Orff and Lever

FAMILY COURT OF AUSTRALIA

ORFF & LEVER

[2018] FamCA 1068

FAMILY LAW – CHILDREN – Interim parenting – Where there is a history of family violence between the parents – Where there is a high level of parental conflict – Where the father has only recently begun engaging with the children – Where the mother has been the primary carer of the children since birth – Where there is some risk in both households – Consideration of the children’s best interests – Where it is appropriate that the children live with the mother on an interim basis – Where an order is made for the mother to have sole parental responsibility of the children

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA, s 69ZL

Banks & Banks [2015] FamCAFC 36
Deiter & Deiter [2011] FamCAFC 82
Goode & Goode [2006] FamCA 1346
Marvel & Marvel [2010] FamCAFC 101
MRR v GRR [2010] HCA 4

APPLICANT:

Ms Orff

RESPONDENT:

Mr Lever

INDEPENDENT CHILDREN’S LAWYER:

Kelly Hardie Solicitors

FILE NUMBER:

SYC

5437

2016

DATE DELIVERED:

14 December 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

16 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Mahony

SOLICITOR FOR THE APPLICANT:

Armstrong Legal

COUNSEL FOR THE RESPONDENT:

Ms Breeze

SOLICITOR FOR THE RESPONDENT:

Jones Rolfe Rudd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Kelly Hardie Solicitors

Orders

That all previous parenting orders be discharged.
That the children X born … 2009 and Y born … 2010 live with the mother.
That the mother shall have sole parental responsibility for the said children but shall notify the father promptly of any significant decisions she makes regarding the children in the exercise of parental responsibility.
That the children spend time with the father as agreed between the mother and father in writing, which may include SMS or email communication, and in default of agreement as follows:
(a)during school terms each alternate weekend from the conclusion of school to 5.00 pm Sunday commencing on the first Friday of each school term;
(b)during the summer school holidays 2018/2019 from 3.00 pm Christmas Day to 5.00 pm 11 January 2019;
(c)during each mid-term school holiday period from the conclusion of school at the end of term to 5.00 pm on the midpoint Sunday of such holiday period;
(d)at such other times as may be agreed between the parties in writing which may include SMS or email communication.
That changeovers for the father’s time be effected by the father or his agent, known to the children, collecting and returning the children from their school or if a non-school day by way of the parties or their agents, known to the children, meeting at an agreed public location in the township of B or failing agreement at the front of the B Town Post Office.
That the children be at liberty to communicate with the father by telephone and/or FaceTime each Monday and Thursday between 5.00 pm and 6.00 pm with the father initiating the call to the mother’s mobile phone or another mobile phone number nominated in writing by the mother.
That the mother within seven days from this date make an appointment with her general medical practitioner so as to obtain a referral to a suitably qualified psychologist to address the following:
(a)her parenting capacity in particular her ability to manage the children’s behaviours in a way that does not include the use of physical discipline and/or any form of abusive behaviour perpetrated upon the children by her or any other third parties;
(b)her ability to manage her own stresses in a constructive and child focused manner;
(c)her general psychological well-being;
(d)any other matters deemed appropriate by the psychologist to be addressed.
That the Independent Children’s Lawyer shall provide a letter to the mother’s treating psychologist setting out the allegations made by the children in relation to the mother and a copy of these orders and reasons for judgment within three days of being notified of the psychologist’s contact details by the mother’s legal representative with such notification, in any event, to be not more than one month from this date.
That the mother continue her current engagement with her counsellors and her treating psychologist engaged pursuant to these orders and do all things to authorise such practitioners to provide to the Independent Children’s Lawyer such information as the Independent Children’s Lawyer may request.
That the mother and father do all things necessary to ensure the children attend school at their present school in B Town pending further order.
That the mother and father are to ensure that the children are at all times supervised by a responsible adult who is over 18 years of age.
On a without admission basis, the mother and father are restrained from allowing the children to attend any swimming pool unattended and without adult supervision.
On a without admission basis, the father and mother are restrained from physically disciplining the children or allowing or permitting any other third parties to do so.
That the mother and father shall not verbally or psychologically abuse the children.
That the father and mother are restrained from allowing, permitting or causing the children to attend upon any mental health practitioner without the consent of the Independent Children’s Lawyer noting that this order requires the father to cease the children’s present engagement with a psychologist as previously arranged by him.
On a without admission basis, the children’s time with the mother shall be as far as practicable be substantially in the presence of her husband Mr C, Mr D and/or Ms E or any other person agreed to by the parties or agreed to by the Independent Children’s Lawyer with persons to be, otherwise, present on the following basis:
(a)as far as practicable observing the children in the care of the mother so as to ensure the mother’s interactions with the children are appropriate and do not place the children at risk;
(b)that the children will be removed from the mother in the event of any observed risk and immediate notification made to the police, the Department and the parties of any such risk.
That the mother and father are restrained from discussing any aspects of these proceedings with the children and use their best endeavours to restrain or not permit others to do so in the sight or hearing of the children.
That the mother and father are restrained from allowing or permitting or causing any other person to allow or permit the children to ride on a motorised quad bike or any other motorised vehicle pending further order.
That leave is granted to the Independent Children’s Lawyer to relist the matter on short notice by application to the Court in chambers in appropriate circumstances.

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 Orff & Lever 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 PARRAMATTA

FILE NUMBER: SYC 5437 of 2016

Ms Orff

Applicant

And

Mr Lever

Respondent

REASONS FOR JUDGMENT

The matters for determination arises from long running interlocutory parenting proceedings as between the mother and father.

Context

The mother is presently 39 years of age and the father also 39 years of age.
The paternal grandmother was previously a party to these proceedings but on 16 November 2018 she filed a Notice of Discontinuance of her Response filed in these proceedings. She has been removed as a party.
Accordingly, the issues for determination are as between the mother and the father.
The parties commenced cohabitation in late 2007 and married in 2008.
The mother has two children of a previous relationship, W born in 2002 who is currently 16 years of age and Z born in 2003 who is currently 14 years of age. Final orders were made as to these children in April 2016 providing that the mother have sole parental responsibility and the children live with her.
There are two children of the relationship of the present parties: X born in 2009 who is currently nine years of age and Y born in 2010 who is currently eight years of age. Previous parenting orders as to these children were discharged in April 2016 and by consent the mother was to have sole parental responsibility for the children who were to live with her. Orders were made for the children to have defined time with the father and the paternal grandmother.
The mother has remarried and her husband Mr C has two children from his previous relationship, V currently 15 years of age and U currently 12 years of age. These children primarily reside with the mother and her new husband.

