PIERCE & PERCIVAL

FEDERAL CIRCUIT COURT OF AUSTRALIA

PIERCE & PERCIVAL

[2017] FCCA 1175

Catchwords:
FAMILY LAW – Parenting – competing applications – best interests of children.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA

Applicant:

MS PIERCE

Respondent:

MR PERCIVAL

File Number:

PAC 4735 of 2014

Judgment of:

Judge Newbrun

Hearing dates:

6, 7, 8 February 2017

Date of Last Submission:

1 June 2017

Delivered at:

Parramatta

Delivered on:

2 June 2017

REPRESENTATION

Counsel for the Applicant:

Mr Shroder

Solicitors for the Applicant:

Smythe Wozniak Solicitors

Solicitors for the Respondent

Self-represented

ORDERS

That the parties have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2008.
That the children of the marriage, X born (omitted) 2005 and Y born (omitted) 2008 live with the Mother (Mother).
That the mother and father shall forthwith do all such things and execute all necessary documents to ensure that family therapy takes place with either Dr L or Mr N as follows:
(a)The solicitors for the mother to arrange an intake for the purpose of family therapy with either Dr L or Mr N [‘the family therapist’], whomever is most able to commence family therapy as soon as practicable and notify the mother and father of such intake.
(b)The mother and father shall attend upon the family therapist within seven days of such notification and sign all necessary documents and do all such things and each pay one half the costs of such therapy in advance, so as to ensure the family therapy commences as soon as practicable.
(c)Thereafter the mother and father shall do all such things as reasonably requested by the family therapist to ensure the children attend upon the family therapist as required.
(d)The mother and father shall follow the advice of the family therapist from time to time so as to complete the family therapy, or to conclude the family therapy as advised by the family therapist.
That the children spend time with the father as follows:
(a)During school terms:
(i)For two months from the date of these Orders, each alternate Saturday from the conclusion of the children’s Saturday sporting activities until 7.00 pm. The father may attend on such earlier time on that Saturday at the children’s sporting activities should he desire. Changeover shall occur at the end of sporting activity on Saturday for the commencement of the father’s time and at the mother’s residence at the conclusion of his time.
(ii)Thence for a period of two months, from 9.00am each alternate Saturday [or beforehand so as to take the children to their Saturday sporting activities] until 7.00pm Sunday. Changeover shall be at the mother’s residence both for collection and delivery of the children. The father shall ensure that the children attend their Saturday sporting activities in a timely manner as required by the coach and not to be less than thirty minutes before the commencement of the sport.
(iii)Thereafter each alternate weekend from 9am Saturday [or at the earlier commencement of the children’s sporting engagement on that Saturday] until 5.00pm Sunday where changeover shall occur at McDonald's (omitted). The father shall ensure that the children attend their Saturday sporting activities in a timely manner as required by the coach and not less than 30 minutes beforehand.
(b)That school holiday time shall commence only after order 4(a)(ii) has expired and order 4(a)(iii) has taken effect. Upon that event occurring the father shall spend time with the children during the school holidays as follows:
(i)At the conclusion of terms 1, 2 and 3 school holidays each year, from 9am on the first Saturday of the holidays and conclude at 6pm on the following Saturday with changeover to occur at McDonald's (omitted);
(ii)in the Christmas school holidays with changeover to occur at McDonald's (omitted)
a.from 4pm Christmas Day to 4pm Boxing Day in even years and 4pm Christmas Eve to 4pm Christmas Day in odd years, and
b.for one week not to include 4 January to 14 January in each year, with the father to give 6 weeks’ notice in writing beforehand of which week.
(c)From 5pm the Saturday before Father’s Day until 5 pm on Father’s Day with changeover to occur at McDonald's (omitted)
(d)As otherwise agreed between the parties in writing by text or email.
That the father’s time shall be suspended on Mother’s Day from 5pm on the Saturday before Mother’s Day to 5pm on Mother’s Day if the children are otherwise in his care under these Orders and changeover shall occur at McDonald's (omitted).
The father shall take the children to their Saturday sporting activities when they are in his care, irrespective of any wish that they express to him that they [or either one of them] does not wish to attend, or unless he obtains the mother’s consent in writing beforehand that they [or either one of them] need not attend.
Should either parent enrol the children or either of them in a sporting or extra-curricular activity other than that defined in Notation 2 below then the other parent shall have no obligation to ensure the child attends that sporting or extra-curricular activity.
That the mother shall make available for collection by the father from her residence the Saturday sporting activity clothing, footwear and uniforms the children will need on each occasion they spend time with him and the father shall ensure that he returns each of these items to the mother at the conclusion of each occasion of time with him in a washed and cleaned condition.
That the father shall provide the children with their day to day clothing and personal items for the time they are in his care.
The father shall ensure that the children’s school uniforms, shoes and other clothing items they may bring with them at the commencement of time with him are returned to the mother at the conclusion of each occasion of time with him in a washed and cleaned condition.
That each party shall advise the other as soon as practicable if the children are injured or hospitalised whilst in their care and shall provide details of the treating hospital and/or medical personnel and each parent is at liberty to visit the children in hospital.
That the father shall contact the organizing bodies or coaches of the children’s Saturday sporting activities and provide his contact details for the purpose of receiving information and he shall ensure that he checks social media broadcasts as may be used in relation to such activities so as to ensure that the children attend that activity in a timely manner.
That each party notify the other party in writing at least one month in advance of any proposed change of address for the children and the date such changes will commence.
That each party notify the other party in writing before or as soon as practicable after any change of their telephone number or email address.
That before the commencement of each school term the mother shall notify the father by text or email about Saturday sporting activities for the children in the coming school term and if such information is not available to the mother before the commencement of the school term, the mother shall do this as soon as she receives the relevant information.
If either party wish to travel overseas with the children, then the following should occur:
(a)the parent intending to travel overseas shall give the other parent, not less than 90 days’ notice prior to the intended departure date and supply the other parent with information concerning the intended travel including the destination, travel dates and basic itinerary of where the children will be staying;
(b)the other parent, will, in 14 days, advise the parent proposing the travel plans as to whether they object to the travel, and
(c)if no objection is received within the permitted time, then the parent proposing the travel shall be at liberty to make the appropriate travel bookings and supply an itinerary to the other parent.
That in the event of the expiry of the children’s passports, the parties will do all things and sign all documents necessary to ensure the children have valid passports.
The parties are hereby restrained from allowing Y to be transported in an (omitted) work truck or any vehicle without a booster seat for Y until Y is 145cm tall.
The father is restrained from consuming alcohol whilst the children are in his care and shall not consume alcohol for at least 12 hours prior to the children coming into his care for a period of two years from these Orders.

IT IS NOTED THAT:

The mother and father have given consent to attend family therapy and ensure the children attend family therapy in accordance with the above Orders.
The Saturday sporting activities for X are defined as (hobbies omitted) and for Y on a Saturday morning being either (hobby omitted) or (hobby omitted) sport.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4735 of 2014

MS PIERCE

Applicant

And

MR PERCIVAL

Respondent

REASONS FOR JUDGMENT

Introduction

This was the final hearing of competing parenting proposals in relation to the children X born (omitted) 2005 and Y born (omitted) 2008 (‘the children’).

