SHEA & MORGAN

FAMILY COURT OF AUSTRALIA

SHEA & MORGAN

[2014] FamCA 738

FAMILY LAW – CHILDREN – Parental responsibility – Mother is primary carer of children – As a result of the mother’s assertions and interim court orders the father has had limited involvement in children’s lives and has only had supervised contact time for three years – Where the father seeks equal shared parental responsibility – Where the mother seeks sole parental responsibility – Where the mother is diagnosed with post-traumatic stress disorder – Where the mother is fearful of the father and fearful of the children spending time with the father – Where it is found the father has engaged in family violence – Where both parents have mental status issues – Order made that the mother have sole parental responsibility with a duty to consult the father by email – Time spent with father – Where the father seeks unsupervised time on a graduated basis – Where the mother seeks the father have supervised weekly time – Where the Independent Children’s Lawyer’s proposal is that the children spend unsupervised time with the father on a graduated basis – Where it is found there is no unacceptable risk that the father is a physical danger to the mother and children – Whether the mother’s mental health will suffer if unsupervised time is reintroduced – Where it is found the mother is sufficiently resilient to cope with the children having unsupervised time with the father if protective orders are in place – Orders made that are protective of the mother’s vulnerable mental status – Order made that the children spend unsupervised time with the father on a graduated basis with conditions – Condition that time with the father be initially in the presence of his partner – Condition that the father attend upon a treating psychiatrist and the family engage in family therapy – Where there have been issues relating to the mother’s compliance with previous orders for electronic communication – Where the expert recommended communication between the children and father on as non-intrusive a basis as might be reasonable – Order made that the children communicate with the father by Skype – Order made that the mother be permitted to travel overseas with the children– Where the mother consents to an order for security during periods of overseas travel – Order that the father be restricted in the manner in which he can contact the mother and that the father be restrained from approaching the mother’s residence.

Family Law Act 1975 (Cth)

Rice v Asplund (1979) FLC 90-725

APPLICANT:

Ms Shea

RESPONDENT:

Mr Morgan

INDEPENDENT CHILDREN’S LAWYER:

Ms Connor

FILE NUMBER:

SYC

7267

2011

DATE DELIVERED:

5 September 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

25 - 28 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Jackson

SOLICITOR FOR THE APPLICANT:

Anne Day & Associates

COUNSEL FOR THE RESPONDENT:

Ms Steggall, counsel

SOLICITOR FOR THE RESPONDENT:

E.H. Tebbutt & Sons

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Cantrall, counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

All previous orders be discharged save for the current interim parenting order for the father to have supervised time with the children, which order shall continue until order 4 is implemented.
The mother shall have parental responsibility for V born … 2007 and S born … 2010 (“the children”) in relation to all major long term issues, on the conditions that:
2.1.The mother contact the father in writing and provide her views about any such issue;
2.2.The mother shall consult with the father with regard to any such issue (such consultations to take place by email);
2.3.The mother and the father will make a genuine effort to come to a joint decision about any such issue; and
2.4.If no agreement is reached between the parties, the mother shall make the final decision and advise the father in writing of the decision about any such issue.
The children ordinarily live with the mother.
Upon the preconditions and conditions otherwise set out in these orders being satisfied, the children are to spend time with their father as follows:
4.1.Until the commencement of the third term in 2015, each Sunday from 10.00 am to 5.00 pm, except:
4.1.1.The last Sunday of every second calendar month after the implementation of this order; and
4.1.2.Any periods of up to four weeks when the children are outside Australia pursuant to these orders
such time to be spent in the presence of the father’s partner, Ms H;
4.2.Subject to order 4.4, from the commencement of the third term in the 2015 school year, each alternate weekend from 5.00 pm Saturday to 5.00 pm Sunday;
4.3.Subject to order 4.4, from the commencement of the 2016 school year, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday;
4.4.In the event that in the term 1, term 2 and term 3 school holidays the father would ordinarily have time with the children on the second weekend after school finishes for the term, then the children will not spend time with their father on that weekend but will spend time with their father on the following weekend and in relation to order 4.3, on the next alternate weekend;
4.5.Each alternate Christmas Day from 10 am to 5 pm commencing 2014.
The children spend time with the father upon the following conditions:
5.1.Until the commencement of the third term 2015, Ms H be present at all times when the children are with their father;
5.2.The Independent Children's Lawyer assist in arranging family therapy for the parents and for that purpose the Independent Children's Lawyer speak to the child V’s current therapist to ascertain whether she would be prepared to undertake sessions with the mother, father, Ms H and the children (not necessarily together or at the same time) to facilitate the children’s re-introduction to the father on an unsupervised basis. In the event that V’s therapist is of the view that it would be inappropriate for her to provide that therapy or is otherwise unwilling to provide that therapy, the Independent Children's Lawyer (in consultation with Dr R if the Independent Children's Lawyer believes that is necessary) identify an alternative therapist who is prepared to provide this therapy and facilitate the parties attending that therapist as soon as is practicable. The parties are to attend all appointments made by the therapist and the mother is to cause the children to attend any appointments made by the therapist;
5.3.Subject to order 5.4, order 4.1 shall not commence until after the therapist referred to in order 5.2 indicates in writing that the parties have genuinely involved themselves with that family therapy or the expiration of two months from the date of these orders, whichever date first occur;
5.4.The father’s time with the children pursuant to order 4.1 above, is also not to commence until the father’s solicitors forward to the mother’s solicitors a letter confirming that the father has attended upon a treating psychiatrist on no less than four occasions, and provide details of that treating psychiatrist. In the event the father’s treating psychiatrist believes that more than four sessions of therapy is appropriate, then the father is to attend his psychiatrist for whatever period his treating psychiatrist deems appropriate;
5.5.The children’s time with their father is to ordinarily be facilitated by the father or Ms H collecting and delivering the children from and to the Interrelate contact centre at Suburb X or in the alternative if that centre ceases to be regularly available, from the contact centre operated by Catholic Care at Suburb Y, or in the alternative any other contact centre agreed between the parties in writing from time to time;
5.6.In the event the contact centre is not available on any particular occasion, the children’s time with the father is to be facilitated by the father’s partner collecting and delivering the children from and to a public place in Suburb M agreed to by the parties at the commencement of their time.
The mother is to continue to attend Dr U and her current treating psychologist at the frequency suggested by them from time to time
In the event the parties are unable to agree about the children spending holiday time with the father commencing at the end of the term 2 2016 school holidays, the mother shall, in a timely manner, attend upon Dr U (or if Dr U is unavailable, another psychiatrist), so that the mother is able to provide a report from that psychiatrist to the father by the first week in term 2 2016 as to the mother’s mental status and her ability to be able to facilitate holiday time for the children with their father. Upon the receipt of that psychiatrist’s report, the parties are thereafter to negotiate and genuinely seek to make arrangements in respect of the children having school holidays with the father. In the event that an agreement is not reached, either party has liberty to relist the matter to make an application about holiday time without the need to demonstrate that there has been any significant change of circumstances (that is, without any need to satisfy any threshold condition arising from Rice v Asplund (1979) FLC 90-725).
The children will not spend time with their father on Mother’s Day but in lieu, the children will spend time with their father:
8.1.Until the commencement of third term 2015 from 10.00 am to 5.00 pm on the Saturday before Mother’s Day;
8.2.From the commencement of third term 2015, in the event Mother’s Day falls upon a weekend that the children would otherwise be with their father, then the children will spend the following weekend with their father at the times they would otherwise have spent with their father on the Mother’s Day weekend.
In the event that the children are not scheduled to be with their father on Father’s Day, then the children are to spend that weekend which includes Father’s Day with their father and not spend the following weekend with him.
The mother shall do all that is necessary to enable the children to communicate with their father by skype at 6.00 pm each Wednesday evening or whatever other time the parties might mutually agree in writing, for a period not exceeding one half hour and that the mother do all things to facilitate that connection being made and to encourage the children to commence to participate and to continue to participate in communicating by skype with their father. The mother is to also facilitate skype calls with their father at any time the children request that that happen. The parents are to communicate by email for the purposes of setting up this facility. The parties are to otherwise discuss any problems with setting up these arrangements and any possible extension of additional occasions when skype might take place during family therapy, but in the event they are unable to reach agreement about any extension, then no further order should be made. The mother is to avoid distractions for the children during these skype communications with their father and not otherwise interfere with the communication and allow privacy during the communication between the children and their father.
The father shall not attend the children’s school except the father shall be permitted to attend major school events such as sports carnivals and end of year concerts on the basis that he not approach the mother at those events and that he informs the mother by email seven days before he attends those events that he intends to be at the event.
The father be at liberty to contact the children’s medical treatment providers from time to time to discuss the children’s health or any medical condition. In the event that a medical treatment provider does not agree to provide any information about the children to the father, the father will notify the mother and within seven days of such notification, the mother will provide a written authority to the said medical treatment provider authorising the said medical treatment provider to discuss the children’s health or any medical condition.
The father be at liberty to contact the children’s respective childcare centre, preschool or school from time to time to discuss the children’s progress and the father arrange with the childcare centre, preschool or school for copies of the children’s reports, photographs, newsletters, circulates and reports relating to behavioural issues.
Each party shall give the other at least two weeks' notice of any intention to move from their current residential address.
Each party shall notify the other party of any change to the following details within three days of the change taking place:
15.1.the party’s residential address;
15.2.the party’s landline telephone number;
15.3.the party’s mobile telephone number.
Each party as soon as practicable telephone the other party upon the happening of any of the following:
16.1.a child becoming seriously ill;
16.2.a child being hospitalised;
16.3.a child becoming involved in an accident required medical attention.
The mother is permitted to remove the children form the Commonwealth of Australia for a period of four weeks per year:
17.1.The mother provide details of the proposed itinerary including dates of travel within 14 days of the mother receiving the itinerary and making any booking;
17.2.Within 14 days of the mother leaving Australia on each occasion, the mother provide to her lawyer a signed transfer of her real property at A Street, Suburb M (“the transfer”) and instruct her lawyers to inform the father in writing that that transfer was being held. The mother shall further irrevocably instruct those solicitors that they shall deliver the transfer to the father in the event the mother failed to return to Australia at the time indicated in the itinerary provided by the mother pursuant to order 17.1. The written communication by the mother’s lawyers to the father should acknowledge the receipt of those instructions. In the event that the mother fails to return the children by the due date specified in the mother’s itinerary, the obligation to deliver the transfer to the father arises. That obligation shall create a caveatable interest in the mother’s property;
17.3.During the time the children are out of Australia, they shall have skype communication with their father at 7.30 am Wednesday (Irish time) and that the mother will not otherwise discourage the children from telephoning the father at other times whilst they are overseas;
17.4.The mother is to facilitate the children’s electronic communication with their father;
17.5.Within 20 days of any request, the father shall sign all relevant passport application forms presented to him by the mother;
17.6.Any Australian or foreign passport of V MORGAN be held by the mother;
17.7.Any Australian or foreign passport of S MORGAN be held by the father;
17.8.The father deliver the child S’s passport to the mother or at the mother’s direction to the mother’s solicitors, 14 days prior to the mother’s departure from Australia and the mother will redeliver the child S’s passport to the father within 14 days of returning to Australia;
17.9.By way of some makeup time, the children are to spend time with their father on the weekends they would otherwise be with their mother immediately before they leave Australia and immediately after they return to Australia from the commencement of the third term in the 2015 school year from 5pm Saturday to 5.00 pm Sunday and from the commencement of the 2016 school year, from 5.00 pm Friday to 5.00 pm Sunday.
Both parents be restrained from denigrating the other parent in the presence or hearing of the children or, allowing anyone else to do so.
The father is restrained from contacting the mother by any means whatsoever or causing her to be contacted on his behalf except by email in relation to the children, or except by other means if it is an emergency. The mother and father will ordinarily communicate by email to a designated email addresses except in the case of emergency and for that purpose the solicitors for the parties are to exchange the email address to which one parent should send email communication to the other.
The father is restrained from approaching within 100 metres of the mother’s home at A Street, Suburb M in the State of New South Wales.
The parties provide to the other not less than 28 days' written notice of any proposed change to their respective living arrangements, including but not limited to any proposal for a person to commence living in the same residence as the mother or father and the children, whether that person be a friend, relative, partner, tenant or any other person.
The parties shall communicate with the other in relation to any difficulty that has arisen in relation to compliance with these orders as soon as is practicable after that party becomes aware of that difficulty.
Each party shall equally pay the costs of family therapy and the costs of the child contact centre providing services for changeover. Otherwise the parties will respectively pay the costs of their individual therapy.
The father is at liberty to provide to his treating psychiatrist, the mother is at liberty to provide to her treating psychiatrist and psychologist and the Independent Children's Lawyer shall provide to the therapist referred to in order 5.2, a copy of the following documents:
24.1.Expert report of Dr R dated 7 December 2012;
24.2.Updating report from Dr R dated 18 August 2014;
24.3.The Reasons for Judgment delivered this day.
The mother pay to Legal Aid NSW the amount of $7,284.75 in respect of the costs and disbursements of the Independent Children's Lawyer and the costs of Dr R’s addendum report and attendance at court.
The father pay to Legal Aid NSW the amount of $8,769.75 in respect of the costs and disbursements of the Independent Children's Lawyer and the costs of Dr R’s addendum report and attendance at court on the basis that the amount of $2,400 is paid within 28 days and the balance is paid in equal monthly instalments over a period of twelve months.
Pursuant to s.65DA(2) and s.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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7267 of 2011

