ODOM & KAPLAN (No.3)

FEDERAL CIRCUIT COURT OF AUSTRALIA

ODOM & KAPLAN (No.3)

[2021] FCCA 534

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

Family Law Act 1975 (Cth), ss.65Y(2), 60CC, 60B, 60CA, 61DA, 65DAA, 65D

Applicant:

MR ODOM

Respondent:

MS KAPLAN

File Number:

PAC 4810 of 2018

Judgment of:

Judge Newbrun

Hearing dates:

1, 2 and 3 March 2021

Date of Last Submission:

3 March 2021

Delivered at:

Parramatta

Delivered on:

25 March 2021

REPRESENTATION

Counsel for the Applicant:

Mr Freelander of Counsel

Solicitors for the Applicant:

Sharah & Associates Solicitors And Conveyancers

Counsel for the Respondent:

Ms Murphy of Counsel

Solicitors for the Respondent:	Swifte Law
Counsel for the Independent Children’s Lawyer	Mr Greenaway of Counsel
Solicitors for the Independent Children’s Lawyer	John Spence & Associates

ORDERS

That all previous parenting orders be discharged.
That the Mother have sole parental responsibility for the children X born in 2010 and Y born in 2011 ("the children") provided however that the Mother shall promptly inform the Father in writing of any decision proposed as for the children or either of them in relation to:
(a)Medical or hospital treatment as to matters of a serious nature;
(b)Proposed change of schools; and
(c)Proposed changes of residence.
The children shall live with the Mother.
The children shall spend time with the Father as follows:

During School Terms:

Each alternate weekend from after school on Friday until before school on Monday or, if Monday is a public holiday, the Father's time shall be extended to before school on Tuesday, with the Father to collect the children from school at 3:00pm or otherwise Pre-School I at Q Street, Suburb A.

During School Holiday Periods:

(a)The time to be spent with the Father pursuant to Order 4 shall be suspended during school holiday periods and shall recommence on the first weekend after each school holiday period;
(b)During the Autumn, Winter and Spring school holiday periods from after school on the last day that pupils are required to attend school until 9:00am on the following Friday with the Father to collect the children at the commencement of the time and deliver the children to the Pre-School I at Q Street, Suburb A at the conclusion of the time.
(c)During the Christmas school holiday period from after school on the last day that pupils are required to attend school until 9:00am on 6 January each year with the Father to collect the children from school at 3:00pm or otherwise the Pre-School I at Q Street, Suburb A by 6:00pm at the commencement of the time and deliver the children to the Pre-School I at Q Street, Suburb A at the conclusion of the time.
(d)During the Christmas school period the children shall live with the Mother from 9:00am on 6 January with the Mother to collect the children from the Pre-School I at Q Street, Suburb A.
(e)For the purposes of either collection from or return of the children to Pre-School I, the Father shall be responsible for and make all such necessary arrangements to facilitate these orders and be responsible for the costs of same.
(f)When electing to use Pre-School I the Father shall ensure that he complies with all their requirements.
(g)Should Father's Day fall on a weekend that the children would normally be with the Mother then the children shall spend time with the Father from after school on Friday until the commencement of school on Monday on the Father's Day weekend and the Father's time with the children under Order 4 shall be suspended on the following weekend.
(h)Should Mother's Day fall on a weekend that the children would normally be with the Father then the children shall spend time with the Mother from after school on Friday until the commencement of school on Monday on the Mother's Day weekend and the Mother's usual time pursuant to Order 4 with the children under these Orders shall be suspended on the following weekend.
(i)In the event that the Father's time with the children falls on the Religion R Easter then the Father's time with the children shall be suspended at 3:00pm on Religion R Holy Thursday until 5:00pm on Religion R Easter Monday. The Mother shall inform the Father of the dates of Religion R Easter at least 4 weeks in advance and the Father shall spend time with the children the previous week from 3:00pm on Friday until 5:00pm on the following Monday.

During the school term the Father shall collect and deliver the children to and from their respective school or schools, or the Pre-School I at Q Street, Suburb A, provided however that in the event that the neither the school or Pre-School I is open on a particular day, the Father shall provide the Mother with not less than 48 hours' notice in writing, and on the particular day the children shall be collected by the Father at 9am and returned to the Mother at 6pm at Suburb B outside McDonalds.
When each of the children have commenced attending High Schools changeover shall occur at the children's high school or schools and if it is a non-school day then at Suburb B outside McDonalds with the Father collecting the children at 9am and returning the children at 6pm.
That the Father have telephone or audio visual communication (such as Skype/Zoom) with the child each Wednesday for up to 30 minutes between 7:00pm and 8:00pm with the Father to initiate the telephone call to a mobile number to be provided to the Father by the Mother within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone switched on and recharged at the appointed times, answering the telephone call promptly and encouraging the child to speak to the Father whilst affording the child privacy to do so.
The parents are to provide a mobile telephone in each household for communication with the children and shall provide the other parent with the mobile telephone number for that mobile telephone within 72 hours of the date of these orders. Each parent will be responsible and liable for all costs of maintaining service to the mobile telephone and the bills for that mobile telephone.
ORDER that each of the Father and Mother:
(a)Notify the other parent as soon as possible and in any event within 24 hours of any serious injury or serious illness suffered by the child whilst the child is in the care of that parent.
(b)Keep each other informed of his/her telephone number and notify the other not less than 7 days before changing that party's telephone number, of such change.
(c)The Mother and Father shall communicate with each other by email for both urgent and non-urgent matters.
(d)That the Mother authorise each child's school which they may from time to time attend to provide each of the parents with such information concerning the child as may be requested by him/her from time to time including school reports and school photographs and for the purpose of such authorisation this order shall be sufficient authority.
(e)Each parent shall keep the other informed of the child's extracurricular activities and schedules for and cost thereof and shall be at liberty to attend the child's extracurricular activities that allow for parental attendance and each shall use their best endeavours to facilitate the attendance of the children.
(f)Each parent shall be entitled to attend school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
(g)That neither parent shall denigrate the other parent or the other parent's family or associates to either child in the presence of either child nor allow any third party to denigrate such persons to the child or in the presence or hearing of the child.
(h)Neither parent shall discuss with the child these proceedings or a change to these orders or permit any other person to do so except as may be necessary pursuant to an order of the Court.
(i)That neither parent shall use physical means to discipline the children or permit any other person to do so.
(j)That either party be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders.
Each party be and is hereby restrained from taking photos and/or videos of the change overs and/or return of the children or permitting any third party so to do.
Neither parent is to consume illicit drugs in the presence of the children, nor shall they be in any way affected by illicit drugs whilst the children are in their respective care or control.
The Mother shall be solely authorised to do all acts and things and sign all documents necessary to enable each child to have an Australian Passport.
That in the event that either party wishes to take the children on a holiday within Australia then that party shall notify the other party no less than 14 days prior to the departure date of such proposed trip and shall provide to the other parent at that time particulars of the trip including the proposed itinerary, the address of where the child will be staying and the proposed period of such trip.
The parties shall not unreasonably withhold consent for a trip within Australia.
That in the event that either party wishes to take the children on a holiday out of the Commonwealth of Australia then that party must obtain the other party’s written consent to travel outside the Commonwealth of Australia at least 28 days before the trip.
That neither party shall travel with either child to or through a non-Hague Convention country without the authenticated written consent of the other parent.
If either party intends taking the children out of the Commonwealth of Australia with the written consent of the other parent that party is to advise the other parent in writing not less than 90 days prior to the planned departure date and is to provide the other parent with a full itinerary including documentary evidence of return airfares, proof of any inoculations recommended by the child’s GP and contact details including details of all accommodation and telephone numbers at which the children are to stay whilst overseas.
That the Mother shall retain the children’s passports at all times except when the Father is travelling overseas with the children.
The Mother shall provide the children’s passports to the Father within 14 days before any travel with the Father overseas and the Father shall return the children’s passports to the Mother within 14 days of his return to Australia.

IT IS NOTED that publication of this judgment under the pseudonym Odom & Kaplan (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4810 of 2018

MR ODOM

Applicant

And

MS KAPLAN

Respondent

REASONS FOR JUDGMENT

Introduction

This final parenting hearing relates to the children X, born in 2010, and Y, born in 2011.
The Court refers to its previous interim parenting Orders of 14 November 2018, as varied by the Court’s Orders of 3 June 2019 and 16 October 2019.
Since interim Court Orders of 22 July 2020, during school term times, the children have been spending time with the Father each alternate weekend commencing at 7:15 PM Friday to Sunday 6:45 PM.
The Court should state that at the outset of the final parenting hearing the Court heard and determined, at the instance of the Father, one pressed alleged Contravention of an earlier Court Order made on 14 November 2018, specifically Order 24 being, “24. That neither party shall denigrate the other in the presence or hearing of the children nor allow any third party to do so.” The Father had relied upon, in relation to this alleged Contravention on 15 November 2019, paragraphs 53 to 66 of his Affidavit filed 21 February 2020. The Father also gave oral evidence and was cross-examined. The Mother gave oral evidence and she was cross-examined. The Court refers to its oral judgment in relation to the determination of the alleged Contravention; the Court was not persuaded on the balance of probabilities that the alleged contravention had occurred and that alleged Contravention was dismissed. The Court had told the parties and the ICL that the evidence adduced at the Contravention Hearing would form part of the evidence at the final hearing, and there was no objection to that course.

