RIDLEY & BAYNTON

[2017] FCCA 147

FEDERAL CIRCUIT COURT OF AUSTRALIA

RIDLEY & BAYNTON [2017] FCCA 147

Catchwords:
FAMILY LAW – Interim parenting orders – best interests of children.

Legislation:

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

Cases cited:

Goode & Goode (2006) FLC 93-286
Marvel v Marvel [2010] FamCAFC 101; (2010) 43 Fam LR 348
SS & AH [2010] FamCAFC 13
Eaby & Speelman (2015) FLC 93-654
Banks v Banks (2015) FamCAFC 36

Applicant: MR RIDLEY

Respondent: MS BAYNTON

File Number: PAC 4919 of 2015

Judgment of: Judge Newbrun

Hearing date: 20 December 2016

Date of Last Submission: 20 December 2016

Delivered at: Parramatta

Delivered on: 6 February 2017

REPRESENTATION

Solicitors for the Applicant: Gounder & Associates

Respondent: Self-represented

Independent Children’s Lawyer:  Legal Aid NSW Penrith

ORDERS PENDING FURTHER ORDER THAT:

1. The Children X born (omitted) 2007 and Y born (omitted) 2009 (‘the Children’) shall live with the Mother.

2. Commencing Friday 10 February 2017, the Children shall spend time with the Father as agreed, and failing agreement:

   (a)From 10 February 2017 to 13 March 2017, each alternate weekend from the conclusion of school Friday, or 3PM if not a school day, until 6PM Saturday

   (b)From 14 March 2017 to 10 April 2017, each alternate weekend from the conclusion of school Friday, or 3PM if not a school day, until 6PM Sunday

   (c)From 11 April 2017 and thereafter, each alternate weekend from the conclusion of school Friday, or 3PM if not a school day, until the commencement of school Monday, or 9AM if not a school day;

   (d)Following the commencement of Term 2 school for the Children in 2017 and thereafter, and for half of all school holidays as agreed and failing agreement, for the first half in odd numbered years and the second half in even numbered years;

   (e)On Father’s Day, should the Children not already be spending time with the Father pursuant to these orders, from 4PM Saturday until the commencement of school Monday, or 9AM on the school day.

3. Notwithstanding any other Order, the Children’s time with the Father shall be suspended and they shall live with the Mother:

   (a)For half of all school holidays (as ordered in Order 2 above) as agreed and failing agreement, for the second half in odd numbered years and the first half in even numbered years;

   (b)On Mother’s Day, should the Children not already be spending time with the Mother pursuant to these Orders, from 4.00PM Saturday until the commencement of school Monday, or 9.00AM if not a school day.

4. For the purposes of changeover, unless otherwise agreed, where a party’s time with the Children is due to commence at the conclusion of a school day or conclude at the commencement of a school day, changeover is to occur at the Children’s school and at all other times in the carpark of (omitted) Post Office.

5. For the purposes of facilitating these Orders:

   (a)School holiday periods shall be deemed to commence after school on the last day of required school attendance by any of the Children, and shall conclude at the commencement of school on the first day of required attendance by either child of the next school term for the Children;

   (b)Changeover is to occur at 12.00 noon on the mid-point day between the first and last day of the defined school holiday period and shall where applicable, include public holidays and pupil free days;

   (c)In the event that there are two consecutive mid-point days, then changeover is to occur at 12.00 noon on the first of those two mid-point days.

6. The Children shall be able to call the parent with whom they are not living with at all reasonable times in accordance with their wishes and to facilitate same:

   (a)The parents shall ensure that the Children are provided a reasonably private and quiet environment to engage in the call; and

   (b)The telephone call shall not occur on speaker phone.

7. But for anything requiring a reply in less than 24 hours, the parents shall communicate in relation to matters pertaining to the Children’s care, welfare, development, and parenting arrangements in writing by email and in such communications shall refrain from the use of derogatory or threatening language and each party shall use their best endeavours to respond within 48 hours of the other party’s communication.

8. Each parent shall be and is hereby authorised to obtain directly from the Children’s school, sporting bodies or extra-curricular activity provider all information and documents ordinarily made available to parents including but not limited to school reports, photo order forms, awards, newsletters, progress reports, notification in the event the Children are removed from school for medical or emergency care or treatment, invitations to parent teacher interviews and information regarding events, activities and functions to which parents are ordinarily invited to or entitled to attend, noting that this order shall not require the parties to attend the same interview or information evening simultaneously.

