Somerville and Somerville and Anor (No.3)
[2015] FCCA 2223
•9 November 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
SOMERVILLE & SOMERVILLE & ANOR (No.3) [2015] FCCA 2223
Catchwords:
FAMILY LAW – Parenting and property – where the Department of Family and Community Services intervened – where significant levels of personality dysfunction in the mother – where significant allegations of violence and abuse – where highly inappropriate conduct by the father in the presence of the children – where the mother’s evidence is plainly unreliable – issues about monies provided by the maternal grandmother and how they should be characterised.
Legislation:
Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA, 67ZC 68B, 75(2), 79, 90MT(1)(a), 91B
Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395
MRR v GR [2010] HCA 4
Somerville & Somerville & Anor [2014] FCCA 695
Somerville & Somerville & Anor (No.2) [2014] FCCA 2439
Stanford & Stanford [2012] HCA 52
Applicant: MR SOMERVILLE
Respondent: MS SOMERVILLE
Intervenor: SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES
File Number: WOC 1043 of 2012
Judgment of: Judge Altobelli
Hearing dates: 10-14 November 2014, 5 May 2015
Date of Last Submission: 5 June 2015
Delivered at: Wollongong
Delivered on: 9 November 2015 REPRESENTATION
Counsel for the Applicant: Ms Beck
Solicitors for the Applicant: Rita Thakur & Associates
Counsel for the Respondent: Ms Gillies
Solicitors for the Respondent: Rossi Simicic Lawyers
Counsel for Intervenor: Mr Anderson
Solicitors for the Intervenor: Crown Solicitors Office
Counsel for the Independent Children's Lawyer: Mr Macpherson
Solicitors for the Independent Children's Lawyer: Legal Aid NSW
ORDERS
Parenting
(1)The Father is to have sole parental responsibility for the Children [X] (born 2006), [Y] (born 2005), [W] (born 2003), and [Z] (born 2012) (the ‘Children’).
(2)The Children are to live with the Father.
(3)Until each Child attains the age of 16, the Mother is restrained from:
(a)spending any time with any of the Children except as set out in Orders 7, 8, 9, 10, 14, 15, 16, 17, 18 & 19.
(b)approaching, communicating or contacting by any means, including through any third person, any of the Children except as provided for in orders 5, 6, 7, 8, 9, 10, 14, 15, 16, 17, 18 & 19.
(4)Until each Child attains the age of 18, the Mother is restrained from:
(a)being within 200 metres of any place of education or residence of any of the Children and contacting by any means, including through any third person, any place of education or residence of any of the Children; and
(b)removing or attempting to remove any of the Children from his or her place of education or residence; and
(c)harassing, molesting, stalking, threatening to cause bodily harm to any of the children or any person in whose care any of the Children may be; and
(d)uploading information regarding these proceedings on any internet web site.
(5)The Mother is at liberty to communicate with the Children by sending letters or cards to the Children on or around each Child's birthday, Chinese New Year and Christmas.
(6)The Children are at liberty to communicate with the Mother by sending letters or cards to the Mother in or around the Mother's birthday, Mother's Day, Chinese New Year and Christmas AND the Father is to ensure that letters or cards written by the Children are sent to an address provided by the Mother from time to time.
(7)When each Child turns 14 and up until that Child turns 16, that Child can spend supervised time with the Mother on 4 occasions each year for a minimum of 3 hours in February, May, August and December.
(8)Where more than one Child has turned 14, the Children's supervised time with their mother in accordance with Order 7 should occur simultaneously.
(9)When each Child turns 14, the Mother is at liberty to write to the Father to request to spend supervised time with that Child and the Father is to write to the Mother within 7 days of receiving the Mother's written request, and the Father is to provide the Mother with a list of suitable dates for that Child or Children to spend time with the Mother in February, May, August and December.
(10)Upon receiving written notification from the Father of suitable dates for each Child or Children to spend supervised time with the Mother, the Mother is to do the following:
(a)arrange for her time to be supervised by an agency that can prepare a report of her supervised time and one that is local to where the Children are residing from time to time such as Care South or CatholicCare (the Agency);
(b)provide details about the Agency to the Father, including any costs that will be incurred to supervise the Mother's time;
(c)arrange for a copy of each supervised contact visit report prepared by the Agency to be sent to the Father;
(d)arrange for 3 hours supervised time to occur on a date as nominated by the Father in accordance with Order 9;
(e)arrange for her time to occur at a suitable public venue that is within a 20 km radius from the Child or Children's home;
(f)notify the Father of the date, time and venue for each occasion any Child or Children is/are to spend time with the Mother at least 7 days before each contact/occasion;
(g)arrange for employees from the Agency where possible to collect the Child or Children from the Father's home 30 minutes before the mother's scheduled time , take the child or children to the nominated venue and then return the child or children to the father's home at the conclusion of her time with the child or children; and
(h)notify the Father of a changeover location at a suitable public venue that is within a 20km radius from the Child or Children's home where transport cannot be facilitated by the Agency.
(11)Where the Mother requests to spend supervised time with a Child or Children in accordance with Order 9, the Father is to complete all necessary documentation as required by the Agency.
(12)Where the Mother is unable to arrange for transportation of the Children to be facilitated by the Agency and she notifies the Father of this in accordance with Order 10(h), the Father is to ensure that any Child or Children due to spend time with the Mother are delivered to and collected from the nominated changeover location by the Father or his delegate.
