Randal and Karpati & Anor (No. 2)
[2019] FamCA 335
•26 March 2019
FAMILY COURT OF AUSTRALIA
| RANDAL & KARPATI AND ANOR (NO. 2) | [2019] FamCA 335 |
| FAMILY LAW – CHILDREN – Parenting – Contravention – Where the father alleges that the mother contravened parenting Orders reached by consent – Where six contraventions were considered and the mother denies contravening on five occasions and asserts that she had a “reasonable excuse” for contravening on the other occasion – Where the mother did not contravene on two occasions as the supervisor withdrew her supervision services and it is unlikely she could have been convinced to stay by the mother – Where the mother contravened on three occasions by not doing all that she reasonably could to convince the female child to participate in contact with the father – Where the mother contravened on a further occasion and did not have a “reasonable excuse” to do so as not allowing the time with the paternal grandmother supervising was not necessary to protect the health and safety of the children in the circumstances, especially as both parties consented to her role in supervising time – Where the mother was ordered to pay a portion of the father’s costs and compensatory time was ordered – Where the previous Orders in place are altered to allow all of the children, including the female child, increased time with the father. |
| Family Law Act 1975 (Cth) |
| Childers v Leslie (2008) FLC 93-356; [2008] FamCAFC 5 Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214; [2007] FamCA 655 In the Marriage of Stavros (1984) FLC 91-562; [1984] FamCA 38 In the Marriage of Stevenson & Hughes (1993) FLC 92-363; [1993] FamCA 14 |
| APPLICANT: | Mr Randal |
| FIRST RESPONDENT: | Ms Karpati |
| SECOND RESPONDENT: | Mr Eckford |
| INDEPENDENT CHILDREN’S LAWYER: | Hazrabee Mustaffa |
| FILE NUMBER: | BRC | 7013 | of | 2017 |
| DATE DELIVERED: | 26 March 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 4 December 2018, 16 January and 14 March 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Kirkman-Scroope |
| SOLICITOR FOR THE APPLICANT: | Butler McDermott |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Harris |
| SOLICITOR FOR THE FIRST RESPONDENT: | Neilson Stanton & Parkinson |
| THE SECOND RESPONDENT: | No Appearance |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Mustaffa HM Lawyers |
Orders
IT IS DECLARED
That on 12 August 2018, the First Respondent Mother (“the mother”) contravened paragraph 2(c) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.
That on 14 August 2018, the mother contravened paragraph 2(a) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.
That on 21 August 2018, the mother contravened paragraphs 2(a) and 3(a) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.
That on 26 August 2018, the mother contravened paragraph 2(c) of the Orders of Judge Middleton of 10 August 2018 without reasonable excuse.
IT IS ORDERED
That all previous parenting orders are discharged, save for paragraphs 10 – 22 of the Orders of Judge Spelleken of the Federal Circuit Court, made with the consent of the Applicant Father (“the father”) and the mother on 10 November 2017.
IT IS ORDERED UNTIL FURTHER ORDER
That the children, X born … 2011, Y born … 2016 and Z born … 2017 (“the children”), shall live with the mother.
That from Saturday, 30 March 2019, the children, X and Y, shall spend time with the father:
(a)Each alternate weekend from 9.00 am on Saturday until 3.00 pm on Sunday;
and, in addition:
(b)By way of compensatory time for time missed with their father, from 9.00 am on Saturday, 6 April 2019 until 3.00 pm on Sunday, 7 April 2019; and
(c) Each Wednesday afternoon from 3.30 pm until 5.30 pm.
That from Friday, 10 May 2019, the children, X and Y, shall spend time with the father:
(a)Each alternate weekend from 3.30 pm on Friday until 3.00 pm on Sunday; and
(b) Each Wednesday afternoon from 3.30 pm until 5.30 pm.
That the child, Z, shall spend time with the father:
(a)at the same time as the other two children on each Wednesday afternoon; and
(b)commencing on the weekend of 30 and 31 March 2019, for a two hour period on the Saturday and for a two hour period on the Sunday, each and every weekend that the other two children are spending time with the father, such time to be between the hours of 9.00 am and 5.00 pm on each of those days as nominated by the mother and made known to the father in writing on or before Thursday 28 March 2019;
(c)commencing on the weekend of 6 and 7 April 2019, for a two hour period each alternate weekend that the other two children are not spending time with the father, such time to be between the hours of 9.00 am and 5.00 pm on either Saturday or Sunday, such day and time to be nominated by the mother and made known to the father in writing on or before Tuesday, 2 April 2019.
That should Mother’s Day fall on a weekend when the children are to spend time with the father pursuant to these Orders, they shall be returned to the mother’s care at 6.00 pm on Saturday, the day before Mother’s Day.
That should Father’s Day fall on a weekend when the children are not to spend time with the father pursuant to these Orders, they shall spend time with him from 6.00 pm on Saturday, the day before Father’s Day until 3.00 pm on Father’s Day.
That from the commencement of the September-October school holidays in 2019, the children, X and Y, shall spend half of each gazetted Queensland state school holidays with the father, being the second half of those holidays in 2019 (including the summer school holidays commencing in December of that year) and alternate years thereafter and the first half of those holidays in 2020 (including the summer school holidays commencing in December of that year) and alternate years thereafter.
That at the commencement of the September-October school holidays in 2019, the requirement for the two older children, X and Y, to spend time with the father on alternate weekends shall be suspended during each school holiday period and shall recommence on the second weekend of the next school term when the children have just spent the second half of the school holidays with the father and on the first weekend of the next school term when the children have just spent the first half of the school holidays with the father.
That unless by written agreement between the mother and the father, there shall be no variation to these Orders in respect of the children’s birthdays or either of the parents’ birthdays, and the children shall live with the mother and spend time with the father in accordance with these Orders regardless of how any of their birthdays otherwise fall.
That unless by written agreement between the mother and the father, there shall be no variation to these Orders in respect of Christmas this year, 2019, and the children shall live with the mother and spend time with the father in accordance with these Orders regardless of when Christmas otherwise falls.
That the mother and the father shall have equal shared parental responsibility for the children, Y and Z, for all decisions about “major long-term issues” as that term is defined in s 4 of the Family Law Act 1975 (Cth).
That the mother shall have sole parental responsibility for the child, X, for all decisions about “major long-term issues” as that term is defined in s 4 of the Family Law Act 1975 (Cth), save for decisions about changes to X’s living arrangements that make it significantly more difficult for X to spend time with the father, for which the mother shall require the father’s agreement or an Order of the Court.
That in the first instance, the handover of the children from the mother to the father at the commencement of their time with the father and from the father back to the mother at the conclusion of their time with him, shall take place at the D Contact Centre as might be able to be arranged by the parents with the D Contact Centre, with the parents to share equally any costs charged by the D Contact Centre.
That in the event that the D Contact Centre is not available to ensure that the children transition from one parent’s care to the other parent’s care pursuant to these Orders, then, unless otherwise agreed in writing between the mother and the father, such handovers are to take place by the mother delivering the children to the father at his home, at the commencement of the time they spend with him, and by the father delivering the children to the mother at her home, at the conclusion of the time they spend with him, with each party being at liberty to have another adult person accompany them and/or be present with them at such handovers.
That notwithstanding the other terms of this Order, should the D Contact Centre not be available to facilitate the handover of Z from the father to the mother at the end of any of the time that Z spends with the father pursuant to these Orders and the father is, pursuant to paragraph 15 hereof, required to return Z to his mother at his mother’s home in Town B, then, on such occasions, Z shall not be required to be returned to the mother’s home by the father until three hours have expired from when he first came into the father’s care.
That the mother and the father shall, of course, be at liberty to agree to vary the terms of any of these Orders, such as, for example, if the baby, Z, ceases to be breastfed by the mother and they agree that he can begin to spend longer periods of time with the father.
That, unless the mother and the father otherwise agree in writing, where relevant, the first and second half of school holidays are to be calculated as follows and the following applies:
(a)The school holidays actually commence at the time of the formal end of X’s last day of school term (i.e. when school is let out on that day);
(b)The school holidays actually conclude at the time of the formal start of X’s first day of the next school term (i.e. when school goes in on that day);
(c)The exact mid-point of that total time is to be calculated, and if it falls at or between the hours of 8.00 am and 6.00 pm on a given day, then that is when the children are to be handed over;
(d)If the exact mid-point of that total time falls outside those hours just given (i.e. overnight on any given night) but before midnight then the children shall be handed over at 6.00 pm on that same day;
(e)If the exact mid-point of that total time falls outside those hours just given (i.e. overnight on any given night) but after midnight then the children shall be handed over at 9.00 am on morning after;
(f)Where the father is to have the first half of the school holidays the children shall be delivered to him at 4.00 pm on that last day of school; and
(g)Where the father is to have the second half of the school holidays the children shall be returned by him to the mother at 5.00 pm on the day before the first day of school term.
That the mother pay $500 towards the father’s costs of the contravention proceedings.
That any further interim applications or contravention applications shall be listed before his Honour Justice Forrest, unless that is impracticable.
The matter is to be removed from the Magellan list of matters awaiting trial.
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 Randal & Karparti and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 7013 of 2017
| Mr Randal |
Applicant
And
| Ms Karpati |
First Respondent
And
| Mr Eckford |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
The parents involved in this parenting dispute were in a relationship between late 2014 and early 2017. Two little boys were born of that relationship. They are Y and Z who are now three years of age and one year and seven months of age, respectively. The father has a daughter of a prior relationship, V, who is 14 years of age. She lives with him. The mother also has a daughter of a prior relationship, X, who is seven years and nine months of age.