Present proceedings

In May 2017 the mother filed a discrete application in the Federal Circuit Court of Australia seeking to travel overseas with the children for a holiday to Country G. On 7 June 2017 orders were made facilitating the mother’s travel with the children to Country G in late June early July 2017 with an order for three additional nights make up time with the father and/or paternal grandmother after their return. On 10 August 2017 the father was ordered to pay the mother’s costs of and incidental to her application in the sum of $11,633.34 within 90 days.
On 4 September 2017 the father, through his legal representative, informed Judge Harper that a proposed Response to be filed by the father may well seek to revisit final parenting orders made in April 2016. The father was ordered to file his Response and any affidavit in support by no later than 29 September 2017.
On 28 September 2017 the father filed a Response to the mother’s Initiating Application seeking, in summary, orders:
a)covering future overseas travel;
b)orders appointing a changeover point when the children are to be spending time with him;
c)that each party notify the other of changes to their contact details;
d)that the order for costs made on 10 August 2017 be revoked;
e)that the mother and father have equal shared parental responsibility for the subject children.
On 18 October 2017 proceedings were transferred to the Dubbo registry of the Federal Circuit Court of Australia and the mother was ordered to file a Reply to the order sought by the father in his Response by 30 November 2017.
Subsequently and on 16 November 2017, the father filed an Amended Response in the proceedings seeking orders, in summary:
a)covering future overseas travel and restraining the mother from travelling with the children overseas during school holiday time without the father’s consent;
b)that the parties, that is the mother, father and paternal grandmother, have equal shared parental responsibility for the children except for issues of health and education which shall be vested in the paternal grandmother and the father;
c)that the children live with the paternal grandmother and spend defined time with the mother;
d)that each party notify the other of changes to their contact details;
e)that the mother be restrained by injunction from administering physical discipline to the children;
f)that the mother be restrained by injunction from discussing these proceedings in the presence or hearing of the children or permitting any third person to do so;
g)that the parties be restrained by injunction from denigrating the other party or member of their family in the presence or hearing of the children or via any means including but not limited to social media;
h)that the father be at liberty to withhold details of his residential address from the mother;
i)that from the time the child X commences high school the children X and Y reside with the father and attend F School and spend defined time with the mother;
j)that the order for costs made on 10 August 2017 be discharged.
Then on 19 November 2017 the paternal grandmother filed a Response seeking orders that mirrored the orders sought by the father in his Amended Response.
The proceedings were short lived in the Dubbo registry of the Federal Circuit Court of Australia as on 7 December 2017 proceedings were transferred to this Court as they involved complex children’s issues.
On 6 February 2018 an order was made appointing an Independent Children’s Lawyer to represent the interests of the subject children.
On 13 February 2018 proceedings were listed for judicial case management. On that day orders and directions were made as follows:
WITHOUT PREJUDICE TO ANY PENDING APPLICATION AND WITHOUT ADMISSION BY ANY PARTY AND BY CONSENT, IT IS ORDERED THAT
(1)All previous parenting orders be suspended.
(2)Pending further order the children, X born … 2009 and Y born … 2010 live with the paternal grandmother, [Ms H Lever] in [B Town].
(3)The paternal grandmother do all things necessary to ensure the children’s regular and continual attendance at [K School], [B Town].
(4)That the mother [Ms Orff] pending further order be and is hereby restrained from contacting or approaching the said children without the written consent of the paternal grandmother with such writing may include SMS or email communication and further be restrained from approaching the paternal grandmother’s residence and the children’s school or any place where, to the knowledge of the mother, the paternal grandmother and the children may be present save and except that the mother shall have telephone contact with the subject children each Monday evening and Thursday evening with such call to be initiated by the mother between 5.00pm and 6.00pm by the mother telephoning the paternal grandmother on 0417 779 082 and in respect of such telephone communication the mother is restrained from speaking with the children about incidents currently the subject of investigation by the NSW Police Service and the paternal grandmother is at liberty to cause such telephone contact to be on speaker phone and to cause any telephone communication to immediately cease in the event that the mother in the opinion of the paternal grandmother breaches this condition.
(5)The interim issues as sought by the father in his Response filed 16 November 2017 in the Federal Circuit Court and his Application in a Case filed in this Court on 13 February 2018 and the paternal grandmother in her Response filed 16 November 2017 together with the mother’s Reply thereto filed 6 December 2017 and her Application in a Case filed 13 February 2018 be adjourned for hearing before Senior Registrar Campbell to 9.30am on Wednesday, 7 March 2018.
(6)In the event that the parties seek orders different to those presently sought in the documents identified above, such party shall file and serve an amended Application in a Case by no later than Monday, 5 March 2018.
(7)Each of the parties file and serve one discrete updating affidavit of the parties as to the issues for determination together with any further affidavits of witnesses to be relied upon by no later than Monday, 5 March 2018.
(8)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
(9)Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.
(10)Pursuant to s 69ZW(1) of the Family Law Act 1975 the Court orders and directs the New South Wales Police Service (“the agency”) (as a State Agency prescribed by Regulation 12CD/schedule 9 of the Family Law Regulations) to provide to this Court within 14 days all documents and information held by them about one or more of the following:
(a)Any notification to the agency of suspected abuse of the children [X] born … 2009 and [Y] born … 2010 or any of them;
(b)Any notification of suspected family violence affected the above children or the parties [MR LEVER] born … 1979 and [MS ORFF] born … 1979 and [MS H LEVER] born … 1959 or any of them;
(c)Any assessment by the agency of investigations into a notification or suspected abuse or family violence and/or the findings and outcomes of those investigations;
(d)Any reports commissioned by the agency in the course of investigating a notification;
and provided that no document is to be provided which identifies directly, indirectly or by reference the identity of any notifier and to achieve compliance with this order and with s 69ZW(3) the entirety of documents in the possession or control of the agency are to be produced to the Court and prior to production any names of notifiers or any material that would infer, suggest or disclose the identity of a notifier is to be blanked out or otherwise removed or obliterated from the document/s to be produced.
(11)That material produced to the Court pursuant to any order under s 69ZW of the Family Law Act 1975 or any request pursuant to ss 245D and 248 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is to be produced to the Chambers of Justice Foster and will thereafter be held in the subpoena and exhibits section of the Parramatta Registry of the Family Court of Australia and the legal representatives for the parties, any self-represented party and any Independent Children’s Lawyer or report writer appointed pursuant to s 62G or Chapter 15 of the Family Law Rules 2004 are authorised to inspect such material subject to the following:
(a)The material cannot be photocopied without specific order of the Court;
(b)Any use or disclosure of the information contained within the documents produced, other that use in the conduct of the case before this Court, is not permitted.
(12)The father make available to the Court on 7 March 2018 a transcript of the USB memory stick exhibited to his affidavit filed 13 February 2018.
(13)Leave granted to the paternal grandmother to provide a sealed copy of these orders to the children’s school.
(14)The father have leave to withdraw his Contravention Application filed 7 December 2017 and that application is, accordingly, dismissed with no order as to costs.
Interim parenting applications were adjourned for hearing before the Senior Registrar on 7 March 2018. On that day the Senior Registrar made further interim orders as follows:
(1)That the matter is adjourned to 11 May 2018 at 10.00 am for possible interim hearing.
BY CONSENT AND PENDING FURTHER ORDER IT IS ORDERED THAT
(2)That by consent and pending further order, orders are made in terms of the handwritten document signed by all parties and marked Exhibit 1, set out herein:
1.That Order 4 of 13 February 2018 be discharged.
2.That the children spend time with the Applicant mother as follows
2.1Wednesday 14 March from after school (or 3.00 pm) until 6.30 pm;
2.2Saturday 17 March and Sunday 18 March from 10.00 am to 5.00 pm each day;
2.3Wednesday 21 March from after school (or 3.00 pm) until 6.30 pm;
2.4Wednesday 28 March from after school (or 3.00 pm) until 6.30 pm;
2.5From 10.00 am to 5.00 pm on Saturday 31 March and from 8.00 am to 8.00 pm on 1 April 2018;
2.6 Wednesday 4 April from after school (or 3.00 pm) until 6.30 pm;
2.7 Wednesday 11 April from after school (or 3.00 pm) until 6.30 pm;
2.8 Saturday 14 April and Sunday 15 April from 10.00 am to 5.00 pm each day;
2.9Monday 16 April and Tuesday 17 April, 18 April, 19 April and 20 April from 10.00 am to 5.00 pm each day;
2.10 Wednesday 2 May from after school (or 3.00 pm) until 6.30 pm;
2.11Wednesday 9 May from after school (or 3.00 pm) until 6.30 pm;
2.12Saturday 12 May and Sunday 13 May from 10.00 am to 5.00 pm each day;
2.13Wednesday 16 May from after school (or 3.00 pm) until 6.30 pm;
2.14Wednesday 23 May from after school (or 3.00 pm) until 6.30 pm;
2.15Each Wednesday from after school (or 3.00 pm) until 6.30 pm;
2.16Alternate weekends from 10.00 am to 5.00 pm on Saturday and Sunday.
3.That changeover occur by the mother collecting the children from school on each Wednesday afternoon when the children are attending school.
4.That, otherwise, changeover occur by the mother’s nominee collecting and delivering the children to the Paternal Grandmother’s residence at [KK Street, B Town].
5.That the mother communicate with the children by telephone and/or FaceTime each Monday and Thursday between 5.00 pm and 6.00 pm and the mother is to initiate the call to the paternal grandmother’s or father’s mobile telephone as advised save for days when the children spend time with the mother.
6.That on a without admissions basis either [Mr C] and/or [Mr D] and/or [Ms E] be in the presence of the mother and children when the children are spending time with the mother, subject to them providing an undertaking in terms provided by the Independent Children’s Lawyer prior to 14 March 2018.
7.That within 7 days the mother do all acts and things to attend upon her General Practitioner for a referral to [Dr CC], Psychiatrist to obtain the first available appointment with him to be assessed in relation to her current mental health with such assessment to be reportable and for the mother to provide such report to all parties within seven days of its receipt.
8.That the Independent Children’s Lawyer to be at liberty to provide a copy of [Dr Q’s] report dated 15 June 2015 to [Dr CC].