Proposals

The Father’s proposals, at the outset of the final parenting hearing, were set out in his Case Outline filed 24 February 2021 and provided, inter alia, that the parties have equal shared parental responsibility for the children; the children “live with” the Father until 12 July 2021 in accordance with the Orders of 14 November 2018; that the children reside with the parents on a 50-50 basis commencing 12 July 2021; and that the children spend certain block time with each parent during the school holidays.
During the cross-examination of the Father, the Father stated that he would propose that up until 12 July 2021 the children spend time with him in accordance with the Court’s Orders of 22 July 2020.
Ultimately, the Father’s proposals were set out in his Case Outline sent to the Court by email from the Father and dated 4 March 2021 and filed on 3 March 2021. They provided as follows:
1. That the parties shall have equal shared parental responsibility for the children, X born in 2010 and Y born in 2011 (collectively referred to as “the Children”) and note that it is agreed between the parties that the Children shall be enrolled in either at such school as the Mother elects:
a. S School in Suburb D NSW
b. T School in Suburb T NSW
c. U School in Suburb V NSW
d. W School in Suburb Z NSW
e. AA School in Suburb AA NSW
2. That the children shall live with the Mother.
3. That the children spend with the Father until 12 July 2021 in accordance with the orders of 14 November 2018 as amended.
4. That the children shall spend time with the Father as follows:
a. From 12 July 2021 each alternative weekend from after school on Friday until before school on Monday or, if Monday is a public holiday, the Father’s time shall be extended to before school on Tuesday with the Father to collect the children from school at 3:00pm and return them to the school at 9.00 am on the Monday morning (or Tuesday morning if Monday is a public Holiday).
5. That during the school holiday periods:
a. The time to be spent with the Father pursuant to Order 4 shall be suspended during school holiday periods and shall recommence on the first weekend after each school holiday period.
b. During the Autumn, Winter and Spring school holiday periods from after school on the last day that pupils are required to attend school until 9:00am on the following Friday with the Father to collect the children at the commencement of the time and deliver the children to BB Club on CC Street, Suburb DD in the state of New South Wales.
c. During the Christmas school holiday period from after school on the last day that the pupils are required to attend school until 9:00am on 6 January each year with the Father to collect the children from school at 3:00pm at the commencement of the time and deliver the children to BB Club on CC Street, Suburb DD in the state of New South Wales at the conclusion of the time.
d. During the Christmas school holiday period the children shall live with the Mother from 9:00am on 6 January with Mother to collect the children from BB Club on CC Street, Suburb DD in the state of New South Wales.
6. That when each of the children have commended attending High Schools changeover shall occurs at the children’s high school or schools and if is non-school day then at BB Club on CC Street, Suburb DD in the state of New South Wales at the conclusion of the time.
Communication with Children
7. That when the Children are not in the care of the Father, the Father have a telephone or audio-visual communication (such as Skype/Zoom) with the Children between 6pm and 7pm, Monday, and Friday. In order to facilitate this contact, the parent that the Children are in the care of, shall ensure that each child’s mobile phone is charged and available for such contact between 6pm and 8pm.
8. The person who does not otherwise have care of the Children on their Birthdays can contact the Children by phone between 6pm and 8pm to wish the Children a happy birthday.
9. That the parties are to communicate with each other in relation to Children’s matters by email, in accordance with Order 1. That if the parties change email addresses, they shall notify the other party of same within 24 hours of the change.
10. That the parties are to provide a mobile phone to the Children on their first day of high school.
Passports and Travel
11. That the Mother shall consent to the issue of an Australian Passport to each of the Children with 14 days of such request being put to the Mother by the Father.
12. That should the Mother refuses or neglects to sign the Australian Passport application forms within 14 days of written request to do so by the Father, then the Registrar of the court is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to sign or execute the application on behalf of the Mother.
13. ln the event that either parent wishes to take the Children on a holiday within Australia, then the parent proposing such holiday shall notify the other parent no less than 21 days prior to the departure date of such proposed trip and shall provide to the other parent at that time, particulars including proposed itinerary, the address of where the child will be staying and proposed period of such trip. Consent of the other parent shall not be unreasonably withheld.
14. In the event that either parent wishes to take the Children on a holiday out of the Commonwealth of Australia, then the parent proposing such holiday shall notify the other parent no less than 60 days prior to the departure date of such proposed trip, and shall provide to the other parent at this time:
a. Particulars including proposed itinerary and proposed period of such trip;
b. At least 10 days before departure, a final itinerary including contact telephone number and full street addresses of where the Children will be staying; and
c. Copies of return airline tickets and details of flights once booked, at least 10 days before departure.
d. Consent of the other parent shall not be unreasonably withheld.
15. That neither party shall travel with the Children to the continent of Country EE until the Children are 18 years of age.
16. That the Mother shall hold the passport for X.
17. That the Father shall hold the passport for Y.
18. That pursuant to section 65Y(2) of the Family Law Act 1975 (Cth), each party be permitted to travel with the Children out of the Commonwealth of Australia, provided such period of travel takes place during the time that the parent has contact with the Children, pursuant to these orders unless otherwise agreed between the parties in writing.
19. That upon the parties giving notice to the other party of their proposed travel out of the Commonwealth of Australia, the non-travelling parent shall release the passport he/she holds for the children to the travelling parent not less than 14 days prior to the notified date of departure and the travelling parent shall return the passport, to the non-travelling parent within 7 days of returning from any travel with the Children in accordance with these orders.
20. That the parties and their partners are not to consume alcohol, drugs, any illicit substances or banned prescription drugs in the presence of the Children or be in any way effect by them whilst the Children are in the person’s care of control.

