SOLOMON & SOLOMON

[2015] FCCA 3078

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOLOMON & SOLOMON [2015] FCCA 3078

Catchwords:
FAMILY LAW – Interim parenting – where final hearing adjourned because of over-listing and non-compliance with trial directions – why the directions are made for the filing of a single consolidated affidavit – interim issues arising out of the adjournment – spending time and communicating with the father.

Legislation:

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

Federal Circuit Court of Australia Act 1999 (Cth), s.3

Goode & Goode [2006] FamCA 1346
MRR v GR [2010] HCA 4

Applicant: MS SOLOMON

Respondent: MR SOLOMON

File Number: WOC 611 of 2007

Judgment of: Judge Altobelli

Hearing date: 2 November 2015

Date of Last Submission: 2 November 2015

Delivered at: Wollongong

Delivered on: 11 December 2015

REPRESENTATION

Counsel for the Applicant: Ms Humphreys

Solicitors for the Applicant: Hansons Lawyers

The Respondent appeared in person

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitors for the Independent Children's Lawyer: Legal Aid NSW

ORDERS PENDING FURTHER ORDER

1. The Mother have sole parental responsibility for the Children X (born (omitted) 2002) and Y (born (omitted) 2003) (“the Children”).

2. The Children live with the Mother.

3. The Children spend time with the Father as follows, at a minimum:-

   (a)In January from 10am-4pm as agreed between the parties or failing agreement on 25 January from 10am-4pm;

   (b)(omitted) (X’s birthday) as agreed or failing agreement on a school day from after school until 8:30pm or on a non-school day from 10am-4pm on the immediately following Sunday;

   (c)(omitted) (Y’s birthday) as agreed or failing agreement on a school day from after school until 8:30pm or on a non-school day from 10am-4pm on the immediately following Sunday;

   (d)(omitted) (Father’s birthday) as agreed or failing agreement on a school day from after school until 8:30pm or on a non-school day from 10am-4pm on the immediately following Sunday;

   (e)(omitted) (Z’s birthday) as agreed or failing agreement on a school day from after school until 8:30pm or on a non-school day from 10am-4pm on the immediately following Sunday;

   (f)Father’s Day from 10am – 4pm;

   (g)Christmas in each even numbered year from 10am – 4pm;

   (h)Boxing Day in each odd numbered year from 10am – 4pm;

   (i)All other times that the children or either of them so request.

4. The time in Order 3 be spent with the Father and another adult above the age of 18.

5. The Children communicate with their Father by telephone at any time the Children express a wish to do so.

6. The Father be permitted to telephone the Children each Thursday between the hours of 5:30pm and 6:00pm to the telephone number (omitted), with the father to call between those times and the mother to ensure that:

   (a)the children are available to take the call; and

   (b)the phone is charged and switched on.

7. The Mother shall keep the Father informed, as soon as reasonably practicable, or failing this within seven days, of any long term decisions made for the Children.

8. The Mother shall keep the Father informed, as soon as reasonably practicable, or failing this within seven days, of any medical problems or hospital admissions of the Children.

9. The Mother shall use her best endeavours to encourage the Children to spend time and communicate with the Father.

10. Excluding parent teacher interviews, the father is at liberty to attend school functions or events that parents are ordinarily invited to attend such as presentation evenings, special assemblies and school concerts.

11. The mother is to authorise the school to provide the father with a copy of school newsletters and school reports relating to the children.

FURTHER ORDERS

1. The matter be stood over for Final Hearing commencing 11 July 2016 at 10:00am.

2. Both parties file and serve any Amended Application / Response upon which they intend to rely by no later than 20 June 2016.

3. Each party is to file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witness’s affidavits by no later than 20 June 2016.

4. Neither party may rely on any documents filed after 20 June 2016 without leave of the Court, and in the event of non-compliance with these filing directions the Court will at its discretion either vacate the trial dates or list other matters with priority.

5. Each party is to file and serve a Case Outline document by no later than 4:00pm on 4 July 2016, setting out:

   (a)a list of documents to be read in their case;

   (b)a precise Minute of Orders Sought;

   (c)a list of objections to evidence and the basis for such objection;

   (d)a brief summary of argument touching upon the matters set out s.60CC of the Family Law Act 1975, with reference to the relevant evidence relied upon;

6. The Applicant is to comply with the payment of any setting down and/or daily hearing fee in accordance with Rules 24.03 and 24.04 of the Federal Circuit Court Rules 2001 or as otherwise directed by the Registry Manager by the date of filing of further material.

7. In the event that either party wishes to cross examine the Family Report writer at the final hearing, that party shall provide written notice to the Family Report writer within 14 days from this date or in the event that the Family Report is not yet released then within 7 days from the date of receipt of the report and in the event that no notice is given to the Family Report writer and the Family Report writer is unavailable the Family Report will be admitted into evidence without cross-examination subject only to evidentiary objection.

8. Both parties and the Independent Children’s Lawyer are granted leave to issue such Subpoena as they consider relevant to the issues before the Court.

