Schafer and Pederson

FEDERAL CIRCUIT COURT OF AUSTRALIA

SCHAFER & PEDERSON

[2018] FCCA 3086

Catchwords:
FAMILY LAW – Parenting – best interests of children – orders made.

Legislation:

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

Applicant:

MR SCHAFER

Respondent:

MS PEDERSON

File Number:

SYC 7188 of 2014

Judgment of:

Judge Newbrun

Hearing dates:

6, 7, 8, 9 August 2018

Date of Last Submission:

25 October 2018

Delivered at:

Parramatta

Delivered on:

2 November 2018

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr Sperling

Solicitors for the Respondent:

Legal Aid NSW Domestic Violence Unit

Counsel for the Independent Children’s Lawyer:

Mr Morley

Independent Children’s Lawyer:

Sarah Bevan Family Lawyers

ORDERS

The mother shall have sole parental responsibility for the children [X] born 2008 and [Y] born 2009 (the children).
In relation to decisions the mother is to make, or is considering making, pursuant to her exercise of sole parental responsibility:
(a)Except in relation to any emergency issues the mother must, with as much prior notice as reasonably practicable, provide the father with details of the decision being contemplated including the various options available.
(b)The mother must consider all input provided by the father in making her final decision.
(c)Once the mother makes her decision, she must inform the father as soon as reasonably practicable thereafter of her decision, but there is no requirement for her to elaborate on her reasons or on how she took the father’s input into consideration.
In relation to any communication the father chooses to make in response to the mother’s notice given to him pursuant to Order 2 above, the father must:
(a)Limit the number of messages he sends about each separate issue to a maximum of two.
(b)Limit his messages to the mother to matters directly in relation to the issue raised by her.
(c)Not communicate with others to whom the issue relates, including but not limited to the children, any other relatives or friends of the mother, any third party who is involved with or affected by the issue.
(d)Not communicate with the mother, or any others to whom the previous subparagraph applies, about the issue after the mother provides the father with notice of the decision made by her pursuant to Order 2 (c).
(a)For the purpose of communication pursuant to Orders 2 and 3 above, the parties must limit their means of communication to email messages.
(b)In addition to the parties’ communications, as above, the parties shall be permitted to communicate with each other by email messages but limited to firstly, an emergency being a serious medical issue affecting the child or children requiring medical attention or hospitalisation, or secondly, an inability of a party to spend time with the children pursuant to these Orders, and such communications shall be limited to a maximum of two emails.
The children shall live with the mother.
The children shall spend time with the father as follows:
(a)Each alternate Saturday from 10 am to 4 pm, for a total of six occasions. The first such occasion is to occur on the first Saturday on which the children’s contact service is available to effect changeover pursuant to Orders 8 and 9.
(b)Commencing the second Saturday after the last occasion in Order 6(a) above for a total of six occasions, from each alternate weekend from 10 am on Saturday to 10 am on Sunday.
(c)Commencing the second Friday after the last occasion in Order 6(b) above, each alternate weekend from the conclusion of school on Friday to the conclusion of school on Monday, but such periods are suspended during school holiday periods.
(d)In the event periods of time pursuant to Order 6(b) or (c) above fall on the weekend on which Mother’s Day falls, the father’s time on that weekend is suspended, and shall occur instead on the immediately following weekend.
(e)In the event a period of time pursuant to Order 6(c) above does not fall on the weekend on which the Father’s Day weekend falls, then the time the children would otherwise spend with the father on the immediately following weekend is suspended, and instead that time shall occur on the weekend on which the Father’s Day weekend falls.
(f)In each of the mid-term school holiday periods, commencing the first gazetted NSW school holiday period after there have been no less than four occasions of time scheduled pursuant to subparagraph (c) above, from the commencement of the school holiday period until 4 pm on the seventh day thereafter.
(g)In the December 2019/January 2020 school holiday periods as follows:
(i)From the commencement of the school holiday period until midday on Christmas Day.
(ii)From 4 pm on 15 January to 4 pm on 25 January.
(h)In the December 2020/January 2021 school holiday periods and each alternate year thereafter, from midday on Christmas Day to 4 m on 12 January.
(i)In the December 2021/January 2022 school holiday periods and each alternate year thereafter as follows:
(i)From the commencement of the school holiday period until midday on Christmas Day.
(ii)From 4 pm on 12 January to 4 pm on 25 January.
School holiday periods are defined to commence at the conclusion of school on the last day of school on which students are to attend, and conclude at the commencement of school on the first day of school on which students are to attend.
For the purpose of changeover pursuant to Order 6(a) and (b), the parties are to effect changeover at a children’s contact centre, except that if such service is not available on a Sunday, then the return of the children to the mother pursuant to Order 6(b) shall occur in accordance with Order 10.
The parties must forthwith do all things necessary to schedule the first available intake assessment with Region 1 Contact Service at Suburb A and the Suburb B Children’s Service, and thereafter:
(a)The parties must comply with all requests of both Services, including attending the first available intake assessment appointment.
(b)The parties must do all things necessary to schedule the first available occasion for changeover.
(c)The parties must then utilise the Service which is able to offer the soonest occasion to effect changeover.
(d)The father is liable for all costs associated with the Services.
For the purposes of changeover, other than in accordance with Orders 8 and 9, and other than where changeover occurs at the children’s school, changeover is to be effected by the parties, or their nominee, by meeting in the car park of McDonalds, Suburb C.
School holiday periods are defined to commence at the conclusion of school on the last day of school on which students are to attend, and conclude at the commencement of school on the first day of school on which students are to attend.
The parties must use, and only use, the children’s names of [X] and [Y], noting that (omitted) is a middle name for both children and accordingly is only typically used for formal purposes.
For the purposes of section 11 of the Australian Passports Act 2005 (Cth), it is noted that the above Orders allow:
(a)The mother has sole parental responsibility, and the consent of the father is not required for the issue of an Australian passport to the children.
(b)The children to live with the mother when the mother is outside Australia.
(c)The father is restrained from making an application for an Australian passport or travel-related document for the children.
(d)The children are permitted to have an Australian passport or travel-related document provided the application for that document is made by the mother who may sign any declaration on the application in the form approved by the relevant Minister.
Not less than 14 days prior to departure on any travel outside of Australia for either or both of the children, the mother must provide the father with a full itinerary for the travel including means of contact during the period of the trip.
The mother must provide to the father, as soon as reasonably practicable upon receipt by her, all written reports from health professionals, including mental health and allied health professionals, in relation to the children or either of them.
The parties must forthwith notify the other party of a change to their email address.
The father is restrained from:
(a)Communicating, or attempting to communicate with, the children except as otherwise provided for in these Orders.
(b)Approaching, spending time with, or attempting to spend time with, the children except as otherwise provided for in these Orders.
(c)Attending the children’s school, except for the purpose of changeover pursuant to these Orders, with the father being permitted to consult with a school teacher(s) during such times.
(d)Attending during any extra curricular activity undertaken by the children unless such activities occur during periods the children are spending time with him pursuant to these Orders.
(e)In relation to the children or the mother, communicating with, or attempting to communicate with, any educational or health professional with whom the children have engaged, or are to engage, subject to (c) above.
(f)In relation to the children or the mother, communicating with, or attempting to communicate with, any relative or friend of the mother’s.
(g)Entering or coming within 100 metres of the place of residence of the mother and the children;
(h)Posting or permitting to remain posted upon Facebook or any other social media platform operated or controlled by the father any material (including but not limited to photographs and/or text) relating to, referring to or commenting upon the Court proceedings, or the mother (whether referring to the mother by name or by any generic or anonymised description).
Both parties are restrained from denigrating the other party or members of the other party’s family to, or in the presence or hearing of, the children or either of them, or on any Facebook or any other social media platform operated or controlled by either the mother or the father.
Both parties are restrained from physically chastising or using any form of physical discipline on the children.
These Orders act as authority for the father to obtain from any school which the children attend a copy of any report card issued for the children.
Both parties are restrained from denigrating the other party in any email communication between them, and at all times their email communications shall be temperate and respectful.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 7188 of 2014