(13)Any costs for supervised time as permitted under Order 7 are to be shared equally between the Father and Mother, and the Mother is to arrange for a separate invoice to be sent to the Father by the Agency as required by the Agency for each occasion that any Child or Children are to spend time with the Mother.
(14)When each Child turns 16, that Child can request to spend unsupervised time with their mother from 10:00am until 5:00pm on the first Sunday of each month.
(15)Where more than one Child has turned 16, the Children's unsupervised time with their mother in accordance with Order 14 should occur simultaneously.
(16)If any of the Children request to spend unsupervised time with their mother after they turn 16, the Father is to send a letter to the Mother advising her of this request.
(17)Where the Mother receives a letter from the Father advising her that any of the Children wish to spend unsupervised time with the Mother after they have turned 16, the Mother is to send a letter to the Father advising him whether or not she is prepared to spend unsupervised time with the Children.
(18)Where the Mother has agreed to spend unsupervised time with any of the Children, the Mother is to do the following:
(a)arrange a changeover location at a suitable public venue that is no more than a 20 km radius from the Child or Children's home;
(b)arrange a suitable public venue for the Child or Children to spend time with the Mother that is within a 20km radius from the Child or Children's home;
(c)notify the Father of the changeover location and venue for each occasion a Child or Children is/are to spend time with the Mother at least 7 days before each meeting.
(19)To facilitate unsupervised time in accordance with Order 14, the Father or his delegate is to deliver the Child or Children to the changeover location nominated by the Mother at the commencement of the Mother's time with the Child or Children and then collect the Child or Children from the same location at the conclusion of the Mother's time with the Child or Children.
(20)The Father is to ensure that the Mother is notified about important issues regarding the Children's health and schooling.
(21)The Father is to provide the following to the Mother:
(a)copies of all school reports for each child;
(b)school photos for each child if available; and
(c)individual and combined photos of the children in June and December of each year,
(22)The Mother and Father are to keep each other advised of their email address and residential address from time to time.
(23)The Mother and Father are to provide each other with a telephone number that can be used in the case of an emergency only.
(24)The Father shall not consume alcohol during any period that the children are in his care.
(25)The Father be restrained from using any physical punishment or discipline on the Children and he do all things necessary to ensure that any other person whom is entrusted with the care of the Children be restrained from using any physical punishment or discipline on the Children.
(26)Both parents be restrained from:
(a)speaking or permitting any other person to speak to or about the other parent or their family in a negative, offensive or unpleasant fashion in the presence or hearing of the Children.
(b)discussing any proceedings between the parents or the parental relationship in the presence or hearing of the Children or permitting any other person to do so.
(27)The Father is at liberty to provide a copy of any Final Orders and Judgment arising out of these proceedings to his treating therapist and to the Children's treating therapist/s.
(28)The Mother is at liberty to provide a copy of any Final Orders and Judgment arising out of these proceedings to her treating psychiatrist and treating therapist.
(29)The Mother shall be hereby restrained from:
(a)applying for a Passport in the name of any of the Children;
(b)applying for a Passport in the name of herself and any of the Children;
(c)removing and/or causing any of the Children to be removed from Commonwealth of Australia.
(30)The Mother shall forthwith surrender the Passport of each of the Children to the Father if she has not already done so.
(31)Pursuant to ss.68B and 67ZC, the Mother is hereby ordered to forthwith remove or caused to be removed from Facebook, or any other social media or web sites and applications, any references to the Children, their caseworkers, the legal representatives, or the experts who have appeared, given evidence in or are connected to these proceedings.
(32)Pursuant to ss.68B and 67ZC, the Mother is hereby restrained by injunction from:
(a)Publishing or posting by any means to any web applications and accessible internet sites including but not restricted to social media, (for example such as Facebook, Pinterest, Tumblr, Flickr, Digg, Dribble, LinkedIn, Tagged, and StumbleUpon), any material including text, photos, visual representations or audio files which identify the Children or references to the Children, their caseworkers, the legal representatives or the experts who have given evidence in or connected to these proceedings without first obtaining an order of the Court to permit her to do so.
(b)Disseminating in any way material utilised in these proceedings including but not limited to reports, affidavits, transcripts, subpoena documents, memoranda and notes.
(33)The Independent Children’s Lawyer’s application for costs be dismissed.
Property
(34)Within 60 days, the Father shall do all acts and things and sign all necessary documents so as to discharge the mortgage in respect of [1] Property M (being the whole of the land contained in certificate of title folio identifier [omitted]), and refinance the mortgage into his sole name, and the Father shall otherwise indemnify and keep the Mother indemnified against any and all other liabilities relating to that property including but not limited to the payment of rates, taxes, mortgage repayments and insurances.
(35)Within 60 days and subject to the Father refinancing the mortgage in his sole name, the Mother shall do all acts and things to transfer to the Father her entire right title and interest in the property at [1] Property M (being the whole of the land contained in certificate of title folio identifier [omitted]) and the Mother shall be restrained from removing from this property, the furniture, white goods and desks.
(36)Within 7 days, the net sale proceeds arising from the sale of the property situate at [2] Property M (currently held on trust by CVC Law) be divided as follows:
(a)$444,738 to the Mother; and
(b)That any interest accrued on the invested amount until the date the account is closed shall be divided equally between the parties.
(37)Within 30 days, the Father pay to the Mother into her nominated account the sum of $1,267.50.