9. Each parent shall be and is hereby authorised to obtain directly from the Children’s treating health care practitioners all information and documents ordinarily made available to parents in relation to the Children’s assessment, diagnosis, treatment and prognosis including but not limited to copies of reports, health care plans, prescriptions and treatment directions.

10. In the event of the Children or any of them suffering a medical emergency while spending time with or living with either parent:

    (a)Each parent is to be notified as soon as practicable;

    (b)Each parent is to be provided with the full details of the practitioner or medical facility upon which the child or Children attends as soon as practicable, including sufficient detail to enable each parent to attend to visit the child or Children should they be admitted to hospital; and

    (c)The medical practitioner or facility be advised that each parent has access to the child or Children’s medical records and the information obtained within them upon request.

11. The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the Children or any of them and from permitting any other person to do so, and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the Children or permitting any other person to do so, or showing the Children any document produced for the purposes of these proceedings.

12. The parents shall, within fourteen [14] days, enrol in (or if no current enrolments are available, place their name on the waiting list for the next available) a parenting skills course designed to assist them build their skills and abilities in parenting Children after separation as recommended to them following their intake assessment. It is noted that this Order does not intend to require the parents to undertake the same course and/or the same course at the same time.

13. The parents shall within fourteen [14] days, provide in writing to the Independent Children’s Lawyer and other party or their solicitor, details of which courses they have enrolled in and/or are attending.

14. The parents shall attend the courses as provided for in Order 12 in accordance with the recommendation and directions of the course provider and should the course provider indicate that the program is not suitable, obtain information and if necessary a referral to a more suitable course as may be recommended by the course provider.

15. Upon completion of any courses provided by these Orders, the parents shall provide the Independent Children’s Lawyer and other party or their solicitor, within seven [7] days of receipt, a copy of any certificate(s) of completion.

16. Each parent shall inform one another in writing within 48 hours of their current residential address, at least one contact telephone number and shall advise one another within 48 hours in writing should there be any change to these contact details.

17. Without admission each party is specifically restrained from attending the other parent’s residential address without prior written authority from that parent to do so, which may be by way of SMS message, or in the case of medical emergency in relation to a child or the Children.

18. Without admission the Father shall be restrained from:

    (a)Encouraging or causing the Children to massage any person, including but not limited to his wife, whilst the Children are in his care;

    (b)Allowing the Children to share a bed with any person, but for their sibling or their Father.

19. Without admission, the parties are restrained from abusing, insulting, belittling, rebuking or criticising the Children or from permitting any third party from doing so.

20. The parties are restrained from physically chastising the Children and shall use their best endeavours to ensure that no third-party carries out any physical chastisement on the Children.

21. The parties are restrained from shouting or yelling at the Children, other than in an emergency, and shall use their best endeavours to ensure that no third-party shouts or yells at the Children, other than in an emergency.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 4919 of 2015

MR RIDLEY

Applicant

And

MS BAYNTON

Respondent

REASONS FOR JUDGMENT

Introduction and competing interim parenting proposals

1. This interim hearing relates to competing parenting proposals in respect to the parties’ two Children, their daughter, X, born (omitted) 2007, and their son, Y, born (omitted) 2009.

2. The Father’s Initiating Application filed 8 October 2015 sought final parenting orders, inter alia, for equal shared parental responsibility, the Children live the Mother, the Children spend time with the Father every second weekend from Friday 6PM to Monday 9AM.

3. The Mother’s Response filed 2 November 2015 sought, inter alia, for equal shared responsibility, the Children live with her, the Children spend time with the Father every second weekend from Friday 3PM to 6 PM-8PM Sunday.

4. The Mother’s Amended Response filed 17 June 2016 then sought different parenting orders; the Mother have “full parental custody”, the Children’s time spent with the Father was to be supervised every alternate weekend, with no night time spent with the Father, such time being daytime time only, with the Children to be returned to the Mother in the evening by 6PM, and the Father was to spend no time with the Children during school holidays.