NOTATIONS

(A)A party’s trial Affidavits will not be read until the Case Outline document has been filed and served in accordance with these directions, which may result in the Final Hearing dates being vacated.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 611 of 2007

MS SOLOMON

Applicant

And

MR SOLOMON

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment explain the interim orders that the Court has made as a result of the final hearing that was originally listed for 2 November 2015 having to be adjourned to 11 July 2016.  The case concerns two children, X, who is 13, nearly 14, and his sister, Y, who is 12.

Reason for Adjournment

1. This hearing was adjourned because it was listed against another case involving parenting issues.  The over-listing of cases in this registry of the Court is standard procedure.  It would not be possible to somehow accommodate the number of cases that need to be heard within the available judicial resources, unless cases were over-listed.  A direction was made, as is standard, that each party file and serve one consolidated Affidavit in support of the orders sought by them, together with any other witnesses’ Affidavits.  This order was not complied with. 

2. In the other case listed, however, the order was complied with.   Notwithstanding the orders made, the Father sought to rely on his Affidavit of 25 October, together with five earlier Affidavits, all of which he asserted were still relevant.  In the Mother’s case, she sought to rely on her Affidavit of 26 October 2015, as well as two earlier Affidavits.

3. It is important to record the reason for making such orders.  This is an exceptionally busy registry of the Court.  It is by no means the only registry of the Court that is exceptionally busy.  The volume of cases requiring judicial determination is completely disproportionate to the judicial resources available.  With wise judicial management of cases, together with some luck, windows of opportunity arise for the preparation of a case listed for hearing.  These windows of opportunity are generally for very finite periods, and the window metaphorically closes, often on short notice, as a result of the need to attend to urgent matters that are impossible to predict.  The first rationale for the direction, therefore, is that it enables the Court to prepare cases properly within the generally limited time available. 

4. It is much easier to prepare a case when the evidence of the parties is limited to the one consolidated Affidavit.  It is both easier for Chambers to prepare the file, and for the judge to read the material in question.  The importance of having a single consolidated Affidavit, however, extends beyond mere preparation.  The conduct of the hearing is all too often rendered more complex, indeed unnecessarily so, when there are multiple Affidavits which may (in some cases) need to be the subject of both objection and cross-examination. 

5. Multiple affidavits often confuses the deponent in the witness box, as well as those conducting the cross-examination, and the judge presiding over the same.  Moreover, multiple affidavits invariably duplicates existing material, thus forcing both the reader and cross-examiner of the affidavits to go over the same material, unnecessarily.  A single consolidated affidavit is, therefore, a more efficient and effective enhancement to the litigation.  This is the second rationale for the order. 

6. The third rationale for the order barely needs to be articulated. Whatever the rationale for an order might be, and irrespective of one’s perception of the utility of the same, an order for the filing of one consolidated Affidavit is an order of the Court that must be complied with. Compliance is not optional. The Federal Circuit of Australia is a high volume Court. Whilst it is true that s.3 of the Federal Circuit Court of Australia Act 1999 (Cth) establishing the Court states as objects of the legislation that the Court should operate as informally as possible and to use streamlined procedures, this does not detract from, but rather emphasises the critical importance of, managing a judicial workload as effectively and as efficiently as possible.

7. The order for the filing of a single consolidated Affidavit is an integral part of this.  The Father in this case, who presents as a highly intelligent and articulate man and who describes himself as an accountant, explained to the Court that he had not noted the order in question.  The Mother in this case is represented by both solicitor and counsel.  She explained, through her Counsel, that the reason why she couldn’t comply is because she had experienced difficulties with her grant of aid and in the transfer of the file from one legal representative to another. 

8. Neither explanation is good enough.  Increasingly, there will be competition for Court time in this registry.  Hitherto cases have only been double listed for hearing, but in 2016 they will be triple listed for hearing.  Those cases that are properly prepared, in accordance with orders made, are more likely to be heard than those where orders have not been complied with.  As it turns out, however, the best interests of X and Y have not been detracted from in any way as a result of the adjournment of the hearing, except to the extent that a final decision has been postponed.  

The Interim Application

1. Pursuant to consent orders made on 16 October 2014, the Mother has sole parental responsibility for the children and they live with her.  The children spend time with the Father each alternate Sunday from 10:00am until 2:00pm, and each alternate Tuesday from 6:00pm until 8:00pm, provided their time with him is supervised.  The children may further communicate by telephone with their father each Friday between 5:00pm and 5:30pm. 

2. Each party proposes that the existing interim orders be varied.  The Mother proposes that the Father’s time be limited to, in effect, special days, including 25 January, (omitted) (X’s birthday), (omitted) (Y’s birthday), (omitted) (the Father’s birthday), (omitted) (Z’s birthday), Father’s Day, Christmas Day, Boxing Day, and at all other times that the children, or either of them, so request.  The Mother’s proposal is, in effect, supported by the Independent Children’s Lawyer.  The Minute of Order sought by the Mother, and the supplementary orders sought by the Independent Children’s Lawyer and consented to by the Mother, are reproduced in the first schedule to these reasons.