Following the Court’s receipt of the Father’s above Case Outline sent by the Father to the Court on 4 March 2021, the Court sent the parties and ICL the following email on 4 March 2021:
Dear Legal Practitioners and ICL,
The Court refers to the Father's amended proposed Minute of Order sent to the court on 4 March 2021.
During submissions by the Father's counsel, he proposed that the changeover location from the date of the Courts Orders up to 12 July 2021 be Suburb B outside McDonald's.
However, the above amended Minute of Order does not mention such changeover location; rather, the Father proposes order 3, "That the children spend (time) with the Father until 12 July 2021 in accordance with the orders of 14 November 2018 as amended."
The Court respectfully asks the Father to clarify his actual proposal in this regard, by close of business Monday 8 March 2021.
In relation to the issue of Passports and Travel, noting the parties competing proposals in this regard, the Court is considering making an Order as follows:
"Neither party shall travel with either child to or through a non-Hague Convention country without the authenticated written consent of the other parent."; the Court request the parties, if so advised, to provide a brief written submission in relation to this matter, no longer than one page in length, by close of business Monday 8 March 2021.
The Father is asked to confirm that he no longer seeks an order to spend time with the children during the Festival of Religion R.
The Father is asked to confirm his agreement with the ICL's proposed order 6 relating to changeover after the children commence high school. The Father's proposed order 6 in his last provided Minute of Order is inconsistent with this prior agreement.
The parties and ICL are requested to provide an agreed Minute of Order relating to any agreement reached between the parties following the conclusion of submissions at the final hearing in relation to the choice of high school, such Minute of Order to be provided by close of business Monday 8 March 2021.
On 8 March 2021, the Court received the following emails from the Mother’s solicitors and Father’s counsel respectively:
Dear Colleagues,
We refer to the above matter and your email dated 4 March 2021.
We confirm that our client consents to an Order that “Neither party shall travel with either child to or through a non-Hague Convention country without the authenticated written consent of the other party”.
Our client seeks an order for the parties not to travel to non-Hague Convention countries in paragraph 167 of her Affidavit filed 9 February 2021.
The Family Report writer, Mr FF, in paragraphs 2 and 3 of the Family Report, refers to the fact that the Mother is of Country GG descent and the Father is of Country EE descent. Country GG and Country EE are non-Hague Convention countries.
The parties are in high conflict and our client seeks this mutual order as a safeguard against either party taking the children to Country GG or Country EE and failing to return the children to Australia.
Yours faithfully,
Yasmin Swifte
Swifte Law
BRIEF WRITTEN SUBMISSIONS IN RELATION TO PASSPORTS AND TRAVEL ON BEHALF OF THE APPLICANT FATHER
1.I am instructed that the Applicant Father consents to the Court making an order in terms of the Order being considered as set out in the email forwarded from the Chan1bers of Judge Newbrun on Thursday 4 March 2021 at 4:47 pm, namely that;
"Neither party shall travel with either child to or through a non-Hague Convention country without the authenticated written consent of the other parent".
2. Such consent is in the context that Orders 15 and 17 of the Father's Minute of Orders are made. The Father still presses the making of Orders 11 to 18 inclusive of his Minute of Orders Sought.
3. The Father again draws the Court's attention to paragraph 166 of the affidavit of the respondent Mother affirmed 9 February 2021 regarding each party holding one of the children's passports and also to paragraphs 167 to 170 inclusive of her said affidavit regarding the proposed orders as to Passports and Travel.
The Mother’s proposals were initially set out in her Case Outline filed 23 February 2021. Inter alia, and summarising, she sought Orders that the Mother have sole parental responsibility for the children; the children live with the Mother; the children spend time with the Father, during school term times, each alternate weekend from after school Friday until before school Monday.
The Mother’s Final Minute of Proposed Orders sought was sent to the Court by email on 15 March 2021 and which provided as follows:
1. That all previous parenting orders be discharged.
2. That the Mother have sole parental responsibility for the children X born in 2010 and Y born in 2011 (“the children”) provided however the Mother shall promptly inform the Father in writing of any decision proposed as for the children or either of them in relation to:
2.1     Medical or hospital treatment as to matters of a serious nature;
2.2     Proposed change of schools; and
2.3     Proposed changes of residence.
3.The children shall live with the Mother.
4.The children shall spend time with the Father as follows:
During School Terms:
4.1 Each alternate weekend from after school on Friday until before school on Monday or, if Monday is a public holiday, the Father’s time shall be extended to before school on Tuesday with the Father to collect the children from school at 3:00pm or otherwise Pre-School I at Q Street, Suburb A.
During School Holiday Periods:
4.2 The time to be spent with the Father pursuant to Order 4.1 shall be suspended during school holiday periods and shall recommence on the first weekend after each school holiday period;
4.3 During the Autumn, Winter and Spring school holiday periods from after school on the last day that pupils are required to attend school until 9:00am on the following Friday with the Father to collect the children at the commencement of the time and deliver the children to the Pre-School I at Q Street, Suburb A at the conclusion of the time.
4.4 During the Christmas school holiday period from after school on the last day that pupils are required to attend school until 9:00am on 6 January each year with the Father to collect the children from school at 3:00pm or otherwise the Pre-School I at Q Street, Suburb A by 6:00pm at the commencement of the time and deliver the children to the Pre-School I at Q Street, Suburb A at the conclusion of the time.
4.5 During the Christmas school period the children shall live with the Mother from 9:00am on 6 January to 9:00am with the Mother to collect the children from the Pre-School I at Q Street, Suburb A.
4.6 For the purposes of either collection from or return of the children to Pre-School I the Father shall be responsible for and make all such necessary arrangement to facilitate these orders and be responsible for the costs of same.
4.7 When electing to use Pre-School I the Father shall ensure that he complies with all their requirements.
4.8 Should Father’s Day fall on a weekend that the children would normally be with the Mother then the children shall spend time with the Father from after school on Friday until the commencement of school on Monday on the Father’s Day weekend and the Father’s time with the children under Order 4.1 shall be suspended on the following weekend.
4.9 Should Mother’s Day fall on a weekend that the children would normally be with the Father then the children shall spend time with the Mother from after school on Friday until the commencement of school on Monday on the Mother’s Day weekend and the Mother’s usual time pursuant to Order 4.1 with the children under these Orders shall be suspended on the following weekend.
4.10 In the event that the Father’s time with the children falls on the Religion R Easter then the Father’s time with the children shall be suspended at 3:00pm on Religion R Holy Thursday until 5:00pm on Religion R Easter Monday. The Mother shall inform the Father of the dates of Religion R Easter at least 4 weeks in advance and the Father shall spend time with the children the previous week from 3:00pm on Friday until 5:00pm on the following Monday.
5. During the school term the Father shall collect and deliver the children to and from their respective school or schools, the Pre-School I at Q Street, Suburb A, provided however that in the event that the neither the school or Pre-School I is open on a particular day, the Father shall provide the Mother with not less than 48 hours’ notice in writing and on the particular day the children shall be collected by the Father at 9:00am and returned to the Mother at 6:00pm at Suburb B outside McDonalds.
6. When each of the children have commenced attending High Schools changeover shall occur at the children’s high school or schools and if it is a non-school day then at Suburb B outside McDonalds with the Father collecting the children at 9:00am and returning the children at 6:00pm.
7. That the Father have telephone or audio visual communication (such as Skype/Zoom) with the children each Wednesday for up to 30 minutes between 7:00pm and 8:00pm with the Father to initiate the telephone call to a mobile telephone number to be provided to the Father by the Mother within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone switched on and recharged at the appointed times, answering the telephone call promptly and encouraging the children to speak to the Father whilst affording the child privacy to do so.
8. The parents are to provide a mobile telephone number in each household for communication with the children and shall provide the other parent with the mobile telephone number for that mobile telephone number within 72 hours of the date of these orders. Each parent will be responsible and liable for all costs of maintaining service to the mobile telephone and the bills for that mobile telephone.
9. That during the Father’s time with the children in school holiday periods pursuant to Orders 4.3 and 4.4 the Mother shall have telephone communication with the children each Tuesday and Thursday at 7:00pm for up to 30 minutes with the Mother to initiate the telephone call and the Father to afford the children privacy to speak to the Mother.
Travel
10. The Mother shall be solely authorised to do all acts and things and sign all documents necessary to enable each child to have an Australian Passport.
10.1 That in the event that the Father wishes to take the children on a holiday within Australia then the Father shall notify the Mother no less than 14 days prior to the departure date of such proposed trip and shall provide to the other parent at that time particulars of the trip including the proposed itinerary, the address of where the child will be staying and the proposed period of such trip.
10.2 The Mother shall not unreasonably withhold consent for a trip within Australia.
10.3 That in the event that the Father wishes to take the children on a holiday out of the Commonwealth of Australia then the Father must obtain the Mother’s written consent to travel outside the Commonwealth of Australia at least 28 days before the trip.
10.4 That neither party shall travel with either child to or through a non-Hague Convention country without the authenticated written consent of the other parent.
10.5 If the Father intends taking the child out of the Commonwealth of Australia with the written consent of the other parent he is to advise the other parent in writing not less than 90 days prior to the planned departure date and are to provide the other parent with a full itinerary including documentary evidence of return airfares, proof of any inoculations recommended by the child’s GP and contact details including details of all accommodation and telephone numbers at which the children are to stay whilst overseas.
10.6 That the Mother shall retain the children’s passports at all times except when the Father is travelling overseas with the children.
10.7 The Mother shall provide the children’s passports to the Father within 14 days before any travel with the Father and the Father shall return the children’s passports to the Mother within 14 days of his return to Australia.
11. ORDER that each of the Father and Mother will from the date of these Orders:
11.1     Notify the other parent as soon as possible and in any event within 24 hours of any serious injury or serious illness suffered by a child whilst the child is in the care of that parent.
11.2 Keep each other informed of his/her telephone number and notify the other not less than 7 days before changing that party’s telephone number, of such change.
11.3 The Mother and Father shall communicate with each other by email for both urgent and non-urgent matters.
11.4 That the Mother authorise each child’s school which they may from time to time attend to provide each of the parents with such information concerning the child as may be requested by him/her from time to time including school reports and school photographs and for the purpose of such authorisation this order shall be sufficient authority.
11.5    Each parent shall keep each other informed of the children’s extracurricular activities and schedules for and cost thereof and shall be at liberty to attend the children’s extracurricular activities that allow for parental attendance and each shall use their best endeavours to facilitate the attendance of the children.
11.6 Each parent shall be entitled to attend school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
11.7 That neither parent shall denigrate the other parent or the other parent’s family or associates to either child in the presence of either child nor allow any third party to denigrate such persons to the child or in the presence or hearing of the child.
11.8 Neither parent shall discuss with the children these proceedings or a change to these orders or permit any other person to do so except as may be necessary pursuant to an order of the court.
11.9 That neither parent shall use physical means to discipline the children or permit any other person to do so.
11.10 That either party be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders.
11.11 The parties shall first contact and attend upon the Family Relationship Centre for alternative Child Inclusive dispute resolution should either party wish to make substantial changes to these Orders and cannot come to an agreement in relation to the proposed changes.
12. Each party be and is hereby restrained from taking photos and/or videos of the changeovers and/or return of the children or permitting any third party to do so.
13. That pursuant to section 62B of the Family Law Act 1975 information about the family counselling services, family dispute resolution services and other courses, programs and services is set out in the Fact Sheet attached hereto.
14. That pursuant to section 65DA of the Family Law Act the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
The ICL’s proposals were set out in a proposed Minute of Order, Exhibit G, which provided, inter alia:
1. That all previous parenting orders be discharged.
2. That the Mother have sole parental responsibility for the children X born in 2010 and Y born in 2011 ("the children") provided however that the Mother shall promptly inform the Father in writing of any decision proposed as for the children or either of them in relation to:
2.1 Medical or hospital treatment as to matters of a serious nature;
2.2 Proposed change of schools; and
2.3 Proposed changes of residence.
3. The children shall live with the Mother.
4. The children shall spend time with the Father as follows:
During School Terms:
Each alternate weekend from after school on Friday until before school on Monday or, if Monday is a public holiday, the Father's time shall be extended to before school on Tuesday, with the Father to collect the children from school at 3:00pm or otherwise Pre-School I at Q Street, Suburb A.
During School Holiday Periods:
4.1 The time to be spent with the Father pursuant to Order 4 shall be suspended during school holiday periods and shall recommence on the first weekend after each school holiday period;
4.2 During the Autumn, Winter and Spring school holiday periods from after school on the last day that pupils are required to attend school until 9:00am on the following Friday with the Father to collect the children at the commencement of the time and deliver the children to the Pre-School I at Q Street, Suburb A at the conclusion of the time.
4.3 During the Christmas school holiday period from after school on the last day that pupils are required to attend school until 9:00am on 6 January each year with the Father to collect the children from school at 3:00pm or otherwise the Pre-School I at Q Street, Suburb A by 6:00pm at the commencement of the time and deliver the children to the Pre-School I at Q Street, Suburb A at the conclusion of the time.
4.4 During the Christmas school period the children shall live with the Mother from 9:00am on 6 January with the Mother to collect the children from the Pre-School I at Q Street, Suburb A.
4.5 For the purposes of either collection from or return of the children to Pre-School I, the Father shall be responsible for and make all such necessary arrangements to facilitate these orders and be responsible for the costs of same.
4.6 When electing to use Pre-School I the Father shall ensure that he complies with all their requirements.
4.7 Should Father's Day fall on a weekend that the children would normally be with the Mother then the children shall spend time with the Father from after school on Friday until the commencement of school on Monday on the Father's Day weekend and the Father's time with the children under Order 4 shall be suspended on the following weekend.
4.8 Should Mother's Day fall on a weekend that the children would normally be with the Father then the children shall spend time with the Mother from after school on Friday until the commencement of school on Monday on the Mother's Day weekend and the Mother's usual time pursuant to Order 4 with the children under these Orders shall be suspended on the following weekend.
4.9 In the event that the Father's time with the children falls on the Religion R Easter then the Father's time with the children shall be suspended at 3:00pm on Religion R Holy Thursday until 5:00pm on Religion R Easter Monday. The Mother shall inform the Father of the dates of Religion R Easter at least 4 weeks in advance and the Father shall spend time with the children the previous week from 3:00pm on Friday until 5:00pm on the following Monday.
5. During the school term the Father shall collect and deliver the children to and from their respective school or schools, or the Pre-School I at Q Street, Suburb A, provided however that in the event that the neither the school or Pre-School I is open on a particular day, the Father shall provide the Mother with not less than 48 hours' notice in writing, and on the particular day the children shall be collected by the Father at 9am and returned to the Mother at 6pm at Suburb B outside McDonalds.
6. When each of the children have commenced attending High Schools changeover shall occur at the children's high school or schools and if it is a non-school day then at Suburb B outside McDonalds with the Father collecting the children at 9am and returning the children at 6pm.
7. That the Father have telephone or audio visual communication (such as Skype/Zoom) with the child each Wednesday for up to 30 minutes between 7:00pm and 8:00pm with the Father to initiate the telephone call to a mobile number to be provided to the Father by the Mother within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone switched on and recharged at the appointed times, answering the telephone call promptly and encouraging the child to speak to the Father whilst affording the child privacy to do so.
8. The parents are to provide a mobile telephone in each household for communication with the children and shall provide the other parent with the mobile telephone number for that mobile telephone within 72 hours of the date of these orders. Each parent will be responsible and liable for all costs of maintaining service to the mobile telephone and the bills for that mobile telephone.
9. ORDER that each of the Father and Mother:
9.1 Notify the other parent as soon as possible and in any event within 24 hours of any serious injury or serious illness suffered by the child whilst the child is in the care of that parent.
9.2 Keep each other informed of his/her telephone number and notify the other not less than 7 days before changing that party's telephone number, of such change.
9.3 The Mother and Father shall communicate with each other by email for both urgent and non-urgent matters.
9.4 That the Mother authorise each child's school which they may from time to time attend to provide each of the parents with such information concerning the child as may be requested by him/her from time to time including school reports and school photographs and for the purpose of such authorisation this order shall be sufficient authority.
9.5 Each parent shall keep the other informed of the child's extracurricular activities and schedules for and cost thereof and shall be at liberty to attend the child's extracurricular activities that allow for parental attendance and each shall use their best endeavours to facilitate the attendance of the children.
9.6 Each parent shall be entitled to attend school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
9.7 That neither parent shall denigrate the other parent or the other parent's family or associates to either child in the presence of either child nor allow any third party to denigrate such persons to the child or in the presence or hearing of the child.
9.8 Neither parent shall discuss with the child these proceedings or a change to these orders or permit any other person to do so except as may be necessary pursuant to an order of the Court.
9.9 That neither parent shall use physical means to discipline the children or permit any other person to do so.
9.10 That either party be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders.
9.11 The parties shall first contact and attend upon the Family Relationship Centre for alternative Child Inclusive dispute resolution should either party wish to make substantial changes to these Orders and cannot come to an agreement in relation to the proposed changes.
10. Each party be and is hereby restrained from taking photos and/or videos of the change overs and/or return of the children or permitting any third party so to do.