MR SCHAFER

Applicant

And

MS PEDERSON

Respondent

REASONS FOR JUDGMENT

Introduction

This was the final hearing of parenting proceedings between Mr Schafer (hereafter “the father”) and Ms Pederson (hereafter “the mother”) in relation to the children [Y] born 2009 and [X] born 2008.
The Court should state that prior to the final hearing commencing, the Court heard and determined a Contravention Application filed by the father on 3 August 2018. The Court determined that the mother had contravened a previous Court Order that she submit to a supervised chain of custody urinalysis test within 48 hours of written request by the Independent Children’s Lawyer (“ICL”). The mother was placed on a bond to be of good behaviour, without security, for twelve months.

The parties’ proposals

The father’s final parenting proposals were set out in his case outline dated 2 August 2018. Inter alia, he sought Orders for equal shared parental responsibility of the children; that the children live with the mother; and that the children spend time with the father on a graduating basis, initially daytime time, culminating in the children spending alternate weekends from Friday after school to Monday before school with the father. Further, he sought Orders that the children spend time with him during school holiday periods for half of such school holiday periods. He sought other related parenting Orders.
The mother sought final parenting Orders as set out in her Further Amended Response dated 12 May 2017. Inter alia, she sought final parenting Orders that she have sole parental responsibility for the children; that the children live with the mother; and that the children spend no time with the father. She sought other related parenting Orders.
The mother relied upon the following documents:
a)Further Amended Response filed 15 May 2018;
b)Affidavit of Ms Pederson filed 17 July 2018.
The father relied upon the following documents:
a)Initiating Application filed 17 November 2014;
b)Affidavits of Mr Schafer filed 17 November 2014, 1 August 2018 and 3 August 2018.
The ICL relied upon the following documents:
a)Child Dispute Conference Memorandum to Court dated 14 April 2015;
b)Family Report by Mr J dated 11 May 2016;
c)Supplementary Family Report by Mr J dated 20 June 2018.
The following exhibits were relied upon:
a)Two Family Reports of Mr J dated 20 June 2018 and 11 May 2016, and Child Dispute Conference Memorandum to Court of Ms S dated 14 April 2015 (Exhibit A);
b)Trial Plan agreed to by the parties (Exhibit B);
c)Catholic Care Notes dated 26 June 2016 (Sleeve No. 28) (Exhibit C);
d)ICL’s Proposed Minute of Order (Exhibit D);
e)Applicant Father’s Case Outline (Exhibit E);
f)Respondent Mother’s Case Outline (Exhibit F);
g)ICL’s Case Outline (Exhibit G).
The parties and ICL provided some brief written submissions after the Court reserved its judgment, in relation to certain proposed parenting Orders that the Court was considering.

Background

The father was born on 1974. The mother was born on 1976.
The parties commenced a de facto relationship in about 2006.
The parties finally separated on 28 March 2014.
The mother has three children from other relationships, and who also live with her. The children Ms P born 1993 and Mr B born 2000 lived with the parties during their relationship. The other child is [A] born 2015.
On 12 February 2015, Court Orders were made for the father to begin spending time with the children at Catholic Care Contact Centre. His supervised time commenced in early August 2015.
In about October 2016, Court Orders were made for the children to spend time with the father supervised by Connecting Families.
In about early September 2017, Court Orders were made for the children to spend time with the father supervised at Suburb C Shopping Centre.

Evidence

In about 2008 the father told the mother that his driver’s license had been suspended for a few years but that thereafter he had continued to drive. Throughout the parties’ relationship the father frequently drove a motor vehicle whilst his driver’s licence was suspended, including as late as January 2013.
The father admitted to slapping the mother’s face on one occasion in about early 2008 in the family home. At this time the mother was holding the child [X], who was then only a newborn. He also admitted to kicking a hole in a wall at that time. Just prior to this an altercation occurred between the child Ms P and the father. In cross examination the father conceded, inter alia, that in hindsight he should have removed himself promptly from the scene of the altercation with the child Ms P before that altercation escalated. He admitted to having verbally threatened to hit the child Ms P during the altercation with her. He also conceded being frustrated with the mother, before slapping her for not having intervened in his altercation with the child Ms P. The father conceded that he was not justified in hitting the mother or verbally threatening to hit the child Ms P.
On the day of the above incident, the mother ran outside the family home to get help from neighbours to call the police, who attended the home a short time later.
Legal proceedings against the father ensued following the above incident. The father, representing himself, pleaded guilty to one charge of assaulting the mother, and an Apprehended Violence Order was issued against him for a period of six months. This Order was made on 18 February 2009.
Following the birth of the children, and during the parties’ relationship, the father occasionally exercised physical punishment upon the children.The Court is not satisfied that this punishment was excessive.In this context, the Court refers, inter alia, to the positive relationships between the children and the father observed by the Family Report writer on two occasions, with neither child showing fear or avoidance behaviour or giving indication that the father had been violent on such occasions.
During the parties’ relationship, the parties regularly came into conflict and had verbal disagreements. Often during these occasions the father yelled at the mother. For example, there were periods during the relationship when the father smoked marijuana and the mother opposed, leading to verbal arguments, including swearing by the father. A further example was when the mother sought to raise the issue of the father receiving toll road fines, which led to verbal disagreements and the father swearing at the mother. The father conceded that there was regular verbal abuse between the parties.
The mother and the children were involved in a motor vehicle accident in January 2014 and during the mother’s convalescence from her injuries in that accident, she decided that she wanted the parties’ relationship to end.
In late March 2014 there was an incident at the parties’ residence involving the father and the maternal grandmother, which appears to have been the catalyst for the parties’ final separation at this time. The father at one point swore at the maternal grandmother and yelled at her to leave the house. The police attended the premises. Shortly thereafter, the police removed the father from the premises.
During the month of April 2014 the father was continuously calling the mother on her mobile telephone number. The mother felt intimidated and harassed by the father persistently contacting her and she was frightened for her safety and that of the children. She felt stressed whenever she heard the father’s voice.
In early April 2014 the mother’s former partner, the biological father of the child Mr B, and the paternal grandfather, forwarded to the mother copies of text messages they had received from the father.
On 15 April 2014 a provisional Apprehended Violence Order was made for the mother’s protection from the father.
On 22 April 2014 a final Apprehended Violence Order was issued against the father for the mother’s protection. It was stated to be in force for twelve months. Again, preceding the making of this Order, the father, inter alia, had been sending daily text messages to the mother and was otherwise seeking to communicate with her, including in relation to the children.
In May 2014 the father unsuccessfully sought to have the above Apprehended Violence Order revoked.
The father, after the making of the above order, sought to make frequent contact with both the mother and the children despite the order, including causing a friend to deliver clothes and flowers to the children to the mother’s residence. The father admits to breaching the above order on numerous occasions.
The mother felt harassed and scared, by the ongoing attempts that the father made to contact her.In cross examination, the father stated that at the time he was breaching Apprehended Violence Order, it did not occur to him that his actions in breach of the order could be bringing fear or pressure to bear on the mother.