3. The orders proposed by the Father are set out in the second schedule.  He proposed that the children live with him from Friday after school to Monday before school each alternate weekend, together with half of each school holiday.  However, the children be empowered to vary this arrangement by a telephone call to their father.  He also proposed that the children spend time with him on special days.

4. As is apparent, the parents remain diametrically opposed as to what parenting arrangement is in the best interests of their children.  The Mother proposes that the existing arrangement be further restricted, whilst the Father proposes that it be significantly expanded. 

The Evidence

1. The Mother relied upon the following documents:

   ·Initiating Application filed 4 July 2014;

   ·Affidavit of Ms Solomon filed 26 October 2015;

   ·Affidavit of Ms Solomon filed 12 November 2014;

   ·Affidavit of Ms Solomon filed 4 July 2014;

2. The Father relied upon the following documents:

   ·Affidavit of Mr Solomon filed 27 October 2015;

   ·Affidavit of (omitted) filed 27 October 2015;

   ·Affidavit of Ms L filed 27 October 2015; and

   ·Affidavit of Mr Solomon filed 8 December 2014.

3. The Court also had the benefit of the following evidence:

   ·Family Report dated 24 September 2015;

   ·Family Report dated 20 April 2010; and

   ·Child Inclusive Conference Memorandum dated 21 August 2014.

The Applicable Law

1. In determining parenting matters under Part VII of the Family Law Act 1975 (hereafter referred to as ‘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. In MRR v GR [2010] HCA 4, the High Court said

   8.  Sub-section (1) of s 65DAA is headed "Equal time" and provides:

   "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."  (emphasis added)

   Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)).  In such a circumstance the Court is obliged to:

   "(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."

   Sub-section (3) explains what is meant by the phrase "substantial and significant time".

   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".

3. 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.

4. The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.

   68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.

   …

   72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.

   …

   82. In an interim case that would involve the following:

   (a) identifying the competing proposals of the parties;

   (b) identifying the issues in dispute in the interim hearing;

   (c) identifying any agreed or uncontested relevant facts;

   (d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);

   (e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;

   (f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;

   (g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;

   (i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;

   (j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and

   (k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.

The Contentions Summarised

1. Briefly summarised, the Father’s contention was that the present situation arose out of what he discussed as a frivolous Apprehended Domestic Violence Order (ADVO) that had been lodged and subsequently made against him at a final hearing, but successfully overturned on appeal.  He relied on the fact that his son, X, had admitted in cross-examination that he had exaggerated the claims.  Thus, from the Father’s perspective, there was no basis for the restrictions imposed upon him, and that if the children were resisting spending time with him it merely reflected the Mother’s negative view about the issue.  In short, there was no reason for him not to have time with the children, and there was certainly no basis for such time to be supervised.  Also, whilst distancing himself from parts of the Family Report, he submitted that the observations recorded in the most recent Family Report are consistent with the case he presents to the Court. 

2. The Mother’s contention was that the children continued to be, indeed were increasingly, anxious about spending time with their father, and that this was supported by the Family Report.  Given the long history of the litigation, the ages and the maturity of the children, and the Father’s significant lack of insight into the needs of the children, an order that restricted time and communication, pending further order, was in fact in the children’s best interests.

3. The Independent Children’s Lawyer contended that, in effect, the interim issue could not be determined by reference solely to the Father’s success in the appeal against the ADVO.  The evidence strongly suggested the children were resisting spending time with their father for reasons based on their experience of him, rather than anything that the Mother had said or done.  In short, realistic estrangement was the more likely phenomenon, than alienation.  The Father’s lack of insight continued to be a significant concern in this case. 

The Expert Evidence

1. Even though this is an Application for interim orders, there was considerable evidence before the Court.

2. The evidence of Ms K, the Family Consultant, is particularly significant because it is both independent and expert.  The obvious limitation on her evidence is that it has not been tested in cross-examination.

3. Ms K’s first Report is dated 14 May 2010 and is based on interviews and observations held 20 April 2010.  This Report provides some important background to the present dispute and, perhaps more significantly, suggests that the problems existing in the family well and truly pre-date the ADVO incident and, indeed, are deeply entrenched problems.

4. At paragraphs 26-28 of her Report, Ms K discusses the children and their relationships: 

5. In relation to X, the Family Consultant records at paragraphs 32-33:

   X presents as a confident child who spoke positively about school and his friends there, whom he also spends time with during weekends. He described his mother in positive terms and said there was nothing he would want to change about her. He also spoke positively about spending time with his father in the context of Z also being there. Overall, however, it seems that there are many aspects of his father's personality and parenting style which X experiences as negative. He said that he is 'scared' of his father when he loses his temper and 'whacks' him. X perceives that his father is 'angry a lot' and links this anger to the number of times his father 'smacks' him. He said that the whacking/smacking is usually done by Mr Solomon hitting him across the head with an open hand 'four or six times'. He expressed anger that Y is not subject to this treatment. He also expressed resentment regarding the alleged number of chores he is required to complete when with his father. X's reaction to his father's anger is a feeling of 'hurt and..' sadness.