X, Y and Z live with their mother. X has no contact with her biological father, not having seen him since 2014, from not long before the mother and the father began their relationship. He is a party to these proceedings but has chosen not to participate, other than by providing the father with an affidavit of support for his position. The father says he treated X as if she was his daughter during the relatively short relationship. The evidence supports a finding that he did and that X regarded him as her father at the same time. There is no doubt that she was encouraged to by the mother.
For immediate determination in the ongoing dispute is the question of the appropriate current parenting arrangements for the three young children and a contravention application brought by the father.
The father has been seeing the three children, including X, since the separation of the parents and he seeks Orders from the Court that permit that to continue. Indeed, he actually seeks Orders from this Court that the three children, X, Y and Z, be immediately moved to live with him in his principal care.
The mother, on the other hand, seeks interim and final Orders that X not spend any time with the father at all and interim Orders that the two little boys only see their father under professional supervision at a children’s contact centre.
A little of the background
When the mother and father first met, the mother was living and working in Town C, in south-west Queensland. X was living with her then. They had not long moved there from south-east Queensland. The father, a professional, was also working out there, but on a two week rotational, ‘fly in – fly out’ roster. He lived on the E Region and was sharing the care of his daughter, V, with her mother, such that V would live with him when he was at home and with her mother when he was out west.
The former couple met through friends in or around September 2014. Their relationship developed and in or around December that year they met each other’s daughters. In or around February or March of 2015, the mother and X moved to the E Region and soon after they arrived there, they left the place they first lived in and moved in with the father and his daughter at the northern end of the E Region. The father’s employment clearly changed around this time too, as he began running his own business and stopped the ‘fly in – fly out’ work in western Queensland.
The evidence supports findings that the blended family dynamics soon created difficulties for them all. At some point around the time of their settling into the same home on the E Region, the father’s daughter V began living with them full-time after things became too difficult for her in her relationship with her own mother. Then the relationship between V and the mother became a lightning rod for problems as between the father and the mother. At the same time, the mother quickly fell pregnant and Y was born in 2016.
The mother and the father started attending some counselling in the early part of 2016 to help them try to work through the difficulties they were having. They had disagreements about the assistance they were getting from the chosen counsellor and that ceased. They did begin seeing another counsellor at some point but that was unable to help them avoid the continued breakdown of their relationship.
In late May 2016, police were called by the mother to their residence. When police arrived at the home, the father was not there, having left the premises already. V had gone with him. Police observed the mother and X to be crying and upset. The mother told police that she and the father had become involved in an argument regarding the discipline of V, that the father had called the mother “a fucken [sic] idiot”, grabbed her by both upper arms, lifted her off the ground and thrown her on their bed. She had bruising and redness to her arms. This occurred in the presence of the children and when X became upset, the mother locked herself, X and Y in the bedroom. The father tried to get the mother to unlock the door, before trying to manipulate the lock himself in an attempt to open it. The mother asked him to leave, which he did before the police arrived.
Though this was the first time police had been called to the home, the mother told the police that the father “suffers from anger issues” and that he would on a weekly basis “explode into a rage aiming verbal insults toward her”. Though the mother reported that there had been previous incidents in which the father had “damaged an internal door in the house” and had thrown a computer mouse across a room, she told police that there had been no prior incidents of physical abuse towards her or the children by the father.
The police officers attended the father’s mother’s home later that day and interviewed the father. He told them that the mother had been verbally abusive of V and that had prompted him to grab her by both arms and “place her into the bedroom”. He agreed that she had then locked the bedroom door and that he had then tried to open it, including by “manipulating” the lock and that he had left shortly thereafter, taking V with him. He also made admissions, when asked by police, that he had damaged an internal door during an argument two weeks before. Police then determined to apply for a Protection Order in the Magistrates Court to prevent further family violence occurring.
When the police application came before the Court, the father consented to a Protection Order being made. It was put in place for a term of two years.
The mother then moved out of the father’s home, taking X and Y with her. They lived somewhere else for some months before she and the father reconciled their relationship and they moved back in with him and V. The two parents continued to receive counselling. The mother fell pregnant again, but before their second son was born, after another argument during which the father agrees he threw a kitchen utensil into the sink in anger, the mother moved out, taking X and Y and going to live in a women’s refuge.
The father asserts the mother had planned to move out and arranged to leave on a day when she knew he would be receiving payment of a good amount of money into the bank account from clients, which she immediately withdrew and retained, and after arranging for a removalist to empty the house out of furniture. That was in February 2017. Police subsequently sought and obtained some further conditions to the Protection Order in favour of the mother. Clearly, the mother made contact with the police again. The father consented again and as the legislation had just been amended to allow such orders to be put in place for five years, that is what the police obtained on this occasion.
The father did not know and was not told where the mother and the children were living. Somehow, by arrangement, the father was able to have two supervised visits with Y at the D Contact Centre in Town F in the ensuing period of months. Arranging that was attendant with difficulty as between the parents. The mother did not permit the father to see X and she did not tell him anything about her pregnancy or the birth of baby Z in August that year.
The father commenced proceedings in the Federal Circuit Court in July that year seeking to obtain orders that provided for the children to spend some time with him.
In October 2017, Judge Spelleken made Orders that nominated a family report writer for the purposes of preparing a family report and that required all of the children (including V) to attend upon the report writer for the purposes of the family report. Her Honour also ordered that the children, X and Y, start spending unsupervised time with the father immediately and that the mother provide the father with information about the baby, Z, including his name, gender, date of birth, length and weight at birth, and also provide the father with a photograph of him. Judge Spelleken also ordered the mother to cause the father to be registered as the baby’s father on the baby’s birth certificate.
Her Honour adjourned the matter for further consideration on a date just a few weeks later.
A family report was quickly prepared by the experienced family report writing psychologist who has worked in child safety, family assessment and support, and as a Family Consultant with this Court for a period of four years at one stage in the not too distant past. She saw the family and wrote a detailed report.
Of particular relevance, the family report writer wrote:
…It is my opinion that [X] has a meaningful parent relationship with the father and a sibling relationship with [V] and her brothers and she would be significantly impacted if she was excluded/rejected from the time her brother’s [sic] spend with her ‘dad’ and ‘sister’. …
She also wrote:
There are strong indications that the mother is reluctant to foster time between all of the children and the father despite her assertions herein. It is probable that the mother’s aim to limit the children’s time with the father is comprised of her fears, her prioritising her own needs, the children’s age and her view they most need her. …
At the end or her report, the family report writer recommended that the mother have parental responsibility for X and the father have parental responsibility for V but that they have equal shared parental responsibility for the two little boys. She recommended that X and her two brothers live with the mother but that X and Y spend time with the father for three months for up to three hours mid-week and each Sunday from 9.00 am until 4.00 pm. She recommended that increase to three hours mid-week and from Saturday morning until Sunday afternoon each alternate weekend after three months. As for the baby, Z, she recommended that the parents attempt to facilitate the father spending “perhaps thirty minutes” with Z up to four times each week but if that could not be agreed that the father spend time with the baby alone for up to an hour twice each week in addition to his time with the other two children and with the time with Z to increase incrementally with the baby’s advancing age, such that the father has at least some time with the three children at the same time from within a three month period. She also recommended that the parties continue to attend counselling, that they complete a parenting orders program and that the father complete an anger management program.
On 10 November 2017, Judge Spelleken made further Orders with the consent of the mother and the father directly in accordance with the recommendations of the family report writer.
On 28 February 2018, Judge Spelleken made some more Orders by consent that dealt with communication between the parents and health and dietary issues of the children. On 14 March 2018, Judge Spelleken made some more Orders by consent that provided for the time between the two children, X and Y, to increase to overnight time on each alternate weekend as well as on two afternoons during the alternate week and for some additional time for Z to spend with his father around that time with the other two children. The overnight time on alternate weekends was due to increase, by the Orders, to all day on Saturday, overnight that night and all day Sunday, each alternate weekend from 17 July 2018.
Around May 2018, the mother moved from Town G to another place in the E Region and changed X’s school for a second time since separating from the father. As a consequence, she made an application to the Court for variation to the Orders that were then in place.
On 11 July 2018, the week before the children’s time with the father was to increase again, the mother filed another application seeking to suspend the existing Orders providing for the children to spend time with the father and to put in place supervised time again at a Family Contact Centre. This arose out of circumstances where the mother said that X and Y had returned from the last overnight stay at their father’s house making disclosures to her that she considered reflected sexually inappropriate behaviour by the father directed at Y.
The mother said that she was changing Y’s nappy when he had been back home with her for about an hour when Y said to her “Daddy play with doodle”. She said that she said “pardon” and the boy said “Daddy play with ducky”. She said she then looked at X “horrified” and asked what “ducky” was. She said X replied “That is what Mr Randal calls his doodle”. The mother said that she asked Y when his daddy played with his “doodle” and X responded “This afternoon [I] saw him”. The mother said she asked X to tell her what she had seen and X is said to have responded “Mr Randal was twirling and shaking Y’s doodle around and it went big”. The mother said that X blushed and looked at the floor as she said that. The mother said that she did not say anything more, not knowing what to say, but just stared at X who said “I know. It was really weird”.