5. The Father’s Reply filed 26 September 2016 sought slightly different parenting orders from his Initiating Application, in that he sought additional time to be spent with the Children every Wednesday after school to Thursday morning.

6. The Father’s Amended Reply filed 24 November 2016 sought parenting orders, again differently to his previous pleadings, in that he now sought sole parental responsibility, the Children live with the Father, and the Children spend time with the Mother to be determined by the Court and the Independent Children’s Lawyer (ICL). The Father’s Application in a Case filed 29 November 2016 reflected these Orders sought.

7. However, on the final hearing day of the interim hearing, 20 December 2016, the Father’s proposed interim parenting orders were set out in his document headed Minute of Interim Orders sought by the Applicant Father; in this Minute, the Father sought interim orders, inter alia, that the Children spend time with him each alternate weekend from after school Friday until the commencement of school on Monday; one half of all school holidays; the Father consented to the ICL’s proposed interim parenting orders set out in paragraphs 5-19 of the Minute of Orders proposed by the ICL, which were annexed to the ICL’s Outline of Case document dated 7 December 2016; and the Mother enrol herself in an Anger Management Course.

8. The Mother’s Response to an Application in a Case filed 10 October 2016 sought interim parenting orders, inter alia, that the Mother have “full custody”, the Children live with her, the Children spend time with the Father fortnightly on Saturdays from 10AM to 4PM, and the Children will not associate with the Father’s wife or with any other of her family members at any point in time; school holiday time to be spent by the Children with the Father is to is to be agreed with the Mother, and the Father is to spend “an agreed limited amount of time with the Children.”

9. The above referred to ICL’s Minute of Proposed Order proposes interim orders, inter alia, that:

   a)The Children live with the Mother;

   b)The Children spend time with the Father each alternate weekend from after school Friday to the commencement of school Monday, and for half of all school holidays;

   c)The Children be able to call the parent with who they are not living with at all reasonable times in accordance with their wishes;

   d)The parties communicate with each other in relation to the Children in writing by email, and in such communications refrain from the use of derogatory or threatening language;

   e)The parents enrol in a parenting skills course designed to assist them build their skills and abilities in parenting Children after separation;

   f)Each parent inform one another in writing within 48 hours of their current residential address, at least one contact telephone number, and shall advise one another within 48 hours in writing should there be any change to these contact details;

   g)Each party is restrained from attending the other parent’s residential address without prior written authority from that parent to do so, which may be by way of SMS message, or in the case of medical emergency in relation to a child or the Children;

   h)That without admission the Father be restrained from:

   i)Encouraging or causing the Children to massage any person, including but not limited to his wife, whilst the Children are in his care;

   ii)Allowing the Children to share a bed with any person, but for their sibling or the Father.

Previous consent interim parenting orders

1. On 26 September 2016, the Court made interim parenting orders by consent that the Children spend time with the Father on each second Saturday from 10AM to 5PM, such time commencing 1 October 2016. (The Children did not spend time with the Father pursuant to this order; there is a dispute between the parties on the evidence as to why these ‘time with’ orders did not occur, which the Court cannot resolve at this interim hearing.)

2. On 8 December 2016, the Court made interim parenting orders by consent that the Children spend time with the Father on each second Saturday from 10AM to 5PM, such time commencing 10 December 2016.

3. The Court observes that in relation to both the above sets of interim consent parenting orders, there was no restraint in relation to the Children spending time with the Father in the presence of his wife or any member of her family.

Material relied upon by parties

1. The documents relied upon by the parties are set out on page 3 of the ICL’s Case Outline Document dated 7 December 2016, together with a further Affidavit of the Mother filed in 19 December 2016. Further, the Father tendered some subpoenaed records from the NSW police.

Chronology

1. The Court respectfully adopts the chronology of the ICL set out in his Case Outline Document.

Issues in dispute in the interim hearing

1. The essential issues to be determined at the interim hearing related to:

   a)The time that the Children should spend with the Father;

   b)Whether the Mother should have sole parental responsibility;

   c)Whether the Children, when spending time with the Father, can spend such time in the presence of the Father’s wife or members of her family;

   d)Whether the Mother should enrol in an Anger Management Course as sought by the Father;

   e)Whether the parties should enrol in a parenting skills course designed to assist them build their skills and abilities in parenting Children after separation; and

   f)Whether the Court should make certain discrete protective and other interim parenting orders as sought by the ICL, such as his proposed orders that:

   i.Each parent inform the other of their current residential address and available contact telephone number,

   ii.That the Father be restrained from encouraging or causing the Children to massage any person, including but not limited to his wife, whilst the Children are in his care, and

   iii.That the Father be restrained from allowing the Children to share a bed with any person, but for their sibling or the Father.

