Short and Short

[2017] FCCA 1218

FEDERAL CIRCUIT COURT OF AUSTRALIA

SHORT & SHORT [2017] FCCA 1218

Catchwords:
FAMILY LAW – Parenting – orders in best interests of children – weight to be placed on views expressed by oldest child.

Legislation:

Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA

Cases cited:

Bondelmonte & Bondelmonte [2017] HCA 8

MRR v GR [2010] HCA 4

Applicant: MR SHORT

Respondent: MS SHORT

File Number: WOC 605 of 2015

Judgment of: Judge Altobelli

Hearing dates: 10 and 12 April 2017

Date of Last Submission: 12 April 2017

Delivered at: Wollongong

Delivered on: 28 June 2017

REPRESENTATION

Counsel for the Applicant: Mr Lawrence

Solicitors for the Applicant: Helen Volk Lawyers

Counsel for the Respondent: Mr Morley

Solicitors for the Respondent: Clare Heaton Solicitor

ORDERS

1. The parties have equal shared parental responsibility for the children X, born (omitted) 2002, Y, born (omitted) 2011 and Z, born (omitted) 2013 (hereinafter collectively referred to as “the children”)

2. Each party have sole parental responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are in that party’s care.

3. Commencing from Monday 10 July 2017, the children live with the father at all times when the children are not living or spending time with the mother in accordance with these orders.

4. The children spend time with the mother as agreed between the parties and failing agreement then as follows:-

   (a)During each NSW school term:-

   (i)In the event that the mother relocates to the (omitted) area:

   A.On each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday, or if it is not a school day then from 3.00 p.m. on Thursday until 9.00 a.m. on Monday; and

(ii)In the event that the mother does not relocate to the (omitted) area:

A.On each alternate weekend from 6.00 p.m. on Friday until 5.00 p.m. on Sunday.

(b)During NSW gazetted school holidays at the end of the first, second and third terms in each school year:

A.As agreed between the parties and failing agreement then for the first half of the school holiday period in years ending in an even number and for the second half of the school holiday period in years ending in an odd number.

(c)During the NSW summer school holiday period between the end of one school year and the beginning of the following school year:

A.For one half of the school holiday period as agreed between the parties with regard to the parties’ respective periods of leave from their employment and failing agreement then as follows:-

(a)  For the first half of the holiday period in years where the holidays commence in a year ending in an even number; and

(b)   For the second half of the holiday period in years where the holidays commence in a year ending in an odd number; and

1. The time the children would otherwise spend with the mother in accordance with Order 4 above be suspended and the children spend additional time with the father for special occasions as follows:

   (a)At Christmas in odd-numbered years, from 12.00 a.m. on Christmas Eve until 12.00 p.m. on Boxing Day

   (b)For Father’s Day from 10.00 a.m. on the Saturday preceding Father’s Day until 5.00 p.m. on Father’s Day, and that should this period fall on a weekend which the children would otherwise spend with the mother, the children shall spend the following weekend with the mother in lieu;

   (c)At Easter in even-numbered years from the conclusion of school on Thursday preceding Good Friday (or 3.00 p.m. if it is not a school day), until the commencement of school on Tuesday following Easter Monday (or 9.00 a.m. if it is not a school day)

2. The time the children would otherwise spend with the father in accordance with Order 3 above be suspended and the children spend additional time with the mother for special occasions as follows:

   (a)At Christmas in even-numbered years, from 12.00 a.m. on Christmas Eve until 12.00 p.m. on Boxing Day;

   (b)For Mother’s Day from 10.00 a.m. on the Saturday preceding Mother’s Day until 5.00 p.m. on Mother’s Day, and that should this period fall on a weekend which the children would otherwise spend with the father, the children shall spend the following weekend with the father in lieu;

   (c)At Easter in odd-numbered years from the conclusion of school on Thursday preceding Good Friday (or 3.00 p.m. if it is not a school day), until the commencement of school on Tuesday following Easter Monday (or 9.00 a.m. if it is not a school day).

3. In the event that the mother relocates to reside in the (omitted) area, changeover take place at the children’s school(s), or if it is not a school day then at (omitted) McDonalds.

4. In the event that the mother does not relocate to reside in the (omitted) area, changeover take place at (omitted) Railway Station.

5. The children have telephone communication with the mother on each Wednesday at 6.00 p.m. and that for the purposes of this telephone communication, the mother call the father’s mobile telephone.

6. Each party is restrained by injunction from passing information or messages to the other via the children, or denigrating the other party or members of their family in the presence or within hearing of the children.

7. Each party is authorised by this order to receive directly from the children’s school a copy of school reports for the children, school photos (at the cost of the party requesting the photos), school newsletters, and other documents normally provided to parents.

8. Each party is to keep the other informed of his or her residential address and notify the other party of any change to their residential address at least fourteen (14) days in advance of any such change.

9. Each party is to keep the other informed of a contact telephone number(s), and notify the other party of any change to their contact telephone number(s) within forty-eight (48) hours of any such change.

10. Each party is to inform the other as soon as is reasonably practicable if any of the children become seriously ill or injured while living or spending time with them.

11. Each of Mr Short, born (omitted) 1982, and Ms Short, born (omitted) 1979, and their servants or agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X, male, born (omitted) 2002, Y, female, born (omitted) 2011, and/or Z, female, born (omitted) 2013 from the commonwealth of Australia.

12. X, Y and Z be and are hereby restrained from leaving the Commonwealth of Australia.

13. It is requested that the Australian Federal Police give effect to the preceding orders by placing the names of the said child or children on the Family Law 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.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 605 of 2015

MR SHORT

Applicant

And

MS SHORT

Respondent

REASONS FOR JUDGMENT

Introduction

1. This case is about three children, X, who is 14, Y, who is 5, and Z, who is 4.  The Court must decide whether the children live with their father, who is the Applicant in this case, or their mother, who is the Respondent.  It is a finely balanced case and has been a very difficult decision to make. 

Background

1. The Applicant Father is 35 years old.  He is a (occupation omitted) who lives in the (omitted) region of New South Wales.  The Respondent Mother is 37 years old.  She is a (occupation omitted) who currently lives in a Western Sydney suburb.  X is the Mother’s son from a previous relationship.  His biological father has played no role in these proceedings.  For all practical purposes X treats the Applicant Father in this case as his father, even though technically he is a psychological father, not a biological one.  X currently lives with the Father at the paternal grandparents’ home in the (omitted).  Y and Z live with their mother.  The current parenting arrangements reflect interim orders made by the Court.  The children spend time with each other, all together each weekend, one weekend with their father, and one with their mother.

2. The parents married in 2010 and separated on 17 June 2015. 

3. X, and the Mother, are of (nationality omitted) descent.  In 2008 the Mother moved to Australia for work and study purposes.  X remained living with the Maternal Grandmother in (country omitted) and, in fact, did not come to Australia until 2013.  By then the parents had married and were living in the (omitted) area.  Y had already been born, and Z came along shortly after X came to Australia.

4. During the course of their marriage both parents appear to have worked full-time, and thus the Paternal Grandmother took on a significant caring responsibility for the children.

5. The date of 16 June 2015 was clearly a significant and stressful day for the parents and the children.  Threats were allegedly made.  The Father initially took the children to stay with him at the Paternal Grandmother’s home.  Later that night the Mother came to collect the children.  The police became involved.  On 19 June 2015 the parents met to discuss the children’s living arrangements.  Things were allegedly said.  On 20 June 2015 the parties met for the purposes of the Mother spending time with the children as agreed.  In short, when the Father was distracted, the Mother got into the Father’s car with the two girls and left, leaving X behind.  Since this date, Y and Z have lived with the Mother, and X has lived with his father.  This arrangement was formalised by way of interim consent orders on 8 July 2015.  In addition an order was made by the Court that X continued to attend a local high school where he had previously been attending.

6. A Child Inclusive Conference was convened on 30 September 2015.  X told the Family Consultant that he would like to continue in the parenting arrangement then in place, i.e., living with his father and continuing to attend his high school, but did want to spend time with his mother, and his sisters.  Given the ages of the girls, their views were not sought.

7. On 30 October 2015 the Court made interim orders continuing the existing parenting arrangement.

8. In September 2016 the Family Report prepared by Dr H was released to the parties.  This will be discussed in further detail below.

9. By the time of the hearing, X continued to live with his father and attend a local high school. Y attended a primary school close to her mother’s home, and Z attended preschool on Tuesdays, Wednesdays and Fridays.  The Mother was not working but the Father was working part-time as a (occupation omitted). 