   X's ideal father would be 'more relaxed; not working all the time; spending more time with me; not getting really angry and losing his temper'. In the context of these statements X said that he is usually 'only scared of Dad a little bit'.

6. In relation to Y, the Family Consultant notes at paragraphs 35-36:

   Y presents as a quiet child whose affect was, initially, flat. While showing physical signs of being nervous or anxious her responses to questions indicated a confidence. She said that enjoys school but considers the amount of time she spends there as being 'too much'. She spoke about seeing her school friends during the weekends. She described each parent in positive terms commenting negatively only in relation to some minor issues, although it seems she would prefer to spent more time in her mother's home rather that visiting the home of her mother's partner.

   For Y it is her mother who is the angrier parent, describing her father as 'only shouting when we do something wrong or be naughty'. However, in the context of this exploration, Y expressed a wish that her father did not shout so much and said that she wishes she could return to her mother when her father shouts. She also said that she misses her mother when with her father, saying that during the school holidays, when she had stayed with her father 'for a whole week ...[she] felt sad every day'. According to Y she has told her father about these feelings.

7. The observations are recorded at paragraphs 37-38:

   The children were relaxed in the observations with each of their parents, but were more animated with their mother than with their father, and greeted Mr C with warmth when he joined the group. The children maintained close physical proximity to with each parent.  The parents each had a very different style of interaction with the children: Ms Solomon was content to follow the children's play and enter into their game; Mr Solomon seemed to experience some difficulty in entering into the children's play and some five to ten minutes passed before the group interacted  in a cohesive manner. Mr Solomon then demonstrated that he is able to enter the children's world. The children confidently contradicted their father when he made suggestions about what their drawings represented.

   At the end of the interviews the children approached their father to say good­ bye. The children's behaviour was affectionate and marked by warmth. In contrast Mr Solomon's response was restrained and lacked warmth.

8. The Family Consultant’s evaluation commences at paragraph 40.  At paragraphs 41-42 she states:

   Ms Solomon and Mr Solomon are parents with very different personalities and thus, as identified by Mr Solomon, different parenting styles. In an intact family these differences can be complimentary or, alternatively, one parent will be the mediator between the children and the other parent. However, in two separate homes, children are likely to experience difficulty in adjusting to the different personalities and/or parenting styles in the absence of another adult to act as the mediator between them and their parent. It seems that this is the situation for X and Y when with their father, particularly in relation to his approach to discipline and his expectations of their behaviour when in his care. Interestingly, Mr Solomon is able to acknowledge that he feels the need to shout when the children, particularly X, do not comply with him. Of some concern, however, is the fact that Mr Solomon does not seem to have the ability, at least on the day of the interviews, to reflect on what effect his shouting might have on the children. Despite exploring this aspect of his parenting more fully in the context of the children's comments, particularly those of X, Mr Solomon did not demonstrate that he was able to understand why the children might find the shouting distressing. Nor did he seem to understand why, as a result of his shouting, the children might equate such behaviour with anger. He was somewhat dismissive of the children's comments about his shouting.

   It seems that Ms Solomon, as a result of her probably projecting some of her past experiences of Mr Solomon onto the children, albeit perhaps unconsciously, is unable to acknowledge that she might play in role in the difficulties the children are experiencing in the transition between the homes. Ms Solomon's attitude might, in part, explain the children's alleged reluctance, on occasions, to spend time with their father. It is of concern that X has such a significant awareness that his mother misses him, when he is at her father's. This awareness is likely to be a direct consequence of this being communicated to him by her mother. Mr Solomon's behaviour is what probably what leads Y to wish to return to her mother's care.

9. Then at paragraph 44, commencing at the sixth sentence on page 15, the Family Consultant states:

   However, unless Mr Solomon  is able to  change  the  way  in which  he  deals  with  his  anger and boundary setting for the children, it is likely that both children will continue to experience difficulties when in his care. Hitting a child is not an appropriate form of discipline, particularly as a child moves towards the end of middle childhood towards adolescence. It is important that parents, over the course of each developmental stage, model appropriate behaviour and problem solving strategies for their children. A failure to do so can result in the child adopting the behaviour and problem solving strategies of the parent and lead to a range of problems in all areas of their lives. X is already exhibiting some problematic behaviour within the classroom.

1. In short, even in 2010, Y was anxious, both children were observed to have emotional concerns after spending time with their father, the Mother and Father’s perception about these issues were different, X was scared of his father and experienced him to be angry, Y experienced her mother to be the angrier parent, but wished that her father did not shout so much, the Father’s interaction with the children was restrained and lacked warmth, the Father was observed to lack insight about the children’s needs, and the Father’s anger and boundary setting for the children was identified as an issue for him.

