Rushton & Torney
[2021] FedCFamC1F 150
•21 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Rushton & Torney [2021] FedCFamC1F 150
File number(s): MLC11092 of 2015 Judgment of: WILSON J Date of judgment: 21 October 2021 Catchwords: FAMILY LAW – PARENTING – wife’s new partner an unacceptable risk to the children. Legislation: Family Law Act 1975 ss 60CC, 61DA, 65DAA Cases cited: In Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517
M & M (1988) 166 CLR 69
Division: Division 1 First Instance Number of paragraphs: 72 Date of hearing: 15 & 16 September 2021 Place: Melbourne Counsel for the Applicant: Mr T. Puckey QC Solicitor for the Applicant: Lander & Rodgers Counsel for the First Respondent: Not applicable Solicitor for the First Respondent: Not applicable Counsel for the Second Respondent: Not applicable Solicitor for the Second Respondent: Not applicable ORDERS
MLC11092 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR RUSHTON
Applicant
AND: MS TORNEY
First Respondent
MR WOOD
Second Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
21 OCTOBER 2021
THE COURT ORDERS THAT:
1.Paragraphs 18 to 27 of the final orders made on 4 April 2017 (final orders) are discharged, the entirety of the orders made on 1 November 2019, 21 April 2020, 4 August 2020 and 21 September 2020 are discharged and all other final orders remain in full force and effect.
2.During Victorian school terms, Y born … 2004 and Z born … 2006 (collectively, "the children") live with the applicant and the first respondent as follows –
(a)with the first respondent each alternate week, from the conclusion of school Monday to the commencement of school on the following Monday; and
(b)with the applicant each alternate week, from the conclusion of school Monday to the commencement of school on the following Monday, with there to be a continuation of the existing weekly term arrangements.
3.During all Victorian school term holidays, the children spend half of all school term holidays with each of the applicant and the first respondent by agreement, and failing agreement the children spend the first half with the applicant in even numbered years and the second half with the applicant in odd numbered year
4.During the 2021 - 2022 long summer holidays and each alternate year thereafter, the children spend time with the parties as follows –
(a)with the first respondent from 4 pm on 17 December 2021 until 4 pm on 25 December 2021;
(b)with the applicant from 4 pm on 25 December 2021 until 4 pm on 2 January 2022; and
(c)the children spend the remaining long summer holidays equally with the first respondent and the applicant by agreement, or failing agreement pursuant to paragraph 2 herein.
5.During the 2022 - 2023 long summer holidays and each alternate year thereafter, the children spend time with the parties as follows –
(a)with the applicant from 4pm on 17 December 2022 until 4 pm on 25 December 2022;
(b)with the first respondent from 4pm on 25 December 2022 until 4pm on 2 January 2023; and
(c)that the children spend the remaining long summer holidays equally with the applicant and the first respondent by agreement, or failing agreement pursuant to paragraph 2 herein
6.In 2022 and each alternate year after, the children's time with the applicant and the first respondent be suspended if necessary to enable them to spend time with the applicant from the conclusion of school on the Thursday before Good Friday (or 5 pm on the Thursday before Good Friday if it is a non-school day) until 9 am on the Tuesday after Easter Monday.
7.In 2023 and each alternate year after, the children's time with the applicant and the first respondent be suspended if necessary to enable them to spend time with the first respondent from the conclusion of school on the Thursday before Good Friday (or 5 pm on the Thursday before Good Friday if it is a non-school day) until 9 am on the Tuesday after Easter Monday.
8.In the event that the children are spending time with the applicant on the first respondent's birthday, such time be suspended for a period of 3 hours at times to be agreed between the parties and failing agreement between 5pm and 8.30pm to enable the children to spend time with the first respondent.
9.In the event that the children are spending time with the first respondent on the applicant's birthday, such time be suspended for a period of 3 hours at times to be agreed between the parties and failing agreement between 5pm and 8.30pm to enable the children to spend time with the applicant.
10.The first respondent be and is hereby restrained from causing or permitting the children to be in the presence of, or have any contact with, the second respondent, save for with the express written consent of the applicant.
11.The second respondent is restrained from –
(a)attending at B Street, Suburb C (or such other place where the first respondent may live from time to time) while the children are in the first respondent's care;
(b)attending events or functions with the children, save and except if the applicant's prior written agreement is provided, with such consent to not be unreasonably withheld, and with the first respondent or such other person that may be agreed to by the applicant to act as the supervisor; and
(c)accompanying the children on holidays.
12.The operation of paragraphs 10 and 11 be discharged upon –
(a)the second respondent providing documentary evidence to the Applicant that he is attending all reasonable appointments with a psychologist recommended by Dr E at D Psychologists for a period of no less than six months; and
(b)the first and second respondent providing documentary evidence to confirm that they have each successfully completed a post separation parenting course.
13.Upon paragraph 12 being effective, the second respondent be gradually reintroduced to the children with the applicant and the first respondent to jointly request that the reintroduction of the children to the second respondent be facilitated by Mr F at the joint expense of the applicant and the first respondent and in this regard –
(a)Mr F is at liberty to speak with the second respondent's psychologist recommended by Dr E at D Psychologists; and
(b)a copy of these orders be provided to Mr F; and
(c)the parties follow all reasonable recommendations of Mr F with respect to the reintroduction of the children to the second respondent.
14.The second respondent otherwise do all things and sign all documents to attend all reasonable appointments with a psychologist recommended by Dr E at D Psychologists, with the second respondent to provide documentary evidence to the applicant confirming that he is attending appointments with such regularity as recommended by the psychologist every four months until 29 September 2024.
15.The applicant and the first respondent do all things and sign all documents to facilitate and ensure that –
(a)the children attend all reasonable appointments with such psychologist that the parties may agree to from time to time;
(b)they implement and follow all reasonable recommendations of the psychologist, including the attendance of all reasonable appointments with the psychologist or such other treating practitioner as may be agreed.
16.The parties are each restrained from subjecting the children to any emotional abuse or other family violence.
17.The parties are otherwise restrained from denigrating any of the other parties or members of the other parties' family in the presence or hearing of the children or otherwise, or from otherwise causing any other person to do so on their behalf.
18.Any submissions on costs are to be filed and served by 4:00pm on 4 November 2021 and any reply submissions must be filed and served by 4:00pm on 18 November 2021, such costs applications being determined on the papers.
