SANDELL & NEAVE

FAMILY COURT OF AUSTRALIA

SANDELL & NEAVE

[2020] FamCA 648

FAMILY LAW – CHILDREN – Best Interests – With whom a child shall live – Where the father primarily seeks that the children move to reside with him and spend alternate weekends and half school holidays with the mother – Where the mother seeks that the children continue to reside with her and spend alternate weekends and half school holidays with the father – Where the father asserts that he is the parent who is more likely to ensure that the children continue to have a meaningful relationship with both parents – Where the children require stability and continuity in their living arrangements – Where a change in their primary residence, such that they live with the father, is not in their best interests – Where an equal time arrangement is not in their best interests nor reasonably practicable – Where the parents shall have equal shared parental responsibility, the children shall live with the mother and spend alternate weekends (Friday to Tuesday), special occasion time and half of the school holidays with the father.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Sandell

RESPONDENT:

Ms Neave

INDEPENDENT CHILDREN’S LAWYER:

Bruce Scott

FILE NUMBER:

BRC

5249

2016

DATE DELIVERED:

7 August 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

28, 29 & 30 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Oakley

SOLICITOR FOR THE APPLICANT:

KLM Solicitors

THE RESPONDENT:

Self-represented

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Green

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Parker Family Law

Orders

That all extant parenting Orders be discharged.
That the mother and the father shall have equal shared parental responsibility for all major long-term issues affecting the children, X born … 2010 and Y born … 2013 (“the children”).
That in addition to and without derogating from the obligations imposed upon each of the parents by the equal shared parental responsibility order in paragraph (2) hereof, each of the children shall continue to be known by the family name, Sandell-Neave, and that name shall be used for them for all purposes with each parent being restrained from changing that family name, or calling either of the children by or having them called by any other family name without the prior written agreement of the other parent or an order of a Court of appropriate jurisdiction.
That the children shall live with the mother.
That the children shall spend time with the father at all times as agreed between the mother and the father, and failing agreement in writing, as follows:
(a)During school terms:
(i)From after school Friday (or Thursday if the Friday is a Public Holiday) until before school Tuesday each alternate weekend with the children to be collected by the father from their schools at the commencement of such time and delivered to their schools at the conclusion of such time;
(ii)Such school term alternate weekends shall commence on the first weekend of school terms that follow school holidays in which the children have spent the first half of the holidays with the father and on the second weekend of school terms that follow school holidays in which the children have spent the second half of the holidays with the father.
(b)During school holidays:
(i)For the first half of each school holiday period commencing in even numbered years and the second half of each school holiday period commencing in odd numbered years;
(ii)For the purposes of dividing the school holidays in half, the holidays shall be considered as commencing at midnight at the end of the last day of school term of the child of the two children who finishes school term last and as ending at midnight at the beginning of the first day of school term of the child of the two children who recommences school last;
(iii)Should the exact halfway point in the school holidays calculated in accordance with (ii) hereof fall at any time between 7:00 pm and 7:00 am then changeover shall simply wait until 8:00 am following that half way point;
(iv)Notwithstanding the wording of (iii) hereof, when the children spend time with the father in the first half of school holidays, he shall collect them from their school at the end of the last school day of the term leading into the holidays and when the children spend time with the father in the second half of school holidays, he shall deliver them to their school at the beginning of the first school day of the term commencing at the end of the holidays;
(v)the parent who has had the children in his or her care for the first half of the school holidays shall deliver the children to the residence of the other parent at the exact midway point of the holidays calculated pursuant to (ii) hereof, or at 8:00 am following that mid-point if it has fallen overnight between 7:00 pm and 7:00 am.
(c) Special Days:
(i)On the weekend of Father’s Day, if they are not otherwise with the father on that weekend, from after school Friday until before school Monday provided however should the children be spending time with the father on the Mother's Day weekend he forfeits that weekend and they stay with the mother for that weekend and this paragraph applies without variation to the alternate weekend regime otherwise in place during such school terms;
(ii)On each child’s birthday (if they are not otherwise with the father) from after school until 6.00 pm if on a school day and between 1.00 pm and 7.00 pm if on a non-school day with the father to collect and return the girls from and to the mother’s residence at the commencement and conclusion of such time;
(iii)On each child’s birthday, if they are with the father pursuant to the provisions of these Orders, then they shall be entitled to go back into the mother’s care from after school until 6:00 pm if on a school day and from 1:00 pm until 7:00 pm if on a non-school day with the mother to collect and return the girls from and to the father’s residence at the commencement and conclusion of such time;
(iv)On the father’s birthday, (if they are not otherwise with the father) from after school until 6.00 pm if on a school day and between 1.00 pm and 7.00 pm if on a non-school day with the father to collect and return the girls from and to the mother’s residence at the commencement and conclusion of such time;
(v)On the mother’s birthday, if they are with the father pursuant to the provisions of these Orders, then they shall be entitled to go back into the mother’s care from after school until 6:00 pm if on a school day and from 1:00 pm until 7:00 pm if on a non-school day with the mother to collect and return the girls from and to the father’s residence at the commencement and conclusion of such time;
(vi)On Christmas Eve from 5.00 pm until 12.00 pm Christmas Day on even numbered years and from 12.00 pm Christmas Day to 5.00 pm Boxing Day in odd numbered years with the father to collect them from the mother’s residence at the start of such time and the mother to collect them from the father’s residence at the conclusion of such time.
That the children shall have telephone communication with the parent they are not with each Thursday between 5:30 pm and 6:30 pm and at all other times initiated by the children. The mother and father will each ensure that when the children are in her or his care that a telephone call is made at 5:30 pm each Thursday to the other parent (and at any other time when either of the girls asks can they call to speak with the other parent) and that the girls speak to the other parent at that time and that the girls are given the privacy within which to do that.
That the children shall remain enrolled at C School for the remainder of their primary school education unless agreed in writing by the mother and father or ordered by the Court and they shall be enrolled to attend D School, Suburb E as the high school they are to attend unless agreed in writing by the mother and father or ordered by the Court.
That the mother and the father shall keep each other informed of their residential address, mobile telephone number and email address and any change thereto within 48 hours of such change occurring, if not before such change occurs.
That the mother and the father shall communicate in respect to all matters concerning the children by email except in the case of emergency when communication shall be by telephone.
That the children shall continue to attend the Child Development Service at such times as recommended from time to time by the Child Development Service.
That the child X shall only attend upon a psychologist as determined by her general practitioner and agreed upon in writing by both parents and she shall continue to attend upon such psychologist from time to time as recommended by the psychologist.
That the child Y shall attend upon a paediatrician as determined by her general practitioner and agreed upon in writing by both parents and continue to attend upon such paediatrician from time to time as recommended by the paediatrician.
That the children shall only attend upon psychologists, paediatricians and other treating medical practitioners and/or allied health care providers after each parent has agreed (save in the case of emergency) and had the opportunity to have consultation with that practitioner or provider and the mother shall ensure that the father is advised no less than 14 days prior to any appointment (save in the case of emergency) and the father shall be entitled to attend upon and speak with any such practitioner or provider at his expense as he and the practitioner agree and such agreement may include the father attending sessions with the child.
That these Orders authorise both the mother and the father to liaise directly with any of the children’s medical practitioners or allied health care providers and to be provided with all the information requested by them with respect to the children’s treatment from time to time that the practitioner or allied health care provider is lawfully able to provide.
That these Orders authorise the children’s school/s to liaise directly with each of the parents in relation to the children’s schooling and to provide each of the parents with all the information requested by them with respect to the children’s schooling, sporting and extra-curricular activities from time to time, including but not limited to, copies of all school progress reports and school photographs.
That each of the parents is entitled to show a copy of the relevant parts of these Orders to the administration of the children’s schools and to any medical practitioner or allied health care provider the children may be seeing.
That the mother and the father shall ensure that while the children are in their respective care, that they do not denigrate or speak of the other parent in derogatory terms and each shall ensure that no other person does so in the presence or hearing of the children.
That neither the mother nor the father shall discuss these proceedings or any aspect of them with the children.
That the mother shall ensure that she completes an age applicable Triple P Parenting Course (and completion of an 8 module online course is acceptable) and one course run by F Service (being either a Parenting Orders Program or Keeping Kids in Mind or Focus on Kids course) within nine months of the date of these Orders and that she provides documentary evidence of completing those two courses within that time to the father.
That in the event that there is a dispute about the children or about the interpretation or enforcement of these Orders, before making any further application to the Court the parents shall:
(a)consult with a Family Dispute Resolution Practitioner or a Family Relationship Centre to assist with resolving any dispute in relation to the children or reaching agreement about changes to be made to the parenting arrangements for the children; and
(b)pay the costs of the Family Dispute Resolution Practitioner or Family Relationship Centre (if any) equally.
That the mother and father shall cause the children, X born … 2010 and Y born … 2013, to be brought to Child Dispute Services on level 3 of the Commonwealth Law Courts Building at 10.00 am on Wednesday, 19 August 2020, to meet with Senior Family Consultant Mr B and the Independent Children’s Lawyer, Mr Bruce Scott, to be informed of the following:
(a)the outcome of these proceedings, including that the Orders made are Final Orders; and
(b)that there are no further pending proceedings.
That the Independent Children’s Lawyer is discharged after meeting with the children in accordance with paragraph (21) above.
That pursuant to ss 65DA(2) and 62B 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 and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sandell & Neave has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 5249 of 2016