The father agreed that he had written a letter to the children in June 2014 (Annexure M to the mother’s trial Affidavit) in which he stated, inter alia, “I promise you one day when you’re old enough I will tell you to the other side of the story – the true one.” The father stated in cross examination that he would not repeat this statement to the children. The father stated that he had attended a parenting course and had been informed and “taken on board” that it was not appropriate to have such discussions with the children.
The father agreed that he had written a letter to the children dated 22 July 2014, which referred, inter alia, to “mean things” that had been mentioned about the father, and that the contents of the letter were inappropriate for the children. The father stated that he had been depressed at the time he sent this letter.
The father agreed that he now appreciates that it was not appropriate, in mid-August 2014, to have placed a bag containing, inter alia, presents for the children, and a bunch of flowers, on the front hood of the mother’s car.
In October 2014 the father was charged with a number of breaches of the above order. On 2 December 2014 he was convicted of a number of breaches of the order and given two suspended sentences, a fine, and 200 hours of community service.
The above Apprehended Violence Order expired in April 2015.
In late October and early November 2015, the father attended six sessions of the Parenting after Separation – Focus on Kids program.
Between May 2015 and December 2015 the maternal grandfather showed the mother 21 text messages received on his mobile telephone from the father which were often aggressive, accusatory, critical of the mother, and related to these proceedings. The maternal grandfather received further text messages from the father in October 2016, December 2016, January 2017, April 2017, and September 2017.
On 1 September 2015 interim parenting Orders were made inter alia, that the father be restrained from approaching the children unless pursuant to the spend “time with” orders providing for the children to spend supervised time with the father that a contact centre.
After the above Orders, on several occasions since the parties’ separation, the father attended the children’s school.
In February 2017 the father caused a person to deliver a present and a card to the mother’s premises for the child [X]. Further presents for the children were left in mid-January 2018 at the mother’s premises. The mother felt intimidated and harassed by the father by reason of these events.
The father agreed that he had made Facebook entries between 2015 and 2018, in which he was critical of what had happened to the children and in Court.
The father agreed that he had sent certain email correspondence to the ICL in 10 October 2017. The father stated, inter alia, that he had sent this email because he believed that Legal Aid NSW was supporting the mother in what he believed were her attempts to stop the father from having a meaningful relationship with the children. He also stated his belief that the children’s views as expressed to the Family Report writer were not being listened to.
In relation to other emails sent by the father to the ICL, for example in April 2017, the father stated that it was appropriate for him to have sent such emails because of his belief that the mother, for the last four years, had prevented the children from having a relationship with him. He stated his view that the mother had caused to be placed upon him an Apprehended Domestic Violence Order simply because he wanted to speak to the children. The father stated that he would not inform the children of these matters.
The father stated that his accommodation was satisfactory for the children to spend time with him. He lives in a house with several bedrooms. His landlord lives in a granny flat at the property. He has been living in those premises for about three years. The father travels by public transport, having been previously disqualified from driving a motor vehicle until 2021.
The father stated that he has doubts as to whether he is the biological father of the child [Y]. In this context, the father stated in cross examination that he was present at this child’s birth, the child calls the father ‘Dad’, and the father is content accordingly. The father has never expressed these paternity doubts to the children. In this context the mother asserted that the father was the natural father of both children. She denied being in a sexual relationship with another person in the three months prior to the conception of either child.
The father respects the mother as the mother of the children but he does not respect what he believes has been the mother’s attempts, post separation, to prevent him from having a relationship with the children.
The father confirmed that he was seeking an Order for equal shared parental responsibility. He stated that while he would seek to communicate with the mother in relation to the children and effectively co-parent with her, he did not believe the mother would effectively communicate with him. He did not believe that equal shared parental responsibility was “obtainable”. He could not see the mother reaching agreement with him in this context. He acknowledged that even during the relationship it had been difficult to reach agreement with the mother.
The father confirmed he was seeking a change of surname for the children from Pederson to Pederson-Schafer. He acknowledged that the children’s respective birth certificates had the surname Pederson, and that the children’s known surname up to the time of separation and to date was Pederson. He acknowledged that the parties previously could not agree to his request for a change of surname to Pederson-Schafer. He stated that if the Court did not make his proposed Order for the change of surname he would have to abide by the Court Order. He acknowledged that he had conducted no research on the effect on children of a change of surname and he had not sought advice in this respect. He had not discussed this issue with the Family Report writer. At no time had he asked the children about a proposed surname change.
The father acknowledged that since the final separation in March 2014 his relationship with the mother had been very sour. He acknowledged that he was frustrated and disappointed with the mother and had no trust in her.
The father acknowledged that he was now seeking an Order that the children live with the mother. He stated that this was because he was working full-time.
The ICL cross-examined the mother. The ICL squarely asked the mother what it was that she feared from the father in having an involvement with the children; what risk did the father pose to the children. The mother responded that it was harassment. She asserted that the father had been harassing her for years. She further asserted that it was not just harassment but that the father sought to control all situations. In responding to further questions from the ICL, she repeated her assertions of there being a great risk of harassment from the father, including violence and abuse, not just towards herself but towards the children.
The ICL suggested to the mother that if the Court ordered the children to spend time with the father, with a specific start time and finish time, and the father complied with such Orders, that would not be controlling on the part of the father. The mother responded by stating that the father would not abide by such Court Orders.
Later, in cross examination by the ICL of the mother, the mother was asked whether she believed, if the Court ordered the children to spend time with the father, that the father intended to harm the children. The mother responded by stating she 100% believed that he so intended.
The mother conceded that at one stage during the relationship the children were behind in their immunisations. She stated that she had been under a lot of stress and suggested that the father had “drained” her.
The mother conceded that during the whole period of the parties’ relationship, between 2006 and 2014, she had received a sole parent benefit from Centrelink to which she was not entitled. At no time during that period did she inform Centrelink that she was in a de facto relationship. She asserted that the father was aware of her receipt of these benefits.
The mother conceded that she had problems with the eldest child’s attendance at school in 2013 and about the first half of 2014. She asserted that this child had sleeping problems and often felt too tired to go to school. She asserted that this child was often going to bed too late as a result of verbal disputation between the parties. The mother asserted that she did her best to have this child attend school during this period.The mother also referred to the effects of a car accident in early 2014, in which the mother and the children had been involved, and during the period from separation in March 2014 to the later making of an Apprehended Domestic Violence Order in April 2014.