Competing proposals

The orders sought by the mother were ultimately as follows:
1. That the parties have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2008
2. That the children of the marriage, X born (omitted) 2005 and Y born (omitted) 2008 live with the Mother (Mother).
3. NOTED:
That the mother and father have given consent to attend family therapy and ensure the children attend family therapy in accordance with the following Orders.
4. That the mother and father shall do all such things and execute all necessary documents to ensure that family therapy takes place with either Dr L or Mr N as follows:
4.1. The solicitors for the mother to arrange an intake for the purpose of family therapy with either Dr L or Mr N [ ‘the family therapist’], whomever is most able to commence family therapy as soon as practicable and notify the mother and father of such intake.
4.2. The mother and father shall attend upon the family therapist within seven days of such notification and sign all necessary documents and do all such things and each pay one half the costs of such therapy in advance, so as to ensure the family therapy commences as soon as practicable.
4.3. Thereafter the mother and father shall do all such things as reasonably requested by the family therapist to ensure the children attend upon the family therapist as required.
4.4. The mother and father shall follow the advice of the family therapist from time to time so as to complete the family therapy, or to conclude the family therapy as advised by the family therapist.
5. That the children spend time with the father as follows:
5.1. During school terms:
5.1.1. For three months from the date of these Orders, each alternate Saturday from the conclusion of the children’s Saturday sporting activities until 7.00 pm. The father may attend on such earlier time on that Saturday at the children’s sporting activities should he desire. Changeover shall occur at the end of sporting activity on Saturday for the commencement of the father’s time and at the mother’s residence at the conclusion of his time.
5.1.2. Thence for a period of three months, from 9.00am each alternate Saturday [or beforehand so as to take the children to their Saturday sporting activities] until 7.00pm Sunday. Changeover shall be at the mother’s residence both for collection and delivery of the children. The father shall ensure that the children attend their Saturday sporting activities in a timely manner as required by the coach and not to be less than thirty minutes before the commencement of the sport.
5.1.3. Thereafter each alternate weekend from 9am Saturday [or at the earlier commencement of the children’s sporting engagement on that Saturday] until 5.00pm Sunday where changeover shall occur a McDonald's (omitted). The father shall ensure that the children attend their Saturday sporting activities in a timely manner as required by the coach and not less than 30 minutes beforehand.
5.2. That school holiday time shall commence only after order 5.1.2 has expired and order 5.1.3 has taken effect. Upon that event occurring the father shall spend time with the children during the school holidays as follows:
5.2.1. At the conclusion of terms 1, 2 and 3 school holidays each year, from 9am on the first Saturday of the holidays and conclude at 5 {6pm?} pm on the following Saturday with changeover to occur at McDonald's (omitted);
5.2.2 in the Christmas school holidays with changeover to occur at McDonald's (omitted)
a. from 4pm Christmas Day to 4pm Boxing Day in even years and 4pm Christmas Eve to 4pm Christmas Day in odd years, and
b. for one week not to include 4 January to 14 January in each year, with the father to give 6 weeks notice in writing beforehand of which week.
5.3. From 5.pm the Saturday before Father’s Day until 5 pm on Father’s Day with changeover to occur at McDonald's (omitted)
5.4. As otherwise agreed between the parties in writing by text or email.
6. That the father’s time shall be suspended on Mother’s Day from 5pm on the Saturday before Mother’s Day to 5pm on Mother’s Day if the children are otherwise in his care under these Orders and changeover shall occur a McDonald's (omitted).
7. The father shall take the children to their Saturday sporting activities when they are in his care, irrespective of any wish that they express to him that they [or either one of them] does not wish to attend, or unless he obtains the mother’s consent in writing beforehand that they [or either one of them] need not attend.
8. Noted: That the Saturday sporting activities for X are defined as (hobbies omitted) and for Y on a Saturday morning being either (hobbies omitted) sport.
9. Should either parent enroll the children or either of them in a sporting or extra-curricular activity other than that defined in 8 above then the other parent shall have no obligation to ensure the child attends that sporting or extra-curricular activity.
10. That the mother shall make available for collection by the father from her residence the Saturday sporting activity clothing, footwear and uniforms the children will need on each occasion they spend time with him and the father shall ensure that he returns each of these items to the mother at the conclusion of each occasion of time with him in a washed and cleaned condition.
11. That the father shall provide the children with their day to day clothing and personal items for the time they are in his care.
12. The father shall ensure that the children’s school uniforms, shoes and other clothing items they may bring with them at the commencement of time with him are returned to the mother at the conclusion of each occasion of time with him in a washed and cleaned condition.
13. That each party shall advise the other as soon as practicable if the children are injured or hospitalised whilst in their care and shall provide details of the treating hospital and/or medical personnel and each parent is at liberty to visit the children in hospital.
14. That the father shall contact the organizing bodies or coaches of the children’s Saturday sporting activities and provide his contact details for the purpose of receiving information and he shall ensure that he checks social media broadcasts as may be used in relation to such activities so as to ensure that the children attend that activity in a timely manner.
15. That each party notify the other party in writing at least one month in advance of any proposed change of address for the children and the date such changes will commence.
16. That each party notify the other party in writing before or as soon as practicable after any change of their telephone number or email address.
17. That before the commencement of each school term the mother shall notify the father by text or email about Saturday sporting activities for the children in the coming school term and if such information is not available to the mother before the commencement of the school term, the mother shall do this as soon as she receives the relevant information.
18. If either party wish to travel overseas with the children, then the following should occur:
18.1. the parent intending to travel overseas shall give the other parent, not less than 90 days notice prior to the intended departure date and supply the other parent with information concerning the intended travel including the destination, travel dates and basic itinerary of where the children will be staying;
18.2. the other parent, will, in 14 days, advise the parent proposing the travel plans as to whether they object to the travel, and
18.3. if no objection is received within the permitted time, then the parent proposing the travel shall be at liberty to make the appropriate travel bookings and supply an itinerary to the other parent.
19. That in the event of the expiry of the children’s passports, the parties will do all things and sign all documents necessary to ensure the children have valid passports.
20. The parties are hereby restrained from allowing Y to be transported in an (omitted) work truck or any vehicle without a booster seat for Y until Y is 145cm tall.
21. The father is restrained from consuming alcohol whilst the children are in his care and shall not consume alcohol for at least 12 hours prior to the children coming into his care for a period of two years from these Orders.
In final submissions, the father agreed with the mother’s above proposed orders 1-4; he did not agree with proposed orders 5.1.1; he agreed with proposed order 5.1.2 absent the opening word, “Thence”; he agreed with proposed order 5.2 absent the following words at the commencement of the proposed order, “That school holiday time shall commence only after order 5.1.2 has expired and order 5.1.3 has taken effect. Upon that event occurring” and by amending proposed order 5.2.2 b. so that it read, “for one week from 14 January in each year.”; and he agreed with proposed orders 5.3, 5.4, and proposed orders 6-21 inclusive. The father did not agree with proposed order 5.1.3; rather he proposed, after 3 months, that he spend time with the children, each alternate weekend from after school Friday [or 5pm from the mother’s residence] until 5pm Sunday where changeover shall occur at McDonald's (omitted). The father shall ensure that the children attend their Saturday sporting activities in a timely manner as required by the coach and not less than 30 minutes beforehand.