On the resumed interim hearing before the Senior Registrar on 18 May 2018 orders were made in the following terms:
PENDING FURTHER ORDER IT IS ORDERED THAT
(1)Pursuant to section 91B Family Law Act 1975 the court requests that the Director General of the Department of Family and Community Services intervene in these proceedings in relation to [X] born … 2009 and [Y] born … 2010 (collectively, “the children”).
(2)The Court is to notify the Director General forthwith of this order upon promulgation of the sealed orders.
(3)The solicitor for the Mother and the solicitor for the Father are to forward to the Director General of the Department of Family and Community Services at its Head Office in Ashfield within 14 days of promulgation of the sealed orders copies of the documents filed by each of the parties to date.
(4)Upon request from the nominee of the Director General, the Registry Manager permit inspection of the Court file to enable consideration of the request to intervene in the proceedings.
(5)All previous parenting orders be discharged.
(6)The children shall live with the Paternal Grandmother.
(7)The children shall spend time with the mother each Wednesday from after school (or 3.00 pm if not a school day) until 6.30 pm and each alternate weekend from 10.00 am to 5.00 pm on Saturday and from 10.00 am to 5.00 pm Sunday.
(8)Changeover of the time the children spend with the mother, shall be given effect by the mother collecting the children from school on each Wednesday afternoon (on days when the children are attending school) and otherwise by the mother’s nominee collecting the children from and delivering the children to the Paternal Grandmother’s residence.
(9)The children shall communicate with the mother by telephone and/or Facetime each Monday and Thursday between 5.00 pm and 6.00 pm with the mother is to initiate the call to the mobile telephone of the Paternal Grandmother or the Father as advised save for days when the children spend time with the mother.
(10)[Mr D] or [Ms E] must be present when the children spend time with the mother.
(11)Leave is granted to the Independent Children’s Lawyer to re-list this matter before Senior Registrar Campbell on seven (7) days’ notice to each other party should there be any issue that requires the further attention of the Court on an interim basis.
(12)That the matter be referred to the Magellan Registrar for consideration of inclusion in the Magellan Program.
(13)In the event that the matter is not included in the Magellan Program, it is ordered that the Final Hearing of this matter be expedited.
(14)Leave is granted to the parties to submit two (2) page of written submissions regarding school holiday time, parental responsibility and any alternate supervisor by 4.00 pm Friday 25 May 2018.
Notations
A: These proceedings are proceedings in the Parramatta registry of the Family Court of Australia.
B: The allegations of abuse made in this case do not appear to reach the threshold
Subsequent to the leave granted by the Senior Registrar for written submissions the Senior Registrar on 4 September 2018 made the following notations and orders:
IT IS NOTED AND ORDERED THAT
Notations:
A. I note Order 14 of the Orders made on 18 May 2018.
B. I note Order 2 of the Orders made by Registrar Murdoch on 12 July 2018 and the notation as to the filing of further submissions referred to therein.
C. I am informed that no submissions have been received by the court from the father or the paternal grandmother since 18 May 2018.
D. The scope of these supplementary proceedings is limited to determining the following issues:
-The allocation of parental responsibility;
-The time the children will spend with each parent during school holidays; and
-The appointment of any alternate or additional person required to be present when the children spend time with the mother.
Orders
(1)Order 10 of the orders made on 18 May 2018 is discharged. The remaining orders made on 18 May 2018 are confirmed.
(2)The paternal grandmother [Ms H Lever] shall have sole parental responsibility in relation to the children X born … 2009 and Y born … 2010 (“the children”).
(3)In relation to the exercise of parental responsibility pursuant to Order 2 herein the paternal grandmother shall use her best endeavours to consult with the father and the Mother.
(4)The children shall spend time with each parent during school holidays and on special occasions as follows:
4.1. During the short school holidays in Autumn, Winter and Spring each year:
4.1.1with the mother from 9.00 am to 6.30 pm on each day of the period commencing on the first Saturday of the school holidays and concluding on the next Friday (inclusive) of the school holidays; and
4.1.2with the father from 9.00 am on the second Saturday of the school holidays to 5.00 pm on the third Saturday of the school holidays.
4.2During the Summer school holidays in December 2018 and January 2019:
4.2.1with the mother on Christmas Day 2018 from 10.00 am to 2.00 pm;
4.2.2with the father from 2.00 pm on Christmas Day 2018 to 5.00 pm on 11 January 2019; and
4.2.3with the mother from 9.00 am to 6.30 pm on each day of the period commencing on 12 January 2019 and concluding on 26 January 2019 (inclusive).
4.3Such other times as may be agreed between the parties and the Independent Children’s Lawyer in writing.
(5)The time the children spend with the mother is conditional upon one of the following people being present at such times:
5.1[Mr C],
5.2[Mr D],
5.3[Ms E], or
5.4Such other person as may be agreed between the parties and the Independent Children’s Lawyer in writing.
(6)The matter is listed in the Senior Registrar duty list at Parramatta at 9.30 am on 19 September 2018 for the giving of reasons in relation to the above orders. Each party and the Independent Children’s Lawyer are, respectively, excused from attending if they do not require reasons to be given.
The mother subsequently made an Application for Review of the Senior Registrar’s determination as to interim parenting.
In circumstances where it was contended that the father had unilaterally moved to the children’s primary residence from B Town to J Town, the proceedings were again before the Court for judicial case management on 23 October 2018. On that day orders and notations were made as follows:
(1)The proceedings are adjourned for interim hearing part-heard to 11.30 am on Friday, 16 November 2018.
(2)The paternal grandmother and father do all things necessary to cause the children to return to reside in [B Town] in the paternal grandmother’s home and to resume their attendance at [K School] in [B Town] by no later than Thursday, 25 October 2018.
(3)The paternal grandmother and father do all things necessary to ensure the children attend that school regularly pending further order.
(4)Pending further order, the mother’s mid-week time with the children resume on Wednesday, 31 October 2018.
(5)Pending further order, the mother’s alternate weekend time with the child 3 and 4 November 2018 and then each alternate weekend thereafter.
(6)The paternal grandmother and father are restrained from allowing, permitting or causing the children to attend upon any mental health practitioner without the consent of the Independent Children’s Lawyer noting that this order requires the paternal grandmother and the father to cease the children’s present engagement with a psychologist as previously arranged by them.
(7)On a without admission basis, the mother’s time with the children shall be supervised by [Mr D] and/or [Ms E] with such supervisors to be present during the time the children spend with the mother provided always that the mother’s time with the children shall not recommence until supplementary undertakings are signed and filed with the Court and served on the father’s solicitors in the following terms:
In addition to my undertaking dated March 2018 I undertake to the Court as follows:
(a)I will remain in the presence of both of the children save when one or both of them are in the bathroom during the time that I am undertaking supervision.
(b)That I will immediately terminate the children’s time with the mother upon it appearing to me that there is a potential for the children to be placed at risk in relation to their physical and/or mental health or safety and I will immediately remove the children from such risk and return them to the paternal grandmother.
(c)That in addition to my notification requirements in undertaking number 5 of March 2018 I will also notify the father and the paternal grandmother by email to their solicitor ...
THE COURT NOTES THAT
(8)Orders made today remove [Mr C] as an agreed supervisor.
IT IS FURTHER ORDERED THAT
(9)Both the father and the mother are restrained from allowing or permitting or causing any other person to allow or permit the children to ride on motorised quad bikes or any other motorised vehicle pending further order.
(10)The parties and the Independent Children’s Lawyer are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Wednesday, 14 November 2018.
(11)The father and mother and paternal grandmother be restrained from discussing any aspects of these proceedings with the children and to use their best endeavours to restrain or not permit others to do so in the sight or hearing of the children.
(12)Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.
(13)Leave is granted to the Independent Children’s Lawyer to re-list the matter on short notice by application to the Court in Chambers in appropriate circumstances.
(14)The father and mother file and serve a short case outline including an outline of submissions, short chronology, minute of proposed orders and list of authorities to be relied upon.
The interim hearing proceeded to hearing on 16 November, 2018. On that day orders and notations were made as follows:
(1)The Application in a Case filed 14 September 2018 seeking a review of a Registrar’s determination is withdrawn and dismissed.
(2)Judgment is reserved on the question of interim parenting to a date to be fixed.
(3)The Independent Children’s Lawyer have leave to provide to the Court in chambers an amended short minute of orders sought by the Independent Children’s Lawyer provided always that a copy of that is provided to each of the parties before being forwarded to chambers.
THE COURT NOTES THAT
(4)It is informed today of a substantial agreement as to the appointment with [Dr L] as the Chapter 15 single expert and the parties have leave to forward to the Court in chambers an appropriate minute of order appointing [Dr L] for the purposes of making orders.
The mother’s Application for Review of the Senior Registrars’ determination was in reality overtaken by further interim issues that arose between the parties.
It was agreed that the Court would in effect re-hear the interim issues that were before the Senior Registrar with a view to interim parenting orders being in place pending final hearing.
Surprisingly, on 16 November 2018 the paternal grandmother withdrew from the proceedings by filing a Notice of Discontinuance. She now seeks no orders and is no longer a party to the proceedings.

The Interim Hearing

For the purposes of the interim hearing the mother relied upon the following documents:
a)Her affidavit filed 7 December 2017;
b)Her affidavit filed 13 February 2018;
c)Her affidavit filed 5 March 2018;
d)Her affidavit filed 15 May 2018;
e)Her affidavit filed 7 August 2018;
f)Her affidavit filed 26 September 2018;
g)Her affidavit filed 19 October 2018;
h)Affidavit of Mr C filed 5 March 2018;
i)Affidavit of Ms M filed 18 September 2018.
At interim hearing the mother, in summary, sought the following parenting orders:
a)that the children live with the mother;
b)that the mother have sole parental responsibility for the children;
c)that the children spend time with and communicate with the father and the paternal grandmother in a fortnightly cycle as follows:
i)from after school Friday or 3.00 pm until the commencement of school on Monday or 9.00 am and in each alternate week thereafter;
ii)each Monday and Wednesday afternoon by telephone and/or face time with such call to be initiated by the father to the mothers mobile number;
iii)that the parties ensure that the children sleeping at [B Town] the night prior to any attendance at school and that each party is restrained from causing the children to leave school early or arrive at school late for the purposes of facilitating time;
iv)that the parties ensure the children’s regular and continual attendance at [K School], [B Town] in each party is restrained from causing the children to leave school early or arrive at school late for the purposes of facilitating time;
v)that without admission the parties be and are hereby restrained from administering any form of physical discipline upon the children or either of them or permitting any other person to do so;
vi)that without admission parties be and are hereby restrained from discussing these proceedings with the children or within hearing of the children or either of them or permitting any other person to do so;
vii)that without admission the parties be and are hereby restrained from denigrating any or all of the other parties, their partners and families within the presence of or hearing of the children and permitting any other person to do so;
viii)that the children spend time with the parties on special occasions as follows Mother’s Day with the mother, Father’s Day with the father for the forthcoming Christmas school holidays from the conclusion of school until 2.00 pm Christmas Day with the mother, from 2.00 pm Christmas Day until 5.00 pm 11 January 2019 with the father provided he is able to spend time with the children, the remainder of the holidays with the mother;
ix)for half of the school holidays at the conclusions of terms one, two and three;
x)that changeover occur at the children’s school or if a non-school day at an agreed venue in the township of [B Town];
xi)that in the event that the father or the paternal grandmother is unable to care for the children the care of the children is to be offered to the mother in the first instance.
d)That [Dr L] be appointed as Chapter 15 Single Expert for the purposes of providing to the court a report in these proceedings.
At interim hearing the father relied upon the following affidavits:
a)His affidavit filed 16 November 2017;
b)His affidavit filed 5 February 2018;
c)His affidavit filed 6 March 2018;
d)His affidavit filed 10 October 2018;
e)Affidavit of Ms N filed 30 January 2018;
f)Affidavit of Ms N filed 5 March 2018;
g)Affidavit of paternal grandmother (Ms H Lever) filed 16 November 2017;
h)Affidavit of paternal grandmother filed 5 March 2018;
i)Affidavit of paternal grandmother filed 5 October 2018;
j)Affidavit of paternal grandfather (Mr O Lever) filed 5 March 2018.
The orders sought by the father are to be found in his further Application in a Case filed 5 October 2018. They are, in summary, as follows:
a)that pending further order the mother’s time with the children be suspended;
b)that pending further order the children live with the father;
c)that pending further order the father have sole parental responsibility for the children;
d)that these orders be sufficient authority for the father to enrol the children at P School in J Town New South Wales;
e)that these orders be sufficient authority for the father to engage the children in the religious activities of the said school;
f)that the father forthwith attend with the children upon a general practitioner in J Town New South Wales for the purposes of obtaining a mental health plan referral so as to engage the children with an appropriate treating psychologist or counsellor;
g)that the father facilitate the children’s attendance upon such child psychologist or counsellor.
In support of his application the father relied upon his affidavits filed 5 October 2018 and 10 October 2018.