The Mother relied upon the following documents:
a)The Mother’s Response filed 11 May 2019;
b)Notice of Risk filed 11 May 2019;
c)Affidavit of Ms Kaplan filed 9 February 2021;
d)Mother’s Case Outline filed 23 February 2021.
e)Mother’s Final Minute of Proposed Orders.
The Father relied upon the following documents:
a)Amended Application for Final Orders filed 5 June 2020;
b)Notice of Risk filed 9 October 2019;
c)Application for Contravention filed 5 November 2019;
d)Affidavit of Mr Odom filed 5 November 2019;
e)Application for Contravention filed 21 February 2020;
f)Affidavit of Mr Odom filed 21 February 2020;
g)Amended Case Application filed 5 June 2020;
h)Application for Contravention filed 9 October 2020;
i)Affidavit of Mr Odom filed 9 October 2020;
j)Case Outline of Mr Odom filed 19 February 2021;
k)Affidavit of Mr Odom filed 19 February 2021;
l)Amended Case Summary filed 3 March 2021 and email to the Court on 4 March 2021.
The ICL relied upon the following documents:
a)Family Report dated 14 May 2020;
b)Tender Bundle.
The following Exhibits were relied upon:
a)Exhibit A: Email of the Father dated 21 October 2019;
b)Exhibit B: ICL Tender Bundle;
c)Exhibit C: Transcript 23 July 2013 of Local Court Suburb HH;
d)Exhibit D: Email Chains with Mr Odom dated 28 February 2021;
e)Exhibit E: Annexure ‘B’ of Affidavit of Mother filed 8 May 2019;
f)Exhibit F: Affidavit of Mr Odom dated 28 July 2020;
g)Exhibit G: ICL’s Proposed Minute of Order;
h)Exhibit H: Case Outline of Father filed 3 March 2021;
i)Exhibit I: ICL’s Case Outline;
j)Exhibit J: Family Report of Mr FF dated 14 May 2020;
k)Exhibit K: Mother’s Case Outline filed 23 February 2021.

Evidence

The Court has had regard to all of the documentary evidence referred to above, together with the oral evidence given by each of the parties and the family report writer. Throughout these reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In order to limit the size of the Court’s Reasons for Judgment not all factual issues will be referred to. The Court, in relation to the evidence, also refers to the Court’s discussions under s 60CC of the Family Law Act1975 (Cth) (“the Act”).
The Mother is aged 36 years, and the Father is aged 37 years.
The parties’ relationship commenced in 2000.
The Father came to Australia with his parents from Country EE when he was 15 years. He is now married to Ms JJ. They have a child named KK who was born in 2021. They have recently purchased a home in Suburb LL where they now live.
The Mother, of Country GG background, who came to Australia at the age of 2 years, lives in Suburb A, and post separation to date the children have been in her primary care.
The eldest child X is in Year 6. The youngest child, Y, is in Year 4.
The Father does not wish to disclose his current residential address “for the safety of my family due to the Mother’s continuous involvement with members of Suburb B Gang.” The Court observes that there was no significant cross-examination of the Mother by the Father’s counsel in relation to this allegation. The Court makes no finding against the Mother in relation to this allegation.
The Father and his wife are in the process of securing new employment that will accommodate school pickups. The Father asserts that he and his wife are confident that this will be in place by early July 2021.
The Father stated his view that his proposed alternate weekly care (initially proposed by him) will minimise face-to-face contact between both parties. The Father states that this would also assist the Mother in dealing with her anxiety regarding changeovers.
Between June 2015 and December 2015, the parties had a joint savings account with CBA bank. Between September 2016 and December 2016, they had a savings account with CBA bank.
Between February 2014 and May 2016, a tenant account was held by Suburb MM Real Estate in relation to the parties for the property at NN Street, Suburb OO.
On about 24 March 2016, the Mother sent the Father an email stating, inter alia, “I’m not doing this bullshit Mr Odom. I am just going to move out. I can’t live like this. I’m my going to beg u to pay your share of money. And I will just contact child support and then I don’t have to deal with you at all. It’s your choice to make things difficult. The Centrelink payments have nothing to do with you paying your share of the rent and food and groceries electricity. I am very glad the lease has come to an end so I don’t have to deal with this for much longer. I will copy you into the email to the real estate giving my notice so you know when I will be handing the keys back.”
On 24 February 2017, PP real estate agency sent the parties a tenant invoice for water usage between November 2016 and February 2017 relating to a leased property at Suburb QQ.
On 20 March 2017, the Mother sent the Father an email with a breakdown of the Father’s share of the rent and utility bills.
On the balance of probabilities, the Court finds that the parties had finally separated by March 2017.
The Father and his wife assert that they have refused to deal with staff members of Pre-School I, in particular the manager there, by reason of an incident on 1 December 2020.
The Mother does not want to disclose her residential address for safety reasons.
On 26 May 2013, the Father requested the Mother’s phone call log details so that he could access the Mother’s telephone bill. The Mother refused. The Father pushed the Mother, resulting in the Mother suffering a bruising injury to her left elbow. The Father was charged by the police in relation to this incident and he was convicted of assault occasioning actual bodily harm on 23 July 2013 at a Defended Hearing in the Local Court. The Father was placed on a bond to be of good behaviour and an ADVO was made for the protection of the Mother. The presiding Magistrate took into account, inter alia, that the Father’s offence was somewhat impulsive.
Between 2013 and 2017 there were many periods when the Father was unemployed or in short-term employment. The Mother did not request child support to be paid given the Father’s many periods of unemployment. In February 2017, the Father secured employment with the J Organisation in Suburb E under permanent full-time employment.
The parties were involved in significant disputation from November 2017 when the Mother requested child support from the Father in the sum of $350 each fortnight. In response the Father said to the Mother, inter alia, “Go contact child support and see what happens with Centrelink and your work. You think the written warning is the end. Try me!!”
In January 2018, the Mother sent a text message to the Father asserting that a customer complaint was lodged by the Father with the Mother’s employer, Employer F, with the Father responding by text message to the Mother, “Deal with it. Fucken idiot.”
The parties were involved in significant disputation in October 2018 regarding the children’s time with the Father. The Father then commenced proceedings in this Court. On 29 October 2018, the Father sent the Mother’s solicitor an email, having just commenced Court proceedings, raising with the Mother’s solicitor alleged Centrelink fraud by the Mother.
In late November 2018, the Mother had three additional complaints lodged against her at work from the Father’s family relating to alleged privacy breaches by the Mother at Employer F.
In a psychologist’s report in relation to the Mother dated 27 September 2019, the psychologist states, inter alia, that the Mother has been attending counselling sessions since August 2019 in relation to symptoms of depression, continuous crying, consistent low mood, sleep deprivation and feelings of hopelessness and helplessness. In addition, she was experiencing symptoms of anxiety in the form of panic attacks. The psychologist observed that when the Mother discusses the Father, her emotional responses consist of anger, depression, anxiety and hopelessness. She observed that the Mother had mentioned that when she is to meet the Father to give him the children on the appointed days, she feels stressed and cannot sleep for days. The Mother had reported to the psychologist that she cannot talk about the Father without losing control of her anxiety.
In the report of her GP, Dr RR, dated 27 November 2020, the doctor stated that the Mother suffers from severe anxiety triggered by any form of communication or impending face-to-face encounter with the Father.
There was a period of one to three months where the Father would not see the children between May 2013 and March 2017. There were no overnight stays by the children with the Father during this period as the Father did not have the capacity where he was living (shared living with third parties). It was only when the Mother commenced garnishing the Father’s wages from March 2017 that the Father took an interest in spending time with the children overnight.
The Mother messaged the Father during term 3 school holidays in 2018 stating, “if you knew you couldn’t see them then why did you tell them you were.” The Father’s response was, “Again, I said I’ll try. I swear it’s like talking to a brick wall. I’m not responding to this bullshit any more.”
On 27 October 2018, the parties agreed to meet at Suburb SS McDonald’s for a changeover in relation to the children. The changeover location was only about 10 minutes from each party’s residence. The Mother emailed the Father at 10:37 AM and advised him that she would meet at 11:15 AM as the children were hungry and wanted to eat before they left. The Father sent an email in reply at 10:51 AM saying that he had arrived and would wait until 11:15 AM, and stated that should the Mother fail to show up with the children by then he would leave and the Mother could drop the children off at his place. The Mother was delayed in traffic. She had not been meeting the Father at his house for over a year. The Mother sent the Father an email at 11:15AM stating that she would be at KFC in five minutes (KFC was right next to McDonald’s). The Mother and children arrived at the changeover location at 11:19 AM. The Father was not there. The Father emailed the Mother stating that he waited until 11:16 AM and then left.
On 4 January 2019, the parties agreed that the Mother would drop off the children to the Father’s residence around 9:30 PM. The Mother arrived at the Father’s house around 10:10 PM. The Father confronted the Mother in the presence of the children in an aggressive manner yelling, “I told you it was too late. Why did you bring them this late.” The children ran into the car crying. The Mother reported the incident to the police. From that date, she refused to meet the Father at McDonald’s. The Mother did not want to see the Father as it was causing her anxiety. The parties agreed to meet at Suburb TT police station until the new school term commenced in 2019.
On 24 January 2020, the Mother emailed the Father to advise him that she had been admitted to hospital and he would need to assume parental responsibility for the children until further notice. The Father replied stating that he would drop the children off to the Mother at the hospital as he was only responsible for them until 7 PM. He suggested to the Mother that she get her boyfriend or family to look after the children if she was unable to. The Court interpolates at this point and refers to the Father’s oral evidence when he stated that he did not believe the Mother when she advised him that she had been admitted to hospital at this time, that he had not trusted the Mother when she stated this to him, and that he has not trusted the Mother since 2012.
Following the Court making interim Orders that changeover occur at Suburb D police station, the Father, whilst waiting outside the police station, began to video record the Mother.
In March 2019, the children moved from Suburb G School to Suburb A school after the Mother resigned from her job, and her financial circumstances deteriorated. The new school was about 17 km from Suburb G. The Mother had considered moving to Suburb UU to live with her parents but she considered that it would be difficult for the Father to drive 45 minutes to see the children, so the Mother considered that the next best option was to live in her partner’s granny flat which was only 25 to 30 minutes from the previous school.
The Father has declined, on occasion, the Mother’s requests for financial assistance in relation to the children outside his formal child support payments. As recently as December 2020, the parties were engaged in significant email disputation regarding the purchase of shoes for the children. In January 2021, the Mother, by email, requested the Father’s financial assistance for purchasing running spikes for the eldest child. The Father responded to the email, however, he did not address the Mother’s request.
The Father picked up the eldest child from school at 3 PM for her birthday in 2020.
The Father has not formally sought permission from his employer to alter his working arrangements so that he can pick up the children on the fortnightly Friday after school and return them to school on the following Monday morning.
The Mother commenced employment with her current employer in 2019. The Mother’s employment involves travelling interstate and also to Country VV at least once a month. When the Mother is required to travel with her employment, she expects to be away two days and one night. During this time, she proposes that her eldest child’s best friend’s Mother cares for the children. The children have spent overnight time at this person’s residence previously.
At present, the Mother’s day, in relation to the children, starts at 5am to get dressed, do their hair, prepare school bags to be out of the house by 6:50am, arriving at Before School Care by 7am (when the centre opens). The Mother has to be on a train by 7:16am to commute an hour into the city for an 8:15am start at work. The Mother has sought flexible working arrangements at work to start at 8:15am to 4:30pm with a 30-minute lunch break (instead of 1 hour). This allows the Mother to do her minimum hours in the office to be able to get back by 6pm to pick the children up from After School Care (when the Centre closes).
The Mother’s above work commitments and requirement to travel will make it difficult to meet the Father at changeover in accordance with previous interim Court Orders.
The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
In relation to the Father’s proposal for the children to ultimately spend time with the parents on a week about arrangement, the Father stated that the Court could consider an equal time arrangement when the children are in high school.
The Father stated that he was proposing to resign from his current employment in about mid 2021 and work as a freelance professional. He stated that a friend was offering him some files.
The Father agreed that he had made no formal request to his current employer to finish work earlier on the fortnightly Friday to enable him to pick up the children from school or their after-school care. He agreed that he had not made any formal request to his current employer to start work late on the fortnightly Monday morning so that he could return them to their school or before school care on that Monday morning.
The Father stated that it took about 45 minutes’ drive time from Suburb E to Suburb B.
The Father agreed that the children were not happy with changeovers at a police station.
The Father confirmed that on about 19 February 2019 his work position changed with his current employer.
The Father stated that in relation to his conviction in the Local Court in 2002 for an offence committed in 2002, common assault, a 15-year-old boy had taken his sister’s money and he had got it back and that he was charged.
The Father stated that when he was 17 years of age he had a lot of disputation with his Father.
The Father agreed that in 2011, when the Mother was about five months pregnant with the youngest child, he had locked the Mother out of the house so that she could not enter the house with weight loss drugs that she was consuming.
The Father stated that when the parties were still together between February and March 2017 their relationship was toxic.
The Father proposed that the children attend, for high school, the S School at Suburb D. His wife went to that school.
The Father agreed that in 2013 the parties were living in Suburb WW a few streets away from each other. The Father stated that the parties’ relationship was toxic at that time.
The Father stated the parties lived together at Suburb OO. He stated the parties then lived in rented premises at Suburb QQ.
The Father was cross-examined by the ICL.
The Father was questioned in relation to the Local Court hearing in relation to the Father’s conviction of assault occasioning actual bodily harm in relation to the Mother on 23 July 2013. The Father agreed that he had had an opportunity to dispute the oral evidence the Mother gave at the hearing. The Father stated that he pushed the Mother away when she tried to grab a telephone from him. He agreed that that was an assault upon the Mother. The Father stated that he had never apologised to the Mother in relation to this assault.
The Father stated that the Mother had apologised to him for having an affair. He stated he did not accept the Mother’s apology.
The Father was questioned in relation to an email sent by the Mother to him on 24 January 2020 in which the Mother advised the Father that she had been admitted to hospital and that the Father would need to assume parental responsibility for the children until further notice. The Father stated, in relation to this email, that he did not believe the Mother was going to hospital. He just believed it was a lie on her part. He agreed that he was so disbelieving of the Mother that he had wanted the Mother to send him medical scans. He stated that he has not trusted the Mother since 2012 and he still does not trust her.
The Father was questioned in relation to a request by the Mother to the Father on 14 December 2020 that the Father assist with the back-to-school expenses for the 2021 school year. In this context, the Father stated the relationship was toxic.
The Father agreed that it was a fair summary to state that neither of the parties had been able to produce emails showing any agreement between them.
The Father agreed that there was no guarantee that the eldest child would be admitted into the selective high school being the S School in Suburb D. He conceded that the parties will be left with a major dispute regarding selection of high school for the eldest child if the child was not admitted to this selective school.
The Father stated that he would resign his employment in early June 2021 even if he did not have other employment. He stated that he had met for coffee with the director of a recruitment agency. The Father stated that this person was trying to negotiate a professional role for him.
The Father stated that he was a professional and that he would have opportunities to earn income in these areas.
The Father’s attention was taken to the eldest child telling the family report writer that she feels emotionally closer to the Mother, likes residing with her during the week, and that she enjoys seeing the Father on the weekends. The Father said he had read that part of the family report and agreed with it.
The Father stated that his wife does not want the Mother to know his new residential address.