(38)Within 60 days, the Father pay to the Mother into her nominated account outstanding spouse maintenance in the sum of $10,800, together with interest calculated in accordance with the Family Law Act, its Rules and Regulations.
(39)The Father do all acts and sign all documents necessary to transfer to the Mother his entire right title and interest in the parties jointly owned time share known as Property R, and the Mother shall otherwise indemnify and keep the Father indemnified against any and all outstanding liabilities relating to that property.
(40)The Father shall be the sole owner of and solely responsible for:
(a)the furniture contained in [1] and [2] Property M;
(b)the [S] motor vehicle (registration number: [omitted]);
(c)the Velomobile;
(d)any funds contained in the Father’s Commonwealth Bank Account (a/c [omitted]);
(e)the mortgage against the property at [1] Property M.
(41)The Mother shall be the sole owner of and solely responsible for:
(a)the time share known as Property R;
(b)the 1998 Holden Rodeo;
(c)any interest of the parties in Property C;
(d)any and all arrears owed in respect of the time share known as Property R.
(42)The base amount allocated to Ms Somerville, the non-member spouse in these proceedings, out of the interest held by Mr Somerville in [B] Super is $125,000.00.
(43)Pursuant to s.90MT(1)(a) of the Family Law Act 1975, whenever the Trustee of the [B] Super makes a splittable payment from the interest held by Mr Somerville member number: [omitted], the Trustee shall pay to Ms Somerville or her administrators, executers beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement Mr Somerville would have had in the [B] Super but for these Orders.
(44)Order 43 have effect from the operative time and the operative time shall be deemed to be 2 weeks from the date when these Orders are served upon the Trustee.
(45)This Order binds the Trustee of [B] Super.
(46)Except as otherwise set out in these Orders, the parties have the sole right, title and interest in any other property which is at the date hereof in their possession or control and they shall be solely liable for and indemnify the other against any and all personal liabilities.
(47)In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
(48)The Mother’s application for spouse maintenance be otherwise dismissed.
(49)Leave be granted to the parties to relist this matter before me on 7 days notice as regards interpretation, implementation or enforcement of these Orders.
NOTATIONS
A.It is noted that the Father will facilitate therapy for any or all of the Children so as to help the Children understand the Court outcome and Final Orders made and if required, to assist the Children to engage positively with their mother if they commence spending time with their mother.
B.It is noted that Father is at liberty to provide copies of supervised contact visit reports to the Children's therapist where these reports have been provided by the Mother.
IT IS NOTED that publication of this judgment under the pseudonym Somerville & Somerville & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONGWOC 1043 of 2012
MR SOMERVILLE Applicant
And
MS SOMERVILLE Respondent
SECRETARY, DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Intervenor
REASONS FOR JUDGMENT
Introduction
1.These reasons for judgment explain the Orders that the Court has made in this matter. It is both a parenting and a property case. Compared to the parenting proceedings, the property case is relatively simple and will be dealt with in a separate section of these reasons for judgment. The parenting case is about four children, [X] who is 9, [Y] who is 10, [W] who is 12, and [Z] who is 13. The Applicant is their father, and the Respondent their mother. The children are represented by their own lawyer, an Independent Children’s Lawyer. The Secretary of the Department of Family and Community Services is also a party to these proceedings.
2.The parenting proceedings were both complex and difficult to decide. There are no perfect outcomes for these children. The Court must do the best it can, having regard to the available evidence, to make an Order that is in their best interests, but that decision can only be made by reference to the available options.
Background
3.These reasons for judgment need to be understood in the context of two earlier reasons for judgment. On 21 March 2014, the Court published its reasons in the interim parenting application. This application was dealt with over two days, 11 and 13 March 2014. The reasons were published as Somerville & Somerville & Anor [2014] FCCA 695. The interim issues included interim parenting and interim property.
4.The second relevant judgment was delivered on 31 October 2014 and was published as Somerville & Somerville & Anor (No.2) [2014] FCCA 2439. These reasons dealt with whether a litigation guardian should be appointed for the Respondent Mother. The reasons for judgment delivered 21 March 2014 contains quite a comprehensive discussion of the expert evidence in this case. That evidence was given by Dr K and by Dr R. The Court’s discussion of this evidence, and its findings, will be incorporated by reference into these reasons for judgment.
5.A comprehensive chronology that was prepared by the Independent Children’s Lawyer, and which forms part of the Amended Case Outline dated 5 May 2015, is reproduced in the first Schedule to these reasons. The Court expresses its appreciation to the Independent Children’s Lawyer for the meticulous way in which this chronology was prepared, having regard to the evidence of both parents, as well as other evidence before the Court including subpoenaed documents, exhibits, the expert evidence and the evidence filed on behalf of the Intervenor. The chronology is a very useful document drawing, as it does, information from diverse sources.
6.The Applicant Father is 36 years old and describes himself as a [occupation omitted]. He was born in Australia and has lived in Australia all of his life.
7.The Respondent Mother is 40 years old, was born in [omitted], but subsequently travelled to Australia as a refugee via [omitted] in 1982. The circumstances in which the Mother, and those remaining in her family, travelled to Australia were traumatic.
8.The parents met in 1999 and commenced their relationship later that year. Cohabitation commenced in 2000, and by September of that year they were living in a property at Property G, a suburb of Wollongong. The parties married in 2001.