Context

The parties commenced cohabitation in late 2007 and married in 2008.
The subject children are the children of that relationship.
The parties separated in January 2014 following which final parenting orders were made in April 2016 as referred to above.
The mother commenced a relationship with her present partner, Mr C , in 2015 and they commenced living together in February 2016.
Mr C has two children of a previous relationship, V aged 15 and U aged 12.
Following release in June 2015 of a Single Expert Report from Dr Q the final consent orders of April 2016 were made.
As to the mother Dr Q in forming her final recommendations said:
The mother grew up in country Victoria, living with her maternal grandparents on a farm. She was allegedly raped at the age of 17 and had three significant relationships prior to her current one with [Mr C]. She had her two older daughters with her first husband, [Mr R], who was killed about two years prior to her meeting the father. The two younger girls are the father’s daughters.
When the family moved to [S Town], away from the maternal extended family, the mother appeared to have difficulty coping with all four children. The father was not a hands-on dad as [Mr R] had been and the mother felt alone and unsupported indent domestically violent relationship. She felt let down by the mental health system. When she presented saying she was suicidal, she was not given any significant follow-up or engaged in any psychotherapy which she would have needed at that time in her life.
Instead, she relinquished her four daughters to her mother-in-law while she was unwell. At that time, her behaviour was angry and she acted out, particularly while intoxicated with alcohol. This allowed her to work and to recover.
The paternal grandparents refused to return the girls, which caused an escalation in the mothers anxiety. The orders of February 2014, which called for co-parenting between the mother and the paternal grandmother, have led to a breakdown in the relationship between them. The paternal grandmother, to a certain extent, has replaced her own grown family with the younger girls, and has become competitive and adversarial towards the mother. Having given up her job and home in T Town, she is now reluctant to give up the care of her granddaughters, thus enraging the mother.
The mother who is now in a new relationship that has the older two girls to assist her, wants the younger to back at home, and has become angry and threatening, behaviours that the older two girls have copied in an attempt to effect a change of residence for the younger sisters.
The father’s unresponsiveness probably incited by the mother, which led to repeated escalation of violence between them. Much of the mother’s bad behaviour occurred in the context of a domestically violent marriage and when in financial straits.
The mother showed evidence of borderline personality traits when under stress, with anger and affect instability, which has worsened by occasional alcohol abuse. While she is in a settled relationship these traits should not be problematic. Her main fear would be the loss of her relationship with [Mr C]. In the future, that relationship is likely to heighten her anxiety and destabilise her mood.
While the paternal grandmother was helping another out, their relationship worked well. When the paternal grandmother felt she was losing control of the older two girls, she also became very anxious according to [Ms AA]. With the paternal grandfather only variable alternate weekends and the father really on weekends only, she was struggling to cope with four together when the older two were uncooperative. Her parenting style is much more hands-on than that the mothers.
Most grandparents hand the children back after time caring for them, and the paternal grandmother, being somewhat anxious and perfectionistic, has done a great job with the younger two. Her experience and devotion are admirable but, now that the mother is no longer depressed and is in a stable relationship, she is capable and ready to look after all her children.

As to the father Dr Q reported:
The father told me that he had hypothyroidism and was taking daily Thyroxin tablets. In the past, he had done courses at interrelate, including for Anger Management, and had seen a counsellor to talk things through with regard to his relationship and marriage breakdown….
[The father] minimised the accusations of domestic violence against him, saying “she told me she’s a crazy bitch. Every guy has hit her or beat her up.”… In his evidence, he mainly focused on his anger at the acrimonious relationship with the mother and it seemed clear that he had resigned responsibility for the two younger girls to the paternal grandparents…
When he was with the four girls, he was extremely quiet and disengaged and he watched them play together from a distance without much being involved…
[Y] and [X] seemed comfortable with the father in the room but largely ignored him and seemed to gain no security from him. He was almost silent and showed only peripheral interest in their play, intruding only to problem solve…
The father appeared disconnected and emotionally detached from the two younger girls who behaved towards him as if he were an irrelevance in the room. In the past, he has been domestically violent towards the mother in front of the children and particularly has been angry while drunk. At those times, he was disregarding the children’s need for a calm, safe environment…
With the two younger girls ([Y] and [X]) the father sends them money and sees them occasionally on the weekends when he is at the paternal grandparent’s home. He also sees them on some weekends and school holidays. He is a hands off parent, and showed during the assessment that he had little to offer the children in the way of understanding.
In her recommendations Dr Q recommended:
a)that the mother have residence of the two younger girls, so that all four girls live with her;
b)that the mother have full parental responsibility;
c)that the younger two girls have after-school care with the paternal grandmother four days a week from Monday to Thursday from school pick up until 6.00 pm;
d)that the father and paternal grandparents have contact with the two younger girls every fourth weekend and half the school holidays.