Ms Shea

Applicant

And

Mr Morgan

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

This case concerns what parenting arrangements should be made for two children aged seven and four years old. The mother suffers from post-traumatic stress disorder which was only diagnosed after the Chapter 15 expert suggested that both parties obtain the assistance of a psychiatrist. I find that the mother’s condition is in large part, but not wholly, due to her experience of the father during the relationship. Whilst there were several acts of physical abuse against the mother that were not serious, the father’s behaviour overall satisfies the definition of family violence under the Family Law Act 1975 (Cth) (“the Act”). The father’s behaviour caused the mother to be fearful that the father would harm both her and the children.

Since 5 March 2012 pursuant to interim orders, the children have only had face to face time with their father at a contact centre for two hours per fortnight. In the past the mother’s symptoms have been debilitating. With regular assistance from her treating psychiatrist and psychologist, the mother’s condition has significantly improved. She currently functions well as a mother and as a professional in a highly demanding job. The mother is the primary financial provider for the children. The mother is fearful that if the father has unsupervised time with the children, both she and the children will be at risk of harm. It is the mother’s case that in those circumstances the extreme symptoms that she previously experienced will re-occur and that she will fall apart and no longer be able to function as a mother or as an employee.
The primary issues that arise in this case are:
3.1.Has there been family violence and if so, what is its history?
3.2.What is the mother’s current mental status?
3.3.What is the father’s current mental status?
3.4.Has the father been responsible for causing the mother’s post-traumatic stress disorder?
3.5.Is there any ongoing “psychopathic and/or pathological attachment” by the father to the mother?
3.6.Is there any unacceptable risk that the father is a physical danger to the mother and/or the children?
3.7.What is the level of risk to the mother’s mental health if unsupervised time is reintroduced and how might those risks be minimised and managed?
3.8.What parenting and other orders are in the best interests of the children?

APPLICATIONS

By way of Amended Initiating Application filed 1 October 2013, the applicant mother sought sole parental responsibility for the children, and that the children live with the mother and spend supervised time with the father on weekends for no more than three hours every seven days. She further sought an order that the father be restrained from approaching within 100 metres of her home. In that application, the mother also sought that she be permitted to take the children overseas for a period of eight weeks per year. The mother’s position was amended during final submissions and a new minute of order (Exhibit 25) was provided. In that minute of order the mother seeks that she have a whole weekend with the children every two calendar months and that the father’s time with the children be suspended for periods of up to four weeks when the children are away from the Sydney metropolitan area. The mother changed her position in relation to telephone communication which she originally proposed would take place on three days a week. Her final position was that there be no order for the children to have communication with their father (apart from supervised face to face time) until 1 January 2020. Her change of position in relation to telephone communication extends to periods of time when the mother and children are outside Australia. The mother offers a form of security for her return to Australia with the children after overseas holidays, and seeks that the children be removed from the airport watch list. Other orders are sought about provision of information about the children between the parties, with the mother requesting that that communication be by email to a designated email address except in the case of an emergency. For the first time the mother also sets out an alternative proposal in the event that the court determined that the father’s time with the children be unsupervised. If unsupervised time is to be ordered, the mother seeks that that order be an interim order. Her proposal is that for the first six months, nothing change and the current supervision remain. Thereafter the mother proposes that the father have unsupervised time every Sunday from 9.00 am to 5.00 pm (again with the mother having a weekend with the children every two months and the ability to take the children away for up to four weeks). The mother’s orders also provide for changeover to take place at Catholic Care at Suburb Y or if that venue is not available, Interrelate at Suburb X, or if that venue is not available, at a place to be agreed upon between the parties. The mother proposes that any unsupervised time that the father has with the children be subject to him engaging in psychiatric assessment and any treatment recommended for a period not less than six months; for the father to be involved in regular family therapy sessions with the children with a psychologist no less than every month for a minimum period of six months (with the father’s partner involved if she wishes to attend). The mother seeks that the father be responsible for the costs of the contact centre. The text of the final form of the mother’s application is set out in full in Schedule 1.
By way of further Amended Response filed 13 August 2014, the father sought an order for equal shared parental responsibility. He sought orders that the children live with him on alternate weekends from Friday after school or preschool until 7.00 pm Sunday in one week, and overnight Tuesday and Wednesday nights in the following week until both children commence school in 2015 (four nights a fortnight). From the commencement of term 1 2015 and for the remainder of the 2015 school year, the father proposed a five nights a fortnight regime. The father proposed that the children live with him on an equal time basis from January 2016. The father sought other orders in relation to Christmas, Easter and special days, telephone communication, and orders aimed at allowing him to have access to medical and educational information about the children. The father resisted any order that the mother be allowed to travel overseas with the children, sought an order that they be placed on the watchlist, and that one of the children’s passports be held by each of the parties’ solicitors.
At the commencement of the hearing, the father filed a case outline which replicated the orders sought in his further Amended Response but contained the following addition at the commencement of the orders sought:
The Amended Response was filed prior to the filing and service of the Mother’s affidavit sworn 18 August 2014 and identification by the Mother of symptoms anxiety at paragraph [34].
If the Court finds that the children are exposed to a risk of physical or psychological harm as a result of the Mother’s condition, the Father seeks that following a period of adjustment, the Children live with him and spend time with the Mother.
If the Court does not find that the children are exposed to a risk of physical or psychological harm as a result of the Mother’s condition, the Father seeks the following orders as set out in the Further Amended Response to the Amended Initiating Application filed 13 August 2014:
During final submissions, the father indicated that he abandoned any application seeking that, following a period of adjustment, the children ordinarily live with him and spend time with the mother. Also during final submissions, the father added to and further amended the orders that he sought. The father by way of “short minutes of additional orders” (Exhibit 27) changed his position in relation to holiday time and instead seeks an order that upon either party having holiday time with the children pursuant to the orders, the parties be permitted to travel overseas with the children for a period not exceeding three weeks during school holidays. There are additional orders sought requiring notice of intention to travel and itineraries and an order that seemed to be designed to restrict a party travelling with the children overseas more than once every two years. The father seeks that upon the children’s return, makeup time be provided as soon as reasonably practicable. The father seeks that during overseas time, skype/face time contact take place twice a week with those arrangements to be made by email. The father seeks an order that the parties be limited to communication with each other by email unless there is an emergency and that all communication between the parties be limited to matters regarding the children. Towards the end of the father’s final submissions, the father indicated that he wished to amend the schedule of unsupervised time that he proposed for the children (which amendment is contained in Exhibit 29). The father proposes as follows:
7.1.Until end of term 2 2015, every Sunday from 10am to 5pm;
7.2.From end of term 2 2015 until end of term 3 2015, from 5pm Saturday to 5pm Sunday;
7.3.From end of term 3 2015 until the commencement of term 1 2016 from 5pm Friday to 5pm Sunday each alternate weekend;
7.4.From the commencement of term 1 2016 from after school on Friday to the commencement of school on Monday every alternate weekend (Tuesday if Monday is a public holiday);
7.5.From the commencement of term 3 2016, one half of all school holidays.
The father’s proposal as set out in Exhibit 29 was said to replace the orders for time that the father had previously sought. There is an inconsistency between order 3 as sought in the father’s case outline and what is in Exhibit 29. Whilst counsel for the father did not explicitly indicate that the father was abandoning an application for the father to have equal time, it would seem that that is the effect of Exhibit 29. Exhibit 29 was prepared by the father’s lawyer at the bar table when, during final submissions, I requested some clarification as to precisely what time the father was now seeking. I observed the father’s lawyer consult with the father in relation to that document before it became an Exhibit. In the event the father did not intend to abandon his application for equal time, it is of no relevance given that I shall otherwise find that it is not in the children’s best interest nor is it reasonably practicable for the children to have equal time with their father.
The orders sought by the Independent Children's Lawyer were not known until the commencement of final submissions. The Independent Children's Lawyer seeks an order for sole parental responsibility in the mother’s favour with a condition that the mother inform the father of her intended decision and to consider any response provided. The Independent Children's Lawyer proposes that the children live with the mother and made different applications depending on whether or not the court found that an unacceptable risk existed for the children in the unsupervised care of their father. If there is no unacceptable risk, the Independent Children's Lawyer seeks the introduction of a graduated regime of unsupervised time; initially each Sunday in the presence of the father’s partner; then from the commencement of third term 2015, each alternate Saturday from 5.00 pm to 5.00 pm Sunday and from the commencement of the 2016 school year, each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday. The Independent Children's Lawyer proposes that the children see their father each alternate Christmas Day from 10.00 am to 5.00 pm and that an order be made so that the children are with their mother on Mother’s Day and with their father on Father’s Day. Changeover is to be at Interrelate contact centre at Suburb X and could alternatively be carried out by the father’s partner. Christmas Day contact is proposed to take place in a public place. In the event that the court found an unacceptable risk existed for the children in unsupervised care, the Independent Children's Lawyer proposes long term supervised time facilitated by a contact centre or a private supervision service. There is to be no specific order in relation to telephone calls but rather the Independent Children’s Lawyer seeks the mother facilitate telephone calls between the children when requested by the children. The Independent Children's Lawyer seeks a non-denigration order and a restraint on the father contacting the mother except by way of email in relation to the children. Unsupervised time is to be conditional upon the father attending upon a treating psychiatrist on no less than four occasions and providing evidence to the mother’s solicitors that that has happened. It was also envisaged that family therapy take place. The Independent Children's Lawyer’s minute of order (Exhibit 25) nominates the child V’s current treating therapist, Ms W, but as was made clear during discussions during submissions, it would be up to Ms W as to whether or not she took on that assignment and if she chose not to, a mechanism needed to be in place for an alternate therapist to be selected. The Independent Children's Lawyer seeks costs orders against both parents.
As will be plain, there were some significant changes to the position of the parties during final submissions with some orders being sought that were not the focus of any evidence during the hearing. Having said that, none of the parties’ proposals nor the proposal of the Independent Children's Lawyer came as any significant surprise. What was presented was a crystallisation of each party’s position and the position of the Independent Children's Lawyer after hearing all the evidence.