The mother said that Y kept saying “Daddy played with doodle”. The mother said that she rang “child services” (presumably meaning the Department of Child Safety, Youth and Women) and was told to call the police. She then rang the police and it was arranged for an officer to come to the house to see her.
She said that when giving Y his bath a little later that day, he kept saying “Daddy played with doodle” whilst rubbing bath toys on his penis. She said that X told her some other things that troubled her and she decided to request the psychologist who X was already seeing to talk with X about these things.
I observe that Y was two years and four months of age at this time.
On Monday, 9 July 2018, the mother took X to see the psychologist. The mother said that at the conclusion of the session, the psychologist “was able to confirm what Indi has stated to [her]”. The psychologist referred her to the Department of Child Safety again. She also told the mother that she “felt she needed” to report what the child had said to her.
The mother said that she then “wrote to Mr Randal and stated Y’s behaviour and what Y had said as [she] wanted his side to the event”. She said his reply was as follows:
what??? No when I change him he grabs it and I say, joking around. “getout of it, leave it alone” [sic] he laughs and grabs grabs it.[sic] Just the same as he has always done when we were together. There is NO WAY im [sic] doing anything inappropriate.
On 11 July 2018, X was interviewed by a police officer at the Town F Police Station. The interview was video recorded. That recording was adduced into evidence and played in the proceedings before me. I will return to its content later in these reasons.
That same day, the mother told the father that she only wanted the children to see him supervised at a Family Contact Centre until the matter was before the Court again. Visits there were put in place.
The father was interviewed by the police in August 2018. Police records note that he denied the alleged offence occurred. He told police that he changed the little boy’s nappy at some time during the last visit as he always does. He said the little boy had “[done] a big poo” in his nappy and that he took him to his bedroom to change his nappy on the bed. He could not remember if X was even in the room. He is recorded as having told the police that he had to “manipulate” the child’s penis to properly clean around it. He denied wiggling and playing with the boy’s penis without wipes in his hand and that the cleaning took about three minutes. He is recorded as having told police that the boy “often plays with his own penis” and that he had said to the child “yucky doodle, dont [sic] touch it”. He denied using the term “ducky” to describe the boy’s penis. He did tell police that sometimes the child gets erections during nappy changes, giving them to himself, and thinks it is funny. The father said that he could not recall if the boy had an erection at all on this occasion being referenced. He told police that this nappy change was no different to any others he had done.
The police made a decision not to charge the father with any offence. The police records reveal they considered there was insufficient evidence to progress the investigation, Y was not at an appropriate age to communicate the incident by way of a recorded interview, and that the father strongly denied the allegation and provided a consistent version of a nappy change involving innocent manipulation of the child’s penis as described by X. The police records note that there is no other supporting evidence at the time to further the investigation and that the father had a lawful reason to touch the private parts of the child during a nappy change and “any sinister actions cannot be proven further without further corroboration”.
The mother’s application for a change to supervised time came before Judge Middleton on 10 August 2018. The mother, represented by counsel, and the father, represented by a solicitor, agreed to Orders being made that suspended the existing unsupervised time and replaced it with time for X and Y each week for one and a half hours on Tuesday afternoon and one and a half hours on Thursday afternoon, and for two hours at a Family Contact Centre on each second Sunday and from 9.00 am to 1.00 pm each second Saturday at Park H. The Orders they agreed to also provide for Z to spend time with his father, at the same time, but for shorter periods.
They agreed that the Thursday and Saturday visits were to take place at Park H and that Ms J, a person found and proposed by the mother, would supervise those visits and that the mother would pay for the costs of that on the Thursdays.
They clearly could not agree on everything that day, and Judge Middleton was called on to determine some remaining disputes. His Honour decided and ordered that the Tuesday visits were to take place in a park at Town G, that the father would pay the costs of weekend supervision with the exception of the D Contact Centre visits which they would share equally, and that if Ms J was not available then the maternal grandmother or such other person as agreed between the parties would supervise.
Though the Orders do not expressly reflect it, there was no dispute between the parties that they had actually agreed, and the Orders were meant to reflect, that the paternal grandmother would supervise the Tuesday afternoon visits.
One of the last Orders that Judge Middleton made that day was an Order transferring the matter to this Court and for consideration to be given to placing it in the Magellan list of matters.
Notwithstanding their apparent agreement on most things at Court on 10 August, matters went awry from the first scheduled visit after those Orders were made.
On 4 October 2018, the mother filed an Application in a Case seeking to discharge all of the Orders that had been made by consent by Judge Middleton on 10 August that provided for the children to spend supervised time with the father other than at the D Contact Centre and she sought orders for his time with the “children” (without naming any of them in particular) to be limited to two hours per fortnight at the D Contact Centre at his expense and, in the event that he sought more time than that, then she would provide for other visits at the D Contact Centre at his expense if they could be accommodated. That application was listed to be heard by me on 4 December 2018.
On 11 October 2018, the father filed a Contravention Application in which he alleged contraventions by the mother on 12 August, 14 August, 16 August, 18 August, 21 August, 26 August, 28 August, 30 August, 1 September, 4 September, 6 September, 9 September, 11 September, 13 September, 15 September, 18 September, 20 September, 23 September, 25 September, and 27 September 2018 – every occasion of scheduled time from the date of the 10 August Orders onwards. The Contravention application was also listed to be heard by me on 4 December 2018.
On 14 November 2018, the mother filed an Amended Application in a Case. In that amended application she sought an Order that Judge Middleton’s Orders be amended to include an Order expressly specifying who was to supervise visits on Tuesdays and Thursdays but at the same time sought to discharge all of the Orders made by Judge Middleton as in her previous application. She also sought an Order that the father pay all the costs of the updated family report that was to be prepared.
At the commencement of the hearing before me on 4 December 2018, I directed the father to limit the number of alleged contraventions he was alleging against the mother in order to limit the time that would be required to hear and determine them. Accordingly, the father, who was represented by solicitor and counsel, elected to proceed with the first six alleged contraventions – those that he alleged occurred from 12 August through to 26 August.
The mother was represented by a solicitor and counsel as well. The Court was made aware that the father’s Contravention Application was opposed.
The Independent Children’s Lawyer (“the ICL”), who had been appointed since the matter was transferred to this Court, appeared, but took no part in the contravention proceedings. I asked her to stay through the hearing until the mother’s Application in a Case was heard as the father’s counsel had made it clear to the Court that the father was contending that the appropriate outcome, in the best interests of the children, was for the three of them to be ordered to live with him and not the mother. Accordingly, the ICL stayed throughout.
The father was cross-examined on his evidence by counsel for the mother. So, too, was his mother, the paternal grandmother. At the end of their evidence, counsel for the mother made an oral application for the summary dismissal of the six alleged contraventions on the basis that the evidence did not disclose a case for the mother to answer. I dismissed that application and gave oral reasons for doing so at the time.
The mother, when called on to answer the alleged contraventions, denied that she had contravened on each of the six days save for Tuesday, 21 August 2018. She accepted that she had contravened on that day, but asserted that she had a reasonable excuse for doing so.
The mother and her witnesses were then cross-examined on affidavits that had been filed. The matter was not concluded on 4 December and was adjourned part-heard to 16 January 2019. On that day, the contravention hearing was concluded, but the matter was again adjourned part-heard to 14 March 2019. The family report writer had seen the family again and prepared an updated report dated 3 December 2018. I considered her opinions to be quite important in the determination of the matters in dispute and I made directions to ensure her physical attendance for cross-examination on 14 March 2019. On that day, the video recording of the child’s interview of 11 July 2018 was also adduced into evidence and played in Court with the family report writer, at my request, sitting in court and watching it before she gave her oral evidence. The family report writer was cross-examined extensively by counsel for the mother that day.
I heard submissions and reserved my judgment.
Determination of the Contravention Application
Count 1 – Sunday, 12 August 2018
The father’s evidence was that he attended at the D Contact Centre at the allotted time for a visit with all three children. All three children were initially presented by the mother for the visit, but within minutes X was expressing the desire to leave and return to her mother. The father said that in the circumstances he told her she could go. She was returned to her mother by the supervisor. The boys stayed with the father for the duration of their visit.
The father’s case is that the mother contravened the Order that she had consented to only two days before, by failing, neglecting or refusing to encourage X to stay for the visit and that she facilitated her departure by remaining at the D Contact Centre.
Adduced into evidence were some records from a Family Contact Centre. The handwritten entry for 12 August 2018 said:
X went downstairs but would not speak to dad or V, after 5 mins X requested we call mum for her, [Ms Karparti] arrived to collect X visit continued with Y & Z
The mother gave evidence that when she was driving to the D Contact Centre that day the father, driving in his car, was following her car and pulled up at the lights behind her car. The mother said that X “became very upset saying “Mr Randal is behind us” over and over”. The mother said that she reassured X by locking the doors of her car. She said “Indi would not calm down, so I turned down an alternate street so he could not follow”. She said that when she arrived at the D Contact Centre, X refused to go down for the visit. She said that X was distressed, but after “some persuasion” from the D Contact Centre staff member and the mother, the child went inside for the visit. The mother said that she was called back five minutes after X had gone in to the visit as X had requested to leave.
The mother was asked what she said to X as she was getting in the car for the drive to the D Contact Centre that day. Her answer was:
Obviously, I was consoling her. She didn’t want to go. There was – she did not want to see [Mr Randal] and she had expressed that to me. …
That you will need to go. Basically I said that there is people there that will be with you if you feel scared or frightened. I assured him – assured her, sorry, that no yelling was going to happen. And – that you have been there before. You have seen all the toys. There is so much fun there.