The Competing Proposals

1. The orders sought by the Father are contained in his Amended Application filed 31 March 2017.  Those orders are reproduced in the first schedule to these reasons.  In short, he proposed equal shared parental responsibility and that the children live with and spend time with each parent, depending on whether the Mother chose to relocate to the (omitted) area, or chose not to relocate.  If the Mother chose to relocate, the Father was proposing equal time.  If the Mother chose not to relocate, the children would live with him and spend time with her each alternate weekend.  It became quite apparent at the hearing, however, that the Father had accepted Dr H’s recommendations against the appropriateness of equal time.  His preference continued to be that the children live with him, but that the ideal situation was that the Mother would relocate to the (omitted) to be closer to the children.  Implicit in his case was the contention that this would greatly reduce the practical difficulty of the time and inconvenience of travel, as well as to create opportunities for much greater flexibility in the parenting orders that could be made.

2. The Mother’s proposal was contained in the case outline document that was prepared by her Counsel for the purposes of the hearing on 10 April 2017.  The Mother proposed equal shared parenting responsibility, that the children live with her, and spend alternate weekend with their father.  The orders that she sought are likewise reproduced in the second schedule to these reasons.  The Mother’s position at the hearing was quite firm – she proposed that the children live with her and spend time with the Father and she had no intention of relocating back to the (omitted). 

3. A number of matters are self-evident from the proposals.  Both parents suggest that equal shared parental responsibility is appropriate for them, notwithstanding the obvious communication and trust issues that exist between them.  Both parents appeared to agree that the children were better off together with each other, and not split as they currently are.  Whilst the Father thought it was in the best interests of the children that the Mother relocate back to the (omitted), he was not seeking an order to that effect.

4. The Court must decide, therefore, with whom the children should live, and how much time they should spend with the other parent.  A number of other issues of difference arise in the orders sought, and these will be dealt with in due course but they did not focus much in terms of the evidence or submissions made. 

The Hearing

1. At the hearing of this matter the Father relied on his affidavit of 29 March 2017, together with that of his mother, the Paternal Grandmother, of the same date. The Mother relied on her affidavit of 6 April 2017. Mr Lawrence of Counsel appeared for the Father, and Mr Morley of Counsel appeared for the Mother. Both parents were cross-examined. The only other witness was Dr H. She too was cross-examined. After setting out the applicable law, the Court proposes to deal with Dr H’s evidence first. That is not because Dr H, as the author of the Family Report, has any privileged position. However, her evidence had the character of both being independent and expert. Her evidence also provides an opportunity to consider aspects of the evidence of both parents. Thereafter, the evidence of both parents will be considered through the lens of the primary and additional considerations set out in s.60CC of the Family Law Act 1975 (‘the Act’). 

The Applicable Law

The Legislation

1. The applicable law is, of course, Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.

2. The objects and principles of Part VII are set out at s.60B:

   60B  Objects of Part and principles underlying it

   (1)    The objects of this Part 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.

   (2)    The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):

   (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).

   (3)    For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:

   (a)    to maintain a connection with that culture; and

   (b)    to have the support, opportunity and encouragement necessary:

   (i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and

   (ii)    to develop a positive appreciation of that culture.

3. At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:

   61DA  Presumption of equal shared parental responsibility when making parenting orders

   (1)    When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

   (2)    The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:

   (a)    abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or

   (b)    family violence.

   (3)    When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.

   (4)    The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. If the presumption applies, the Court is required to consider certain things:

   65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances

   Equal time

   (1)    If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)    consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)    consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

   Substantial and significant time

   (2)    If:

   (a)    a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and

   (b)    the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and

   the court must:

   (c)     consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)    consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)     if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   (3) will be taken to spend substantial and significant time with a parent only if:

   (a)    the time the child spends with the parent includes both:

   (i) days that fall on weekends and holidays; and

   (ii)    days that do not fall on weekends or holidays; and

   (b)    the time the child spends with the parent allows the parent to be involved in:

   (i) the child’s daily routine; and

   (ii)    occasions and events that are of particular significance to the child; and

   (c)     the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.

   (4)    Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.

   Reasonable practicality

   (5)    In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:

   (a)    how far apart the parents live from each other; and

   (b)    the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and

   (c)     the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and

   (d)    the impact that an arrangement of that kind would have on the child; and

   (e)     such other matters as the court considers relevant.

1. Because s.65DAA refers to the best interests of the child the Court must then go back to consider s.60CC which specifies how the Court must determine what is in a child’s best interests.

   Determining child's best interests

   (1)  Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).

   Primary considerations

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child's parents; and

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

   Note:         Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).

   (2A)  In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).

   Additional considerations

   (3)  Additional considerations are:

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

   (b)  the nature of the relationship of the child with:

   (i)  each of the child's parents; and

   (ii)  other persons (including any grandparent or other relative of the child);

   (c)  the extent to which each of the child's parents has taken, or failed to take, the opportunity:

   (i)  to participate in making decisions about major long-term issues in relation to the child; and

   (ii)  to spend time with the child; and

   (iii)  to communicate with the child;

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

   (d)  the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:

   (i)  either of his or her parents; or

   (ii)  any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;

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

   (f)  the capacity of:

   (i)  each of the child's parents; and

   (ii)  any other person (including any grandparent or other relative of the child);

   to provide for the needs of the child, including emotional and intellectual needs;

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

   (h)  if the child is an Aboriginal child or a Torres Strait Islander child:

   (i)  the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and

   (ii)  the likely impact any proposed parenting order under this Part will have on that right;

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

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

   (k)  if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:

   (i)  the nature of the order;

   (ii)  the circumstances in which the order was made;

   (iii)  any evidence admitted in proceedings for the order;

   (iv)  any findings made by the court in, or in proceedings for, the order;

   (v)  any other relevant matter;

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

   (m)  any other fact or circumstance that the court thinks is relevant.

2. Family violence is defined in s.4AB of the Act:

   (1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.

   (2) Examples of behaviour that may constitute family violence include (but are not limited to):

   (a) an assault; or

   (b) a sexual assault or other sexually abusive behaviour; or

   (c) stalking; or

   (d) repeated derogatory taunts; or

   (e) intentionally damaging or destroying property; or

   (f) intentionally causing death or injury to an animal; or

   (g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

   (h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

   (i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

   (j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.

   (3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

   (4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

   (a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or

   (b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or

   (c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or

   (d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or

   (e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.

The Case Law

1. In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said

   9.  Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents.  It is clearly intended that the Court determine that question.  Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".

2. A little later in the judgment the High Court said:

   13.    Section 65DAA(1) is expressed in imperative terms.  It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)).  It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.

3. At [15] the High Court emphasised the need for a practical approach:

   15.    Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.

4. On 1 March 2017 the High Court of Australia handed down judgment in Bondelmonte & Bondelmonte [2017] HCA 8. By way of background, in that case the trial judge had made an order that two boys who were nearly 17 and 15 at the time interim orders were made, be returned to Australia, notwithstanding the fact that the trial judge had accepted evidence that the boys had both expressed views that they wished to continue to live with the Father in (country omitted). The learned trial judge had formed the view, as recorded in the High Court reasons for judgment at paragraph 22:

   ... that the actions of the Father “have significantly prejudiced and almost certainly coloured any statements the boys may make whilst they are in (country omitted).”

5. The learned trial judge had stated that whilst the expressed views of the boys was a consideration to be taken into account, there were other relevant matters, including the relationships that each of the children have with each of their parents, and with each other.  His Honour considered that a Family Report would look not just at the views expressed by the boys, but at the dynamics of those relationships and, in particular, the future of the relationship between all the siblings (including a sister who was not in (country omitted)) and both their parents.

6. The High Court made some important statements about section 60CC (3)(a) which states:

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

7. The High Court stated at paragraphs 34 and 35:

   34.  The focus placed by the Father upon the prescribed consideration stated in s 60CC(3)(a) tended to elevate the views expressed by a child to something approaching a decisive status.  In some cases, it may be right, in the exercise of a primary judge's discretion, to accord the views expressed by a child such weight, but s 60CC(3)(a) does not require that course to be taken.  They are but one consideration of a number to be taken into account in the overall assessment of a child's best interests.

   35.  The terms of s 60CC(3)(a) itself may be taken to recognise that, whilst a child's views ought to be given proper consideration, their importance in a given case may depend upon factors such as the child's age or maturity and level of understanding of what is involved in the choice they have expressed.  Children may not, for example, appreciate the long term implications of separation from one parent or the child's siblings.  Section 60CC requires that attention be given by the Court to these matters.