DOCUMENTS RELIED UPON

The documents relied upon by the parties and the Independent Children's Lawyer are set out in Schedule 2.

SHORT HISTORY

The father was born overseas in 1971 and is currently 41 years of age.
The mother was born overseas in 1975 and is currently 38 years of age.
The parties commenced cohabitation in April 2005.
The parties’ first child V was born in 2007 and is currently aged seven years old.
The parties’ second child S was born in 2010 and is currently aged four years old.
The parties separated on 4 May 2011.

CREDIT

Mother

The mother presented as an intelligent person. For the most part, she did not show any particular signs of emotional stress during a long cross examination which took all of the first day (with counsel for the father). She seemed to answer questions in a thoughtful and straightforward manner and made appropriate concessions at all times. That is not to say her views of certain situations are always to be taken as reasonable views, but I accept that the mother was genuinely expressing how she perceived the events about which she was asked questions. The only topics about which the mother gave less than satisfactory evidence were about her failure to fulfil her obligations to organise electronic communication between the children and the father when the mother last went overseas and why it was that on occasions she parked her car close to the father’s residence when catching a train from Suburb M station.

Father

Whilst the father generally appeared to respond to questions in a frank way, there were parts of his evidence in respect of which I formed the impression he was being less than candid. These times normally were on occasions where in my view the father was attempting to avoid providing an answer which he perceived might damage his case.
The best example of that happening was the answers he gave when confronted with notes from the child contact centre which recorded that he had said certain things to the children that clearly did not assist his case. Even acknowledging that the record of the child contact centre was made in circumstances where the person making the note had a duty to observe and report any inappropriate behaviour, he was unable to accept that he had said things that had been recorded in the notes as statements made by him. On one occasion he suggested that the child S had used certain words attributed to him in the notes, where that could not possibly be the case given the context in which the statement appears in the contact centre’s notes. On many of the occasions the father conceded something was “possible” without conceding that it had actually happened and he would often do this in face of the content of a document created by an objective observer.
Whilst the father denied much of what the mother alleged against him during the time the parties were together, the second paragraph of Exhibit 9 and the father’s evidence flowing from questions about that paragraph would indicate that the father was minimising the extent of his anger and his behaviour generally whilst in the household with the mother.
The father’s behaviour in relation to attempting to have criminal charges laid against the mother for withdrawal of funds from the child V’s bank account also does him no credit.
Whilst a local Magistrate formed the view that the father’s interaction with the mother on 20 November 2012, when both parents were travelling in a train to the city from Suburb M station was coincidental, I have formed a different view. The father gave evidence that he was unaware that the mother took a photograph of him as he was getting on the train at M station. That photograph is in evidence. The mother gave evidence that the father stood near her and was directly looking at her prior to her taking that photograph. I do not accept the father’s evidence that he was unaware that the mother took that photograph. The father was employed in the military and is a trained police officer. He did not give any evidence that there was any difficulty with his sight or peripheral vision. I do not accept his evidence that the mother could take the photograph that she took with a mobile phone, in the circumstances in which she did, and for him not be aware of it. The father also was not able to adequately explain why he followed the mother when she got off the train at one station when the more convenient station for him to alight was the next. I overall did not accept that the father was telling me the truth about him being unaware of the mother’s presence at M station on that day.

Conclusion in relation to the mother and father’s credit

I take into account that the mother’s perception of some events might be affected by her hyper-sensitivity to the father’s behaviour. Nonetheless, I formed the view that the mother was attempting to provide an accurate version of what she had experienced. I did not have the same confidence in the father’s evidence. Where the evidence of the parents is directly in conflict, I prefer the version of the mother unless there is other objective evidence or the version of the mother is inherently unlikely.

Ms H

The father’s partner, Ms H, gave evidence in a relatively straightforward manner. She obviously empathised deeply with the father’s position and thought that it was inappropriate that the children had not had the opportunity of developing a relationship with their father in usual circumstances. She did, I thought somewhat unfortunately, indicate that she would like the father to seek a change of residence because of all the claims she had heard. She said that she observed lots of instability (the children wearing mismatched socks and having unkempt hair). She asserted that she believed the children would be better served in her household with a calm environment, less incidents and that she believed she could “cater for their wellbeing and guide them with what they require.”
Ms H easily volunteered the fact that the father on two occasions laid on a bed in a foetal position when he was depressed or withdrawn. She could not have imagined that that would have assisted his case and it was to her credit that she was prepared to give that information. I generally accept Ms H’s evidence.

The experts

Dr U gave evidence in a very straightforward way. As the mother’s treating psychiatrist, he said the mother is more capable of dealing with an outcome of unsupervised time than she believes she is. Dr U gave evidence in a very straightforward way and did not in any way seem partisan, notwithstanding the longstanding professional relationship he had with the mother.
Dr R was cross examined for over four hours. She gave consistent and very useful evidence.

DETAILED CHRONOLOGY

The father was born overseas in 1971 and is currently 41 years of age.