The mother’s evidence

The mother resides in B Town, New South Wales. The children have lived their whole lives in B Town where they have undertaken all of their schooling save for a short period when they attended school in J Town, New South Wales.
It is her understanding that the father resides in J Town, New South Wales in a home owned by his present partner Ms N. The distance between the parties is about four hours by car. The father is employed as a tradesman.
The mother says that since final orders in April 2016 the father spent irregular and little time with the children. Often that time has been also in the company of the paternal grandmother.
Mostly communication between the mother and the father is by text message or through the paternal grandmother. The father who was in a new relationship was reluctant to disclose to the mother his change of residence details. Often the communication coming from the father either directly to the mother or through her solicitors has been offensive.
In mid-2017 the mother filed her application seeking to be able to take the children to Country G for a holiday. Orders were subsequently made as sought by her and on 10 August 2017 the father was ordered to pay her costs of $11,633.00.
On 30 September 2017 the father caused the local police to attend upon the mother’s residence to undertake a welfare check, the mother being informed that the father had communicated to the police “his grave concerns for the children’s welfare”.
The children have been attending K School, B Town since the commencement of their formal schooling. The child X is presently in year four and the child Y is in year three.
Following the children spending time with the father they were not returned to school on the morning of 12 February 2018.
The children had finished the 2017 school year on 15 December 2017. The children were to spend time with the father and the paternal grandmother from 7 January 2018 until 5 February 2018. The mother had telephone contact with the children whilst they were spending time with the father.
On 30 January 2018 the father sent a text message to the mother alleging that the child Y had made “disclosure” to his partner Ms N and that the police will need to speak to the children. He informed the mother that it was “better for the children not to have contact with you”.
It was proposed by the father that the children not be returned to school in B Town but commenced to attend school in J Town.
Surprisingly, on 3 February 2018 the father informed the mother that she could collect the children “although I’m extremely reluctant to have them go back to your care at this stage”. Subsequently, the father informed the mother that he would not return the children until the mother provided her undertaking “not to physically discipline the children or discuss court proceedings with them or making them feel obliged to keep secrets about their time or any incidents with you”. The mother had no reservations in providing the undertaking and signed that undertaking on 5 February 2018.
The children were returned to the mother’s care by the father’s partner later that day with the mother collecting the children from BB Town and returning to B Town with them. The children returned to their school on 6 February 2018.
The father subsequently facilitated the children being interviewed by New South Wales Police in J Town. On the evening of Sunday, 11 February 2018 the mother was served with a Provisional Apprehended Domestic Violence Order. The order restrained the mother from assaulting, threatening, stalking harassing or intimidating the children or intentionally or recklessly destroying or damaging any of the children’s property. The application for the Provisional Apprehended Domestic Violence Order revealed a complaint by the child Y that the mother “used both hands to pick her up by the neck and throw her onto a lounge chair where she struck her head on the edge and received injuries. The child reported that she had been naughty before this by having an argument with her sister and the mother had done this to her to punish her”. It appears from the application for the provisional domestic violence order that the incident had taken place prior to the conclusion of the school year in 2017 and about one week before Christmas.
Strangely, notwithstanding the child allegedly reporting to the father and his partner that following the incident she had a large lump on her head and was bleeding a lot, no injuries were observed by the police. Notwithstanding the delayed complaint to the police resulting in the Provisional Apprehended Domestic Violence Order, the children had prior to their attendance on the police been returned to the care of the mother by the father. The father says that this Provisional Apprehended Domestic Violence Order was withdrawn by the police on 22 February 2018.
The mother made enquiries of the children’s school on 12 February 2018 as to whether there had been any reports by the children of alleged abuse and the child’s teacher reported that no aid had been rendered to the child as asserted by the child to the police.
The mother denies any such conduct as alleged by the father and/or the child. Prior to Christmas the children were in her full-time care with various activities undertaken over the Christmas festive period and in early January before the children went to the father’s for the remainder of the Christmas school holidays.
On 14 February 2018 the mother was served with a further Provisional Apprehended Domestic Violence Order dated 13 February 2018. It appears that the father’s partner had caused the children to attend at the BB Town Police Station on the afternoon of 13 February 2018 with the child X, in the presence of the father’s partner, alleging that the mother had used both hands to hold her around the bottom of her head and dragged her a number of metres and put her in her room. X asserted that this caused small scratches on her chin. X also reported that on another occasion the mother had picked up her sister Y by the hair and dragged her outside the house and locked her out on a cold day and told her that is where she was staying. This was alleged to have been observed by the two older half-sisters in the mother’s household. Regrettably, X was unable to provide actual dates or times for these incidents nor is there any observation of injuries that she presented with.
The mother, otherwise, asserts that the father’s partner was inappropriately engaged in the police interview with the child.
The further Provisional Apprehended Domestic Violence Order included a provision that the mother “must not approach the children X and Y or contact them in any way, unless the contact is through a lawyer”.
On 22 February 2018 at the J Town Local Court the Provisional Apprehended Domestic Violence Order was varied to provide for the mother to communicate with and spend time with the children in accordance with orders of this Court, or for the purposes of counselling or mediation or as agreed between the mother and father.
Subsequent to orders being made by consent on 7 March 2018 and the children having spent time with the mother in accordance with those orders in addition to which the mother has had telephone contact with the children, although she complains that such contact has always been on speakerphone.
On 15 March 2018 the mother received a phone call from a worker from the Department of Family and Community Services. That worker attended at the mother’s home mid-afternoon. On 11 April 2018 the mother received a communication from the departmental worker informing the mother that the children had been interviewed. No concerns in relation to the children were expressed. Subsequently, the worker spoke with the mother on 7 May 2018 informing the mother that there were no concerns for the children in the mother’s care, although the children’s behaviour and their “psychological well-being” were of concern.
By letter dated 12 July 2018 the Department declined to intervene in these proceedings.
In accordance with orders, the mother attended upon a Dr CC, consultant psychiatrist of DD Town. The doctor provided a report dated 22 March 2018. The doctor had been provided with the Chapter 15 report by Dr Q by way of background. Dr CC observed that the mother was dressed appropriately and interacted appropriately. She had euthymic mood, had no formal thought disorder, showed no features of anxiety or depression, showed no delusions or hallucinations or obsessions. She also showed no problem with insight or judgment. The doctor concluded that the mother was not suffering from any current psychiatric illness.
The mother married her partner, Mr C, in 2018. The children attended on the wedding day and were engaged in the wedding ceremony. On 29 March 2018 prior to the wedding it appears that the father caused the police to attend the mother’s home for the purposes of “an ADVO compliance check”.
The Apprehended Domestic Violence Proceedings continued in the Local Court by reason of various adjournments and were subsequently withdrawn on 30 October 2018 (Joint Tender Bundle Sleeve S31). The mother has never been charged with any criminal offence relating to the alleged allegations by the children.
On 1 October 2018 there was an incident when the children were with the mother. The mother and her husband planned to attend at her husband’s rural property about 100 kilometres out of B Town in order to attend to and feed livestock.
The child X was permitted by the mother in the company of the child W, aged 16, to attend at a friend’s home and in the company of W go to the local pool in B Town.
The mother, her husband the child Y and Y’s friend EE went to the bush property for the day. Whilst at the bush property the child Y and her friend EE were riding a quad bike when the bike hit a bump and they were thrown from the bike. The mother observed the incident, attended to the children who appeared to be largely uninjured but shaken with small scratches and significant bruising. The mother acknowledges that it was not appropriate to facilitate the girls riding the quad bike in the absence of helmets and, indeed, probably the children should not have been riding the quad bike at all. The mother asserts that the children are permitted to ride a quad bike by the father without helmets.
On returning to B Town later that day the mother informed the child Y that she would take her to the hospital for a check-up. The child was distressed telling the mother “if you do, I’ll never get to see you again”. The mother ultimately convinced the child to go with her to the hospital where x-rays were clear but the child and her friend were to remain in hospital overnight as a precaution. The child to the mother’s observation was in good spirits as evidenced by the hospital notes (Joint Tender Bundle Sleeve 22). The paternal grandmother attended at the hospital as the children were due to be returned to her care in any event that day.
On returning to their home in B Town the mother observed that the child X was not present. The child W informed the mother that X had told her that the mother had permitted her to go to the pool with a girlfriend and that girlfriend’s older brother. The mother had given no such permission. The mother attended at the pool and collected the child who said to the mother “I told [W] you said it was alright. I told the pool person that I was 10 so they would let me in”.
Surprisingly, on 2 October 2018 the father through his solicitors informed the mother that he would no longer make the children available to her. The mother in response proffered various undertakings to which there was no response.
On 5 October 2018 the paternal grandmother informed the mother that she had asked the father and his partner to seek a referral from the children’s general practitioner for the children to see a psychologist. On 8 October 2018 the mother became aware of the paternal grandmother’s proposal to permit the children to move to reside with the father and his partner in J Town New South Wales notwithstanding the current orders and that the father proposed to change the children’s schooling arrangements to a school in J Town.
On 12 October 2018 the mother spoke to the child Y by phone and was informed by the child that they had been placed in school vacation care by the father and that they were not coming back to B Town but going to school in J Town. The mother enquired of the children’s school in B Town on 15 October 2018 and a response informed her that the children indeed were not in attendance at school in B Town.
It is noted that an overview of the mother’s earlier mental health engagements was provided by letter after the parties’ separation from the Western NSW Local Health District dated 13 April 2015 (Joint Tender Bundle Sleeve 23). The letter contains the following:
(The mother) reportedly suffered from domestic violence in the form of regular psychological devaluation of her domestic and child care efforts by her husband [Mr Lever], his failure to consult and include her in decision-making, and his unwillingness and refusal to acknowledge that she had genuine grounds for complaint and unhappiness. (The mother) for a long time denied to her treatment providers that she was in an abusive domestic relationship but conceded that they had communication problems. Only after finally separating from the husband did she acknowledged to me that her relationship with her husband [Mr Lever] was psychologically abusive from the start. She said that right up to the end she was psychologically defending the integrity of her marriage and family against the evidence of failure until she could do so no more.
(The mother) treatment providers formulated her distress in biological terms of postnatal depression and major depression. She was partially responsive to several antidepressant medications as well as a mood stabiliser. A final diagnosis was formulated as an adjustment disorder.
In mid-2018 the mother commenced engagement with the counselling and support services of LL Group, J Town: (Joint Tender Sleeve 25). She, otherwise, has engaged with Ms MM, Counsellor from August 2018. Her counsellor has previous engagements with the mother during her relationship with the father through Western Women’s Domestic Violence Service Court Advocacy Service and Staying Home – Leaving Violence Service (Joint Tender Sleeves 23 and 36).

The father’s evidence

The father commenced a relationship with his present partner in late 2015.
He acknowledges that since the end of his relationship with the mother he has lived a very transient lifestyle and is supported by his partner.
From time to time the father’s partner or her staff have collected the children from the mother and/or the paternal grandmother to facilitate the father’s time with the children subsequent to previous final orders.
In late November 2017 he complained that the children had told him that they are often left home alone or in the care of siblings. He, otherwise, at that time expressed a wish for the children to attend high school in J Town where he now resides full-time in his partner’s home having commenced to spend substantial time at that property by December 2017.
The father in November 2016 set up his own business. Otherwise, he was working as a contractor. As at early 2018 his business generated little income.
He reports the alleged complaint made by the child Y on 27 January 2018 about the mother’s conduct. This complaint made some weeks after the children had come into the father’s care for part of the school holidays during which period the children had had only some telephone contact with the mother. It was his partner’s suggestion that the child be taken to the police. Prior to attendance at the police the father’s partner questioned the child in relation to her disclosure. The father asserts that the child reported “it was this big and blood went everywhere”. No injuries were observed by the father’s partner on the child.
The father says that his partner attended J Town Police Station on 27 January to report the “disclosure”. The police subsequently attended at his partner’s house to speak to her. On 30 January 2018 the father and his partner contacted the police to enquire as to any developments in relation to the disclosure. They made a further enquiry on 1 February 2018.
The father asserts that on 3 February 2018 his partner told him that the child had complained of another incident where the mother had picked the child Y up by her feet.
On 13 February 2018 on a day when the parties were in attendance for the purposes of proceedings in this Court at Parramatta the father facilitated the child X being interviewed by the police. It was as a consequence of this further interview that the police issued a second Provisional Apprehended Domestic Violence Order as referred to above.
The father asserts that on 16 February 2018 he was advised by police that the first incident complained of by Y appears to have occurred in November 2016 and was the subject of an incident report at the child’s school and a subsequent report to the Department of Family and Community Services.
On 12 February 2018 the father’s partner Ms N had an enrolment interview at the local private school in J Town seeking to procure the enrolment of the children at that school in the event that the children were placed in the father’s care. The father and his partner subsequently attended a second enrolment interview at that school on 15 October 2018 on which date the father completed an enrolment application form nominating not the mother but his partner as the emergency contact for the children. He failed to complete any information on the enrolment application form as to the mother. It was his wish that the children commence schooling in J Town at that time immediately in the context of “the uncertainty of their unknown future living arrangements” (Joint Tender Bundle Sleeve S16).