9.By any account of the relationship of the parents, it was a tumultuous one. It was marked by separations and reconciliations. Each raise very serious concerns about the other, e.g. mental health, family violence, excessive consumption of alcohol. But for the most part, the Father worked throughout the marriage outside of the home, and the Mother either studied or worked inside the home, including managing what was, in effect, a business that the parents ran [omitted]. The Mother made serious allegations about the Father in relation to inappropriate, and sexualised behaviour in front of, and pertaining to the children. The Father denies these allegations. As the relationship continued to flounder, the intensity of the problems that confronted this family increased.
10.After a number of separations and resumptions of cohabitation, final separation took place in September 2012. Initially, the Mother took the children from the family home in Wollongong to her mother’s home in Sydney. A provisional AVO was made. The Father spent limited time with the children. There was a flurry of notifications to the Department of Family and Community Services.
11.The present proceedings were commenced by the Father on 10 November 2012. The Mother filed her Response on 5 December 2012, and on 6 December the Independent Children’s Lawyer was appointed. The parents also entered into Consent Orders that provided for the children to spend supervised time with their father using the services of a private facility.
12.In December, the Father vacated the family home to enable the Mother and children to resume occupation there. He moved to the unit known as [1] Property M, another property owned by the parties.
13.On 9 April 2013, the Father’s time with the children was suspended, and the parties agreed to enter into Consent Orders for the appointment of Dr K as the single expert.
14.After Dr K released his interim Report on 10 July 2013, the Court made an Order under s.91B of the Family Law Act 1975 (hereafter referred to as ‘the Act’) inviting the Department of Family and Community Services to intervene. It did so on 19 August 2013. On 2 October 2013, the Director General (as it was then known) of the Department filed an Application in a Case seeking Interim Orders for sole parental responsibility for the children, and for the Mother to be restrained from spending time with the children, and likewise the Father. On 2 October 2013, the Court made Orders in terms of that sought by the Director General. The children were taken into the care of the Department and initially placed with the Paternal Aunt in [omitted]. By November 2013, the children had transitioned into the care of the Paternal Grandmother at [K]. In this period the children spent supervised time with both their mother and their father. Indeed, the Father’s time progressed to unsupervised time by January 2014.
15.On 18 February 2014, Dr R prepared a Report in relation to the Mother and Dr K updated his Report, which was released on 5 March 2014. The matter came before the Court on 11 and 13 March 2014 for the purposes of an interim hearing. Judgment was reserved, but the matter otherwise given a five day hearing commencing 10 November 2014. On 21 March 2014, Interim Orders were made for sole parental responsibility to be allocated to the Minister for Family and Community Services, with the Minister to determine with whom the children should live. The Mother was restrained from spending any time with the children. It was apparent to the Court at that time, and duly noted, that the Secretary for the Department of Family and Community Services intended to transition the children into the Father’s care. By about April 2014 this had taken place. The Father and the children returned to the family home, and the children resumed attendance at the school they were attending before being taken into departmental care.
16.The final hearing commenced on 10 November 2014. Ms Beck of Counsel appeared for the Father, Ms Gillies of Counsel for the Mother, Mr Anderson of Counsel for the Intervenor, and Mr Macpherson of Counsel for the Independent Children’s Lawyer. The matter ran for five days, but then had to be adjourned to 5 May 2015 for a sixth day of hearing. Even then, it was necessary to rely on written submissions, particularly having regard to the breadth of the evidence and the complex issues raised. The last of those submissions was received on 5 June 2015. The written submissions were comprehensive and most helpful to the Court. The heavy workload of the Court in this Registry prevented an earlier release of these reasons for judgment.
17.By the time of final submissions, the proposals advanced by the parents in relation to the children were as follows.
18.The Father’s proposed Orders, reproduced in the second Schedule to these reasons, provide that he have sole parental responsibility, that the children live with him, and that there be no time between the Mother and the children, as well as no communication. There are a number of subsidiary Orders as sought by him.
19.The parenting Orders proposed by the Mother are re-produced in the third Schedule to these reasons. She proposed Orders in which she would have sole parental responsibility, and the children live with her. She proposed that the boys, [Y] and [Z], would live with their father each alternate weekend from after school Friday until before school on Monday, and for half the school holiday periods. In relation to the girls, [W] and [X], she proposed that, provided that their time with the father was supervised by an approved independent supervisor, or failing agreement, by Catholic Care, the girls spend time with him each alternate weekend from 9:00am to 3:00pm both Saturday and Sunday, and in a similar manner during the school holidays.
20.The Orders proposed by the Intervenor are reproduced in the fourth Schedule to these reasons. The Secretary proposed that the Father have sole parental responsibility in relation to the children, and that they live with him. The Mother be otherwise restrained from spending any time or having any communication with the children.
21.The Orders proposed by the Independent Children’s Lawyer are set out in the fifth Schedule to these reasons. In effect, the Independent Children’s Lawyer also proposed that the Father have sole parental responsibility for the children, that the children live with him, and not have any time or communication with the Mother before they turned 14.
22.The evidence relied on in the Father’s case included:
·Further Amended Initiating Application, filed 30 October 2014;
·Financial Statement, sworn 30 October 2014;
·Affidavit of Mr Somerville, sworn 30 October 2014;
·Affidavit of Mr Somerville, sworn 27 April 2015
·Affidavit of Ms J, sworn 3 February 2014;
·Affidavit of Ms S, sworn 3 February 2014;
·Affidavit of Ms V, sworn 21 February 2014; and
·Affidavit of Ms K, sworn 30 October 2014.