Background

The mother commenced these proceedings on 3 October 2014 for orders to take the children overseas.
On 11 November 2014, the Court ordered that the mother could take the children overseas, that the parties have equal shared parental responsibility, that the children live with the mother, and that the father spend certain time with the children.
The interim orders of the Court dated 24 November 2015 provided, inter alia, that the children live with the mother, the parties have equal shared parental responsibility, and the children spend certain time with the father, including from after school on Friday until before school on Monday each fortnight. The orders also included restrictions upon the father, particulars regarding changeovers, and an order for a Family Report.
The interim orders dated 24 November 2015 appear to have broken down. The mother alleged that a number of incidents occurred in late 2015, and the father’s time with the children has not occurred pursuant to the interim orders since that time.

In January 2016, the father moved to (omitted), and in early July 2016, the Father relocated to (omitted) on the New South Wales (omitted). Since May 2016, the father only spent limited time with the children.

Short Chronology

The mother was born on (omitted) 1980 and is currently 36 years of age.
The father was born on (omitted) 1982 and is currently 34 years of age.
The parties commenced a relationship in late 2001/early 2002.
The parties married on (omitted) 2006.
X was born on (omitted) 2005 and is currently 12 years of age.
Y was born on (omitted) 2008 and is currently 8 years of age.
The parties separated on 26 September 2010. Since separation the children have lived with the mother in the (omitted) area.
On 15 August 2011, the parties attended Family Relationships Australia mediation in (omitted) and a Parenting Agreement was created. Pursuant to this agreement, the father spent some time with the children on alternate weekends from 9am Saturday until 6pm Sunday, with no additional time during school holidays.
In August 2013, the father commenced fly-in fly-out employment with a Western Australian based company.
The mother instigated proceedings on 3 October 2014 to take the children overseas.
From late 2014 to 24 November 2015, the father spent some time with the children pursuant to the Parenting Agreement.
Following the interim orders dated 24 November 2015, a couple of incidents are alleged to have occurred during changeovers, and the father did not spend time with the children pursuant to the interim orders.
In January 2017, an incident occurred at changeover in which the father is alleged to have manhandled Y. The police were called, and the father did not have his holiday time with the children.

Material of parties

The mother’s documents at the final hearing comprised:
a)Further Amended Application filed 16 January 2017
b)Affidavit of Ms Pierce filed 17 January 2017
c)Affidavit of Mr F filed 16 January 2017.
d)Case outline.
The father’s documents comprised:
a)Affidavit of Mr Percival filed 24 January 2017; and
b)Family Report of Ms K dated 24 August 2016; exhibit A.
c)Case outline.
The following documents were tendered and became Exhibits in the proceedings:
a)Exhibit A: Family Report of Ms K dated 24 August 2016
b)Exhibit B: Mental Health Care Plan and Psychologist Report.