8. Of assistance is also paragraph 41:

   Section 60CC(3)(a) requires that the Court take into account not only the views expressed by the child, but also "any factors … that the Court thinks are relevant to the weight it should give to the child's views". The factors that the provision gives as relevant are the child's maturity or level of understanding, but plainly the Court may consider other matters to be relevant. The factor that the primary judge identified as relevant was the extent to which the boys' views had been influenced by the Father, clearly a matter going to the weight to be given to their stated preferences.

The Evidence of Dr H

1. Dr H's Family Report is dated 23 September 2016, having been ordered on 30 October 2015.  She met with the parents, the Paternal Grandmother, as well as the children.  She had available to her all of the documents that had been filed as at that time, the Child Inclusive Conference Memorandum of 30 September 2015, together with such documents that had been produced on subpoena as at the date of the interview.  The matters of background that she sets out, the procedural history, and her understanding of the then current arrangements for the children, as well as the then proposals are uncontentious. 

2. Dr H interviewed the Mother.  It is convenient to identify a number of uncontentious matters in this case, that arise from her interview with the Mother.  For example, at paragraph 15 Dr H records that the Mother expressed no safety concerns about the children under the current arrangement.  Indeed, that is the case and neither the Mother, nor the Father’s case, was advanced on the basis that there were any risk of harm considerations relevant to the decision that needs to be made in this case.

3. At paragraph 16 of the report Dr H recorded that the Mother stated that handovers have been uneventful.  The parents do not talk with each other, but changeovers are otherwise peaceful.  There was no contention made in this case to the contrary.

4. The Mother did raise some concerns.  For example, she expressed doubt (at 15) that the Father could manage the care of the children without the help of the Paternal Grandmother.  The Mother made an assertion about X’s views at paragraph 15 in the following terms:

   …Ms Short claims that X has expressed a wish to come and live with her. She was not concerned that X would be disturbed by a change of school and loss of friends saying that he had easily adapted to previous changes. She did not elaborate about X’s likely thoughts or feelings when invited to conjecture. She did not assert that there has been any maltreatment of X in the care of his stepfather nor that the child had expressed any unhappiness about his current living circumstances. Her response to a question about the impact of the family separation indicates she assumed that X would be allowed to decide where to live once he is 14.

5. The issue of what weight should be placed on X’s views is a significant one in this case.

6. At paragraph 16 the Mother adverts to family violence allegations that are contained in her affidavit, filed at the time of the report interviews but which do not figure prominently in her trial affidavit and in the manner in which her case was presented at the hearing.  Dr H records as follows:

   …Ms Short did not express any current concerns for her safety at handover but said the father might retaliate violently if he was disappointed by Court outcomes. She said that he had not behaved violently towards her or the children in the last 12 months although he had threatened to kill her during the marriage if she had ever revealed to anyone that he had beaten her or forced her to have sex. She claims that there were never witnesses to the violence except on one occasion at the airport when Mr Short slapped her in the face with a hat. She also alleges that the father has been dismissed from jobs for his aggression.

7. The family violence allegations made by the Mother are another issue, not because they were pressed at the hearing, but rather because they were made and then not pressed at the hearing.  It is clear from the Mother’s Counsel’s submissions that this was a tactical choice made in the Mother’s case.  More will be said about this later in these reasons but the focus turns to whether the making of the allegations reflects poorly on the Mother.  Indeed, Dr H foreshadows this concern in the rest of paragraph 16 where she says:

   …Ms Short identified no reason why it is in the children’s best interests to live outside the (omitted) except to assert that she fears Mr Short.  Her claims about the risks Mr Short might pose to her or the children were vague and unsupported by reference to recent events. She denies having a current partner saying “He is only a friend” with reference to an unnamed man who sometimes accompanies her to handover, allegedly so that Mr Short cannot intimidate her.

8. Dr H also foreshadows another issue above i.e. why the Mother would not consider returning to the (omitted).

9. At paragraph 17 the Mother expressed concerns about aspects of the parenting arrangements, and then at 18 was able to identify the Father’s parenting strengths, as well as her own.  Paragraph 19 is an interesting one:

   19. Ms Short disavowed ever finding parenting in general challenging (NB. Unreflective parents often disavow feeling guilt or anger towards their children. Normally nurturant parents often express frustration and guilt about their performance as parents. A parent who disavows emotional negativity is not in a good position to recognise and control unhelpful reactions under normal parenting stress.) Ms Short reports she has completed a Circle of Security course, from which she learnt to “recognise child’s needs and get involved in child’s activities” (These are not the key insights about attachment security which one would hope a parent would take away from that course).

10. Dr H’s summary impressions of the Mother are found at paragraph 20:

    20. Overall, while Ms Short impressed as a confident, competent person, there were some suggestions that hard-nosed pragmatism may impede her child focus at times. For example, she showed little curiosity about how the motivated behaviour of other people (including her children) might differ from her own, but rather tended to appraise the behaviour of others mainly in terms of the impact on her own goals. She did not seem to value her children’s attachments to other people in terms of the meaning her children might attach to those relationships (for example, she seemed to view Y’s telephone conversations with (omitted) as a time-waster). This tendency to devalue the children’s other ties and goals relative to her own seems particularly notable with X, whose torn loyalties she does not seem to have thoughtfully considered. Equally, she showed no awareness of how important peer relationships are to adolescents.

11. Dr H also interviewed the Father.  She records that he too could not identify risk of harm issues to the children in the Mother’s care, but he was concerned about the stress of travel for the children given the distance between the parents’ homes.  He told Dr H that he believed he could provide reliable and consistent care for the children, particularly given his extended family support.  He emphasised to Dr H his willingness to support the children having an ongoing relationship with their mother.  He reported to Dr H his concern that the Mother would not be so supportive.

12. In relation to the violence allegations Dr H reports the Father in the following terms:

    24.Mr Short stoutly denies all the mother’s allegations of family violence, pointing out that he was in fact the one who left the relationship in the first instance. He referred to various dissatisfactions, including discovering Ms Short was engaging in internet sex chat, but gave as the reason he had left was because “she blamed me for everything” – which worsened after he lost his job. He denies the mother’s allegations of having been dismissed for being violent to a client.  He gave his explanation of his employment history in terms of having left one firm for a better offer but then having left the second firm when their client base shrank. He has now returned to the firm that formerly employed him.

    25.Mr Short referred to “our last argument” in which he said he had confronted the mother about a speeding fine, whereupon she angrily blamed him for her bad driving by causing her stress. He said both of them spoke raised voices in and that the children were in an adjacent room. He denies any blow was struck. Mr Short could not conjecture about Ms Short’s motivations in raising false allegations against him other than for strategic advantage in this dispute and perhaps because she is still angry about the way their relationship ended.

13. The Father was strongly supportive in favour of X continuing his enrolment at his current high school because he was doing so well, and was so well connected with friends and sporting interests.

14. Dr H was obviously impressed about the Father’s receptivity to feedback saying at paragraph 27:

    Mr Short was receptive to feedback about the unsuitability of a 50-50 care arrangement for young children with parents who remained in high conflict, most particularly in this case given the large distance between the parents’ homes. He was referred to the relevant literature (references sent to both solicitors). He said that if professional opinion contraindicated 50-50 care then he would revert to his proposal that all three children should live with him and spend weekends/holidays with the mother.

1. Her summary impression of the father is found at paragraph 32:

   Overall, Mr Short presented as mild-mannered and reasonable. He seemed open to feedback and advice – for example, the suggestion that it might be better to have telephone contact between 5 and 6 for the reasons Ms Short had explained to me. Mr Short also seemed child-focused and future-oriented. That is to say he showed neither obsessive interest in the mother’s current lifestyle nor hostility towards her about past events, but focused on practical options for meeting each child’s developmental needs under the circumstances.

2. The Paternal Grandmother was also interviewed.  She clearly had been actively involved in the lives of the children for several years.  At paragraph 40, Dr H concludes about her:

   Although she is clearly a staunch advocate for her son, Ms L appears to be sincerely committed to supporting her grandchildren unconditionally. She demonstrated good perspective-taking skills, child-focus and empathic concern.

3. Dr H makes observations about the children, and their relationships.  The girls appeared to be normally socialised for age, and both appeared to have very good language skills.  Y was more extroverted and confident than her young sister.  The girls actively engaged with both their mother, and with their father and Paternal Grandmother.  She noted at paragraph 43 that when X joined the group that the Mother greeted him warmly, and he returned her salutation “but did not rush to embrace her.  He moved over to the side of the room chosen by the paternal kin and stayed there throughout the conjoined sessions”.  The younger children nonetheless separated from both parents without any fuss.