19.All outstanding applications are otherwise dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Rushton & Torney is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
After the mother agreed to the children being vaccinated against COVID-19,[1] two main issues fell for determination in this litigation, the first relating to the children’s living arrangements during the school term and the second relating to any restraints being imposed upon the mother’s partner in his interaction with the children.
[1] That concession was made after the trial commenced.
In April 2017 final parenting orders were made by consent. By then the mother had commenced a relationship with the second respondent. In early 2018 the father commenced a relationship with his current partner. Between January 2018 and mid 2019 the mother’s partner was involved in criminal behaviour leading to his imprisonment. The father is concerned in this case about the impact on the children of the mother’s partner’s previous criminal activities, especially having regard to the violent nature of those criminal activities. The mother and her new partner contended that no risk to the children presently exists.
The mother and her partner were not legally represented in the trial before me. Before the trial commenced, the full impact of the decision in In Re F: Litigants in Person Guidelines[2] was explained to the mother and her partner. Each told me each understood what I had said and each said each had no need for further explanation.
[2] (2001) 27 Fam LR 517.
In the mother’s outline of case dated 6 September 2021, she stated that she sought orders reinstating the consent orders made on 7 April 2016[3] and she sought no orders being made restricting her partner’s spending time with the children by agreement with her.
[3] That was an erroneous reference to 7 April 2017, not 2016.
The father opposed the mother’s partner having time with the children.
SYNOPSIS
For the reasons that follow, in my judgment –
(a)the children should spend time with the father during school terms on a week-about basis; and
(b)the mother’s partner poses an unacceptable risk to the children such that he should not be present when the mother has time with the children.
RELEVANT FACTUAL SETTING
The father is 51 years of age and is a healthcare professional.
The mother is 50 years of age. She does not work.
The mother and the father commenced cohabitation in late 1990, married in 2000 and separated in December 2014. They have an adult child who is not relevant to this litigation and who is currently 19. The older of the two relevant children is currently 16, turning 17 in late November. The younger of the two relevant children is 14, turning 15 in a matter of weeks.
The mother and the second respondent commended their relationship in 2016. The father has a child with his new partner. That child turned one year of age a few weeks ago.
The second respondent has children of his first marriage. He maintains his residence separately from the mother.
The April 2017 consent final parenting orders provided for the children to live with the mother and for them to spend time with the father in accordance with a complicated regime.[4]
[4] Paragraph 19 to 26 of those orders are reproduced to these reasons as “Schedule A.”
On 1 November 2019 consent orders[5] in relation to parenting were made the effect of which was to vary certain paragraphs of the consent orders made on 4 April 2017. The details of the 1 November 2019 orders provided, in essence, for a week-about arrangement. It has been in operation ever since. The case was heard before Senior Registrar Hoult on 21 September 2020 when interim parenting orders were made. I fixed the case for trial commencing on 15 September 2021.
[5] Those orders are reproduced to these reasons as “Schedule B.”
THE PARTIES WHO GAVE EVIDENCE
In support of the father’s amended initiating application sealed on 4 February 2021, the applicant gave viva voce evidence as did his partner. Each submitted himself and herself to cross-examination although only the father was faintly questioned by the mother. The clinical notes prepared by the clinical psychologist Mr G went into evidence as part of the father’s case without Mr G being called. Similarly, the affidavit of Dr E, psychologist made 28 May 2021 and exhibits thereto were admitted into evidence without the need for her attendance as was the affidavit of Mr F made 25 May 2021.
For the first respondent, her affidavit made 17 June 2021 and the exhibits thereto went into evidence. The mother was cross-examined on her affidavit. Mr G, the psychologist was not required to give evidence, but merely his notes were admitted into evidence. The second respondent’s affidavit made 14 July 2021 was admitted into evidence. He was cross-examined by the father’s counsel.
THE FIRST ISSUE – WHETHER TO CONTINUE THE WEEK-ABOUT LIVING ARRANGEMENTS FOR THE CHILDREN
The children live with the father and his partner when they are in his care. The father deposed to –
(a)the son progressing well at school with a strong group of friends;
(b)the son enjoys sport and attending football matches with the father;
(c)the son enjoys his time with the father, the father’s partner and their child plus the adult daughter of the mother and the father;
(d)the daughter is also progressing well at school, playing sport;
(e)the daughter has a strong bond with her siblings,
(f)the father’s house has five bedrooms with each child having his and her own bedroom, each being permanently set up with the children’s personal belongings and study facilities;
(g)the father has been active in assisting the children with homework;
(h)he says he is “more than able to meet the children’s social, emotional and developmental needs, given the strong and loving relationship” he says he has with them; and
(i)he seeks orders on a permanent basis in terms of the interim orders made in November 2019.
The father gave evidence about his being alerted in July 2019 to issues of concern to him about the behaviour of the second respondent. The father deposed to matters that led him to investigate the information he was given. In cross-examination of the second respondent Mr Puckey QC extracted a variety of admissions from the second respondent which I address in the passages below.
The mother deposed in her affidavit made 17 June 2016 that the father told the mother on 3 August 2019 that he was retaining the children by reason of the threat to their safety the second respondent posed.
The mother deposed[6] to the children being unhappy with their travel from the applicant’s home to their school in Suburb H because, so she asserted, they need to leave his home at 7:30 in the morning so as to arrive at school by 8:40. The mother stated in her affidavit that the children had told her (although no details were given) that they were often late for school when held up in traffic. The mother said in the same affidavit and without giving details that on weekends the youngest child is often late for her netball game. The mother stated that her home is a 10 minute drive to the children’s school. She deposed to the children’s extra circular school activities and that they wait at the father’s mother’s home (that is to say, the children’s paternal grandmother’s home) in Suburb C and that “sometimes” (such was the expression she used) the children are driven places by the father’s brother. She deposed to the children being unable to socialise with their friends when they live with the applicant. The mother deposed to what she described as the children’s frustrations that their travel time was having on their mid-year exams.
[6] Paragraph 33 of her affidavit made 17 June 2021. The document was prepared by the mother without legal assistance.
In his affidavit made 13 August 2021 the father refuted the mother’s statements about the difficulties encountered by the children in getting to and from school when they are living with the father. The father deposed to the children telling him that the arrangements work well for the children and that each child told the psychologist Mr F that each is well satisfied with the equal care arrangements currently in operation. The father deposed to the drive from his home to the children’s school being 30 minutes if the children leave home at 7:30am. The father said that if his work commitments permit[7] he collects the children from school or he makes arrangements for them to be collected from school by his partner, his mother or his brother. The father denied that the children were unable to socialise when in his care. The father deposed to the orders made on 7 April 2017 not being in the children’s best interests. He said the week-on-week-off arrangement was less disruptive for them and it provided him with time to help them with their studies.