Evidence

Mother

The child Y attends (omitted) Public School and is in year 3. The child X commenced high school in 2017 at (omitted) High School in (omitted).
The mother formed a new relationship with Mr F in 2011. He has two children of his previous marriage, A aged 12 years and B aged 8 years and those children spend time with him at their home each weekend. They have a new son C born (omitted) 2015.
The children have lived with the mother since the parties’ separation in September 2010. She lives with the children in a home at (omitted), together with Mr F and the new child C.
During the parties’ relationship, the mother was the primary caregiver.
The father’s employment during the parties’ relationship was varied and he worked long hours.
The child X has participated in (hobby omitted) since she was 4 years old. She has played (hobby omitted) since 2009. The mother is the (hobby omitted) coach for X’s team.
The child Y has been having swimming lessons since he was six months old.
During the parties’ relationship, the father drank alcohol daily and frequently drank to excess. The father came home from work smelling considerably of alcohol on many nights of the week and by the end of the relationship it was every night. During the relationship the mother had observed the father having verbal altercations with other persons when he was inebriated.
During the parties’ relationship, the mother was subjected to family violence by the father, and the children were exposed to this occurrence. When the father was drunk, as well as being verbally abusive of the mother, he threw things at her. For example, on occasions he threw the mother’s phone at her after he grabbed it to check her text messages. The mother felt controlled by the father’s behaviour as she was fearful for the children if she left him. The mother felt too frightened, demeaned, intimidated and embarrassed to report the father’s behaviour to the police or her family.
The father did not seek any assistance for his alcohol consumption during the parties’ relationship.
On the evening of 25 September 2010 the father had been drinking alcohol. There was an argument between the parties in relation to the father’s drinking alcohol. The father picked up the mother’s phone and threw it and it smashed. The father verbally abused the mother and accused her of sleeping with someone else, which was denied by the mother. The parties slept in separate beds that night.
Prior to the parties’ separation, the father did not inform the mother that he had had suicidal thoughts (albeit that the father did not seriously contemplate self-harm and had taken no action in relation to these thoughts) and was experiencing depression. He did not inform the mother that he had obtained a Mental Health Plan from his GP Dr C in 2010 (see exhibit B).
The Mental Health Plan prepared by Dr C states that the father’s presenting issues were depression and anxiety. The patient history recorded in the Plan states, “long-standing anxiety/depression… anger issues-marriage breakdown. Prev ETOH issues.” Under the heading “Medications”, the entry is, “start Lovan..” Under the heading “Risks and comorbidities”, the entry is, “suicidal thoughts but not recently-no action.”
The father attended a counsellor at (omitted) Therapy in 2010, attending 6 counselling sessions over a few months.
Shortly after the parties’ separation, the parties met at their rented home. The father requested the mother to move back into the home with the children. As the mother was leaving, the father became angry and threw some of the mother’s clothes on the front lawn.
The father agreed to see the children in late November/early December 2010. The parties agreed that the children would spend time with him from Saturday morning to before school Monday mornings each alternate weekend.
Following the January 2011 holidays, the arrangements for the children to spend time with the father became disorganised with the father wanting to change the arrangements at short notice.
The father changed jobs frequently between about 2007 until 2015. His work days and work hours constantly changed and reduced the amount of time and the frequency with which the children spent time with him. When the father spent time with the children he did not provide clothes for the children or anything they needed whilst they were with him, and the mother had to provide those items.
The parties commenced a new parenting arrangement in late 2011, being that the children would spend time with the father from 9 AM Saturday until 6 PM Sunday on alternate weekends. From 2011 to 2015 the father continued to call the mother and cancel arrangements at short notice, and the children were confused about when they would see the father and for how long.
In about August 2013 the father told the mother that he was going to work in Perth. The father had obtained a fly in fly out job. Between August 2013 and about March 2015 the father came back to Sydney for a seven-day period every 21 or 28 days. The mother did not receive any confirmed work roster from the father during this time, and nor was she given the father’s flight times. The children saw the father for varying periods of time in the week he was in Sydney until about July 2014.
From about August 2014 until the November 2015 interim orders, the children generally spent time with the father on the third weekend (from 10 AM Sunday to before school Tuesday), and he took the children to (hobby omitted) on Mondays and the child X’s (hobby omitted) class on Monday nights.
From about August 2014 until interim parenting orders were made in November 2015, the children generally spent time with the father from 10 AM Sunday until before school on Tuesday each third weekend.
In about early 2015, the father suffered depression again, in relation to employment issues. The father sought advice from his GP and was again prescribed antidepressant medication. He took this medication for about a fortnight with positive results. The father felt much better after resigning from his employment, and was then able to permanently return to working in Sydney, having the opportunity to be around the children more.
The father returned to Sydney in about late March 2015. In May 2015 he commenced employment with (employer omitted). The father’s base is at (omitted).
The children, following the father’s return from Perth, until the November 2015 interim orders, spent block time with the father every three weeks from Sunday morning until before school on Tuesday. During this time the father was living at (omitted). After the father returned from Perth at about the end of March 2015, he frequently forgot activities the children needed to attend, was late, and became annoyed when there were extra things that they needed to do for the extra-curricular activities.
Prior to the November 2015 interim court orders, the father transported the children from time to time in the work truck of (employer omitted) which had no child seats or proper child restraints.
The father had commenced a relationship with Ms E in about August 2015 and he did not inform the mother about his relationship with her at this time.
On 21 January 2016 the father told the mother that he was now living at (omitted). On 22 January 2016 the children returned from their time with the father and told the mother that the father was living with his girlfriend.
The children told the mother that after spending time with the father during the school holidays in January 2016, they had both cried themselves to sleep whilst spending time with the father.
From at least February 2016, the children declined to spend time with the father. They would often cry at the time that they were due to spend time with the father. On one occasion in about mid-February 2016, following the children declining to spend time with the father, the father told the mother that he would consult his solicitors and informed the mother that the children would be taken off her.
Following the father returning the children to the mother at the conclusion of their time with the father in the school holidays in April 2016, the children told the mother that the father had informed them that he was moving to the (omitted) by the next school holidays and that the father had split up with his girlfriend. The father did not inform the mother of his (omitted) address until about 30 June 2016, through a letter from his solicitors.
During 2016, the parties were often unable to co-parent the children, often in relation to co-ordinating the children’s extracurricular activities including sporting clothes.
On 6 May 2016 the father told the mother that he had moved his address and was now living at (omitted). At about this time the children informed the mother that, when spending time with the father, they had stayed at the father’s brother’s place in (omitted).
On 22 May 2016, the children informed the mother that they did not want to spend time with the father and they were crying and very upset.
On 3 June 2016, the children were due to spend time with the father for a weekend from after school Friday 3 June 2016. The father had attended the school waiting to pick up the children. The children told the mother that they were too scared to go over and tell the father that they didn’t want to go with him.
The children were due to spend time with the father for the usual alternate weekend from Friday after school on 17 June 2016 until before school on Monday, 20 June 2016. On the afternoon of Friday, 17 June 2016 the child Y told the mother that he did not want to go and spend time with the father, and which did not occur.
On about 29 June 2016, the mother’s solicitors wrote to the father’s solicitors stating, inter alia, that the father had not informed the mother of where he had been living recently or where he proposed to live on the (omitted). Further, they stated that the mother had not been informed by the father of whether the father had made provision for suitable bedding for the children at his accommodation, and whether the father had purchased suitable clothes for the children to wear when they spent time with him. On about 30 June 2016, the father’s solicitors wrote to the mother’s solicitors stating, inter alia, that the father had only recently moved; his current address was in (omitted); that the father had a bed for each of the children at his residence with the appropriate bedding and linen; and that the father had a chest of drawers for each child with clean clothes for the children.
On 29 July 2016, the father arrived to spend time with the children. The children told the mother that they informed the father that they did not wish to spend time with him. The father attended the mother’s residence. The children informed the father that they did not wish to spend time with him. The father left the premises.
The children again declined to spend time with the father on the weekend commencing Friday, 12 August 2016, having informed the father that they did not want to go with him. This again occurred on the weekend commencing Friday, 26 August 2016.
The children spent time with the father on Father’s Day 4 September 2016 from 9AM to 5PM.
The children declined to spend holiday time with the father on the weekend commencing Friday, 23 September 2016. They again declined to spend time with the father for the weekend commencing Friday 4 November 2016. On the weekend commencing Friday, 18 November 2016, the child Y went with the father but the child X declined to spend time with the father. The child Y was returned by the father to his school 40 minutes late on Monday, 21 November 2016 and the child was unfocused at school and was upset.
The children spent time with the father on the weekend commencing Friday 16 December 2016 and were returned on Monday, 19 December 2016.
The children spent time with the father from 4PM Christmas Day to 4PM Boxing Day.
The children were due to spend the second half of the Christmas 2016 school holidays with the father. A changeover was due to occur on 10 January 2017 at McDonald's (omitted). On the evening before 10 January 2017, and at the changeover on 10 January 2017, the children expressed their wish not to spend time with the father. At the changeover the child X expressly told the father that she didn’t want to go with him. The father told the mother that he would be calling the police. The children both expressly declined to go with the father, in the father’s presence. The father directed the children to get into his car but again the children declined. The father went to grab the child X and she pulled away and told the father that she did not want to go with him.
The father telephoned his solicitors. He again directed the children to get into his car and they refused. At one point the father picked up the child Y and carried him to his car. This child started crying. The father put this child in his car and locked the door. The child X had got into the mother’s car and locked her door. The child X was also crying. The father came to X’s car window and repeatedly asked her to get out of the car. The child X told the father repeatedly that she didn’t want to. The mother called the police at about 10:45AM. The police arrived at 11:05AM.
The children told the police they did not want to go with the father. The father came over to the mother’s car, and said goodbye to the children. The children and the mother then left in her car. Whilst this changeover incident occurred, the mother did not want to make the children more upset than they were, so she did not demand that they go with the father.
Later that day, the father communicated with the mother by text message asking the mother when she was going to facilitate the father’s time with the children.
On 14 January 2017 the children told the mother that they didn’t want to go and spend time with the father. The mother communicated these details to the father the next day.
The child Y attended speech therapy from April 2011 until April 2016. The mother usually took the child to all of his speech therapy lessons. And she usually paid for these lessons. The father did not follow the dietary recommendations of the speech therapist or paediatrician. Further, the father often did not complete the child’s own therapy required by the speech therapist, with the father often informing the mother that he did not have the time.
In winter the children play (hobbies omitted). Prior to the interim court orders in November 2015, when the children were with the mother each Saturday, the father did not attend their games on Saturdays.
On 22 December 2016, the mother attended the individual intake session at Unifam (omitted), in relation to the Anchor Program that had been recommended that the children participate in by the family report writer, Ms K. The mother had been very concerned and worried about the children and the poor situation concerning their relationship with the father.
Every time the children were due to spend time with the father, the mother reminded them of the arrangements and told them that they needed to go when the children objected. The children gave the mother various reasons for not wishing to spend time with the father; they informed the mother that they do the same things over again with the father; they cannot do the things that they want to do and the father gets angry; they do not want to go back and forth anymore and do not want to drive up to the (omitted); the father had another girlfriend; they do not wish to share a bedroom with each other when spending time with the father; they wish to spend shorter times with the father and he refuses; and that the father treats them like “babies”.
The child X informed the mother that she would decline to spend time with the father if she has to come back on Monday mornings, and the child Y is unable to cope with the school day if he has to travel from the (omitted) to school in (omitted) on the Monday morning. Both children informed the mother that they were concerned about the drive up to the (omitted) on Fridays and then returning very early on Saturday morning for their sporting commitments.
The mother wants the children to enjoy seeing the father and wants them to be happy to go with him. The mother feels that urgent family therapy is needed for the children and the parents to improve the situation and long-term relationships between the children and the father. The father agreed in cross examination that he would benefit from doing family therapy to repair the relationship between himself and the children.
In February 2017, the mother commenced a permanent part-time position at a (employer omitted) as a (occupation omitted), working from 8:30 AM to 2:40 PM each school day. She will not be working in the school holidays.
Prior to the November 2015 interim court orders, both children told the mother words to the effect, “Dad drinks lots of beer at home.” The mother remains concerned that the father drinks alcohol to excess.
The mother did not raise the issues of past verbal abuse and domestic violence in her earlier affidavits because she was embarrassed to bring them up.
The father agreed in cross-examination that his relationship with the children had been fractured since about late May 2016.
The father, in cross-examination, stated that he could not think of anything that he had said to the children post separation up until May 2016 which had caused them to be defiant in relation to spending time with him. He stated in this context that the mother had sought to sever his relationship with the children since May 2016. He stated that before this time the mother had been supportive of his relationship with the children.