The mother was born overseas in 1975 and is currently 38 years of age.
The mother came to Australia in 2000.
The parties first met in 2003 and travelled overseas together in 2004.
The mother became an Australian citizen in March 2004.
The parties commenced cohabitation in April 2005 in an apartment in Suburb L which the mother had purchased prior to the commencement of the relationship.
The child V was born in 2007 and is currently aged seven years old. The mother worked in paid employment up until the week of V’s birth. The father resigned from his employment two weeks prior to V’s birth.
Shortly after V’s birth, the child was crying in the early evening. When the mother asked the father to settle her, she heard loud bangs against the wall repeatedly and the child’s cries became louder. When the mother went into the child’s room the father seemed angry and left. The father denies this incident. This incident is discussed below.
In or about June 2007 the mother told the father that V was unwell and asked the father to take her to the doctor. The father told the mother “you have post natal depression. It is you who needs a doctor.”
In 2007 the father joined the Australian Defence Force Reserves. The mother says the father did not work full time from May 2007 until June 2008, and when he was working he left the home prior to 7.00 am. The father often stayed overnight at the defence force base rather than retuning home.
In October 2007 the parties and the child V holidayed in Malaysia.
In November 2007 the mother and V want on a holiday to Ireland. The father joined them in December 2008. The parties returned to Australia in February 2008.
The mother returned to work from maternity leave in February 2008.
In March 2008 the parties and V travelled to New Zealand to visit the father’s family.
In or about mid 2008 the child V commenced to attend long day care. The father rarely cared for V on his own and often attended Reserve training days.
In mid 2007 the mother commenced a new job working three days per week and the father joined the Australian Defence Force on a full time basis on a one year contract. Between late 2008 and March 2009 the father was deployed overseas with the Australian Defence Force.
The mother returned to Ireland with V for a holiday in December 2008.
In March 2009 the father returned to Australia on reserve duty and continued to, at times, stay overnight at the defence force base. The father was injured in mid 2009 and did not seek work for the rest of the year.
In December 2009 the parties purchased the former family home at Suburb M. The mother was heavily pregnant with the child S. The parties immediately moved into this home and the mother commenced maternity leave. (The mother continues to reside with the children at this home).
In or about 2009 the mother claims the father told the child V that the mother was not good around the house and had not cleaned up some crumbs for two days.
The child S was born in 2010 and is currently aged four years old. S was unwell for periods during her first year.
In or about 2010 the mother claims that the father pushed her hard enough to make her step backwards.
In early January 2010 the mother was attending to V in the bathroom. The father woke up and yelled at the mother and V “close the fucking door.”
From January 2010 until August 2010 the father attended the NSW Police College at Goulburn. He was away from the family home each Sunday to Friday night, and during some weeks he was away for a longer period of time.
In April 2010 the mother says the father became frustrated by V’s screaming and pulled off the child gate in her room and threw it against the wall. This is discussed further below.
The mother became unwell in June 2010 and a neighbour took the child S into her home as she was concerned for the mother’s health. Thereafter the mother arranged for a night nanny to care for S on some nights so the mother could sleep. The father refused to care for the children at night.
In August 2010 the mother’s niece came from Ireland to help the mother with the children.
In September 2010 the mother returned to work two days per week.
From September until December 2010 the father was required to go to Goulburn to complete final subject for the Police Service. He was away one night per week. The father failed an exam at the Police College.
An incident occurred in September 2010 where the mother says the father locked the child V in a dark room for “time out”. This is outlined below.
On 24 September 2010 the father told the mother he was not capable of getting up to the children at night, and when the mother asked him whether he meant mentally or physically, he said both.
In October 2010 the mother says the father pushed her with his shoulder.
In December 2010 an incident occurred where the father kicked out the back door screen. The father threw the door into the garden from the balcony when V was in the garden. The mother did not find out that V was in the proximity of where the door was thrown until May 2011. This is discussed in further detail below.
On 30 December 2010 the father yelled at the child S to “shut up”. This is discussed below.
Throughout 2011 the mother claims the father would criticise her driving and parking, and the child V would copy the father and tell the mother she needed to listen to the father. The father says he recalls asking the mother on numerous occasions to park the car further into the carport.
Also in 2011 the mother says she found pictures of V playing with her genitals naked in the kitchen. This is referred to below.
Between January and March 2011 the children were cared for by a nanny and a long day care centre as the mother returned to work two days per week. Around this time the father commenced work with the NSW Police as a probationary constable.
In February 2011 the father fell asleep when he was meant to be watching the children and the mother found S playing with power points over the sink. The father admits this happened but says the power switches were fitted with child protectors.
In the first quarter of 2011 the mother describes an incident where the children were at home with the father whilst the mother went out during the morning. When the mother returned home S was crying and screaming loudly. The father was seated next to her on the bed and was ignoring her. The mother asked what had happened and the father ignored her. He picked up the child and gave her to the mother. The child had burnt her hand by touching a lamp. The father did not assist the mother in caring for the child S.
In March 2011 the father punched the wall. This is outlined in more detail below.
Also in March 2011 the child V told the mother she was playing a smacking game with a friend at school. The mother asked the father if he had been smacking V and he said only when they were playing.
On 28 March 2011 the mother says she noticed a change in the child V’s behaviour; she appeared to have lost enthusiasm for activities she usually enjoyed. The mother says that V would not come for walks with the mother, go to the shops, sit with the mother and S for meals and did not want to get dressed in the morning. Also in March 2011 the mother contends V said to her “daddy gets angry, way too angry”. V also told the mother about a time when the father smacked her at the pool. The father says he did do this but not hard because V was starting to carry on and would not get dressed.
In April 2011 the father cared for the children one or two days per week. The mother says she agreed to this as the father had been attending upon a psychologist.
On 27 April 2011 the mother went to a 6.00 am boxing class. She left S sleeping next to the father. When the mother returned she found both the children in the front room and says they seemed subdued. The father was angry and when she asked him what had happened he told her “[S] fell out of bed because you got up and has scratches on her face, a bump on her head and a black eye.” The father claims that S must have rolled out of the bed and denies the conversation and that S had any marks, scratches or bumps. The mother was so shocked and concerned that she fell to her knees on the floor. She says that S only had some old minor scratches. She also told the father the scratches were old but he did not reply and left for a trip to a rural location without saying goodbye.
The parties separated on 4 May 2011. After separation the mother says she observed the father come to the family home without telling her. She says she found this stressful.
In May 2011 the father was lying on the bed with the child V and father picked up a wooden bat he kept under the bed and got a cloth and dusted it slowly in front of the mother and V. This incident is further outlined below.
A few occasions occurred in 2011 when the father would come to the mother’s house unannounced with a knife in his pocket. The father claims he would come straight from work and he had a knife in his pocket at all times. These incidents are detailed below.
In June 2011 the mother came home and father was in her backyard without her knowledge or approval and was chopping wood with an axe. The father says he and the mother arranged for him to go to the house in the morning and she wasn’t home so he went to the backyard and mowed the lawns, swept the yard and chopped firewood. This is later discussed in more detail.
In August 2011 the father commenced a relationship with his current partner Ms H.
The mother found the father’s Machete knife in her bedroom wardrobe on 7 September 2011. This is referred to further below.
Upon an application sought by the mother for her protection by the New South Wales Police, an Apprehended Domestic Violence Order (“ADVO”) was issued on an interim basis from a Local Court on 5 October 2011. The father consented to this order on a no admission basis.
In October 2011 the mother withdrew the children from the day care centre where the father would often attend to see the children. She says this was because the father would not comply with the agreement for him to see the children that was reached at mediation on 31 August 2011. She asserts the father was telephoning the children at day care and would leave presents for the mother and children at the day care centre. The mother says that between May and September 2011 she observed the children frequently showing signs of emotional distress and V was regressing to baby habits in her speech. She also became aggressive.
Also in October 2011 the mother found a flick knife she asserts to be the father’s. This is discussed later.
On 1 November 2011 the mother took the child V to see a psychologist.
On 16 November 2011 the parties agreed at the Local Court for the children to spend time with the father supervised by Dial an Angel.
Towards the end of 2011 the mother says there were numerous incidents where the father contacted the parties’ neighbour to ask about the mother and children. In December 2011 the father arranged for one of the neighbours to bring the children gifts. The mother refused to take the gifts.
On 15 December 2011 and again on 26 January 2012 the father spent time with the children supervised by Dial an Angel.
On 14 February 2012 a further ADVO was made by consent at the Local Court for a period of nine months. The parties also agreed that the father could see the children weekly supervised by Dial an Angel. In or about October 2012 an application for an extension of the ADVO was made by the Police and granted upon an interim basis but after a hearing on 18 March 2013 that application was not granted.
Interim parenting orders were made by the then Federal Magistrates Court on 5 March 2012. Orders were made for the children to spend supervised time with the father.
On 23 March 2012 the child V said to her mother, “Daddy said to me, ‘who was mummy sleeping with?’”.
The father first spent time with the children at the contact centre on 27 May 2012. This has continued on a fortnightly basis since that time.
In or about May 2012 the mother became aware the father had moved close to the family home in Suburb M. This made the mother fearful of going out in her local area. The mother stopped running locally and stopped going to the local shopping village. The father moved out of Suburb M in August 2013.
In Mid 2012 when the mother put V to bed one night, the child called the mother into her bedroom and said “It wasn’t my fault you know” and when asked by the mother what wasn’t her fault, the child said “it wasn’t my fault when Daddy got angry and broke the door.”
On 13 July 2012 the father sent the mother and children chocolates and a letter.
Final property orders were made by the then Federal Magistrates Court on 10 August 2012. The mother retained the Suburb M property.
On 11 August 2012 the mother received a bunch of flowers and a teddy bear from the father for V. The father says he sent this because V had the chicken pox. The mother made a report to the Police relating to this.
On 21 August 2012 an incident occurred where the mother says that the father followed her and stopped very closely to her at a pedestrian crossing in Suburb M. This is discussed below.
On 24 September 2012 the mother indicated she would seek to relocate to Ireland. She says she was feeling stressed and anxious and was worried about a lump that had formed in V’s cheek. The father was concerned the mother would not return from Ireland. The father claimed the mother might take the children “underground” because of her families’ connection with the IRA. The mother said this was fanciful.
On 20 November 2012 an incident occurred where the mother alleges the father stalked her and followed her on a train to Town Hall station. This is discussed in further detail below.
On 30 November 2012 the then Federal Magistrates Court made consent orders relating to the children travelling with the mother to Ireland in December 2012. Certain conditions were imposed on the mother while she travelled to Ireland.
On 19 December 2012 the mother returned to Ireland with the children for a holiday and returned to Australia on 26 January 2013.
On 20 December 2012 the proceedings were transferred from the then Federal Magistrates Court to the Family Court.
The parties received Dr R’s report dated 7 December 2012.
In or about March 2013 the mother started to seek treatment from Dr U, a psychiatrist. The mother says this arose from a recommendation by Dr R. The mother says that Dr U has helped her to understand her symptoms and become aware of the trauma and ongoing stress on her life.
On 18 March 2013 the mother was a witness in the police’s application to extend the ADVO against the father. The mother was cross examined and during that time was shown photographs taken by the father of the mother’s car parked near his house. Those photos were tendered in these proceedings. The mother says she would park close to the father’s house when there was no other parking in the vicinity of the station and that it was a close walk to the train station. This is further discussed below.
In 2013 the mother arranged for the child V to have support from Ms W, a child and adolescent psychologist. This was a recommendation of Dr R. The child attends upon Ms W every three weeks.
The child V underwent a surgical intervention for a lump on her cheek in March 2012, and on 29 April 2013. The mother had to pay about $4,000 for V’s medical treatment in a private hospital. Later in the year the mother received a cheque refunding $350 that the hospital had overcharged her. The money was repayable to V, although the monies belonged to the mother. This cheque was negotiated by the mother through V’s trust account and the father’s complaint about the mother’s involvement with this account is discussed below.
In May 2013 V told the mother that the father had told her at the contact centre that he would be at the canteen at the child’s school. In or about June 2012 The child’s school contacted the mother about the father volunteering at the canteen.
In or about July 2013 the father and his lawyers contacted the child S’s day care centre with a view to spend time with S at the Centre. The mother did not agree.
On 1 August 2013 the father attended V’s school for an open day. The father was not permitted to enter the classroom and was advised by the teacher and school principal to leave the school, and told the father that the police had been called. The father said he was distressed by this incident.
In or about August 2013 the father commenced to reside with his partner, Ms H, at Suburb C. It was put to the father in cross examination by counsel for the mother (presumably on the instructions of the mother) that the father did not inform the mother that he had moved out of Suburb M until March 2014. Counsel for the mother was asked what evidence he had to support this contention and he indicated that it was only by way of oral exchange between the parties’ solicitors. A letter was later tendered from the father’s solicitor to the mother’s solicitor (Exhibit 21) which is dated 23 December 2013 and notifies the mother’s solicitors that “the father no longer resides in the suburb of [M] or in its immediate vicinity”. It is unclear to me as to whether the error was the mother’s or her lawyer’s.
In September 2012 the child V underwent further procedures relating to her facial malformation.
In October 2013 the mother consented to the father’s partner and her daughter attending to supervised visits with the father to meet the children.
In early December 2013 the father’s solicitors wrote to the mother’s solicitors advising that the contact centre would be closed over the Christmas/New Year period and seeking that the children spend time with the father on Christmas Day and the child S’s birthday, supervised by the father’s partner. The mother did not consent to this.
The father reported the mother for two fraudulent withdrawals of a bank account in V’s name on 30 January 2014. A further report to the police was made by the father in relation to silent calls coming from the mother’s telephone. These complaints are discussed below.
On 27 March 2014 further interim parenting orders were made by this court and the mother was permitted to take the children to Ireland from 26 June 2014 to 24 July 2014.
On 3 May 2014 the children spent time with the father at his home for the first time since separation in May 2011. The father arranged for Dial an Angel to supervise.
On 1 June 2014 the children again spent time with the father at his home supervised by Dial an Angel and this was paid for by the mother.
While the mother and children were in Ireland over June/July 2014 the father’s solicitors wrote to the mother’s solicitors to remind them of the orders for communication. The mother’s compliance with communication orders whilst she was in Ireland is discussed below.
On 14 August 2014 Dr R interviewed the parties and children to update her report.