Family Reports

Two Family Reports were prepared by Mr J, family consultant. His first report was dated 11 May 2016, and his updating report was dated 20 June 2018.
In the first report, the father agreed that the mother was the children’s primary carer. He contended that the children have a substantial relationship with him.
The father stated that he had been obliged to take “contravention” action because the mother had not authorised the school and doctor to provide information about the children.
The mother told the Family Report writer that she fears the father will continue to want “his way”. She said, “[h]e said they are my kids, I can do what I want.”
The children’s stepsibling Ms P, born 1993, was briefly interviewed by the Family Report writer. She referred to having seen the father “abusing” the mother. She referred to the father yelling and swearing and keeping the children away from her.
The children both told the Family Report writer that they wanted to see the father and they stated this enthusiastically. When the father entered the room the father hugged both children in turn and then exchanged “high fives”. The eldest child sat on the father’s knee. The youngest child sat close to the father.
The eldest child told the Family Report writer that he had enjoyed playing with the father that morning. He said it had been exciting to see the father because he liked to see him. When asked if he had any worries the child answered in the negative and described himself as a happy boy. He said that he would like to spend time with the father away from the contact centre. When asked if the father was good, this child said, “[y]es, because he helps me.”
The youngest child told the Family Report writer that he liked seeing the father and playing with him. He said he was happy. He said “No” when asked if he sometimes did not want to see the father and added “No” when asked if he was scared of the father.
The Family Report writer spoke to the coordinator at the contact centre. Eighteen visits had occurred. Early in the period it appeared that the children knew the father and their attachment to him was quite clear, according to the coordinator. She reported that the only issue occurred when the father was upset because he was challenged about giving presents. She said that otherwise the father had been cooperative and very willing to work with centre staff. She said that the father interacted with the children appropriately and that was able to deal with them equally; he did not speak to them harshly and the love between them was clear.
Under the heading “Evaluation”, the Family Report writer stated, inter alia, that when interviewed, neither child expressed fear of the father, nor could the eldest child recall any bad memories about when the parents had lived together. The children indicated that they enjoyed being with the father at the contact centre. The Family Report writer observed that the children showed no fear or avoidance behaviour when observed with the father.
The Family Report writer stated that nothing emerged from the children’s presentation that would suggest that the father’s time with them should be supervised.
The Family Report writer stated that the children spoke positively about being with the father and appeared to need a relationship with him. Thus, the Family Report writer stated that if the father can establish that he is not a threat to the children’s safety then it would seem that supervision of their involvement with him is not required. And, if the children have no involvement with the father they may develop a distorted perception of him. The Family Report writer stated that the children’s current views seem to be positive, and if they see that their involvement with the father has been curtailed by the mother, they may idolise him rather than base their view on reality generated by regular involvement. Accordingly, their relationship with the mother may become problematic.
The Family Report writer observed that his assessment indicated that the children have a substantial relationship with the father and when observed, the father interacted with them appropriately. The coordinator from the contact centre had reported that the children show an affectionate relationship with the father, and she added that the father deals with them well and never harshly or abusively. Therefore, the Family Report writer stated that in the absence of risk to the children, they might spent unsupervised time with the father, to be gradually increased to alternate weekends. And, given the parties’ apparent antipathy, changeovers might occur on Friday after school and Monday before school.
As to the second Family Report dated 20 June 2018, the Family Report writer conducted relevant interviews with the parties and children on 26 May 2018.
It was noted by the Family Report writer that the father did not see the children for about ten months from early 2017. The then Court Orders of 7 December 2017 enabled the father to spend one Saturday per month for two hours at Suburb C Shopping Centre, supervised by Connecting Families.
The mother indicated to the Family Report writer that she remains fearful of the father.
The Family Report writer stated that it seemed that the youngest child was coping well. However, the mother reported that the eldest child had displayed anxiety and was consequently seen by a psychologist in 2017.
The father told the Family Report writer that he found value in a recent parent teacher night and appreciated the advice about an App he could use to follow the eldest child’s progress. He said that he values getting an insight into what the children are learning.
The father told the Family Report writer that three years ago the eldest child was diagnosed with depression and anxiety, a condition not followed up by the mother. He conceded that the mother had secured psychological intervention for the eldest child late last year and added that he had paid for the ten sessions.
The Family Report writer, in relation to his interview with the mother, observed that it was apparent that the mother remains in fear of the father. The Family Report writer stated that when the mother was invited to participate in the supplementary assessment the mother had emphasised that she was apprehensive about encountering the father, and when she attended she appeared to be cautious and on guard.
The mother told the Family Report writer that if the children spent time with the father he would continue to denigrate her. She later stated that she believed the father’s every action would be to get at her.
The mother stated that both children had been helped by the Brighter Futures program which terminated one year ago. The mother added that towards the end of 2017 she asked her general practitioner to refer the eldest child to a psychologist due to anxiety.
When the children were observed with the father they related to him in a manner like that described in the previous Family Report. The children and the father were observed to spend their time positively together. Smiles and laughter predominated. The children were relaxed with the father. They showed no fear or avoidance behaviour. The father was able to encourage both boys and interact with them equally.
The eldest child told the Family Report writer that he liked playing with the father that afternoon. He said the best part was sitting with the father. He said that the best thing about the father was that he played with them. He agreed that the father was a nice father. When asked if he would like the parents to live together he answered in the affirmative, stating that he thinks he misses the father.
The youngest child said he felt good seeing the father that day. He said that the father made them happy. He said he was not really worried about anything. He said he would like to see more of the father. He said it made him happy to see the father.
The Family Report writer observed that his perusal of reports by supervisors provided by Connecting Families indicated that the children were relaxed, involved and increasingly affectionate when they spent time with the father at Suburb C Shopping Centre.
Under the heading “Evaluation”, the Family Report writer stated, inter alia, that the mother had been emphatic when she reported that she continues to fear the father. She had indicated that the sight of the father generates anxiety for her, and during the assessment she was cautious and careful and sought to avoid the father.
The Family Report writer stated that the children had related to the father positively when observed with him. The interaction resembled that shown in the previous assessment. The father and the children remained engaged, positively, and neither child showed fear or avoidance behaviour. They smiled and laughed and appeared to enjoy being with the father. The Family Report writer stated that the supervisor’s reports indicated that a significant relationship was apparent and the father interacted with the children appropriately. The Family Report writer noted that neither child gave an indication that the father had been violent.
The Family Report writer stated that his assessment indicated that the children’s relationship with the father had the potential to develop and become more substantial. Nothing in the father’s presentation, or the children’s responses, suggested that supervision was necessary.
The Family Report writer stated that the parties have no strategies to resolve parenting disagreements or formulate parenting plans.
Under the heading Recommendations, the Family Report writer recommended, during a six month period, daytime time between the children and the father, with changeovers to occur at the contact centre, and then progressing to alternate weekends from Friday after school to Monday before school.
The Family Report writer gave oral evidence. The Court does not propose to set out such evidence, which is consistent with his reports and recommendations.
The Court accepts the evidence and recommendations of the Family Report writer.

Legal principles

Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting Orders.
In deciding whether to make a particular parenting Order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
When making a parenting Order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an Order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such Orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.

The best interests of the children

Section 60CC considerations

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

The mother has been the primary carer of the children from birth to date. She has a meaningful relationship with the children and the children would benefit from a continuance of that relationship.
Post separation and to the present time, despite there not being consistent regular time spent by the children with the father, it would appear that the children have maintained a substantial relationship with the father, such relationship having been observed on two occasions by the Family Report writer at interview, and the children would likely benefit from a continuance and development of that relationship.
Should the children spend time with the father in accordance with the ICL’s proposed final parenting Orders, Exhibit D, there is a significant prospect that the children’s relationship with the father can be maintained and enhanced. In view of the past nature and extent of the children’s time with the father, post separation, it is important that the children’s future unsupervised time with the father be graduated, so as to allow the children to become accustomed in a positive way to their time with the father.
In relation to these proposed spend time with and changeover Orders (Exhibit D), there is a significant prospect that the children’s meaningful relationship with the mother will not be detrimentally affected.
The evidence of the Family Report writer is consistent with the above views.
The Court gives significant weight to this meaningful relationship primary consideration.