Agreed or undisputed relevant facts

1. The Mother works as a (occupation omitted) on a full-time basis with the (employer omitted). She holds tertiary qualifications in (qualifications omitted). Prior to and after the separation she has been the primary carer of the Children and she also cares for her elderly parents.

2. The Father holds tertiary qualifications in (qualifications omitted). He works in the (employer omitted).

3. At some stage the parties separated under one roof; the Father contends it was about 2012.

4. Following the Father leaving the former matrimonial home in August 2014, the Children spent time with the Father on alternate weekends and school holidays were shared; the Children spent two nights with the Father and were returned to the Mother on Sunday evening. At the Child Dispute Conference on 10 March 2016, the Mother agreed to allow the Children to spend time with the Father until 9AM on Monday.

5. The Father’s Affidavit filed 19 September 2016, in Annexure A, refers to voluminous text messages passing between the parties post-separation. Numerous of the text messages from the Mother to the Father are expressed in derogatory language and are critical of the Father, his Mother, and his wife. In oral submissions by the Mother to the Court on 8 December 2016, she stated that she wrote many of these messages in anger. One clear theme revealed in these text messages from the Mother to the Father is her distrust of the Fathers wife “whom I don’t know”. She criticises the Father, inter alia, for allowing the parties’ daughter to “sleep with” an outsider (in this context, the Father asserts that a (employer omitted) friend shared a room with the parties’ daughter and at all times the child was in the Father’s care).

6. The Mother states that on a few occasions the parties’ son has shared the same bed with the Father and his wife; the Mother does not wish the child to potentially witness any kind of sexual engagement between the Father and his wife. In this context, the Father states that on the occasion that the parties’ son slept in his bed, this child was unwell and was scared to sleep alone.

7. The Mother expresses her concern that she does not know the residential address of the Father and accordingly she does not know the whereabouts of the Children; she states that if anything was to happen to the Children she would not know where they were living. Similarly, the Mother expresses her concern that the Father apparently adjusted his phone to not allow the Mother to telephone him. In this latter context, the Father asserts that the Mother is abusive in her communications.

8. The Mother expresses her concern that the parties’ son apparently massaged the Father’s wife’s feet in the presence of the Father. The Mother states that in (omitted) culture doing this is not accepted. In this context, the Father states that on Mother’s Day the parties’ daughter had bought some lotions and creams with her. The Father states that the daughter insisted that she would set up a manicure and pedicure shop and that the Father and his wife would be her customers. He states this was a role-play occasion and that he and his wife did not force the parties’ daughter to do this. The Father states that in no way was it his or his wife’s intention to denigrate the parties’ daughter.

1. The Mother expresses her concern that the Father has discussed the Court proceedings with the parties’ daughter which she asserts is causing emotional distress to the child. She expresses her concern that the Father’s wife is apparently shouting and yelling at the Children.

2. The Father states that he resides in his wife’s three-bedroom townhouse. One bedroom is occupied by her daughter, one for the parties’ daughter, and the third bedroom is occupied by the Father and his wife. He states that on most weekends his wife’s daughter spends time with her Father and the room is vacant; the parties’ son sleeps in her room when it is vacant. The Father states that his wife is a (occupation omitted).

Relevant legal principles

1. The relevant principles in relation to parenting proceedings, including interim proceedings, are well-settled: see Goode & Goode (2006) FLC 93-286.

2. In Marvel & Marvel (2010) 43 Fam LR 348, the Full Court of the Family Court of Australia (Faulks DCJ, Boland and Stevenson JJ), discussed the problems associated with making findings on disputed evidence as follows:

   [120] As has frequently been emphasised interim parenting proceedings, and orders made as a consequence, are a necessary but temporary measure until all the evidence can be tested, evaluated and weighed at a final hearing by the making of final parenting orders. Decisions judicial officers have to make in interim proceedings are difficult and, often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted. This is often to the understandable distress of a party who may not achieve the outcome he or she desires, or thinks to be in the best interests of their child or children. Interim parenting orders are frequently modified or changed after a final hearing, and any allocation of parental responsibility made at an interim hearing is disregarded at the final hearing (s 61DB).