The father makes reference to the incident relating to the children on 1 October 2018 referred to above. He acknowledges being informed by the mother that the child Y was in an accident and would be in hospital overnight for observation. He organised for his mother to attend at the hospital and he later did. The child was discharged from hospital as expected the following day. He also spoke to the child X by phone with the child acknowledging that she had lied to be able to get into the swimming pool contrary to her mother’s instruction.
He says that out of concern for the children he stopped making them available to the mother pending further order. As at 9 October 2018 the children he says were residing with him in his partner’s home at J Town. At that time he asserts that the paternal grandmother was no longer able to care for the children as she had done. The father’s unilateral decision to relocate the children’s residence and significantly change their schooling arrangements was remedied by court orders shortly thereafter.

The Child Responsive Program Memorandum

On 18 September 2018 the mother, father and paternal grandmother attended upon a family consultant for the purposes of a memorandum to be prepared under the Child Responsive Program.
The Family Consultant reported by memorandum dated 24 September 2018.
The Family Consultant noted that at the time of interviews the children lived with the paternal grandmother, aged 59, in B Town. Also in that home is the paternal grandfather Mr O Lever aged 61. The mother was living in a six bedroom home in B Town the property of her husband. The mother’s older children W and Z were living in the home together with her husband’s two children from his previous marriage V aged 14 and U aged 12.
The father, it appears for the first time, acknowledges that he resided in a home in J Town owned by his fiancée Ms N. The father asserted that he worked full-time in a business.
At the time of interviews, the Apprehended Domestic Violence Proceedings were listed for hearing in the Local Court on 30 October 2018. The mother reported that there were several Apprehended Domestic Violence Orders protecting her from the father during the period of their relationship.
The father reported that the child X was having difficulties at school, reportedly stealing about two years ago and that she had seen the school counsellor (Joint Tender Bundle Sleeve S17). Yet the child’s school reports for the first half of 2018 are positive and encouraging.
The child X: the family consultant observed that X then aged nine years and eight months presented as a friendly and polite child who reported that she was in year four at the primary school in B Town where she had been since Kindy. The child reported that she had many friends. The child reported to the family consultant the allegations that she had made to the police about the mother. The child expressed a view that she would be upset if she was ordered to live with the mother because “me and Y want to be with dad because we spent more time with mum than with dad and it’s more fair.’ The child reported missing her older half siblings. The child denied ever feeling scared of the mother’s new husband. The child was clearly aware of the conflict between her mother and father. The child expressed a preference to live with the father “because there’s lots more things to do at dad’s and we go down the street to visit friends and mum doesn’t let us do that”.
The child Y: the family consultant reported that the child Y then aged eight years and seven months was an engaging and pleasant little girl but wary of speaking with the family consultant. The child reported that she was in year three at the primary school in B Town where she has “lots of friends”. Somewhat unprompted the child proffered that she wanted to live with the father because “we’ve never lived with him before and it would be good to have some time with him for a little bit”. The child reported she liked going to the father’s and spoke about horse-riding and lots of other things. The child suggested that she would not mind the then current arrangements and when questioned as to any view about living with the mother and her husband she replied “I don’t know” to most questions about this from the family consultant.
The family consultant observed the children with all parties and reported that the children appear to have a warm relationship with all of the parties and ran to the mother to greet her when she entered the waiting room. The children proceeded to talk and play with the mother and hugged her warmly on departure.
Family Violence: the mother reported to the family consultant that the father was “constantly in her face”, wrecking her car, sending her photos of dead dogs, killing her dog with a sledgehammer in front of the children. In February 2011 the father broke her nose and ribs. The mother attended at DD Town Private Hospital as a consequence for surgery. She asserted that the father punched, choked, kicked her and pulled her head during the course of the relationship. In 2008 when pregnant with the child X the father choked her causing her to pass out. The mother attended at T Town Hospital following the incident. The mother, otherwise, asserted controlling and coercive conduct on behalf of the father including taking the keys out of their vehicles and smashing her phone so that she was isolated on the rural property. He examined her phone to see who she had called and made her delete friends from her Facebook account. The mother reported that she commenced planning to leave the relationship in late 2013 after the father threw a boot through a window showering two of the children with glass: Exh “C”. The mother reported that the father promised to attend counselling. Following one domestic incident in 2009 the mother was charged with assault with no conviction being recorded. The mother reported that the father drank excessively drinking eight to 10 cans of beer most days although being under the influence of alcohol to the mother’s observation did not seem to increase or decrease his violent behaviour.
The father reported that “there was a lot of violence both ways in the relationship”. The boot incident he reported was one of the silliest things he had done. He acknowledged that he had broken the mother’s nose but asserted that this was because she was threatening suicide and he was holding her to prevent this. He reported that the mother continually threatened suicide. The father complained that the mother humiliated him each time she called the police and that she had done so vindictively. Whilst acknowledging that he killed the dog he denied that same was in front of the children. The father acknowledges that he used to drink “quite a bit” and described this to his work. He asserted that the mother in the later part of their relationship abused alcohol.
Mental health: the mother reported to the family consultant that she had no difficulties with her mental health until her relationship with the father. (She was diagnosed with Post Natal Depression after the birth of both children: Exh “D” in respect to which the father was unsupportive. It is noted that the mother’s mental health issues predate the final orders made in 2016.). She asserts that the father convinced her that everyone will be better off if she was not alive. In November 2012 she overdosed on Seroquel and was taken to FF Town Hospital and then to DD Town Hospital where she was an inpatient for three days (Joint Tender Bundle Sleeve S35). The mother denies making repeated suicide attempts as asserted by the father. The mother reported that earlier in about 2009 she saw a Dr GG, psychiatrist, who was of the view that her difficulties were relationship based. The mother subsequently engaged with a counsellor, Mr HH, and following separation from the father a psychologist, Ms II. The mother reported to the family consultant that she was not on any medication. The mother expressed concerns as to the father’s anger management.
The father reported that his mental health was “the best it’s been in years” and that he had seen post separation a psychologist in BB Town who diagnosed him with “mild range post-traumatic stress disorder”. In May 2006 the father’s GP referred the father to a psychologist under a mental health plan for symptoms of anxiety and depression. On initial examination the father was provisionally diagnosed with post-traumatic stress disorder with his psychologist noting “[the father] reported symptoms of intrusive memories and dreams related to traumatic events, flashbacks, marked physical and emotional reactions to reminders of the traumatic events, efforts to avoid memories and reminders of the traumatic events, fragmented memories, excessive feelings i.e. guilt anger fear, anhedonia, feeling distant from people and marked alterations in arousal including difficulties concentrating and hypervigilance . [the father] reported experiencing a freeze response when he is in conflict with his current partner.” In March 2017 it was noted by the treating psychologist that the father had cancelled his appointment in late May 2016 and had not re-engaged since that time, (Joint Tender Bundle Sleeve 29). For the purposes of these proceedings the father engaged with a different psychologist, Ms JJ, on 20 September 2018 – the report provided by the psychologist dated 23 September 2018 was “based on one 60 minute appointment and includes Mr Y’s self-report of current symptoms, psychometric results and his presentation at the appointment.” Overall, the conclusion was that the father had a significant reduction in his PTSD related symptoms. As to the mother’s alleged suicide threats the father conceded to the family consultant that “he may have ticked her off a bit” but he was ultimately not responsible.
Other issues: the mother reported to the family consultant that she was of the view that the father has manufactured the current allegations as a payback after the father was ordered to pay a substantial costs order in favour of the mother. The mother expressed concern about the well-being of the children in the father’s care by reason of his poor anger management and that he had spent little time with the children until October 2017.
The family consultant observed that there appears to be little functional communication between the parents with text messages the sole way of making arrangements in relation to the children. The mother expressed her belief that the children were “having a ball” when they spent time with the father but was concerned as to the disruption of the sibling relationships and their relationships with the extended paternal family.
The father for his part could think of nothing good about the mother “so many bad memories”. He asserted that he and his partner could offer the children a much better life.
Evaluation: the family consultant opined that the children seem to be struggling to negotiate the conflict between the parents. While they expressed a desire to live with the father this appeared to relate mainly to the activities available at his home. They expressed some fear of the mother although it was difficult to ascertain whether this is related to the lived experience or to partisan alignment. Otherwise, the distance between the parents’ homes would preclude the children spending substantial time with each during school term. The family consultant expressed no view as to proposals for the children noting that the Court may be assisted by access to documents from the New South Wales Police and the Department. Should the matter proceed to a final hearing, a Chapter 15 Expert Report from a forensic psychiatrist would be recommended.