The father stated that he had entered into a new relationship with a woman in about mid-August 2016. The father stated that he “possibly” expects this woman to be present with the children when they are spending time with him. She works in (omitted) and lives in (omitted) and the father sees her on weekends. The father stated that he did not consider it important for the court to be aware of this woman. The father had not told the mother of this new relationship.
The father conceded the possibility that it would have been confusing to the children that since his return from Western Australia he had had several residences and had two partners.

Family Report Writer

The family report was Exhibit A. The family consultant who prepared the family report was Ms K. She interviewed the parties, the children, and the mother’s new partner on 3 August 2016.
The father told the family report writer that his new residence at (omitted) comprised a two-bedroom apartment. (omitted) is located about 130 km distance from (omitted) Public School and it takes about 1hr 45m to 2 hours to drive, one-way. The father commutes from (omitted) to work in Sydney each day.
The father stated he is a frequent visitor to his brother’s home, located in (omitted) Sydney close to (omitted), where he is always welcome to stay overnight with the children.
The father did not complete a university degree course, but entered the workforce instead. He trained on the job to become a (occupation omitted). He worked in this specialty in his fly in fly out job in Western Australia. He also works in this position with (employer omitted), including as a (occupation omitted).
Both parties informed the family report writer that the father had not spent time with the children since the weekend commencing 21 May 2016, a period of almost 3 months.
The family report writer noted that an issue in dispute, at the time of her interviews with the parties, was whether or not the time that the children spend with the father should be reduced or remain as current, noting the interim parenting orders of November 2015.
The mother presented to the family report writer, inter alia, as being conscientious with a strong preference for order, finding reassurance in routine, consistency and structure. She also impressed as carrying a high level of underlying anxiety, being disposed to a constant state of nervous vigilance.
The mother told the family report writer that the children had been expressing that they were not enjoying the time that they were spending with the father from around Easter 2016.
The family report writer observed that the mother appeared to place a high priority on the importance of the children maintaining their involvement in multiple sporting activities.
The father impressed the family report writer, inter alia, as being emotionally defended and the bearing of a man who believed the world seemed in a conspiracy to slight or injure him. He impressed as carrying an underlying level of sadness and unresolved grief. He demonstrated that that although prone to introspection, he was also an intelligent, thoughtful man who was articulate and capable of insight, and seemed to care deeply about maintaining a relationship with the children.
The father told the family report writer that he wanted to see the children and spend fatherly time with them without the interruption and interference of other people.
The father told the family report writer that his ex-girlfriend was “a psycho” so he could not stay with her and he did not have enough money to pay the mortgage and live in Sydney. He earns $69,000 a year and he pays $687 per month in child support.
In discussing his current alcohol use the father told the family report writer that he has not been using alcohol when the children are with him, not since the court order. He said he is happy to keep the court order in this context (the court notes that interim order 11 of the court’s orders of 24 November 2015 provides that the father is restrained from consuming alcohol whilst the children are in his care and shall not consume alcohol for at least 12 hours prior to the children coming into his care). He stated that he does not have a dependence on alcohol, it is not a need or requirement, and he is not an alcoholic.
The children told the family report writer that the reason the children have refused to go with the father to spend time with him, as provided under the court orders, is, inter alia, because he does not listen; spending time with the father makes them feel anxious and afraid; they are afraid to tell the father what they feel for fear of him becoming angry with them; they never know where they are going to sleep; (omitted) is too far away and they may not make it back to play sport on weekends or get to school in time on Mondays.
The family report writer noted that these concerns of the children echo the same concerns reported by the mother. Further, the child Y, when asked by the family report writer what was the main problem, stated, “there were always changes. When dad went to Western Australia, the entire thing had to change. We didn’t know when we were seeing dad. Then he was living with his girlfriend at (omitted). But now he has moved to the (omitted).”
The child Y also reported to the family report writer that the father and his former girlfriend used to fight with each other with swearing. The children were mostly watching movies or sleeping during this time.
The child X reported to the family report writer, inter alia, that she feels that she cannot say anything around the father. She reported that when the father asked the children whether their weekend was fun, if she said it was not fun, the father “lost it at us, he gets really mad, he started swearing at us… So if I had a bad day, now I just say “yes” and agree with him because I don’t want to get yelled at again.” She further stated that they cannot speak up when they are with the father. They do not say anything or do anything. They just try to stay happy. The child X stated that, “but I feel really down inside.”
The child Y reported to the family report writer that “I start to feel worried and thinking about my worries…like what if I do a bad job and thinking about it… It feels like you are panicking if I think about going to see dad.” He stated that if he went to see the father by himself he would be very worried if no one was with him. The child X stated that if she had to see the father by herself, she would feel awkward and would not know what to do.
The child Y reported to the family report writer that if he calls the father Mr Percival at his house he gets mad. This child reported that on one occasion the father, when he got mad, punched a wall, when they were at the father’s residence in bed.
The child X stated that she had not seen the father drinking alcohol or seeming under the influence of alcohol when the children were spending time with him for a long time. She stated that she was not worried about this issue any more.
The family report writer referred to the children’s strong feelings of emotional ambivalence, disappointment and anger toward the father.
The family report writer observed the children in the presence of the father. Once in the children’s presence, the family report writer observed that the father showed himself capable of warming, becoming animated, maintaining age-appropriate conversation and even being playful, funny and demonstrative toward them. The family report writer observed that towards the end of the children’s time with the father in the observation session, the children showed genuine expressions of happiness and joy. She stated that the children said goodbye to the father having broken through some of the strained distance that had initially kept them apart. They exchanged spontaneous and reciprocal hugs with the father.
Under the heading “Evaluation”, the family report writer stated that the children were assessed as having a warm and positive relationship with the mother, who was their primary attachment figure and carer.
The family report writer assessed that although the children have been refusing contact with the father, their anxiety and ambivalence concerning the father closely mirrors the same anxieties and fears about the father expressed by the mother, in particular that the father can erupt with explosive outburst of anger which causes the children distress.
The family report writer stated that the father appears to have some difficulties with poor emotional regulation and his capacity for effective parenting reflective functioning is changeable. She observed that although the father demonstrated he is capable of being child focused and having insight into the children’s emotional-social needs, his capacity for making himself both physically and emotionally available has been inconsistent and intermittent. She stated that the children seem to genuinely experience a high level of anxiety when they are with the father because they have learnt over time that spending time with him is not always emotionally safe or predictable. She observed that the children are strongly aligned with the mother.
The family report writer assessed that the child X has a closer and stronger attachment with the father than does Y.
The family report writer stated that the father, by self-report in his affidavit material, admitted that at the time of the separation he had great difficulties adjusting to the loss of the marriage. The father appears to have had a strong post separation grief reaction which led to a period of depression and difficulties with using alcohol as a coping strategy (the court notes the father’s admission in paragraph 60 of his trial affidavit that at the time of separation, his consumption of alcohol had increased and he used alcohol as a means to cope). The father’s capacity for effective parental reflective functional and emotional availability immediately post separation was assessed by the family report writer to have been low. She observed that the mother appeared to demonstrate an extremely high level of hypervigilant concern for the children’s safety and showed a level of unwillingness to allow the father to have any opportunity to begin to repair or even develop his own relationship with the children without it being mediated through the mother.
The family report writer observed that there appeared to have been a significant rupture in the bond of trust between the child Y and the father which had created what was assessed to be an ambivalent attachment relationship between Y and the father. She assessed that the father’s intermittent emotional and physical availability across Y’s early years appeared to have also been a contributing factor to the growing ambivalence and developing hostility that this child felt towards the father.
The family report writer stated that the children both reported feeling a level of anxiety and fear when spending time with the father. She referred to the children describing times when they had seen the father erupt with explosive anger and disapproval which they felt was directed toward them. She noted that the father denied that he got angry with the children. The family report writer stated that based on the father’s presentation and interaction with her, it was assessed that the father does struggle with poor emotional regulation and is likely to struggle with sudden flashes and outbursts of anger.
The family report writer stated that the father did not appear to have the same difficulties with alcohol use as he did during the marriage and after separation.
The family report writer stated that the father was assessed as lacking insight into the extent to which his own past conduct had contributed to the rupture in the children’s relationship with him, however he was not wilfully or consciously neglectful or seeking to harm the children.
The family report writer stated that the children could benefit from the mother working on learning how to allow the children to become more emotionally independent and individuated from her and how she might learn to establish and maintain better boundaries with the children.
The family report writer observed that the parties’ post separation relationship was characterised by extremely low levels of trust and very high levels of conflict. She stated that this case had a marker of being one of entrenched and enduring conflict. She stated that the conflict appeared to be getting worse and more entrenched. It was also now threatening to undermine the children’s ability to enjoy a close and significant relationship with the father and there were signs that the risk of the children becoming permanently estranged from the father over time was high.
The family report writer stated that the father may still benefit from seeking professional help in better addressing and overcoming his poor emotional regulation and anger issues and examining how this may be impacting his parenting and the children’s relationship with him.
The family report writer stated that the father has not helped himself. His reputation for intermittent availability to the children emotionally and geographically in the past, has been reinforced by his choice to relocate away from (omitted) to the (omitted). She stated that the children and the mother have expressed valid concerns about the impracticality of maintaining the current time spent with father arrangements when the father lives two hours away from where the children have long established sporting commitments and activities.
The family report writer referred to the child X’s extra-curricular activities including representative (hobbies omitted) at a national level. She stated that asking this child to sacrifice participation in activities which showcase her gifts and talents will not assist her to want to spend time with the father. She stated that both children’s longer term emotional and psychological health and well-being and their capacity to form successful intimate adult relationships will be at risk of being undermined if they are allowed to continue to reject the father and are not assisted to try to repair the rupture between them. She stated that it was the child Y who was assessed as being at greater risk to develop a longer term anxiety disorder and become entrenched in his refusal to see the father and estranged from him. She referred to the child’s vulnerability to anxiety and his preference for routine and structure.
Under the heading “Recommendations”, the family report writer stated, inter alia, that unless the father relocates back to the (omitted) area, whilst the father resides at (omitted), the time the children spend with him should be reduced to include from Friday after school until Sunday evening and half of the school holidays. Further, that the father should facilitate and support the children attending their sporting activities. It was inappropriate in the circumstances of this family for the mother to be in attendance at every sporting event when the children are scheduled to spend time with the father; the children need to be assisted to learn to rely on the father independent of the mother. That the number of sporting activities and commitments arranged by the mother for the children needs to be seriously rationalised to make room for the father to be able to spend time with the children.
The family report writer recommended that the children’s wish to spend less time with the father during the weekend, so that they can continue to participate in their sporting commitments and not be required to undertake a two hour drive from (omitted) to (omitted) before school on Monday mornings, needs to be given serious consideration. She recommended that if the father was unable to make suitable structured arrangements to facilitate getting the children to their sporting engagements on Saturdays and Sundays when they are spending time with him, then the court should consider reducing the time that the children spend with the father to include each alternate weekend after sport on Saturday until Sunday evening. Finally, the family report writer recommended that the children and the parents should be referred for assistance by a family therapist/social worker or psychologist who specialises in post separation conflict and anxiety in children and/or the Anchor (Supporting Kids Through Separation) Program run by Unifam at (omitted).