   [122] In SS & AH [2010] FamCAFC 13 the majority (Boland and Thackray JJ) discussed at paragraph 88 of their reasons the care necessary to be exercised in making findings in interim parenting proceedings. Their Honours said:

   In our view, findings made at an interim hearing should be couched with great circumspection, no matter how firmly a judge’s intuition may suggest that the finding will be borne out after a full testing of the evidence.

   [123] Later, at paragraph 100 their Honours amplified their comments and said:

   The intuition involved in decision-making concerning children is arguably of even greater importance when a judge is obliged to make interim decisions following a hearing at which time constraints prevent the evidence being tested. Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.

3. Of this, the Full Court in Eaby & Speelman (2015) FLC 93-654 said at 80,332:

   [80]. As would be immediately apparent, this approach enables the court to appropriately and carefully deal with contentious issues relevant to the welfare of the child, and for those issues to not be ignored.

4. The Court also refers to the recent decision of the Full Court of the Family Court of Australia in Banks & Banks (2015) FamCAFC 36, especially at paragraphs 46 to 52.

5. Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.

6. In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.

7. Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).

8. When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order: section 61DA (3).

9. If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.

10. If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60 CC, or impracticable.

11. If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The Best Interests of the Children

Section 60 CC considerations

Section 60CC(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration

1. The Children have a meaningful relationship with both parents and they would benefit from a continuance of those relationships.

2. Up until about 17 June 2016, and following the Father leaving the former matrimonial home in August 2014, the Children were spending alternate weekend overnight time with the Father. After about 17 June 2016, the Children did not spend time with the Father until implementation of the consent interim parenting orders of 8 December 2016. Again, there is a dispute between the parties which the Court cannot resolve at this interim stage relating to the exact circumstances in which the interim consent parenting orders of 26 September 2016 were not implemented.

3. The Children were to spend time with the Father each second Saturday from 10AM to 5PM pursuant to the consent interim parenting orders of 8 December 2016.

4. There is a not insignificant risk that should the Children not return to spending their former alternate weekend overnight time with the Father, that their meaningful relationship with the Father may not be maintained and enhanced. Further, the Court is of the view that the Children’s meaningful relationship with the Father will be maintained and enhanced by spending alternate weekend time with the Father, during school term times, from Friday after school to before school Monday morning; in these circumstances, not only will the Children be able to spend weekend leisure time with the Father, but they will also allow the Father to be involved in the Children’s daily routines, including after school Friday and before school Monday morning. In these circumstances, the Court is of the view that the Children’s meaningful relationship with the Mother should not be detrimentally affected.

5. In view of the passage of time since about 17 June 2016 that the Children have not spent overnight time of the Father, it would probably be appropriate that there be a short but gradual build-up of the Children’s fortnightly overnight time with the Father.

6. The Court gives significant weight to this meaningful relationship primary consideration.

Section 60CC(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence

1. In relation to the Mother’s concerns as to the child massaging the Fathers wife’s feet, the ICL’s proposed protective restraining order not allowing the Father to permit this to occur should appropriately address the Mother’s concerns.

2. Similarly, the ICL’s proposed protective restraining order restraining the Father from allowing the Children to share a bed with any person, but for their sibling or the Father, should appropriately address this concern of the Mother.

3. The Mother’s concern as to knowing the Father’s address and telephone number so as to be in a position to appropriately attend upon the Children, can be accommodated through the ICL’s proposed order that each parent inform one another in writing within 48 hours of their current residential address, at least one contact telephone number, and being required to advise the other within 48 hours in writing should there be any change to these contact details.

4. Further, the Mother’s allegations as to physical chastisement of the Children, including the Father’s wife yelling at the Children, can be accommodated by an interim parenting order that neither party carry out, or permit to be carried out, any physical chastisement of the Children, and that the Father use his best endeavours to ensure that his wife, except in the case of an emergency, does not yell at the Children.