2. All of these issues were present in 2010 and, to different degrees, appear to continue to be present in 2015. 

3. Ms K met with the family again on 21 August 2014 at the Child Inclusive Conference.  X described experiencing his father as often being angry and having a negative attitude to him.  He expressed his concern that his father becomes very angry about small things, and will then provide X with contrary directions about what he is to do.  He is wary of his father and experienced him as emotionally unpredictable.  He explained that sometimes, on the day on which he will be spending time with his father, he becomes distracted at school, wondering what type of mood his father will be in.  He is happy to spend time with his father when he wants to and said this would be likely to include both midweek and weekends.  Y was clearly anxious.  She said that it was really scary when her father gets angry. 

4. The second Family Report is dated 24 September 2015 and is based on interviews and observations conducted on 1 September 2015.  By the time of the interviews in question, X was involved by his father in the defended ADVO proceedings, by way of giving evidence at the hearing.  X possibly also gave evidence at the appeal.  At paragraph 16 of the Report the Family Consultant records:

   Mr Solomon advised that he had appealed and seemed to take pleasure in the fact that, “X said he had exaggerated” about the alleged aggression of his father.

5. The Family Consultant observed at paragraph 21 that both children exhibited behaviour during their individual interviews indicative of each of them experiencing a high level of anxiety, which appeared heightened when they were responding to questions about their time and the relationship with their father. 

6. Regarding X, the Family Consultant records at paragraphs 23-24 as follows: 

   X’s comments indicate that his level of comfort in relation to being with his father is directly related to the presence of Z. He, however, commented, somewhat tentatively, that “perhaps if one time Z was not there”, it might be “okay”.  He continues to express concern about his father’s anger and believes that his father is less likely to display anger in Z’s presence.  X said that he believes that his father has changed somewhat, “He seems calmer”.  He linked this to his belief that his father would not want his current time with the children to be reduced.  X was, however, very tentative about the possibility of the change he perceives in his father’s behaviour continuing if Z is not present.  He was very uncertain as to whether this calmness he perceives in his father is a change which will persist.   X is adamant that he would not want to live an in equal time arrangement and that he would not be comfortable with any changes, except small ones, to the current arrangements.  X, on reflection, said that that he is “busy” during the week and that a change to the mid-week dinner (which is what he was considering) would impact on his other scheduled activities such as tae kwon do and homework club.

   X is adamant that  he is still not feeling confident about his time with his father either increasing or being unsupervised.  He said that he would “always” want to be able to spend time with his father, but prefers that it be at his instigation.  However, other comments made by X, indicate he is likely  feeling a sense of obligation and guilt about the time he spends with his father.  When asked whether or not attending counselling with his father might assist, X was adamant that he would not want to attend.

7. In relation to Y, the Family Consultant records at paragraph 26: 

   According to Y, when she spends time with her father they have been going on bike rides.  She added “it is similar to in the past”.  Y said she would be worried if Z was not spending time with them when she and X are with their father and, like X, wondered whether Z’s presence is a contributing factor to her father rarely being angry.  She was unsure about spending time with her father if Z was not present but said she “might be prepared to do it”.  She said that if she “had to go overnight I would do it but I would not want to”.  Y said that, currently, she would rather not have to spend any time with her father.  She was unsure what she might feel about spending time with him in the future.  As during her prior interviews for the family report (2010) and the CIC, Y made little eye contact, and it was only as the interview progressed that her answers moved from nods and/or shakes of her head, to monosyllabic and then whole sentences.  The latter, however, was clearly difficult for her.  It is evident from many of her responses, particularly when she was using Thoughts and Feelings cards (a sentence completion intervention) that Y continues to experience a significant level of emotional turmoil in relation to many aspects of her family, particularly her relationship with her father.

8. The observations of the children with their parents are recorded at paragraphs 27-28: 

   During the observations of the children with the maternal family (their  mother and their adult half-siblings) they appeared relaxed although this would be expected.  However, using that observation as the baseline to assess the children’s level of anxiety and/or comfortableness in the observation of them with the paternal family (the father and their paternal half-sister), X appeared almost as relaxed as he had been with the maternal group.  He was, however, the person who injected the cohesive component into the group.  Y, who sat adjacent to her father, even though he suggested she might like to move to sit next to Z (which would her put her at a greater distance from him) also appeared relatively relaxed. The anxiety behaviours Y had exhibited in her individual interview were no longer present.  Y made eye contact with her father, and was jokingly dismissive of his attempts to understand the rules of the card game they were playing.  Overall, Y’s presentation in both observations bore no resemblance to her anxious and somewhat withdrawn presentation during her individual interview.

   At the end of the observations, when Mr Solomon and Z were leaving, there were affectionate interactions between X and his father and Z.  Y and Mr Solomon stood some distance apart eyeing each other uneasily before they both simultaneously advanced towards one another and cuddled in what seemed to be a familiar and relaxed manner.  When the writer commented on her observation of their initial uncertainty with each other they both laughed.

9. The evaluation commences from paragraph 32.  At paragraph 33 the Family Consultant records: 

   There is a long history of the children being exposed to their father’s alleged verbal and physical aggression with X having consistently reported that he experiences his father as angry, aggressive and physically abusive towards him.  X’s reports, during interviews for the family reports, are consistent with the reports contained in the FACS’ records.   Y has witnessed her father’s behaviours and has consistently reported feeling fearful of him.   The father has, until towards the end of his interviews for this report, consistently dismissed the children’s allegations and maintained that the children have been influenced/coached by their mother.  The FACS reports support the mother and children’s allegations. 