Oral evidence of family report writer

The court refers to the family report writer’s oral evidence, aspects of which are set out below.
The family report writer stated that she did not think that the mother was deliberately trying to undermine the children’s relationship with the father.
The family report writer was cross-examined in relation to whether family therapy should occur before the children began spending time with the father. The family report writer stated that an order providing, for example, daytime time to be spent by the children with the father every second weekend in conjunction with family therapy could be considered initially. She had stated that something positive between the children and the father should occur sooner rather than later.
The family report writer referred to the children’s anxiety in possibly not getting to their sporting activities on the Saturday morning if they were spending the fortnightly Friday night with the father at (omitted).
The family report writer stated that from the material that she had read, the children were not yet ready to go with the father on the fortnightly Friday night.
The family report writer expressed concern as to how one addressed the children’s anxiety (in not getting to their sporting activity on the Saturday morning) which was real. She stated that if the children have to go with the father to (omitted) on the Friday night then their anxiety was a real problem.
In this context, the family report writer was cross-examined in relation to whether the children’s anxiety could be addressed by staying in Sydney with the father on the fortnightly Friday night. She stated that if the father had a “predictable” place for the children to stay on the Friday night that might help.
Cross-examined by the father in relation to the children spending holiday time with him, the family report writer stated that the children would need to know who would be present with the father, and that the father would provide his full attention. The father would need to take care at the beginning, to assist the children have confidence with him.
The family report writer stated that a graduated program of the children spending time with the father would provide more flexibility, starting where the children “are” presently.
In relation to Saturday sporting activities, the family report writer stated, inter alia, that she would be reluctant to see the children’s sporting activities “bleed” into Saturday afternoons, with the Saturday morning sports being acceptable.
The family report writer stated that if the children were presently reluctant to spend time with the father, then a graduated regime of the children spending time with the father may work and family therapy might have to start before such time commences.
The court accepts the evidence of the family report writer subject to the court’s comments under the meaningful relationship primary consideration discussion later in these Reasons.

Relevant legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
To determine what is in a child’s best interests, the Court must consider the matters set out in subsections (2) and (3) of section 60CC. Firstly, the Court must consider the primary considerations, being:
(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(2)(b) The need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.