Mr Sandell

Applicant

And

Ms Neave

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

The parties in this matter, who I shall, for convenience, simply call the mother and the father, are in dispute about the proper parenting orders that will continue to regulate their co-parenting of their two children, X (now 10 years of age) and Y (now seven years of age).
Though they have disparate views about exactly when and how their relationship commenced, it is sufficient to say that they began their relationship in or around 2009, as X was born in early… 2010. They began to live together in a de facto relationship in 2010. Y was born in … 2013 and they separated on a final basis in early 2016 when the two girls were still little.
The mother had been in a long-term relationship before this one with the father. She had two daughters of that relationship and they lived also with her and the father throughout their six years of cohabitation. On separation, she took all four girls with her and moved out of their family home. She brought family violence protection order proceedings against the father and she would not let the girls spend any time with him for some months.
The father then did what many men who find themselves as respondents to family violence protection order applications do. He filed an application for a family violence protection order himself, counter-alleging that the mother had committed family violence against him. In June that same year (2016), he also commenced these proceedings in this Court seeking parenting orders that would have the four girls living with him and spending time with the mother on alternate weekends during school term and half of each school holiday period.
The mother and the father attended a mediation soon thereafter, but there was no getting over their impasse and the mother would still not let the children spend any time with the father.
In August, a Brisbane Magistrate (who has an enormous amount of pre-judicial service as a family lawyer and who has been a Magistrate for many years) dismissed both parties’ applications for family violence protection orders.
The matter then came before the Court for the first time. It was before a Registrar who ordered the appointment of an Independent Children’s Lawyer (“the ICL”), the preparation of a family report and, by consent, that the two girls, X and Y, start spending each second weekend with the father.
A family report was then prepared by Mr B, a Family Consultant with tertiary qualifications in psychology and social work, who has been working in the Child Dispute Services section of the family courts since 2008. He recommended that there be no orders made as between the mother and the father in respect of the mother’s two eldest daughters and that X and Y continue to live with the mother and spend time with the father on a regular basis fitting in around the father’s roster in his employment as a public servant.
On 24 November 2016, the matter came before Senior Registrar Spink for an interim hearing. The parties reached agreement and the terms were noted by the Senior Registrar and orders made by consent that X and Y continue to live with the mother and spend alternate weekends with the father from after school on Thursday to before school on Monday during school term until Y commenced school, where after it would change to Friday after school to Monday before school. The father agreed not to seek any Orders in respect of the mother’s two oldest daughters. When an engrossed form of the terms of the Order was sent through to the Court by the mother’s solicitors it apparently incorrectly recorded the agreed terms by not providing for the two younger girls’ time to commence on Thursday afternoons, but rather on Friday afternoons.
That led to further dispute between the parents. The father decided to bring another Application in a Case seeking orders to correct the error. That came before the Court again on 30 March 2017 at which time Senior Registrar Spink acknowledged the error and amended the Order pursuant to the slip-rule. Around this same time, the mother filed another application for family violence protection orders in the Magistrates Court. The father opposed the making of the Orders and within weeks the mother discontinued that application.
At that time (the first half of 2017) X, at least, was attending a primary school in Suburb G, as the parties were living on the north side of Brisbane. The mother had formed a new relationship and had set the date for her marriage to that man for late … 2017. She planned to move to the south side of Brisbane on marrying this man, taking the four girls with her. She told the father of her plans, including the plan to move X (along with her older sisters) into new schools.
The father quickly filed another Application in a Case seeking more interim parenting orders including an injunction restraining the mother from changing X’s school and Y’s crèche. That application came before the Senior Registrar on 15 June, seemingly on an urgent basis. The Registrar made the following Order, amongst others:
That until 5pm on 07 August 2017 the Mother be restrained and an injunction hereby issue restraining the Mother from cancelling the children’s enrolment at H School Suburb G and the J Childcare Centre.
The matter was adjourned for further hearing on 7 August 2017 and the mother was ordered to file her response and supporting affidavit before then.
On 23 June 2017, the last day of school term, the girls were in the father’s care. He drove X to school and then took Y to the hospital emergency to have her checked out as she was complaining of having a very painful leg. He informed the mother and agreed that she could also attend at the hospital. She and her new partner attended. A doctor spoke with them all and informed them of the diagnosis that it was nothing serious. The mother and the father then had a conversation. There is dispute about part of that conversation.