10. At paragraph 34 the Family Consultant discusses the issue of supervision. 

    Long term supervision is problematic.  It raises a multitude of questions in relation to Mr Solomon’s ability to be responsible for his behaviour and to understand its negative impact on his relationship with the children.  On-going supervision also raises the question of how the children, who are both now young adolescents, can continue to develop an appropriate bond with their father, if the only contact between him and them occurs in the presence of another adult.   Perhaps, in the circumstances, these questions indicate that the contact between the children and their father ought not occur until each child has attain sufficient emotional maturity to deal with the consequences of their father’s behaviour and to feel that he/she is sufficiently confident to be able to walk away safely should he/she experience Mr Solomon’s behaviour as unacceptable.

11. The Family Consultant expressed concern about the role that X played in his father’s litigation: 

    The most recent AVO protecting the children from their father was issued only 12 months ago.    It is very troubling that Mr Solomon required X to give evidence at both the hearing and the subsequent appeal.  He did not demonstrate any insight into what this might have meant for X or into the emotional consequences for someone of X’s age being required to given evidence, albeit via video.  A parent exposing their child to being cross-examined is inappropriate and raises issues about the child being in a very compromised and powerless situation.   None of these concerns seem to have occurred to Mr Solomon, rather it seems that his purpose was to ensure that he was proven correct and that X had lied or exaggerated.

12. The evaluation continues, and at paragraphs 36-38 where the Family Consultant records:

    X’s level of anxiety during his individual interview indicates that he is likely to continue to be fearful of his father.  While he was open to exploring some changes to the current arrangements it seems that, on balance, he has not yet attained the level of emotional maturity to feel confident to spend time with his father, without Z being present.  Mr Solomon’s proposal is that the children ought to be able to choose their parenting arrangements from the time they turn 14 years of age.  Given that X will turn 14 years of age in six months,  there ought to be no orders for him to spend time with his father.

    Y, while presenting as much less anxious than at the time of the CIC and the 2010 report, continues to display significant signs of anxiety when discussing her father.  While she provided more information than in her prior interviews, she still seemed to struggle and often declined to respond to questions or provide information.  Y has consistently maintained that she does not want to spend time with her father.  This remains her position.  Her response to her father during the observations of the paternal family was therefore unexpected.  It could be that, in the presence of both her brother and half-sister and in a setting where she felt safe, she was able to interact with her father, without fear.  Whether or not this would translate to her father’s home or public places is not known.  From what each of her parents have said about her, it is likely that she is a compliant child, thus her response about considering spending overnight periods with her father and/or time with him if Z were not present.  It is unlikely that Y would spend time with her father without X being present.  Thus for Y, as for X, there ought to be no orders for her to spend time with her father.

    X has always maintained that if there were no orders he would still spend time with his father.  How this would be achieved might be problematic.  X and Y could perhaps arrange to spend time with their father on those occasions Z is visiting him.  Such arrangements could be made by text, however, it would be important that the children be given appropriate notice (particularly if it is going to be on a weekend) and ensure that they advise Z by, say, two days prior to her visit.  Should Mr Solomon, however, seek to telephone the children to encourage them to visit, it is likely that one or the other of them will feel that it is necessary to agree or to make an excuse.  If Z being the intermediary is the arrangement which assists the father and children to move forward, then it is the writers’ opinion that it will only be positive if Mr Solomon accepts that, on occasions, the children will decline the invitation.  After seven years’ litigation in this Court and some litigation in the local court, it is the writer’s view that the children are now at a developmental stage where they need to feel free from  the conflict between their parents and  their concerns about their father’s behaviour,   and be able to focus on their own developmental needs as they individuate and move into middle adolescence.  They need to be able to prioritise their friendships, academic performance and peer relationships.  It is hoped that, as they become more emotionally mature and confident, they will each feel better equipped to find a way for their father to be a part of their lives and that he in turn will find a way in which to learn to respect his children’s individual needs and views.

13. The Family Consultant’s recommendations are set out from paragraphs 39: 

    RECOMMENDATIONS

    It is recommended that the mother continue to have sole parental responsibility for the children but that she inform the father in a timely manner of either child being admitted to hospital and that she inform him, in writing, within seven days of making any  long term decision for either child.

    It is recommended that the children live with their mother.

    It is recommended that there be no orders for the children to spend time with their father. 

    It is recommended that Mr Solomon ensure that he acknowledges each child’s birthday and special occasions celebrated in the family (Christmas, Easter).

    It is recommended that Mr Solomon might benefit from seeking professional assistance so as to better understand adolescent developmental issues and how, as the children’s father, he might explore strategies to ensure that, when the children make contact with him, he response in an appropriate manner

14. The Court observes that, whilst this evidence is untested, it is nonetheless the only independent and expert evidence before the Court.  Whilst both the Mother and Independent Children’s Lawyer sought to place significant reliance on the Report, the Father sought otherwise.  He contended that the Family Consultant’s proposed solution deprived the children of an opportunity to have a relationship with him and was very biased in favour of the Mother.