In applying these considerations, as per section 60CC(2A), greater weight must be given to the ‘need to protect’ the child over the benefit to the child of a meaningful relationship with the parents.
When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act.
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60CC Considerations

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

The children have a meaningful relationship with the mother, their primary carer, and will benefit from a continuance of that relationship.
The children’s former meaningful relationship with the father became fractured and a period of estrangement occurred between the children and the father from about May 2016, when the children began to decline wanting to spend time with the father. This estrangement was exacerbated by an incident on 10 January 2017 at a changeover, when the children were due to spend block holiday time with the father, and again the children declined to go with the father, leading to the father physically placing the child Y in his car, the police attending the scene, and ultimately the children leaving with the mother.
The children will benefit from a restoration of their former meaningful relationship with the father. However, in light of their anxiety, fear and concerns in spending time with the father, as described by the family report writer, the court is of the view that a conservative graduated regime of the children spending time with the father, in conjunction with family therapy involving the children and the parties, will best enable the children’s former meaningful relationship with the father to be re-established in a timely fashion.
The court regards the father’s proposals for the children to presently commence to spend time with him each alternate week from 9am Saturday until 7PM Sunday to be premature and carry the significant risk of the children refusing to spend time with the father, and which would be counter-productive to the restoration of their former meaningful relationship with him.
The court notes the father’s proposal, after a three month period, to spend time with the children each alternate weekend commencing from after school Friday (or 5 PM from the mother’s residence). In this context, the court notes the evidence relating to the children’s real anxiety in possibly not getting to their sporting activity on the Saturday morning, noting the father’s residence at (omitted); this anxiety of the children was expressed by the family report writer to be real, and needed to be addressed. The family report writer referred to the children’s anxiety being a real problem if they had to go to (omitted) on the Friday night.
Whilst the family report writer’s initial recommendation was that the children’s time with the father commence fortnightly from Friday after school (until Sunday evening), her family report, supported by her oral evidence, expressed the qualification that should the father be unable to make suitable structured arrangements to facilitate getting the children to their sporting engagements on Saturdays (and Sundays) when they are spending time with him, then the court should consider reducing the time that the children spend with him to include each alternate weekend after sport on Saturday until Sunday evening. In her oral evidence, in this context, she stated that if the father had a “predictable” place for the children to stay on the Friday night that might help.
The court is not satisfied on the evidence before it that the father has suitable structured and predictable arrangements available to facilitate the children spending the fortnightly Friday night in Sydney with him so as to enable them to attend their Saturday sporting activities in a timely fashion. (In this context the court refers to its decision on the morning of the last day of the trial rejecting the father’s proposed tender of 2 affidavits relating to this issue; even had these affidavits been admitted into evidence, the court would not have been satisfied that the statements in these affidavits necessarily indicated that suitable structured and predictable arrangements were available on Friday nights). Further, the court has concerns, were the children to spend the fortnightly Friday night with the father in (omitted), that the children may well experience anxiety in attending their Saturday sporting activity in a timely fashion.
In this context, and in any event, the court notes the view of the family report writer that the children were not yet ready to spend Friday nights with the father.
In the view of the court, the graduated regime proposed by the mother, but amended to provide for the first two graduated periods to each span a two month period rather than a three month period, progressing to the children spending each alternate weekend with the father from 9am Saturday [or at the earlier commencement of the children’s sporting engagement on that Saturday] until 5.00pm Sunday, will best enable children’s former meaningful relationship with the father to be restored in a timely fashion. Inter alia, such regime will best minimise the children experiencing significant anxiety when spending time with the father.

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

The court refers to its findings relating to historical family violence perpetrated by the father against the mother during their relationship. The court also refers to the behaviour of the father’s former girlfriend occurring at the father’s home whilst the children were staying there previously. The court also refers to the incident on 10 January 2017.
It is important that there be no further conflict between the parties in the presence of the children, in particular at changeovers.
The family therapy that the parties have agreed upon will likely assist the parties in reflecting upon strategies to minimise the risk of conflict, including family violence, occurring in the presence of the children. It should also enable the parties to reflect upon the Evaluation commentary of the family report writer in relation to their respective behaviours and referred to in the family report.

Section 60CC(3) - Additional Considerations

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

The court refers to the children’s views as expressed to the mother and the family report writer, referred to previously in these Reasons. The court gives significant weight to the children’s views, noting the commentary of the family report writer in relation to the children’s alignment with the mother.

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

The children have a good relationship with the mother’s new partner and his two children. They also have strong relationships with the maternal grandparents.

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

The mother has sought to exercise such opportunities.
The court refers to the evidence relating to the father’s intermittent availability to the children both geographically and emotionally in the past, including his work in Western Australia, and relocation to (omitted) in mid-2016.
The court notes the father sought to spend regular time with the children during the period from about May 2016 to 10 January 2017 and the children’s declining to spend such time with him. It would appear that he also would have wished to have participated in major long-term decision-making in relation to the children, with such decisions post separation usually made by the mother.

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

It would appear that the father has usually made child support payments for the children but has often declined to make additional payments relating to the children’s day to dare care and activities.

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

Should the children spend time with the father, as discussed above under the meaningful relationship primary consideration, there should be no detrimental effect upon the children’s meaningful relationship with the mother.

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

The father has relocated to (omitted). The mother lives in (omitted). Should the children spend time with the father, as discussed above under the meaningful relationship primary consideration, there should be no significant practical difficulty or expense in this context.

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

Both parties have such capacities, however the court refers to the commentary of the family report writer in relation to the father’s need to make himself emotionally available to the children, and in this context the proposed family therapy should assist the father.

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

The court refers to the evidence of the family report writer, in particular in relation to her evaluative assessment of the parents.

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

Not applicable.

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

The court refers to the evaluative assessment of the parents by the family report writer, and the father’s historical family violence perpetrated against the mother, including his role in the incident of 10 January 2017.
The court refers to the intermittent availability of the father to the children both emotionally and geographically during the relationship.
The court notes the father’s failure to disclose to the mother, post separation, his mental health status including depression; his resort to alcohol as a coping strategy both during the relationship and post-separation, and which was only meaningfully addressed by him post-separation; his poor emotional regulation and anger issues which again were only sought to be addressed by him post-separation; his failure to disclose to the mother his past relationships and details pertaining to change of residences; and his exposure to the children of verbal abuse occurring between himself and his former partner;

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

The court refers to its discussions above under the need to protect primary consideration.

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

Not applicable

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

The court refers to its discussions above under the meaningful relationship primary consideration; again, to accede to the father’s proposals would carry the significant risk of further proceedings.

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

The mother proposes a parenting order that the father be restrained from consuming alcohol whilst the children are in his care, and not consume alcohol for at least 12 hours prior to the children coming into his care, for a period of two years. The father, at this final hearing, consents to such an order.

Equal shared parental responsibility: section 61DA(1) and (2)

The parties have agreed to an order for equal shared parental responsibility in relation to the children.