The father alleges that the mother told him, whilst trying to persuade him to agree to let her change the girls’ schools, that the school the girls were then attending had informed her that one of her elder daughters had made a claim to a teacher that the father had sexually molested her. The father alleges the mother told him the school had done nothing about it. The father said that he told the mother he had heard nothing about that and that he denied the allegation. He said that he subsequently contacted the school and they informed him “they knew nothing” of the allegation.
The mother denied having said any of that to the father in the conversation. She agreed that there was no record in the school’s records produced under subpoena to the Court of one of her girls making such a claim to her school teacher or the school informing the mother of such. She also said that there was no record of the father contacting the school and being told that the school knew nothing of the allegation.
In late June, the mother communicated further with the father trying to persuade him to permit her to change the girls’ school enrolments to the south side. He told her that he still did not agree to that change. The next school term was to commence on 10 July 2017, a month before the scheduled further hearing of the father’s application for injunction. On the first day of the new term, the mother contacted the father and told him that X was refusing to go to school at the Suburb G school but wanted to go to the school on the south side. She was seven years old at this time. Later that day, the mother contacted the father again and told him that the girls “had just loved their new school and kindy”.
The father contacted the south side school and confirmed that X was attending there. He sent them a copy of the interim injunction but said the school told him that it could not get involved in the parenting dispute and would not stop X attending if she continued to. The father learned that this school is only approximately 150 meters from the home into which the mother and the four girls moved with the mother’s new husband.
On 7 August 2017, Senior Registrar Spink heard the husband’s interim application. Despite the circumstances outlined, he ordered that X and Y were to attend the new school on the south side of Brisbane that the mother had unilaterally changed them to already. The Senior Registrar clearly determined that was in their best interests. He ordered that they spend time with the father from after school each alternate Thursday to before school the following Monday or Tuesday if Monday was a Public Holiday. He ordered that the parties are to communicate about the children via email. He made further orders with the consent of the parties that the parents have equal shared parental responsibility for the two girls and that neither parent remove either child from the school they attend or move the children’s home outside the suburbs in which each parent currently lived without the leave of the Court. He ordered that the father was to be allowed to attend upon any and all medical assessments to which parents are usually entitled to attend.
On 4 June 2018, by consent, the August 2017 orders of Senior Registrar Spink providing for the girls to spend time with the father during school term from after school each alternate Thursday to before school the following Monday were changed so that they would spend time with him from after school each alternate Friday until before school the following Tuesday. This made no change to the amount of time the children were spending with him. I understand the change was to better fit with the father’s work rostering requirements.
That is how things stood until the matter came into my docket in mid-2019. I made orders requiring Mr B to do an updating family report and listed the matter for trial over three days commencing on Monday, 28 October 2019. At the trial, the father was represented by solicitors and counsel. The ICL was represented by counsel but the mother was unrepresented and conducted her own case. At the conclusion of the case, I reserved my judgment. It has been reserved now for just over nine months. The responsibility for hearing and determining so many other matters and the requirement to take recuperative leave in those months has substantially caused this delay. A number of those matters have gone longer than the time allocated. One matter in particular, listed for five days of hearing earlier this year, took nineteen days to hear, reducing the number of diarised judgment writing days I had, thus compounding the delay in getting this judgment written. It is regrettable that it has taken me this long to deliver judgment in this matter and I truly hope the delay has not added to the difficulties the mother and the father experience in their co-parenting relationship.
Ultimately though, I have determined not to make the significant changes sought by the father. He wanted the Court to move the two girls from their mother’s principal care to his care and for the children to start spending the same time with the mother that they have been spending with him over the last couple of years. I will not make a parenting Order that does that. I have determined that the proper Order to make, in the best interests of these two girls, is to leave them living with their mother and continuing to spend the significant and substantial time that they currently spend with their father.
These are my reasons for this decision.

The Parental Responsibility Case

Unlike many of the parenting orders cases that I hear, in this one, the mother, the father and the ICL all proposed that parental responsibility be equally shared and that an Order be included in the parenting Orders to be made, reflecting that.
Though a little troubled about the poor history of communication between the mother and the father and the apparent contravention of the existing interim order providing for equal shared parental responsibility demonstrated by the mother’s unilateral determination to change the girls’ schools in the middle of 2017, not to mention the apparent contravention of the interim injunction the Senior Registrar had put in place in June that year, I will make the equal shared parental responsibility order that all the parties submit is in the best interests of the children in this case.
I am not determining a Contravention application brought by the father against the mother. Indeed, the father’s decision not to bring an Application – Contravention against the mother in this case in respect of that schooling matter, demonstrates a positive development in the history of this case, with the father clearly choosing not to increase the conflict and to focus more on the outcomes for the girls rather than pursuing consequences against the mother where he perceives he has been wronged.
Most importantly, the mother must now continue to be aware of the obligations cast upon both her and the father by s 65DAC of the Family Law Act 1975 (Cth) (“Family Law Act”) when there is an equal shared parental responsibility order in place. Where the exercise of that parental responsibility involves making a decision about a ‘major long-term issue’ in relation to the child, the decision must be made jointly by the mother and the father who share parental responsibility and only after the parents have consulted each other in relation to the decision to be made and have made a genuine effort to come to a joint decision about the issue. The decision must not be made unilaterally by either parent if it is not made jointly by both of them. Also, if it is not made jointly by both of them, then it can only be made by this Court or the Federal Circuit Court on a proper application of one or both of the parents. To avoid any doubt, ‘major long-term issues in relation to a child’ is defined in s 4 of the Family Law Act. It means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child’s education (both current and future); and
(b)the child’s religious and cultural upbringing; and
(c)the child’s health; and
(d)the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
If the mother and the father abide by these obligations and consult each other on these decisions and make them jointly, it will most certainly be in the best interests of these children. Further dispute and conflict between them that is not dealt with reasonably and respectfully will not be.
Changing the family name of a child is clearly a major long-term issue. An equal shared parental responsibility means the mother shall not change the family name of the children without the father’s agreement or without an order of the Court permitting her to do so. Accordingly, an order expressly restraining the mother from changing the children’s family name is not strictly necessary where I am making an equal shared parental responsibility order. However, in this case, I will also be making an order expressly restraining the mother from changing the children’s family names. I told the parties during the hearing that I would do that and I will. I am concerned on all the evidence in this case that without such express restraint, the mother may still be tempted to change the children’s family names.
The family name of X and Y is Sandell-Neave, a hyphenated combination of the father’s family name and the mother’s family name when both girls were born. There was no dispute that the mother and the father agreed to give the two girls that family name. Since then though, the mother married Mr Kidd and changed her own family name to Kidd. She told the Court that she had no intention of changing the girls’ family names to Kidd or even to Sandell-Kidd. However, she did say to the Court that sometimes the name gets shortened. That concerned me, although just how the name is shortened was neither canvassed nor revealed. I was concerned that it might get shortened simply to “Kidd”. I will make an order expressly restraining either parent from taking any steps to unilaterally change the girls’ family names or from using or causing any other name to be used other than Sandell-Neave. These girls have endured enough change and conflict in their lives. It is not in their best interests to have to deal with more change and conflict surrounding their family name.