5. Subject to the above concerns and proposed restraints, there is no persuasive evidence before the Court indicating that there is a need to protect the Children from the risk of abuse, neglect or family violence, whilst spending time with the Father in the presence of his wife or her family. The Court notes that the consent interim parenting orders made previously contain no restraint upon the Children spending time with the Father in the presence of his wife or her family.

6. There is no persuasive evidence (including no psychological, psychiatric or medical evidence) before the Court that the Children have experienced significant emotional distress in relation to the concerns expressed by the Mother in these interim proceedings.

7. The Court notes that at the Child Dispute Conference on 10 March 2016, the parents did not identify any risk factors in relation to mental health, drug and alcohol issues for themselves or the other parent.

8. There is no persuasive evidence before the Court that the Children are at risk of experiencing significant psychological or emotional distress in spending overnight alternate weekend time with the Father during school term times, or indeed spending half of their school holidays with the Father. Again, in this context, the Court notes the alternate weekend overnight time that the Children were spending with the Father prior to about 17 June 2016, including the Mother’s agreement at the Child Dispute Conference 10 March 2016 to allow the Children to spend time with the Father until 9AM on Monday “instead of the current arrangement with the Children returned to her care on a Sunday evening.”

9. The Court agrees with the ICL submission that changeovers in relation to the Children’s time with the Father should be appropriately structured so as to avoid parent interaction, particularly in the presence of the Children; the ICL’s proposed orders in this regard would appear to be appropriately protective for the Children.

10. In summary, subject to the above concerns of the Mother being addressed through the restraints and Orders discussed above, there is no unacceptable risk of the Children experiencing abuse, neglect or family violence whilst spending time with the Father each alternate weekend during school term times from after school Friday to before school Monday, together with half the school holidays, and time on Father’s Day.

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

1. There is no persuasive evidence before the Court indicating that the Children do not wish to spend time with the Father, including overnight time; the evidence relating to the statements of the Children apparently expressed to the Father on 8 October 2016 at the changeover contain a significant suggestion that the Children were expressing a position of the Mother, and not their own view, and in any event, the Court notes the young ages of the Children.

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

1. The Court refers to the meaningful relationship primary consideration discussed above.

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

1. It would appear that each party have used their best endeavours to take such opportunities. There is some dispute between the parties in this context.

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

1. The Father pays child support to the Mother on a monthly basis.

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

1. Should the Court make interim parenting orders in relation to the Children spending time with the Father, as discussed under the meaningful relationship consideration above, there should be no detrimental effect upon the Children’s meaningful relationship with the Mother. At this interim stage, noting that the Children did not spend time with the Father on any significant basis between about 17 June 2016 and about early December 2016, the Court, acting cautiously, is of the view that the Children spending time with the Father as referred immediately above, will appropriately maintain and enhance their meaningful relationship with the Father; the Father’s proposal for additional time, beyond the proposals referred immediately above, with the Children each Wednesday night during school term times may well pose some adjustment difficulty for the Children.

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

1. Both parties would appear to have such capacities.

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

1. Both parties immigrated to Australia from (country omitted).

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

1. The parties’ communications with each other particularly text message communications have been, to say the least, unhelpful in facilitating the parties’ appropriately parenting the Children. Whilst the Mother’s text messages at times have often been particularly abusive and inflammatory, the Father’s responses have also at times not been carefully considered, with a view to dampening the Mother’s apparent heightened emotional state during communications.

2. Otherwise, the parties appear to have demonstrated appropriate attitudes to the Children and to the responsibilities of parenthood.

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

1. The New South Wales Police subpoenaed documents in evidence referred, inter alia, to an incident between the parties on 19 February 2015 at the Mother’s residence. The Father attended the Mother’s residence in his car. The Father requested to take the Children home with him and take them to school the next day as he was currently on leave. The Mother declined this request. An argument started. The Mother told the Father to leave in his car or she would damage his car. The Father refused. The Mother picked up a stone from the ground at the front of the premises, walked up to the side of the Fathers vehicle and struck the side of the cars’ passenger-side door. Both Children were standing in the driveway at the time. The police were called to the scene of the incident. The NSW Police documents for the Mother states that the Mother was charged with the offence of “destroy or damage property (domestic violence)”, and that the sentence imposed on 25 February 2015 by the Blacktown Local Court was a Section 10 Bond to be of good behaviour for 12 months.

2. The Mother states that prior to the above incident, she had been at (omitted) Hospital looking after her ill Father who she states was having a heart attack, and she was generally feeling stressed. When the Father appeared at her premises seeking to take the Children, the Mother was in the process of leaving for the hospital to pick up her Mother.

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

1. On 25 February 2015, a final Apprehended Domestic Violence Order was made against the Mother in favour of the Father, being the protected person, the order to be in force for a period of 3 months, and which order contained the usual non-molestation restraints.

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

1. This is an interim hearing.

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

1. The Father seeks an interim order that the Mother enrol in an Anger Management Course. The Court is not persuaded at this interim stage that such an order should be made. The Court is of the view that following orders being made in these interim proceedings, there is a significant likelihood that historical post-separation hostility between the parties may well reduce.

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

1. By reference to the incident on 19 February 2015, referred to above, the presumption of equal shared parental responsibility does not apply. The evidence before the Court indicates that the parties have not been able to communicate co-operatively or productively, in particular through text message communications, and the Child Dispute Conference memorandum of 10 March 2016 confirms this to be the case. The Mother’s apparent distrust of the Father (and his wife) is not insignificant. The Mother’s proposed interim parenting order for “full parental custody” appears to be an application for sole parental responsibility. The Father and ICL seek no parental responsibility order. As submitted by the ICL, there is presently no evidence suggesting that there are pressing major decisions that need to be made in relation to the Children that the parties are unable to agree upon. The Court has some doubt as to whether the parties presently could reach agreement in a timely fashion in relation to major decisions affecting the Children. Nevertheless, at this interim stage, the Court is of the view that it is not in the best interests of the Children to make an express order for parental responsibility. Accordingly, pursuant to the Act, section 61C, the parties shall each have parental responsibility for the Children when they are in their respective care.

Summary

1. Evaluating the above discussed primary and additional considerations under section 60CC of the Act, the Court is of the view that it will be in the best interests of the Children to make orders as follows:

   (1)The Children X born (omitted) 2007 and Y born (omitted) 2009 (‘the Children’) shall live with the Mother.

   (2)Commencing Friday 10 February 2017, the Children shall spend time with the Father as agreed, and failing agreement:

   a.From 10 February 2017 to 13 March 2017, each alternate weekend from the conclusion of school Friday, or 3PM if not a school day, until 6PM Saturday

   b.From 14 March 2017 to 10 April 2017, each alternate weekend from the conclusion of school Friday, or 3PM if not a school day, until 6PM Sunday

   c.From 11 April 2017 and thereafter, each alternate weekend from the conclusion of school Friday, or 3PM if not a school day, until the commencement of school Monday, or 9AM if not a school day;

   d.Following the commencement of Term 2 school for the Children in 2017 and thereafter, and for half of all school holidays as agreed and failing agreement, for the first half in odd numbered years and the second half in even numbered years;

   e.On Father’s Day, should the Children not already be spending time with the Father pursuant to these orders, from 4PM Saturday until the commencement of school Monday, or 9AM on the school day.

   (3)Notwithstanding any other Order, the Children’s time with the Father shall be suspended and they shall live with the Mother:

   a.For half of all school holidays (as ordered in Order 2 above) as agreed and failing agreement, for the second half in odd numbered years and the first half in even numbered years;

   b.On Mother’s Day, should the Children not already be spending time with the Mother pursuant to these Orders, from 4.00PM Saturday until the commencement of school Monday, or 9.00AM if not a school day.

   (4)For the purposes of changeover, unless otherwise agreed, where a party’s time with the Children is due to commence at the conclusion of a school day or conclude at the commencement of a school day, changeover is to occur at the Children’s school and at all other times in the carpark of (omitted) Post Office.

   (5)For the purposes of facilitating these Orders:

   a.School holiday periods shall be deemed to commence after school on the last day of required school attendance by any of the Children, and shall conclude at the commencement of school on the first day of required attendance by either child of the next school term for the Children;

   b.Changeover is to occur as 12.00 noon on the mid-point day between the first and last day of the defined school holiday period and shall where applicable, include public holidays and pupil free days;

   c.In the event that there are two consecutive mid-point days, then changeover is to occur at 12.00 noon on the first of those two mid-point days.

   (6)The Children shall be able to call the parent with whom they are not living with at all reasonable times in accordance with their wishes and to facilitate same:

   a.The parents shall ensure that the Children are provided a reasonably private and quiet environment to engage in the call; and

   b.The telephone call shall not occur on speaker phone.

   (7)But for anything requiring a reply in less than 24 hours, the parents shall communicate in relation to matters pertaining to the Children’s care, welfare, development, and parenting arrangements in writing by email and in such communications shall refrain from the use of derogatory or threatening language and each party shall use their best endeavours to respond within 48 hours of the other party’s communication.

   (8)Each parent shall be and is hereby authorised to obtain directly from the Children’s school, sporting bodies or extra-curricular activity provider all information and documents ordinarily made available to parents including but not limited to school reports, photo order forms, awards, newsletters, progress reports, notification in the event the Children are removed from school for medical or emergency care or treatment, invitations to parent teacher interviews and information regarding events, activities and functions to which parents are ordinarily invited to or entitled to attend, noting that this order shall not require the parties to attend the same interview or information evening simultaneously.

   (9)Each parent shall be and is hereby authorised to obtain directly from the Children’s treating health care practitioners all information and documents ordinarily made available to parents in relation to the Children’s assessment, diagnosis, treatment and prognosis including but not limited to copies of reports, health care plans, prescriptions and treatment directions.

   (10)In the event of the Children or any of them suffering a medical emergency while spending time with or living with either parent:

   a.Each parent is to be notified as soon as practicable;

   b.Each parent is to be provided with the full details of the practitioner or medial facility upon which the child or Children attends as soon as practicable, including sufficient detail to enable each parent to attend to visit the child or Children should they be admitted to hospital; and

   c.The medical practitioner or facility be advised that each parent has access to the child or Children’s medical records and the information obtained within them upon request.

   (11)The parties are restrained from abusing, insulting, belittling, rebuking or criticising each other to or in the presence of the Children or any of them and from permitting any other person to do so, and the parties are further restrained from discussing these proceedings in any way in the sight or hearing of the Children or permitting any other person to do so, or showing the Children any document produced for the purposes of these proceedings.

   (12)The parents shall, within fourteen [14] days, enrol in (or if no current enrolments are available, place their name on the waiting list for the next available) a parenting skills course designed to assist them build their skills and abilities in parenting Children after separation as recommended to them following their intake assessment. It is noted that this Order does not intend to require the parents to undertake the same course and/or the same course at the same time.

   (13)The parents shall within fourteen [14] days, provide in writing to the Independent Children’s Lawyer and other party or their solicitor, details of which courses they have enrolled in and/or are attending.

   (14)The parents shall attend the courses as provided for in Order 12 in accordance with the recommendation and directions of the course provider and should the course provider indicate that the program is not suitable, obtain information and if necessary a referral to a more suitable course as may be recommended by the course provider.

   (15)Upon completion of any courses provided by these Orders, the parents shall provide the Independent Children’s Lawyer and other party or their solicitor, within seven [7] days of receipt, a copy of any certificate(s) of completion.

   (16)Each parent shall inform one another in writing within 48 hours of their current residential address, at least one contact telephone number and shall advise one another within 48 hours in writing should there be any change to these contact details.

   (17)Without admission each party is specifically restrained from attending the other parent’s residential address without prior written authority from that parent to do so, which may be by way of SMS message, or in the case of medical emergency in relation to a child or the Children.

   (18)Without admission the Father shall be restrained from:

   a.Encouraging or causing the Children to massage any person, including but not limited to his wife, whilst the Children are in his care;

   b.Allowing the Children to share a bed with any person, but for their sibling or their Father.

   (19)Without admission, the parties are restrained from abusing, insulting, belittling, rebuking or criticising the Children or from permitting any third party from doing so.

   (20)The parties are restrained from physically chastising the Children and shall use their best endeavours to ensure that no third-party carries out any physical chastisement on the Children.

   (21)The parties are restrained from shouting or yelling at the Children, other than in an emergency, and shall use their best endeavours to ensure that no third-party shouts or yells at the Children, other than in an emergency.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  6 February 2017