The mother said that she has argued since these proceedings began that X did not want to go to spend time with the father.
Count 2 –Tuesday, 14 August 2018
The father’s evidence is that he attended at the park at Town G at the allotted time with his mother, who was to supervise. The father said that X indicated that she did not want to attend the visit and wanted to stay with her mother, so he did not force her to attend with him.
The father’s case is again that the mother “failed, neglected or refused to encourage” X to go and spend time with him for the visit. The two boys spent time with him as ordered.
Three audio recordings were adduced into evidence by the mother. She had begun audio recording on her mobile phone whilst waiting with the three children at the park for the paternal grandmother to approach her to take the three children into her care and to take them over to the father. The first one was a five minute long recording, whilst the second and third were very short snippets of a recording.
A little while into the first recording, a little boy’s voice is heard. It would be Y’s. He said “Hello nanna” cheerfully. The paternal grandmother is heard greeting him and X and seeks out and obtains a cuddle from Y. She then says “Are you going to come across to the park with me?” A touch later, she says “Are you coming Indi?” There is no audible response from X. The grandmother then says “No?” There is some talk about Y needing to hold his grandmother’s hand before the grandmother says again “Do you want to come and have a little swing Indi and see how you go? If not, I’ll bring you back”.
The mother then says “What’s going on? Are you going to go over? Just go over and see, sweetheart, you can go over and try for Mummy, OK? You go over and try, for mum? Hey, Come on, oh, Indi you are heavy, you are too heavy to sit on mummy. Come on darling”.
The grandmother asks again “Are you coming Indi?” The mother then says “What do you want to do, darling? Come on, just go over for a little bit, sweetheart. Give it a go”. The grandmother then says “I will bring you back if you don’t want to stay. It’s OK. You want to come? You want to hold Y’s hand for me. What darling? You want to stay? You don’t want to have a little swing first?”
The grandmother then takes the boys and the mother calls out her love to Y. A few moments later she speaks to X and says “Are you alright, sweetheart?” There is no audible response and then, a moment later, the mother says “You didn’t want to go”. A moment later the mother says “You want to go and get your jumper?”
On the short, second recording, the mother is heard saying to X “Oh, you are a big girl”. Then X is heard saying “Mummy, if Z (a pet name for Z, I believe) comes back, will I have to go back to [Mr Randal], because I don’t want to go”. There is no audible answer from the mother.
On the short, third recording, the grandmother’s voice is again heard saying “Will you come and have a little swing or ride on the scooter? No. OK.” Then X is heard saying “Stay with mummy”. The grandmother says “You don’t want to say hello to [K]?” X is heard to respond, quite forcefully, “No”.
Clearly, X did not go over with her grandmother to spend time with the father at all that day.
The mother gave evidence that she “did [her] best to encourage X to engage in the visit but she refused to do so”.
Count 3 – Thursday, 16 August 2018
The father’s evidence is that he attended the park at the allotted time this day. Ms J was the supervisor that day. The father was accompanied that day by his daughter, V, his mother, his brother, his brother’s partner (who the father said was in the car) and his brother’s two children (the children’s cousins). He said that the three children were presented, but that X said she did not want to attend and so he let her return to her mother.
His case is again that the mother “failed, neglected or refused to encourage” X to remain for the visit.
In his cross-examination, the father agreed that when the children arrived with Ms J, V “grabbed” X who then struggled out of V’s grasp and ran to Ms J saying she wanted to return to her mother, who was in the car across the road from the park. He agreed that he told X that she could. He agreed that Ms J said she should take Y and Z with her as she took X back to the mother. The father said that he questioned Ms J about this but denied that he raised his voice.
He agreed that Ms J took the three children and returned X to her mother and then brought the two boys back to him and his family group. The father said that Ms J then told him that his family members could not be there if he wanted to spend time with the boys, as that was not what “supervision” was about. He denied the assertion that he argued with Ms J, although he said that he asked her about her view of what “supervision” was about. He agreed that Ms J then told him that his family “needed to go” and that he did then dispute it. He agreed that he and Ms J presented contrary views that day and that he had spoken with a raised voice, but he denied that he had “argued” with her. He said that he told her he was sorry for her being the person in the middle in this situation. He agreed that he accused her of not being neutral.
He also agreed that when Ms J took Z back to the mother after his allotted time was up, she again insisted on taking Y with her, but that she did not return with Y and just came back on her own to tell him that she would bring Y back if his family left and there was no more arguing. He agreed that his mother said that they would go but he told them to stay and that his mother said “Oh all right then” in response. He agreed that Ms J said to him that if he wanted to have his family with him then he needed to get it approved by the mother or by the Court. He told the Court that Ms J said that she felt like quitting her supervisory role.
The father gave evidence that he did tell Ms J that he intended hosting a little party in the park on the Saturday, 18 August to celebrate Z’s first birthday. He agreed that Ms J told him to put that proposal in writing to the mother. She left after that and the visit was cut short.
The mother gave evidence that she was observing the scene from her car in the carpark. She said she saw V run to X and pick her up, with X struggling to get down and hitting V in the face in the process.
The mother said that when Ms J brought X back to her, Ms J expressed concerns to her about supervising with so many people present. The mother said she told Ms J that she would check with a solicitor as she “was not comfortable with this either”. In her oral evidence she said she actually meant she was not comfortable with Ms J not being comfortable, though I am satisfied that she did not like his family being there either. She said that she obtained advice from her solicitor “that it was inappropriate for his family to attend as it conflicted with the intent of supervised visits and inappropriate given Ms J was not comfortable with the situation”. The mother said that she sent a message to Ms J to that effect.
The mother said that when Ms J brought the boys back over to her at the end of Z’s time with the father, they had a discussion and she told Ms J that she would not send the “boys” back as “Y was upset with the arguing”. She said that Ms J went back to convey the message to the father.
On Ms J’s return, the mother had another conversation with her and then she and the children left the park and the visit was terminated.
Ms J gave evidence in an affidavit and orally. A letter Ms J wrote to the father a few days later was also adduced into evidence by the mother. Her evidence confirms that she and the father had a dispute this day about the presence of the father’s family members and that she raised her concern about supervising with them all present, with the mother. She confirmed that the mother told her that she would check with a solicitor and that she let her know that the advice was that the father should be there having time with his children on his own. She confirmed that the father told her that he was going to have a party on that Saturday with his family members present to celebrate Z’s first birthday. She also confirmed that she told the father he would have to get the mother’s agreement for that if she was to supervise a party.
Count 4 – Saturday, 18 August 2018
The father’s evidence is that he attended at Park H at the allotted time. He was there with members of his extended family ready to celebrate Z’s first birthday. He said none of the three children were presented to him and that after fifteen minutes of waiting, Ms J told him that he was to be the only person present, otherwise there would be no visit.
Ms J’s evidence is that after talking with the mother, who had brought the children with her, she went over to the father and told him that if he was to stay “independent of his family”, she would bring the children over to him. She said the father refused and continued to “pressure” her to leave the children with him so that they could have the birthday party. She said that the two of them argued again about whether or not she would bring the children over to him until she raised her hands and said that she would not do the supervision anymore if the argument continued. She said that she went back to the mother and got a copy of the Orders and took it back to the father and told him that she had sighted the Orders and that they said that visits were for him and the supervisor and no one else. She said the father started questioning that again and that she said “you are doing it again” and then walked off.
In his oral evidence, under cross-examination, the father agreed that he had organised a party in the park that day despite being aware that Ms J had told him that he should not have family members with him during the visits. He agreed with the proposition that he was “standing up to her” by saying “Yes, sort of”. He denied that he had asked her to leave the children with him and for her to go away and not stay around. I accept the honesty of that last denial, as I do not understand Ms J’s evidence to actually assert that he asked her to go away and to leave the children with him, unsupervised.
The visit did not go ahead at all that day. The mother said in evidence that when Ms J came over and said that she did not want to continue supervising at that point, that she took the children and left the park.
Count 5 – Tuesday, 21 August 2018
The father’s evidence is that on Tuesday, 21 August he attended at the Town G Park at the allotted time and the children were not presented at all by the mother.
The mother’s evidence is that she had told the father’s solicitor by email on 20 August that Ms J no longer wished to be a supervisor and that her own mother, the maternal grandmother, did not wish to supervise either. She proposed that they attend mediation to try to resolve the problem. That email is in evidence. In the email, although the mother does not expressly make any reference to the Tuesday visits which were, pursuant to the Orders, to be supervised by the paternal grandmother, there is a very strong message in the email that the mother is unilaterally suspending all of the visits save for those that were by the Orders to take place at the D Contact Centre (once every second weekend) and any other time the father could arrange with the D Contact Centre. The mother also proposed mediation, to be paid for by the father.
The mother gave evidence that she did not take the children for the visit with the father on Tuesday, 21 August, as she considered that it was not safe for the children to attend visits with the father supervised by the paternal grandmother because the paternal grandmother had been present during the visit of 16 August and “demonstrated that she was unable to control the father’s abusive and intimidatory behaviour.” The mother said that she believed the paternal grandmother showed by her own behaviour that she simply complied with her son’s requests. She said that she formed the belief that the paternal grandmother is not capable of “moderating the father’s behaviours”.