Discussion

1. The Father placed weight on paragraph 27 of the second Family Report which he submitted, in effect, showed the positive interactions between X, Y and himself.  This was supported by paragraph 28.  Y was observed to be neither anxious nor withdrawn.  X appeared to be relaxed.  On departure, there were affectionate interactions between both children and their father.  The problem with the Father’s contention is that, in effect, it “cherry picks” those aspects of the Report that favour his proposal, whilst ignoring all the other parts of the Report that are highly problematic of him. 

2. For example, it is impossible to discount the children’s expression of views at paragraphs 23, 24 and 26, especially when those views are expressed to an independent expert, and away from both parents.  It is hardly surprising that those views would not be expressed in front of the Father, but that does not make them any less valid.  The positive interactions observed at paragraphs 27 and 28 demonstrate that there is still hope for the future of the children’s relationship with their father. 

3. The Father’s contention that it is the Mother’s attitude and lack of support for that relationship that is the impediment is unsupported by the evidence as it stands.  Whilst the Court accepts that the evidence creates a very strong impression of two parents who cannot communicate constructively and who have little trust for each other’s judgment in parenting matters, that per se does not establish that the Mother is seeking to alienate these children against their father.  Indeed, paragraphs 27 and 28 of the Report are clearly inconsistent with this assertion.  The behaviour observed here is hardly, with respect, the behaviour of alienated children.

4. The Mother’s contention, supported by the Independent Children’s Lawyer, that these children are, more likely than not, realistically estranged from their father, is more likely the case.  Their anxiety, observed at paragraph 21 of the Report is consistent with this.  X’s reference to his father’s behaviour at paragraph 23 is consistent with this.  So too as regards Y at paragraph 26.  The Father’s behaviour in involving X into the Local Court and District Court proceedings is also an action that is more likely to damage his relationship with his son, than to encourage it. 

5. The Father seemed unable to appreciate what it must have been like for X to give evidence, and the emotional dilemma it placed him in as between his two parents.  The Father’s insistence in submissions that the cross-examination was conducted sensitively and appropriately may well be right, but it misses the point that X should never have been in this position in the first place.  The Father’s perspective, expressed in submissions, was that, “justice had to prevail over these false allegations”.  

6. In responding to the Family Consultant’s criticism of him about this, the Father maintained in submissions that the Family Consultant had got it all wrong, and that the involvement in the litigation was not about him, that is, the Father, but it was about X.  With respect to the Father, that is impossible to discern on any objective basis from the material before the Court.  The involvement of X in those proceedings was all about vindicating the Father’s rights, or perceived rights. 

7. Whether or not the evidence established intimidation for the purposes of the relevant state legislation is not the point from this Court’s perspective.  What is relevant is how the children experienced his anger and discipline of them and the broader consequences of how this has affected their relationship with him. The Father’s contention that what he described as the “frivolous AVO” was the precipitator of the change in the children’s relationship with him is plainly unsupported by the evidence.  The 2010 Family Report clearly demonstrates that the same problems which exist today in his relationship with X and Y, existed five years ago. 

8. The Father has no doubt gained some insight, and this is reflected in his proposal to the Court.  Instead of seeking equal time, which has been his proposal throughout these proceedings until now, he seeks an order that the children live with him each alternate week from after school on Friday to before school on Monday, together with half the school holidays.  The proviso, of course, is that the children “can amend these orders and spend time with either parent as they see fit”.  On the one hand, the proviso demonstrates that the Father understands the relevance and significance of the emerging autonomy of both children and that their views need to be respected.  On the other hand, however, he fails to appreciate that both X and Y are anxious and are stressed, no doubt as a result of the long-running proceedings between their parents, and to give them the choice that he proposes potentially exacerbates that anxiety and the pressure on them.  For this reason, both the Mother and the Independent Children’s Lawyer strenuously oppose any such provision.  The making of the order proposed by the Father, at least in this regard, would be to ignore the objective and independent evidence about the childrens’ level of anxiety, something the Court is not prepared to countenance. 

1. The Family Report at paragraph 38 clearly records that X has always maintained that, if there were no orders, he would still spend time with his father.  If the Father recognises X’s autonomy, a matter reflected in the proviso he proposes, then surely he must recognise X’s autonomy in maintaining that if there were no orders, he would still spend time with his father.  There is nothing in the Mother’s evidence to suggest she would get in the way. 

2. Whilst the Father is no doubt convinced that the Mother is an obstacle to his relationship with the children, that is unsupported by the evidence before the Court in its present form, and at this stage.  In any event, it would be highly counterproductive for the Mother to get in the way of any relationship that X or Y wished to have with their father. 