The Independent Children’s Lawyer

Subsequent to the withdrawal of the paternal grandmother from the proceedings, the Independent Children’s Lawyer proposed orders that, in summary, provided:
a)That all previous parenting orders be discharged.
b)That the children live with the mother.
c)That the mother have sole parental responsibility for the children but shall notify the father immediately of any decisions she makes regarding the children.
d)That the children spend time with the father as follows:
i)during school terms each alternate weekend from the conclusion of school to 5.00 pm Sunday commencing on the first Friday of each school term;
ii)during the summer school holidays 2018/2019 from 2.00 pm Christmas Day to 5.00 pm 11 January 2019;
iii)during each mid-term school holiday period from the conclusion of school to 5.00 pm the following Sunday, at such other times as may be agreed between the parties and the Independent Children’s Lawyer in writing.
e)That changeovers for the father’s time be effected by the father or his agent collecting and returning the children from and to their school or if a non-school day by way of the parties or their agents meeting at an agreed public location in the township of B Town or failing agreement at the front of the B Town Post Office.
f)That the children communicate with the father by telephone and/or face time each Monday and Thursday between 5.00 pm and 6.00 pm with the father initiating the call to the mother’s mobile phone or another agreed mobile phone number.
g)That the mother within seven days make an appointment with her general practitioner so as to obtain a referral to a suitably qualified psychologist to address the following:
i)her parenting capacity, in particular, her ability to manage the children’s behaviours in a way that does not include the use of physical discipline and/or any form of abusive behaviour perpetrated upon the children by her or any other third parties;
ii)her ability to manage her own stressors in a constructive and child focused manner;
iii)her general psychological well-being;
iv)any other matters deemed appropriate by the psychologist to be addressed.
h)That the Independent Children’s Lawyer shall provide a letter to the mother’s psychologist setting out the allegations made by the children in relation to the mother and a copy of these orders within three days of being notified of the psychologist contact details by the mother’s legal representative.
i)That the mother continue her current engagement with her counsellors.
j)That the mother and father do all things necessary to ensure the children attend school at their present school in B Town pending further order.
k)That the mother and father are to ensure that the children are at all times supervised by a responsible adult who is over 18 years of age.
l)On a without admission basis, the mother and father are not to allow the children to attend any swimming pool unattended and without adult supervision.
m)On a without admission basis, the father and mother are restrained from physically disciplining the children or allowing or permitting any other third parties to do so.
n)That the mother and father shall not verbally or psychologically abuse the children.
o)That the father and mother are restrained from allowing permitting or causing the children to attend upon any mental health practitioner without the consent of the Independent Children’s Lawyer noting that this order requires the father to cease the children’s present engagement with a psychologist as previously arranged by him.
p)On a without admission basis, the mother’s time with the children shall be substantially in the presence of her husband Mr C, Mr D and/or Ms E or any other person agreed to by the parties including the Independent Children’s Lawyer with such supervisors to be substantially present during the time the children spend with the mother on the following basis:
i)supervising the children in the care of the mother so as to ensure the mother’s interactions with the children are appropriate and do not place the children at risk;
ii)that the children will be removed from the mother in the event of any observed risk and immediate notification made to the police, the Department and the parties of any such risk.
q)That the mother and father are restrained from discussing any aspects of these proceedings with the children and use their best endeavours to restrain or not permit others to do so in the sight or hearing of the children.
r)That the mother and father are restrained from allowing or permitting or causing any other person to allow or permit the children to ride on a motorised quad bike or any other motorised vehicle pending further order.
s)Leave granted to the Independent Children’s Lawyer to relist the matter on short notice.

Other subjective evidence

Some aspects of relevant tender documents are referred to in italics above.
On 9 October 2018 the father procured a referral from a general practitioner in BB Town for the children to be referred to a psychologist under a mental health plan due to behavioural concerns and potential post-traumatic stress symptoms. This was done by him without the knowledge or consent of the mother. The children attended with the father and his partner. It is unclear whether the children were seen with the father and his partner when they provided to the psychologist their version of relevant history: (Joint Tender Bundle Sleeve 18).
The father’s criminal antecedents are in evidence (Joint Tender Bundle Sleeve 33) including many criminal offences of note:
(Redacted for published version)
The Department of Family and Community Services have had an engagement with this family. It is readily apparent from the departmental file (Joint Tender Bundle Sleeve S13 and S15) that forensic advantage has been sought by engaging the Department. It is an available inference on a perusal of the departmental file that complaints to the Department other than those of compulsory reporting authorities, that is the police, have been made by the father or on his behalf. The Department internally produced a review of their file in early May 2018. The Department reported:
the children are currently considered safe in their current household with their paternal grandparents, however, there are concerns about the ongoing impact of the current conflict the family law court is having on the children. The children are anxious to know where they will be living in the future and have expressed on several occasions that they wish to reside with their father. The children have identified that they are worried about when they visit the mother she may keep them … and not let them see their father.
FACS have met with both parents as part of this assessment and concerns were not identified in the father’s home. However, concerns were identified in the mother’s home, specifically the children had been inappropriately physically disciplined … And there are concerns that a similar situation may occur again, due to the difficulties in managing multiple children resulting in high stress situations and as the mother has denied all allegations.
The girls love their mother and enjoy spending time with her when they are there, however, they do have some worries about the home and have commented that they don’t do anything at the home but watch TV…
The physical abuse by the mother has been substantiated and the children are currently considered safe within the current arrangements living with their grandparents. There are concerns that ongoing support/assessment/referrals will be required if the children are returned to their mother’s care…. If the children continue in their current arrangement FACS will close this matter with a recommendation that a new report be made if the children returned to their mother so that FACS can re-engage with the family.
In Goode & Goode [2006] FamCA 1346, the Full Court set out the pathway to be followed in saying that the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and must have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

The Full Court went on to say the legislative pathway in an interim case to determine the best interests of the child would involve the following:
(a)identifying the competing proposals of the parties;
(b)identifying the issues in dispute in the interim hearing;
(c)identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 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 s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
Since Goode (supra), s 69ZL of the Family Law Act 1975 (Cth) (“the Act”) has been enacted which provides that a court may give reasons in short form for a decision it makes in relation to an interim parenting order. In relation to the interim parenting orders, these are the Court’s short form reasons for decision.
In Marvel & Marvel[2010] FamCAFC 101 the Full Court discussed the difficulties associated with making findings on contested evidence in the following terms:
120.As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).
121.In SS & AH[2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph [88] of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:
“In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.”
122.Later, at paragraph [100] their Honours amplified their comments and said:
“The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.”
In Deiter & Deiter [2011] FamCAFC 82 the Full Court was particularly concerned with the situation where the contested facts related to an assessment of risk and said at [61]:
… Risk assessment comprises two elements - the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
In Banks & Banks [2015] FamCAFC 36 the Full Court said:
47.As the Full Court pointed out in Goode, the fact there will often be little uncontested evidence in interim proceedings means that only limited consideration may be able to be given to the relevant s 60CC factors.
48.It should also be said that in parenting proceedings, as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim parenting proceedings should be confined to those issues which, in the best interests of the child, require determination prior to a proper determination at a trial. The fact such disputes are commonly dealt with in overcrowded court lists makes it even more desirable to identify with precision those issues which can, or should, be resolved on an interim basis.
49.Although the primary judge discussed all the potentially relevant factors in her ex tempore reasons, that luxury will not always be available. Furthermore, there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD(2014) FamCAFC 42.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.

The Law

The relevant principles in relation to parenting and interim proceedings are well settled Goode and Goode [2006] FamCA 1346. The High Court in MRR v GRR [2010] HCA 4 affirmed those principles.
Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration.
Section 60CC then outlines the primary (sub-s (2)) and additional (sub-s (3)) considerations that the Court is to take into account in determining what is in the best interests of the child.
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where:
a)there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence [s 61DA(2)];
b)in interim proceedings where the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order [s 61DA(3)].
The presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests [s 61DA(4)].
In this matter there is unequivocal evidence of family violence as a consequence of the father’s criminal convictions. Such violence was perpetrated in the presence of the children. The presumption shall not apply.
If the presumption in s 61DA were to apply and the Court makes an order for equal shared parental responsibility, this “triggers” the operation of s 65DAA which requires the Court to consider whether equal time or substantial and significant time with each parent is in the child’s best interests and reasonably practicable. Such is not the case here.

Best Interests

The Primary Considerations: s 60CC(2)

