OLAF & MILNE

[2020] FamCA 829

FAMILY COURT OF AUSTRALIA

OLAF & MILNE [2020] FamCA 829

FAMILY LAW – CHILDREN – where the father seeks equal shared parental responsibility for both children and the mother seeks sole parental responsibility – where the mother seeks to reduce the children’s unsupervised time with the father, including supervised for a period – where the eldest child has expressed a wish not to spend time with the father which view has been supported by the mother – where the Court has no confidence that any prescribed order for the eldest child to spend time with the father will be sustained – where the Court finds the mother has not genuinely supported the children’s relationship with the father – where the Court finds both children are at a level of mostly emotional harm in the care of each parent –no prescribed orders for time made for the eldest child – orders made for the youngest child to spend alternate weekend time with the father – order made for equal shared parental responsibility

Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA

Goode & Goode (2006) FLC 93-286
Vallans & Vallans (2019) 60 Fam LR 193

APPLICANT: Mr Olaf

RESPONDENT: Ms Milne

FILE NUMBER: BRC 5861 of 2011

DATE DELIVERED: 2 October 2020

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Baumann J

HEARING DATE: 18, 19, 20 & 21 February and 26 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr R Haddrick

SOLICITOR FOR THE APPLICANT: Sambanis Family Law

COUNSEL FOR THE RESPONDENT: Ms Y Chekirova

SOLICITOR FOR THE RESPONDENT: A P Hodgson & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr B Dodd

INDEPENDENT CHILDREN’S LAWYER: Ms C Bint
C M Bint Family Lawyers

Orders

1. That the children, X born … 2006 and Y born … 2009 (collectively “the children”) live with the mother.

2. That subject to these Orders, the parents have equal shared parental responsibility for the major long-term parenting issues of the children.

3. That X spend time and communicate with the father in accordance with her wishes, and if she expresses a desire to do so to the mother, the mother shall facilitate reasonable time.

4. That Y spend time with and communicate with the father as agreed between the parents but failing agreement then as follows:

   (a)Each alternate weekend during the school term from the conclusion of school on Thursday to the commencement of school on Monday;

   (b)At any other reasonable time that Y requests to spend time with the father including additional weekend time; and

   (c)By telephone once per week at a time to be specified.

5. That Y shall spend time with the parents during school holidays as follows:

   (a)Unless otherwise agreed between the parents in writing, for one half of each gazetted school holiday period as follows:

   (i)With the father for the first half of the holiday periods commencing in even numbered years and the second half in odd numbered years, with such period to include Christmas Day in even numbered years; and

   (ii)With the mother for the first half of the school holiday periods commencing in odd numbered years and the second half in even numbered years with such period to include Christmas Day in odd numbered years.

6. That where changeovers do not occur from school then the parents exchange the children at Suburb H McDonalds.

7. That Y shall spend time with the father on special occasions as follows:

   (a)On the weekend which includes Father’s Day from the conclusion of school on Friday to the commencement of school on Monday, in the event that he is not otherwise living with the father on that weekend.

8. That Y shall spend time with the mother on special occasions as follows:

   (a)On the weekend which includes Mother’s Day from the conclusion of school on Friday to the commencement  of school on Monday, in the event that the children are not otherwise living with the father on that weekend.

9. That for the purpose of organising the care arrangements for Y during school holiday periods:

   (a)school holiday periods are calculated as commencing from the conclusion of school on the final day of each school term and concluding on the first morning of the next school term;

   (b)the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the person who has the care of Y in the first half of the school holiday period will retain Y for the one (1) additional night; and

   (c)the changeover times are to occur during school holidays at 12.00 noon on the day for changeover pursuant to these Orders.

10. That Y’s weekend time with the father pursuant to Order 4(a) herein recommence on the first week of each school term.

11. That both parents be prohibited from the use of any physical discipline to manage the children’s behaviours.

12. That each parent provide to the other an email address at which they can be contacted and forthwith advise the other of any change to that email address.

13. That unless otherwise agreed by the parents in writing, Y complete his primary school education at J State School and both children complete their high school education at K State High School.

14. That this Order is an authority for both parents to obtain at their expense information and copies of documents relating to the children’s education, including school reports, photographs and newsletters directly from the school.

15. That except in an emergency situation, each parent facilitate the children’s medical care at The L Medical and Dental Centre.

16. That if either child requires any medical or allied health treatment at any health facility or by any health care provider other than The L Medical and Dental Centre, then they are to forthwith advise the other parent of the nature of the medical treatment and the name and address of the health care provider.

17. That this Order is an authority for each parent to obtain at their expense information and copies of documents relating to the children’s health care directly from any health care provider.

18. That both parents are restrained and an injunction is granted retraining each of them from denigrating each other and the children’s extended family and siblings, in the presence or hearing of the children.

19. That each parent attends and complete a parenting course focused on adolescents.

20. That the father continue to engage in the Families Together Program and for a focus of this work to include establishing meaningful family engagement during the times the children are with their father as is recommended by that service.

21. That the father continue his therapeutic engagement with his psychologist with a focus on addressing his reactive behaviours as is recommended by that treating health provider.

22. That the mother forthwith obtain a referral to attend upon an appropriately qualified clinical psychologist to assist her develop a skill set to quarantine the children from adult content related to the parental separation and ongoing dispute as is recommended by that treating health provider.

23. That at times when the children are in his care, the father not engage in or expose the children to any adult or pornographic material or conduct.

24. That the parents take all necessary steps and complete all documentation necessary to have the children’s passports renewed and that the passports be held in the mother’s possession subject to the following order.

25. That each parent be permitted to take the children out of the Commonwealth of Australia for holidays contingent upon them:

    (a)providing to the other six weeks’ notice of the intended travel and providing the other with a travel itinerary, a photocopy of the children’s return airfares and appropriate medical insurance for the travel duration;

    (b)that upon the father complying with Order 25(a) hereof then the mother provide him with the children’s passports within fourteen (14) days; and

    (c)that the father return the children’s passports to the mother within fourteen (14) days of the children’s return into the Commonwealth of Australia.

26. That the children’s names be removed from the Airport Watch List.

27. That the Independent Children’s Lawyer be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Olaf & Milne has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5861 of 2011

Mr Olaf

Applicant

And

Ms Milne

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is a classic example of the difficulties for children where their parents separated over nine years ago after an ambivalent relationship and where chronic parental conflict has existed for nearly all that time.

Contextual history

1. Statements of fact which appear hereafter shall be construed as findings of fact.  Although Counsel for the Independent Children’s Lawyer (“ICL”) Mr Dodd; Counsel for the father Mr Haddrick or Counsel for the mother Ms Chekirova made no express submissions as to credit, I find that the conflict that has engulfed these parties for years did colour some of their past perceptions.  It made it extremely difficult for either party to concede any remotely positive attribute in the character or behaviour of the other parent or their relationship which spanned a mere five years.  As the succinct history to follow demonstrates, since separation they have moved from an unhappy intact relationship to a negative litigious interaction from which sadly the children have little escape.

2. The Court regrets the delay in providing these Reasons which, in the absence of any party seeking to re-open, I infer means that nothing has changed since the last submissions were received in July 2019.  As I will identify, sometimes a situation has reached such a stage that the ability of the Court to make optimal orders likely to be enforceable and beneficial are diminished by the parents’ likely future conduct.