THE APPROACH IN CHILDREN’S CASES

The objects of Part VII of the Act are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

Section 60CA of the Act provides that when 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 60CC of the Act sets out those matters which a court must consider in determining what is in the child’s best interests.

Definition of family violence

Given the focus in this case on the father’s behaviour and the assertion by the mother that what he has done falls within the definition of family violence under the Act, it is useful to set out the definition in s 4 of the Act in full (as the Act was at the date the mother filed her initiating application):
family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.

FAMILY VIOLENCE

Having discussed the chronology of relevant events, it is useful to discuss aspects of what the mother points to as family violence in more detail.

The ADVO proceedings

The sources of information about the mother’s concerns are contained firstly in a number of police statements that the mother initially gave on 28 September 2011, 30 September 2011 and 21 November 2011. An ex parte interim ADVO order was made on 5 October 2011 and the matter was adjourned until 14 February 2012. On 14 February 2012 an ADVO was made by consent on a without admissions basis for a period of nine months. That order was due to expire on 14 November 2012. Shortly before that time the mother made further statements to police on 13 August 2012, 28 August 2012, and 28 September 2012. On 27 October 2012 the father was served with an Application to vary the ADVO. After making the application to vary and extend the ADVO the mother made another report to police on 20 November 2012. The mother in some of the later statements revisits periods of time that were covered by previous statements and either expands upon what she says happened or raises a new event that she thinks, on reflection, is of relevance. It was suggested to the mother in cross examination that the reason for multiple statements to the police was that the mother was anxious that they take her fears seriously and prosecute the apprehended domestic violence proceedings with vigour. The mother was not prepared to accept that as her motivation. The mother did not accept that she was attempting to put pressure on the police to bring the proceedings but says that the proceedings were initially commenced by the police in consultation with her and then continued by the domestic violence officer in consultation with her. The father successfully defended those proceedings in March 2013. A Local Court Magistrate found that although the mother’s fears were real, they were not reasonable. No further ADVO was made.
The father submits that the multiple statements given by the mother lead to a conclusion that she was simply attempting to buttress her case. I find however, that the multiple statements are more a symptom of the mother’s level of apprehension as opposed to being supportive of a conclusion that she was fabricating actual events.

The father’s behaviour in the household prior to and after the separation

The threat to kill the mother

The grounds for the initial application for the provisional ADVO of 29 September 2011 set out the following:
Sometime in October 2007 while the [father] and [mother] were on holidays in Malaysia the [mother] became sick and was staying in the hotel with her daughter [V]. The [father] returned to the hotel room and became upset in regards to the way the victim had packed his luggage. The [mother] asked the [father] if he could carry their daughter because the victim was afraid that she might drop her as she was sick with a gastro virus. The [father] turned to the [mother] and said very quietly and calmly, “If you ever drop that baby I will kill you”. The [mother] was shocked by the comment from the [the father] as a result she she [sic] sunk to the ground.
The [mother] said “I need you to carry her because I am sick”. The [father] refused to do this so the [mother] carried [the child] from the hotel room to the airport.
Once at the airport the victim had a conversation with a friend about what the [father] had said to her earlier because she was still shocked and hurt. The [mother] handed [the child] to [her friend] and walked over to the [father] and said, “We need to talk about what happened before”. The [father] was talking to a few of their friends and ignored her and continued talking. The [mother] said “[The father’s given name] I am not getting on the plane with you unless you apologise for what you said”. The [father] turned to the [mother] and said “I am sorry for the words but not the intent”.
Counsel for the father put to the mother that the father had apologised for saying that he would kill her. As indicated in the statement, the mother says the father said to her “I am sorry for the words but not for the intent”. In oral evidence the mother stated this was “a very strange apology”. In his affidavit the father says in relation to this incident that the parties were in the process of leaving the hotel room. The mother asked the father if he could carry the child because she was feeling unwell and said she may drop the baby. The father was carrying bags out of the room at the time. The father agrees he said in jest “if you drop her I’ll bloody kill you”. He says he did not say this in a threatening manner and the mother was in the hotel room at the time and the father was outside the room. The father says he did not intend to cause the mother any fear or intimidate her by making that statement. The father seeks to minimise this incident. It is unlikely the father said the words in a non-threatening manner and although I accept it was not a serious threat to kill, it was controlling and menacing behaviour.

Physical contact

There are no significant acts of physical violence by the father against the mother. On a limited number of occasions he has physically pushed her around.
In 2010 the father pushed the mother two or three times hard enough to make her step back. This occurred in front of the children. The father denies this, but I accept the mother’s version.
In October 2010 the mother says that while she and the father were out walking, the father put his arm out from his shoulder and pushed her with it. The mother asked him not to do that and says the father replied “I need to as your situational awareness is low.” The mother observed the child V copying the father’s behaviour. The father denies this and it was not referred to during the hearing. I accept the father pushed the mother on this occasion.

The father holding V’s mouth closed

In her statements to police on 28 September and 30 September 2011 the mother refers to an incident from when the parties were on a holiday in the Blue Mountains in about May 2010. The mother states that some time during the middle of the night the child V started to cry and became unsettled. The mother asked the father to settle the child so he took her into the bathroom. After a few minutes the mother heard the child screaming so she got up and went into the bathroom and saw the father sitting on the edge of the bath with the child on his lap, the child was facing forward away from the father. The mother asserts that one of the father’s hands was covering the child’s mouth and she was still screaming. The mother indicates the father’s hand was not covering the child’s nose and she could breathe. The mother took the child out of the bathroom and to bed with her.
The father indicates that V was having a bit of a tantrum so he took her into the bathroom. The child S was asleep in the other bed and the father says he did not want V to wake S. The father asserts he sat V on his lap and was holding her in his arms. As she was still having a tantrum and he had already told her to be quiet, he gently put a few fingers across her mouth and made a shushing sound saying “shush, be quiet.” The father says he did not do this in a threatening manner and did not cause the child any harm. The mother was not in the bathroom at this time.
I accept the mother’s version of this incident and that the father’s hand was covering V’s mouth.

Punching the walls

In mid-2007 when the father went to settle the child V during the night, the mother claims she heard loud bangs against the wall. The mother went into the room. The father was angry. The father denies this incident but I accept the mother’s version. Another incident like this occurred in March 2011 when the mother heard thumps on the wall. The child V had difficulty sleeping. The father woke up when V got up to use the toilet. The mother asserts the father asked the child was she was doing, and when the child said she was going to the toilet, the mother heard loud thumps on the wall in the bedroom. The mother says the child started screaming and the mother went to comfort her. When the child asked the mother what the noise was, the mother told her “that was daddy punching the wall.” After further conversation the mother says the father said “I did not punch it. I elbowed it.” The mother says after this incident V began to wear nappies at night and if she woke in the night she would scream for the mother. The father denies this occasion but recalls that one occasion when V was up all night that he knocked the wall with his elbow. I accept the mother’s version of what she heard which is not consistent with the father’s explanation.

Father pulling off and throwing the child gate

In April 2010 the father was home for Easter from the Police College. The child V was crying repeatedly one night and the mother said when the father got up to check on the child she heard the child gate in V’s room being pulled off and thrown against the wall in the hall. The child was screaming. The mother says the father shouted at the child “…why are you crying, stop crying you’re keeping everyone awake…”. The father denies this incident but I accept that this happened.

Time out in the dark room

An incident occurred in September 2010 where the mother heard the child V crying and screaming. The father was sitting a few metres from the spare room and the mother opened the spare room door which was locked and let the child out of the room. The child said “Daddy locked me in the dark. I was very scared.” The father says he did not realise the room was dark. The father claims that both the mother and he used the spare room as a time out for the child. The father says on this occasion the child was only in the room for about 5-10 seconds, that the door was not locked and that it was he who let her out. The mother does not dispute the amount of time the child spent in the room.

The broken screen door

In December 2010 the mother returned home from work and an agitated V met her at the front door and told her that “Daddy broke the door”. The mother says that S was sitting on the couch very quietly and not moving; the father was under the dining table with a small brush and dust pan sweeping. The mother contends the father told her that “[V] was in the garden below and [S] was on the rug. I was trying to fit a hinge to the balcony gate and [S] wanted to be picked up.” The mother also asserts the father told her “every parent cracks it”. V said she was scared and the mother told her “Daddy should have had a time out” and the mother indicated to the father that he should apologise to the children. The father then said sorry to the girls and the mother says she told him to go for a walk. The mother asserts that she later noticed a chunk missing out of the balcony balustrade across from where the screen door was, and pieces of metal and plastic from the door below in the garden.
The mother says that it was only during couples counselling in May 2011 that she became aware that the father actually threw the door into the garden from the balcony, and the child V was in the garden.
In his affidavit the father says that shortly after he failed the first two exams at the police college he felt depressed and felt like a failure. He was trying to put a self-closing latch on the gate from the balcony to the steps that lead into the back garden. The father says V was in the back garden and he placed S inside as she was grabbing the tools. The father tried to slide open the flyscreen but it had jumped off the track. The father says he broke down in tears and kicked out the flyscreen at the back of the house and threw it into the deck, V started crying and said “what are you doing daddy”.
The father deposes that although he did break the screen door, afterwards he gave the girls a big cuddle and said to them “daddy was naughty breaking the flyscreen. It’s okay, daddy’s not angry with you”. He says he then called the mother to tell her what happened and that she laughed. The father also states that he fixed the flyscreen the same day.
I find that it is highly improbable that the mother laughed at what happened. The mother says that after this incident she stopped working and did not allow the children to be left alone with the father.
In oral evidence the father accepted he broke the screen door. He said he was not angry (which I do not accept), but frustrated and upset and felt a lot of strain and pressure following failing his exams. The father accepted V got scared but he would not accept that he refused to discuss the issue with the mother.
In her oral evidence Dr R commented that although the father’s behaviour was unacceptable, it was commendable that the father acknowledged that he had gotten angry, kicked through the screen door and scared V, and when he saw that V was scared he recognised that he had upset her and he consoled her. Dr R opined that it is important that when a parent breaks the connection with a child that they apologise and repair it.