She argued that this amounted to a “reasonable excuse” for contravening the Orders that day.
Count 6 – Sunday, 26 August 2018
The father’s evidence is that he attended at the D Contact Centre at the allotted time on this day and that the boys were presented by the mother for their time with him, but that X was not. He again argued that the mother failed, neglected or refused to present X for the visit and that she did not have a reasonable excuse for that failure to present her.
The D Contact Centre records that the mother had adduced into evidence had the following hand written note for that day:
[X] stated that she did not want to stay, staff spoke to X she stated she wanted to stay with mum [Ms Karparti] & [X] advised they could leave
The mother gave evidence that X did not want to attend the visit and that she was encouraged by both the staff and the mother to go and try but that she returned to the mother within three minutes of leaving her.
The mother argues it was the D Contact Centre staff who terminated the visit not her.
My consideration of the alleged contraventions
Apart from the visit of Tuesday, 21 August 2018, determination of whether or not the mother contravened the Orders on the other days involves consideration of the required extent of a parent’s actions in order to have complied with his or her obligation to ensure a child or children spend time with the other parent pursuant to parenting Orders, including where those Orders require the child’s or children’s time with the other parent to be supervised.
It has long been held that such orders impose a positive obligation to encourage the child’s time with the other parent to happen. A reasonable attempt to ensure compliance is required.[1]
[1] See In the Marriage of Stavros (1984) FLC 91-562; In the Marriage of Stevenson & Hughes (1993) FLC 92-363; Elspeth & Peter; Mark & Peter; and John & Peter (2007) 212 FLR 214; [2007] FamCA 655.
Indeed, in the second of those cases just cited, Fogarty J quoted the following passage from the judgment of the trial judge in the matter under appeal with approval:
…Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian’s obligations, express or implied, to point to words and actions and to say, in effect: “You see I tried. But the child does not want to go,” and thereafter to figuratively fold their arms as if that were an end of the matter.
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation.
His Honour, Fogarty J, went on in that judgment to write:
It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance. …
This obligation has for a long time now been made absolutely clear to parents by including the following in the document that is attached to sealed parenting orders when they are sent out from the Court to the parents:
Your legal obligations
■ You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example where the order states your children are to spend time with another party, you must not only ensure that the children are available but must also positively encourage them to go and do so. …
The mother does not make out a case that she did not understand her obligations. Indeed, the evidence makes it clear that she knew what her obligation was. She even audio recorded the handover events on Tuesday, 14 August 2018, intentionally so that she could have evidence that she had “encouraged” X to go to spend time with the father, fearing or believing that the father may bring contravention proceedings against her.
I am quite satisfied that she knew the extent of her obligations. The issue in this case, in respect to the contraventions alleged in counts 1, 2, 3, 4, and 6, is whether the mother has taken all reasonable steps to ensure that the order is put into effect.
Counsel for the mother submits that she did. She submits that on the two occasions that the child, X, did not stay with the father at the D Contact Centre that it was the D Contact Centre staff, with the acquiescence of the father himself, who terminated the visit and, therefore, it cannot be found that the mother did not meet her obligations. She submits that on the visit of Tuesday, 14 August 2018, the mother did urge the child to go across to the father with the paternal grandmother, several times, and that the child’s unwillingness to go was acquiesced in by the paternal grandmother and that nothing more could be expected of the mother in meeting her obligations.
As for the other two visits at the Park H, where Ms J was the supervisor, counsel for the mother submits that the mother met her obligations and that it was the father who, by his own actions in having his family members present when he should not have, caused the visits not to happen as scheduled.
Counsel for the father submits that the mother just did not do enough to ensure the visits happened.
In making that submission, counsel referred to events that transpired between the first hearing date before me – namely 4 December 2018 – and the second and third hearing dates, that she submitted proved that the mother had not met her obligations on the dates alleged. Counsel said that the evidence that the visits had actually been occurring since I told the mother on 4 December that she best ensure that the children spend the time with the father as ordered, proves that she was not doing enough on the earlier dates.
In support of that submission, counsel pointed to the judgment of Warnick J sitting as the Full Court but disposing of the appeal as a single judge in Childers v Leslie (2008) FLC 93-356; [2008] FamCAFC 5 where his Honour said at [43]:
There is no fundamental reason why the proof of facts relevant to a contravention on a particular occasion may not in part depend on inferences about those facts drawn from findings about ex post facto events.
Indeed, the mother filed and read a further affidavit on 11 January 2019 in which she gave evidence about the visits scheduled to take place after 4 December 2018 in accordance with the 10 August 2018 Orders. She said there were still problems, particularly in respect of getting X to go to spend time with the father, including at the D Contact Centre, but she confirmed that she was nevertheless insisting that the child go and that she be made to stay with the father.
The mother did not adduce any further evidence, either in affidavit form from one of the D Contact Centre staff or in the form of records from the D Contact Centre, which supports a view that making X attend and stay with the father in that fashion was contrary to her best interests.
Relevantly, the second written report of the family report writer, as well as her oral evidence given before me, was of real significance in the determination of this matter.
Of particular note, in her evaluation section, the family report writer wrote:
…The father was apparently horrified that the mother would go to such lengths to try to remove him from the children’s lives. He believes this is her core motivation and further he believes she will never stop trying to remove him. I am inclined to fear likewise.
…
…The question remains in my view as to whether the mother’s mindset, judgement and actions are pure and genuine or self-focused and designed to purge the father. If the Court finds in favour of the father’s argument then the father’s application has merit. Although in those circumstances it may well be the best pathway forward for these children in more global terms to force a change of residence, I am reluctant to recommend this without first fully exploring the issues and allegations, and without first investing in helping the mother make healthy changes in order to maintain her traditional primary care of the children given their young ages and close relationships with her. A change of residence may become more obviously needed in order to protect the children from ongoing harm if nothing changes. Ideally the children would continue to live with the mother and spend regular, predictable and supported time with the father free of ongoing conflict and allegation and with the benefit of a good co-parenting relationship. Perhaps I am being optimistic in this regard.
For reasons detailed elsewhere in my evaluation I am not overly optimistic about the mother’s ability to truly foster the children’s relationships with the father without anxiety and complaints. I consider the latter most probable and it is significantly concerning that this assumed pathway presents certain risks for these young children. [X] is at significant immediate risk of losing her relationships with the father and V if nothing else. Other present outcomes for X are troubling. [X’s] issues are in my opinion a product of the mother’s environment much more than a product of the father. … [Y] and [Z] are too young to be greatly influenced by adult issues as yet but I fear they will be if the present attitudes and course continues. [V] on the other hand is a product of the father’s environment and she is apparently thriving.
I am mindful of how significant a change of residence would be for these young children and this loving mother but it may well reflect the children’s mid to longer term best interests to remove them from a damaging situation if the mother is considered by the Court to be intent on destroying this loving father. Ideally both parents’ relationships with the children would be truly prioritised and encouraged. …
I do not doubt the father was angry and frustrated when supervisor Ms J conveyed the expectations and rules pertaining to his supervised time as she and the mother interpreted same. The latter conflicted with his wish to twice share the children with his family. One of these occasions being a milestone first birthday party for [Z]. I suggest the father’s response may have been a reasonable [sic] and understandable given the intolerable powerlessness and the frustrating situation. The conflict could have been prevented if the mother understood the father’s wish and need to share the children with his family, and if the mother had permitted him to fulfil the birthday party he had planned for [Z]. I can see no harm in allowing that. In my opinion the latter would have been more child focused than refusing to hand the children over unless the paternal family left. That approach likely added embarrassment to pain and powerlessness. The mother would in my opinion do well to reflect on how she contributed to that scenario rather than focus purely on allegations about the father’s actions. As I understand it the Court Orders did not cover or restrain the father from bringing other family members to his time with the children. [V] may well have been excluded if they had. That example presented an opportunity for the parties to work co-operatively and with child focus and they did not.
I raised concerns previously that the mother may be struggling to truly foster the children’s relationships with the father, that she may be unhelpfully influencing the children, and that she may be engaging in attempts to alienate the children from the father. …
…
…I would once more recommend that the mother engage in regular counsellor [sic] to help her manage her anxiety and to promote her ability to foster a healthy co-parenting relationship. I suggest this occurs with a counsellor whose primary service is not related to domestic violence specifically as her attendance with same has not fostered much needed results to date. A broader clinical framework stands to benefit the mother given the wider legal context. …
…
The observation that [X] once more easily agreed to see the father with some promise of support, that she was in the first instance in a panic to be in the father’s presence, that she calmed quickly with suitable support, and she then she [sic] quickly and independently sought out interaction with him and fully joined in with the father and the other children suggests she wants a relationship with the father but she feels she cannot go to him. Separating from the mother is a real issue for this child in this and other domains. This is often the case when a child is worried about their parent’s well-being.
…
…I am not convinced that her position towards the father is justified and this leads me to suggest [X] is unhelpfully influenced by her loyalty to the mother and the mother’s attitude towards the father.
There is no dispute between the parties that both [Y] and [Z] seem happy to go to and spend time with the father. I noted that [Y] asked to go home with the father to his house at these interviews. I am concerned about the mother’s comment that she is happy for [Y] to spend time with the father ‘as long as [Y] wants to’. I would predict a future disruption attempts [sic] in relation to [Y] given the profile of issues thus far.