Equal time and Substantial and significant time

The court refers to its discussions above under the meaningful relationship primary consideration. Neither party seeks an equal time parenting order. In the circumstances of the fracturing of the children’s former meaningful relationship with the father, and the associated need for that relationship to be restored, and noting the father’s relocation to (omitted), it would not be in the best interests of the children for an equal time regime to be ordered.
The court refers to the parties’ respective parenting orders in relation to the time that the children spend with the father. Both parties’ proposals in this context probably do not constitute substantial and significant time as defined under the Act.
Were the children to spend fortnightly time with the father from Saturday mornings to before school Monday morning, then the definition would probably be satisfied; however, in all the circumstances, the court would not regard it as being in the best interests of the children for such an order embracing a fortnightly Sunday night to be made, noting, in particular, the practical difficulties in the children been transported from (omitted) to the (omitted) area on the Monday morning to arrive in time for the commencement of school, and the court in this context notes the children’s concerns as expressed in particular to the family report writer.

Summary

Accordingly, evaluating the above discussed considerations under s60CC of the Act, the Court is of the view that it will be in the best interests of the children to make final parenting orders as follows:
1. That the parties have equal shared parental responsibility for the children X born (omitted) 2005 and Y born (omitted) 2008
2. That the children of the marriage, X born (omitted) 2005 and Y born (omitted) 2008 live with the Mother (Mother).
3. That the mother and father shall forthwith do all such things and execute all necessary documents to ensure that family therapy takes place with either Dr L or Mr N as follows:
a. The solicitors for the mother to arrange an intake for the purpose of family therapy with either Dr L or Mr N [‘the family therapist’], whomever is most able to commence family therapy as soon as practicable and notify the mother and father of such intake.
b. The mother and father shall attend upon the family therapist within seven days of such notification and sign all necessary documents and do all such things and each pay one half the costs of such therapy in advance, so as to ensure the family therapy commences as soon as practicable.
c. Thereafter the mother and father shall do all such things as reasonably requested by the family therapist to ensure the children attend upon the family therapist as required.
d. The mother and father shall follow the advice of the family therapist from time to time so as to complete the family therapy, or to conclude the family therapy as advised by the family therapist.
4. That the children spend time with the father as follows:
a. During school terms:
i. For two months from the date of these Orders, each alternate Saturday from the conclusion of the children’s Saturday sporting activities until 7.00 pm. The father may attend on such earlier time on that Saturday at the children’s sporting activities should he desire. Changeover shall occur at the end of sporting activity on Saturday for the commencement of the father’s time and at the mother’s residence at the conclusion of his time.
ii. Thence for a period of two months, from 9.00am each alternate Saturday [or beforehand so as to take the children to their Saturday sporting activities] until 7.00pm Sunday. Changeover shall be at the mother’s residence both for collection and delivery of the children. The father shall ensure that the children attend their Saturday sporting activities in a timely manner as required by the coach and not to be less than thirty minutes before the commencement of the sport.
iii. Thereafter each alternate weekend from 9am Saturday [or at the earlier commencement of the children’s sporting engagement on that Saturday] until 5.00pm Sunday where changeover shall occur at McDonald's (omitted). The father shall ensure that the children attend their Saturday sporting activities in a timely manner as required by the coach and not less than 30 minutes beforehand.
b. That school holiday time shall commence only after order 4(a)(ii) has expired and order 4(a)(iii) has taken effect. Upon that event occurring the father shall spend time with the children during the school holidays as follows:
i. At the conclusion of terms 1, 2 and 3 school holidays each year, from 9am on the first Saturday of the holidays and conclude at 6pm on the following Saturday with changeover to occur at McDonald's (omitted);
ii. in the Christmas school holidays with changeover to occur at McDonald's (omitted)
a.from 4pm Christmas Day to 4pm Boxing Day in even years and 4pm Christmas Eve to 4pm Christmas Day in odd years, and
b. for one week not to include 4 January to 14 January in each year, with the father to give 6 weeks’ notice in writing beforehand of which week.
c. From 5pm the Saturday before Father’s Day until 5 pm on Father’s Day with changeover to occur at McDonald's (omitted)
d. As otherwise agreed between the parties in writing by text or email.
5. That the father’s time shall be suspended on Mother’s Day from 5pm on the Saturday before Mother’s Day to 5pm on Mother’s Day if the children are otherwise in his care under these Orders and changeover shall occur at McDonald's (omitted).
6. The father shall take the children to their Saturday sporting activities when they are in his care, irrespective of any wish that they express to him that they [or either one of them] does not wish to attend, or unless he obtains the mother’s consent in writing beforehand that they [or either one of them] need not attend.
7. Should either parent enrol the children or either of them in a sporting or extra-curricular activity other than that defined in Notation 2 below then the other parent shall have no obligation to ensure the child attends that sporting or extra-curricular activity.
8. That the mother shall make available for collection by the father from her residence the Saturday sporting activity clothing, footwear and uniforms the children will need on each occasion they spend time with him and the father shall ensure that he returns each of these items to the mother at the conclusion of each occasion of time with him in a washed and cleaned condition.
9. That the father shall provide the children with their day to day clothing and personal items for the time they are in his care.
10. The father shall ensure that the children’s school uniforms, shoes and other clothing items they may bring with them at the commencement of time with him are returned to the mother at the conclusion of each occasion of time with him in a washed and cleaned condition.
11. That each party shall advise the other as soon as practicable if the children are injured or hospitalised whilst in their care and shall provide details of the treating hospital and/or medical personnel and each parent is at liberty to visit the children in hospital.
12. That the father shall contact the organizing bodies or coaches of the children’s Saturday sporting activities and provide his contact details for the purpose of receiving information and he shall ensure that he checks social media broadcasts as may be used in relation to such activities so as to ensure that the children attend that activity in a timely manner.
13. That each party notify the other party in writing at least one month in advance of any proposed change of address for the children and the date such changes will commence.
14. That each party notify the other party in writing before or as soon as practicable after any change of their telephone number or email address.
15. That before the commencement of each school term the mother shall notify the father by text or email about Saturday sporting activities for the children in the coming school term and if such information is not available to the mother before the commencement of the school term, the mother shall do this as soon as she receives the relevant information.
16. If either party wish to travel overseas with the children, then the following should occur:
a. the parent intending to travel overseas shall give the other parent, not less than 90 days’ notice prior to the intended departure date and supply the other parent with information concerning the intended travel including the destination, travel dates and basic itinerary of where the children will be staying;
b. the other parent, will, in 14 days, advise the parent proposing the travel plans as to whether they object to the travel, and
c. if no objection is received within the permitted time, then the parent proposing the travel shall be at liberty to make the appropriate travel bookings and supply an itinerary to the other parent.
17. That in the event of the expiry of the children’s passports, the parties will do all things and sign all documents necessary to ensure the children have valid passports.
18. The parties are hereby restrained from allowing Y to be transported in an (employer omitted) work truck or any vehicle without a booster seat for Y until Y is 145cm tall.
19. The father is restrained from consuming alcohol whilst the children are in his care and shall not consume alcohol for at least 12 hours prior to the children coming into his care for a period of two years from these Orders.
IT IS NOTED THAT:
1. The mother and father have given consent to attend family therapy and ensure the children attend family therapy in accordance with the above Orders.
2. The Saturday sporting activities for X are defined as (hobbies omitted) and for Y on a Saturday morning being either (hobbies omitted) sport.

I certify that the preceding one hundred and seventy eight (178) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 2 June 2017

[2017] FCCA 1175

2 June 2017

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Costs

Consent

Remedies