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

The Court refers to the mother’s allegations of family violence perpetrated against herself and the children by the father during the relationship.
Again, the father admitted to slapping the mother in the 2008 incident and kicking a wall. In oral evidence, the father conceded that in hindsight, in relation to the above 2008 incident, he should have removed himself promptly from the scene of the altercation with the child Ms P before that altercation escalated. He conceded that he had not been justified in hitting the mother or verbally threatening to hit the child Ms P.
Otherwise, he denies the mother’s allegations of family violence during the relationship.
Whilst the mother made allegations of specific incidents of family violence, there were also extensive general allegations of family violence.
In this case the mother alleges at least one specific incident of family violence that Ms P allegedly witnessed (at least the aftermath). Ms P was not called as a witness as the mother asserted she is fearful of the father. The mother also alleged that the maternal grandmother was aware of alleged family violence by the father. She was not called as a witness. The mother asserted that the maternal grandmother was too stressed to come to Court, and that she did not want to put the maternal grandmother through the stress of Court proceedings. The Court draws no Jones v Dunkel inference in the above circumstances.
The court ultimately had concerns as to the reliability of the mother’s allegations of family violence where contested by the father. Whilst the mother made allegations of specific incidents of family violence, there were also extensive general allegations of family violence made without particularity. The mother adduced no supportive independent evidence, whilst the court recognizes that there is often no such supportive evidence available in the context of family violence allegations, and there is no legal requirement to call such evidence. There were inconsistencies within the mother’s evidence, and inconsistencies between the mother’s evidence and independent evidence, to which the Court turns to now, with some examples.
The mother asserted that during the entire relationship the father had been regularly physically violent towards the children. The mother asserted that throughout the relationship, but more so towards the end of it, she had observed the children to be wary and scared around the father. The mother stated to the Family Report writer in the second interview that during the relationship the children were living in fear of the father. On the other hand, the Family Report writer made positive observations of the children with the father on two separate occasions. He stated that neither child indicated that the father had been violent nor did they show fear or avoidance behaviour. His assessment indicated that the children’s relationship had the potential to develop and become more substantial.
Further, in this context, the reports by the supervisor, Connecting Families, referred to in the second Family Report, according to the Family Report writer, indicated that the children were relaxed, involved, and increasingly affectionate when they spent time with the father at Suburb C Shopping Centre.
The mother’s statements to the Family Report writer in the second Family Report that the children had no relationship with the father, there was no potential for a relationship with him, and he would never be able to have an age-appropriate conversation with them, were inconsistent with the evidence of the Family Report writer, above, and that from his observations the father had related to the children appropriately and at their level, and that there appeared, from his observations, to be love and affection shown between the children and the father.
It was not without relevance, in this context, that in January 2013, when the youngest child tripped over and split his forehead open, the mother, feeling too panicked herself to drive the child for medical assistance, caused the father to be telephoned to come home and attend upon the child, which he did. And further, it was not without relevance in this context that the eldest child slept in a bed (in the main room) with the father.
By reference to the above independent evidence relating to the children’s positive relationship with the father, the mother’s asserted “100%” belief that the father intended to harm the children if the Court ordered the children to spend time with the father appeared unreasonably based, in the context of considering the reliability of the mother’s allegations of family violence where contested by the father.
The mother asserted that when she was pregnant with the youngest child in 2009, the father had punched her in the stomach and ribs on at least ten occasions. She asserts, in her trial affidavit, that she did not seek medical help, inter alia, because she was too scared to tell anyone about the father hurting her. Yet in her oral evidence, she asserted that she had told the maternal grandmother that the father had so punched her.
In her trial Affidavit the mother referred to, post separation, several instances of unusual events occurring in relation to her home and property. She sought to infer that the father was implicated in these events. For example, she asserted that in about 2016 her car began to steam and the dials indicated that the car was overheating. She took it to a mechanic who told her that oil had been put in the car radiator. The Court has some concern about the mother’s apparent inability to consider whether there might have been an innocent explanation for oil having been mixed with water in the radiator.
The Court is not satisfied that either during the relationship or post separation the children, or either of them, were fearful of the father or wary and scared around him, as alleged by the mother.
Following the birth of the children, and during the parties’ relationship, occasionally the father exercised corporal punishment upon the children, but the Court is not satisfied that this punishment was excessive or beyond what could be considered reasonable corporal punishment.
The Court is not satisfied that the father perpetrated physical family violence, as asserted by the mother, either against her or the children, apart from the slapping incident in 2008 (including the kicking of a wall).
The mother also alleged coercive and controlling family violence perpetrated against her and the children by the father.
The Court is not satisfied that the father denigrated the children, as alleged by the mother.
The Court is not satisfied that the father threatened to take the children to Brisbane if the mother called the police.
The Court finds that there were two occasions on which the father told the mother that he would take the children to Brisbane. One occasion, admitted by the father, was when he threatened to take the eldest child to Brisbane because, inter alia, he believed that that child’s wellbeing was at risk. The second occasion was when the father told the mother in late March 2014, at the time of the separation incident involving the maternal grandmother, that he was going to take the children to Brisbane. On this latter occasion the father was upset at accusations being levelled against him by the maternal grandmother.
The Court is not satisfied that the father, both during the relationship and post separation, persistently verbally denigrated the mother to the extent alleged by the mother. Nevertheless, there were, during the parties’ relationship, regular arguments between the parties during which both parties verbally abused each other.
The father admits to numerous breaches of the ADVO made in April 2014 for the mother’s protection.
The father had in May 2014 unsuccessfully sought to have the ADVO revoked. The breaches of the ADVO included the father writing a letter to the mother asserting his right to speak to the children, texting a message to the mother’s mobile also referring to the children, and leaving a birthday present for the youngest child on the mother’s car while she was dropping the eldest child off at school. There was one message from the father to the mother which accused the mother of lying. The Court accepts that the father was suffering some depression at the time of the breaches. The effect of these communications from the father to the mother probably did cause the mother to become scared. The Court finds that the father did not intend to bring fear or pressure to bear on the mother by these communications.
The father admitted to writing a letter to the children dated 21 June 2014, when he was experiencing some depression. On the whole it was a very loving letter on the part of the father. However, the father acknowledged in oral evidence that parts of the letter were inappropriately written by him, in particular, where he stated that “very mean things” had been mentioned about him in the context of his relationship with the mother since the separation. Later he stated in the letter, “She [the mother] is very special and I hope she can forgive me one day.”
The father sent text message communications from himself to the maternal grandfather and the mother’s friend Mr S of an intemperate nature post separation. In oral evidence, the father agreed that his communications with Mr S were not appropriate in certain ways.
The Court finds that the father made the above communications essentially because he wanted to spend time with and speak to the children and remain involved in their lives, and he believed that the mother was unreasonably preventing him from doing so. It is reasonably clear that the father perceived the maternal grandfather and Mr S to be in some way unfairly supportive of the mother’s position against him.
In the view of the Court, there will be no unacceptable risk of the children being exposed to abuse, neglect or family violence if spending unsupervised time with the father in accordance with the ICL’s proposed final parenting Orders in Exhibit D.
The Court is not satisfied that there exists a significant risk that the father would perpetrate physical family violence against the children if spending unsupervised time with them. In this context, inter alia, the Court refers to its discussion above relating to the father’s parenting of the children during the relationship and the positive supervised time that he has spent with the children post separation, including the lack of fear in the children in spending such time with the father.
In the view of the Court, there is no significant risk of the father perpetrating physical family violence against the mother, particularly in circumstances where the ICL’s proposed final parenting Orders in Exhibit D minimise the opportunity of the parties coming into physical contact, and where the Court has found that the slapping incident occurred in 2008 and when the parties were living together.
In the view of the Court, there will be no significant risk of the father perpetrating coercive or controlling family violence against the mother, including verbal denigration or harassment, through electronic communications, such as email or text messages, in circumstances where the ICL’s proposed final parenting Orders in Exhibit D (with an amendment proposed by the Court to allow the parties to communicate about medical emergencies and any inability to spend time with the children) significantly restrict the scope of the parties’ communications, which are confined to email messages, and there exist proposed non-denigration Orders. Again, a significant motivation post separation for the father’s communications with the mother and her extended family was his concern about spending time with the children. The Court is satisfied that there is not a significant risk that the mother will experience emotional detriment through such significantly restricted prospective communications with the father, as proposed by the ICL in Exhibit D (with the amendment as referred above).
The Court is not satisfied that there exists a real risk of the mother experiencing significant psychological harm, if the children were to spend unsupervised time with the father in accordance with the ICL’s proposed Orders, Exhibit D. The ICL’s proposed final parenting Orders in Exhibit D minimise the risk of the parties coming into contact with each other face to face or through electronic communications.
The Court does not accept that the mother has deliberately, post separation, set out to prevent the children from having a relationship with the father. The Court finds that the mother’s care of the children during the parties’ relationship and post separation to date has been overall quite satisfactory.
The Court is satisfied that should Orders be made in terms of the ICL’s proposed restraining Orders, relating to non-denigration and restraint from physical chastisement or discipline, they will minimise the risk of either party committing such acts to the detriment of the children.
The Court’s views above are consistent with the evidence of the family report writer (whilst noting that the Family Report writer did not express any concluded views on family violence contested issues).
The Court gives significant weight to this need to protect primary consideration.

Section 60CC(3) - additional considerations

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

Noting the tender ages of the children, some weight but not significant weight is given to their views in relation to spending time with the father. Nevertheless, the Court takes into account the Family Report writer’s comments in relation to the children’s apparent substantial relationship with the father, the positive supervised time spent by the children with him, including the children’s apparent lack of fear or avoidance behaviour when observed with the father.

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

The Court refers to its discussion above under the meaningful relationship primary consideration.

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

The parties took up such opportunities during their relationship. The mother usually made the major decisions for the children both during the relationship and post separation.
The father has sought to take up such opportunities to spend time with the children post separation, and in this regard, in particular, the Court refers to its past interim parenting Orders.

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

The mother has fulfilled such obligations. Apart from $300 that the father paid to the mother in 2014, the mother has not received any child support from the father since separation. In this context, the mother conceded that there had been no relevant child support assessment sought by either party.
The mother conceded that other than a letter sent by her solicitors seeking from the father a contribution for optometrist’s costs, she had not made a request for child support from him.

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

Should the children spend unsupervised time with the father in accordance with the ICL’s proposed final parenting Orders in Exhibit D, there should be no significant risk of the children or the mother experiencing emotional or other harm.

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

Not applicable.

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

Despite the significant extent of complaints made by the father to the mother, maternal grandfather, and third parties, in relation to the mother’s historical care of the children, the Court finds that the mother has provided well for the children’s needs, including emotional and intellectual needs.
The father has the capacity to provide adequately for the children’s emotional and intellectual needs.

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

The children appear to be developing satisfactorily.

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

Not applicable.

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

The parties have usually demonstrated appropriate attitudes to the children and to their responsibilities of parenthood, subject to the adverse conduct of the father referred to above under the need to protect primary consideration.

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

The Court refers to its discussion above under the need to protect primary consideration.

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

The Court refers to its discussion of the evidence above in relation to historical apprehended domestic violence orders against the father.

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

The proposed final parenting Orders of the ICL in Exhibit D would be least likely to lead to the institution of further proceedings in relation to the children.

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

As to the father’s proposed Order that, “The mother do all things possible for the children to have the father’s name incorporated into their name and be known as, “Pederson – Schafer”, it will not be in the best interests of the children to make such an Order.
The Court accepts the mother’s evidence that the children have always had the last surname ‘Pederson’ and identify with that surname. For all activities and appointments the children attend, as well as at school, their surnames are listed as ‘Pederson’. Predominantly, the children have never use the surname ‘Schafer’. On occasions when the father has used the surname ‘Schafer’ in gifts for the children, the children were very confused. The Court finds there is a significant risk that the children would prospectively be confused if such an Order was made, and the Court takes into account in this context their present ages. Further, if the children surnames were changed to ‘Schafer’ there is a significant risk that the mother would feel traumatised because it would be a constant reminder of her negative memories of her past relationship with the father.There is no persuasive evidence before the Court that the children would benefit from such an Order being made.
The Court now turns to the ICL’s proposed restraining Orders against the father (proposed Order 17 in Exhibit D, together with the Court’s proposed amendment to proposed Order 17(c) being the addition of the further words, “with the father being permitted to consult with a school teacher(s) during such times”), and the mother’s proposed restraining Orders against the father.
Since the parties’ separation, the father has instigated communications with various organisations involved with the children and the mother. Such organisations have included Catholic Care Contact Centre, Connecting Families contact service, the children’s school and the school counsellor, NSW Police, the children’s doctors, Suburb C Hospital and Brighter Futures, Life Resolutions, the ICL, Legal Aid NSW (the solicitors for the mother), Centrelink and Housing, and the Department of Education. The mother received communications from these third parties in relation to the father’s communications with them.
The mother herself received email communications from the father, such communications being critical of the mother, in relation to, for example, the mother’s involvement with Brighter Futures and psychological referral for the eldest child.
In relation to the father’s communications with Legal Aid NSW, at various times throughout these proceedings the father has sent emails to the mother’s solicitors, ranging from several emails each week to several emails each day, and at times up to eight emails each day at all hours of the day. These emails varied from a line to a paragraph to a full page. The mother was provided with these communications.
The father’s communications with the above organisations have included issues relating to the father giving the children gifts, the children’s behaviour at the contact centre, the father’s treatment by NSW police at various times, the father’s computer tower and family bills, the father’s access to information from the children’s school, the child [X]’s work with the school counsellor and Learning Support Team (the father claiming that he was not advised of this occurring), the children’s school attendance, the eldest child’s school uniform, injury suffered by the children, the children’s immunisations, the children’s glasses, Brighter Futures and psychological referral for the eldest child, Suburb C hospital emergency, and the ICL’s representation of the children.
The father has at times been verbally intemperate with staff working for some of the above organisations. For example, the father himself refers to swearing in front of the children’s school counsellor in about early August 2014.
The mother asserts that the father, by these communications, has continually tried to cause difficulties for her and intimidate and harass her. On each occasion that the mother receives notification of the father’s communications with these organisations she feels overwhelmed, stressed and anxious, and experiences adverse physical symptoms. In her oral evidence, the mother placed particular emphasis on her concerns of being harassed by the father in the future.
In this context, the mother asserts that she received counselling. The mother, inter alia, obtained treatment for anxiety with a doctor at Headspace in late 2016 (two sessions) and was prescribed antidepressants. She took that medicine on and off until at least May 2017. There is a real risk that the mother will again experience significant anxiety if the father is permitted to have unrestricted communications with the children, educational or health professionals, relatives and friends of the mother, with the mother consequentially receiving notification of such communications. The proposed restraints in proposed Order 17 in Exhibit D (with amendments, as above) will minimise the risk of this occurring.
The father should be permitted to liaise with the children’s teachers at their school during the times of school changeovers. This will effectively permit him to liaise with such teachers at least on fortnightly (during school terms) Friday afternoons and Monday mornings without the risk of the parties coming into contact, albeit that such fortnightly time commences after some twelve fortnights of weekend time.
The father will be permitted under the ICL’s proposed Order 17 (d) to attend the children’s extracurricular activities during the periods the children are spending time with him pursuant to the time with Orders in Exhibit D. It follows that the father would not be restrained, for example, on a weekend during which he is spending time with the children, from attending one of the children sporting events. The restraint upon the father will minimise the significant risk that the parties will experience conflict in potentially confronting each other at an extracurricular activity of the children, and thereby minimise the risk of the mother experiencing anxiety to the children’s emotional detriment.
It will be in the best interests of the children to make an Order that the father be authorised to obtain, from any school which the children attend, a copy of any report card issued for the children. This will obviate the need for the mother to send report cards herself to the father.
As to the ICL’s proposed restraint against the father relating to educational or health professionals, the Court is of the view that it will be in the best interests of the children to make an Order restraining the father from communicating with any educational or health professional with whom the children have engaged, or are to engage (subject to the father being permitted to consult with a school teacher during changeover times). The Court refers to the evidence before it relating to the father’s post separation communications with school staff, health professionals and hospitals in relation to the children, and the nature of those communications.
The children have had, in particular, fairly regular contact and treatment with health professionals relating to their general health.
In the view of the Court, there is a significant risk that the father would seek to communicate with the children’s educational or health professionals as organised by the mother, and that the mother would receive, in turn, communications from such professionals. Such communications with the mother could well lead to the mother experiencing significant anxiety.
In circumstances in which it will be in the best interests of the children to make the ICL’s proposed Order (Order 15) that the mother provide to the father, inter alia, all written reports from health professionals, including mental health and allied health professionals, in relation to the children or either of them, and where, when the children are in the father’s care, it will be perfectly open to the father to take the children to a general practitioner or other health professional for assessment of any health concern, the making of such a restraint against the father should not impede upon his ability to satisfy himself that the children’s health needs are being met.
As to the ICL and mother’s proposed restraint against the father that he not attend the children’s school, except during changeover times, again the father can liaise with school teachers at such times, and can attend school events on a fortnightly basis (see the ICL’s proposed Order 6 (c)) from after school on Fridays to the conclusion of school on the Monday.
As to the mother’s proposed restraint upon the father relating to Facebook or other social media platforms operated by the father, it will be in the best interests of the children and appropriate to make such restraint but deleting the reference to the children. That is, the father should be permitted, in a positive way, to refer to the children on such platforms. Such restraining Order, as proposed by the Court, noting the father’s history of criticising the mother and these proceedings, should protect the children and the mother from potentially viewing critical material on such platforms with potential adverse effects upon their emotional wellbeing.
It will be in the best interests of the children and appropriate to make the mother’s proposed restraining Order restraining the father from entering or coming within 100 metres of the place of residence of the mother and the children. Again, this will minimise the real risk, in particular, of the mother experiencing anxiety in such situations.
It will be in the best interests of the children and appropriate to make the ICL’s proposed restraining Order restraining the father from communicating with, or attempting to communicate with, any relative or friend of the mother’s in relation to the children all the mother. Historically, the father sent intemperate and critical messages to the maternal grandfather and a friend of the mother, Mr S, which led to the mother experiencing anxiety.
It will be in the best interests of the children to make the ICL’s proposed Order 4, relating to communication between the parties, pursuant to the ICL’s proposed Orders 2 and 3, and that it be extended to other communications occurring between the parties but limited to the communication of medical emergencies, or an inability of a party to spend time with the children. Such other email communications should also be limited to a maximum of two messages. These limits in communications will avoid conflict between the parties, and the real risk of significant anxiety being experienced by the mother.
In relation to the real risk of the mother experiencing anxiety, as referred to above in differing circumstances, such anxiety would carry the significant risk that her parenting capacity would be detrimentally affected.
It will be in the best interests of the children and appropriate to make an order that both parties are restrained from denigrating the other party in any email communication between them, and at all times their email communications be temperate and respectful.
As to the ICL’s proposed Orders for Australian passports for the children and overseas travel, it will be the best interests of the children to make those Orders. The Court accepts the mother’s evidence that she has never previously planned an overseas trip with the children, but that she cannot predict the future in this context and seeks overseas travel related Orders accordingly.
As to changeovers, it will be the best interests of the children to make changeover Orders in accordance with the ICL’s proposed Orders in this respect. The Court agrees with the ICL’s submission that proposed changeovers, which do not occur at school but rather at McDonald’s restaurant car park, will likely have appropriate surveillance to avoid conflict between the parties, and that appointing changeovers at a police station, looking to the long term, sends the wrong message to these children in relation to both parents. The evidence and recommendations of the Family Report writer are consistent with these views.
The father submits that the ICL’s proposed restraints are unreasonable. He submits, inter alia, that the mother should be directed to obtain treatment for anxiety. However, the mother has historically sought treatment for anxiety, referred to previously, with some positive outcomes. The Court has found that there is a real risk of the mother experiencing significant anxiety if the father is permitted unrestricted communications with third parties, including the children, with the consequential risk of her parenting capacity being adversely affected. It is unreasonable and not in the children’s best interests to expect the mother to have to return for anxiety treatment (potentially regularly over the course of the children’s lives to age eighteen) in light of this real risk existing.

Parental responsibility

There is a lack of trust between the parties. They are unable to meaningfully communicate or co-parent. There has been no significant communication between the parties since the final separation. The mother fears the father. The mother has been the children’s primary carer from birth to date, and she has been making appropriate major decisions for them in the absence of the father. There is no significant prospect that the parties will be able to reach agreement in a timely fashion in relation to major decisions affecting the children.
The father acknowledged, in oral evidence, in the context of decisions being made for the children, that even during the parties’ relationship it had been difficult to reach agreement with the mother. He acknowledged that logically the parent with whom the children primarily live should have parental responsibility. The father stated that because he works full-time, he sought an Order that the children live with the mother. He acknowledged the reality was that he and the mother would not be able to reach decisions regarding parental responsibility issues.
Further, should the parties be subject to an Order that they have equal shared parental responsibility, there is a significant risk that the father would make excessive communications, which would lead to the mother experiencing significant anxiety, to the detriment to the children.
It will be in the best interests of the children that the mother have sole parental responsibility for the children, but that the mother be required to provide the father with details of her contemplated decision, consider the father’s input into such proposed decision, and then inform the father of her decision. The father should be restricted to a limited number of communications with the mother and be restrained from communicating with other relevant third parties in this context as proposed by the ICL in Exhibit D. Otherwise, again, the significant risk would arise of excessive communications by the father, and in this regard the Court refers to its discussion above.
The Family Report writer’s evidence is consistent with the above views relating to the mother having sole parental responsibility.