In re-examination, the Father stated that changeover should occur where the children feel safe, and it should be somewhere where the parties can share travel and not see each other.
The Father stated that he had obtained a police Working With Kids Clearance in August 2017. He stated that he had not been involved in any incident involving violence or children since that time.
The Mother gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Mother remains friends with her former boyfriend Mr XX.
The Mother stated that she obtains treatment from a psychologist. She last saw the psychologist two weeks ago. She sees the psychologist once each month. The Mother also attends counselling through a Domestic Violence program once each month, and had attended such counselling last week.
The Mother works full-time for a large employer. She works Mondays from home and the rest of the week, four days, at the city office.
From the beginning of April 2021 the Mother expects to travel interstate, in relation to her employment, about once each month. She would be away two days; one night, two days. She confirmed that the Mother of one of her daughter’s school friends will care for the children and arrange for drop-off and pickup from school when she is away. The Mother confirmed that the children had previously stayed overnight at the residence of this other Mother.
The Mother stated that it would be too disruptive for the children to be cared by the Father during these periods when she is away with work; with the Mother’s proposed arrangements for the children’s care when she is away on work being implemented, the children will be close to their school and friends.
The Mother stated that she would be staying in the Suburb B area indefinitely. She has just renewed a lease on her rented premises.
The children had been attending school in Suburb A since March 2019.
The Mother stated that her last civil face-to-face verbal conversation with the Father was years ago. She stated that the parties do not speak over the telephone.
The Mother stated that she will not be able to resolve the children’s high schooling with the Father. She stated that the Father wants the children to attend a high school about halfway between the parties’ residences. The Mother stated that she travels two hours each day (for work) and that the Father should do all the travelling seeing that she does everything else. In this context, the Mother referred to her busy schedule.
The Mother stated that she does not trust the Father’s word.
The Mother stated that the children are Religion R. She stated that she has never had a problem with the Father’s Country EE culture and in this context she referred to the children having Country EE middle names.
The Mother stated that the distance from Suburb LL to the Suburb B area was about 16 to 17 km.
It was suggested to the Mother that it would be in the children’s best interests to have some weekday time with the Father. In response, the Mother stated that it would be very disruptive to the children’s schooling and activities between Monday and Wednesday.
The Mother stated that the children have sports training on Monday afternoons after school; school sports training after school; and hobby classes on Wednesday after school.
The Mother stated that if the Father was to pick up the children on a Thursday after school, it would interrupt the children’s school week by having to go to different homes.
It was suggested to the Mother that the Father could take the children to sports lessons on a Monday afternoon. In response, the Mother stated that in the past the Father had been unreliable in taking the children to such activities and that she had had to pay the cost of the lessons. In this context, Mother stated that the Father never commits, and that is her issue.
It was suggested to the Mother that the Father could communicate with her in relation to the children. In response, the Mother stated that the communication was more of a blame game, and it was not an amicable or productive conversation with the Father.
The Mother’s attention was drawn to an email that she had sent the Father last Sunday at 4.26 PM, in relation to the eldest child. In response, the Mother stated that the Father had not responded to her email for four hours (8:56 PM).
The Mother’s attention was drawn to a recent series of email communications between the parties in relation to the eldest child communicating with an older boy. It was suggested to the Mother that this communication between the parties indicated that the parties can communicate on serious issues relating to the children. The Mother stated that she did not accept that proposition, and, whilst this recent communication was one instance where the parties communicated adequately, the Mother has been unable to communicate with the Father; in this context, the Mother referred to, for example, previous disputation between the parties relating to child support issues. A short time later the Mother stated that there had been very little previous communication between the parties where they were able to cooperate.
The Mother stated that the Father was difficult. She stated that she has tried to co-parent with the Father and the Father has refused to do so with no reasonable excuse. The Mother stated that the Father does not compromise and that every decision has to be his way. She stated that conversations with the Father turn into high conflict conversations.
The Mother stated that she occasionally smacks the children when disciplining them.
The Mother stated that, in relation to her employment obligations to travel to Country VV, she expected to travel to Country VV maybe once per year and she would be away 1 to 2 nights.
The Mother stated she was not willing to disclose the exact identity of her present employer which was a large employer.
The Mother stated she resigned from the Employer F in late 2018. Following complaints being made to the Employer F about the Mother allegedly accessing the bank accounts of third parties, the Mother stated that she found the resulting examinations of her emails by staff of the Employer F to be very stressful.
The Mother stated that she had discussed with the eldest child’s psychologist the potential for this child to have serious issues regarding boys and her behaviour over the next two years. The Mother stated that the psychologist and this child are working on behavioural issues. The Mother stated that the children see a psychologist once each month.
The Mother conceded that she had denigrated the Father to the children in retaliation. She stated that she has read the family report, including the effect on the children of denigration, and she has made an effort since not to do so again.
The Mother was asked whether she had related to the Father the advice that she had received from the children’s psychologist to be calm in parenting the children. In response the Mother stated, inter alia, that every time she speaks to the Father he says, “Don’t tell me how to parent the children.”
The Mother stated that she had been to mediation twice with the Father in relation to parenting issues and no agreements had been reached.
The Mother stated, in relation to the Father’s proposals to effect changeovers, during school holidays, at Suburb DD, that Suburb DD will be too far for her. She stated that she would be late for changeover if such a proposal was made an Order. She stated that if she was late there would be conflict between the parties. And further, the children would sense the Mother’s anxiety in relation to such changeover.
In re-examination, the Mother stated she wants to be protected from the Father. In this context she stated that the Father had filed numerous contravention applications. She stated that the Father had put her through days of Court proceedings when she could have been spending time with the children.
The Mother stated that she sees her own psychologist once each month to manage her own anxiety in dealing with the Father.