Overall I would presently recommend an immediate return to [X] and [Y] having unsupervised overnight occasions each alternate weekend and one or two afternoons each week with the father and [Z] spending up to two hours unsupervised with the father two or three times a week within such arrangements. The mother’s ability to foster the children’s return to the previous arrangements will be important to consider. I initially predicted that the mother may have trouble getting the children to separate from her. The [D Contact Centre] may or may not be successful in fostering [X’s] changeover to the father. In the case where it is not changeovers may need to be attempted via the child’s school. Again I suggest the mother is in need of intense therapeutic support.
(My emphasis)
As I have observed already, I required the family report writer to make herself available to be cross-examined in Court on 14 March and, before that, to sit in Court and watch the video of the police interview of X on 11 July 2018.
The video was played and admitted into evidence. One male police officer interviewed X. Soon after being asked what she was there to talk about, the child said that on the last visit, the father “started touching my brother’s private part”. She then quickly said “He wasn’t wiping it because there wasn’t any wipes in his hand and he was playing with it”. She went on to say “Y’s private part got all big and then he was all really weird and I was saying goodnight to him and then he said ‘ouch’ and he shut the door on me and locked it. … And then I had to go”.
The child then goes on with a lot of unrelated observations, mostly complaints about the father, his past behaviour and his parenting of her and her brother.
When her attention was brought back to the issue of the alleged sexual abuse, she said “He was just playing with it… Mr Randal keeped [sic] doing it for five minutes and then stopped and put his nappy on and then … Mr Randal acted like he didn’t touch his thing. Y was just really tired and he really didn’t like it”. She said it had happened “in Mr Randal’s room” and that she had “[come] in to see if [Y] was awake, and Mr Randal did, too.” She said “He got [Y] and woke him up and then changed his nappy and then… started playing with his private part. …We just walked in and he started playing with it”.
After saying things about what happened when they returned to their mother’s care that day, she said “He lifted [Y] up from the cot and [Y] woke up… and then he put him on his bed, took off his nappy and started playing with his private part… It got all big and it was all red… It got a bit swollen. [Y] looked like it really hurt him”.
When asked questions about Y’s private part getting “swollen” she said “It just got bigger – bigger than usual”. She went on to say “Mr Randal was doing all that thing. He didn’t really care about [Y]... He acts like it, but he doesn’t care about [Y]”. A few moments later, she said “He changed his nappy… He got a wipe, but then put the wipe down, and then started playing with [Y’s] private part… He got a wipe then put it down onto the bed”.
She was then asked how long the father did this for and the child said “Not long, five minutes… I can’t tell time but I think it went for five minutes… I was sitting on the bed. I said “Maybe can you stop”. And then he just ignored me… And then he got the wipe, wiped his private part and then he put his nappy on and put him outside… [Y] was running down the hall, then he started saying his private part hurts”.
She went on to say “because he woke him up from his sleeping, woke him up put him on a bed, got a wipe and put it on the bed, played, picked up the wipe, wiped it, put his nappy on, then [Y] was running down the hall”.
She then went on to talk a lot about the family and other things before saying “Once, [Mr Randal] took him into a room for ten minutes. I don’t know what they were doing... Once they had a shower together. All the other times, I have no idea what they’re doing”.
When asked some more questions about Y’s nappy changes, the child said “I have seen it only two times because… [Mr Randal] locks the door and stuff. I’ve gone in two times - one time he changed his nappy really quick but he didn’t do anything else with his - … I have only been in there two times and that time he was playing with [Y’s] private part… He had a message, so he checked that… But once they have a rash and he talked to somebody about getting cream for his rash.” She said “He started playing with his bum when he did that when he was putting the cream on but he didn’t have any cream on his hand... He talked to his friend on the phone about a cream”.
She went on to say “He got the cream on his hand and put it on and then started playing with his bottom but where the cream wasn’t on it… He has played with his private part and his bum… He… keeps putting cream on but the rash keeps spreading… just up near his back… and then it went down… He just started hitting it and doing stuff with it… He was hitting [Y’s] bum. He said “Stop [Mr Randal], stop [Mr Randal]” and [Mr Randal] didn’t understand what he was saying so I told him [Y] is saying “Stop [Mr Randal]” and then he ignored me and then he locked me out of the room… He was just slapping and hitting it… He has done it a couple of times”.
The interview finished soon after.
When counsel for the mother cross-examined the family report writer straight after that, she agreed that there is “a possibility” that the father has touched Y inappropriately, but she quickly observed that X’s story to her was slightly different in that she had told the report writer that the father had a wipe in his hand.
In her second report, the report writer wrote that when she asked X to tell her more about the part with Y the child said “He was wiping his nappy, he used a wipe to play with [Y’s] private part ‘til it was all big and swollen I think and then he wiped it and then he put the nappy on”. When she asked the child if Y had urinated or emptied his bowels the child replied that she did not know. The child then is reported to have said “He was touching his private part and I didn’t like it. I try to make him stop, I was afraid he’d hurt me like he hurt mum, I was telling him to stop, I tried”.
Counsel for the mother suggested to the family report writer that given X’s alleged disclosure to her mother, to the psychologist she was seeing, and to the police on the video, that there is a risk to the children. The report writer agreed that there is “a potential risk” but went on to say that “all depends on the findings about the rest of the evidence”. She said “in my opinion the risk would be low.” She then agreed with the proposition, put to her by me from the bench, that the risk “would not reach the unacceptable threshold”.
She went on to confirm many of the propositions put to her by counsel for the mother about X’s expressed views of not wanting to see the father and also the proposition that children being exposed to violence is not good for them, but she went on to confidently say that it was her assessment that what X says about the father is different from the behaviour she displays when she is with the father. She said that she is of the opinion that what X displays when with the father is “more her true position”.
The family report writer’s evidence impressed me as being soundly based and I had no difficulty accepting her observations and opinions as correct.
Even at this interim stage, without there having been a final hearing, I am quite satisfied that the child Y or his baby brother, Z, do not face an unacceptable risk of being sexually abused by the father if they spend unsupervised time in his care. I have seen and heard the father cross-examined about the incident, with the allegations put to him. I believe his denials and his explanation of the circumstances out of which the allegations arose. I am satisfied that what X saw and described was the father wiping Y’s genitals clean, with a “wipe” whilst changing a particularly dirty nappy.
It is, in my view, unfortunate, that this every day, mundane parenting event has been translated by the mother into an incident of alleged sexual abuse, drawing the child, X, further into the already difficult adult dispute and seriously setting back the progress that had been happening in the increase in time the three children were spending with the father and the development of their parent-child relationships and their sibling relationships with their sister, V.
All of the evidence that I read, saw and heard over the three days of this hearing leads me to satisfaction that the mother did fall short of her obligations to take all reasonable steps to ensure that the Orders she consented to on 10 August 2018 were put into effect, including falling short of the requisite degree of positive encouragement of X to attend and spend time with the father. What words of encouragement the mother did give to X to get her to go to the father at the D Contact Centre on Sunday 12 August and Sunday 26 August 2018 were clearly not good enough. My assessment that the mother unreasonably fell short of meeting her obligations is not excused or overcome by an attempt to shift responsibility for the failure of the visits to go ahead to the D Contact Centre staff and the father for agreeing, on those occasions, that X not be “forced” to stay with the father when she was saying she did not want to see him. I am quite satisfied that the mother’s words, actions, body language and behaviour encouraged the child to refuse to go rather than to go.
I am equally satisfied in respect of X’s failure to spend time with the father at the park on Tuesday 14 August 2018. Even though I heard the mother on the audio recording that she made asking the child if she would go over and “try for mummy”, those words only first came sometime after the paternal grandmother had been encouraging the child to accompany her with the two little boys. I am satisfied that the mother just did not do and say enough to ensure that X went and that when the paternal grandmother was not there, she actually reinforced to the child her view that her refusal was acceptable, particularly when she said to her “You didn’t want to go” in a sympathetic tone of voice. The obligation on the mother was not reasonably discharged by saying, a couple of times, words like “Just go over and see, sweetheart” and secretly taping that so that she could later hold up those words and argue that she did all that she reasonably could.
I am satisfied that the mother did contravene the primary Orders of 10 August 2018 on Sunday 12, Tuesday 14 and Sunday 26 August 2018 and that she did so, without reasonable excuse.
As for the visits of Thursday 16 August and Saturday 18 August, I will not find that the mother contravened the Orders. I am very conscious of what the family report writer said about the mother’s role in the breakdown of visit arrangements on those days, and I am also reasonably satisfied that the supervisor, Ms J, had by then, become less of a neutral, objective supervisor and more of an agent for the mother and the mother’s position. However, the wording of the relevant Orders of 10 August 2018, provided for the children to spend time with the father and for that time to be supervised by Ms J. The Orders did not say anything specific about whether members of the father’s family could also be present. They did not expressly say that they could not. They did not expressly say that they could. They did not refer to any process by which any family members of the father (other than his mother), such as, say, V, could be included in the visits.
In my own judicial experience, it is generally practice of community based children’s contact centres and private, commercial providers of supervision of parent-child contact visits to have rules in place around permitting the presence of family members, new partners or friends of the supervised parent to attend. Those often involve the obtaining of the consent of the other parent or, failing that, an Order of the Court. They often involve the requirement for the provision of extra supervisory staff to be present, particularly when there is a group of other attendees.