The Principles that must then be applied

Where the Court is making a parenting order that is to provide for the girls’ parents to have equal shared parental responsibility for the girls, then, pursuant to s 65DAA of the Family Law Act the Court must consider whether the children spending equal time with each of the parents would be in the children’s best interests and whether that is reasonably practicable and, if so, then the Court must consider making an order that provides for the children to spend equal time with each of the parents. If the Court does not do that, then it must consider whether it would be in the children’s best interests to spend substantial and significant time with each of the parents and whether that is reasonably practicable and, if so, then the Court must consider making an order that provides for that.
“Substantial and significant time” is defined in the same section as time that includes days that fall on weekends and holidays and days that do not fall on weekends or holidays (i.e. school days) and is time that allows the parent to be involved in the child’s daily routine and occasions that are of particular significance to the child and also allows the child to spend time with the parent on occasions and for events that are of special significance to the parent.
“Reasonable practicability” is determined by having regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending such time with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing such an arrangement; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The mother asked the Court to make orders that provide for the same arrangements as are currently in place. That does not represent equal time with each parent, but it does provide for the girls to spend substantial and significant time with their father (as well as their mother). The ICL proposes the same regime be left in place as well.
The father asked the Court to determine that the girls should be moved to live principally with him and to spend substantial and significant time with the mother from after school Friday to before school Monday each alternate weekend during school terms and for half of their school holidays. For the father, it was argued that the Court would find that the girls are at “an ongoing risk of psychological harm” and of not being able to maintain a meaningful relationship with their father if they remain in the principal care of their mother. It was argued that the best way to overcome that risk was to move them to live with their father and for them to spend alternate weekends from Friday afternoon to Monday morning with the mother during term and for half of the school holidays with her.
In the Outline of Case document that was filed on behalf of the father before the trial, it was argued, alternatively, that if the Court did not consider the children were at an ongoing risk of psychological and emotional harm and of not being able to maintain a meaningful relationship with the father then they should continue to live with the mother but spend time with the father during school term from after school each alternate Friday until before school the following Thursday (not quite equal time). Then, during the oral submissions made by counsel for the father at the end of the trial, counsel told the Court that if the father’s primary position that the girls should live with him and spend alternate weekends with the mother from after school Friday until before school Monday was not supported by the Court, the father would advocate that the children spend the same time with the mother as they spend with him now, namely from after school Friday until before school the following Tuesday, each alternate weekend during school term. Counsel told the Court that if that was not supported by the Court either, the father advocated the alternative position of the children spending equal time with each of the parents on a week about basis during school term.

The Father’s Principal Position

Though the mother and the ICL both asked the Court to maintain the status quo in the girls’ living arrangements, counsel for the father submitted that the status quo is “appalling” and that the Court would not consider doing that. Counsel submitted that the evidence supports findings that the father is the parent “best placed” to adopt the care of these two “vulnerable children”, given that it also supports findings, according to counsel’s submissions, that the mother has effectively acted to damage the girls’ relationship with their father, does not support and encourage it and has used the children to try to collect evidence that would secure and protect her position as principal carer.
There is certainly some degree of merit in those submissions which I will discuss further, but notwithstanding that acknowledgment, I have not been persuaded that living with the mother is so detrimental to the girls’ wellbeing that they would be better off living with the father and should be moved to live in their father’s principal care. Nor am I persuaded that an equal time regime is in their best interests or reasonably practicable.

Some More Relevant History

There was no dispute at trial that both X and Y have considerable learning and developmental challenges. It seems that the mother has for some years believed X to have a disorder on the autistic spectrum. On the other hand, it seems that the father has for much of that same time believed that the mother has been consciously searching for such a diagnosis to use in support of an argument that the father does not have the capacity to care for X’s special needs, at least as principal carer.
The mother first asserted in connection with these proceedings that X had been assessed and found to have Autistic Spectrum Disorder in an affidavit filed in March 2017. In early March 2017, X had been seen by a Clinical Psychologist who the mother had also been seeing. The mother took her to this Psychologist and had her assessed without the father’s knowledge or consent. The Psychologist reported that X’s score in administered tests “classified her as demonstrating a high level of autism spectrum related symptoms and above the cut-off required for a diagnosis of autism”. The Psychologist recommended that X see a Paediatrician for ongoing management of her condition.
The mother provided that report to the school X was attending and the school informed the parents that a diagnosis from a Paediatrician was required in order for the school to access available funding for assistance with teaching X. I expect the mother already knew that, being an educator herself. That was not long before the mother moved the girls from that school. It was only when the school informed the parents that the father first learned of the identity and qualifications of the professional who the mother had said had diagnosed X with ASD.
This happened after the mother had not long taken X to a Paediatrician in August 2016 on a referral from her General Practitioner. The mother had taken X because of concerns that she might have an autistic spectrum disorder. Again, that appears to have been done without the father’s knowledge or consent. That Paediatrician had not diagnosed X with autistic spectrum disorder. She had said:
…I am unsure if autistic spectrum disorder is an appropriate diagnosis for X, however I do agree that there are some issues with emotional regulation and learning difficulties.
She proposed some further psychological assessment of X be undertaken with an organisation called L Service. That did not happen. The mother said she did attend and have a meeting at that place but there was no follow up assessment arranged with them as she said she could not afford it at the time. The mother also cancelled X’s further appointment with the Paediatrician at the time and told this Court that she did not share the opinions the doctor had proffered. This evidence lends some support to the submissions of counsel for the father that the mother was indeed looking for a firm diagnosis and was not satisfied with this specialist’s opinion. The submission gains further support from part of the letter sent from the Paediatrician back to the General Practitioner in which she said:
The motivation for this consultation mum declared was for use during a court hearing that is pending as mum feels that Mr Sandell (X’s father), is not capable of looking after a child with special needs independently.
The submission gains even further support from the mother’s apparent use of the later opinion expressed by the Clinical Psychologist in the first half of 2017 in the interim parenting orders proceedings to resist the father’s application. Indeed, the mother used that opinion in Court without even revealing to the Court that the opinion was a Psychologist’s opinion and not a Paediatrician’s. Furthermore, at the time when the mother had not revealed the identity of the professional who had diagnosed X, the ICL asked her in writing to inform him of the identity of that person and the mother did not respond.