The Family Report

The family report writer, Mr FF, interviewed the parties and children on 14 April 2020.
The family report writer observed that it appeared the parties’ relationship was not generally harmonious. He stated that from the beginning, there occurred interfamily conflict, involving culture and race issues, with the maternal grandparents reportedly rejecting the Father. Initially residing with the paternal grandparents, the parties left thereafter a falling out between the Mother and the paternal grandfather, whom was described by both parents as a traditional Country EE man with rigid views.
The family report writer observed that living together led the parties to experience escalating arguments over a number of topics, including religion, money and when to have children. Further, they each accused the other person of unfaithfulness.
The Mother reported to the family report writer that she continues to attend a psychologist under a mental health plan for help with anxiety over the ongoing Court case.
During the family report assessment, the family report writer stated that the parties found it extremely difficult to say anything positive about the other. He stated that they tended to rely on past allegations and held each other totally responsible for the current dispute over the children. At the same time, the family report writer stated that there was some acknowledgement that ongoing parental conflict continues to adversely affect the children, particularly X, now aged 11 years.
The family report writer interviewed the Father.
The Father reported one major issue in his relationship with the Mother had been her alleged addiction to Duromine over a significant period. The Father reported many domestic arguments occurred and stated that he left the Mother in early 2012 over the issue. He stated they reconciled three months later.
The Father stated that he thought the eldest child was more prone to the effects of the ongoing parental conflict.
The Mother was interviewed by the family report writer.
The Mother acknowledged that the children love the Father.
The Mother acknowledged that the Father continues to pay child support.
At the family report interview, according to the family report writer, the parties blamed one another for the past conflict and continuing poor communication. He stated that whilst there seemed some mutual acknowledgement of the children’s right to share ongoing parental relationships, the parties found it difficult to liaise and agree over practical day-to-day matters, such as changeover times and venues.
The children were interviewed by the family report writer.
The eldest child stated she wished to remain at Suburb A School. She spoke freely about school, friends and activities. She mentioned that she enjoys athletics and was a good sprinter.
The eldest child discussed her two homes in some detail, including activities, routines and parental expectations. The family report writer stated that there appeared no remarkable differences, the eldest child indicating similar rules apply in both places. The eldest child commented that the Father has a loud voice and yells more than the Mother. She stated that the Father looks after her and her sister well and added that he was a good Father whom she loves.
Discussing her current living arrangements, the eldest child indicated that she feels emotionally closer to the Mother and likes residing with her during the week. She stated that she enjoys seeing the Father on the weekends, but stated that she does not like changeovers at the police station and thought it would be better if all changeovers occurred at school. The family report writer stated that after further discussion, it became apparent that the eldest child’s changeover preference had more to do with the parents’ poor communication than the actual police station. The eldest child stated that the parties do not get on and indicated that they continue to make derogatory comments about each other.
The youngest child’s comments to the family report writer about school and households were similar to the eldest child’s comments in this regard.
Discussing the parties, the youngest child commented that they do not like each other. She stated to the family report writer that the parents had told her and her sister that the other parent tells lies to the Judge.
According to the youngest child’s statements to the family report writer, the Mother has also stated to the children that the Father never did any house work; hit the Mother and the pet dog; punched holes in walls; and went out with other women.
The youngest child reported to the family report writer that the Father often criticises the Mother to the children.
The youngest child stated that she does not like changeovers occurring at the police station because the parties are not nice to one another and her Father videos the proceedings.
The family report writer stated that like the eldest child, the youngest child reported feeling emotionally closer to the Mother but at the same time expressed love for the Father.
Under the heading “Evaluation”, the family report writer stated, inter alia, that during the family report assessment, the parties raised numerous mutual allegations, many of which appeared unrelated to the present dispute over the children.
The family report writer stated that the parental conflict appears entrenched and seems to stem from unresolved issues going back to the time of the parties’ former relationship.
The family report writer stated that it appeared that the parties continue to denigrate one another to the children, causing confusion and emotional insecurity.
The family report writer stated that the children love their parents and enjoy spending time with them. He stated, however, that they have been subjected to inappropriate discussions in both homes and, it would seem, provided subjective information about the Father’s alleged wrongdoings during his relationship with the Mother. Consequently, the family report writer stated that it was not surprising that the children suffer split loyalties.
The family report writer stated that the Mother wants the Father’s current spend time arrangements extended to full weekends, involving school changeovers, rather than police station exchanges. The Mother contended to the family report writer that it would obviate the need for the adults to come into contact and allow smoother transition for the children. The family report writer stated that his assessment supported this proposal as being potentially beneficial for the children.
Under the heading “Recommendations”, the family report writer stated that it was recommended that the children live with the Mother. He stated that if the Father was able to meet before/after school care times, now or at a future stage, it was recommended that spend time arrangements occur on alternate weekends from the Friday until the following Monday.
Otherwise, the family report writer recommended that the existing arrangements continue with strict Orders in place pertaining to the parents’ required behaviour at changeovers, as well as at other times they are with the children. Specifically, he recommended, both parties should be legally compelled to refrain from discussing one another with the children.
The family report writer stated that it was not possible to make a precise recommendation about parental responsibility. He stated that although the adults accept, to a degree, each other’s future parenting roles, there was little at the present time to indicate capacity or willingness to work together over the children.
The family report writer gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The family report writer stated that he had been provided and he had read the Father’s trial Affidavit filed 19 February 2021 and the Mother’s trial Affidavit filed 15 February 2021.
The family report writer was questioned by counsel for the Father.
The Father’s counsel requested the family report writer to read the contents of Exhibit D being a recent email exchange between the parties, which request was complied with. The family report writer was questioned as to the content of the email exchange. The family report writer observed that both parties appear to have rigid views of the other person and blame each other. He stated that the parties set off with positive communications but cannot sustain such positive communications, with an indication of blaming (eventually) occurring. He stated that he would not be prepared to change his recommendations in his family report as a result of this email exchange in Exhibit D.
The family report writer stated that it was a serious step to take parental responsibility away from a parent. He stated that wherever possible parental responsibility should be shared between parents. He agreed that this should be done as a last resort.
The family report writer stated that whilst it was important for female children entering puberty, such as the eldest child, to have the benefits of a strong connection and influence from the Father, it was also important (for the child) that the parties not be in direct conflict.
The family report writer was asked whether it would be his opinion that the children would not be at risk from the Father while being cared for by him. In response he stated that on the whole, acknowledging there had been risk allegations made by the Mother against the Father, that if the Mother was pushing the Father to have more time with the children (Friday after school to Monday morning each fortnight) then this suggested there was no risk.
It was suggested to the family report writer, in the context of the Father’s proposal to spend fortnightly time with the children, during school term times, from Friday after school to Wednesday morning, that if the Father does change jobs and is able to pick up the children from after school, it may be in the best interests of the children for them to spend greater overnight time with the Father. The family report writer stated that it might be in the long-term. However, he would like to see how the children adjust to spending fortnightly time with the Father from Friday after school to Monday morning before school. He stated that if the children were comfortable (with such additional time), then the children could be given the opportunity to express their opinion as to spending additional overnight time with the Father and be comfortable with that. He stated that given the parties’ history of conflict, the parties may well not agree as to whether the children wanted to spend any extra overnight time with the Father. In these circumstances there might be child inclusive mediation, through, for example, YY Counselling. In this context, the family report writer stated that he was not retracting his opinion in his family report that the children should spend fortnightly time with the Father from the Friday until the following Monday.
The family report writer was cross-examined by counsel for the Mother.
The family report writer stated that the denigration of one parent by the other went both ways.
The family report writer was questioned as to any concern he held regarding the parties conducting video recordings at changeovers. He stated that such recording should not occur but his more significant concern in relation to changeovers was that the parties were arguing. Explaining, in relation to changeovers, he stated that each time the parties come into contact there was conflict.
The family report writer stated that having read both parties’ Affidavits, his concern was that little had changed between the parties. Both parties were being critical of each other. He stated that neither of the parties’ Affidavits substantially altered what he had stated in his family report.
The family report writer agreed that it was quite likely that the Father’s filing numerous Contravention Applications would have had an impact on the Mother.

The family report writer was questioned by counsel for the ICL.
The family report writer confirmed that the children, in their interviews with the family report writer, had not requested to spend additional time with the Father.
The family report writer stated, in relation to relevant matters for the Court to consider when determining parental responsibility, that it would be relevant to consider evidence of the parties’ interactions over the past 2 to 3 years; the parties’ attitude towards each other historically and presently; the extent of alleged past domestic violence; and the ability of the parents to be able to problem solve the larger and smaller issues relating to the children.
The family report writer stated that it was important to make Orders that minimised the risk of further litigation between the parties. He agreed that the parties’ inability to agree on high schools for the children may well result in further litigation.
The family report writer stated that an equal time arrangement requires parents to be able to effectively communicate and cooperate in relation to the children. He agreed that a parenting arrangement whereby the children spend time with the Father during school term times for five nights each fortnight is an arrangement approaching an equal time arrangement. He stated that the greater the time that the children spend with the Father the greater the need for the parties to communicate in relation to the children; for example, the parties would need to communicate with each other in relation to the children’s midweek activities. He stated that should the Mother be experiencing stress and anxiety in having to communicate with the Father then that is a relevant matter to take into account in relation to the children spending increased time with the Father.
The Court accepts the evidence of the family report writer.

Relevant legal principles

Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

The Mother has been the children’s primary carer from birth to date. Both children have a closer emotional attachment to the Mother compared to the Father, however the children love the Father (and the Mother).
The Children have a meaningful relationship with both parents and will benefit from a continuance of those relationships.
Should the children live with the Mother and spend time and communicate with the Father as proposed by the ICL, the children’s meaningful relationship with the Father can be maintained. The evidence of the family report writer is consistent with this view. The Court refers to the children’s time spent with the Father since the Court’s Orders of 14 November 2018 to date and observes that they have a meaningful relationship with the Father. The Court’s above views have taken into account the important need in this case to minimise the risk of conflict occurring between the parties and thus minimising the risk of the children being exposed to such conflict and the Mother’s anxiety being detrimentally affected.
The Court gives significant weight to this meaningful relationship primary consideration.

Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

During the parties’ relationship, the parties experienced significant disputation with each other and on occasion the police became involved; for example, on 29 January 2012, and on 26 May 2013.
The Court finds that the Father assaulted the Mother when he at least pushed her on about 26 May 2013 resulting in the Mother bruising her arm. This incident was the subject of a criminal conviction in the Local Court against the Father for assault occasioning actual bodily harm upon the Mother on 23 July 2013.
At a changeover on 15 November 2019 at Suburb D Police Station, the Mother attended that Station in an agitated, frustrated and stressed state, with the Father and his present wife and children already in attendance at the Station. There was no physical altercation between the parties at this time.
The Father has not perpetrated physical family violence directly against any of the children. The Court observes that the Mother, for a considerable period of time during the course of these proceedings, has invited the Father to spend additional fortnightly overnight time with the children (specifically, on a fortnightly Sunday night); this position of the Mother is inconsistent with there existing any significant risk of the children being exposed to physical harm at the instance of the Father when spending time with him.
However, importantly, and at least since about late 2017/early 2018, the parties have experienced significant conflict with each other in relation to the children, particularly within the context of their email and text message communications, but also within the context of changeovers in these proceedings. The Court also observes that the numerous Contravention Applications filed by the Father are consistent with such conflict between the parties.
Since about late 2017/early 2018, whilst there have been occasions where the parties have communicated reasonably cooperatively, the preponderance of their communications in relation to the children have been conflictual, including blaming assertions from one party to the other.And on at least one occasion, the Father has threatened to report the Mother to the authorities for alleged Centrelink fraud.
The parties are distrustful of each other. The Father is particularly distrustful of the Mother having stated in his oral evidence that he has not trusted the Mother since 2012. The Father, in his oral evidence, described the parties’ present relationship as toxic. The children have been exposed to the parties’ conflict and have been emotionally detrimentally affected as a result. And the Mother has become fearful of the Father, and has suffered, and continues to suffer, stress and anxiety in having to communicate with the Father in relation to the children; as a result of this fear, stress and anxiety, the Mother obtains psychological treatment and counselling. The Court accepts that the children sense the Mother’s stress and anxiety.
Accordingly, in light of the above discussions under this need to protect primary consideration, it is important in this case for the Court to craft parenting orders that will minimise the risk of increased conflict between the parties in relation to the children, minimise the risk of the children being exposed to conflict between the parties, minimise the risk of the parties coming into physical contact with each other, and minimise the risk of the Mother experiencing fear, stress and anxiety in relation to having to communicate with the Father in relation to the children. The Court is of the view that the ICL’s proposed orders will best minimise such risks.
The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - Additional Considerations

(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

The eldest child X told the family report writer that she feels emotionally closer to the Mother and likes residing with her during the week. She stated that she enjoys seeing the Father on the weekends, but made a point of telling the family report writer that she does not like changeovers at the police station and thought it would be better if all changeovers occurred at school. She stated that the Father videos the Mother outside the police station and that this made her feel nervous and sick.
The youngest child Y told the family report writer that she also does not like changeovers occurring at the police station because the parents are not nice to one another and the Father videos the proceedings. She thought it would be better if the Father picked them up after school. She also reported feeling emotionally closer to the Mother but at the same time expressed love for the Father.
The Court accepts the Mother’s evidence that the children can sense when she is stressed and anxious.
In the circumstances, the Court would give some weight to the children’s views.

(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

The children also appear to have a positive relationship with the Father’s partner, Ms JJ.

(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child

The Mother has taken such opportunities.
Post separation, the Father declined to spend time with the children on one occasion during the Christmas school holidays. He declined to care for the children when the Mother was admitted to hospital on 24 January 2020 because he did not accept the Mother’s statement to him that she had been admitted to hospital.
The Father declined to take up the Mother’s invitation to him to spend, during school term times, additional time with the children on the fortnightly Sunday night. The Father contended that his current employment, at least from about 19 February 2019 when his contract of employment was varied, practically did not enable him to take up the Mother’s invitation for the fortnightly Sunday night because of his work obligations commencing on the Monday morning. However, the Father agreed that he had made no formal application to his employer, the J Organisation of Suburb E, for some flexibility in his working hours so as to allow him to return the children to school or before school care on the (Mother’s proposed) fortnightly Monday morning, or indeed so as to allow him to pick up the children from school or after-school care on the fortnightly Friday afternoon. And the Father adduced no evidence that his employer would likely have rejected such an application.
Otherwise, the Father has usually sought to take up such opportunities.

(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child

The Mother has maintained the children satisfactorily in her care. The Father, when spending time with the children, has maintained them satisfactorily. The Father has paid, and continues to pay, only relatively modest formal child support, which has resulted in the Mother, as primary carer of the children, having to assume the preponderance of financial support for the children.

(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living

The children should enjoy spending time with the Father pursuant to the ICL’s proposed Orders. There should be no detrimental effect upon the children’s meaningful relationship with the Mother should the Court make the ICL’s proposed Orders.

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

The Father proposes to spend time with the children until 12 July 2021 in accordance with the Orders of 14 November 2018 as amended. The Father stated that he was proposing to resign from his current employment in about mid 2021 and work as a freelance professional.
The Court refers to its discussion above under s 60CC(3)(c) relating to the Father’s failure to make any formal request to his employer for some flexibility in his working hours so as to allow him to return the children to school or before school care on the (Mother’s proposed) fortnightly Monday morning, or indeed so as to allow him to pick up the children from school or after-school care on the fortnightly Friday afternoon. Again, the Father adduced no evidence that his employer would likely have rejected such an application.
The ICL proposes, supported by the Mother, that the children now begin to spend, during school term times, time with the Father, inter alia, each alternate weekend from after school on Friday until before school on Monday, with the Father to collect the children from school at 3 PM or otherwise Pre-School I at Suburb A. The Father has not demonstrated, on the evidence before the Court, that practically he is unable to comply with such Orders as proposed by the ICL.
The Court refers to its discussions above under the need to protect primary consideration. It will be in the best interests of the children to now spend time and communicate with the Father as proposed by the ICL, and with changeovers for such proposed time to occur as proposed by the ICL; again, it is important in this case to now minimise the risk of the children being exposed to conflict between the parties, and minimise the risk of the Mother experiencing increased stress and anxiety.

(f)The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs

Both parties have denigrated the other parent in the presence of the children.
The parties’ historical and continued disputation has impacted negatively upon the children.
Otherwise, the parties have such capacities and usually provide for such needs of the children.

(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant

The children have developed and are developing well, although the Court would observe that the children are attending upon a psychologist for assistance with behavioural difficulties.

(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right

Not applicable.

(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents

The Court refers to its discussions above under the primary and additional considerations of s 60CC.

(j) Any family violence involving the child or a member of the child's family

The Court refers to its discussions above under the meaningful relationship and the need to protect primary considerations.

(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter

It appears that there was a previous AVO in place against the Father for the protection of the Mother and which AVO was made on 23 July 2013 in the Suburb HH Local Court. The Court refers to its discussion above under the need to protect primary consideration relating to those proceedings.

(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

The Court is of the view that the ICL’s proposed Orders would be least likely to lead to the institution of further proceedings in relation to the children and the Court refers to its discussion above under the primary considerations. Should the Court make the Father’s proposed orders, inter alia, there is a significant risk that the parties will experience increased conflict.

m) Any other fact or circumstance that the Court thinks is relevant

There is a dispute between the parties in relation to the changeover location for the various school holiday periods and for the period up to 12 July 2021. The ICL and Mother propose changeover at school and/or the Pre-School I at Suburb A, whereas the Father proposes changeover at Suburb D Police Station up to 12 July 2021, and thereafter at the BB Club at Suburb DD.
The Father contends that changeover at Suburb DD is more equitable between the parties geographically, noting the Father resides at Suburb LL and the Mother resides in the Suburb B region. In the view of the Court, with the Mother remaining the primary carer of the children, and taking into account her full-time work obligations, her travel times to and from work, and her residence in the Suburb B area, practically it will be considerably more convenient to the Mother for the changeover to occur at the pre-school, and thereby it will minimise the Mother’s stress and anxiety in the lead up to and at changeover.
The Father asserts verbal disputation with the above pre-school, involving his wife and staff at the above pre-school in about November 2020, relating to collection and drop off of the children at the pre-school. The Father asserts that staff was, inter alia, rude to his then pregnant wife which was very stressful for her. The Father asserts that due to this disputation he and his wife have refused to deal with staff members of the pre-school, in particular the manager.
The Court is not persuaded that such above previous disputation should result in the pre-school not being appointed as a changeover location as proposed by the ICL. The ICL’s proposed Orders in relation to changeovers at the pre-school only relate to relatively few occasions over the course of the year in relation to school holidays; the ICL’s proposed Orders in this regard would not occur, for example, on a fortnightly basis. The ICL’s proposed orders relating to changeovers at the pre-school merely require the Father to either deliver or collect the children from the pre-school at the relevant time; provided he carries this out in a timely and courteous fashion there should be no significant disputation with the pre-school. The Court, in this context, also observes that the asserted text message communication from the manager of the pre-school to the Father’s wife was relatively polite (“Please communicate with me if you can as we are caught in the middle of this.”), in circumstances where the staff of the pre-school were contending that other children would arrive late at school.

The parties are in dispute about proposed orders for passports and travel. The Mother’s proposals are set out in her final proposed Minute of Order (see proposed Orders 10, 10.1-10.7). The Father presses his proposed Orders 11 to 19. The Mother, in her trial Affidavit, had merely referred to her proposals for travel at paragraphs 166 to 170 but in her later Case Outline filed 23 February 2021 and in her final proposed Minute of Order had proposed a different suite of Orders in relation to travel. The Father’s evidence regarding passports and travel appears at paragraphs 78 to 80 of his trial Affidavit.
In the view of the Court, and taking into account, as discussed below under the heading Parental Responsibility, that it will be in the best interests of the children that the Mother have sole parental responsibility for them, the Mother’s proposed travel related orders, as opposed to the Father’s proposed orders, will minimise the risk of conflict between the parties and will be in the best interests of the children, subject to these matters: the Court is of the view that the Mother’s proposed Order 10.3 should have the words added, “which consent shall not be unreasonably withheld”, and her proposed Orders relating to domestic and international travel should apply to both parties. The Court confirms that the children’s passports should be retained by the Mother unless they are travelling overseas with the Father.
Acting cautiously and conservatively, noting the Father’s proposed Order 15 relating to neither party travelling with the children to Country EE until the children are 18 years of age, noting paragraph 167 of the Mother’s trial Affidavit, and noting the significant distrust between the parties, and despite there being a paucity of flight risk evidence in relation to either party, it will be in the best interests of the children to make an Order that neither party shall travel with either child to or through a non-Hague Convention country without the authenticated written consent of the other parent.
The ICL’s proposed Order 7, as opposed to the Father’s proposed Order 7, relating to the Father having telephone or audio-visual communication with the children, will be an order in the best interests of the children; such communication between the children and the Father each Wednesday shall enable the Father to communicate with the children on days that he is not spending time with the children. The Court has a concern that the Father’s proposed order relating to telephone or audio-visual communication occurring on Mondays and Fridays of each week may well lead to disputation between the parties.
The Father proposes Order 20 relating to the parties being restrained from consuming alcohol, drugs, and illicit substances or banned prescription drugs in the presence of the children or be in any way affected by them whilst the children are in the person’s care and control. The Mother seeks no Order in this context.
The Court refers to the family report under the heading “Drug and Alcohol Issues”, paragraphs 31 to 33 inclusive. The Court is not persuaded that there is sufficient evidence before it in relation to restraining the parties from consuming banned prescription drugs, with the Court accepting the Mother’s evidence relating to not consuming Duromine. The Court is not persuaded that there is sufficient evidence before it in relation to restraining the parties from consuming alcohol or prescription drugs or being in any way affected by them whilst the children are in their care or control. It will be in the best interests of the children to make the following Order:
Neither parent is to consume illicit drugs in the presence of the children, nor shall they be in any way affected by illicit drugs whilst the children are in their respective care or control.