The child S left alone

On 17 February 2011 the mother says she took a nap as she was feeling unwell. The father agreed to mind the children while the mother had a rest. After about ten minutes the mother says she heard a clicking sound and found S standing on a high chair playing with power points at the sink in the bathroom. The father had fallen asleep in the children’s room. The mother asserts the father told her in a subsequent conversation that he could not care for the children the day before, during or after a night shift and he fell asleep by accident. The father says that the power switch was not above the sink, and that all the plugs in the house were fitted with child protectors. The father denies the words attributed to him and says that he apologised and didn’t mean to fall asleep. I am unable to find that S was in any actual danger from the power switches. The father falling asleep whilst he was supposed to be caring for S is however consistent with the sleep disturbance the father was suffering at that time.

The bat

At [167] of the mother’s affidavit filed 30 September 2013, the mother gives the following evidence:
167. After the outing …, [the father] came to the house arriving just after I arrived with the girls. He lay down on our bed. [V] lay down beside him. [S] was at that time asleep in her room. I went and lay down as I was concerned to leave [V] alone with [the father].
I said “Please get up”, a few times.
After a while [the father] got up and sat on the side of the bed. [The father] picked up a wooden bat he kept under the bed. I observed that he went to wardrobe [sic] and got a cloth. He walked to the side of the bed that [V] and I were on. I sat there and pulled [V] onto my lap. [The father] dusted the bat off slowly in front of me and [V]. The bat had been under the bed as long we [sic] had lived there and I had never seen him dust it before. He then put it back under the bed. I was frightened. When he left I put the bat in the back of the wardrobe. I took a photograph of the bat.
A photograph of the bat is annexed as Exhibit X to the mother’s September 2013 affidavit.
It was put to the mother in cross examination that she had not said in her original police statements that she was frightened by this incident. In the mother’s statement to the police on 30 September 2011 at page 6, paragraph [28], the mother says:
[The father] didn’t threaten me or the children with it but I just thought it was [sic] very strange thing to do. I didn’t say or do anything at the time because [V] was in the room, and I know not to react to [the father] when the kids are around in case he did some thing to harm them.
The fact that the mother in her police statement did not say she was frightened is of no real moment. The mother was relating factual incidents to the police in the context of her having a fear of the father’s conduct.
In his affidavit the father denies this incident ever happened or took place. This incident was not put to the father in oral evidence.
On balance I accept that this incident did take place. In the father’s hands this implement could be a very dangerous weapon. I accept that what the father did was designed to produce fear in the mother.

Knives and a machete

On 24 May 2011 the father came to the family home when the mother was putting the children to bed. The mother says the father was wearing his police uniform and was carrying a knife in his pocket. The father claims that he came straight from work to see the children and had a knife in his uniform pocket at all times.
On 27 May 2011 the father again came to the family home in his police uniform again with a knife in his pocket.
The mother felt a further sense of apprehension by the father in relation to the knife as a result of her seeing photographs from the child’s day care centre where it is clear to the mother that the father had a knife in his pocket whilst at the day care centre.
The father says in his affidavit that during the time the parties’ relationship was still cordial, he would come to the house to put the kids to bed. The father says he would always announce his presence when he opened the door and the children would come out to see him. On one occasion the child V asked about “the thing in [the father’s] pocket” and the father told her “it’s daddy’s work knife.” It is the father’s case that only the end of the knife without the clip could be seen and the father had worn it as part of his uniform since before separation.
In oral evidence the mother related a time when the father came into the home and had a knife in his pocket and was emotional and was tearful and they sat down on the floor near the front entrance to the property and then he went into the children’s bedroom and wept. I accept the mother would have reasonably felt apprehensive in circumstances where the father entered her house in a distressed and labile state with a knife obviously in his possession. It was put to the mother in cross examination that the father carried this knife as part of his police equipment as a “tool” to be able to extricate people trapped by seatbelts in motor vehicles and the like. The mother says that the father told her that he brought the knife on the internet and it was not a police issued knife at all. There is a subsequent email from the mother asking him not to bring the knife to the house and the father agreeing to that.
On 7 September 2011 the mother, whilst cleaning out a wardrobe in her room, found a large machete under some sheets and towels. It is a wicked looking item. The father contends that he bought the machete in 2003. He says he did not know where it was stored or unpacked when the parties moved to Suburb M.

Dr R recommended that the father be able to go to major school events like sports carnivals, end of year concerts and the like. The father wanted to get involved at canteen at the children’s school, the mother opposed that happening. The mother is still resistant to the father attending any school functions at which she would otherwise be present. I agree with Dr R’s opinion that in the context of a school carnival or an end of school event and in circumstances where an order is to be made that the father not approach the mother at those events, I do not see any reason why the order as proposed by Dr R should not be made.
The father wished to attend the children’s school on other occasions, for example he wished to become involved in canteen duty. The mother’s current mental status is such that the father’s random attendance at school or even on a scheduled regular basis (where he would expect to have unscheduled interaction with the children) would be a source of significant anxiety to the mother and at this time an order should be made to prevent the father becoming involved with the children’s school in that way.
The mother agreed to orders being made in the terms of paragraphs 16.1, 16.2, 18, 19 and 20 of the father’s case outline document.
The mother initially sought that she be able to travel overseas up to eight weeks a year. The father initially opposed any overseas travel. In his discussions with Dr R in 2012, the father indicated that he was suspicious that the mother would not return from her planned visit with the children to Ireland in Christmas 2012. The father told Dr R that the mother’s father used to be a leading member in the IRA in the 1950s and he thought it would not be difficult for her and the children to disappear in Ireland. The mother has subsequently been on two overseas trips to Ireland and has returned with the children to Australia.
The mother’s position during final submissions (Exhibit 25) was that she wished to be able to travel overseas with the children for a period of four weeks per year. The father’s amended position (Exhibit 27) is that he wished the ability for both parties to be able to have overseas holiday time for a period not exceeding three weeks a year each and for overseas travel to be in alternate years.
Given what I have already said about holiday time, it is not appropriate to make an order in the father’s favour in relation to overseas holiday time. The father has previously consented, on an interim basis, to the mother being away overseas for four weeks and given the rigors involved in flying from the east coast of Australia to Ireland, a four week period is an appropriate outer limit to place on such trips. The mother agrees to providing details of proposed itinerary including dates of travel within 14 days of her making the booking and receiving the itinerary. The mother proposes telephone communication on one occasion per week. Consistently with the other order that I have made, that communication should be by skype. Given the problems that have already existed in relation to overseas communication, it would be appropriate that the communication take place at a time on a Wednesday in Ireland which has better prospects of success. The mother suggested evenings, but 7.00 pm in Ireland is 4.00 am in Sydney during our winter (August) and 6.00 am during our summer (January). It might be best if the time is set before the children depart for the day (7.30am in Ireland will be 4.30pm Sydney during our winter and 6.30pm during our summer).
The father should sign passports.
The mother submitted that she was not a flight risk, but nonetheless agreed to provide a form of security. On two prior occasions that security has been provided in the form of a signed transfer in relation to her residential property in Australia which was held by the father’s solicitors whilst she was away. It seemed agreed that a more appropriate long term order would be for the mother’s lawyers to hold a signed transfer in relation to her home and inform the father from time to time that that transfer was being held with an obligation on those solicitors which they would acknowledge in the letter to the father prior to each occasion the mother is to leave the country with the children, that they would deliver the transfer to the father in the event the mother failed to return to Australia at the time indicated in her itinerary. An order will be made in that form. The obligation to provide a signed transfer to the father, when that obligation arises, shall create a caveatable interest in land.
There was an issue as to whether or not the current watch list order should remain in place. The Independent Children's Lawyer submitted that it was unnecessary. The mother made the same submission. The father wished it to remain in place. The mother previously proposed that she permanently relocate to Ireland. The mother subsequently abandoned that application. The mother’s reaction to the implementation of these orders is currently unknown. Whilst counsel for the mother did not flesh out his submissions as to why the mother was not to be considered in any way a flight risk, one could point to the fact that she has a secure and satisfying job in which she is fully employed in Australia; and she has property in Australia. It is also to be noted that Ireland is a signatory to the Abduction Convention. Against that, the mother has no family in Australia, although her evidence is that she has in recent times developed a group of approximately ten close friends in Australia. The mother obviously gained some solace and strength from her interaction with her extended family in Ireland on the two trips that she has taken whilst these proceedings have been pending.
Given that an order will be made that she is allowed to leave the country for four weeks every year, the mother will have the ability to travel back to Ireland to enable her to have regular face to face time with her family. The mother submitted that leaving the watch list order in place but suspending it to allow her to travel creates an administrative burden on the mother to satisfy certain requirements at the international terminal when she is leaving. I have no evidence as to how onerous that difficulty would be for the mother.
On balance, I find the mother is not a flight risk. There is however virtue in the mother not simply being able to leave the country without letting the father know and as some insurance against the possibility she would leave the country without properly fulfilling her obligations under these orders to inform the father of her intention to do so, I shall make an order that the father simply hold one of the children’s passports which he is to deliver up to the mother 14 days before she is due to leave and which the mother should return to the father after her return to Australia.
The orders proposed by the Independent Children's Lawyer that both parties be restrained from denigrating the other and that the father be restrained from contacting the mother by any means whatsoever or causing her to be contacted on his behalf except by email, are appropriate orders. Both parties agreed that email communication was the preferable method for them to communicate when that is necessary. It is also appropriate to make the orders sought by the mother that the father be restrained from approaching within 100 metres of the mother’s home. The father raised the concern that this would restrict him from attending S’s preschool. Given my findings in relation to events in 2012 and the mother’s apprehension arising from those events, it is appropriate to make an order that the father not come within 100 metres of the mother’s residence on an unrestricted basis. S will only be going to preschool for the rest of this year. This order might mean the father misses out on an end of year event for S but on balance it is better to make the prohibition absolute.
The mother sought an order that the father provide notice of any changed living arrangements in his household including whether a friend, relative, partner, tenant or any other person commences to reside at his property. The mother did not address why that order should be made but it flows from the findings that I have otherwise made about her vulnerabilities and I will make an order in those terms.
The mother sought orders in the terms of paragraphs 9 and 10 of Exhibit 25. Order 9 need not be made as it is covered by an order otherwise made by consent (order 17). In relation to order 10 as sought, it is appropriate to make that order but there is no need to limit it to emergencies.
The issue arises as to who will pay the costs of child contact centres and the cost of therapy. The mother’s position is the father should bear all the costs associated with contact centre and therapy. Based upon the little I know about the parties’ financial circumstances, I find it is appropriate that the parties equally pay one half of the costs of the contact centre and one half of the costs of the family therapy. The father should pay the costs of his own therapy and the mother pay the costs of her own therapy.