A little later in 2017, the mother unilaterally made arrangements for both girls to be seen and assessed by a multi-disciplinary team at the Child Development Service (“the CDS”), a branch of the Queensland Health Department, Suburb M offices to start in August. She did inform the father of this in a reasonably lengthy email sent to him in mid-June 2017, around the time she was moving the children to live on the south side.
When the father learned of this, he wrote his own lengthy and detailed email letter to the CDS. That was adduced into evidence. The father was extremely frank in informing the CDS about his opinions of the mother, as negative as they clearly were. My understanding of the facts is that sometime thereafter, Suburb M CDS referred the family to the Suburb E branch of the CDS to undertake the assessments of the children or the parents themselves agreed that the assessment should be conducted at the Suburb E branch for convenience. There was an apparent stand-off between the mother and the father about their mutual attendances at appointments but eventually, during the course of 2018, I understand the assessment process began. Indeed, the matter was retained in the pool of matters awaiting trial allocation in this Court pending the completion of this process, so there was an expectation all round that it be completed before the matter was listed for trial. During that same year, 2018, the mother also again unilaterally arranged for X to start attending upon another Psychologist who was in the suburban vicinity of where the mother and the children live. X did start seeing this Psychologist on a regular basis for assistance with anxiety problems. Again, the mother appears to have been reluctant to share information about this with the father.
At one point in time, after the father had learned of X’s attendance at the Psychologist, he learned that her sessions had ceased for some time. He then proposed to the mother that X start attending upon another Psychologist that the father said he thought could help X. He did not disclose to the mother that he himself had already been attending upon that Psychologist for some time for counselling. At the trial, the father appeared to acknowledge the inappropriateness of his proposal, particularly that he did not disclose to the mother his own connection with the Psychologist he proposed. In any event, the mother did not agree and X again began attending the same Psychology practice that she had been attending before.
The conflict between the parents plainly revealed itself on a day in July 2018 after the commencement of the third school term when the father turned up at the girls’ school intending to pick up the girls for their weekend with him. The mother did not agree that it was his weekend (I am satisfied she was wrong about that) and she called the police to attend at the school to prevent the father taking them. The police did attend and the father left the school without taking the girls with him. That was not the first time the mother had called the police to come to a place where the father had turned up. In 2017, the father had gone to a day care centre attended by Y with a view to spending some time with her during the period when the mother was not letting the girls spend time with him. Upon seeing the mother arrive at the gate, the father made the strange move of hiding himself in the female staff toilets, hoping not to be seen by the mother. The mother learned of his presence and called the police. The father left when asked to come out of hiding and leave by the staff of the centre. Sadly, such has been the nature of the relationship between the parents.
In a letter the father wrote to the Suburb E CDS after they had taken up the assessment process in respect of the children, he was, again, just as frank in his criticism of the mother and in expressing his opinions about this to the professionals at the CDS as he was in the earlier letter he wrote the year before.
Ultimately, within all these apparent hostilities, the CDS put together a Team Assessment Report for X. They also appear to have assessed and given feedback in respect of Y. The team that produced the report for X consisted of a Paediatrician, a Psychologist, a Social Worker, a Speech Pathologist and an Occupational Therapist. The team determined that X “does not currently meet criteria for ASD.” They reported that some of X’s “need for routine and reduced social engagement may be better explained by her anxiety”. They went on to report that she presents with features of a “Specific Learning Disorder” with impairment in reading and written expression. They suggested she needs support through an individual learning program. The Team observed that there has been a significant amount of change in X’s life, both at school and at home. They acknowledged that would be “difficult for any child to handle” and that X’s anxious temperament and tendency to worry would further compound this. Certain interventions were agreed upon with the parents and CDS were asked to review X’s learning, social and emotional development again a further twelve months after these interventions had been implemented. The Team’s Assessment Report first issued in August 2019 and was followed up with the final amended assessment report in October 2019 just a couple of weeks before the trial. The assessment process had begun in April 2018, so took place over an extended period.
The evidence satisfied me that in April 2019, when the CDS professionals met with the mother, the mother was upset after being told that X did not have a diagnosis of ASD. The CDS notes record the mother as being “verbally aggressive” and that she “threatened to make complaints”. The notes reflect that the mother even raised concerns of CDS professionals speaking inappropriately about her with the father. The notes also reflect the professionals told the mother that the conflict in the relationship between the parents will be contributing to X’s behaviours and emotions. The notes go on to report that the mother “became teary at this point but calmed and began to accept the explanation given for X’s difficulties”. The notes record that the mother apologised for her behaviour.
The father gave evidence that after that time the mother was still trying to persuade him that the CDS had not done an appropriate job and was proposing further assessment with private providers. However, further CDS appointments with each of the parents and with X to discuss goal setting took place leading up to the eventual issue of the final report. So, clearly, the mother did not completely give up on the CDS.
As for Y, the CDS reported to the parents in mid-October, 2019 (just before the trial took place) that she has “significant difficulties with her attention and impulsivity and hyperactivity” and that “she meets criteria for ADHD – combined presentation”. As with X, the CDS said that Y’s “developmental vulnerability interacts with the environmental complexity (parental conflict and differing environments) to influence her emotional / behavioural presentation”. They also reported that “her difficulties with executive function and phonological awareness impact her learning and her expressive communication”. CDS have assessed Y as having Attention Deficit Hyperactivity Disorder – Combined Presentation. Further goal setting meetings with the parents were proposed.
At the trial, I gained the impression that both of these parents dearly love these two girls and are genuinely concerned for their wellbeing. It is not uncommon in parenting orders litigation in this Court for parents not to be in complete agreement about health and developmental concerns relating to their children. Diagnosis of health issues such as ASD, ADHD and the like are often raised as matters of dispute about which different observations and matters of impression are raised by each parent. In an already highly conflicted co-parenting relationship, differences about these issues can be amplified and can both fuel and be fuelled by the existing conflict.
There is no doubt that both of these young girls are suffering from particular vulnerabilities. X is an anxious child and has a learning disorder. Y has ADHD. The mother, who is an educator, apparently believed that X had ASD. I accept that she had a genuine belief about that and that initially she was not satisfied with the opinion of a Paediatrician who saw the child and opined that she did not. It seems clear the mother wanted to present to the Court evidence of a diagnosis of the child’s particular vulnerability believing that such evidence, together with her assertions that the father did not have the capacity to appropriately care for the child with such a disability, would likely assist her case. She clearly felt comforted when the Psychologist who saw the child expressed an opinion that the child did demonstrate symptoms of ASD.
However, the mother did follow that up with appointment at Suburb M CDS for the child to be further assessed by a multi-disciplinary team of professionals. That supports a finding, in my view, that the mother was genuinely looking for a thorough assessment of the child and complete answers rather than simply seeking confirmation of a diagnostic label to be used against the father in the proceedings. She certainly did not go about the process of having the child assessed with much consideration for the legitimate interest of the father in the issue and the assessment process, but I consider that her behaviour in that respect was driven by the existing conflict rather than being singularly outcome focused.
Counsel for the father certainly tested and probed the expert opinion of the family consultant, Mr B, on this subject. His opinions were well considered and carefully expressed. He did agree that the mother’s behaviour on this issue raised some concerns, but he certainly did not agree that the mother’s behaviour justified removal of the children from her principal care and the placement of them with the father. He went on to say that if the mother does not accept the outcome of the completed assessment and continues to seek further medical assessment linked with argument that the girls have vulnerabilities that the father cannot care for, or if she exaggerates or fabricates symptoms she asserts they demonstrate, then that would present a different position, of course. He had said in his second report that if the Court was to determine that the mother:
…has knowingly sought to have X and/or Y assessed or diagnosed as having serious difficulties (when in fact they do not) for the purpose of advancing her proposal, I believe this would bring into focus the mother’s parenting capacity and have implications for the children’s future living arrangements.
Although the evidence showed that the mother was upset when she was first told by the CDS that X was diagnosed as not having ASD, the evidence supports a finding that she calmed down and apparently accepted the information she had received. Some further meetings with the CDS over time clearly led to an agreement with both parents about follow up interventional work with X and also that there could be a review after a further twelve months. I saw and heard the mother throughout the trial, both when she was giving evidence and when she was representing herself at the bar table. Indeed, the mother made a clear decision not to even cross-examine the father during the trial. I did not form an impression that the mother had definitely not accepted the diagnosis of the CDS multi-disciplinary team and I was not left with the view that even though she wanted a review after a further twelve months that she would necessarily continue to push for a positive ASD diagnosis against the collective professional opinion of the multi-disciplinary team. I understood that by the trial some of the further steps recommended by the CDS were in place, or being put in place. I did not consider that the mother’s position was improperly motivated simply by the goal of “advancing her proposal” in this Court.
Ultimately, I was not persuaded that the father’s case that the mother’s actions and beliefs in respect of this issue should result in a decision that the children’s best interests would be served by moving them to live principally with him and having them spend far less time with the mother. Such a case was not adequately made out on all the evidence, in my judgement.