Parental responsibility

The Mother proposes that she have sole parental responsibility for the children, whereas the Father proposes an order for equal shared parental responsibility.
The presumption of equal shared parental responsibility is rebutted by reason of the Father having perpetrated family violence against the Mother, as discussed under the need to protect primary consideration.
It will not be in the best interests of the children for the parties to have equal shared parental responsibility.
It will be in the best interests of the children for the Mother to have sole parental responsibility in relation to them. In this context, the Court observes that the Mother has sought to maintain the children’s meaningful relationship with the Father; for example, she has previously invited the Father to agree to spending time with the children during school term times each fortnight from Friday after school to the following Monday morning.
The Court accepts the submissions of the Mother and ICL in this context of sole parental responsibility for the children residing with the Mother.
The Mother has been the children’s primary carer from birth to date. The Mother has been making competent major decisions for the children since separation. The parties have had serious communication difficulties between each other for some time now, and they continue to have such difficulties in this regard, and the Court refers to its discussions above under the primary considerations. There is a significant lack of trust between the parties, and again, the Father in oral evidence stated that he has not trusted the Mother since 2012. The Father stated that the parties’ relationship is presently toxic. The Court has serious doubts and concerns as to whether the parties, prospectively, will be able to reach agreement in a timely fashion in relation to major decisions to be made for the children without conflict.
The Father had submitted that the only looming major decision for the children was the choice of high school. However, these children are only aged 11 years and 9 years, and it is quite conceivable that there may well be other major decisions to be made for these children before they turn 18 years, such as psychological and/or psychiatric treatment for behavioural issues.
As the Court proposes to order that the Mother have sole parental responsibility for the children, it will not be necessary to consider equal time or substantial and significant time. In any event, such time between the children and the Father would not be in their best interests having regard to the Court’s discussions above under the primary considerations. The evidence of the family report writer is consistent with such view.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
(1)    That all previous parenting orders be discharged.
(2)    That the Mother have sole parental responsibility for the children X born in 2010 and Y born in 2011 ("the children") provided however that the Mother shall promptly inform the Father in writing of any decision proposed as for the children or either of them in relation to:
(a)     Medical or hospital treatment as to matters of a serious nature;
(b)    Proposed change of schools; and
(c)     Proposed changes of residence.
(3)    The children shall live with the Mother.
(4)    The children shall spend time with the Father as follows:
During School Terms:
Each alternate weekend from after school on Friday until before school on Monday or, if Monday is a public holiday, the Father's time shall be extended to before school on Tuesday, with the Father to collect the children from school at 3:00pm or otherwise Pre-School I at Q Street, Suburb A.
During School Holiday Periods:
(a)     The time to be spent with the Father pursuant to Order 4 shall be suspended during school holiday periods and shall recommence on the first weekend after each school holiday period;
(b)    During the Autumn, Winter and Spring school holiday periods from after school on the last day that pupils are required to attend school until 9:00am on the following Friday with the Father to collect the children at the commencement of the time and deliver the children to the Pre-School I at Q Street, Suburb A at the conclusion of the time.
(c)     During the Christmas school holiday period from after school on the last day that pupils are required to attend school until 9:00am on 6 January each year with the Father to collect the children from school at 3:00pm or otherwise the Pre-School I at Q Street, Suburb A by 6:00pm at the commencement of the time and deliver the children to the Pre-School I at Q Street, Suburb A at the conclusion of the time.
(d)    During the Christmas school period the children shall live with the Mother from 9:00am on 6 January with the Mother to collect the children from the Pre-School I at Q Street, Suburb A.
(e)     For the purposes of either collection from or return of the children to Pre-School I, the Father shall be responsible for and make all such necessary arrangements to facilitate these orders and be responsible for the costs of same.
(f) When electing to use Pre-School I the Father shall ensure that he complies with all their requirements.
(g)     Should Father's Day fall on a weekend that the children would normally be with the Mother then the children shall spend time with the Father from after school on Friday until the commencement of school on Monday on the Father's Day weekend and the Father's time with the children under Order 4 shall be suspended on the following weekend.
(h)    Should Mother's Day fall on a weekend that the children would normally be with the Father then the children shall spend time with the Mother from after school on Friday until the commencement of school on Monday on the Mother's Day weekend and the Mother's usual time pursuant to Order 4 with the children under these Orders shall be suspended on the following weekend.
(i) In the event that the Father's time with the children falls on the Religion R Easter then the Father's time with the children shall be suspended at 3:00pm on Religion R Holy Thursday until 5:00pm on Religion R Easter Monday. The Mother shall inform the Father of the dates of Religion R Easter at least 4 weeks in advance and the Father shall spend time with the children the previous week from 3:00pm on Friday until 5:00pm on the following Monday.
(5)    During the school term the Father shall collect and deliver the children to and from their respective school or schools, or the Pre-School I at Q Street, Suburb A, provided however that in the event that the neither the school or Pre-School I is open on a particular day, the Father shall provide the Mother with not less than 48 hours' notice in writing, and on the particular day the children shall be collected by the Father at 9am and returned to the Mother at 6pm at Suburb B outside McDonalds.
(6)    When each of the children have commenced attending High Schools changeover shall occur at the children's high school or schools and if it is a non-school day then at Suburb B outside McDonalds with the Father collecting the children at 9am and returning the children at 6pm.
(7)    That the Father have telephone or audio visual communication (such as Skype/Zoom) with the child each Wednesday for up to 30 minutes between 7:00pm and 8:00pm with the Father to initiate the telephone call to a mobile number to be provided to the Father by the Mother within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone switched on and recharged at the appointed times, answering the telephone call promptly and encouraging the child to speak to the Father whilst affording the child privacy to do so.
(8)    The parents are to provide a mobile telephone in each household for communication with the children and shall provide the other parent with the mobile telephone number for that mobile telephone within 72 hours of the date of these orders. Each parent will be responsible and liable for all costs of maintaining service to the mobile telephone and the bills for that mobile telephone.
(9)    ORDER that each of the Father and Mother:
(a)     Notify the other parent as soon as possible and in any event within 24 hours of any serious injury or serious illness suffered by the child whilst the child is in the care of that parent.
(b)    Keep each other informed of his/her telephone number and notify the other not less than 7 days before changing that party's telephone number, of such change.
(c)     The Mother and Father shall communicate with each other by email for both urgent and non-urgent matters.
(d)    That the Mother authorise each child's school which they may from time to time attend to provide each of the parents with such information concerning the child as may be requested by him/her from time to time including school reports and school photographs and for the purpose of such authorisation this order shall be sufficient authority.
(e)     Each parent shall keep the other informed of the child's extracurricular activities and schedules for and cost thereof and shall be at liberty to attend the child's extracurricular activities that allow for parental attendance and each shall use their best endeavours to facilitate the attendance of the children.
(f) Each parent shall be entitled to attend school functions and events that allow for parental attendance including but not limited to concerts, school assemblies, sports days, parent and teacher interviews, canteen duties and social functions.
(g)     That neither parent shall denigrate the other parent or the other parent's family or associates to either child in the presence of either child nor allow any third party to denigrate such persons to the child or in the presence or hearing of the child.
(h)    Neither parent shall discuss with the child these proceedings or a change to these orders or permit any other person to do so except as may be necessary pursuant to an order of the Court.
(i) That neither parent shall use physical means to discipline the children or permit any other person to do so.
(j) That either party be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders.
(10) Each party be and is hereby restrained from taking photos and/or videos of the change overs and/or return of the children or permitting any third party so to do.
(11) Neither parent is to consume illicit drugs in the presence of the children, nor shall they be in any way affected by illicit drugs whilst the children are in their respective care or control.
(12) The Mother shall be solely authorised to do all acts and things and sign all documents necessary to enable each child to have an Australian Passport.
(13) That in the event that either party wishes to take the children on a holiday within Australia then that party shall notify the other party no less than 14 days prior to the departure date of such proposed trip and shall provide to the other parent at that time particulars of the trip including the proposed itinerary, the address of where the child will be staying and the proposed period of such trip.
(14) The parties shall not unreasonably withhold consent for a trip within Australia.
(15) That in the event that either party wishes to take the children on a holiday out of the Commonwealth of Australia then that party must obtain the other party’s written consent to travel outside the Commonwealth of Australia at least 28 days before the trip.
(16) That neither party shall travel with either child to or through a non-Hague Convention country without the authenticated written consent of the other parent.
(17) If either party intends taking the children out of the Commonwealth of Australia with the written consent of the other parent that party is to advise the other parent in writing not less than 90 days prior to the planned departure date and is to provide the other parent with a full itinerary including documentary evidence of return airfares, proof of any inoculations recommended by the child’s GP and contact details including details of all accommodation and telephone numbers at which the children are to stay whilst overseas.
(18) That the Mother shall retain the children’s passports at all times except when the Father is travelling overseas with the children.
(19) The Mother shall provide the children’s passports to the Father within 14 days before any travel with the Father overseas and the Father shall return the children’s passports to the Mother within 14 days of his return to Australia.

I certify that the preceding two hundred and twenty five (225) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Associate:

Date: 25 March 2021

[2021] FCCA 534

25 March 2021

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Jurisdiction

Procedural Fairness

Remedies

Standing