanding the young ages of the children, that it is in their best interests for the proceedings to be finalised. 

Court’s Determination

1. Regarding the time that the children should spend with the father, Dr F was of the view that given particularly the younger child’s age, that it would be in the children’s best interests that they see their father more frequently, rather than simply on alternate weekends.  The difficulty for the Court is the distance and the practicalities of the children spending significant and substantial time with the father, a matter which the Court must consider, given the order for equal shared parental responsibility that the parties ask the Court to make. The distance between the parties’ homes is some 270 kilometres and it requires a significant amount of travel, that is, about three hours one way.  

2. The parties are in agreement that changeover should occur at Suburb A McDonald’s, which is close to the freeway driving towards the father’s residence. This would ease the burden for the parents’ travel or individual travel but it does not ease the burden for the children needing to travel. 

3. The mother’s proposal was initially for the children to spend time with the father each Saturday for 24 Saturdays, and thereafter for the children to spend alternate weekends with the father, once again, for a period of 24 alternate weekends.  That time being from Saturday morning to Sunday afternoon, and thereafter to spend alternate weekends with the father from Friday after school to the commencement of school on Monday. 

4. The orders which the mother proposes, particularly the order for the children to spend time with the father from Friday after school to Monday before school, is not an order that can be supported by the evidence, given the father’s work requirements and his inability because of those requirements to pick the children up from school on a Friday afternoon or take them to school on a Monday morning. 

5. The father, on the other hand, proposes that the children spend time with him commencing immediately each alternate weekend from 6pm Friday until 3pm on Sunday.  There are also additional orders in respect of the school holidays that each of the parties seeks in accordance with their Minutes of Order.

6. After Dr F’s evidence, the Court asked the parties to address it on a proposal which the Court was considering, that is, for the children to spend time with the father alternating between a full day on a Saturday and an alternate overnight from Saturday morning until Sunday.  In terms of practicalities, this is something that can be facilitated by both of the parties.  However, the mother’s response to this was that time should occur on a Wednesday afternoon and an alternate weekend.  This is not an order, once again, that is practical in the circumstances and not an order that the Court would make. 

1. The mother is presently not working, although it was said from the Bar Table that she is considering returning to the workforce when Y commences school, which will be at the beginning of the year 2022.  In the meantime, the mother is able to spend time with the children every day before and after school and/or day care and certainly on the days that they are not spending time with the father, being Sunday and Saturday afternoon. 

2. While not ideal in terms of the children’s developmental needs, practically, it is an order that the Court assesses is the best available option for the children at present, and that is an order for the children to spend time with the father in week 1 on Saturday from 10am to 6pm and in week 2 from 10am on Saturday to 10am on Sunday until the conclusion of the 2020 school year.  Thereafter, the children are to spend time with the father each alternate weekend in accordance with the father’s proposal, that is, from 6pm on Friday to 3pm on Sunday. 

   (a)Dr Fs opinion is that due to the younger child’s age, and the children’s attachments, until such time as Y commences school, the school holidays at the conclusion of term 4 should be on a week about basis. The Court accepts this evidence.

3. These are orders that are, in all of the circumstances, practical and facilitate a meaningful relationship between the children and both of their parents, given the practical difficulties which will be encountered due to the distance between the parties’ residences.

Conclusion

1. Certainly, as happens with many matters that come before this Court, particularly where there are young children involved, while it may appear to an outsider that the proceedings have taken on an inordinate amount of time, given the developmental needs of young children, particularly their changing needs, the lack of capacity of many parents to fully comprehend and understand the situations that they find themselves in, it is, from time to time, appropriate and necessary for there to be a lengthy period of time from the commencement of proceedings to when final orders are made. 

2. For all of these reasons orders as set out at the forefront of these Reasons are made.

I certify that the preceding ninety (90) paragraphs are a true copy of the reasons for judgment of Judge Obradovic

Date:  19 March 2020