3. The father is nearly 58 years of age and the mother will turn 48 years this year.  When they met in early 2006, the mother was in the midst of family law proceedings involving her eldest daughter Ms M who was about 10 years old at the time.  The father also had two children from an earlier relationship – Mr N (born 1986) and Mr O (born 1990) who lived primarily with their mother.

4. It seems apparent that the parties’ intimacy began immediately, reflected by the fact that X was born on … 2006, just three months after the parties decided to marry on … 2006.  Frankly, it is apparent the parties were not well suited and there is little doubt that the proceedings between the mother and her former partner Mr P were protracted and difficult as well.

5. A tension arose early in these parents’ relationship when it seems, on an interim basis, the mother was ordered to return to New South Wales with the child M although ultimately, by Orders made in those proceedings by Le Poer Trench J on 3 October 2007, the mother was permitted to relocate to Queensland where cohabitation with Mr Olaf was resumed at his home in Suburb Q, in around January 2008.  Whilst the Reasons for Judgment of Le Poer Trench J raised some serious concerns about how the mother presented to him in that case, most telling were his Honour’s remarks at paragraph 278 which says inter alia:

   “278.  I have no confidence that the mother will be able to maintain her relationship with her husband for any length of time.  I also conclude it is highly probable that if the relationship was to break up the mother would be ‘at war’ with Mr Olaf.  She would be expected to move residence a long way from Mr Olaf and make it difficult for him to have a relationship with his daughter.”

6. Rather prophetically, this relationship seriously deteriorated by mid-2008 when the mother was then pregnant with the parents’ son Y, who was born on … 2009.  In some ways, the father’s engagement as a “fly in-fly out” worker in Western Australia (two weeks on/six days off) created enough absences to allow the unhappy parental relationship to survive until May 2011, when final separation occurred.  X was four and a half years and Y was 18 months at the time of separation, and the mother chose to unilaterally relocate causing the father to commence proceedings in July 2011, resulting in Federal Magistrate Jarrett (as he then was) ordering the mother to return to Brisbane with the children, and on an interim basis the children were ordered to live with the mother, with the father to spend regular time (unsupervised) including overnight.

7. By 29 March 2012, the parties had reached final orders by consent as follows:

   “1.The children X born … 2006 and Y born … 2009 live with the mother.

   2.The children spend time with the father at all times as may be agreed between the parties and failing agreement as follows:

   A.From the date of these orders;

   i.          With X;

   a.From Tuesday after school to after school Wednesday;

   b.From 9.00am Saturday to 5.00pm Saturday.

   ii.         With Y;

   a.From Tuesday after school finishes to 3.00pm Wednesday, commencing on the first Tuesday after the Easter long weekend 2012, the 17th April 2012;

   b.From 9.00am Saturday to 5.00pm Saturday commencing.

   B.Commencing in the first of Term 3 of the school year 2012;

   i.With X;

   a.   From Tuesday after school to after school Wednesday;

   b.   From 9.00am Saturday to 4.00pm Sunday each alternate weekend;

   c.   From 9.00am Saturday to 5.00pm Saturday in the other weekend;

   iii.       With Y;

   a.   From Tuesday before school to after school Wednesday with the father to collect and return Y at X’s school;

   b.   From 9.00am Saturday to 5.00pm Sunday in the alternate weekend;

   c.   From 9.00am Saturday to 5.00pm Saturday in the other.

   C.Commencing in the first week of Term 4 of the school year 2012;

   i.With X;

   a.   From Tuesday after school to after school Wednesday each week;

   b.   Each alternate weekend from after school Friday to 5.00pm Sunday;

   ii.With Y;

   a.   From Tuesday after school to after school Wednesday, with the father to collect and return Y to X’s school;

   b.   Each alternate weekend from after school Friday to 5.00pm Sunday, with the father to collect Y at X’s school.

   D.For school holiday periods commencing Easter 2013;

   i.For both children, one half of each of the school holiday periods for the Easter, June/July and September/October school holiday periods, being the first half in 2013 and each odd year thereafter and the second half in 2014 and each even year thereafter;

   ii.For both children in the Christmas/ New Year school holiday periods as follows;

   a.   In 2013/2014 –on a week about arrangement;

   b.   Each year thereafter being the first half in 2015 and each odd year thereafter and the second half in 2014 and each even year thereafter.

   3.The children spend time with the father over the Easter long weekend in 2012.

   A.    With X;

   i.From 9.00am Good Friday to 9.00am Easter Sunday.

   B.     With Y;

   i.From 9.00am Good Friday to 5.00pm Good Friday and from 9.00am Easter Saturday to 9.00am Easter Sunday with the father to send a text to the mother via the mobile number of the maternal grandmother.

   4.The parents shall be responsible for the day to day care, welfare and development of the children when the children are in that parents’ immediate care.

   5.The parties have equal shared parental responsibility for the major long term issues of the children.

   6.The parties are to consult with each other about decisions to be made in the exercise of their shared parental responsibility, as follows:

   a.   They shall inform the other parent about the decision to be made;

   b.   They shall consult with each other on terms that they agree; and

   c.   They shall make a genuine effort to come to a joint decision.

   7.The mother shall have the children on Mother’s Day from 9.00am to 5.00pm.

   8.The father shall have the children on Father’s Day from 9.00am to 5.00pm

   9.Changeover is to occur where possible at X’s school and otherwise being when changeover does not occur on a school day, at the Suburb U Police Station.

   10.The parties are to communicate with each other by email in relation to any issues concerning the children, except in the event of any emergency when the parties are to send a text message to the other, with the father to [t]ext via the mobile of the maternal grandmother.

   11.Neither party is to come within 100m of enter/remain in the premises where either party reside or work except for the purpose of complying with these orders.

   12.Each party is not to follow or approach the other to within 20m, except for the purpose of complying with these orders.

   13.Each party will keep the other informed about the general health, welfare, and education of the children and each party is hereby authorised to communicate with the children’s school, child care and medical practitioners to obtain information concerning the children.

   14,Each party is to keep the other informed of their contact details, including mobile telephone numbers and to ensure this information is updated with in seven (7) of any change.

   15.Each party is to refrain from denigrating the other to or in the presence or within the hearing of the children and further each party is to remove the children form the presence or within the hearing of any person who denigrate then other party.

   16.Neither party is to provide to any other person copies of any material filed in these proceedings except for the purpose of obtaining legal advice or to the children’s school or day care providers or a state welfare authority should they be requested by those entities to do so.

   17.Each party is to complete a post separation program within the next 12 months and each party is to provide to the other a copy of any certificate for completion within fourteen (14) days of completing the program.

   18.Neither party is to consume alcohol to excess nor to consume or be under the influence of any illegal drugs whilst the children are in this respective care.

   19.Each party will take steps to remove the children form the presence of any other person who is under the influence of illegal drugs or is intoxicated whilst the children are with either party.

   20.In the event that the parties are unable to resolve any issues arising from the terms of these orders or otherwise in mediation to the arrangements for the children generally, they are in the first instance, to refer their dispute to Ms R at S Group or to another mediator nominated by S Group for mediation.

   21.The Independent Children’s Lawyer be discharged.”

8. These Orders almost immediately broke down causing the father again to commence proceedings in the Federal Circuit Court of Australia where further “final” Orders permitting the children to travel to South Australia (where the father had lived many years previously) with the father were made, as well as a PACE Alert.

9. It is not necessary at this stage to detail the significant interactions between the Department of Communities, Child Safety and Disability Services (as it was then called) and this family since at least early 2012.  The report writer Ms B did so extensively in her family report dated 8 February 2019 (comprising over 100 paragraphs in annexure “B-02”.  It speaks for itself.