4. At paragraph 45 Dr H observed that the girls’ preferences about their living circumstances were not directly canvassed due to their young ages.  She formed the view, however, that Y felt equally happy across all social contexts.

5. Dr H’s report in relation to X bears reproduction in these reasons for judgment.  She deals with this at paragraphs 46-49 of her report:

   46. X (13 ½) presented as a tall, well-groomed handsome youth of (nationality omitted) appearance and slender, athletic build.  He was normally oriented to reality, fully alert, calm, pleasant and cooperative. X presents as a very shy, softly-spoken young man. Although he answered all my questions readily, he was laconic and did not elaborate at all unless he was asked to provide further information. X said he was doing well at school although he “sometimes mucks up in class”. He reported that he had a good friend called (omitted).  It is not easy for him to make friends because he is rather shy, he said. (omitted) is in Year 8 at (omitted)’s although he is in a different class. X described their weekend activities, including sleepovers.  X enjoys (hobby omitted) and (hobby omitted).  PE is his favourite subject at school, he said. When asked whether he wanted his mother to attend his October soccer presentation, X shrugged and said “I am OK with Mum coming.”

   47. We discussed the big changes involved in coming to live in Australia. X said that he could speak English when he arrived although he usually spoke (language omitted).  He had continued to live with his grandparents between 2008 (when he was 5) and 2013 (when he was 10) after his mother came to Australia in 2008 to study.  His grandparents cared for him when he was a small child as his mother was working away. X said that he missed his (country omitted) grandmother, that he knows she is sick and that he would like to see her. He speaks to her on the telephone sometimes when he is at his mother’s house.

   48. X confirmed that he enjoys living with his stepfather, step-grandmother and other household members. He seems fond of Mr Short’s nephew, (omitted) (10). He said that his little sisters are “sometimes annoying” and so are the twins (omitted) and (omitted) (12). When asked the vague question “What would be the best thing for you” X said “Probably to live with Mum”. When X was asked to explain why he wanted to move he said “Because I have not stayed with her for a while.” X said that he would like to visit Dad and Grandma on weekends. X confirmed that he had already told Dad what he was thinking. He appeared unconcerned about adverse reactions. X said it would be best to change schools after the end of this school year. X thought that he would be “a bit shy at first if he had to go to a new school” and it would take a while to make friends. Q: “Would you still be able to be friends with (omitted) after that?” A: “It depends on Mum.”  He spoke quietly and with flat affect.

   49. In response to my question: “What would it be like if Mum found a new house near (omitted)’s?”, X’s eyes lit up and he immediately became much more animated. X said he would prefer to live with Mum and his sisters but also wanted to stay at his current school with his friends. Overall, X struck me as a timid, compliant child who does not spontaneously give any strong vent to strong feelings of his own. He seems like a child more likely to feel under-entitled rather than over-entitled relative to others in relationships. X was not eloquent about his reasons for asking for a change of residence – which seemed vague and thin. He did not convey the impression that he was feeling unhappy or disadvantaged in any way by the current arrangement.

6. Dr H’s evaluation commences at paragraph 52 of her report.  At paragraph 54 Dr H raises a concern about the weight that should be placed on X’s view, expressed above, to live with his mother.  At paragraph 54 Dr H states:

   54.According to Family Consultant Ms S, X’s sufficient maturity and insight for his residential preferences to carry weight in 2015. X now expresses a different view than he expressed to Ms S. Aggregated information leads me to suspect that his expressed residential preference on this occasion serves his mother’s agenda rather than this own rational self-interest, and for that reason his wishes should enter the mix but not carry determining weight.

7. At paragraph 55 Dr H provided, as requested in the order appointing her, a profile of the parents, in the following terms:

   55.Both parents appear to be capable of meeting community standards of child care and protection. The father seems to have a more nuanced awareness of the children’s developmental needs and individual temperaments, particularly with regard to X whom Mr Short deems less adaptable to change than Y- a conclusion also supported by my observations at interview.  Case history suggests Ms Short is a very pragmatic, goal-oriented person who may behave with a disregard for the human impact of her actions. The most salient example was in June 2015 when she drove off in Mr Short’s car with Z and Y, leaving X behind. Presumably was forced to adopt an attitude of hard-nosed pragmatism about her separation from X as an infant and young child – since the arrangement was necessary in order to pursue socioeconomic advancement. Case history suggests Ms Short may prioritise material goals over her children’s feelings if a clash of interests arises.

8. At paragraph 56 she deals with the parents’ interactions:

   56.These parents rarely communicate. They are mutually mistrustful. Nonetheless, they have managed to insulate the children from conflict at handovers. They may be able to negotiate minor issues (such as telephone contact or the upcoming school holidays) but the dispute about principal residence will require a judicial decision. It is a matter for the Court to determine whether the mother’s allegations of family violence are deciding factors. Nothing emerged during from this assessment to convince me that is the case. On the other hand, we must remember how often family violence is concealed and under-reported. The paternal grandmother is deemed likely to act benevolently whatever the Court outcome. The mother is deemed less likely to facilitate the children’s relationship with the father if she is the primary caregiver than he is to facilitate their relationship with her if they live mainly with him.

9. At paragraph 57 she observes that both girls are developing normally and present no parenting challenges.  They are affectionately bonded with both parents, their grandmother, brother and other paternal kin.  They evidenced secure base behaviour towards both parents and their grandmother, at interview.  Her view was that “they seem likely to thrive equally well in the household of either parent.”  Dr H reported that being separated from their brother does not seem to unduly distress them.  She noted the large age difference between them.

10. In relation to X, Dr H provides this important evidence at paragraphs 58-60:

    58.X is a polite, cooperative boy who seems much less assured of his place in the world than his sisters. Securely attached individuals are usually (psychologically) free to objectively evaluate their attachment relationships whereas the information-processing of insecurely individuals is typically much more constrained/distorted. Given his psychosocial history, it is inconceivable that X has a secure attachment to his mother. Securely attached children are confident that their primary caregiver will always be available, and will consistently respond contingently (i.e. on the basis of the child’s cues/needs rather than the carer’s convenience/mood) and helpfully.

    59.History provides no reason for X to believe that his mother will be consistently available and reliably, contingently responsive. Firstly, he was separated from her during infancy and early childhood, when his grandmother was his primary carer. Secondly, he was left behind in (country omitted) 2008-13 when his mother moved to Australia. Thirdly, his mother took his little sisters but left him behind when she fled Mr Short’s home in 2015.

    60.It is possible that X’s expressed residential preference on this occasion reflects his desire to please his mother (or at least avoid her negative appraisals). If his lived experience supports the inference that his mother will do what is most expedient for her rather than what is most comfortable for him, X may well have concluded that his mother’s approval is contingent on his conformity to her wishes. His enthusiastic response to the idea of living with his mother in the (omitted) contrasted sharply with the lacklustre manner in which he had advocated moving to Sydney to live with her. When X was fleetingly in the presence of his mother, stepfather and step-grandmother his non-verbal behaviour enacted alignment with paternal kin. There was nothing in his presentation at interview to suggest he is pining for his younger sisters.

11. In paragraph 61-63 Dr H provides a professional view about which parent is better equipped to meet the children’s material and social needs.  She states:

    61.The father seems better equipped to meet the children’s material and social needs: he is in employment, has assured housing and guaranteed childcare support. He can offer X residential stability and continuous participation in established social networks whereas he mother’s proposal for X involves disruption of his school enrolment and his peer relationships, with possible adverse effects on his academic and social progress. The mother’s current home environment is less favourable – in particular she noted that she cannot work because she has no family support with child care.

    62.This point underscores the fact that the children would have access to more of their social capital if they returned to live in the (omitted), and at the same time highlights concerns that X would be developmentally overloaded living with his mother if she expects him to help with childcare. It is of concern that Ms Short is alleged to have made no effort to attend events of importance to X – like his (hobby omitted) matches / presentations – and that he seemed doubtful about whether she would make an effort to facilitate his friendship with (omitted) if he moved to Sydney. Ms Short’s willingness to prioritise X’s welfare if there is any cost or inconvenience to herself is called into doubt by such reports.

    63.It is for the Court to determine whether the evidentiary material supports Ms Short’s claim that she would be in danger from attack by the father in the (omitted). She did not advance any other justification for her relocation to Sydney which was supported by compelling arguments framed in terms of the children’s best interests. Compelling reasons might include a new job or a new relationship which would increase her social capital (better housing, income or family support) in ways likely to benefit her children – whereas she denied both.