The Collective Weight of the Evidence of the Experts

Mr B

The family report writer, Mr B, expressed the opinion in his September, 2019 report that the two girls should continue to live with the mother and to spend alternate weekends from Friday after school to Tuesday morning before school with the father. He was not shifted from that opinion at the trial, despite the best efforts of counsel for the father. I have accepted his opinion.
He assessed the two girls as having formed “nurturing and emotionally close relationships with each of their parents”. He confidently stated the opinion that neither child is at risk of any form of maltreatment or neglect by either parent although he did consider that the parenting styles and philosophies of each parent are different. He was not able to conclude that one was necessarily better than the other, though. He did assess both parents as having “at one time or another shown a worrying lack of capacity or willingness to take a step back from the feelings they have about the other person and consider the thoughts and feelings of their two young daughters”. He expressed the view that both parents’ judgment about their children’s needs had “been clouded by their feelings and perception of the other person” but considering the matter over the two assessments, he expressed the concluded view that the father’s “attitude towards co-parenting with the mother is most problematic”. He expressed the view that this creates the biggest risk in the matter, referencing the information he had obtained from the girls that the father “is subjecting the children to his negative views of the mother”. Mr B reiterated examples of things the girls had told him that he said evidenced their feelings that their father is and says “mean” things about their mother to them. Having seen the frank and relatively unrestrained way in which the father wrote to the neutral professionals at the CDS on a number of occasions, I accept Mr B’s opinion on this point.
In his oral evidence, Mr B maintained the view that the children’s “best fit” at the moment is continuing to live with the mother. He stressed that his opinion was anchored in child development considerations and, again reflecting upon the accepted fact that both children have vulnerabilities, he told the Court that he considers they have a “primary secure base’ living with their mother (and their older half-sisters and younger, half-brother). Mr B, I perceived, gave me the distinct impression that he did not consider these particularly vulnerable girls’ needs would be best served by moving them from their mother’s principal care to their father’s principal care at this point in their lives.

The CDS Team

The assessment report of the CDS multi-disciplinary team expressly addressed the following question, amongst others apparently put to them by the parents:
Why does [X] struggle so much with change in her environment?
As I have already alluded to herein, the answer provided in the report was this:
There has been a significant amount of change both at school and at home which would be difficult for any child to handle. For X, this is further compounded by her anxious temperament and tendency to worry about new situations.
I accept that it is the collective opinion of the members of the multi-disciplinary team at the CDS that change for X, such as moving to a new school or moving home, is even more difficult for her to handle than it would be for a child of different temperament and constitution. I give that opinion evidence considerable weight.