1. Despite incidents where the father “held over” the children and where the mother was successful in obtaining a Protection Order against the father for 12 months in January 2014, the final Orders were broadly complied with until a breakdown occurred, causing the father to commence the current proceedings in the Federal Circuit Court of Australia in March 2016.  The reappointment of experienced ICL Ms Bint in this matter added significant value to the process, but even her endeavours were continually tested.

2. Suffice it to say, the history of this matter is best appreciated through the number of Court ordered events which followed, as now detailed.  Of course, it must be observed, that the chronic and entrenched conflict between the parents by 2016 has never really improved and both children have been exposed to many comments and actions of their parents that have caused damage to, at least, their emotional well-being – probably with lasting effect on them.

3. On 9 May 2016, Judge Jarrett dismissed all interim applications; effectively meaning that the Orders of 29 March 2012 remained in full force and effect.  On 18 August 2016, the Court was moved to order a slight variation to the existing final Orders to incorporate an order for school holidays to be shared equally.

4. On 13 October 2016, Ms B conducted interviews and prepared her report dated 24 October 2016.  She has prepared a report in 2011.  Arising from the report, further overview of the extensive child protection involvement was indicated, resulting in an addendum to the report in January 2017.  The matter was transferred to the Family Court of Australia on 2 February 2017 and by May of 2017, the proceedings had been allocated to the trial pool.

5. Independent Consultant Psychiatrist Dr C, after a briefing by Ms Bint (the ICL) interviewed the mother on 24 November 2016 and the father on 25 November 2016, resulting in reports filed under cover of his Affidavit, by leave, on 26 April 2018 – although the parties had the reports soon after the interviews.  I deal with Dr C’s evidence later in these Reasons.

6. When the matter first came before me on 26 April 2018, the father was unrepresented.  He is a person who expressed things in simple and blunt terms.  He had many complaints to raise against the mother and I ordered that he file witness statements as soon as possible so that the extent of the dispute could be understood.  After he filed an amended Application on 28 May 2018, it appeared as if the dispute between the parties has significantly narrowed as the father was no longer seeking orders for residence.

7. On 1 June 2018, the Court identified the issues then in dispute as:

   a)parental responsibility;

   b)how the time during school holidays should be shared; and

   c)whether the Christmas school holidays should be shared equally in a week about arrangement.

8. The ICL was encouraged to seek to convene a Legal Aid conference.

9. Sadly, this event proved to be the “lull before the storm”, and by 3 July 2018 the ICL (utilising her liberty to apply) had informed the Court her view that the matter would take longer than the one day allocated in September 2018.  Thereafter, as a result of a significant conflict between the father and the children (referred to as the “X-Box incident”), culminating in s 93A interviews of both children on 18 July 2018, the proceedings quickly generated more dispute requiring:

   a)a trial listed for December 2018 to be vacated;

   b)an updated report of Ms B to be prepared.  She conducted interviews on 25 October 2018 resulting in a report dated 8 February 2019;

   c)the matter to be listed for hearing for four days commencing 18 February 2019 – which proceeded after which judgment was reserved; and

   d)as a result of a successful Application by the mother to re-open the proceedings, the Court took further evidence on 26 July 2019 where both parents were cross-examined briefly.

10. As the competing proposals set out next reveal, by the time of the submissions on 26 July 2019, the ICL did not depart from the earlier orders sought, describing the new evidence as “more of the same”; the father adopts the same primary position whilst the mother rejected any suggestion that Y should live with the father and contended the Court should consider reducing Y’s time with the father.  The mother says the extent of X’s estrangement now with the father compelled the Court to make no prescribed order that she spend time with the father.

legislative pathway

1. In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.

2. To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.

3. In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.

4. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s 61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s 65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Competing proposals

1. The competing proposals, subject to the earlier comments, are identified as follows:

   a)The ICL in Exhibit 8 – being Appendix One to these Reasons;

   b)The father in Exhibit 3 – being Appendix Two to these Reasons; and

   c)The mother in Exhibit 4 – being Appendix Three to these Reasons.

Risks arising from each parent

1. The father’s case is based on a view that the mother is exposing the children to psychological and emotional harm.  The father says these concerns were raised in his Notice of Risk when he commenced proceedings in the Federal Circuit Court of Australia in 2016.

2. The mother identified her primary concerns about the father as:

   a)verbal abuse of the children;

   b)excessive physical disciplining of the children;

   c)accessing pornography whilst the children are in his care; and

   d)his inability to manage the children’s care generally.

3. As the summary of subpoenaed records undertaken by the family report writer reveals, both the Police and the Department have been asked to investigate and intervene on numerous occasions since separation – with no charges or substantiated harm eventuating.  The mother expressed disappointment in the failure of authorities to act, a view shared by the maternal grandmother who admitted to also raising concerns over the years.

4. It is not necessary to analyse multiple past events as, in my assessment, the conduct of the parents really has changed little over the period since separation.  Their decision to have two children and bring them into a dysfunctional and ambivalent relationship was ill-considered.

5. That the final Orders made in March 2012 survived for four years, with limited need for Court intervention, is at one level quite surprising considering the entrenched conflict and the absence of any genuine trust or respect between the mother and the father.

6. It is my view that the individual risks the parents present to their children into the future have always been there, but are likely now to have surfaced more dramatically because of the fact that as the children grew older (particularly X) the acute differences in these parents and the ever present conflict provided the opportunity for an empowered childlike X to cause further disharmony.  However it would not be fair to “blame” immature actions of a child seeking to be heard in the drone of parental conflict, as it is abundantly clear on all the evidence that the parents are responsible for the environment these children have to navigate.  I will now make some findings about each parent which are made within the context of the issues between them already identified.

Father

1. I am satisfied that at times the father has denigrated the mother by descriptions of her like she is a “lazy bitch and has no friends” or “a big fat bitch liar” as the children reported to the mother.  At the school sports day in June 2016, he said words to the effect, in the presence of the child Y, “…get the fuck away from my child.  This is my fucking time and you aren’t to be here.”  However although the father is blunt with his speech, I do not find he degrades the child repeatedly.  He has, as I explain, a limited armoury of strategies to manage their behaviour and often swears, but not aggressively towards them all the time.  During the X-Box incident and more recently he has become angry with X who has challenged his authority.  The evidence about the mobile phone (that arose from evidence during the trial and caused an exchange of words between the father and X on 22 February 2019), I find more likely than not included allegations by the father to X that she had stolen Y’s phone and was “a thief”.

2. The father acknowledges he watches adult pornography.  There is no suggestion he watches child pornography.  I am satisfied that on at least a couple of occasions he has done so in his office – apparently naked.  There is no suggestion that the children have been exposed to him masturbating or otherwise being stimulated.  The father said, and I accept, on one occasion Y may have seen him naked at around 4.30am in his office.  The father said he did not expect Y to be up so early.  The mother fairly conceded that she does not allege the father has exposed the children to pornography deliberately, including access to an R rated movie.

3. Rather it is an example of the father’s lack of boundaries and awareness.  I am not satisfied he has exposed himself or “poked out his penis” to them.  It does appear that Y uncovered a “sex toy” or implement hidden in the father’s bedside table.  I accept the mother was alarmed when he described the toy to her – however I am satisfied the child, as children do, was looking in places not expected to be accessible to him and no deliberate actions by the father exposing them to the “dildo” occurred.