12. In relation to the proposals, she rejected the idea of week about shared care as being unworkable.  She emphasised that it is not just the geographical issue but the inability of the parents to work as a team that strongly contraindicated this.  Dr H expressed concerns about the Mother’s proposal for the children to live with her and spend alternating weekends with their father.  She thought it would be better if the Mother lived in a school catchment area such that changeover could take place at school or preschool, and in which it was unnecessary to change X’s school.  An important issue for the Court, Dr H emphasised, is the timing of any orders for the children to change where they currently live.

13. Dr H’s conclusions and recommendations are found at paragraph 66-73 in the following terms:

    66.Substantially shared care is an unworkable plan

    67.The best interests of all three children will be served if they live principally with one parent and visit the other on weekends and holidays

    68.No pressing need has been demonstrated for a change of residence for X.

    69.No clear benefit has been identified for the children’s relocation to Sydney

    70.The best interests of all three children would be served if the parents lived closer together such that both parents could participate regularly in the children’s sporting/leisure activities and educational events

    71.The best interests of all three children would be served if the parents lived closer together in order to facilitate transitions between the two households – in particular to minimise tensions inherent in face-to-face handovers which require the children to travel for hours every second weekend.

    72.In order to improve the sharing of information needed for effective co-parenting these parents should subscribe to Our Family Wizard, a computer/mobile application designed to facilitate communication between separated parents.

    73.Some minor matters in dispute may be amenable to resolution via mediation, at least on an interim basis.

14. Dr H was extensively cross-examined, particularly by Mr Morley on behalf of the Mother.  In cross-examination by Mr Lawrence, however, Dr H was able to expand on the concerns that she expressed at paragraph 58 of her report about the security of X’s attachment with his mother, and the extent to which this might impact on the weight to be given to his views.  She emphasised that X’s developmental history with his mother made it inconceivable that he was securely attached to her, as she was simply not available to him at a particular point in time in his life.  She thought he presented as anxious and had experienced significant adjustments in his life.  In particular, he was anxious about being rejected by his mother if he did not do what he perceived to be pleasing to his mother.  By contrast, the girls were much more resilient, and would cope with change much more easily.  Dr H maintained her concerns about the mother’s willingness to use people in order to achieve her aims, describing this as an empathic deficiency, suggesting that she could not prioritise her children’s needs over her own.

15. Unsurprisingly, Mr Morley meticulously challenged Dr H’s opinions, and the basis for forming them.  She was challenged, for example, on the negative impression formed of the Mother arising out of the circumstances when she took the children at separation.  In order to put this in context, however, it is important to record what the Mother’s own evidence was, at paragraph 64 of her trial affidavit.  Paragraph 64 states:

    On Saturday 20 June 2015 the father brought the girls to the former matrimonial home so they could have breakfast with me. As the father arrived he sent X into his room to play on the Xbox. I looked round to see what I could do to get the children out of the house with me. I took an opportunity to leave the house with the girls by taking the father’s car. I took the father’s car because I had both sets of keys for my car and I was scared that if I drove off in my car the father would chase me and the children in his car whilst we were driving. I could not have managed to get X out of the house with the girls and I. As a result I was not able to get X to car to take him with me.

16. In cross-examination Dr H maintained that in her view the manner in which the Mother took the girls, but left X behind was an example of the Mother’s “ruthless, goal-oriented approach”.  She was critical of the Mother, suggesting that she could have found a more child-focussed approach which prioritised the children’s need, including X, above her own.  Dr H conceded in cross-examination that there were relevant cultural factors at play here.  When challenged about her use of the word “ruthless” and asked to concede that perhaps a better description of what the Mother did was that she “took advantage” of the opportunity, Dr H’s retort was that it was still a “remorseless use of others”.  She acknowledged that the Mother was a resourceful person, but then said that “a sensitive emphatic Mother would have considered the impact on X”.  Counsel suggested to her that the Mother had no time to reflect in the circumstances that arose on that day.  Dr H pointed out that most parenting is performed under stress and that what the Mother did that day was to choose to further her goals, over X’s interests.  Moreover, Dr H pointed out, that the Family Report interview was ample opportunity for the Mother to reflect on what she had done and to show some empathy, but she failed to do so.  The Court notes that there was no evidence of reflection on this event, and how it might have affected X, in the Mother’s affidavit.

17. Counsel challenged Dr H’s reticence about placing significant weight on X’s views.  She readily conceded that in the normal course views of a child X’s age would get substantive weight.

18. She was challenged on her conclusion at paragraph 58 that it was “inconceivable” that X had a secure attachment to his mother.  Dr H maintained her view, explaining that attachment is a lifelong multifactorial process.  The process of attachment certainly commenced in 0-2 years but continued well after that.  She was confident that the fact that the Mother had left X in the care of the Maternal Grandmother for many years would have made him, indeed did make him anxious in his relationship with his mother.  When challenged about the nature of X’s relationship with the Father, Dr H agreed that the relationship is comparatively recent.  She was impressed, however, by the fact that X could tell both his father, and paternal grandmother, that he wanted to live with his mother, thus signalling a quality of attachment and relationship that he thought could tolerate such views.

19. Dr H acknowledged that the girls were securely attached to their mother, who had been and was their primary caregiver.  Interestingly, there was no cross-examination on the potential impact on the girls being separated from their mother and thus there was no direct or indirect challenge to the at least implicit view that the girls would be unaffected by being placed in their father’s case, as is reflected in her recommendations.

20. Dr H was challenged on the concerns she expressed about the Mother’s capacity to encourage the relationship between the children and their father.  Counsel pointed out that the girls did enjoy a good relationship with their father, which was thus inconsistent with Dr H’s stated concern.  Dr H acknowledged this, but warned that the Mother’s attitude about the children’s relationship with their father would be very subtle and could lie anywhere on a continuum between indifference and vengeance.  Dr H was primarily concerned about the Mother’s relocation from the (omitted) to (omitted) for no apparent reason, and away from a well-established support system to a non-existent one.

1. Dr H acknowledged that this was a finely balanced case, and that she would certainly not rule out the children living with their mother if she lived within a reasonable distance of the (omitted) region so that X would not have to change schools and the existing family support networks would be retained.  She was confident that if the children were ordered to live with their father, they would cope.  She thought X would also cope with not having his views reflected in orders.

2. Despite the formidable and methodical challenges to Dr H’s evidence in cross-examination, she adhered to the view expressed in the report.

The Father’s Evidence

1. The Father’s evidence was contained in his affidavit of 29 March 2017.  The Father was extensively cross-examined by Mr Morley, Counsel for the Mother.  A number of matters rapidly became apparent.  The Father had no concerns about the children’s safety when with the Mother.  The Father did not pay child support for the girls because he was not assessed to do so.  He did not even inquire in this regard because he was paying X’s private school fees.  In the circumstances, the Court believes that no criticism can be directed to the Father about not paying child support for the girls.

2. The Father displayed a very poor attitude towards the Mother and about his responsibilities as a parent in a number of events.  His reason for not allowing X to travel with the Mother to (country omitted) for the purposes of the Maternal Great-Grandmother’s funeral was unconvincing.  At all times the girls were going to remain in Australia, presumably in his care.  It was inconceivable that the Mother and X would not return in those circumstances.  If the Father’s opposition was on the basis of flight risk, there was no objective basis for it.  The Court accepts, however, that the Father was concerned in part about what X had told him about the pressure that he was experiencing in the Mother’s household about coming to live with her.  The Court accepts that the Father was concerned, based on what X told him, that X expected this pressure to be worse if he was over there.  Even so, this was a risk that was probably manageable in circumstances where the girls remained in Australia.  The Father probably felt somewhat vulnerable given that he was not X’s biological father.

3. The Father demonstrated a poor attitude in not allowing the children to attend the commemorative mass for the Mother’s grandmother. The explanations that he gave in cross-examination were unconvincing.  Even if the children were to have become upset, he had no reasonable basis for thinking that the Mother could not console them.

4. The Father’s poor attitude, and lack of insight about the impact on the children of his proposal, was evident in his proposal about the changeover location to (omitted) Railway Station.  Even he conceded that it would increase the Mother’s and, therefore, the children’s travel time but not his.

5. This is a finely balanced case.  Even relatively minor lapses of judgment like the incidents referred to above could easily be determinative.  It would be relatively simple to draw the inference that what the Father was, in fact, trying to do was to control the Mother and her relationship with the children.  Against this is the reality that all parents who approach the Family Law courts act, at some time or another, in most inappropriate ways.  Both parents fall into that category.

6. The Father was extensively cross-examined about his non-acceptance of X’s views about wanting to live with his mother.  Given the quite firm views expressed by Dr H in this regard, it is not possible to be critical of the Father in this regard.