Each of the two occasions I am considering were visits that were scheduled to take place in a park at Town F. As the family report writer said, it is not unreasonable for the father to have wanted to share his limited time with the children with other members of his family, particularly to celebrate the momentous first birthday of his baby boy. In addition, the father clearly appreciated that the Orders did not expressly exclude any other person accompanying him and did not expressly provide for any process required to be complied with in order to have other people accompany him to such visits. There is evidence that he also was given advice by his solicitor that it was not restricted. On the other hand, there is evidence that the mother was given advice by her solicitor that the Orders provided for the children to spend supervised time with the father but not with any other person, apparently supporting her position that no other person was permitted to attend such visits. The evidence is that the person engaged, for payment, to supervise the visits was not happy to supervise the visits with so many extra people present and when her concerns and decisions about the circumstances under which she would provide the supervision were being questioned and disputed.
I am satisfied that the supervisor, Ms J, withdrew her supervision services on those two days, unwilling to continue to provide them with so many additional people present when the mother’s agreement to the time including additional members of the father’s family had not been obtained by the father in advance. I cannot conclude that I am satisfied that the supervisor would have stayed and provided the supervision had the mother told her to and I cannot conclude that the mother contravened the Orders by not telling or trying to tell the supervisor to stay and supervise the visits those days.
Accordingly, I do not find that the mother contravened the Orders as alleged on those days.
As for the admitted contravention on Tuesday 21 August, the reasonableness or otherwise of the mother’s excuse for contravening that day is what must be determined and it is the mother who bears the burden of persuading the Court that she had a reasonable excuse.
Section 70NAE of the Family Law Act 1975 (Cth) (“Family Law Act”) provides various circumstances in which a person may be taken to have had a reasonable excuse for contravening a parenting order, though such circumstances are not limited to those set out in the section. The mother’s defence appears to assert that her “reasonable excuse” falls within the circumstances provided for in sub-s (5) of the section. That says:
A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
I have already set out what the mother’s case is. She said she considered it was not safe for the children to attend visits with the father supervised by the paternal grandmother after the visit of Thursday 16 August as the paternal grandmother had “demonstrated that she was unable to control the father’s abusive and intimidatory behaviour” and was not capable of “moderating” his behaviours.
There are two aspects to the first limb of the determination. First, I have to accept that the mother actually believed that not allowing the time with the paternal grandmother supervising was necessary to protect the health and safety of the children and, secondly, if she did believe it, that such belief was based on reasonable grounds.
The basis for the mother’s belief can only have been formed post-Friday 10 August as she consented to the Orders being made that day that provided for the paternal grandmother to be the sole supervisor of the children’s time with the father on Tuesday afternoons. Nothing I heard on the audio tape of the events of Tuesday 14 August supported the requisite belief and the mother did not attribute having the requisite belief to anything she saw happen in the park or that she was aware happened in the park on that day. Accordingly, it could only be what happened on Thursday 16 August and Saturday 18 August that could have been relevant to the formation of such a belief.
The mother and the paternal grandmother did not come into direct contact with each other on that Thursday 16 August. The mother apparently relies solely on information that Ms J conveyed to her about what happened. It appears to come down to the following factual matters that are not in dispute:
(a)That the paternal grandmother raised the prospect of leaving the park that day in response to the position taken by Ms J (and the mother);
(b)The father telling her that she did not need to leave; and
(c)The paternal grandmother acquiescing in the father’s position.
The mother also has accepted Ms J’s reports to her that the father was arguing with her, and allowed his daughter, V, to become involved in the argument and has adopted the position that, the above facts, and an opinion that the paternal grandmother should somehow have intervened to stop the father arguing with Ms J and allowing V to get involved, reasonably caused her to have the requisite belief.
First, I am not sufficiently satisfied, having regard to all of the evidence, that the mother honestly believed that stopping the next visit (and all subsequent ones) that was to be supervised by the paternal grandmother was necessary to protect the health and safety of the children. To be honestly held, a necessary part of that belief would have to be a belief that unsupervised the father alone presented as an unacceptable risk to the health and safety of the three children. I am not even satisfied that the mother honestly believes that. I am truly concerned, as is the family report writer and as is the father, that the mother might actually be motivated by a desire to sever the relationships between the three children and the father and their sister, V, for her own particular reasons, rather than holding an honest belief that they are at risk in his care.
Secondly, I am also not satisfied that the facts outlined above present as “reasonable grounds” for the requisite belief, even if I was satisfied that the mother did actually honestly hold that belief. I do not consider that objectively viewed they can be considered as reasonably grounding a view that the paternal grandmother would not and could not ensure that her grandchildren were kept safe from an unacceptable risk of physical, sexual or emotional harm during a relatively short afternoon play in the park with their father.
As such, I reject the mother’s defence of “reasonable excuse” for the contravention she admits to. Accordingly, I find that she also contravened the primary Orders without reasonable excuse on Tuesday 21 August 2018.
What should the consequences of the mother’s contraventions be?
This is the first time the mother has been found to have contravened a primary parenting Order in this matter. Nevertheless, counsel for the father submitted that her contraventions should be considered as serious and dealt with pursuant to Pt VII Div 13A Sub-div F of the Family Law Act. She submits that there should be two consequences – first, that the mother should be ordered to pay all of the father’s costs to these contravention proceedings. Secondly, she submits that the Court should, exercising its powers under s 70NBA, make Orders varying the primary Orders and order that the three children live with the father from this point on.
As the mother has not previously had an Order imposed against her or a sanction imposed upon her in respect of a contravention of the primary Orders that I have found her to have contravened, Sub-div F only applies if I am satisfied that she behaved in a way that showed a serious disregard of her obligations under the primary Order.
As I have observed, for the father it is argued the court should be so satisfied. For the mother, unsurprisingly, it is argued that the court should not be so satisfied.
What particularly influences me in my determination of this point, is my satisfaction that the mother was plainly and clearly aware of her obligations. The fact that she intentionally, and with planning and aforethought, secretly recorded the handover of the children to the paternal grandmother on Tuesday 14 August fortifies my satisfaction in that respect. So, knowing that she had a positive obligation to ensure that time as ordered happened, which included an obligation to sufficiently encourage X so that she attended, she has plainly not done that and then has sought to excuse herself by asserting that her recorded efforts were enough. In my assessment, this behaviour does not show regard or respect for the Court’s Orders that she consented to and asked the Court to make only days before the contraventions, but rather, to the contrary, it shows a serious disregard of her obligations.
I consider that the contraventions are properly dealt with pursuant to Pt VII Div 13A Sub-div F.
Pursuant to s 70NFB, the Court must make a costs order that the respondent pay all of the costs of the father unless it is satisfied that it would not be in the best interests of the child concerned to make that order. The father’s counsel told me that the father’s costs would be equal to around $50,000 for these three days of proceedings. I do not doubt that. The evidence of the mother’s financial circumstances is before me. Her weekly income is $973.75. That includes a Centrelink pension, $175.29 per week child support from the father and $202.67 child support for X from her biological father (with whom the mother has not facilitated a relationship for X in five years). The mother’s estimated weekly expenditure requirements total $1,257.83. The mother rents accommodation and owns a modest motor car and her household furniture and chattels. Her meagre financial circumstances are alone not a bar to a costs order being made against her, but I have to say that I am easily satisfied that it would not be in the best interests of the three children in this case to make an Order that the mother pay approximately $50,000 in costs. That might deprive them of the mother’s car and her ability to transport them to school or to spend time with their father in future. It might also deprive them of household furniture.
I was told that the mother is in receipt of legal aid for these proceedings. That strikes me as interesting in itself, given that I am aware that there is a merits test as well as a means test for the granting of legal aid and I have had many unrepresented litigants before me in recent years who have not been granted legal aid for their cases. Ultimately, I, at least, am satisfied that the mother’s defence of the contravention application was without a lot of merit.
I will not make an order that the mother pay all of the father’s costs. Consequently, I must make at least one order from amongst those available to me under s 70NFB(2). I will make an order pursuant to s 70NFB(2)(h) for the mother to pay some of the costs of another party, being $500 towards the father’s costs. I make that order so that the mother is aware that contravening Court Orders does not come without some personal consequence, particularly where she has not had to pay legal fees herself for her own defence and the father, firmly committed to having a relationship with the three children, has paid many thousands of dollars for his representation.
I will also make an order pursuant to para (c) of the subsection, compensating the father in a small way for the time he did not spend with the children, particularly X, as a result of the mother’s contraventions. It will be an order for an extra weekend visit, in addition to the visits that I will order on an ongoing basis. It will not be complete replacement of the time the father has missed, but, again, it will make the mother aware that there are a number of potential consequences when Orders of this Court or the Federal Circuit Court are contravened.
The parenting Orders for the immediate future
The mother brought an application for a change in the interim parenting Orders. The father also seeks a change in those Orders pursuant to the power conferred on the Court in s 70NBA of the Family Law Act. Pursuant to sub-s (2) of that section, as I have determined that Pt VII Div 13A Sub-div F applies to the contraventions, as well as the best interests of the children being the paramount consideration when making an Order varying the primary Order, I must also take into account the fact that the mother contravened the primary Order after having attended a parenting orders program. Subsection (3) of the section makes it expressly clear, though, that s 70NBA does not limit the circumstances in which the Court may vary the primary Order.
The positions of the parents are clear and contrasting. The mother argues for Orders that X does not spend any time with the father at all, ever. In addition, she argues for the time the boys spend with the father to be supervised at the D Contact Centre. The father argues for Orders that the three children move into his principal care – that they live with him and spend time with the mother.