3. The Court recognises the limitations inherent in an interim hearing where none of the evidence has been tested.  Notwithstanding that, there is ample expert evidence, albeit untested, that, in the opinion of this Court, properly informs the decision to be made pending further order.  Quite apart from the Court’s conclusion that the orders proposed by the Father are not in the best interests of the children, the Court is also convinced that they would be quite counterproductive. 

4. What needs to happen is for the pressure to be taken off these children, whilst maintaining a sufficient connection with their father, that the relationship they have with him may not only continue, but grow.  This must happen on their terms, however, and not on terms that are sought to be imposed by the Father.  The Mother’s proposal sufficiently provides a framework for existing relationships to be maintained and grown.

5. There is an issue about parental responsibility.  The Mother seeks an order for sole parental responsibility.  Such is the dysfunction in the parental relationship, evidenced by lack of trust, inability to communicate, and chronic, toxic conflict over many years, that the Court concludes, even on an interim basis, that the statutory presumption does not apply as it would not be in the best interests of the children for it to apply.

6. The Father’s time with the children hitherto has been in the presence of another adult.  The Mother proposes that that continue.  The children prefer that to be the case.  There appear to be no significant obstacles to the practical implementation of this.  The Father believes it is unnecessary.  The evidence points to the contrary. 

Conclusion

1. Having regard to what evidence is before the Court, and even taking into account the limitations of an interim hearing, the orders proposed by the Mother and the Independent Children’s Lawyer are in the best interests of X and Y, pending the final hearing which will be in July 2016.  The Court hopes that the period between now and the final hearing will be a time of reflection for both parents, but especially the Father.  By taking the pressure off the children, it might also be an opportunity for the childrens’ relationship with their father to grow, but on their terms.

2. Appropriate directions will be made about preparing this matter for final hearing, including the filing of one consolidated Affidavit containing the evidence of each parent.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Associate: 

Date:  11 December 2015

Schedule One

Mother’s Minute of Order

1. That the Mother have sole parental responsibility for the children X (born (omitted) 2002) and Y (born (omitted) 2003) (“the children”).

2. That the children live with the mother.

3. That the children spend time with the Father as follows, at a minimum:-

   (a)In January from 10am-4pm as agreed between the parties or failing agreement on 25 January from 10am-4pm;

   (b)(omitted) (X’s birthday) as agreed or failing agreement on a school day from after school until 8:30pm or on a non-school day from 10am-4pm on the immediately following Sunday;

   (c)(omitted) (Y’s birthday) as agreed or failing agreement on a school day from after school until 8:30pm or on a non-school day from 10am-4pm on the immediately following Sunday;

   (d)(omitted) (Father’s birthday) as agreed or failing agreement on a school day from after school until 8:30pm or on a non-school day from 10am-4pm on the immediately following Sunday;

   (e)(omitted) (Z’s birthday) as agreed or failing agreement on a school day from after school until 8:30pm or on a non-school day from 10am-4pm on the immediately following Sunday;

   (f)Father’s Day from 10am – 4pm;

   (g)Christmas in each even numbered year from 10am – 4pm;

   (h)Boxing Day in each odd numbered year from 10am – 4pm;

   (i)All other times that the children or either of them so request.

4. That the time in Order 3 be spent with the father and another adult above the age of 18.

5. That the children communicate with their Father by telephone at any time the children express a wish to do so.

6. That the Father be permitted to telephone the children each Thursday between the hours of 5:30pm and 6:00pm to the telephone number (omitted).

7. That the Mother shall keep the Father informed, as soon as reasonably practicable, or failing this within seven days, of any long term decisions made for the children.

8. That the Mother shall keep the Father informed, as soon as reasonably practicable, or failing this within seven days, of any medical problems or hospital admissions of the children.

9. That the Mother shall use her best endeavours to encourage the children to spend time and communicate with the Father.

Independent Children’s Lawyer’s Minute of Order

1. Excluding parent teacher interviews, the father is at liberty to attend school functions or events that parents are ordinarily invited to attend such as presentation evenings, special assemblies and school concerts.

2. The mother is to authorise the school to provide the father with a copy of school newsletters and school reports relating to the children.

3. Added to mother’s proposed order 6 the following:

   “with the father to call between those times and the mother to ensure that:

   (a)the children are available to take the call; and

   (b)the phone is charged and switched on.”

Schedule two

Father’s Minute of Order

1. That the children reside with their father from Friday after school to Monday before school every other weekend (waived during 2).

2. That the children reside with their father for one half of each school holiday, commencing with the first half of the 2015 year.

3. That the children can amend these orders and spend time with either parent as they see fit. This is to be effective as soon as either child telephones both parents to change arrangements and changes are to be provided on a timely basis to enable different arrangements being made. 

4. That the children have unlimited phone and email contact with their father and that the mother facilitates this by way of the children having their own phones.

5. That the children spend their even birthdays  with their father. Contact to be from 08.00 to 16.00 if a non-school day or from 16.00 – 20.00  if a school day.

6. That both parents facilitate the 3 children, Z, X and Y getting together without parents at least once per month.

7. The father continues to pay CSA assessments, 50% of secondary school fees and (omitted) health insurance for the children.