7. The Father was cross-examined about the confiscation by the Mother in July 2015 of X’s mobile telephone.  He was criticised, as well as the Paternal Grandmother, about how his actions in providing a replacement phone for X potentially undermined the Mother’s discipline of X and placed him in a difficult position so far as his mother is concerned.  This line of cross-examination might have been more effective had not the Mother, in effect, conceded in cross-examination that her confiscation of X’s mobile phone had nothing to do with discipline but, as the Court will observe below, seemingly everything to do with her acrimonious relationship with the Father.

8. It became patently obvious by the end of the Father’s cross-examination that the state of communication between the parents is totally dysfunctional.

9. The matters raised against the Father were relatively innocuous in the overall scheme of things.  There was nothing in the cross-examination to suggest, for example, that he lacked the capacity to care for all the children if they were placed in his care, subject to the assistance of the Paternal Grandmother.  There was no suggestion that he would do anything other than promote the children’s relationship with their mother.  Importantly, not only was there no cross-examination about the Mother’s family violence allegations against him, but Counsel indicated that that was a conscious choice not to do so.  The concerns that arise about the Father’s evidence are relatively mild.

The Paternal Grandmother’s Evidence 

1. Ms Short senior clearly had, and continues to have, a significant role in the lives of the children.  Her relationship with X appears to be particularly close and, indeed, it is possible to infer from the evidence that her relationship with him is even better than that of his biological mother, and psychological father.  The Paternal Grandmother impressed the Court as being very much focussed on the best interests of the children.  Should the Court decide that the children live with the Father, she will be a more than ample support system for him.  The only criticism that the Court might make about the Paternal Grandmother is that she could only see this case through her son’s eyes.  That is a malaise that is suffered by most partisan witnesses.

The Mother’s Evidence 

1. The Mother’s evidence is contained in her affidavit of 6 April 2017.  She was extensively cross-examined by Mr Lawrence, Counsel for the Father.

2. At paragraphs 72-85 of her affidavit, the Mother makes quite extensive, and serious, allegations about the Father’s family violence during the relationship.  Some of the incidents were in the presence of the children.  One of the allegations is about forced sex.  The allegations include physical violence.  One allegation includes a physical assault when the Mother was pregnant.  Notwithstanding this, it was the Mother’s position that the children were not at risk of harm in the Father’s care.  In addition, her proposal for the changeover arrangements was that this take place at (omitted) Railway Station and the only person to be present is either parent or a parent’s nominee.  The Mother agreed in cross-examination that she was present at almost all of the changeovers post-separation.  The Father’s case clearly pointed to the inconsistency between the Mother’s stated concerns about family violence, and the approach she adopted in her proposals to the Court, and to the hearing itself.

3. It is unsurprising, therefore, that the Mother would have been extensively cross-examined on these allegations.  It is still unsurprising that she would be tested on this evidence even in circumstances where it was not part of her case against the Father.  Dr H had been quite critical of the Mother in her Family Report.  At paragraph 54, for example, she referred to the Mother’s “agenda”.  At paragraph 55 she described the Mother as “a very pragmatic, goal-oriented person who may behave with a disregard for the human aspect impact of her actions”.  Indeed, later in that paragraph Dr H referred to the Mother’s attitude of “hard-nosed pragmatism”.  It is hardly surprising, therefore, that her evidence about family violence would be tested in terms of her motivation for making, and persisting with the claims, and whether this suggested a character or personality consistent with that which Dr H described in her report.

4. In short, the Mother’s evidence about family violence is problematic.  Given the history of the violence alleged, and the nature of the violence, the absence of any corroborative evidence is noticeable.  The Court acknowledges that this is not necessarily unusual in family violence cases but when the lack of corroborating evidence is considered in the context of the manner in which the mother presented her case, it becomes harder to understand.

5. The biggest problem for the Mother was the police report contained in the COPS entry of 17 June 2015.  This record is based on what the Mother told the police at an incident on separation.  This is an independent business record, prepared by a disinterested professional.  She described the problem in the relationship as being “increasing lack of communication”.

6. The record states nil prior history of violence, including stalking and intimidation and, indeed goes further and records “there has never been any physical violence between the parties during their time together”.  It is not even a case of the Mother asserting that the record is incorrect – she agreed that she never mentioned any violence to the police on this occasion.  In re‑examination by her Counsel, she sought to explain this away on the basis that she was only concerned about getting the girls back in her care.  With respect, that explanation is not convincing.  If she had told the truth about the supposed violence, it might have assisted the police in getting the children back in her care.

7. The Mother was also cross‑examined about a particular incident in which she alleges the Father kicked her and she was hospitalised for back pain following an argument.  She was taken to the discharge records of (omitted) Hospital relating to the admission which recorded the incident as being attributable to low back pain “following a fall while at work”.  Now, what is clear is that the Father was probably present during this admission, and that may well explain why the Mother would not have disclosed that the injury was caused by family violence.  That is not the problem, however.  Counsel put to her that the hospital records showed that there were no physical signs of any injury on the back, such as skin breaks, or swelling, but just tenderness.  The Mother explained that because of her dark skin colouration, it would be very hard to see any bruises.  She maintained that explanation, even though the person examining her was a doctor. 

8. The Mother’s account of the family violence is highly problematic.  Notwithstanding that, the issue that the parties presented before the Court is not whether the violence occurred, or not.  The proposals advanced to the Court about the children singularly reflect an absence of concern about them whilst in the Father’s care.  As foreshadowed above, the issue is whether this evidence would lead the Court to believe that Dr H’s depiction of the Mother as a “very pragmatic, goal‑oriented person who may behave with disregard for the human impact of her actions” is supported by the evidence, and therefore correct.

9. The Mother was cross‑examined about the evidence she gave at paragraph 64 of her trial affidavit which was extracted above in the context of a consideration of Dr H’s evidence.  Contrary to the assertion of the Father and Paternal Grandmother, the Mother insisted that X was unaware that he was going to be left behind when she took the girls.  Even if that were the case, and the Court has some reservations about whether the Mother is being truthful in this regard, the fact is that the Mother agreed she left X behind.  The potential magnitude of this on X is certainly no less if he was unaware of what the Mother was about to do.  The Mother’s evidence does little to ease the Court’s concern about Dr H’s description of the Mother.

10. The Mother was cross‑examined about why, notwithstanding orders made on 30 October 2015, the girls have not been ringing their father.  

11. Order 13 made on that date provides:  –

    The parties ensure that Y and Z have telephone communication with the father and with X, and that X has telephone communication with the mother on each Monday between 6 pm and 7 pm and for this purpose the mother is to telephone the father on his mobile telephone.

12. The substance of the Mother’s evidence in cross‑examination was that since August 2016 she basically gave up on trying to comply with this order.  She agreed that the impact of her actions was that the children could only communicate with their father when they saw him on alternate weekends.  She agreed that it was not a good thing that the children were not spending time with their father but the children were often unsettled after telephone calls and sometimes cried.  She agreed that the girls loved their father, and that her actions did not support their relationship with him.  The Mother’s failure in this regard is of concern when viewed with the totality of the evidence before the Court.

13. The Mother was cross‑examined about the nature of X’s relationship with the Father.  She was, the Court must say, surprisingly reluctant in acknowledging that X does love his father, but she acknowledged that the Father was X’s only father figure in life.  All parties concede in this case that the Father’s relationship with X is an important one, and one that must be supported.  For her to only reluctantly acknowledge the nature of that relationship is surprising, and possibly disconcerting. 

14. The Mother was cross‑examined about her plans in the area of Western Sydney in which she lives if all the children were to live with her.  Specifically, in relation to X the inquiries that she had made about his school appear superficial.  For example, she had not made an inquiry about whether the school she proposed had a (hobby omitted) program.  She had not made inquiries about whether X could participate in extracurricular (hobby omitted).  And yet, it is common knowledge that this is one of X’s major interests.  She refused to acknowledge that if X came to live with her, it would be a disruption to his schooling and his friendships in the (omitted).

15. The Mother was cross‑examined about the circumstances in which she confiscated X’s mobile telephone.  As foreshadowed, it had nothing to do with disciplining X.  She justified taking the phone off him because “it was my plan”, and there was “no point” in him having it. 

16. The Mother was also cross‑examined about not being prepared to even consider moving herself closer to the (omitted) on the basis that it would make parenting arrangements easier for all the children.  It is clear that the Mother is resolutely against this, even when acknowledging that a possible outcome of this case is that all the children would live with their father in the (omitted).  Her view was that she had greater employment prospects in Western Sydney, even though she has not found work to date, and even though she did have work as a (occupation omitted) whilst living in the (omitted).