The Principal of the School attended by the Girls

The Principal of the school the girls attend on Brisbane’s south side was called to give evidence by the ICL. She told the Court that X has teacher’s aide support for two-thirds of the time that she is at school as she “struggles to stay focused” as well as “language difficulties”. The Principal said change for this child “would be tough. She would be lost, absolutely lost”, Of Y, she said “her learning will get harder” and “she may need medication”. I accept the Principal’s opinions and give them considerable weight, too.
My consideration of these pieces of expert evidence, along with the balance of the evidence, aides me in reaching a position that it would only be with clear determination that changing the principal living and care arrangements of these two girls would be in their best interests that I would do so. As I have already indicated, I am not so convinced.

Some Further Evidence of Significance

Apparently accepting of the view that a change in the girls’ school at this point in time would not be conducive to the well-being of the two girls, the father told the Court that he would not change their school if they were placed in his principal care. He also told the Court that he agreed with the mother’s proposal for the girls to go to D School in Suburb E when they commenced high school. Nevertheless, he also told the Court that he had no expectation or current intention of moving to establish a new home on the south side of Brisbane closer to their school. The home in which the girls live with their mother, their step-father and their older sisters is only 150 metres away from the school they currently attend. That is plainly within easy walking distance, meaning they can get to school from that home within a matter of a few minutes. D School is only a few kilometres away as well. In contrast, their father lives in a suburb towards the northern outskirts of Brisbane. His own evidence was that the drive from his home to the girls’ school takes forty-five to fifty minutes. That is an hour and a half that he would have to drive each way, morning and afternoon, or three hours each day of driving for him. It would be an hour and a half of driving each day for the girls if they lived in the father’s care. I would not consider that to be a positive change in the girls’ lives. I would be surprised if the father could keep it up or would want to keep it up for very long. The fact that he has not driven them to their weekend sports games on some of the weekends that they have been in his care and says they do not really like the sport anyway is evidence supportive of a view that he would not want to keep up such heavy daily driving commitments long-term, in my judgement. I consider that it would only be a matter of time before the father would want to change the girls’ schools again or want to change the high school that he now agrees they attend. Another change of school would not be good for these girls either. Indeed, such were the submissions of counsel for the ICL on this very point.
In his case, the father also pushed the notion that communication between the parents would be better if the girls lived principally with him. The evidence did not satisfy me that would be the case. I saw and heard nothing that causes me to think that these two parents will communicate more co-operatively, reasonably or amicably if the care arrangements for these girls were reversed or changed in any other particularly significant way.
Part of the father’s case also was the position that the mother will not facilitate and encourage the girls’ relationship with him as he would do their relationship with their mother if they were to live principally with him. Again, the evidence does not persuade me that the father’s attitude towards the mother and the girls’ relationship with her is much different at all to the attitude of the mother towards him and the girls’ relationship with him. I am not at all persuaded that moving the girls to the father’s principal care would better ensure that the girls continue to have meaningful relationships with each parent.

At the commencement of her final submissions, though not under oath at the time, the mother told the Court that she knows that the girls are going to be “safe, well fed, secure, happy and loved” in their father’s household. I do not consider that the mother was not expressing a genuine belief. Plainly put, I do not consider that she was lying to the Court simply to improve her prospects. She also told the Court when asked whether she would undertake a Parenting Orders Program if required that she would do it “wholeheartedly”. The father has, I note, already undertaken such a program as well as a Triple P Parenting Program and a third child development focused course recommended through the CDS process.
I will make orders that the mother undertake a Parenting Orders Program (or a similar course run by F Service) and the Triple P Parenting course in the hope and expectation that same will contribute towards improving her understanding of the girls’ needs for an ongoing meaningful relationship with their father (and, through him, with their extended paternal family) and a more harmonious and co-operative parenting relationship between their parents. I also note (so that it is recorded in these reasons) that the mother did tell the Court whilst making her submissions that she could envisage a time in the future when she might be amenable to agreeing with the father to an equal time parenting regime. At the moment, though, I do not consider an equal time arrangement either to be in the girls’ best interests or even reasonably practicable having regard to the definition of that term. The parental communication problems, the distance between homes and the distance between the father’s home and the girls’ school and the parents’ apparent inability to implement a conflict free co-parenting arrangement all persuade me to this viewpoint. Furthermore, I was not convinced that the mother’s assertion of a current expectation that an equal time arrangement could happen once X begins High School was necessarily coincidental with an actual heartfelt commitment to such change. As things stand in the parental relationship, I cannot currently foresee the mother willingly moving to such an arrangement. In any event, as I have said, unless it was consensual, I do not consider it to be in the best interests of these two girls, particularly whilst their father lives so far away from where they go to school.
Before leaving the issue of the mother’s promotion of the girls’ relationships with the father, I consider it worth referring to the absence of evidence (apart from the occasion when the mother made a mistake which weekend the girls were to be with the father and called the police when the father turned up at the school to collect them) that since orders were first made in the matter, the mother has regularly, deliberately or consciously failed to allow the girls to attend the scheduled weekend and holiday time with their father. In my experience, such deliberate non-facilitation of time with the other parent, in contravention or non-compliance with orders, is a common feature of cases where the principal residence parent is often found not to have the requisite capacity to ensure that the children’s relationships with the other parent are encouraged and promoted. It is not evident in this case.