INDEPENDENT CHILDREN'S LAWYER’S COSTS

The Independent Children's Lawyer sought costs orders against both parties. Part of Exhibit 26 is a cost notice for the provision of the Independent Children's Lawyer as at 22 August 2014. That notice includes Dr R’s costs for the preparation of the addendum report and her attendance at court. The mother consented to the immediate payment of the orders sought against her. The father sought some terms in relation to the payment sought which were agreed to by the Independent Children's Lawyer. Accordingly, costs orders are made by consent.

I certify that the preceding three hundred and twenty-one (321) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 5 September 2014

Associate:

Date: 5.9.2014

SCHEDULE 1

Orders sought by mother in her case outline document

The Applicant Mother to have sole parental responsibility for the children [V] born … 2007 and [S] born … 2010 (“children”).
The children live with the Mother.
The children spend time with the Father on a supervised basis through:
(a)The children’s contact centre operated by Interrelate at [Suburb X].
(b)The children’s contact centre operated by Catholic Care at [Suburb Y].
(c)Dial an Angel.
(d)At other times as agreed between the parties in writing.
Conditional upon the spend time order in the preceding paragraph:
(a)The frequency shall be no more than every 7 days.
(b)The duration shall be no more than 3 hours.
(c)The spend time shall take place on weekends.
(d)The Father shall be responsible for all costs arising from Dial an Angel.
The children shall have communication with the Father:
(a)Each Tuesday and Thursday evening and each Saturday morning from 8 am.
(b)Such telephone communication shall be initiated by the Mother by ringing the Father’s mobile telephone.
The Father is restrained from approaching within 100 metres of the Mother’s home at [A] Street, [Suburb M].
The Mother is permitted to remove the children from the Commonwealth of Australia for a period of 8 weeks per year:
(a)The Mother will provide details of the proposed itinerary including dates of travel within 14 days of the Mother receiving the itinerary and making any booking.
(b)During the time the children are out of Australia they shall have telephone communication with the Father on 3 occasions per week. The Mother is to initiate the telephone calls by ringing the Father’s mobile telephone.
(c)That within 20 days of any request the Father shall sign all relevant passport application forms presented to him by the Mother.

Orders sought by the mother in final submissions (Exhibit 25)

The Applicant Mother to have sole parental responsibility for the children [V] born … 2007 and [S] born … 2010 (“children”).
The children live with the Mother.
The children spend time with the Father on a supervised basis through:
a.The children’s contact centre operated by Interrelate at [Suburb X].
b.The children’s contact centre operated by Catholic Care at [Suburb Y].
c.Dial an Angel.
d.At other times as agreed between the parties in writing.
Conditional upon the spend time order in the preceding paragraph 3:
a.The frequency shall be no more than every 7 days.
b.The duration shall be no more than 3 hours.
c.The spend time shall take place on weekends, except:
i.The last Sunday of every second calendar months, being February, April etc, and;
ii.any periods of up to 4 weeks, when the children are away from the Sydney Metropolitan area for the purpose of holidays.
d.The Father shall be responsible for all costs arising from Dial an Angel.
That the children shall have communication with the Father:
a.Commencing on 1^st January 2020, each Saturday morning from 9 am.
b.Such telephone communication shall be initiated by the Mother by ringing the Father’s mobile telephone.
It is noted that the Mother will not discourage the children from telephoning their Father at any time.
The Father is restrained from approaching within 100 metres of the Mother’s home at [A] Street, [Suburb M] in the state of New South Wales.
The Mother is permitted to remove the children from the Commonwealth of Australia for a period of 4 weeks per year:
a.The Mother will provide details of the proposed itinerary including dates of travel within 14 days of the Mother receiving the itinerary and making any booking.
b.That commencing on 1^st January 2020, during the time the children are out of Australia they shall have telephone communication with the Father on 1 occasion per week.
i.It is noted that the Mother will not discourage the children from telephoning their Father at any time whilst they are overseas.
c.The Mother is to initiate the telephone calls by ringing the Father’s mobile telephone.
d.That within 20 days of any request, the Father shall sign all relevant passport application forms presented to him by the Mother.
e.In the event the Mother does not return from Ireland with the children that the Father be at liberty to lodge a Caveat with the New South Wales Lands Title Office, of the Mother’s real property at [A] Street, [Suburb M].
f.That the Children be removed from the Airport Watch List.
g.That the Mother retain the children’s passports.
That the parties provide to the other not less than 28 days' written notice of any proposed change to their respective living arrangements, including but not limited to any proposal for a person to commence living in the same residence as the mother or father and the children, whether that person be a friend, relative, partner, tenant or any other person.
That each party notify the other of any serious illness suffered by any of the children (and provide a medical certificate), and immediately it is practicable to do so of any emergency admission to hospital or injury suffered by either child whilst in the care of the other party.
That other than in the event of an emergency, the parties shall communicate with each other in relation to any variation of contact arrangements to the other not less than 48 hours prior to the relevant contact period.
The parties give all consents and authorities to allow the schools of the children to provide to the other parent any school photographs, reports, notices or newsletters specific to the children.
The Mother and Father will communicate by email to a designated email address of the Mother except in the case of an emergency.
That in the alternative to Orders 3 and 4: above, in the event that the Court determines that the Father’s time with the children be unsupervised, until further Order:
a.For the first six months of the interim Order, the children spend time with the Father on a supervised basis through:
i.The children’s contact centre operated by Interrelate at [Suburb X].
ii.The children’s contact centre operated by Catholic Care at [Suburb Y].
iii.Dial an Angel.
iv.At other times as agreed between the parties in writing.
Conditional upon the spend time order in this sub-paragraph 13 (a):
§The frequency shall be no more than every 7 days.
§The duration shall be no more than 3 hours.
§The spend time shall take place on weekends. except:
- last Sunday of every second calendar month being February, April etc., and
- any periods of up to 4 weeks, when the children are away from the Sydney Metropolitan area for the purpose of holidays.
§The Father shall be responsible for all costs arising from Dial an Angel.
b.Thereafter, the children spend time with the Father on an unsupervised basis every Sunday, from 9am until 5pm, except:
- last Sunday of each every second calendar month being February, April, etc., and
- any periods of up to 4 weeks, when the children are away from the Sydney Metropolitan area for the purpose of holidays.
(c) Changeover to take place at either the Catholic Care at [Suburb X] or if that venue is not available, Interrelate at [Suburb Y], or if that venue is not available, at a place agreed between the parties. .
Conditional upon the spend time order in this sub-paragraph 13 (b):
i.The Father shall have engaged in psychiatric assessment and any treatment recommended for a period of no less than 6 months.
ii.There be regularly family therapeutic sessions, with the father and the children with a psychologist, being no less than for every month, for a minimum period of 6 months. It is noted that the father’s partner may wish to attend.
iii.The Father shall be responsible for all costs arising from any of the changeover expenses.

Orders sought by father in his case outline

The Amended Response was filed prior to the filing and service of the Mother’s affidavit sworn 18 August 2014 and identification by the Mother of symptoms anxiety at paragraph [34].

If the Court finds that the children are exposed to a risk of physical or psychological harm as a result of the Mother’s condition, the Father seeks that following a period of adjustment, the Children live with him and spend time with the Mother.

If the Court does not find that the children are exposed to a risk of physical or psychological harm as a result of the Mother’s condition, the Father seeks the following orders as set out in the Further Amended Response to the Amended Initiating Application filed 13 August 2014:

That the parties have equal shared parental responsibility for the children of the relationship, namely [V] born … 2007 and [S] born … 2010 ("the children") including but not limited to:
1.1the current and future education of the children;
1.2the health of the children;
1.3religious and cultural upbringing;
1.4changes to the children’s living arrangements that would make it significantly more difficult for the children to maintain a relationship with the other parent;
1.5any other welfare issue involving the children.

Live with/spend time with

Until the commencement of the school year in January 2016, that the children live with the mother and spend time with the father as follows:
2.1until both children commence school in 2015:
2.1.1from after school or day care or preschool on Friday to 7 pm on Sunday every alternate weekend; and
2.1.2every Tuesday, with [S] from 8 am to 6 pm and with [V] from after school to 6 pm;
2.2from commencement of Term 1 2015 and for the remainder of the 2015 school year:
2.2.1on the first weekend after the commencement of term 1 (week 1) and every alternate week thereafter, from Friday after school to the commencement of school on Monday or Tuesday if Monday is a public holiday or pupil free day; and
2.2.2in the following week (week 2) and every alternate week thereafter, from after school on Tuesday to commencement of school on Thursday.
2.2.3such fortnightly sequence to recommence upon the start of each school term in sequence with the previous term, so that if the last week of the previous term was week 1, the first week of the following term will be week 2.

From the commencement of school in January 2016 and upon the father living in proximity of the children’s school and within a radius of 10 to 20 kilometres from the mother’s residence (but not less than 10 kilometres), that the children live with each parent on a shared care basis, being each alternate week from the commencement of school on Friday to the commencement of school the following Friday and such alternate week time is to continue during all school terms and end of term 1, 2 and 3 holidays thereafter, with the children living with the father from the first Friday after the commencement of term 1 in odd years and from the second Friday after the commencement of term 1 in even years unless otherwise agreed between the parties.