Summary

Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following final parenting Orders:
(1)     The mother shall have sole parental responsibility for the children [X] born 2008 and [Y] born 2009 (the children).
(2)     In relation to decisions the mother is to make, or is considering making, pursuant to her exercise of sole parental responsibility:
(a)         Except in relation to any emergency issues the mother must, with as much prior notice as reasonably practicable, provide the father with details of the decision being contemplated including the various options available.
(b)     The mother must consider all input provided by the father in making her final decision.
(c) Once the mother makes her decision, she must inform the father as soon as reasonably practicable thereafter of her decision, but there is no requirement for her to elaborate on her reasons or on how she took the father’s input into consideration.
(3)     In relation to any communication the father chooses to make in response to the mother’s notice given to him pursuant to Order 2 above, the father must:
(a)     Limit the number of messages he sends about each separate issue to a maximum of two.
(b)     Limit his messages to the mother to matters directly in relation to the issue raised by her.
(c) Not communicate with others to whom the issue relates, including but not limited to the children, any other relatives or friends of the mother, any third party who is involved with or affected by the issue.
(d)     Not communicate with the mother, or any others to whom the previous subparagraph applies, about the issue after the mother provides the father with notice of the decision made by her pursuant to Order 2 (c).
(4)
(a)     For the purpose of communication pursuant to Orders 2 and 3 above, the parties must limit their means of communication to email messages.
(b)     In addition to the parties’ communications, as above, the parties shall be permitted to communicate with each other by email messages but limited to firstly, an emergency being a serious medical issue affecting the child or children requiring medical attention or hospitalisation, or secondly, an inability of a party to spend time with the children pursuant to these Orders, and such communications shall be limited to a maximum of two emails.
(5)     The children shall live with the mother.
(6)     The children shall spend time with the father as follows:
(a)     Each alternate Saturday from 10 am to 4 pm, for a total of six occasions. The first such occasion is to occur on the first Saturday on which the children’s contact service is available to effect changeover pursuant to Orders 8 and 9.
(b)     Commencing the second Saturday after the last occasion in Order 6(a) above for a total of six occasions, from each alternate weekend from 10 am on Saturday to 10 am on Sunday.
(c) Commencing the second Friday after the last occasion in Order 6(b) above, each alternate weekend from the conclusion of school on Friday to the conclusion of school on Monday, but such periods are suspended during school holiday periods.
(d)     In the event periods of time pursuant to Order 6(b) or (c) above fall on the weekend on which Mother’s Day falls, the father’s time on that weekend is suspended, and shall occur instead on the immediately following weekend.
(e) In the event a period of time pursuant to Order 6(c) above does not fall on the weekend on which the Father’s Day weekend falls, then the time the children would otherwise spend with the father on the immediately following weekend is suspended, and instead that time shall occur on the weekend on which the Father’s Day weekend falls.
(f)     In each of the mid-term school holiday periods, commencing the first gazetted NSW school holiday period after there have been no less than four occasions of time scheduled pursuant to subparagraph (c) above, from the commencement of the school holiday period until 4 pm on the seventh day thereafter.
(g)     In the December 2019/January 2020 school holiday periods as follows:
(i)     From the commencement of the school holiday period until midday on Christmas Day.
(ii)     From 4 pm on 15 January to 4 pm on 25 January.
(h)     In the December 2020/January 2021 school holiday periods and each alternate year thereafter, from midday on Christmas Day to 4 m on 12 January.
(i)     In the December 2021/January 2022 school holiday periods and each alternate year thereafter as follows:
(i)     From the commencement of the school holiday period until midday on Christmas Day.
(ii)     From 4 pm on 12 January to 4 pm on 25 January.
(7)     School holiday periods are defined to commence at the conclusion of school on the last day of school on which students are to attend, and conclude at the commencement of school on the first day of school on which students are to attend.
(8)     For the purpose of changeover pursuant to Order 6(a) and (b), the parties are to effect changeover at a children’s contact centre, except that if such service is not available on a Sunday, then the return of the children to the mother pursuant to Order 6(b) shall occur in accordance with Order 10.
(9)     The parties must forthwith do all things necessary to schedule the first available intake assessment with Contact Service at Suburb A and the Suburb B Children’s Service, and thereafter:
(a)     The parties must comply with all requests of both Services, including attending the first available intake assessment appointment.
(b)     The parties must do all things necessary to schedule the first available occasion for changeover.
(c) The parties must then utilise the Service which is able to offer the soonest occasion to effect changeover.
(d)     The father is liable for all costs associated with the Services.
(10)   For the purposes of changeover, other than in accordance with Orders 8 and 9, and other than where changeover occurs at the children’s school, changeover is to be effected by the parties, or their nominee, by meeting in the car park of McDonalds, Suburb C.
(11)   School holiday periods are defined to commence at the conclusion of school on the last day of school on which students are to attend, and conclude at the commencement of school on the first day of school on which students are to attend.
(12)   The parties must use, and only use, the children’s names of [X] and [Y], noting that (omitted) is a middle name for both children and accordingly is only typically used for formal purposes.
(13) For the purposes of section 11 of the Australian Passports Act 2005 (Cth), it is noted that the above Orders allow:
(a)     The mother has sole parental responsibility, and the consent of the father is not required for the issue of an Australian passport to the children.
(b)     The children to live with the mother when the mother is outside Australia.
(c) The father is restrained from making an application for an Australian passport or travel-related document for the children.
(d)     The children are permitted to have an Australian passport or travel-related document provided the application for that document is made by the mother who may sign any declaration on the application in the form approved by the relevant Minister.
(14)   Not less than 14 days prior to departure on any travel outside of Australia for either or both of the children, the mother must provide the father with a full itinerary for the travel including means of contact during the period of the trip.
(15)   The mother must provide to the father, as soon as reasonably practicable upon receipt by her, all written reports from health professionals, including mental health and allied health professionals, in relation to the children or either of them.
(16)   The parties must forthwith notify the other party of a change to their email address.
(17)   The father is restrained from:
(a)     Communicating, or attempting to communicate with, the children except as otherwise provided for in these Orders.
(b)     Approaching, spending time with, or attempting to spend time with, the children except as otherwise provided for in these Orders.
(c) Attending the children’s school, except for the purpose of changeover pursuant to these Orders, with the father being permitted to consult with a school teacher(s) during such times.
(d)     Attending during any extra curricular activity undertaken by the children unless such activities occur during periods the children are spending time with him pursuant to these Orders.
(e) In relation to the children or the mother, communicating with, or attempting to communicate with, any educational or health professional with whom the children have engaged, or are to engage, subject to (c) above.
(f)     In relation to the children or the mother, communicating with, or attempting to communicate with, any relative or friend of the mother’s.
(g)     Entering or coming within 100 metres of the place of residence of the mother and the children;
(h)     Posting or permitting to remain posted upon Facebook or any other social media platform operated or controlled by the father any material (including but not limited to photographs and/or text) relating to, referring to or commenting upon the Court proceedings, or the mother (whether referring to the mother by name or by any generic or anonymised description).
(18)   Both parties are restrained from denigrating the other party or members of the other party’s family to, or in the presence or hearing of, the children or either of them, or on any Facebook or any other social media platform operated or controlled by either the mother or the father.
(19)   Both parties are restrained from physically chastising or using any form of physical discipline on the children.
(20)   These Orders act as authority for the father to obtain from any school which the children attend a copy of any report card issued for the children.
(21)   Both parties are restrained from denigrating the other party in any email communication between them, and at all times their email communications shall be temperate and respectful.

I certify that the preceding one hundred and eighty seven (187) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date: 2 November 2018

[2018] FCCA 3086

2 November 2018

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Costs

Jurisdiction

Procedural Fairness