The primary considerations are:
a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The children had an established relationship with the mother as their primary carer until early 2018. The relationship of the children with the mother is clearly important to them notwithstanding the overshadowing conflict of the relationship between the mother and father that had until 2014 exposed them to most probably significant family violence within the household. It is important that such relationship be protected and that it continue. Concerns have been raised as to the asserted overshadowing circumstance of the mother’s emotional and/or mental health fragility. There is no recent evidence to suggest that she suffers any significant issue in this regard and indeed she, in response to the circumstances she has found herself in, has sought professional help. It is significant that the Department in circumstances where the children may be restored to the mother’s care will re-engage with the family. Such re-engagement will facilitate an external and objective overview of circumstances within the mother’s household. At present the mother has been subject to allegations in circumstances where these children had been in the father’s full‑time care for some weeks of the school holiday and on the imminent return to the mother’s full‑time care at the commencement of the school year have made allegations that are simply unsubstantiated save for their repetition of same in circumstances where they see the father’s household to be a much better adventure than that of the mother and where they see it only fair that they spend more time with their father as they have spent most of their time with their mother.
In circumstances where, having regard to all of the matters traversed above, the Court is not satisfied there is any unacceptable risk in the children living in the mother’s household particularly in terms of the supervisory orders sought by the Independent Children’s Lawyer who unequivocally supports the return of the children to the mother’s household. It is important for the children to make orders that facilitate a restoration of their significant relationship with their mother.
By reason of the allegations made in late January 2018 and early February 2018 by the children, the father has become significantly more engaged with the children although to a significant extent his relationship with the children has been through his mother, the paternal grandmother. His own evidence is that he is not as available to the children as he would like and it is to be inferred should the children reside with him that a substantial portion of parenting obligations would be undertaken by his fiancée Ms N (or her staff depending on her availability). It is perhaps problematic to ponder as to what engagement the father would have in circumstances where his own evidence is that he has limited availability for the children. His mother has chosen to remove herself from these proceedings regrettably in circumstances where she has provided as it were a relief valve for the children caught up in allegations and counter allegation by their parents. As such, it may be that much of the father’s time with the children contemplated by orders sought by him will, indeed, be spent by the children with the paternal grandmother in B Town.
The capacity of the father to appropriately engage with the children is subject to reservations by Dr Q in the primary Chapter 15 report leading to the original consent orders and, indeed, his evidence, in the context of these proceedings, reveal a significant enmeshment of his partner with the children and in these proceedings particularly as to promoting the allegations of the children to the police.
This primary consideration is clearly indicative of the children being restored to the mother’s care in the context of supervisory orders promulgated by the Independent Children’s Lawyer.
In applying the considerations set out in subsection (2), the Court is to give greater weight to the consideration set out in paragraph (b). In the circumstances of this matter the protective concerns as to the children are of prime concern. The father’s conduct during the relationship as asserted by the mother and as substantially conceded by him and as corroborated by a review of his criminal antecedents reveals a person with significant issues as to anger management, empathy and limited reflective capacity as to the proper needs of these children. Orders devolving the primary residence of the children to the father would be fraught with the risk of behaviour repetition through his lack of self-control. He was referred for mental health assistance subsequent to separation and choose not to continue his engagement. It appears that being aware of his mental health background being available to the Court on subpoena, he took himself off to a different psychologist for one appointment in September 2018. Little weight, if any, can be afforded to that psychologist’s opinions absent the practitioner being fully informed as to the background of this matter including the husband’s criminal convictions and the primary report of Dr Q. The conflict between the parties has exploded since the mother’s application for overseas travel and the costs order secured by her against the father. There must be some circumspect as to his motivation in the context of the present proceedings.
As to the mother the allegations of risk arise from the asserted complaints made by the children at the end of the summer school holidays 2017/2018. An examination of those circumstances leads to a reasonable inference that these allegations being made in the circumstances that they were came as a result of interaction between the father, his partner and the children where they were about to be returned to the mother’s care. One allegation, indeed, related to an incident more than 12 months before that was of the father’s evidence described by the child as an accident. Otherwise, allegations made by the other child are uncertain as to time and place. The father asserts that risk to the children inherent in the quad bike accident in early October 2018 asserting that such reveals an incapacity of the mother for appropriate supervision. Such an allegation ignores the fact that one of the children was in fact hospitalised in a quad bike accident during the parties’ relationship. The Independent Children’s Lawyer appropriately seeks to injunct the parties from allowing the children to ride quad bikes or other motorised transport pending further order. That resolves this question of risk.
Otherwise, the father asserts that the child who took herself off to the swimming pool, albeit with the mother’s permission on certain conditions, and then lied to her older sister about that permission and to the pool staff was a matter within the mother’s control. In reality these things happen and, indeed, the child acknowledges that she lied to her mother and to the pool staff.
On balance and doing the best that can be done in the context of this interim hearing there is an element of risk in both households but not such that the children cannot spend significant time with each parent, particularly in circumstances where the paternal grandmother has chosen to absent herself from these proceedings. Clearly, in the context of risk, it appears that the Department is willing to re-engage in the event that a notification is made and substantial risk is identified.

The Additional Considerations

Section 60CC(3) sets out the additional considerations. Regard has been had to all. More relevantly:
a)The children have, it appears, expressed some wishes to reside primarily with the father. However, the examination of the circumstances in which those wishes have been elicited reveals that little weight can be given to those wishes in the overall context of this most conflictual parental relationship and the allegations made by the parent’s one against the other. The children’s wishes tend to ignore the background of their mother being their primary carer historically and seem to be made in circumstances mostly where they consider it fair that they now should spend more time with their father who they perceive offers a much more engaging living circumstance in the household of his partner where indeed the children continuing in that circumstance depends upon the success or otherwise of the father’s relationship with his new partner. Yet the children acknowledge that they enjoy their time with their mother and have expressed of the mother the fact that they have missed their engagement with their half siblings and the other children in the mother’s household. The children’s wishes also seem to give no consideration to the resultant dislocation of their establish social capital in B Town where they have established schooling and sporting activities and where both children report to the family consultant they have good friends at school.
b)The children’s relationships with both parents is regrettably overshadowed by the history of parental conflict and violence during their parents’ cohabitation and the ongoing conflict and litigation thereafter that has now continued for some years. These children now only aged respectively nearly ten and nearly nine have spent in effect half their lives the subject of litigation between their parents. It is clear that the children have a well-established relationship with the mother by dint of the historical circumstances. The father has more recently become engaged through his own mother with the children. The children clearly have a renewed developing relationship with their father and to a significant extent his partner. Otherwise, the paternal grandmother has now absent herself from these proceedings and seeks no order as to time or communication with the children. As such it is to be inferred that she will relate to the children through the children’s time with the father. The children also have an established relationship with their half siblings, the mother’s daughters from her previous relationship and an established relationship with their mother’s new husband and his children living within the combined household.
c)Historically, the father has had little engagement with the children in terms of participating in decisions about major long-term issues and spending time with the children. He acknowledges such in the context of the Chapter 15 Report from Dr Q. It is the mother that has assumed responsibility in relation to this aspect of the children’s lives.
d)The father has historically provided precious little financial support for the children whilst in the mother’s care, asserting his own impecuniosity and the financial fragility of the business commenced by him. There must be some circumspection as to his ability to provide financially for the children in the event that they were living primarily with him save for him and the children being supported by his partner.
e)Significantly the father’s proposal will facilitate a significant dislocation of the children from their well settled environment in B Town. The children have enjoyed all of their schooling life in B Town. The children’s social capital in B Town in terms of their engagement in the local community, day‑to‑day school life, day‑to‑day extracurricular activities, their relationship with their friends would need to be re-established in the event that they were relocated by the father to J Town. More importantly, the tyranny of distance would see the children’s relationship with their mother, their half siblings, their stepfather and his children being reduced significantly. Otherwise, should the children be living in J Town the paternal grandmother would be at the whim of the father as to when he was able to make the children available to her in B Town or otherwise in circumstances where such time would have to happen outside any time prescribed for the children with the mother. Overall, a move from B Town is contraindicated in circumstances where this is an interim application and such a significant dislocation should await the testing of evidence at final hearing which on present indications would be about six to nine months hence.
f)The distance between B Town and J Town has not prevented the father from having time with the children when they were in the mother’s primary care or, indeed, when they were primarily in the care of the paternal grandmother. Should the children be moved to J Town there would be significant difficulties for the mother in the context of other children in the household being able to maintain a significant relationship with these children.
g)The subject children are now of more mature years than when the parties separated some four years ago in 2014. They are certainly capable of self-reporting their concerns provided always that those concerns are not the product of innuendo, suggestion or manipulation by either parent.
h)Both parents have demonstrated to varying degrees an inappropriate attitude to the children and their responsibilities of parenthood. The existence of significant conflict and domestic violence in their personal relationship during cohabitation must be seen as having a significant effect on the children. Clearly, the ongoing conflict between them in the regrettable circumstances discussed above means that both parents need to look introspectively at themselves and to develop some reflective capacity as to the needs of their children to be removed from the present conflict and for the children to have a settled and nurturing environment that develops a meaningful relationship with both parents.
i)There is no doubt that there has been family violence in the relationship between the mother and the father. Some perhaps triggered by the mother’s emotional responses in circumstances where she has had historically some mental health issues particularly related to the unfortunate death of her former partner. Some most certainly as a consequence of the father’s unrestrained behaviour and his conduct towards the mother. The evidence of his criminal convictions and his own concessions to Dr Q and to the present family consultant are such that there must be held ongoing reservations as to his capacity to properly engage in interpersonal relationships of significance. There is no current family violence order in place.
j)Whilst it is preferable in the context of these interim proceedings to make orders that would perhaps avoid further applications pending final hearing it is readily apparent that in the context of this relationship and its history there can be no guarantee. The Court can only hope that orders on an interim basis are fashioned in such a way as to hopefully avoid further application.

Having regard to the best interest of the children and in circumstances where there are strong and reasonable grounds to find that the father has engaged in family violence the presumption as to equal shared parental responsibility is not to apply. Otherwise, it is not appropriate for the presumption to apply.
It is in any event not in the children’s best interest for there to be shared care or substantial and significant time orders. By reason of the distance between the parties, it is impracticable in any event for either of such arrangements to be considered.
In all of the circumstances and having regard to the best interest considerations discussed above and in the context of the convoluted factual matrix set out above, it is appropriate that orders on an interim basis be made substantially as sought by the Independent Children’s Lawyer.
Such orders will be made accordingly as set out at the forefront of these reasons for judgment.

I certify that the preceding one hundred and forty-one (141) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 14 December 2018.

Associate:

Date: 14 December 2018

[2018] FamCA 1068

14 December 2018

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Procedural Fairness

Injunction

Remedies

Expert Evidence