I have determined not to make Orders that move the three children to the father’s care on an interim basis. At this stage, although the many matters that I have considered in this process are finely balanced, I am of the view that ultimately the ages of the three children, the particular stages of childhood development that the two boys are currently at, the closeness of their relationships with the mother who is, as the family report writer described her, a loving mother, and the fact that Z is still being breast fed by his mother, favour a decision that it is in their best interests to leave them at this time in the mother’s principal care. The evidence that was before me supporting a finding that the mother has started to more appropriately facilitate the children spending time with the father since hearing my 4 December admonition, gives me some hope that these three children might now be emotionally and practically permitted to have an ongoing, meaningful relationship with the father, whilst continuing to live with the mother. It is this optimism that has tipped the balance determinatively in the mother’s favour on this occasion, though I do concede that the family report writer was not quite as optimistic about the long term prospects.
I am, accordingly, satisfied that what has to be determined now is the amount of time the three children spend with the father and under what circumstances they spend that time with him.
At the end of the hearing, the ICL submitted that X should have supervised visits with the father at the D Contact Centre with counselling support being provided during those visits and without her brothers being present. She submitted that should occur for two hours each fortnight for three such visits before then moving to unsupervised time with the father away from the D Contact Centre. She submitted that the boys should commence having unsupervised daytime visits with the father straight away (with Z’s time being for only a part of the time that Y spends with the father) and for it to progress to overnight time after three visits.
The ICL referred to a desire to minimise a risk of X suffering any further emotional harm as the basis for her submission that her time with the father should take place in a supervised setting at the D Contact Centre for a few visits. Significantly, however, the ICL did not ask the family report writer questions that elicited support for such a proposal when she was giving her oral evidence in the witness box.
The family report writer recommended in her second report of 3 December 2018, that X and Y “immediately recommence spending time with the father each alternate weekend from 9:00 am Saturday until 3:00 pm Sunday increasing to commence from 3:00 pm or after school Friday until 3:00 pm Sunday after three occasions with changeovers via the D Contact Centre or a qualified professional rather than a ‘friend’”. She also recommended that Z spend one two hour period with the father each weekend and perhaps two (each alternate Saturday and Sunday) on the weekend when the other children are in his care. Further, she recommended that the three children spend one mid-week afternoon each week with the father from perhaps 3.00 pm until 5.00 pm.
As I have already observed, I was impressed with the family report writer’s thoughtful assessment of this family and its circumstances. I see no reason to take a more cautious approach to the determination of the children’s time with the father than that recommended by the family report writer.
The mother’s case in respect of X has a number of points to it. Included in those are the following:
(a)That the father is not X’s biological father and she and X only lived in a family situation with him filling the role as X’s father for a relatively short period of about two years;
(b)That X is scared of the father – having experienced his violence towards the mother, his anger towards V, his anger towards her and having seen him do something “untoward” to Y – and, consequently, she legitimately does not want to spend any time with him; and
(c)That X is exhibiting symptoms consistent with anxiety.
I am satisfied on the evidence that X had a relationship with the father that met her need for a father-daughter relationship, and that, regardless of the relatively short number of years that they were together, that relationship, and the relationship with her step-sister, V, and her relationships with her two brothers are all so significant for her emotional development at this stage of her life that they need to be maintained, encouraged, and continually developed, rather than abruptly ceased.
I am, as I have said, satisfied on the evidence already before me that the father did not sexually abuse Y and that X did not see him sexually abusing Y. I am troubled that whatever X has made of what she saw, that might cause her concern, has been influenced by her mother.
The issue of family violence to which X was exposed has been well addressed by the family report writer in both her reports and in her oral evidence. Any level of violence perpetrated by the father on the mother, whether in the presence of the children or not, cannot be condoned and is deprecated. The father has demonstrated remorse and understanding of this. I accept the family report writer’s view of it being situational, and towards and at the end of the failing relationship, as opposed to it being chronic and habitual. The father has been seeing a psychologist for counselling on a regular basis for over fifty sessions. The opinion of that psychologist and the family report writer is that the father does not present as a risk of harm to the children in the sense of not being able to restrain himself from being violent towards them or not being able to control anger.
I do not accept that the father poses an unacceptable risk of harm to X if she is required to spend unsupervised time with him. I consider that X’s symptoms of anxiety more probably arise from the way in which the mother has dealt with the separation from the father and the co-parenting of the three children since that separation and the way in which she has involved X in the adult issues around these matters, including through the conversations she clearly has with her before and after she has visits with the father.
I am not persuaded that X’s visits need to be supervised any more or for three more sessions. What I am satisfied of is the need for the mother to ensure that X goes to the father as and when required without drama and acceptance of asserted refusals. I am satisfied on the evidence that X’s experiences with the father are much better and happier for X than the mother would have the Court accept. X’s time with the father will not be stopped. It will be reintroduced in an unsupervised, weekend and mid-week regimen on an immediate basis. Any anxiety X continues to demonstrate is, in my view, best dealt with by her having the positive experience of time with the father, and her mother receiving her own counselling to help her deliver safer, more emotionally sound parenting to X, keeping her removed from adult issues.
As for the boys, it appears that the single argument for their time with their father needing to be supervised is the proposition that the father poses an unacceptable risk of sexually abusing them. I understand the family report writer to have clearly rejected that proposition and, as should be clear now, so have I. The boys will also commence unsupervised time with the father on weekends and mid-week immediately. In Y’s case, he, like his sister, X, will start overnight stays straight away rather than being eased into them.
The Orders I will make
I will discharge all previous parenting Orders made on an interim basis but for paragraphs 10-22 of the Orders of Judge Spelleken of the Federal Circuit Court of 10 November 2017 that related to ‘specific issues’ and other things. Obligations created by those particular paragraphs should continue to stand.
The children shall continue to live with the mother but they shall spend time with the father generally in accordance with the family report writer’s recommendations at the end of her second family report. I will order for alternate weekend time to start on Saturday 30 March 2019 (this coming weekend) and it will go overnight, increasing to two nights (Friday and Saturday) each alternate weekend from Friday 10 May. I will also order an additional overnight stay on the weekend of Saturday 6 April, as the compensatory time for time lost due to the contravention. I will also order time for all three children with the father for two hours every Wednesday afternoon.
The Orders will reflect the family report writer’s recommendations for Z’s time with his father, including providing for him to spend time with him every weekend. The mother will be given the responsibility of nominating the particular two hour time period that the orders will provide for and she will have to fix that and notify the father in writing of that before those visits start, but once nominated that time is to remain in place for each visit.
The Orders will provide for the children to spend Mother’s Day with the mother and Father’s Day with the father. They will not make any particular exceptional arrangements for birthdays or Christmas. They will just go according to where they fall in relation to the Orders.
From the commencement of the September-October school holidays this year, the older two children will start spending holiday time with the father. I am satisfied that by then they will be ready for that, after all of the weekend visits they will have had. My Orders will provide for them to start spending half of their school holidays with the father and they will set out how that is to be calculated and determined and divided. The Orders will also then provide for the suspension of the alternate weekend time with the two older children during school holidays and the restarting of that alternate weekend schedule on the appropriate first or second weekend of the next school term.
My Orders will also provide for parental responsibility. Notwithstanding the fact that the presumption contained in s 61DA of the Family Law Act does not apply because of the family violence that happened in 2016 and 2017, I am satisfied that the best interests of the two little boys are served by conferring shared parental responsibility on the father and the mother. Both the parents will, therefore, need to be conscious of the obligations that will impose upon them by way of the operation of s 65DAC. Consultation with each other when decisions about major long-term issues (as defined in s 4 of the Act) are being made, genuine effort to come to a joint decision about that issue and the joint making of the decision.
At this interim stage, I will leave sole parental responsibility for X with the mother for all decisions about major long-term issues save for any decisions about changes to her living arrangements that make it significantly more difficult for her to spend time with the father (Mr Randal). The mother shall not make a decision to move X to a different residence that makes it “significantly more difficult” for her to spend time with the father without his prior written agreement or an Order of the Court. The factual history, including the affidavit evidence of X’s biological father, prima facie, supports the need for such restraint. The mother has made such moves on a unilateral basis in the past, making it harder for the children to spend time with the father and, beyond that, making it much harder for X’s biological father to spend time with her to the point where he decided to stop doing so.
My Orders will provide for handovers to be facilitated at the D Contact Centre with the D Contact Centre’s costs to be shared equally between them. It is hoped that the mother and the father will quickly move away from the need for facilitated handovers thus saving themselves this additional cost. Where the D Contact Centre cannot assist, my Orders provide for the parents to take care of the handovers themselves, at each other’s homes, with, if they desire, another adult person being present with them at that time. I consider that sufficient. I am optimistic that they will be able to refrain from unhappy scenes in front of the children.
If Z has to be driven by his father back to his mother’s home for handover at the end of his two hours, my Orders will extend his time with the father to three hours to allow for the drive of around a half an hour from the father’s home to the mother’s home.
As I am now so familiar with this case, I will order that any further interim applications or contravention applications filed are to be listed before me, unless that is impracticable.
I am satisfied that this matter can be removed from the Magellan list of matters awaiting trial and I will make an order to that effect.
I make the Orders that are set out at the commencement of these written reasons.
I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 March 2019.
Associate:
Date: 26 March 2019
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