School holidays/Christmas/Easter/special days

That Order 2.1 is suspended for Christmas 2014 and the children spend Christmas with the father from 3pm on 24 December 2014 to 3pm on 25 December 2014.
Commencing from the end of term 1 April 2015 school holidays and for all end of term 2 and 3 school holidays other than as provided by order 3 above, the children spend time with the father for one half of each school holiday in sequence with the alternate weekend time during the school terms and in the absence of an agreement between the parties, for the first half of each school holiday period in each even year and for the second half of each school holiday period in each odd year, with changeover to be at 5pm on the mid holiday day.
Commencing from the Christmas 2015 school holidays (“long school holidays”) and every long school holiday thereafter, order 2.2 and order 3 be suspended during the long holiday period and the children spend time with each parent for one week blocks on an alternating basis and in the absence of an agreement between the parties, with the father for the first week and every alternate week thereafter during the long school holidays commencing in each odd numbered year and for the second week and every alternate week thereafter during long school holidays in each even numbered year.
Upon either parent requesting to take the children for a two week block after 2 January in any given year during the Christmas school holidays, the other parent shall not unreasonably withhold his or her consent to swap weeks with the children and the requesting parent shall arrange for make up time as soon as practicable. Furthermore the parent providing his or her consent will have the right to elect to spend a two week block with the children after 2 January in the Christmas school holidays of the following year.
That the Christmas holiday time as provided for in order 6 be suspended during Christmas Eve/Christmas Day/Boxing Day and in lieu thereof:
8.1in even numbered years, the children spend time with the father from 3 pm on Christmas Eve until 3 pm on Christmas Day and spend time with the mother from 3 pm on Christmas Day to 3 pm on Boxing Day
8.2in odd numbered years, the children spend time with the mother from 3 pm on Christmas Eve until 3 pm on Christmas Day and spend time with the father from 3 pm on Christmas Day until 3 pm on Boxing Day
Commencing from 2015 and every year thereafter, during the Easter period, in the event the Easter period does not fall within a school holiday period and in the absence of an agreement between the parties:
9.1in even numbered years, the children shall spend time with the father from 6 pm Easter Thursday until 6 pm Easter Saturday and the children shall spend time with the mother from 6 pm Easter Saturday until 6 pm on Easter Monday;
9.2in odd numbered years, the children shall spend time with the mother from 6 pm Easter Thursday until 6 pm Easter Saturday and the children shall spend time with the father from 6 pm Easter Saturday until 6 pm on Easter Monday.
Unless otherwise agreed between the parties, school holidays:
10.1shall commence at 3 pm on the last day of school;
10.2shall conclude at 6 pm on the day before commencement of school;
10.3will be calculated from the last day of school until and including the day immediately before school resumes;
10.4pupil free days are deemed to be school holidays.
The children shall spend time with the father on their respective birthdays and in the absence of agreement between the parties, as follows:
11.1from after school to 7 pm if the child's birthday occurs on a weekday;
11.2from 12 pm to 5 pm if the child's birthday occurs on a weekend or public holiday.
Unless the children are living with the respective parent on Mother's Day or Father's Day, then the children shall spend time with the respective parent from 9 am to 6 pm on Mother's Day or Father's Day.
For the purpose of all orders above, unless either parent is collecting from or delivering the children to school, the parent collecting the children is to pick the children up from the primary residence of the other parent at the commencement of their time with the children unless otherwise agreed between the parties.

Telephone Communication

That each party must make available a telephone line on which the other parent can call the children for a nightly telephone call while the children are in their care between 6 pm and 8 pm unless otherwise agreed between the parties.
For the purposes of the telephone calls, each party shall:
15.1ensure the telephone calls are not made using a speaker phone function;
15.2avoid distractions for the children during the call;
15.3not interfere with the call and allow privacy during the conversation with the other parent.

General

Pending the commencement or operation of order 3 above:
16.1The father be at liberty to contact the children’s medical treatment providers from time to time to discuss the children’s health or any medical condition. In the event that a medical treatment provider does not agree to provide any information about the children to the father, the father will notify the mother and within 7 days of such notification, the mother will provide a written authority to the said medical treatment provider authorising the said medical treatment provider to discuss the children’s health or any medical condition.
16.2The father be at liberty to contact the children’s respective childcare centre, preschool or school from time to time to discuss the children’s progress and the father to arrange with the childcare centre, preschool or school for copies of the children’s reports, photographs, newsletters, circulates and reports relating to behavioural issues.
Upon the commencement or operation of order 3 above, either party is authorised to undertake the matters set out in order 16.
Each party shall give the other at least 2 weeks' notice of any intention to move from their current residential address.
Each party shall notify the other party of any change to the following details within 3 days of the change taking place:
19.1    the party’s residential address;
19.2    the party’s landline telephone number;
19.3    the party’s mobile telephone number.
Each party as soon as practicable telephone the other party upon the happening of any of the following:
20.1     a child becoming seriously ill;
20.2     a child being hospitalised;
20.3     a child becoming involved in an accident required medical attention.
That each party, namely [Ms Shea] (born … 1975) and [Mr Morgan] (born … 1971), their servants and/or agents be and hereby are restrained from removing or attempting to remove or cause or permit the removal of the children [V] (born … 2007) and [S] (born … 2010) from the Commonwealth of Australia AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watch List until the Court orders its removal.
That the passports of [V] be held by the mother's solicitor.
That the passports of [S] be held by the father's solicitor.
That the mother pay the father's costs of and incidental to the proceedings.

Short minutes of additional orders sought by the father during final submissions (Exhibit 27)

(a)     That upon either party having holiday time with the children pursuant to these orders the parties be permitted to travel overseas with the children for a period not exceeding 3 weeks during school holidays.
(b)That the party wishing to travel give notice in writing to the other party of their intention to travel as soon as possible and provide a travel itinerary and details of where the children will be staying.
(c)That upon one party travelling in one year, the other party have first opportunity to travel with the children overseas the following year in the holiday period.
(d)That upon the children’s return, makeup time be agreed between the parties as soon as reasonable practicable.
(e)During the time the children are overseas, the parent is to provide skype/facetime contact twice per week with the parent to provide by email notification to the other party the date and time on which the calls will be made within no less than 48 hours before the proposed contact.
(f)Upon the children’s return to Australia, each parent will hold the children’s passports as follows:
(i)     Passports for [V] to be held by the mother;
(ii)    Passports of [S] be held by the father.
That the parties be limited to communicating with each other by email unless there is an emergency with each party to nominate the email address upon which such email communication is to occur.
That all communication between the parties be limited to matters regarding the children.

Further proposal by the father at the end of final submissions (Exhibit 29) relating to the time that he sought to spend with the children

Until end of Term 2 2015 – every Sunday from 10am to 5pm.
From end of Term 2 2015 until end of Term 3 2015 from 5pm Saturday to 5pm Sunday every week.
From end of Term 3 2015 until commencement of Term 1 2016 – from 5pm Friday to 5pm Sunday every alternate weekend.
From commencement of Term 1 2016 from after school on Friday to commencement of school on Monday every alternate weekend. In the event that Monday is a public holiday or pupil free day, that the children’s time with the father be until commencement of school on Tuesday.
Commencing from Term 3 2016 school holidays and school holidays thereafter, the children spend school holiday time with the father for one half of each school holidays.

Orders sought in final submissions by the Independent Children's Lawyer

All prior parenting orders be dismissed.
The mother, [Ms Shea] born … 1975, have sole parental responsibility for the children, [V] born … 2007 and [S] born … 2010.
The mother is to inform the father of any major long term decisions she intends to make, in relation to the children, including but not limited to issues of health and education via email and to consider any response provided.
The children live with the mother.
In the event that the court finds no unacceptable risk exist for the children in the unsupervised care of their father, the children are to spend time with the father as follows:
a.Each Sunday from 10am to 5pm, such time to be spent in the presence of the father’s partner.
b.From the commencement of the third term 2015 school year, each alternate Saturday from 5pm to Sunday 5pm.
c.From the commencement of the 2016 school year, each alternate Friday from 5pm to Sunday 5pm,
d.Each alternate Christmas day from 10am to 5pm,
e.Father’s Day from 10am to 5pm if the children are not ordinarily with the father on that day.
The children’s time with their father pursuant to Order 5a to Order 5c above is to be facilitated by the father or his partner collecting the children from the Interrelate Contact Centre – [Suburb X] and delivering the children to the centre at the conclusion of their time. The children’s time pursuant to Order 5d to be facilitated by the father’s partner collecting the children from a public place in [Suburb M] agreed to by the parties at the commencement of their time with the father and returned to there at the conclusion of such time.
In the event that the court finds unacceptable risk exists for the children in the unsupervised care of their father, the children are to spend supervised time with their father as follows:
a.On a fortnightly basis as facilitated by Interrelate Contact Centre – [Suburb X] or,
b.By a private supervision service for a period of no less than 2 hours every third week, the cost of such supervision to be met by the mother or,
The mother to facilitate telephone calls between the children and their father as and when requested by the children.
Both parents be restrained from denigrating the other parent in the presence or hearing of the children or, allowing anyone else to do so.
The father is restrained from contacting the mother by any means whatsoever or causing her to be contacted on his behalf except by email in relation to the children.
The father’s time with the children in Order 5 above is to commence upon the father’s solicitor forwarding, to the mother’s solicitor, a letter confirming that the father has attended upon a treating psychiatrist on no less than four occasions and providing details of that treating psychiatrist.
The father to attend upon [V’s] treating therapist, [Ms W], as and when directed by Ms [W].
That the father and his partner engage in such counselling program as recommended by the Independent Children’s Lawyer in consultation with Dr [R].
The parties be at liberty to provide both of Dr [R’s] reports to any counsellor/therapist/psychologist working with the family.
The parties are to pay the costs of the Independent Children’s Lawyer’s representation of their children as follows:
a.As to the mother the sum of $2,892.50 to be paid into the Legal Aid NSW Trust Account for payment of Dr [R’s] fees within 28 days of the making of these Orders and the sum of $4,392.25 into the Legal Aid NSW General Account within 28 days of the making of these Orders.
b.As the father, the sum of $2,892.50 to be paid into the Legal Aid NSW Trust Account for payment to Dr [R] within 28 days of the making of these Orders and the sum of $5,877.25 to be paid into the Legal Aid NSW General Account in 11 monthly instalments of $534.00 commencing 60 days after the making of these Orders.

SCHEDULE 2

Mother

Primary affidavit by the Mother filed 30 September 2013
Updating affidavit by the Mother filed 18 August 2014
Affidavit of Dr U filed 9 October 2013

Father

Further Amended Response to Amended Initiating Application filed 13 August 2014
Affidavit of the Father affirmed and filed 8 August 2014
Affidavit of Ms H affirmed and filed 13 August 2014

Independent Children's Lawyer

Family consultant’s memorandum dated 5 March 2012
Expert report of Dr R dated 7 December 2012
Updating report from Dr R dated 18 August 2014

[2014] FamCA 738

5 September 2014

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Costs

Procedural Fairness

Remedies

Jurisdiction