The Evidence about the Conversation at the Hospital

Earlier, I referred to the evidence given by both parties about a conversation that took place at a hospital emergency ward in June 2017. I do not consider that I can just pass over the evidence about that without further discussion. The father said that the mother had told him that she had been told by the school that one of her elder daughters had informed a member of staff at the school that the father had sexually abused her and that she complained the school had done nothing about it. The father’s belief was that the mother had made this up and said it to him as part of her campaign to persuade him to let her move the girls’ school to the new school on the south side of Brisbane. The mother denied that she had said those things. She would, it seems, have the Court believe that the father made that up to cast her in prejudicial light.
Records of the school the girls had been attending were subpoenaed by the ICL. There was no evidence adduced of there being any record of such a disclosure by one of the mother’s elder daughters. There was no record adduced of the mother having been told anything like that by the school. There was no record adduced of an inquiry having been made by the father as to whether anything like that had ever been said to the school by one of the children, as he said he had made.
Interestingly, the father had not raised the matter in his trial affidavit of evidence-in-chief. The Court was told when the mother was being cross-examined about it that he had given evidence about it in an earlier affidavit and that was then read. Perhaps that says more about what counsel for the father thought about the impact of the evidence than the father himself did, but having heard evidence about it, at least from the mother under cross-examination, and having heard submissions from counsel for the father about its asserted impact, I consider reference to it in these reasons to be necessary.
Acknowledging that without seeing the father cross-examined on the subject of the conversation or challenged in any way as to his version, I have to say that the mother’s denials did not persuade me that she had not said something like what was being alleged. On balance, I consider it to be more likely than not that she did and that her denial was a false one. Accepting it likely that the mother did say something like that to the father when there is absolutely no evidence that one of her children ever said anything like that to the school is troubling in the overall context of this case. It is evidence of the extent of the conflict between the mother and father and the extent to which the mother would go in trying to get her own way on things, including by lying to him about something as grave as that.
However, there is no evidence that complaints have been made to anyone in authority about such allegations. There is no evidence that shows the mother acting any further on such allegations and trying to achieve more with them. She has not used any such allegation falsely to stop or try to stop the girls spending time with the father. If she had done so, it would have to be treated, in my judgement, far more seriously in the determination process.
My finding about this evidentiary issue, does not convince me that I am wrong in my determination to leave the children in the principal care of the mother, living on the south side of Brisbane with her, their sisters, their brother and their step-father. The mother, herself, opened her submissions to the Court with the statement “I know I don’t look good”. That was an interesting and frank self-assessment for an unrepresented litigant to make in a parenting case. Perhaps it reflected some insight into her own part in and responsibility for the conflict that has been enduring between these parents. Perhaps it reflected insight into findings I might make such as in respect of her denials about the conversation at the hospital.
However, as a Judge of this Court determining parenting orders on a regular basis over many years, one never loses sight of the paramountcy of the best interests of the child in the dispute determination process. Determining that a parent has probably not told the truth about a matter that is in factual dispute between the parents is not always going to be determinative of the outcome of the matter, though sometimes it might have a considerable bearing on same.
With that apparent level of insight shown by the mother, I consider she must now have some insight into how close she could be venturing to a position where the best interests of these two girls might be considered as being served by placing them in the principal care of their father. She must be very careful going forward in her co-parenting that she does not cross that line, if she does not want that to happen. Her best efforts should now be devoted to ensuring that her two girls’ vulnerabilities are met through a concerted and co-operative parenting relationship with their father and through demonstration that she truly appreciates and values the importance of ongoing, strong and healthy relationships between the girls and their father.

Additional Considerations

Though these two young girls are a little too young for any views of theirs about their living arrangements to be determinative of the outcome, I got no sense from the evidence, particularly the reporting of Mr B, the family report writer, that they wanted to move from the principal care of their mother to the principal care of their father. I did get the sense that they did value their relationship with their father and certainly wanted to continue to see him regularly and consistently, though in a conflict-free way.
The father’s own evidence about the arrangements he proposed to implement in the event the children were put into his principal care also weighed in my decision making process. He told the Court, under cross-examination by counsel for the ICL, that he would work on the Friday, Saturday and Sunday nights of the alternate weekends when the girls would be with their mother. That proposal appears sensible. However, he then said that he would also work on the Friday, Saturday and Sunday nights of the subsequent weekend when he proposed to have them in his care, but that he would ensure his parents, the paternal grandparents of the girls, stayed in his home and cared for the girls on those nights. This would see him moving to six shifts each fortnight, whereas he currently works seven shifts a fortnight.
Whilst I see merit in the continuation of meaningful relationships between the girls and their paternal grandparents, and certainly hope those may continue long into the future, the substitution of the grandparents as regular carers for the girls in place of their mother or their father is not part of an outcome that I am satisfied meets their best interests at present.

Conclusion

In a case where there is continued high conflict between the parents and where the case in favour of a change in the current living arrangements is not clearly made out, I do not consider it in the best interests of the two girls to make the significant changes in their living arrangements that the father seeks. Such a determination also accords with the submissions of counsel for the ICL, which I am satisfied were very carefully considered and made in a considerate and measured fashion, motivated by nothing other than the considered best interests of the two girls.
I will make the orders that are set out at the commencement of these written reasons.
Those orders include quite specific orders about the time the children are to spend with the father during school term and during school holidays and on special days, the responsibility of each parent for the collection and return of the children at the beginning and end of time with each parent, the calculation of half school holidays and when alternate weekends during school term are to commence. They include specific provision for telephone contact between the children and the parent they are not with at the time, most particularly the father. My orders will expressly require the parent with whom the children are with at the time telephone contact is required to happen to make the call to the other parent and to ensure the children speak with the other parent in privacy.
The mother conceded at the trial that she had not complied with the positive obligation to ensure telephone contact happened on all occasions it was to happen in the past. That is why I have put the positive obligation on her to make it happen in the future. She must make sure that it does. I have shifted the time for the phone call to 5:30 pm to meet some concerns the mother had about its lateness as it was previously provided for.
My orders will include positive obligations on the parents to keep the children enrolled at the primary school they are currently attending and at the high school that each agreed the girls shall attend in the future.
I made some interim orders at the end of the trial relating to the attendance by the eldest child, X, upon a psychologist. I expect that has been happening in accordance with those orders. They are discharged, but I will be making similar orders in respect to both children’s attendance on medical practitioners and allied health practitioners in the future. The orders will oblige the mother to fully involve the father in decision making about any such treatment, including as to the choice of practitioner and ongoing treatment. The orders will entitle the father to be able to communicate as he chooses with such practitioners.
Similar orders will be made providing for the father to be able to communicate with the girls’ schools and obtain information about the girls’ educational progress and needs directly from the school. The orders will authorize each parent to be able to show relevant parts of the orders to those schools and medical practitioners.
My orders will include non-denigration restraint as well as restraint on discussing any aspect of these proceedings with the children.
The orders will require the mother to complete a Triple P Parenting course (even an online one) and a F Service course (one from a list of three) within nine months and to provide the father with written evidence of completion of those two courses within that same period.
The orders will spell out the requirement that further dispute be taken to a Family Dispute Resolution Practitioner in the first instance before return to the Courts and they will require the children to be brought into the Child Dispute Services division of this Court for Mr B and the ICL to meet with them and inform them of the outcome of these proceedings. That accords with a proposal made by the ICL in the draft orders he submitted to the Court. After that has happened, the ICL will be discharged.
It is hoped the completion of these proceedings and the making of these Orders will enable the parents now to get on with their lives and their co-parenting with a renewed sense of optimism and child-focus.

I certify that the preceding ninety-five (95) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 7 August 2020.

Associate:

Date: 7 August 2020

[2020] FamCA 648

7 August 2020

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies