Oakley and Oakley

FEDERAL CIRCUIT COURT OF AUSTRALIA

OAKLEY & OAKLEY

[2017] FCCA 2516

Catchwords:
FAMILY LAW – Parenting – best interests of the child – mother sought sole parental responsibility – where there was an alleged assault by the father during changeover and non-cooperation in relation to heath issues – orders made for equal shared parental responsibility with the mother permitted to make final decisions in relation to health issues – orders made reducing spend time arrangements with the father.

Legislation:

Family Law Act 1975 (Cth), s.60CC

Applicant:

MR OAKLEY

Respondent:

MS OAKLEY

File Number:

DNC 231 of 2015

Judgment of:

Judge Young

Hearing dates:

5, 6, 7, & 8 September 2017

Date of Last Submission:

8 September 2017

Delivered at:

Darwin

Delivered on:

8 September 2017

REPRESENTATION

Counsel for the Applicant:

Ms Farmer

Solicitors for the Applicant:

Withnalls Lawyers

Counsel for the Respondent:

Mr McQueen

Solicitors for the Respondent:

McQueens Solicitors

ORDERS

That all previous Orders be discharged.
That the parties’ have equal shared parental responsibility for the children [V] born (omitted) 2003 (“[V]”), [W] born (omitted) 2006, [X] born (omitted) 2008, [Y] born (omitted) 2009 and [Z] born (omitted) March 2011 (“the children”) with the exception of decisions regarding health matters in relation to the children.
That the children live with the mother.
That the children spend time with the father as follows:
(a)from after school Friday (or Thursday if Friday is a public holiday) until before school Tuesday each alternate weekend;
(b)from 2.00pm Wednesday 4 October to before school Monday 9 October 2017;
(c)for the second half of the Christmas school holidays in 2017;
(d)in 2018, for the whole of Term one school holidays, the first week in Term two school holidays, the first week in Term three school holidays and first three weeks in Term four school holidays and in each alternate year thereafter;
(e)in 2019, for the last two weeks of the Term two school holidays, the last week of the Term three school holidays and last three weeks in Term four school holidays and in each alternate year thereafter;
(f)On Fathers’ day from 9.00am until before school the following Monday;
(g)On the children’s birthdays from 10.00am until 2pm on a non-school day and from after school until 7.00pm on a school day or as otherwise agreed;
(h)from 2.00pm Christmas Day until 3.00pm Boxing Day in 2017 and in each alternate year thereafter and from 3.00pm Christmas Eve until 2.00pm Christmas Day in 2018 and in each alternate year thereafter provided the parties are in the same geographical location;
(i)for the Easter holiday period from after school Thursday until before school the following Tuesday in 2018 and in each alternate year thereafter; and
(j)any other times as agreed.
That should the children ordinarily be with the father pursuant to orders herein the children spend time with the mother as follows:
(a)on Mother’s Day, from 9.00am that day until before school the following Monday.
(b)on the children’s birthdays, with the mother from 10.00am until 2.00pm on a non- school day and from after school until 7.00pm on a school day or as otherwise agreed.
That all changeovers on school days occur at school, and at CatholicCare during school holidays and other public holidays providing CatholicCare is open and if CatholicCare is closed then the changeover is to be at (town omitted) shopping centre or as otherwise agreed.
That during school holidays Order 4(a) is suspended.
That if the father has the children in the last week of any school holidays, his weekend time with the children shall recommence at the end of the second week after the conclusion of the holidays and if the mother has the children in the last week of any school holidays, the father’s weekend time with the children shall recommence at the end of the first week after the conclusion of the holidays.
That the parties’ will make a genuine effort to come to a joint decision about all major long term decisions including:
(a)The children’s education;
(b)The children’s religious and cultural upbringing;
(c)Any change to the children’s living arrangements in the event that they impact upon one parent’s ability to spend time with the child; and
(d)The children’s health.
Subject to Order 11, that a parent who proposes to make a major long term decision in relation the children’s health shall not be permitted to do so unless there is agreement in writing from the other parent.
That if/when there is a proposal to make a major long term health decision the parent proposing the decision is to:
(a)Correspond in writing by email to the other parent providing the reason or reasons for the proposed decision, details of any appointments and names of any relevant medical practitioner or any other health professional/experts;
(b)The other parent shall reply in writing to the email correspondence within 7 days of receipt if non urgent and within 24 hours if urgent, either agreeing to the proposal, and if not agreeing, providing details as to the reasons and any alternative proposal; and
(c)In the event the parties cannot come to a joint decision about the proposed major long-term issue, the mother is to make the decision and thereafter provide all the relevant information to the father.
[V] and the children shall from time to time attend upon [V]’s current psychologist for counselling and parties shall facilitate all attendances and act on all reasonable recommendations of the psychologist.
That the parties comply with all recommendations of all medical specialists and each parent shall ensure the other parent is notified in writing of all medical specialist appointments for [V] and the other children.
That the Mother complete a passport application for all children and provide the completed application to the Father who shall sign and return the application to the Mother within 7 days of receipt and the Mother shall pay for the passport application and retain possession of the passport.
That should either parent wish to take the children interstate or overseas during school holidays, that parent is to provide 28 days notice to the other parent with such notice to include the full itinerary and contact numbers for the children.
That the children communicate with the father each Wednesday at 7.00pm with the mother to initiate the call, skype or facetime.
That when the children are with either parent they are permitted to communicate with the other parent at all reasonable times upon their request and the parent shall facilitate that communication by providing the children access to their mobile phones and any applications on their mobile phones.
That the parents are restrained and an injunction issue against each with respect to the following:
(a)Confirming or attending with the children any specialist appointments without the written consent of the other party except upon completing the process pursuant to Orders 10 and 11;
(b)Changing the medical practice [V] and children attend from (omitted) GP super clinic unless in an emergency;
(c)Denigrating each other or any member of their family or persons of significance, including but not limited to within the hearing or presence of the child, or allowing the child to remain in the presence of another person who is doing so; and
(d)Discussing the particulars of the parents’ separation and/ or these family law proceedings with the children.
That the parties’ communicate with each other regarding children’s issues by a communication book to travel with [W] each alternate Friday.
That the parties shall immediately advise the other party as to any emergency, illness or medical concerns in relation to the children and if there are any matters of an urgent nature, the parent who has the care of the children will notify the other parent immediately, and should the relevant person not be contactable a close relative of theirs shall be contacted.
That each parent shall be entitled to obtain copies of the children’s health-care records and to discuss matters with the children’s medical practitioners and specialists and each parent shall sign any necessary authorities to ensure this information can be freely disclosed to each parent.
Each parent shall keep the other informed of their residential address, postal address (if different), landline telephone number, mobile telephone number and email address at all times and shall notify the other of any changes to their contact details within 3 days of any change.
That each parent share the legal costs of the Independent Children’s Lawyer as assessed by the Northern Territory Legal Aid Commission.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

NOTATION:

The parties intend that [V] born (omitted) 2003 (“[V]”), have flexibility in the time spent arrangements and will respect [V]’s wishes independently of the other children and acknowledge [V] shall live and spend time with the parties in accordance with her wishes.
Except where otherwise provided in these orders when a changeover occurs during a school holiday period it shall occur at 3.00pm on the Friday of the week of changeover.
That when either party has term one of the school holidays, with the exception of Easter 2018, if Easter coincides with the holidays, Term one will include Easter. If Easter does not form part of Term one holiday, then Order 4(i) will apply.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 231 of 2015

MR OAKLEY

Applicant

And

MS OAKLEY

Respondent

REASONS FOR JUDGMENT

Ex-Tempore

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a parenting matter concerning five children: [V], who is 13; [W], who is 11, both of whom are girls; [X], who is nine, a boy; [Y], who is eight years old, a girl; and [Z], who is a six-year-old boy.
The parties separated in early 2015. On 30 July 2015 interim consent orders were made which, in summary, provided for shared parental responsibility and equal time on a week-about basis. The issue in these proceedings or in this trial has been whether those arrangements should continue. The father says that arrangement should continue. The mother does not, and she seeks orders for sole parental responsibility and for the children to spend time on alternate weekends with the father from Friday after school to Monday before school. The mother argues that the shared-care arrangements are not working and the children are suffering harm as a result.
The father was medically discharged from the (omitted) in 2012 and is in receipt of a service pension. He has been diagnosed with chronic anxiety and with features of mild post-traumatic stress disorder and alcohol dependency. At paragraph 167 of his affidavit he says, and I quote:
There are days, when I do not have the children that I struggle.
The father’s mental functioning has been an issue to some degree in this case. There is not a great deal of disagreement about it, but it appears, in my assessment, to be a very significant matter that has impacted on the relationship between the parents and on the children.
The father says that he has moderated his alcohol consumption, which is a view supported by his treating psychologist, Mr M. Mr M’s assessment is largely based on, as far as I could see, two things: (a) that the father looks physically better than he did in the past, and (b) that he, Mr M, trusts the father’s self-reporting. The father himself says of his alcohol consumption that on some days he does not drink. On other days he does drink, sometimes up to 12 mid-strength beers or ciders. He says that when the children are with him his preference is to drink cider. I am far from satisfied that he is free of alcohol dependency and I am satisfied that it is likely to remain a significant part of his life.
The affidavit from Mr M gave a detailed history of the father’s mental health at times suggesting that the father had presented with features of a major depressive illness. Mr M believed, as I have already said, that what he called the father’s “alcohol misuse disorder” is in remission. If remission is meant by Mr M, as I understand him to mean, that the father has reduced his alcohol use to levels that do not significantly impair his functioning I am in no position to disagree with that. Nevertheless, the father himself admits to continuing to drink at what I would consider to be quite high levels from time to time.
There is, however, no particular evidence of any particular dysfunction of the father when the children have been spending time with him. That has been supported by his mother, who filed an affidavit in these proceedings and gave evidence. There was some evidence, which I will turn to in a moment, of an occasion when the father assaulted the mother’s present partner, Mr D, when Mr D said that the father was under the influence of alcohol at the time. I do not believe I can make a positive finding that that was the case, as it was asserted by Mr D and denied by the father’s mother, but my suspicion is that it was.
The mother is employed as a (occupation omitted) with the (employer omitted). She, as I have mentioned, has re-partnered with Mr D. Mr D has no children of his own. He gave evidence and he appeared to me to be committed to supporting the mother in her parenting role. He said that while he was aware of the sensitivity of the matter and the father’s antipathy to him, he hoped in time that he could take a more active step-parenting role, if I could put it that way.
My assessment of the mother was that she was a relatively calm parent, that she tried to be child-focused and was able to, generally speaking, communicate with the father in a restrained way. The fact remains that there is, nevertheless, a deep level of conflict between these parties. That has been the case since separation and appears to continue unabated. Some of the evidence of the conflict is apparent from some of the communications between these parties. I will give some examples of some of the communications.
The first series of communications arose because there were concerns about [Z], the six year old, by his school about his functioning and there were suggestions that [Z] ought to be assessed. In a series of communications beginning on 2 June 2017 at 2:50pm, the father emailed the mother saying:
[Ms Oakley], you are to cease unilateral decision-making for my children and adhere to court orders… This includes [V]. You are to disclose all notes and excursions for her and she is not to attend any unless I have been consulted…You are to fully disclose all aspects of my children’s health, as per court orders… You are to consult with me previous to making any medical appointments for any of my children.
While this might be said to state the mother’s legal responsibilities, the tone, in my view, was inappropriate and is unnecessarily aggressive. The email exchange goes on. The mother then brought up something about lunch boxes and she said she was growing tired of the children returning from their father’s without their lunch boxes. The father replied:
[Ms Oakley], I am not interested in what you want… We are all getting tired of you fucking with the children but you still continue to the extent you want your son to be considered a retard spastic at school.
That is a reference, of course, to the mother and the school’s concerns about [Z]’s functioning, a concern which later evidence has shown is very well founded. The email concludes:
I’m guessing your cowgirl is coming because it is nothing to do with him.
“Cowgirl” is a reference to Mr D, the mother’s partner.
The mother replied:
I would like you to return them with the children –
this is the lunch boxes –
after your week with them please.
The father replied to that:
[Ms Oakley], you have made SUCH a big deal about them. Perhaps we should resolve the issue now so that it doesn’t affect the children on Monday when they don’t have two lunch boxes. What time will your cowgirl be at (town omitted) to collect them?...You are a fucking dick, being proud that [Z] is the Forrest Gump of the school. What the fuck is wrong with you going out and actively getting him a letter like that? Start thinking of [Z].
Again, apparently on the same day, the father said, continuing to talk about [Z]:
What [Z][Z] needs is what I have been telling you for months. He wants to live here… If you really cared about [Z] as much as you have shown by the effort you have gone into making him look like a retard –
a reference to the assessment –
why don’t you trial term 3 here and see what changes. But it is not about [Z], is it, it’s about you. You want him on medication to calm him so the family report isn’t correct. So how about we put [Z] first.
And in another email on the same day, again speaking about [Z]:
I’m going to tear you and the school apart over that letter, and you are going to be made to look like dickheads. How dare you do that to [Z].
There was another series of emails in early 2017 when [W] broke her arm playing (sport omitted) and she was taken to the hospital on a Friday night. The mother informed the father of that, which then set off a chain of emails from the father demanding to know where the other four children were. This email exchange continued on throughout the night as the mother remained at the hospital with [W], with the father, in substance, threatening to go and collect the children immediately from her home. It seems to me obvious that the father would have known that the children were at home, and as the mother later said, they were at home in bed asleep, appropriately. Nevertheless, he made those threats. He would have known, I am satisfied, that the other four children were at home, and that Mr D was, in all likelihood, there and responsible for them.
On another occasion the father in an email exchange threatened to share with [V], the eldest child, explicit photographs of the mother and he also threatened to post the explicit photographs on the internet. The father says that those threats were empty and I accept that it was an empty threat. I accept that he had no intention of doing it, but the threats were made, and they were intended to be unpleasant. I asked the father at one point what impact he thought such threats would have on his ability to communicate effectively with the mother. He appeared bemused by my question, and found it very difficult to give the obvious answer, that is, it was going to make it almost impossible.
I am satisfied that the tone of the communications used by the father demonstrate a very serious lack of insight into the effect of his communication style on the mother. It suggests to me that he lacks insight into how that is likely to affect the best interests of the children and it makes me doubt his overall mental functioning or psychological functioning.
Another disturbing aspect of the father’s conduct was what, I am satisfied, was an assault on Mr D during a changeover in February 2017. Mr D was not known to the father, although they had apparently met in the (omitted) some years before but the father had not met Mr D in recent years. Mr D, perhaps inappropriately, was sent to collect the children after they had spent time with the father and the father reacted angrily to his presence. I am satisfied that it was inappropriate for Mr D to go to that changeover without some warning to the father, or at least agreement that he should be involved and the mother showed a lack of judgment in permitting that to happen.

However, the father’s response was completely unacceptable. I am satisfied that he began to push Mr D and then tried to punch him. Bystanders arrived, and according to Mr D, bystanders reported the matter to the police who arrived later on. The father had by then decamped.
The effect of that matter is demonstrated in the family report when Mr E, the family consultant, interviewed [X], who had witnessed that assault, and [X] told Mr E as follows:
Dad hit [Mr D]. I tried to stop it and Nan tried to stop it. Dad didn’t listen.
Nan is a reference to Ms L, the paternal grandmother, who was present at the time. There was evidence that [X] was crying as a result of that episode. I asked the father whether he had been aware of [X] trying to stop what was happening or [X]’s distress and he told me that he was not aware of that. He was focused on Mr D.
While I think Mr D ought not to have been there, at least until some basis for an understanding or relationship of some kind had been established between Mr D and the father, the father’s response, to me, that is, violence in front of a child, demonstrates a very grave lack of insight into the needs of these children.
There was another episode which is revealing, in my view, and that relates to the medical treatment for [Z]. There was evidence that [Z]’s preschool, (omitted) Primary School, had been expressing concerns about [Z]’s behaviour over much of this year and there was a Special Education teacher at that school who had apparently raised concerns. There had been attempts to engage the father in meetings with the school about [Z]’s behaviour but it appears that from a letter sent by the Special Education teacher on 9 June 2017 to the father that the father did not appear at those appointments. The father generally said that he was unavailable or gave other reasons but I am not satisfied that the father was really genuinely interested in engaging with the school, and particularly the Special Education teacher, over [Z]’s behaviours.
It was clear from the father’s evidence that when the Special Education teacher wrote to the father by email on 9 June setting out in detail her concerns about [Z] and what she thought ought to happen, that is, further assessments, that the father chose not to engage with the Special Education teacher, but, rather, go to the principal of the school and express his dissatisfaction with the opinion expressed by the Special Education teacher.
His refusal to engage on this issue has been made quite clear. He instructed solicitors to write to the mother’s solicitors, if I recall, on a date preceding 9 June, sometime in May, saying, in relation to a proposal that there be a paediatric assessment of [Z], that he would not agree to such an assessment. I am satisfied that the father was unwilling to agree to a paediatric assessment, was opposed to a paediatric assessment and was frankly unwilling to listen to anyone who disagreed with him about that.
That resulted in the mother making an appointment for a paediatric assessment on 2 August 2017. At that time [Z] was with the father. I am satisfied that the father knew, in rough terms, that there was to be a paediatric assessment but he had no particular interest in finding out the details of when it was likely to be. As it turned out, the mother did not give him details of the assessment until about 10 minutes beforehand, when she told him that the assessment was to be at the (omitted medical centre).
The father said that he was house painting at that time and it was, therefore, not possible for him to get [Z] to the appointment. I do not accept that. I think that if the father was genuinely proposing to have [Z] assessed or to cooperate in the assessment process, the father could have had [Z] there or, at least called the (omitted medical centre) and said, “Look, I am running a few minutes late.” He was, after all, only about 10 minutes drive from (omitted). I am satisfied that the real reason was that the father had determined he would not cooperate in that process, would not listen to the evidence that suggested [Z] required a paediatric assessment and he was not going to cooperate in any way at all.
There has been a report from the paediatrician tendered in evidence, which makes it clear that there are some very serious paediatric concerns about [Z] and suggestions of some serious learning difficulties, which may or may not have a genetic basis, but which require, according to the paediatrician, further detailed assessment. I am satisfied that the concerns that the mother has raised and the school has raised and which have been rejected by the father throughout are well based. The father’s conduct in those circumstances is, I am satisfied, not only not in [Z]’s best interests but is an example of the consequences of the appalling lack of communication between these parents.
This issue was addressed in two expert reports. There was an order for reportable family counselling before Ms C, who is a clinical psychologist. She provided a report dated 3 December 2016. Her report was over two pages and she said in part:
Parental interactions continue to be hostile, with each parent acting unilaterally without reference to each child’s needs or the other parent’s wishes, and each is actively sabotaging the other parent’s capacity to protect and parent the children.
She thought that each of the children were undergoing significant emotional distress and the children needed support and assistance and probably professional intervention by way of counselling. She observed then that only [X] was then accessing counselling services. She said:
There is little evidence from the parents’ presentation that they have the capacity to protect their children from experiencing ongoing parental conflict, or the ability to develop a parenting plan that has regard for their children’s best interests.
A very similar conclusion was reached in the family report from Mr E dated 4 April 2017. Her detailed assessment, which I do not propose to canvass in its entirety, looked at each of the children. [V] she described as “grippingly anxious, confused and non‑communicative.” [W], the 11 year old, she suspected had adopted a caring role for her father. [X] described himself as, “I have anger issues,” and I have already mentioned [X]’s distress at the assault on Mr D. [Y], who is the eight year old, was apparently reserved and was not willing to say anything that could be construed as critical of her father. The family consultant described [Z] as an “unusual child” and described his quite extreme behaviour during the observation which led the family consultant to raise concerns for him that I am satisfied were well based and have been reflected in the more detailed assessment by the paediatrician.
She observed that both parents seemed to have difficulty managing these children during the observation, who were very boisterous, particularly the boys. In her evaluation of the family she had mentioned that [V] was confused and non-communicative. [V] has, I might add, refused to see her father for the past 18 months or so, and continues with her steadfast refusal to have anything to do with her father. The reason for that is unclear.
She had real concerns about the behaviour of both [X] and [Z], and she said that [X] described troubling interactions at school, which may indicate a struggle to cope with normal interactions. [Z] was described in similar terms. She raised concerns about the father’s mental health and his alcohol use. As I said, I have not been able to reach any particular conclusion about the father’s alcohol use. I am satisfied, on the basis of the expert material, that those concerns expressed by Mr E are well founded.
The ultimate conclusion reached by Mr E, which is one that I accept, is that there is a body of literature relating to shared care in these circumstances which make clear the risk to children’s later mental health, where children under 10 are placed in equal-shared living situations when the parents have entrenched ongoing dispute and acrimony. She said that these increased risks include later – often arising during teenage years – mental health issues associated with substance abuse, depression and sometimes suicidality.
I accept her concerns about that, concerns also echoed by Ms C. I am satisfied that the risk to the children in this case are precisely those identified by Mr E. I am satisfied there has to be some measure to alleviate the effects of this bitter conflict and acrimony between the parents on these children.
Mr E recommended that there should be shared parental responsibility and that the children should spend three or four nights a fortnight with the father and, essentially, half school holidays. They were, essentially, proposals adopted by the independent children’s lawyer, although she said that the shared parental responsibility arrangement should have a default provision in respect of health issues for the children which let the mother decide in the event of deadlock. And she also submitted that there ought to be four nights a fortnight rather than three which was one of the options proposed by Mr E.
This court must have regard to a legislative pathway. The legislative pathway is set out in Part VII of the Family Law Act 1975, and in particular section 60CC which sets out how a court determines what is in a child’s best interests. This includes regard to the benefit to the child of having a meaningful relationship with both of the child’s parents. I am satisfied that it is in the children’s interest that they have a meaningful relationship with both of the parents in this case but I am also satisfied that there is a need to protect the children from psychological harm from being subjected to or exposed to family violence. In substance, I consider that the conduct of the parties in this case satisfies the definition of family violence, in particular, being behaviour that is coercive or controlling and I consider much of the father’s conduct to be coercive and controlling.
There are additional considerations in section 60CC(3) which I do not propose to go through in detail but in assessing the factual scenario I have had regard to each of the matters there. The matters that I consider relevant are first the views of the children. The children have expressed views but I am satisfied in this case that the views of the children, having regard to their ages, should not be given particular weight.
In relation to subsection (c), the opportunity to participate in making decisions and so on, I am satisfied that the parties have had great difficulty in effectively participating in decision-making about these children. In relation to subsection (d), the likely effect of any change in the child’s circumstances, there will be a change in circumstances, and I am satisfied, based on the evidence of Mr E, that there may well be a period, when I make the orders I propose to make, where the children find some transitional difficulty. But I am satisfied that it is necessary to make those orders to minimise the harmful effect of the continuing conflict between their parents.
In relation to subsection (f), the capacity of each of the child’s parents, there have been question marks about the capacity of each of the children’s parents to cooperatively and effectively parent. I think that is particularly the case with the father, who, as I have found, lacks insight into the effect of his conduct on the mother and the children.
In relation to subsection (i), the attitude to the children and responsibilities of parenthood demonstrated by each of the child’s parents, I have no doubt that both parents love these children but for various reasons, including their own limitations of functioning, I am satisfied that their view of the responsibilities of parenthood are somewhat limited, particularly those of the father.
It appears to me that the other matters have less relevance.
If I am to make an order for equal parental responsibility, which I propose to make, I am required by section 65DAA to consider whether or not it is in the best interests of the children to spend equal time with each parent. For the reasons that I have already given I am satisfied that it is not in the best interests of the children. I then have to consider whether the children spending substantial and significant time with their father is in their best interests. I am satisfied that it is in their best interests, and subject to the foregoing matters, that is, the need to avoid harm to the children in a non-functioning equal-time arrangement, I am satisfied that it is practicable that the children spend substantial and significant time with each parent. In this case, substantial and significant time, in my view, should include at least some school days.
I should briefly say something about shared parental responsibility. The mother submitted that there ought to be an order for her to have sole parental responsibility. Notwithstanding that I have found there has been family violence, I am not satisfied that that is in the best interests of the children. It seems to me that the father ought to have a continuing role in long-term decision-making about these children.
The area of non-cooperation has related to the children’s health, in particular, and it appears that other matters have been able to be the subject of negotiation and agreement. I am satisfied that it is in the best interests of the children that the father’s role, subject to some controls or limitations in relation to health issues, should continue in the long-term decision-making about these children.
I propose to make the orders that are in line with the submission made by the independent children’s lawyer, that is, that there be shared parental responsibility but with an arrangement whereby if there is not agreement after seven days then the mother is free to make decisions in relation to health issues concerning the children. In the case of an urgent matter, other than one seriously threatening the health of a child, then that there be a 24 hour period in which to consult and in the case of an issue that seriously threatens the health of the child, or constitutes an immediate serious threat to the health of the child, the mother should be permitted to make that decision.
I propose to make an order that the children live with the mother and spend Friday after school to Tuesday before school with the father on alternate weekends. Otherwise, I propose to make orders in line with the proposals of the independent children’s lawyer dealing with significant days and holidays and Christmas.
The independent children’s lawyer is directed to provide a minute of proposed orders reflecting these reasons.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Judge Young

Date: 17 October 2017

[2017] FCCA 2516

8 September 2017

Key Legal Topics

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Family Law

Legal Concepts

Injunction

Jurisdiction

Procedural Fairness

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