4. At times the father has “smacked” the children on the bottom or grabbed them to restrain their behaviour by the arm or wrist – particularly X.  I do not find he regularly physically abuses the children.  Rather he has not developed at all times an ability to control his emotions and frustrations when his authority and requests are challenged and ignored.  It was concerning that he felt suggested evidence advice from the Department (by some unspecified person at some unspecified time in the past) that it was alright to use physical discipline provided it was in the area above the knees and below the waist, was relied upon by the father.  He knows not to do so now.

5. The example, most recent and telling, was the X-Box incident in June 2018 which are the subject of Police s 93A interviews (which were played in Court and marked Exhibits 1 and 2) and were the subject of disclosures to the mother.  In short, I am satisfied that when X refused to have a bath (or even brush her teeth on that particular night), the father threatened to take her X-Box outside and destroy it.  He graphically got an axe which he said he would use.  The children’s “love” of their X-Boxes is entirely disproportionate to the benefit they obtain from them, but to the children their use at the father’s home has been a constant and important activity for them.  During the incident I find that the father did smack X on the bottom. She became very distressed.  He left her outside for a time.  On any appraisal of the incident, the father handled it badly, and whilst he has used restricting X-Box activity as a “consequence” for poor behaviour at times, I find his behaviour during this incident was likely to have scared the children.

6. It did settle down, and in fact shortly after the incident, after returning to the their mother’s home, the mother encouraged the children to spend half of the June 2018 school holidays with the father, which they did, and no significant incident arose again during that holiday.

7. Whilst issues of house cleanliness, the existence of mice and outside pythons are raised, they are not important issues – noting the father lives on a six acre rural property and he is unlikely to be as efficient and tidy in the home as I expect the mother to be.

8. Overall, I take the view that as the children have developed a need for independence of thought and deed, the father, whilst always trying to do his best, at times does not handle matters as well as he could.  However I do not doubt, and the mother was prepared to concede, the father deeply loves the children and they love him.  The observations and opinions of Ms B confirmed that to be the case (noting that her last interviews in October 2018 occurred after the X-Box incident).  However, as I now consider when dealing with the mother, she has at times been opportunistic and has made matters worse not better with her negative attitude towards the father.

9. Finally on this topic, the assessment of the father by Dr C concluded with the opinion that the father had no symptomatology “sufficient to warrant a major axis I psychiatric diagnosis” and did not require any formal psychiatric or psychological care.  The father has engaged in counselling from time to time which shows some insight.

Mother

1. Dr C opined that “despite no evidence of any major axis I psychiatric disturbance it does appear that there is characterological traits in Ms Milne which may be contributing to the current levels of stress, lack of co-operation and continuing accusations against Mr Olaf”.  I accept this opinion and record that Dr C was not required for cross-examination.

2. The mother has initiated multiple complaints about the father to the Department and Police over the years.  The child X had been interviewed some 10 times.  The mother’s disappointment with official lack of action by authorities resulted in a view expressed by authorities (see Exhibit 6) that the children “are highly vulnerable to experiencing emotional harm that is cumulative in nature” and that the Department “is worried in relation to the entrenched parental conflict around custody issues” and that as a result of the parents’ “story telling”, the history suggests “the children may not know what is real and what is not real in relation to harm”.

3. I am satisfied on all the evidence that the mother has, more than the father who at times is also to be criticised in this respect, exposed the children to the parental conflict by her parental style of talking to them in a negative manner about the father and discussing the Court proceedings with them.  The most poignant example was the discussion she had with all three children in a form of the “family meeting” as soon as the trial ended in February 2019.  There were examples of X increasingly becoming the advocate for the mother and adopting the mother’s views of the father whilst until recently, seemingly happy to spend time with the father for regular visits under the 2012 Orders.

4. I find that, perhaps not deliberately, the mother has empowered the child X to test the father’s authority and his at times, compromised parenting style, well aware that the mother will support her actions and “believe” everything she says.  This does expose the child to emotional harm, although now that X is nearly 14 years old and, I infer, has not spent time with the father for over 18 months, the intense loyalty to the mother is likely to be entrenched.

5. The mother has not genuinely supported the children’s relationship with the father however compliance with the Orders continued generally well.  This was a strange feature of this case.

6. The father conceded the mother is a “good mother” which I took to be an acknowledgement of her day-to-day physical care.  He says, and I accept without doubt, the mother deeply loves the children.  The observations of Ms B and her opinion that both parents (at that time) had a deep bound with the children should be accepted.

7. In my view, the tensions in the parental relationship between these clearly mismatched parents, has acutely surfaced as X has increasingly exerted her views.  The father has found it difficult to cope at times, whilst the mother has supported the child in a way which may not result in long term emotional balance and a sense of security for the child.

8. I will rely upon, but not necessarily repeat these findings when I discuss the competing proposals within the matrix of the relevant primary and additional considerations.

Family report

1. Experienced report writer Ms B had effectively conducted a longitudinal assessment of this family, through family reports prepared in December 2011, October 2016 and January 2017, which preceded her final updated report dated 8 February 2019.  The very extensive reports deal with many past events however, as earlier noted, little is served in further analysing some of those past issues now.

2. Of most value to the Court now are the following aspects recorded in Ms B’s final family report, namely:

   a)the interview with X at paragraphs 127 to 152 elicited the following information:

   i)her version of the X-Box incident is set out at paragraph 131 and she said the incident “made her feel scared that one day her father will snap and grab her X-Box and break it”.  It is clear this has become a significant issue for X as she cannot “get the incident out of her head”;

   ii)X finds it difficult to talk to her father and respect him;

   iii)X maintained that she “hates” her father as he is “inappropriate”, referring to her observation of the father speaking to women online and although she has not seem him naked in his office, she believes it is “disgusting”;

   iv)X’s solution to make her feel better about spending time with her father was for him to change – “stop being rude, stop talking to woman on the internet and needs to get a life” (paragraph 144); and

   v)She expressed a wish that “she would like to live with her mother and see her father when she chooses…maybe spend one night every 2 weeks with her father”.

   b)The interview with Y at paragraphs 153 to 170 elicited the following information:

   i)He gave information about the X-Box incident at paragraph 156(b) including that he heard the father hit X and that “he felt bad for X and started to cry”.

   ii)He described his father “as rude…and constantly yells at them”; “sometimes loves his father but does not think his father loves him as he threatened them and yells at them”

   iii)Y, at paragraph 163, refers to his awareness of the father wanting week about, whilst the mother has told him “that she does not want them to spend any time with their father or will agree with X that they spend one night every fortnight with their father”.  However in his view “the situation should stay as it is as he thinks it is good to spend time with his father.”

   c)The observations made by Ms B of interactions between the children and the mother were “loving” and the children “responded to her comfortably, warmly and with familiarity indicative of the close primary attachment they have with their mother”;

   d)The observations made by Ms B of interactions between the children and the father “were indicative of the loving bond they share” and at the end of the session “the children exchanged affectionate hugs with their father.  X initiated the embrace.  Y kissed his father on his mouth and said goodbye”;

   e)In her evaluation, the report writer opines, inter alia, that:

   i)both parents have acted inappropriately in the presence of their children in the past and have failed in their responsibility to separate their adult issues and have not placed their children’s needs above their own.  I agree with this statement;

   ii)since the previous family report the children’s relationship with their father has deteriorated significantly.  They “do not spend any quality time with their father while in his care.  They did not report any family or emotional connectedness to their father…and remain in their rooms for meals and spend the totality of the leisure time on the X-Box”;

   iii)the opinion expressed at paragraph 184, that both parents are contributing to the ongoing dispute and that “unless dramatic changes are made in the behaviour and attitude of the parents the children’s emotional wellbeing will be compromised”, is accepted by the Court, as is the view expressed that neither parent “appears to be committed to developing insight”.  Further I agree, as earlier recorded in these Reasons, that the children “are aware of the Court processes and have discussed with their mother their views without her advocating any support for them sustaining a relationship with their father” (paragraph 186);

   iv)Over the years the children’s loyalties to their parents have swung like a pendulum and both parents have exhibited “poor impulse control” at times.