17. There are notable aspects of concern that arise from the Mother’s cross‑examination.  Indeed, the Mother’s attitudes as can be discerned from the incidents referred to above do, indeed, paint a picture of a “pragmatic, goal‑oriented person who may behave with disregard for the human impact of her actions”.  Her intransigence about even contemplating a move to the (omitted), despite the acknowledged potential benefits to the children, does suggest some indifference to her children’s needs.  The family violence allegations are consistent with a means to obtain an end approach to the litigation.  When she gave up on phone calls in August 2016, this gives rise to concerns in the Court’s mind about her willingness to persist through adversity, even mild adversity, in supporting the children’s relationship with their father.  Her reluctance to acknowledge what seems to be the strength of X’s relationship with the Father potentially sends signals to X that the relationship is not one which the Mother values, even though this would be to X’s detriment.  Her confiscating X’s telephone in the circumstances in which she did, again seems to ignore the wider ramifications of that.

18. In a very finely balanced case, the Mother’s evidence raises serious concerns about attitudinal deficits on her part. 

Meaningful Relationship

1. The Court is satisfied that if the children live with their father, he will do everything he can to continue the children having a meaningful relationship with their mother.  The reverse situation is not so clear.  There is no question that the children enjoy a meaningful relationship with both parents.  The Court concedes that if its concerns about the Mother’s willingness to facilitate the children’s relationship with their father could be addressed, they would have a meaningful relationship with him, even on the Mother’s proposal.  Ultimately, this case will not be decided by this consideration.

Protecting the Children From Harm

1. There is no evidence to suggest that whether these children live with their mother, or with their father, or spend time with either parent, that there is any need to protect them from harm as identified in s.60CC(2)(b). Whilst it was not a part of the Mother’s case at trial, the Court in any event rejects her evidence about family violence.

The Views Expressed by the Children

1. The younger children do not have the maturity or level of understanding that the Court would place any weight on any views they have expressed.  The focus on this case is on X.  In the light of Dr H’s evidence, and her professional opinion in relation to X’s expressed wish to live with his mother, the Court places minimal weight on this.  Even if the Court is wrong on this issue, and even if X has been expressing a firm view that he now wants to live with his mother, this is nonetheless only one consideration that the Court must take into account.

The Nature of the Children’s Relationships

1. All three children, whether biological or psychological, enjoy a good relationship with both their mother and father.  Importantly, all of the children also seem to enjoy a good relationship with the Maternal Grandmother.  If the children live in their mother’s care, X would miss the relationship he appears to enjoy with the Paternal Grandmother.  The fact that X’s relationship with both his father, and the Paternal Grandmother is not biological is largely irrelevant in this case.

2. The Court cannot ignore Dr H’s expert opinion about the nature of the Mother’s attachment to X. 

3. It is possible that none of the orders proposed will affect the children’s relationship with their parents, subject to the Court’s reservations about the Mother’s inability to encourage the girls’ relationship with their father at times.  It is the Paternal Grandmother’s relationship with X that is most vulnerable if X lives with his mother.

Participation in Decision‑Making, Spending Time With the Children, and Communicating With the Children

1. This is a high‑conflict, low‑trust, dysfunctional communication case.  It is not surprising that both parents can be criticised for not doing enough.  The Mother deprived the girls of time with their father in the immediate post‑separation period.  The Father deprived X of time with his mother in that same period.  The parental inability to communicate has meant that they have not participated in decisions about matters such as, for example, X’s counselling.  The Mother gave up on facilitating the children’s telephone communication with their father.  The parents have otherwise tried hard, and despite formidable logistical challenges, to ensure that both the spirit and the letter of the orders for the children to spend time with each parent have been complied with.

Parental Obligations to Maintain the Children

1. The Court does not regard this as an issue in this case.  The Father has been paying X’s private school fees.

The Likely Effect of Change in the Children’s Circumstances

1. This is a difficult issue.  The Court believes, from the evidence before it, that if X were placed in his mother’s care, this would be yet another major change in his life - a life that has already been marked by disruption and upheaval, both in terms of places and people.  He seems to be struggling at school at times.  His sport and friendships seem important to him, unsurprisingly given his developmental stage.  Moving him is problematic, but more so in a context where the move renders vulnerable his relationships with the Father and Paternal Grandmother, much more so than the relationship with his mother if no move is made.

2. In relation to the girls, there is no doubt that moving them into the Father’s care would be a major upheaval in their life.  True it is that the Court is confident that the Father would ensure that they have an ongoing relationship with their mother, but that does not lessen the magnitude of the change for them.

3. On either proposal, the children are exposed to change.  Moreover, the Court must appreciate the reality that at some stage in the near future X, given his developmental stage, will start deciding for himself where he wants to live.  This will be irrespective of the Court’s decision. 

Issues of Practical Difficulty and Expense

1. There is a geographical distance between the parents.  They have managed to navigate the logistical challenges with one parent living in the (omitted), and the other in Western Sydney, quite capably but the Court is left in no doubt that it is the children who bear the greatest burden of travel.  At one level, the Court is satisfied that whatever order it makes, the parents will make it work, and the children will cope.  It is still less than optimal.  The Father provides a reasonable explanation for not being able to relocate from the (omitted) to Western Sydney.  He is very close to his parents, and is dependent on the Paternal Grandmother to assist in the care of the children - a matter in respect of which there was no criticism made by the Mother as to the quality of that support.  Indeed, the Father may well be able to obtain employment as a (occupation omitted) in Western Sydney, but that is not the concern he raises; it is the disconnection from his support system.

2. The Mother’s support system in the Western Sydney area is both newer and shallower compared to that of the Father’s.  She has friends there, but not family.  Her assertion that she has greater job prospects as an (occupation omitted) in Sydney’s western suburbs is somehow quite at odds with the fact that she has lived there for so long, but not obtained work so far, even on a casual basis.  In this regard the Court acknowledges that the children have only just started going to school and preschool but it is nonetheless odd that she has not been able to obtain even occasional casual work in circumstances where she says she has a good support system.  Dr H’s criticism of the Mother for not considering a relocation to the (omitted) is not without foundation on the evidence.

Issues of Parental Capacity, and Parental Attitudes

1. This is one of those cases which will largely be decided on these considerations which are conflated for present purposes.  At one level, each parent has the capacity to provide for the children’s physical needs and, arguably, intellectual needs.  The issue really focuses on emotional needs, and in particular on parental attitudes that, as evidenced by what they have said and done in the past, gives confidence to the Court that in the future they will support the children’s relationship with the other parent.  As the discussion of the evidence given by both parents in cross‑examination demonstrates, neither is faultless in this regard.  On balance, however, and having carefully considered the evidence in a finely balanced case, the Court finds that Dr H’s assessment of the Mother as a “pragmatic, goal‑oriented person who may behave with disregard for the human impact of her actions” is in fact borne out by the evidence.  This makes the Mother’s proposal problematic.

Family Violence

1. This has been discussed earlier in these reasons.  The Court does not accept the Mother’s family violence allegations against the Father.  Indeed, regrettably, it forms the impression that there was an opportunistic element to these, and that they were made with a view to improving her prospects in the present proceedings. 

Issues of Maturity, Sex, Lifestyle and Culture

1. The children are of mixed (nationality omitted) and Australian descent.  It is probably the case that the Mother is more likely to facilitate their continued involvement in that with their cultural background, but even in her evidence, this did not seem to be a priority.  This is, ultimately, not a determinative issue.

An Order that is Least Likely to Lead to the Institution of Further Proceedings

1. In a high‑conflict, low‑trust and communicate case like this one, it is never possible to exclude the risk of further litigation.  On balance, the Court considers there is a greater risk if the children were to live with their mother.  Some of her attitudes, as evidenced by her actions, do suggest that it may be necessary for the Father to seek to enforce orders for his time and communication, given the Mother’s seeming reticence at times.  The other possibility that might lead to litigation is the fact that X may decide for himself where he wants to live.

Parental Responsibility and its Consequences

1. The parents agree there should be an order for equal shared parental responsibility.  This means the Court must consider equal time, or substantial and significant time.  Neither party proposed equal time, and for good reason.  It would neither be in the best interests of these children, because of the parental relationship, nor would it be reasonably practicable given the geographical issues that presently exist. 

2. The Father’s proposal is much closer to an order for substantial and significant time than that of the Mother.  In particular, should the Mother relocate to the (omitted) area, he proposes that the children live with her from each alternate weekend from after school on Thursday to the commencement of school on Monday, but if she does not so relocate, from 6 pm on Friday until 5 pm on Sunday.  The latter is warranted because of geographical issues of distance.