23.The evidence relied on in the Mother’s case included:
·Financial Statement, filed 31 October 2014
·Affidavit of Ms Somerville, sworn 31 October 2014;
·Affidavit of Mr O, affirmed 23 November 2012;
·Affidavit of Mr L, affirmed 23 November 2012;
·Affidavit of Ms J, sworn 26 July 2013;
·Affidavit of Ms B, sworn 28 October 2013;
·Affidavit of Ms O, sworn/affirmed 25 October 2014;
·Affidavit of Ms J, sworn 30 October 2014;
·Affidavit of Mr K, affirmed 30 October 2014; and
·Affidavit of Dr L, sworn 31 October 2014.
24.The evidence relied on in the Intervenor’s case included:
·Application in a Case filed 2 October 2013; and
·Affidavit of Ms M, affirmed 30 October 2014.
25.A substantial quantity of documents were tendered in evidence and became exhibits. Where these documents are relevant, they will be identified and discussed in these reasons for judgment.
26.At the final hearing the Father, the Mother, the Maternal Grandmother, Ms K (the Father’s partner), Ms M from the Department of Family and Community Services, Dr L and Dr K all gave oral evidence and were cross-examined. In addition, two witnesses in the Mother’s case, Ms H and Ms O, were required for cross-examination and were, in fact, cross-examined. Any other witnesses not mentioned were not required for cross-examination.
Outline of Reasons for Judgment
27.After stating the applicable law, the court intends to discuss the evidence of the witnesses in the following order:
a)Dr K;
b)Dr L;
c)The father;
d)The mother;
e)Ms M;
f)The Maternal Grandmother;
g)The Father’s partner, Ms K;
h)Ms H; and
i)Ms O;
28.There will then be an analysis of the evidence in the parenting case by reference to the relevant provisions of the Act. Finally, there will be a discussion of the Orders that the Court considers to be in the best interests of the children.
29.After that, the Court will consider the property and financial aspect of this case.
The Applicable Law
Parenting matters
30.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.
31.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.
32.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.
33.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.
34.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.
35.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".
36.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.
Property matters
37.Section 79 of the Act relevantly provides:
Alteration of property interests
(1) In property settlement proceedings, the court may make such order as it considers appropriate:
(a) in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
(b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c) an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
38.Section 79(4) incorporates the provisions contained in s.75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party's role as a parent; and
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
39.In Bevan & Bevan [2013] FamCAFC 116, the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52, which provided guidance on how s.79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA 395, but on the basis that it is a shorthand distillation of the words of s.79, as opposed to being a statutory edict. The four steps articulated in Hickey at paragraph 39 are:
a)Identify and value the property, liabilities and financial resources of the parties; and
b)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property; and
c)Identify and assess the other facts relevant under s.79(4)(d)-(g) including s.75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
d)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
40.The decisions in Stanford and Bevan also emphasise the importance of making findings that any order is just and equitable for the purposes of s.79(2), independent of the s.79(4) process. In most cases, such as the present one, it makes no difference to the outcome of the alteration of property interests exercise. Even if the just and equitable consideration were treated as a threshold issue in this case the parties have, by their actions (separation, and re-ordering of their financial lives since then), and claims (divergent claims about their property under s.79 of the Act), indicated that they themselves consider it just and equitable that some order be made under s.79 adjusting their property interests as presently held. It is clearly just and equitable in this case to make an order.
41.Both decisions also emphasise the importance of identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. This is not inconsistent with step one in Hickey. A problem that commonly arises, and indeed does arise in this case, relates to property that once existed but no longer does. It is no longer appropriate to notionally “add-back” this property. This disposed of property may still be significant, however, and needs to be considered as part of the history of the marriage, as well as a s.75(2)(o) consideration. As the Full Court said in Bevan, such disposals must be dealt with carefully. In practical terms this means carefully assessing the evidence about the disposal, attempting to quantify it if this is at all possible, and then assessing its weight whilst neither placing too much, or too little, weight on it. Maintaining jurisprudential rigour, transparency and accountability may well be challenging in the era post the demise of the traditional add-back.
The evidence
The evidence of Dr K
42.Dr K is a consultant psychiatrist and child, adolescent and family psychiatrist, who was appointed as the single expert in this case. Dr K provided three reports dated 9 July 2013, 26 July 2013 and 4 March 2014. His reports are discussed quite comprehensively in the earlier reasons for judgment, in particular those delivered on 21 March 2014. There is no need to reproduce in these reasons the content of the Reports set out in earlier reasons. It is also unnecessary to discuss the oral evidence that Dr K gave in the earlier proceedings, as this too is discussed in those reasons.
43.Dr K was cross-examined again on the last day of the hearing, 14 November 2014. By then, both parents had given their evidence and had been extensively cross-examined. The only witnesses who had not given evidence, Mr K and Ms O, both in the Mother’s case, gave no evidence that is relevant to Dr K’s evidence.
44.It is important to recognise that, before he was again cross-examined, Dr K had been given all the updated evidence filed by the parties but, of course, he did not have the opportunity to see both parents in the witness box, nor to read by way of transcript the evidence they had given.