[7] He is a healthcare professional.
The mother faintly cross-examined the father. When confronted with the father’s answer that did not align with her version of events, the mother accused the father of lying.[8] She said the following –
I can go through many mistruths but if you’re going to – if they’re all going to be answered that way, I’m not sure of the purpose of them but there are many mistruths throughout the three affidavits.
[8] Transcript, 15 September 2021, T15 L40.
Even recognising that the mother was a litigant-in-person, untrained in cross-examination, her statement quoted immediately above was little more than the expression of her frustration in being rebuffed by the father when she put a question to him. She did not demonstrate “the many mistruths” she mentioned. That said, she behaved politely during the course of the trial. The same must be said of the second respondent in his polite behaviour during the trial.
The father’s partner made an affidavit affirmed 4 February 2021. In it she deposed to forming a romantic relationship with the father in early 2018. She said she and the father have lived together for over two years. She said she and the father have a child together. She deposed to being deeply immersed in the lives of the children. She said she does not intend to return to full-time work so she is available to assist transporting the children to and from school and supporting the children in any way she is able. The father’s partner was not cross-examined.
The second respondent made an affidavit on 14 July 2021. In it he deposed to living with the mother and the children prior to this proceeding being commenced. He said he had a strong relationship with the children and was very involved in their lives.[9] He said the children were very comfortable in his presence, although it must be said that in making that comment the second respondent did not differentiate between his time prior to the children learning of his incarceration and a time subsequent to their learning of that fact.
[9] The second respondent did not have legal representation when he prepared his affidavit.
The mother was cross-examined on matters relevant to the week-about arrangement. At no stage during her cross-examination did I detect any unfairness in the style or method of her cross-examination. To the contrary, consistent with best practices of Queen’s Counsel when cross-examining an unrepresented litigant, Mr Puckey QC displayed conspicuous fairness throughout.
The mother’s answers to questions put in cross-examination were telling in relation to her resistance to the father’s proposal for the continuation of the existing time arrangements. The mother’s evidence revealed the following –
(a)the mother consented to the orders made in 2019 that provided for week-about time as between the children, their mother and their father;
(b)the daughter expressed satisfaction to Mr F with the week-about arrangement;
(c)the son informed Mr F that the current arrangement for time on a week-about regime works well;
(d)the mother agreed that in the period August to November 2019 the children lived solely with the father, although she said the children were excluded from coming to her house;
(e)the mother said the children barely mention the infant child of the father and his partner;
(f)she admitted that the children are very comfortable in the mother’s and father’s households;
(g)she said the children should spend five nights each fortnight but not seven in the father’s home because the two extra nights lead to extensive travel; and
(h)she said the peril in those two nights (Mr Puckey’s words) was mainly the travel and the fact that the father is not there when the children return home so she did not “quite see the advantage of them doing all that extra travel to not spend any more time with him” (the mother’s words).
It was apparent that the mother placed very heavy emphasis on what she perceived to be the impact of travel on the children. The children were not primary school students. The eldest is nearing his majority. The youngest is well adjusted to the arrangements when living at the father’s home, according to Mr F. When carefully examined, I formed the view that the mother was confusing the children’s best interests with her own preferences about how and in what circumstances the children should be travelling to and from school. She asked me to factor into her proposal for five days a fortnight that she had an online business that she runs from home. She said she can transport the children between school and home rather than the children going to Suburb J where the father lives. On one construction of the evidence that exchange suggested personal convenience to the mother rather than the children’s best interests in the mother’s request for the children to spend five nights per fortnight at their father’s home.
Mr F addressed clinical psychological issues in his 30 July 2020 report. Mr F made various observations about the children, addressed below, but he said, rather self-evidently from my perspective, that the timeshare issue paled into obscurity when considering the best interests of the children. Mr F said the issue concerning the second respondent should be determined purely on the basis of risk, on which Dr E was likely to provide useful guidance. Mr F recommended against focusing on the second respondent and he suggested that the parents of the children should reflect on their own relationship and the damage the parents are doing to the children. That much was obvious.
Dr E made an affidavit on 28 May 2021 to which she exhibited a document entitled “forensic assessment report – mental health and family violence risk assessment”. That report related to the second respondent and went mainly to the second issue for determination in this case. For present purposes it is sufficient to record that Dr E concluded that the second respondent presented a low risk of ongoing family violence, more likely to manifest itself in controlling, intimidatory behaviour and verbal abuse with a lesser risk of physical violence. That is to be contrasted with the 2018 risk assessment of the second respondent when the second respondent was identified as a very high risk and a high risk recidivist of family violence.
FATHER’S SUBMISSIONS ON THE FIRST ISSUE
Recognising that the father has applied for final orders that give effect to a week-about arrangement for the parents and the children, the father quite properly invited my consideration of s 60CC(2), s 60CC(3), s 61DA and s 65DAA of the Family Law Act. Some, but not all, of those sections were also relevant to a consideration of the second issue.
Section 60CC(2)(a) and (b)
On behalf of the father it was pointed out that the children have a close and loving relationship with both parents. The mother said the same. I do not hesitate to pronounce that the proposals put forward by each parent (whether as to five days a fortnight or as to seven days a fortnight) promotes a meaningful relationship for each child with both of each child’s parents.
However, of the two primary considerations reposed in s 60CC(2), the Family Law Act requires s 60CC(2)(b) to predominate such that I must make orders that reflect the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
The father cast his case in respect of s 60CC(2)(b) on two planks. The first was the risk posed by the second respondent to the children. The second was the risk to the children posed by the mother’s disdain for the father.
Taking each in turn, the father acknowledged that according to Dr E, the second responded posed a low risk of ongoing family violence. The father urged me to adopt Dr E’s recommendation for the second respondent to attend regular psychological treatment. The father further urged me to permit the second respondent to be reintroduced into the children’s lives once the second respondent had proven his regular attendance on a psychologist recommended by Dr E and that such reintroduction be gradual, overseen by Mr F.
The other issue of risk that the father pressed was the mother’s distain for the father. He cited in support the observations by Mr F to the effect that the parents hate each other, that the mother felt negatively towards the father and that the daughter identified the mother as being angry with the father. The father’s evidence, none of which was disputed by the mother, was to the effect that the mother described the father as being selfish, a bad father, that the mother said she could not be with the man she loved because of the father and that in respect of the period August to November 2019 the mother accused the children of taking the father’s side. None of that was challenged. I find that on the balance of probabilities the mother in fact described the father as being selfish, a bad father, that the mother said that father prevented the mother from being with the man she loved and that the mother told the children in the period August to November 2019 the children took their father’s side. The question of vaccinating the children was only resolved during the trial. It had festered up to then by reason of the mother’s resentment of the father’s attitude to the issue. There is validity in Mr F’s comments that the mother is entirely hostile towards the father and that by reason of such hostility, the children are at risk of psychological harm from being exposed to family violence, as the phrase “family violence” is defined in the Family Law Act.
In applying s 60CC(2) of the Family Law Act the need to make orders that promote the children having a meaningful relationship with both parents is subordinated by the need to protect the children from psychological harm from, among other things, being exposed to family violence. The concept of “family violence” is broad under the Family Law Act, reflective of a legislative intendment to give its operation the widest possible reach. In my view it is necessary for me in this case to formulate orders that reflect that legislative intendment, once the additional considerations of s 60CC(3) are addressed.
As has already been observed, the daughter is soon turning 15 and the son is soon turning 17.
Each is mature, doing well at school and each has been the subject of very positive observations from Mr F. Each has expressed an unmistakable view within the contemplation of s 60CC(3)(a) for the equal time that presently exists (and has existed since November 2019) to continue. Mr F recorded the children’s view at paragraphs 35 and 38 of his report. Of course, those views are not determinative of the outcome of the first issue. However, I have taken into account the views as expressed by the children in accordance with s 60CC(3)(a) of the Family Law Act.
Section 60CC(3)(b) requires a consideration of each child’s relationship with each parent and any other relevant person, including here the father’s partner, the mother’s partner (the second respondent) the father’s mother and the father’s brother. Taking first the father’s mother and the father’s brother, neither gave evidence in this case. Each was the subject of oblique references in the context of after-school care for the children. To the extent that each was mentioned at all, the evidence touching upon and concerning them was positive. Each seemed to provide helpful activities by offering the children a safe place to stay after school and, in the case of the father’s brother, some chauffeuring facilities to help the children in getting to particular destinations. Only laudatory observations could be made about the father’s mother and the father’s brother.
So far as the father’s partner is concerned, she impressed me as a balanced, loving, enthusiastic, professionally trained young woman who harbours kind attitudes towards the children. She deposed to a very loving approach in her engagement with the children. The evidence did not descend to such detail as the depth of her knowledge of and empathy for the emotional scarring to which the children have been subject as a result of their parent’s conflict. However, the father’s partner appears to have successfully navigated a way forward for the children to provide them with a warm, safe, peaceful and inclusive environment. She is at home with her young child and says she does not intend to return to the workforce. She provides support for the children when they live at the father’s home.
Similar observations about the second respondent readily cannot be made. His involvement in this entire familial situation must be put in context. The second respondent and the mother were in a serious relationship many years ago, culminating in the two purchasing a house together. It seems that the mother wished to marry the second respondent although he was not willing to do so at the time so she and the second respondent parted ways, the second respondent ultimately marrying a woman with whom he had children. His marriage was punctuated by episodes of family violence. The second respondent’s history of violence, for which he was imprisoned, featured heavily in this case. The evidence revealed that in this case the second respondent was introduced to the children and that he and the two children seemed to have an agreeable relationship. When the second respondent was incarcerated for a period of months, the children were falsely informed that he had travelled interstate, seemingly innocuously, passing off his absence on a legitimate basis. On being told that the second respondent had been absent by reason of his imprisonment, each child stated he and she was shocked at the revelation. The father became agitated that the mother had exposed the children to the second respondent in circumstances where the second respondent was being dealt with for criminal offending based on violence. The mother consented on 1 November 2019 to orders pursuant to which she was restrained from permitting the children being in the presence of the second respondent or having any contact with him in the absence of the father’s written consent. Further, on the same date the second respondent consented to orders by which he was restrained from attending the mother’s home while the children were in her care or attending events or functions with the children in the absence of the father’s written consent.
The children have not met the second respondent’s children. That seemed to me to be peculiar having regard to the fact that the mother and the second respondent have been in a relationship for five years or thereabouts.
The mother’s contentions in relation to the matters I should take into account in respect of s 60CC(3)(b) included her assertion that since August 2019 the father has unreasonably refused to allow the children to be in the presence of the second respondent. That contention wholly missed the fact that on 1 November 2019 the mother and the second respondent themselves agreed to the restraints ordered in relation to the children’s interaction with the second respondent. I reject the mother’s contentions in relation to s 60CC(3)(b).
Section 60CC(3)(c) requires consideration to be given to the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the child, to spend time with the child and communicate with the child.
To this, the mother addressed two submissions. They were –
(a)she had always participated in making long-term decisions regarding the children’s welfare; and
(b)the father overheld the children from 2 August 2019 to 1 November 2019.
The father’s contentions in respect of this subsection were more sophisticated than were the mother’s. The father contended –
(a)he involved the mother in the children’s lives as such as possible;
(b)the mother had failed to take the opportunity to spend time with the children on the Australia Day 2021 long weekend during which she chose to spend the long weekend with the second respondent in preference to spending the long weekend with the children; and
(c)up to the commencement of the trial of this proceeding, the mother refused to engage with the decision on vaccinating the children in relation to COVID-19.
It seemed to me that the evidence was finely balanced in relation to the issue raised in this subsection. However, the mother’s approach towards the important issue of vaccinating the children was relevant. She refused to consider a sensible approach towards vaccination right up the very start of the trial. To my mind, that offered some insight into the way in which she addressed very real, important and time-dependant decision making. She was obdurate and stubborn, compromising only when her belligerence was exposed.
No issue emerged in this case enlivening the matter with which s 60CC(3)(ca) is concerned. The mother submitted that she supported the children financially from her wages when in her care. She offered no details of the sums she said were paid by her from her “wages,” a curious use of the word as she did not depose to working. Conversely, the father said he pays $1,500 per month per child in accordance with a binding child support agreement, he paid private school fees, extracurricular costs associated with the children’s private school education and all dental and medical costs.
Under s 60CC(3)(d), it was necessary for me to consider the likely effect of any changes in the children’s circumstances. The mother contended that the children will benefit from the change she wanted because she said they will be closer to their school, their extracurricular activities and their friends. The father contended that the orders he seeks will orchestrate no change as the arrangements under which the children are currently operating have been in effect since November 2019. The father contended the children told Mr F that the current arrangements work well.
To my mind, the mother’s contention that more time for the children at her house is beneficial to them by reason of their proximity to their friends was unpersuasive. She did not identify those friends whose proximity was important for the children. So far as the proximity of the children to their school was concerned, it is true that the mother’s residence is closer to the children’s school than is the father’s residence. If the children are in transit by 7:30 in the morning their commute to school can be 30 minutes. That is far from burdensome. As a matter of common human experience, school day commutes to school from home, in traffic, frequently take up to 30 minutes. It would be unwise to alter the children’s existing living arrangements in reliance upon the specious suggestion that by such alternation, the children will be closer to their friends and their commuting time will reduce. The mother’s argument in respect of this subjection is devoid of merit.
Both parties contended that the matters to which s 60CC(3)(e) applies had little bearing on the issues in this case. That said, I agree that the orders proposed by the father impose no practical difficulty or expense in the children spending time and communicating with both parents.
Section 60CC(3)(f) called for an examination of the capacity of both parents and any other person to provide for the needs of the children including their emotional and intellectual needs. Both parents relied on his and her own capacity to provide for the needs of the children. Each said each provides a safe living and caring environment. Each said each was attuned to the children’s needs. I agree, so far as those propositions went.
The father pointed out that the mother lacks insight into the impact on the children that the mother’s attitude towards the father has. The father also pointed out how detrimental on the children was the mother’s failure to reveal the second respondent’s criminal history.
Conversely, the mother relied on the second respondent’s demonstrated capacity to provide for all the children’s needs. I do not agree. The mother struck me as being very focused in this case on seeking to show how the second respondent was faultless and that he would be more than acceptable as the adult male influence in her household and hence as an acceptable male influence for the children. I do not see the facts of this case in the same light. The second respondent has a violent criminal past. I am not persuaded that he has fully overcome his psychological and emotional issues in that regard. I entirely disagree with the mother’s assertion that the second respondent “has demonstrated that he has the capacity to provide for all of the children’s needs”. She views the role of the second respondent through an unrealistic, and in some respects, a fanciful prism. His role cooking for the children and helping them buy gifts for the mother is peripheral to the main needs to which this subsection is directed. The second respondent has not lived with the mother when the children are in her care. His behaviour and general interaction with the children is untested in that regard. The mother’s failure to recognise that seems to me to be telling of her lack of insight. Conversely, the same could not be said of the father and his partner. I have some serious reservations about the capacity of the mother’s partner to provide for the children’s needs, including their emotional and intellectual needs. I also take the view that the mother harbours a deep resentment towards the father for denying her the opportunity of being with the man she loves (the second respondent). I do not agree with the mother’s contentions that the father is consumed by his need to punish the mother.
All parties regarded s 60CC(3)(g) as being inapplicable.
Section 60CC(3)(h) was inapplicable.
Under s 60CC(3)(i), the attitude demonstrated by each parent to the child and to the responsibilities of parenthood call for examination. As might have been expected, the father as well as the mother said he and she fulfilled all parental responsibilities. The conclusion that each has adopted such an attitude toward parenting seems to be supported by Mr F.
Issues of family violence are relevant by operation of s 60CC(3)(j). Rather glibly, the mother submitted that the children have not been subjected to or exposed to family violence. That is wrong. The mother was a direct perpetrator of family violence, as defined, by her denigration of the father to the children. Equally, the father has denigrated the mother in the presence of the children. The father submitted that he holds concerns about the effect on the children of the mother’s toxic attitude towards the father.
For the purpose of s 60CC(3)(k), the parties submitted –
(a)no family violence order applies to the mother, the father or the children;
(b)the father has been the respondent to several intervention orders; and
(c)the mother and the second respondent obtained a currently operative intervention order against the second respondent’s former wife.
Section 60CC(3)(l) involves a degree of projecting about the order that would be least likely to lead to further litigation in relation to the children. The mother submitted that the orders she sought achieved that end. The father said the orders he sought achieved that end.
Neither submission was particularly helpful.
Section 60CC(3)(m) invited attention to any other fact or circumstance the court considers relevant. To my mind, the operation of s 65DAA is a relevant circumstance. In my view the father and the mother should have equal time with each child. For the purpose of s 65DAA(1), equal time is in the children’s best interests, it is reasonably practicable and so such an order should be made. In addressing the reasonable practicability of such an order under s 65DAA(5), I have considered the elements in subsections (a) to (e) of s 65DAA(5).
THE SECOND ISSUE IN THIS CASE – RESTRAINING THE SECOND RESPONDENT
As has been addressed above, the second respondent has been dealt with for criminal offending. The father entertains an apprehension of fear that the children are or may be at risk in the presence of the second respondent. The father did not blanketly oppose any time being spent by the second respondent with the children. However, the father pressed for orders restraining the second respondent from spending time with the children until the second respondent has attended all reasonable appointments with a psychologist recommended by Dr E and that the second respondent attend those appointments for six months. The father sought orders requiring the mother and the second respondent to complete a post separation parenting course. The father submitted that Mr F should facilitate the introduction of the second respondent to the children.
The mother opposed the father’s proposal. She said no orders should be made prohibiting or restricting the second respondent’s time with the children.
THE PRECISE FORM OF ORDERS SOUGHT BY THE FATHER
While lengthy, it is necessary to set out the father’s proposal. It was as follows –
1.That paragraphs 18 to 27 of the final orders made on 4 April 2017 (Final Orders) be discharged, that the entirety of the orders made on 1 November 2019, 21 April 2020, 4 August 2020 and 21 September 2020 be discharged and that all other Final Orders remain in full force and effect.
2. That during Victorian school terms, Y born … 2004 and Z born … 2006 (collectively, "the Children") live with the Applicant and the First Respondent as follows:
1.1 with the First Respondent each alternate week, from the conclusion of school Monday to the commencement of school on the following Monday; and
1.2 with the Applicant each alternate week, from the conclusion of school Monday to the commencement of school on the following Monday, with there to be a continuation of the existing weekly term arrangements.
3. That during all Victorian school term holidays, the Children spend half of all school term holidays with each of the Applicant and the First Respondent by agreement, and failing agreement the Children spend the first half with the Applicant in even numbered years and the second half with the Applicant in odd numbered years.
4. That during the 2021 - 2022 long summer holidays and each alternate year thereafter, the Children spend time with the parties as follows:
4.1 With the First Respondent from 4 pm on 17 December 2021 until 4 pm on 25 December 2021;
4.2 With the Applicant from 4 pm on 25 December 2021 until 4 pm on 2 January 2022;and
4.3 That the Children spend the remaining long summer holidays equally with the First Respondent and the Applicant by agreement, or failing agreement pursuant to paragraph 2 herein.
5. That during the 2022 - 2023 long summer holidays and each alternate year thereafter, the Children spend time with the parties as follows:
5.1 With the Applicant from 4pm on 17 December 2022 until 4 pm on 25 December 2022;
5.2 With the First Respondent from 4pm on 25 December 2022 until 4pm on 2 January 2023; and
5.3 That the Children spend the remaining long summer holidays equally with the Applicant and the First Respondent by agreement, or failing agreement pursuant to paragraph 2 herein.
6.That in 2022 and each alternate year after, the Children's time with the Applicant and the First Respondent be suspended if necessary to enable them to spend time with the Applicant from the conclusion of school on the Thursday before Good Friday (or 5 pm on the Thursday before Good Friday if it is a non-school day) until 9 am on the Tuesday after Easter Monday.
7. That in 2023 and each alternate year after, the Children's time with the Applicant and the First Respondent be suspended if necessary to enable them to spend time with the First Respondent from the conclusion of school on the Thursday before Good Friday (or 5 pm on the Thursday before Good Friday if it is a non-school day) until 9 am on the Tuesday after Easter Monday.
8. That in the event that the Children are spending time with the Applicant on the First Respondent's birthday, such time be suspended for a period of 3 hours at times to be agreed between the parties and failing agreement between 5pm and 8.30pm to enable the Children to spend time with the First Respondent.
9. That in the event that the Children are spending time with the First Respondent on the Applicant's birthday, such time be suspended for a period of 3 hours at times to be agreed between the parties and failing agreement between 5pm and 8.30pm to enable the Children to spend time with the Applicant.
10. That the First Respondent be and is hereby restrained from causing or permitting the Children to be in the presence of, or have any contact with, the Second Respondent, save for with the express written consent of the Applicant.
11. That the Second Respondent be restrained from:
11.1 attending at B Street, Suburb C (or such other place where the First Respondent may live from time to time) while the Children are in the First Respondent's care;
11.2 attending events or functions with the Children, save and except if the Applicant's prior written agreement is provided, with such consent to not be unreasonably withheld, and with the First Respondent or such other person that may be agreed to by the Applicant to act as the supervisor; and
11.3 accompanying the Children on holidays.
12. That the operation of paragraphs 10 and 11 be discharged upon:
12.1 The Second Respondent providing documentary evidence to the Applicant that he is attending all reasonable appointments with a psychologist recommended by Dr E at D Psychologists for a period of no less than six months; and
12.2 The First and Second Respondent providing documentary evidence to confirm that they have each successfully completed a post separation parenting course.
13.That upon paragraph 12 being effective, the Second Respondent be gradually reintroduced to the Children with the Applicant and the First Respondent to jointly request that the reintroduction of the Children to the Second Respondent be facilitated by Mr F at the joint expense of the Applicant and the First Respondent and in this regard:-
13.1 Mr F be at liberty to speak with the Second Respondent's psychologist recommended by Dr E at D Psychologists; and
13.2 A copy of these orders be provided to Mr F; and
13.3 The parties follow all reasonable recommendations of Mr F with respect to the reintroduction of the children to the Second Respondent.
14.That the Second Respondent otherwise do all things and sign all documents to attend all reasonable appointments with a psychologist recommended by Dr E at D Psychologists, with the Second Respondent to provide documentary evidence to the Applicant confirming that he is attending appointments with such regularity as recommended by the psychologist every four months until 29 September 2024.
15.That the Applicant and the First Respondent do all things and sign all documents to facilitate and ensure that:
15.1 the Children attend all reasonable appointments with such psychologist that the parties may agree to from time to time;
15.2 they implement and follow all reasonable recommendations of the psychologist, including the attendance of all reasonable appointments with the psychologist or such other treating practitioner as may be agreed.
16.That the parties are each restrained from subjecting the Children to any emotional abuse or other family violence.
17. That the parties are otherwise restrained from denigrating any of the other parties or members of the other parties' family in the presence or hearing of the Children or otherwise, or from otherwise causing any other person to do so on their behalf.
18. That the parties do all things and sign all documents to allow the administration of the Pfizer or Moderna vaccine to the children and in the event that the Mother withholds her consent, that the Father be authorised to consent on the Mother's behalf to the administration of the vaccine.
19. That the Mother pay the Father's costs of, and incidental to, this Initiating Application including but not limited to the Father's legal costs which were reserved on 21 April 2020 and 4 August 2020.
20. That all outstanding applications are otherwise dismissed.
21. That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
22. That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
The vaccination issue was resolved.
THE MOTHER’S PROPOSAL
The mother’s proposal was not expressed in precise terms. Instead she merely stated that she wanted the final orders made on 7 April 2017 (she meant 4 April 2017) reinstated. Those orders provided as follows in relation to parenting –
17. That the Husband and the Wife retain equal shared parental responsibility for the children in the marriage, namely, Ms X born … 2002, Y born … 2004 and Z born … 2003 (collectively, the children).
18. That the children live with the Wife.
19. That the children spend time with the Husband during Victorian school term- time in a fortnightly cycle and subject to paragraph 23 and 26 below as follows:
19.1From the conclusion of school on Thursday until the commencement of school on Monday (or until the commencement of school on Tuesday if it is a long weekend) in week one;
19.2From the conclusion of school on Wednesday until the commencement of school on Thursday in week two; and
19.3 At such further and other times as the parties may agree.
20.That the children spend time with the Husband during all Victorian school term holidays for one half by agreement and failing agreement for the first half in even numbered years and the second half in odd numbered years, subject to paragraphs 21 to 26 below.
21. That in 2018 and during the 2018- 2019 long summer holidays and each alternate year after, the children spend time with the parties as follows:
21.1 With the Husband from 4 pm on 17 December 2018 until 3 pm on 25 December 2018;
21.2 With the Wife from 3 pm on 25 December 2018 until 4 pm on 2 January 2019; and
21.3 That the children spend the remaining long summer holidays equally with the Husband and the Wife by agreement, or failing agreement pursuant to paragraph 19.
22. That in 2017 and during the 2017 - 2018 long summer holidays and each alternate year after, the children spend time with the parties as follows:
22.1 With the Wife from 4 pm on 17 December 2017 until 3 pm on 25 December 2017;
22.2 With the Husband from 3 pm on 25 December 2017 until 4 pm on 2 January 2018; and
22.3 That the children spend the remaining long summer holidays equally with the Husband and the Wife by agreement, or failing agreement pursuant to paragraph 19.
23. That in 2017 and each alternate year. after, the children spend time with the Husband from the conclusion of school on the Thursday before Good Friday (or 5 pm on the Thursday before Good Friday if it is a non-school day) until 9 am on the Tuesday after Easter Monday.
24. That in 2018 and each alternate year after, the children spend time with the Wife from the conclusion of school on the Thursday before Good Friday (or 5 pm on the Thursday before Good Friday if it is a non-school day) until 9 am on the Tuesday after Easter Monday.
25. That in the event that the children are spending time with the Husband On the Wife’s birthday, such time be suspended for a period of 3 hours at times to be agreed between the parties and failing agreement between pm and 8:30pm to enable to the children to spend time with the wife.
26.That in the event that the children are spending time with the Wife on the Husband’s birthday, such time be suspended for a period of 3 hours at times to be agreed between the parties and failing agreement between pm and 8:30pm to enable to the children to spend time with the Husband.
27. That the parties be and are hereby restrained from denigrating the other or members of the other's family in the presence or hearing of the children, or from causing any other person to do so on their behalf.
28.That each party be at liberty to communicate with the children via text message or telephone on the children's mobile phones or on the home landline at reasonable times and intervals whilst they are in the care of the other party.
29.That each party provide to the other details of an email account used by them to enable them to communicate via email regarding children1s issues and that each party shall use their best endeavours to provide prompt and satisfactory responses to emails sent by the other and shall advise of any new email accounts to be used for this purpose.
30.That each party be permitted to attend parent/teacher interviews and other school activities and functions normally attended by parents.
31.That each party keep the other informed of any significant illness or injury of the children or any of them whilst in that party's care requiring medical attention, with such notice to be provided as soon as practicable and not more than twenty-four hours following the children attending upon the relevant medical or health practitioner and that in the event of the children of any of them sustaining a serious illness or injury, each party shall inform the other immediately.
32.That each of the Wife and Husband personally and by their servants and agents be and are hereby restrained from causing the children to attend upon any specialist medical practitioner or orthodontist other than the children's general practitioner(s) unless the Wife and the Husband agree in writing prior to same save and except in the case of a medical emergency involving any of the children in which case the Wife or Husband shall forthwith notify the other party.
33. That each party be permitted to travel overseas with the children upon providing the other party, not less than 21 days prior to the intended departure date, with a copy of the return tickets, travel itinerary, certificate of travel insurance and contact telephone number for the children during such travel (and provided that such time falls during the children’s time with that party pursuant to these Orders unless otherwise agreed in writing). For the purpose of the said rave;, each parent shall facilitate to the other the production of passports for the child or children who are travelling, and in the event that the said passport(s) are expired or due to expire, shall facilitate replacement passports.
33.That in the event that a party agrees to allow the other to spend additional time with the Children for the purpose of overseas travel, that party will be entitled to a period of makeup time equal to the time they would have spent with the children, but for the overseas travel.
34.That pursuant to s.628 of the Family Law Act 1975 (Cth), information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
35. That pursuant to s.65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders
36. That all outstanding applications are dismissed and removed from the list of cases awaiting final hearing.
THE EVIDENCE OF THE SECOND RESPONDENT’S PAST CRIMINAL BEHAVIOUR
The second respondent gave evidence in an unguarded manner about several episodes of criminal behaviour. He admitted those in cross-examination. They were –
(a)a conviction in 2009 for assault with intention to cause serious injury;
(b)imprisonment in late 2018 upon conviction for recklessly causing injury and contravening a community corrections order; and
(c)imprisonment in 2019.
Dr E took the view that the second respondent was a low level risk. Dr E also took the view that insufficient evidence existed to show that the children were at significant risk of harm while spending time with the second respondent. That said, Dr E stated in Dr E’s report that the impact and emotional trauma of exposure to verbal and aggressive behaviour between himself and his former wife cannot be underestimated. Dr E made certain other important observations as follows –
(a)from paragraph 138 of her report was this –
Recommendations regarding any child cared for, spending time with or communicating, with Mr Wood need to be child focused; must be driven by their welfare and are not made based on risk assessment alone, or without consideration of the best interests of the children. Of course, this could only be determined by those professionals working with the children and family unit, or those who have the fullness of information pertaining to the case. Consequently, explicit recommendations regarding the children cannot be made by the writer.
(b)from paragraph 141 of her report was this –
His assessed mental health profile suggests characteristic symptoms of depression as well as strong personality characteristics of dependence in interpersonal relationships and deficits in assertive communication. It is recommended Mr Wood consider psychiatric intervention or via his general practitioner, with the purpose of accessing treatment for depressive symptoms.
(c)from paragraph 142 of her report was this –
It is recommended Mr Wood continue to attend regular psychological treatment[10] to address those issues identified during assessment and detailed in the body of this report. Identified treatment targets would be:
i. Management strategies for negative affect.
ii. Dealing with hypersensitivity, overreacting with anger to annoyances and interpersonal conflict with Ms L.
iii. Addressing issues of interpersonal dependence on others for emotional support and decision making
iv. Increasing stress tolerance and developing emotional control strategies.
[10] Underline in original document.
While it can be stated that the second respondent may well be a low risk of violence towards the children at this time, it must also be acknowledged that the second respondent is far from clear of issues bearing upon depressive symptoms. The father has suggested that the second respondent requires ongoing psychological or psychiatric assistance. To my mind, there is merit in that approach. While a low risk of harm to the children at present may exist, the second respondent’s diagnosed psychological fabric has not fully stabilised. The father has suggested a period of six months before the children should be exposed to the second respondent in an unrestrained way. Until the expiration of that period, in my view an unacceptable risk[11] exists that the children will be exposed to family violence by the second respondent. That seemed to me to ensure that the risk of harm to the children is minimised as far as is possible. I confess to have found Mr F’s recommendations of little assistance, for example, in paragraph 46 and 47.
[11] M & M (1988) 166 CLR 69.
I take the view that the proposals pressed by the father are in the best interests of the children.
ORDERS
Formal orders have been recorded as appear in the first few pages of these reasons.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 21 October 2021
Schedule “A”
19.That the children spend time with the Husband during Victorian school term time in a fortnightly cycle and subject to paragraphs 23 and 26 bellow as follows:
19.1 From the conclusion of school on Thursday until the commencement of school on Monday (or until the commencement of school on Tuesday if it is a long weekend) in week one;
19.2 From the conclusion of school on Wednesday until the commencement of school on Thursday in week two; and
19.3 At such further and other time as the parties may agree.
20.That the children spend time with the Husband during all Victorian school term holidays for one half by agreement and failing agreement for the first half in even numbered years and the second half in odd numbered years, subject to paragraphs 21 to 26 below.
21. That in 2018 and during the 2018- 2019 long summer holidays and each alternate year after, the children spend time with the parties as follows:
21.1 With the Husband from 4 pm on 17 December 2018 until 3 pm on 25 December 2018;
21.2 With the Wife from 3 pm on 25 December 2018 until 4 pm on 2 January 2019; and
21.3 That the children spend the remaining long summer holidays equally with the Husband and the Wife by agreement, or failing agreement pursuant to paragraph 19.
22. That in 2017 and during the 2017 - 2018 long summer holidays and each alternate year after, the children spend time with the parties as follows:
22.1 With the Wife from 4 pm on 17 December 2017 until 3 pm on 25 December 2017;
22.2 With the Husband from 3 pm on 25 December 2017 until 4 pm on 2 January 2018; and
22.3 That the children spend the remaining long summer holidays equally with the Husband and the Wife by agreement, or failing agreement pursuant to paragraph 19.
23. That in 2017 and each alternate year. after, the children spend time with the Husband from the conclusion of school on the Thursday before Good Friday (or 5 pm on the Thursday before Good Friday if it is a non-school day) until 9 am on the Tuesday after Easter Monday.
24. That in 2018 and each alternate year after, the children spend time with the Wife from the conclusion of school on the Thursday before Good Friday (or 5 pm on the Thursday before Good Friday if it is a non-school day) until 9 am on the Tuesday after Easter Monday.
25. That in the event that the children are spending time with the Husband On the Wife’s birthday, such time be suspended for a period of 3 hours at times to be agreed between the parties and failing agreement between pm and 8:30pm to enable to the children to spend time with the wife.
26.That in the event that the children are spending time with the Wife on the Husband’s birthday, such time be suspended for a period of 3 hours at times to be agreed between the parties and failing agreement between pm and 8:30pm to enable to the children to spend time with the Husband.
Schedule “B”
FAMILY LAW ACT 1975
CONSENT ORDERS IN THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE File No. MLC11092/2015
BETWEEN MR RUSHTON
Applicant
AND MS TORNEY
Respondent 1
MR WOOD
Respondent 2
BY CONSENT IT IS ORDERED:
1.That paragraphs 18 to 22 of the final orders made on 4 April 2017 (Final Orders) be suspended until further order.
2.That the matter be listed for further hearing on 21 April 2020.
2A.The parents and children attend upon and at the direction of Mr F for the preparation of a Family Report at their equally shared expense.
3.That until further order, and subject to the injunctions outlined below, during Victorian school terms X born … 2002, Y born … 2004 and Z born … 2003 (Children) live with the Applicant and the First Respondent as follows:
3.1with the First Respondent each alternate week, from the conclusion of school Monday to the commencement of school on the following Monday, such time to commence from the first Monday after the making of these orders; and
3.2with the Applicant each alternate week, from the conclusion of school Monday to the commencement of school on the following Monday to commence from the second Monday after the making of these orders.
3A.For the avoidance of doubt the children are to live with the parents as follows pending the adjourned hearing:
3A.1 with the Mother:
iFrom 3 November 2019 to 4 November 2019 at 11:00AM;
iiFrom 4 November 2019 to 11 November 2019 and alternate weeks thereafter;
iiiFrom 17 December 2019 to 25 December 2019;
ivFrom 2 January 2020 to 15 January 2020;
vFrom 25 January 2020 to 10 February 2020;
viFrom 17 February 2020 to 24 February 2020 and alternate weeks thereafter.
3A.2 with the Father:
iFrom 1 November 2019 to 3 November 2019;
iiFrom 11 November 2019 to 18 November 2019 and alternate weeks thereafter;
iiiFrom 25 December 2019 to 2 January 2020;
ivFrom 15 January 2020 to 25 January 2020;
vFrom 10 February 2020 to 17 February 2020 and alternate weeks thereafter.
4.That the First Respondent be and is hereby restrained from causing or permitting the children to be in the presence of, or have any contact with, the Second Respondent, save for with the express written consent of the Applicant.
5.That from the date of these orders until the adjourned date the Second Respondent:
5.1attend upon Dr E at D Psychologists (or such other practitioner as may be agreed between the parties) (Treating Practitioner), with the Second Respondent to be solely responsible for the cost, for:
ia risk and psychological assessment, which is to include a forensic examination of the Second Respondent's past and present criminal history, his Court appearances and circumstances surrounding parenting arrangements to his biological children and the possible risk that he poses to the Children; and
iirecommendations as to ongoing treatment and / or therapy.
5.2do all things and sign all documents to authorise the Treating Practitioner to circulate the results from the assessment and the recommendations referred to at paragraphs 5.1i) and 5.1ii) herein to the Applicant and the First Respondent.
5.3do all things to follow the Treating Practitioner's recommendations as to ongoing treatment and therapy and to provide to the Applicant and the First Respondent evidence of same on a monthly basis.
5.4be restrained from:
iattending at B Street, Suburb C (or such other place where the First Respondent may live from time to time) while the Children are in the First Respondent's care;
iiattending events or functions with the Children, save and except if the Applicant's prior written agreement is provided, with such consent to not be unreasonably withheld, with the First Respondent or such other person that may be agreed to by the Applicant to act as the supervisor; and
iiiaccompanying the Children on holidays.
6.That the Applicant and the First Respondent do all things and sign all documents to facilitate and ensure that:
6.1the Children attend all reasonable appointments with such psychologist that the parties may agree to from time to time;
6.2they implement and follow all reasonable recommendations of the psychologist, including the attendance of all reasonable appointments with the psychologist or such other treating practitioner as may be agreed.
7.That the parties are each restrained from subjecting the Children to any emotional abuse or other family violence.
8.That the parties are otherwise restrained from denigrating any of the other parties or members of the other parties' family in the presence or hearing of the Children or otherwise, or from otherwise causing any other person to do so on their behalf.
9.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
10.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
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