3. The orders that each party proposes for school holidays are largely unproblematic.

Orders in the Best Interests of the Children?

1. The Court wishes to emphasise that this is a finely balanced case.  Ultimately, the Court’s concerns about the Mother lead it to conclude that it is in the best interests of the children that they live with their father.  The girls should go into their father’s care during the second week of the forthcoming July school holidays. 

2. The Court is satisfied that, with one exception, the orders proposed by the Father relating to school holidays, special occasions, communication, and other matters, are in the children’s best interests, and are in any event workable.  Whereas the Father proposed changeover at (omitted) McDonalds, if the Mother does not relocate to the (omitted), the Court believes that this is unfairly burdensome on her.  The venue will remain as it is, i.e., (omitted) Railway Station.

3. The Father proposes orders restraining both parents from taking the children outside of Australia. 

1. He also proposes a watch‑list order.  In the circumstances of this case it is appropriate.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date: 28 June 2017

Schedule One

Order Proposed by the Father

1. That the parties have equal shared parental responsibility for the children X, born (omitted) 2002, Y, born (omitted) 2011 and Z, born (omitted) 2013 (hereinafter collectively referred to as “the children”)

2. That each party have sole parental responsibility for making decisions about the day to day care, welfare and development of the children during periods when the children are in that party’s care.

1. That the children live with the father at all times when the children are not living or spending time with the mother in accordance with these orders.

2. That the children spend time with the mother as agreed between the parties and failing agreement then as follows:-

   a.During each NSW school term:-

   i.In the event that the mother relocates to the (omitted) area:

   1.On each alternate weekend from the conclusion of school on Thursday until the commencement of school on Monday, or if it is not a school day then from 3.00 p.m. on Thursday until 9.00 a.m. on Monday; and

ii.In the event that the mother does not relocate to the (omitted) area:

1.On each alternate weekend from 6.00 p.m. on Friday until 5.00 p.m. on Sunday.

b.During NSW gazetted school holidays at the end of the first, second and third terms in each school year:

1.As agreed between the parties and failing agreement then for the first half of the school holiday period in years ending in an even number and for the second half of the school holiday period in years ending in an odd number.

c.During the NSW summer school holiday period between the end of one school year and the beginning of the following school year:

1.For one half of the school holiday period as agreed between the parties with regard to the parties’ respective periods of leave from their employment and failing agreement then as follows:-

a.For the first half of the holiday period in years where the holidays commence in a year ending in an even number; and

b.For the second half of the holiday period in years where the holidays commence in a year ending in an odd number; and

1. That the time the children would otherwise spend with the mother in accordance with Order 4 above be suspended and the children spend additional time with the father for special occasions as follows:

a.At Christmas in odd-numbered years, from 12.00 a.m. on Christmas Eve until 12.00 p.m. on Boxing Day

b.For Father’s Day from 10.00 a.m. on the Saturday preceding Father’s Day until 5.00 p.m. on Father’s Day, and that should this period fall on a weekend which the children would otherwise spend with the mother, the children shall spend the following weekend with the mother in lieu;

c.At Easter in even-numbered years from the conclusion of school on Thursday preceding Good Friday (or 3.00 p.m. if it is not a school day), until the commencement of school on Tuesday following Easter Monday (or 9.00 a.m. if it is not a school day)

1. That the time the children would otherwise spend with the father in accordance with Order 3 above be suspended and the children spend additional time with the mother for special occasions as follows:

a.At Christmas in even-numbered years, from 12.00 a.m. on Christmas Eve until 12.00 p.m. on Boxing Day

b.For Mother’s Day from 10.00 a.m. on the Saturday preceding Mother’s Day until 5.00 p.m. on Mother’s Day, and that should this period fall on a weekend which the children would otherwise spend with the father, the children shall spend the following weekend with the father in lieu;

c.At Easter in odd-numbered years from the conclusion of school on Thursday preceding Good Friday (or 3.00 p.m. if it is not a school day), until the commencement of school on Tuesday following Easter Monday (or 9.00 a.m. if it is not a school day)

1. That, in the event that the mother relocates to reside in the (omitted) area, changeover take place at the children’s school(s), or if it is not a school day then at (omitted) McDonalds.

2. That, in the event that the mother does not relocate to reside in the (omitted) area, changeover take place at (omitted) McDonalds.

1. That the children have telephone communication with the mother on each Wednesday at 6.00 p.m. and that for the purposes of this telephone communication, the mother call the father’s mobile telephone.

10.That each party is restrained by injunction from passing information or messages to the other via the children, or denigrating the other party or members of their family in the presence or within hearing of the children.

11.Each party is authorised by this order to receive directly from the children’s school a copy of school reports for the children, school photos (at the cost of the party requesting the photos), school newsletters, and other documents normally provided to parents.

12.That each party is to keep the other informed of his or her residential address and notify the other party of any change to their residential address at least fourteen (14) days in advance of any such change.

13.That each party is to keep the other informed of a contact telephone number(s), and notify the other party of any change to their contact telephone number(s) within forty-eight (48) hours of any such change.

14.That each party is to inform the other as soon as is reasonably practicable if any of the children become seriously ill or injured while living or spending time with them.

15.That each of Mr Short, born (omitted) 1982, and Ms Short, born (omitted) 1979, and their servants or agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of X, male, born (omitted) 2002, Y, female, born (omitted) 2011, and/or Z, female, born (omitted) 2013 from the commonwealth of Australia.

16.X, Y and Z be and are hereby restrained from leaving the Commonwealth of Australia.

17.It is requested that the Australian Federal Police give effect to the preceding orders by placing the names of the said child or children on the Family Law 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.

Schedule 2

Order Proposed by the Mother

IN THE FEDERAL CIRCUIT
COURT OF AUSTRALIA
AT WOLLONGONG

FILE NO: WOC605/2015

BETWEEN

MR SHORT

(Applicant)

AND:                 MS SHORT

(Respondent)

MINUTE OF ORDER

Prepared for the Respondent Mother           Dated:  13 April 2017

1. That the children X born (omitted) 2002, Y born (omitted) 2011 and Z born (omitted) 2013 live with the mother.

2. That the parents have equal shared parental responsibilities for the children.

3. That the children spend time with the father as follows:-

   (a)Each alternate weekend from 10am Saturday to 5pm Sunday during school terms.

   (b)For the Term 1, 2 and 3 school holidays from 10am on the first Saturday of the school holidays until 10am on the following Saturday.

   (c)For the Christmas school holidays in each odd numbered year from the day after the last day of the school until 5pm on the mid point day of the school holidays and in even numbered year from the mid point day at 10am until 5pm until the second last day of the Christmas school holidays. 

   (d)For Christmas in each even numbered year from 10am on Christmas Eve until 10am on Boxing Day.

   (e)On the Father’s Day weekend if the children would not otherwise be with the father and in lieu of the visit the following weekend from 10am Saturday until 5pm Sunday.

   (f)Or any other such times as mutually agreed between the parties. 

4. That changeover of the children take place (omitted) Railway Station and at only person either being the parent or the parent’s nominee is to attend changeover.  .

5. That the father’s time with the children is suspended as follows:-

   (a)  On the Mother’s Day weekend  if the children would not otherwise be with the mother and in lieu of the visit the following weekend from 10am Saturday to 5pm Sunday, and

   (b)  In odd numbered year from 10am Christmas Eve to 10am Boxing Day.

6. Each parent is at liberty to telephone each child of the children on their birthdays if the child is not already in their care at 6pm with the parent to telephone the children on a telephone number provided to them by the other parent.

7. That at any time when the children are in the father’s care the father ensures that X has his own bedroom and that Y and Z share their own bedroom.

8. That each party notify the other party as soon as reasonable possible of any medical emergencies, hospitalisation, specialist medical appointments and the party obtaining that treatment authorise the treatment provider to release to the other party all related information.

9. That the mother is to authorise the school or preschool attended by each child to release to the father copies of all school reports, details of parent teacher interviews and school photographs and of any event at the school that parents would normally be invited to attend. 

10. That each party is to provide to the other party a contact telephone number and each party is to notify the other party as soon as reasonably possible of any changes to their contact telephone number. 

11. That neither party is to denigrate the other party in the presence or hearing of any of the children and each party is to remove the children from presence or hearing of any third party who denigrates the other party in the presence of hearing of the children.

12. That neither parent is to enrol any of the children in any social or sporting event that would impact upon the other parent’s time with or live with without the prior written consent of the other parent and the parent who enrols any of the children in such events is to provide to the other parent details relating to any of the children’s activities or games.