45.Counsel for the Independent children's lawyer cross-examined Dr K. Dr K confirmed that no new information that he had received would cause him to change the recommendation contained in his report. He confirmed that he was aware of the Mother’s preference not to have any Orders for the children to spend time with her, should the Court decide that the children remain living with their father. He confirmed that he was well aware that the children had expressed views, and accepted the possibility that, in time, they might “vote with their own feet”. He did not exclude the possibility, however, that over time the children would think more positively about past experiences with their father, and their mother. He emphasised, however, the present developmental risk to the children should they be returned to the Mother’s care. The Court formed the impression that, whilst Dr K was not necessarily surprised about the no contact stance adopted by the Mother, he was somewhat disappointed. For example, he emphasised that, even if the Mother’s preference was for there to be no order for the children to spend time with her, it was nonetheless important to build an expectation in the children that on adulthood they could, and should have a relationship with their mother. He suggested, for example, that this could start as early as age 14 for each child, initially on a recognition supervised basis, but then from 16 on an unsupervised basis. He described this as a dormant process, even if the mother did not initiate it. He explained, in cross-examination, that 14 was a significant point in the developmental process, hence his preference for that age, rather than say 13 or earlier.
46.He was asked to explain some of the vulnerabilities of the children that he referred to in his report. He referred to the children’s exposure to the parental conflict, particularly the emotional risk to them, but further exposure to their mother’s polarised perspective of the father, which, he confirmed, he thought there was no basis for.
47.He confirmed that the Mother had capacity to present herself positively, and indeed could function well in many contexts, but not in intimate relationships. This was part of the risk to the children.
48.He was cross-examined about the children’s present and future experiences of living in the Father’s household, if they perceive their father to have been the abuser, and their mother the victim, and the signal this sends to them in the context where the Mother has been excluded from their life. Dr K acknowledged the importance of this. He accepted that the children may well perceive this. He was clearly encouraged, however, by the fact that he personally observed the Father apologise to the children about his behaviour. He thought the children had begun to integrate that. He suspected that there was already a respectful dialogue going on in which the Father acknowledged that he had been quite out of line in some of his actions. Nonetheless, Dr K acknowledged the need for the children to receive ongoing therapy to help them integrate their thinking about their mother with their current lived experience. He thought it was important for the children to know that a judge had made this decision. He thought it was less likely that the children would blame their father, if they received ongoing therapeutic assistance.
49.In relation to this diagnosis of the Mother’s mental health, he confirmed the same, and also confirmed that her prognosis was guarded. He thought the Father would benefit by ongoing counselling. Dr K also was of the opinion that, in order to protect the children in the future, the Mother should be specifically excluded from attending on their activities or at their home or school. He emphasised the need that the children’s relationships with social institutions, such as their school, and extracurricular activities, remain an area that the Father be exclusively responsible to deal with. Dr K was somewhat concerned, however, about the Mother’s ability to accept any outcome that she perceives to be against her. Whilst he hoped that she would abide by the Orders, and get on with her life, he acknowledged the risk that she would continue to spread a very negative message about the Father. In this regard he referred to the more recent incident about the Mother’s Facebook page. Again, he reiterated the need for the children to be protected from the Mother’s propensity to tell things to third parties in a dramatic, negative way.
50.In relation to the Father, Dr K thought he would be able to provide more robust parenting for the children if he maintained abstinence to alcohol. He also thought abstinence from physical discipline would be appropriate.
51.Dr K was cross-examined by Counsel for the Father. He made it very clear that if the Court found that the Father was as abusive, as the Mother asserts in her evidence, then this was indicative that her personality dysfunction was in fact less than what he had diagnosed. However, if the Court found that the Mother’s allegations were not borne out, or that in fact it was the Father who was the victim of abuse, this merely confirmed, indeed strongly indicated, the level of dysfunction in the Mother’s life.
52.Dr K was given the opportunity to comment on Dr L’s belief that the Mother was capable of good enough parenting. He explained that he understood good enough parenting undertaken in the context where a parent had a mixture of strengths and weaknesses. He certainly accepted that the parenting that the Father would provide to the children was good enough, in this sense, but he would not be drawn into acceptance of any proposition that in the circumstance of this case, the Mother’s parenting was good enough.
53.Dr K was once again extensively cross-examined by Counsel for the Mother. It should be remembered in this context that this was, in fact, the second time that Dr K was meticulously cross-examined by Ms Gillies, Counsel for the Mother. Indeed, on reviewing the Court’s notes of both cross-examinations, it is hard to imagine, even with the benefit of hindsight, what else Counsel could have possibly put to Dr K that would have made the slightest difference. The second cross-examination, of course, occurred after both parents had given evidence. There was much more for Counsel to work on.
54.Dr K agreed in cross-examination that his concept of the children resuming some time with their mother when they each individually turned 14, was a new one. He demonstrated a thorough understanding of the practical implications of this, given that each of the children would turn 14 at different times and, thus one, or some of the children would be spending time with their mother, but others not. He could not be shaken, however, about the appropriateness of age 14, because of the developmental significance of that age. He emphasised the benefits of having that fixed age in giving the children structure that makes sense about a possible reintroduction of their mother into their lives.
55.Dr K accepted that one of the dangers of the Court making Orders consistent with his proposal is that the children would idealise their absent mother. This, in itself, could lead to other problems. However, he was quite insistent that the risk of idealisation, and its potential consequences, needs to be balanced against what he considered to be the bigger risk of more contact with their mother. Dr K demonstrated that he was clearly aware of the possible risks, had balanced them, but maintained the view that there was less risk if his recommendations were adopted. Whilst recognising some of the possible disadvantages of the children idealising their absent mother, he also said it was important not to disrupt the children doing this. He regarded it as unfortunate that the Paternal Grandmother had told the children that the Mother was mentally ill whilst they were in her care. However, Dr K felt that the Father seemed to be doing a good job of allowing the idealisation process to take place. If the counselling for the children that he recommended were implemented, this would only assist. He accepted that it was possible that the Paternal Grandmother would continue to have a role in the Father’s household. Indeed, he thought this was probably likely. It was inappropriate for the grandmother to say to the children that their mother suffered a mental illness, and if there was a risk of this reoccurring, an order should be made.
56.In relation to the Father’s violent and abusive actions towards the Mother, Dr K acknowledged that apologising for his behaviour to the children was not the same as apologising to the Mother. He accepted that it was probably best for the Father to acknowledge the inappropriateness of his actions in a therapeutic context.
57.Dr K was challenged about the differentiation that he made in his evidence about the types of family violence, and his description of the father’s violence as “fed up violence”. Dr K maintained the characterisation, but acknowledged that even “fed up violence” was inappropriate back then, and continues to be so. He explained that what he meant to convey was that the Father’s violence needed to be understood in the context in which it took place, and that is where the violence and abuse was both mutual and reciprocal. He openly acknowledged that if the Court’s findings about violence were not consistent with his own impressions, there was a need to reconsider his recommendations. He acknowledged that the Mother might have underreported her violence, a not uncommon phenomenon, and that even if the Court found that the Mother suffered from the personality disorders that Dr K believed, it did not necessarily mean that her reports of family violence were untrue. However, Dr K believed that, based on his experience and knowledge of the evidence in this case, the Father did not have the personality characteristics commonly found amongst perpetrators of violence. Even so, he emphasised, this does not rule out the fact that he might be a perpetrator. He even accepted that a common personality trait for perpetrators was cruelty to a family pet (an allegation in this case), and sexually inappropriate behaviour (another allegation in this case).
58.He was cross-examined about the Mother’s proposal for the children to spend time with their father, should the Court order that the children live with her. He maintained that in his opinion there was a significant risk that the Mother would not support any such time, and thus any arrangement would not succeed. He accepted that the Court might find to the contrary. He did not believe, however, that it was an area in respect of which family therapy could provide assistance. He pointed out, for example, that part of the Mother’s proposal involved the children spending time with their father on a supervised basis, which sent a signal to the children that there was potential danger. Dr K clearly felt that, on the material before him, there was no danger. When it was put to him, in the present context, that the Mother probably would comply with Orders of the Court, Dr K accepted that the Mother certainly had the capacity to obey Court Orders, which was consistent with that part of her personality that functioned perfectly normally. However, the Mother’s weakness was in relation to intimate relationships, and thus, in his opinion, there was a real risk that the order the Mother proposed was simply going to return the situation to the same dysfunctional relationship it was before the Court intervened. Indeed, he described the Mother’s proposal as “a big roll of the dice”.
59.Dr K rejected the proposition of identity contact a few times a year. He thought this would introduce a new degree of dysfunction in the children’s lives and was concerned that even a small amount of contact could be destructive for them. He warned again about the risk to the children of too much contact, too early, and the children being “sucked into the vortex” of the Mother’s highly intense relationship with them.
60.Counsel for the Mother cross-examined Dr K in relation to aspects of Dr L’s report. Dr K could see the benefits of a treating psychiatrist, who clearly had a professional relationship with his patient, being able to provide a report. The obvious limitation, he maintained, was the absence of collateral information that he, Dr K, had. Dr K also emphasised the benefit of being able to see the other person in the relationship, namely the Father. Dr K maintained his diagnosis. He was concerned that the Mother’s capacity to present her integrated self to the therapist over time might distort the therapist’s assessment of her. By contrast, he had observed significant dysfunction of the Mother, over time.
61.He was again challenged, meticulously, about his assessment of the Mother’s borderline personality disorder, but ultimately maintained his view. Dr K suggested that Dr L might have placed a benign interpretation on events that he, Dr K, considered more significant.
62.He was taken, again, to the issue of the Paternal Grandmother’s involvement, and what she told the children. Dr K explained that at the time the Paternal Grandmother said things to the children, she was solely responsible for their care. In the future, at best her role would be in a supportive one. The implication is that there will be less pressure on her. There would be less need to discipline them. The Paternal Grandmother would not feel the obligation to try to explain things to the children about their mother.
63.Dr K was cross-examined about the Mother’s allegations of the Father’s controlling behaviour, about the Father’s partner, Ms K, and the nature of their relationship, and about his use of alcohol. It was put to him that cumulatively, if the Court found in favour of the Mother about these concerns, Dr K would have to accept that the children were better off in the Mother’s care. He maintained that even if the Court found that the severity of the Father’s aggression was more than he concedes, if the Court still had concerns about the Mother’s capacity, on balance it would still be better for the children to live with their father and for him to undertake courses to acknowledge the responsibility for his previous actions. If the Court finds, however, that the level of the Mother’s dysfunction is less than he found, then he agreed that the children should be in her care. He clearly maintained in cross-examination, however, that he disagreed with the contentions being put to him by counsel for the Mother, and in particular he continued to hold serious concerns about the Mother’s parenting capacity.