1. The recommendations set out at paragraph 201 included that:

   a)the children live with the mother;

   b)the mother have sole parental responsibility;

   c)the children spend five nights a fortnight with the father (in two blocks) and half of each school holiday;

   d)physical discipline be prohibited;

   e)that the parents attend a parenting course “focused on adolescents”; and

   f)the parents refrain from denigrating each other, and the children’s extended family and siblings, in the presence of the children.

2. By the time of the trial, the cross-examination of the report writer was brief and her further evidence included that:

   a)she does not support the children’s time with the father being supervised, as the mother now proposes;

   b)her recommendation for two blocks arose from the mother’s difficulty to support the children’s relationship with the father, however she agreed it would be easier to have one block;

   c)she felt the children were probably the “most honest” in the last interview; and

   d)the children have positive feelings towards both parents, but the children would struggle and might be overwhelmed with a block of five nights with the father, as might the father.  However extended time on holidays is different, and the children would cope.

3. These interviews by Ms B preceded the children spending a block of time with the father over the Christmas holidays 2018/2019 – and on the evidence, despite what I find is their need to respond to their mother’s need to hear complaints about the father from them, those holidays went well.

4. The evidence of Ms B preceded the events of February 2019 after the trial and the subsequent disengagement between X and her father from May 2019.  The wishes expressed by X not to spend time with the father have strengthened – and, of course, she is supported by the mother in that view.  Clearly a significant issue which arises in the future if differential care arrangements exist, is that Y, in the report writer’s opinion “is very influenced by his sister”.

5. I have given significant weight to the opinions of the report writer, however with the testing of the evidence and the new evidence received in July 2019, the Court cannot wholly support her recommendations for reasons that are expressed later in these Reasons.

Primary considerations

1. I find it is in the best interests of both X and Y to have a meaningful relationship with both of their parents.  To the extent the mother’s preferred proposal is that the children’s time with the father should be both limited and supervised, I do not accept the mother’s evidence that their relationship with their father could be preserved.

2. There is however, in this case, the lack of acknowledgement by the mother of any benefit to the children of having a continuing relationship with the father.  Although the mother gives evidence that she believes it is important for them, her past conduct and current proposal suggest otherwise.

3. The need to protect the children from risk (as described in s 60CC(2)(b)) must be given greater weight than the benefit to a child of having a meaningful relationship.  I rely upon my earlier findings, and again say the children are at a level of mostly emotional harm in the care of each parent – but for different reasons.  Little is served in trying to “rate” which is the “more risky” parent.  The current estrangement of X from her father arises from the behaviour of both parents.  Her alignment now, as she approaches her fourteenth birthday, is a “coping mechanism” in my view – the course of least resistance at a time when her peer connection, social life and school are probably more important than either of her parents.  The dilemma that arises, if X does not spend time with her father, is whether this increases the risks to Y.  I do not assess it does –although he will become more of the “focus” for both parents as X develops a need for more independence, and the chronic parental conflict will be a challenge for him to cope with alone.

additional considerations

1. I accept that X in October 2018 expressed to Ms B a continuing desire to still spend some time with her father (either one night a fortnight or as she chooses), yet she spent half of the Christmas school holidays in 2018/2019 with her father with little adverse effect or comment.  I do not, and cannot ignore, the strong views the events post the hearing in February 2019 have entrenched in X – causing a need for at least hospital intervention because of threats of self-harm.  She tells her mother and the counsellor Ms T that she does not want to spend time with her father.  The father says he will respect her wishes.  I understand why he takes that view, but I am far from satisfied whether her wishes should be given determinative weight considering the context in which they are expressed.  It is however a matter that weighs heavily in my mind what are the consequences of not supporting her wishes as now are constantly expressed.

2. Y has no capacity to please both of his parents and his sister – and he knows that is the case.  At his age, although again in October 2018 he expressed to Ms B a wish to keep things as they were and enjoyed spending time with the father, the mother’s household and his sister are challenging his desire to spend time with his father.  When preparing this Judgment, I infer that Y continues to spend time with his father and so this would suggest he has found a way to navigate a course through the troubled waters created by his parents.

3. I accept the evidence of Ms B that the children’s strongest (primary) bond is with their mother.  It is regrettable that the observations conducted in October 2018, which reflected a warm and strong relationship between the father and each child, is likely to be different now between the father and X.  I do not ignore the importance of the sibling bond – however as X moves into a different developmental phase of her life, whilst the love hopefully remains, the sharing of sibling activities is likely to reduce.  This may mean, and it is my optimistic hope, that Y will understand his big sister is interested in different pursuits, leaving him with the opportunity with both his parents to nurture his relationship with them.  Although there are certainly some “rough” aspects around the father’s interest in pornography, he is a hard worker with a range of different skills to the mother that can offer some enrichment to the maleness of Y (and gives the father a chance to be a positive role model) and I, on balance, accept the father wishes to reveal that to his son because of his deep love for him.

4. The parents have, since 2012, been obliged to share parental responsibility because of the Orders then made (see Order 5) and there is little evidence that they have been unable to reach decisions on major issues during this period – despite the lack of effective communication.  As earlier recorded, for the period from 2012, the Orders have been generally complied with – until May 2019 insofar as X is concerned,

5. The mother says, and I accept, the father pays little or no child support whilst she has the majority of care.  Certainly the father has a modest income, yet failing to make any reasonable contribution to the children’s living expenses (when not living with him) by way of child support does him little credit and only fuel’s the mother’s lack of respect for him.

6. There are no real practical difficulties of expenses in the children spending time and communicating with either parent.

7. I rely upon earlier findings to establish that the parents both have the capacity to meet the physical needs of the children.  The mother says the father (who admits he is dyslexic) has less capacity to assist with homework.  As children progress to higher levels of education many parents struggle, however I am not satisfied the mother is superior necessarily in this respect – although she has more experience because, as the father said, she has always done it.  I accept the father has been more challenged in disciplining the children as they have aged.

8. Both parents deserve criticism, which I make, about their “attitude” to parenting.  The mother in particular by her failure to support the children’s relationship with their father and by involving the children more in the parental conflict of these proceedings.

9. Although there are no current family violence orders, there have been orders in the past.  The parents elect to keep away from each other – demonstrated by the school event – and in some way justified by the father’s abusive reaction at Y’s sports day.  Despite orders to the contrary, the changeovers are often conducted at the Suburb U Police Station – which is a terrible message to give to the children about the trust and respect each parent holds for the other.  These parents do not seem to understand that their failure to demonstrate some level of respect and trust is only likely to confuse the children when they demand it for themselves as a parent.

10. In my conclusions below, I deal with the likely effect of any changes in the children’s circumstances, however before leaving the narrative discussion of the additional considerations, it is important to refer to s 60CC(3)(l)- namely “whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings in relation to the child”.

11. I hold real concerns that we have sadly reached a stage where any prescribed order for X to spend time with the father is likely to be rejected by the child and unlikely to be supported by the mother.  X has already demonstrated her capacity to totally ignore the father’s guidance and authority, as he seeks (I accept with some limits) to exert it upon her.  When she knows that her mother will support her position, there is little the father could do with a prescribed order other than seek to enforce it.  Having expressed his preparedness to “respect” his daughter’s wishes it may be he would never enforce an order for time.  In that circumstance, and where he did not propose that X live with him, any order in respect of X in reality has little utility.

12. I think, with an eye to s 60CC(3)(m), it is proper to record that this difficult case created by these parents’ entrenched and hostile conduct will result in orders which are not optimal.  Too often parents leave the Court thinking a parent has won or lost; or even worse, a parent’s poor behaviour has been rewarded rather than punished.

13. It bears restatement that the best interests of the children is the paramount consideration and often, as in this case, some least worst options need to be accepted.

Parental responsibility

1. As noted, since 2012 the parties have operated under orders for equal shared parental responsibility – even with poor communication.  Most parents fortunate to have healthy children have few major long term issues to decide.  In this case, although schooling for Y is disputed, to date school issues for X have not required any Court intervention.

2. The father has, during the life of these children, had the opportunity to gain a perspective of what is best for his children, and the mother’s application for sole parental responsibility will be just another example of the father being excluded or marginalised – giving a message to the children that his opinion is not of value.

3. Considering the history and noting the ICL’s support for continuance of an order for equal shared parental responsibility, I am satisfied that it is in the best interests of the children to make such an order.  My decision in this regard is further based on the mother’s imprecise and strange application to be able to relocate an hour away – seemingly without a definite location and, I find, motivated by making it more difficult for the father to maintain his relationship with at least Y.  If the mother had an order for sole parental responsibility, it might only encourage her to relocate without discussing such move with the father.  I cannot support that power being vested in the mother.

4. In short, there is no principled reason for the presumption not to apply, especially where the communication has remained poor throughout the post separation relationship (see Vallans & Vallans (2019) 60 Fam LR 193).

5. With the order for equal shared parental responsibility being made, the Court is mandated to consider whether an equal time arrangement or a substantial significant time arrangement is in the best interests of the children and reasonably practicable.  I turn to the form of order for future parenting next.

Form of order

1. In considering what orders, based on the findings made above, meet the best interests of the children, it is now appropriate to consider the children’s needs separately because of:

   a)the age differences;

   b)the fact that X’s relationship with the father has broken down whilst Y’s continues; and

   c)the strong wishes of the child X opposing spending time with the father.

2. In doing so, I will also deal with the effect of change that arises from the orders proposed by the parents – rather than the ICL who continued to contend for similar orders for both children to those made in 2012.

The child X

1. I have no confidence that any prescribed order for X to spend time with the father will be sustained.  X well knows the mother is unlikely to encourage the continued relationship and, on the father’s evidence in July 2019, he is unlikely to do anything to enforce the order.  A change of residence for X to the father is not in her best interests.

2. Although spending no time is likely to have continued now for over 12 months, the residual memories identified by Ms B in past family reports indicate that as the child develops true inter dependence from her mother (perhaps not until early adulthood), she may find it difficult to oppose her mother’s strong negative views about the father.

3. I have no confidence that the mother would truly support therapeutic intervention between the father and X, and if the child was forced to go to counselling for that purpose (by order of the Court), I assess the situation is likely to get worse.  In making these findings, I do so conscious of the orders sought by the ICL which treats both X and Y the same way.  I am also acutely aware that the child Y is likely to come under increasing pressure to not spend time with the father, not only from the mother but I predict X and possibly Ms M.  I turn to his position next.

The Child Y

1. I do not support supervised time orders as proposed by the mother for the reasons already given.  I am comfortable, so far as Y is concerned, to make the orders sought by the ICL and broadly adopted in final submissions by Mr Haddrick for the father.

2. In those final submissions delivered orally in July 2019, Mr Haddrick suggested the alternate position of Y living with the father “may be an option”, however in my view it is not, at least because:

   a)it is contrary to the child’s wishes;

   b)if there was a change of residence his primary bond with the mother who (save for the criticisms raised in these Reasons) has met the physical and social needs of Y primarily for nearly all his life, would be at risk; and

   c)although some aspects of his relationship with X might be strained if he remains living with the mother and spends time with the father, the alternative of residing primarily with the father and (perhaps after a moratorium of some weeks) spending limited time with the mother will likely adversely affect his sibship relationship.

3. I do not lightly differentiate the care arrangements for these two children who have basically endured the same difficult journey, because of their parents’ behaviour, which is likely to have drawn them closer.  However, Y’s relationship with the father has not deteriorated as significantly as X’s (notwithstanding some of the comments made by the Psychologist Ms T, which frankly I found of little assistance in this difficult matter), and is still on all the evidence sustainable.

4. For these reasons, I adopt the ICL’s positon so far as Y is concerned as being in his best interests, and in doing so:

   a)I support Y completing his primary school education at J State School and following his sister’s path to K State High School for his secondary education.  The mother’s proposal to move Y to V Primary School is not a change that is in the child’s best interests.  Of course, if the mother had an order for sole parental responsibility, that change would have been made by the mother;

   b)I agree with the evidence of Ms B that:

   i)a block of five nights as proposed by the father is likely to be a struggle for the father to manage and not in Y’s best interests; and

   ii)one block of time, thereby reducing the number of adjustments the child must make with changeovers from one household to the other will assist in creating stability for him.

   c)the ICL’s proposal provides for most changeovers to occur at school which is preferable to outside the Suburb U Police Station.  For changeovers that do not occur at school (e.g. during holidays etc), changeovers shall occur at Suburb H McDonalds;

   d)to reduce conflict, and in accordance with the father’s submissions, I make no order for Y to spend time on the father’s birthday.  As to his birthday, the day will always be in the first half of the end of term four school holidays, which means by alternating the halves, each alternate year Y will spend his birthday with a different parent.  As he will be 11 years of age in late 2019, I assess he will cope with that arrangement.  I also remove from the ICL’s proposed order arrangements for the mother’s birthday;

   e)I do not support the mother’s proposed order 5, namely:

   “The mother shall be entitled to relocate with the children within 1 hour’s drive in the event that she obtains employment which requires her relocation.

   This order, if made, would have the possible adverse effect of requiring the children to change schools.  They need the stability of continuance of their education where they currently attend.  If the mother was to obtain employment that required travel, then of course the mother might have to do the travel from her current residence rather than forcing the children to undertake more travel to maintain their current schooling;

   f)No evidentiary foundation has been established to found a s 68B restraint as sought by the mother’s proposed order 6 so far as her “extended family” is concerned.  I further find that these parties can contact each other electronically to discuss the children’s needs or any major long term decisions to be made which could be at odds with an order that the father “shall not contact the mother”.  I will not make that order.  These same findings persuade me not to make orders 19, 20 and 21 of the mother’s proposed orders.  There is no evidence that the parties approach or stalk the other.  I do not believe it is in the best interests of the children to make such orders as it may be used to restrict attendance of one parent at public functions attended by the children – including at school or whilst pursuing extra-curricular activities.  To this end the father’s belief that during “his time” the mother could not be at a public function is simply wrong;

   g)Proposed order 22 suggests a likelihood of a breach of s 121 of the Family Law Act 1975.  No evidence supports that inference;

   h)If the children are on an Airport Watch List, and I am not necessarily satisfied they are, then they should be removed from it.  There is no evidence or proposition advanced to suggest either parent has the intention or capacity to remove permanently the children from the country.  I will however make the overseas travel order proposed by the ICL.

5. For all the reasons above, I find that the orders appearing at the beginning of this Judgment are in the best interests of both X and Y at this time.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 2 October 2020.

Associate: 

Date:  2 October 2020

APPENDIX ONE

1. That the children, X born … 2006 and Y born … 2009 live with the mother.

2. That subject to these orders, the parties have equal shared parental responsibility for the major long-term parenting issues of the children.

3. That the children spend time with and communicate with their father as agreed between the parents but failing agreement then as follows:

   a.Each alternative weekend during the school term from the conclusion of school on Thursday to the commencement of school on Monday;

   b.At any other reasonable time that the children request to spend time with their father including additional weekend time; and

   c.By phone once per week at a time to be specified.

4. The children shall spend time with the parties during school holidays as follows:

   a.Unless otherwise agreed between the parties in writing, for one half of each gazetted school holiday period as follows:

   i.With the father for the first half of the holiday periods commencing in even numbered years and the second half in odd numbered years, with such period to include Christmas Day in even numbered years;

   ii.With the mother for the first half of the school holiday periods commencing in odd numbered years and the second half in even numbered years with such period to include Christmas Day in odd numbered years.

5. Where changeovers do not occur from school then the parties exchange the children outside the Suburb U Police Station.

6. The children shall spend time with the father on special occasions as follows:

   a.On the weekend which includes Father's Day from the conclusion of school on Friday to the commencement of school on Monday, in the event that the children are not otherwise living with the father on that weekend;

   b.On the father's birthday, if the children are otherwise not living with the father on his birthday, from 3.00pm on the eve of the father's birthday until 9:00am on the day of the father's birthday;

   c.On each of the children's birthdays in each odd numbered, between 3.00pm on the birthday and 3.00pm the following day,

   d.On the children's birthday in each even numbered year from 3:00pm of the eve of the birthday until 3.00pm on the day after the birthday;

7. The children shall spend time with the mother on special occasions as follows:

   a.On the weekend which includes Mother's Day from the conclusion of school on Friday to the commencement  of school on Monday, in the event that the children are not otherwise living with the father on that weekend;

   b.On the mother's birthday, if the children are otherwise not living with their mother on her birthday, from 3:00pm on the eve of the mother's birthday until 9:00am on the day of the mother's birthday;

   c.On each of the children's birthdays in each even numbered, between 3.00pm on the birthday and 3.00pm the following day,

   d.On the children's birthday in each odd numbered year from 3:00pm of the eve of the birthday until 3.00pm on the day after the birthday.

8. For the purpose of organising the care arrangements for the children during school holiday periods:

   a.School holiday periods are calculated as commencing from the conclusion of school on the final day of each school term and concluding on the first morning of the next school term.

   b.The number of nights in each school holiday period is to be used to calculate one-half of the school holiday period and if there is an uneven number of nights, the person who has the care of the children in the first half of the school holiday period will retain the children for the one additional night.

   c.The changeovers times are to occur during school holidays at 12.00 noon on the day for changeover pursuant to these orders.

9. That the father's weekend time pursuant to order 3(a) herein recommence on the first week of each school term.

10. That both parents be prohibited from the use of any physical discipline to manage the children's behaviours.

11. That each party provide to the other an email address at which they can be contacted and forthwith advice the other of any change to that email address.

12. That unless otherwise agreed by the parties in writing, the child Y complete his primary school education at J State School and both children complete their high school education at K State High School.

13. That this order is an authority for both parents to obtain at their expense information and copies of documents relating to the children's education including school reports, photographs and newsletters directly from the school.

14. That except in an emergency situation, each parent facilitate the children’s medical care at The L Medical and Dental Centre.

15. That if either child requires any medical or allied health treatment at any health facility or by any health care provider other than The L Medical and Dental Centre, then they are to forth with advice the other parent of the nature of the medical treatment and the name and address of the health care provider.

16. That this order is an authority for each parent to obtain at their expense information and copies of documents relating to the children's health care directly from any health care provider.

17. That both parents are restrained and an injunction is granted retraining each of them from denigrating each other and the children's extended family and siblings, in the presence or hearing of the children.

18. That each parent attends and complete a Parenting course focused on adolescents.

19. That the father continue to engage in the Families Together Program and for a focus of this work to include establishing meaningful family engagement during the times the children are with their Father as is recommended by that service.

20. That the father continue his therapeutic engagement with his psychologist with a focus on addressing his reactive behaviours as is recommended by that treating health provider.

21. That the mother forthwith obtain a referral to attend upon an appropriately qualified clinical psychologist to assist her develop a skill set to quarantine the children from adult content related to the parental separation and ongoing dispute as is recommended by that treating health provider.

22. That at times when the children are in his care, the father not engage in or expose the children to any adult or pornographic material or conduct.

23. That the parent's take all necessary steps and complete all documentation necessary to have the children's passports renewed and that the passports be held in the mother's possession subject to the following order.

24. That each party be permitted to take the children out of the Commonwealth of Australia for holidays contingent upon them:

    a.providing to the other six weeks' notice of the intended travel and providing the other with a travel itinerary, a photocopy of the children's return airfares and appropriate medical insurance for the travel duration.

    b.That upon the father complying with order 25(a) hereof then the mother provide him with the children' s passports within 14 days.

    c.That the father return the children’s passports to the mother within 14 days of the children's return into the Commonwealth of Australia.

APPENDIX TWO

1. That all previous parenting orders are dismissed.

2. That X born on … 2006 and Y born … 2009 (the children) live with the mother.

Time with the father

1. That the children spend time and communicate with the father at all times as may be agreed between the parties but failing agreement, as follows:

   a)From after School on Thursday until before School on Tuesday and if Tuesday is a public holiday then until before School on Wednesday.

   b)For one half of all the Queensland School Holidays, being the first half in odd years with the father and the second half in even years with the father.

   c)School Holidays will commence at the last bell on the last day of the School term and finish on the first bell on the first day of the new School term.

   Special Days

   d)Father’s Day: From 4:00PM the day before Father’s Day until 4:00PM on Father’s Day.

   e)That the father is at liberty to telephone and/or Skype the children each alternate day between 7:00PM and 7.30PM. For the purposes of telephone communication the father will initiate the call to the mobile telephone number of the mother and the mother will facilitate the call. If the father wishes to have Skype communication with the children, the father will send a SMS message to the mother requesting that she make the children available by Skype during the above times.

Changeover

1. Unless otherwise specified or otherwise agreed the father will collect the children at the commencement of his time from the front gate of the mother’s residence and the mother to collect the children at the commencement of her time from the front gate of the father's residence.

Time with the Mother

1. That notwithstanding the above, the children shall spend time and communicate with the mother as follows:

   a)Half of all the Queensland School Holidays, being the first half in even numbered years and the second half in odd numbered years.

   b)Mother’s Day: From 4:00PM the day before Mother’s Day until 4:00PM on Mother’s Day.

Parental Responsibility

1. Except as otherwise provided for by these Orders, both parents are to have equal shared parental responsibility for the major long-term parenting issues of their children, including decisions regarding the children’s:

   a)Education, both current and future;

   b)Religious and cultural upbringing;

   c)Medical/ Health;

   d)Change of Names; and

   e)Living arrangements, in terms of any changes thereto that would make it significantly more difficult for the children to spend time with the other parent.

2. Both parents must consult with each other about decisions to be made in the exercise of their equal shared parental responsibility, as follows:

   a)Each must inform the other parent about the decision proposed to be made;

   b)Each must consult with the other parent with the view to reaching terms upon which they may agree; and

   c)Each parent must make a genuine effort to come to a joint decision with the other parent.

3. Notwithstanding the provisions of the above paragraphs hereof:

   a)The father shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with him; and

   b)The mother shall be responsible for the day to day care, welfare and development of the children at all times when the children are living with or spending time with her.

Medical

1. The parents must keep each other informed as to the names and addresses of any treating medical practitioners, healthcare practitioners or specialists who come into any contact with the children and this Order shall be an authority to any such practitioners to provide to the other party any information that such practitioners may lawfully provide about the children;

2. The parents must inform each other within two hours by telephone of any injury or illness affecting the children that require(s) any medical or hospital attention.  This Order authorises any such medical practitioner or hospital to release the children’s information to the other party.

3. The parents must inform each other within twenty four hours and in writing of all specialist appointments made for the children to enable the other party to attend the appointment.

Education

1. Any educational institutions attended by the children are hereby authorised and empowered to provide to both parents any information about the children's educational progress and school related activities and supply both parents with copies of school progress reports, photographs, certificates and awards obtained by the children.  Any out of pocket expense connected to any such request shall be the responsibility of the party who made such request.

2. That both parents are noted as the emergency contact persons at each child’s School.

3. Both parents are at liberty to attend the children's sporting and extra-curricular activities.

Communication between the parents regarding the children

1. That both parents are to communicate and exchange information about the children via the COZI website, except in the case of an emergency when the parents must send a text message to the other.

2. The parents must keep each other informed at all times as to their residential addresses and residential and mobile telephone numbers and inform the other of any changes within forty eight (48) hours.

Conduct of the parties

1. The parents must not denigrate the other in the presence or within the hearing of the children or allow any other person to do so.

2. During the time the children are with either parent, that parent must:

   a)Respect the privacy of the other parent and not question the children unduly about the personal life of the other parent;

   b)Speak of the other parent respectfully;

   c)Not denigrate or insult the other parent or the parent's family in the presence or hearing of the children and use his or her best endeavours to ensure that others do not denigrate or insult the other parent or the parent's family in the hearing or presence of the children;

   d)Not consume alcohol beyond the legal limit, use drugs, or any other illicit substances in the presence of the children or be in any way affected by them whilst the children are in that parent's care or control;

   e)Each parent may take steps to remove the children from the presence of any person who is under the influence of illegal drugs or is intoxicated whilst the children are with either parent;

   f)Neither parent is to come within 100m of the residence of the other parent or place of employment, except for the purpose of complying with these Orders;

   g)Neither parent will approach or follow the other within 20m, except for the purpose of complying with these Orders;

   h)Neither parent is to provide to any other person copies of any material filed in Court proceedings, except for the purposes of obtaining legal or medical advice or to the children’s school/s or a state welfare authority should they be requested in writing by those entities to do so.

3. If either parent is unable to care for the children during periods that the children are to be in their care pursuant to these Orders they are to contact the other parent and provide the other parent with the first option to care for the children.

Travel

Domestic Travel

1. If either parent intends to travel with the children within Australia they must:

   a)First provide the other parent seven (7) days written notice; and

   b)Ensure the other parent is provided with a contact number that the children could be reached for that particular period of travel and the destination.

Overseas Travel

1. That the children are permitted to travel overseas to a Hague Convention Country and consent will not be withheld by the non-travelling parent.

2. The parents must ensure that:

   a)Within fourteen (14) days after the Application for an Australian Passport or Renewal for the children is provided to them by the other parent that parent must execute and return the Applications to the other parent together with half the costs.

   b)The travelling parent provides the other with no less than eight (8) weeks' notice of his or her intention to travel and include in the notice the destination for travel and the intended departure and return dates to and from Australia;

   c)No less than seven (7) days prior to the intended departure date from Australia provide to the other with a copy of the travel itinerary for the children including the precise destination/s for the children and the departure date and time from Australia and the return arrival date and time to Australia;

   d)Each parent shall provide to the other a contact number for the children for the duration the children will be overseas; and

   e)The parents shall each hold one of the children's passports for safekeeping.

Dispute Resolution

1. In the event the parents have a dispute in relation to these Orders, and/or parenting arrangements for the children, they must continue complying with these Orders, attend a Family Dispute Resolution Conference process prior to commencing further Court proceedings.

2. Any other Order this Honourable Court deems necessary.

APPENDIX THREE

1. That the children X, born … 2016, and Y, born … 2009, (“the children”) live with the Mother.

2. That the Mother has sole parental responsibility for the long term care, welfare and development of the children.

3. The Mother shall be permitted to enrol Y to V State School.

4. The Mother shall arrange with the children’s school for school reports to be sent directly to the father.

5. The Mother shall be entitled to relocate with the children within 1 hour’s drive of her current residence in the event that she obtains employment which requires her relocation.

6. The Father shall not contact the Mother or the Mother’s extended family except as provided or directed under these orders.

7. The Father spends time with the children:

   a)Supervised at a contact centre chosen by the Mother for a period of at least two (2) hours one Saturday a month at the Father's cost until 18 December 2019;

   b)Thereafter, every second Saturday from 9:00am to 5:00pm until 18 December 2020;

   c)Thereafter every second weekend from 9:00am Saturday to 5:00pm Sunday until Y starts high school;

   d)Thereafter every second weekend from after school Friday to before school Monday.

8. The Father may have telephone time with the children on Wednesday evenings from 6:00pm to 7:00pm.

9. The children have the liberty to telephone the Father at any time outside of school hours.

10. The Father provides and maintains a mobile telephone for the children for the telephone time.

11. The parties and children be at liberty to contact each other on social at any reasonable time upon the children reaching any minimum age required by the respective social media platform.

12. That neither party denigrate the other party or the children and shall not allow any other person to do so, in the presence or hearing of the children.

13. That the parties do not speak to the children of these court proceedings or any disputes between the parties and shall not allow any other person to do so.

14. That neither party shall consume alcohol to excess nor to consume or be under the influence of any illegal drugs whilst the children are in their care.

15. That each party shall take steps to remove the children from the presence of any person under the influence of illegal drugs or is intoxicated while in their care.

16. That neither party shall use physical discipline on the children and shall not allow any other person to do so.

17. That neither party shall use the children as a messenger to pass on messages to the other party.

18. Communication between the parties under these Orders is to be by email, except in the event of an emergency when the parties are to send a text message to the other via the mobile of the maternal grandmother.

19. Neither party is to come within 100m of, enter or remain in the premises where the other party resides or works except for the purpose of complying with these orders.

20. Each party The Father is not to follow or approach the other Mother to within 20m, except for the purpose of complying with these orders.

21. All State and Territory police services are directed to enforce Orders 19 and 20 hereof.

22. Neither party is to provide to any other persons copies of any material filed or subpoenaed in these proceedings or correspondence regarding the children except for the purpose of obtaining legal advice or to the children’s school or day care providers or a state welfare authority should they be requested by those entities to do so.

1. The children's names be removed from the Airport watchlist.