64.Again, he was taken to the allegations about the Father’s sexualised behaviour, and the concessions that he made in evidence. He was well aware of the evidence of the Father having an erection when two children were sitting on his lap. He thought, however, that if the Father’s evidence was correct, i.e. that the children had been wriggling on his lap, and that he became concerned in relation to his own reaction, i.e., the erection, and read up about it, then that suggested the absence of a sexualised component to the incident, and thus was of much less concern. He pointed out that the Mother’s capacity to absorb (and by inference interpret and integrate) these events was a factor to be taken into account. Nonetheless, Dr K acknowledged that if the Court found that there was an unacceptable risk of sexual abuse presented by the Father, then his recommendations would need to be reconsidered. It was put to him that, in fact, there could be a case for no contact at all between the Father and the children. Dr K agreed – if the erection took place as alleged, and the Father enjoyed it, and if the evidence was that indeed the Father did walk around the house with an erection on a regular basis. He expressed concerns, however, about the Mother’s judgment about these issues and how she interpreted these events, if they took place. Ultimately, he accepted, however, that if the Court finds there is an unacceptable risk of abuse to the children, they should not be spending any time with their father. A similar outcome might occur if findings were made in the Mother’s favour, about the sexual violence that she alleged. However, day time or supervised contact might also be an alternative.
65.Dr K accepted that one consequence of the Court adopting his recommendations would be that the children could be taken by their father wherever he wants to go. Dr K acknowledged this. He spoke in terms of the need to balance the stability of the children against a parent’s self-actualisation. He thought that if there was a risk of relocation, perhaps a prohibition should be time limited.
66.It was put to him that the Father’s actions had in effect “contained” the Mother’s parenting of the children. This was Dr K’s assessment. It was further put that in fact the Father’s actions went way beyond that, as demonstrated by even the concessions that the Father made about his violence and abuse towards the Mother, at least once in front of the children, that he kicked the family dog and that he was violent to the children on one occasion. Dr K said that even if these matters were correct, the parents never had an idealised relationship. Dr K explained that if the Father’s containment of the Mother’s parenting meant that he tried to create predictability for the children and emotional connection for them, there was nothing wrong with this. In this regard, Dr K described the Father as a “consistent plodder” whereas the Mother “swung between extremes”.
67.As mentioned earlier in these reasons, Dr K was subjected to a thorough, meticulous cross-examination, especially by Ms Gillies, Counsel for the mother. He made appropriate concessions. He willingly considered the various alternate scenarios and hypotheses put to him by Counsel. He accepted that if the Court made findings that were inconsistent with his own impressions, his recommendations would have to change. Nonetheless, he maintained the recommendations contained in his report, and the methodology that resulted in those recommendations.
68.As it turns out, and as will be discussed elsewhere in these reasons, the Court makes findings of fact consistent with the observations and impressions formed by Dr K that led to his diagnosis and recommendations. The Court’s conclusion in this regard was supported by the Father, Independent Children's Lawyer and the Secretary of the Department of Family and Community Services. As it turns out, therefore, the Court accepts Dr K’s expert evidence.
The evidence of Dr L
69.Dr L is the Mother’s treating psychiatrist. His evidence is contained in his Affidavit of 31 October 2014. His Affidavit annexes reports relating to the Mother dated 28 October 2013 and 19 October 2014. He first assessed the Mother on 12 July 2013, and the last assessment referred to in the report of 19 October 2014 was two days earlier, i.e. 17 October 2014.
70.
In his first report Dr L diagnosed the Mother as suffering adjustment disorder with anxious mood. He noted that there was some elements of post traumatic stress disorder, but insufficient to make the diagnosis under DSM. He initially commenced her on an antipsychotic agent, Seroquel, in low doses. On subsequent reviews, the Mother’s anxiety improved, but remained problematic, so she was commenced on an antidepressant which had anti-anxiety properties, namely Lexapro.
Dr L was optimistic of a good prognosis for the Mother. By the time of this report he had seen Dr K’s report and stated that he could not agree with Dr K’s diagnosis of a severe personality disorder. He acknowledged, however, “I have not assessed Ms Somerville with her children and I am not a child psychiatrist.” He went onto say, however, that based on his interactions with her over a period of five months he had no cause to be concerned about her care of the children.
71.In his second report, 19 October 2014, he reported that the symptoms of adjustment disorder with anxious mood appear to have largely resolved. He found that the Mother continued to display some symptoms of post traumatic stress disorder, including hypervigilance and avoidance of contact with males in certain situations, but as before he felt that she did not meet the full diagnostic criteria for PTSD. He once again expressed the view that he was unable to make a diagnosis in accordance with that made by Dr K, i.e. severe personality disorder. He noted, however:
I also accept that Dr K has been able to access information from other parties regarding Ms Somerville that has not been available to me. I do note, however, that this information is, at least in part, obtained from people such as Mr Somerville and his relatives, who may have a particular perspective they wish to present. This is not to say that Dr K’s findings are incorrect, but more to state that I’ve not been able to make a diagnosis of personality disorder in Ms Somerville’s case, despite having contact with her over an extended period of time.
He went on to observe that, given the degree of contact with the Mother, it was very unusual that he could not detect any personality dysfunction.
72.He felt the Mother’s prognosis was good. He observed that, despite the significant losses in her life over the last year, she appeared “at least on the surface to functioning reasonably well”. She is anxious at times. She continues to receive supportive psychotherapy. She has been prescribed Escitalopram and Quetiapine. He believes that the Mother is complying with treatment.
73.Again, he was asked to, and indeed made comments about Dr K’s report:
I have read Dr K’s report carefully regarding his concerns over Ms Somerville’s parenting capability. I acknowledge that, unlike Dr K, I have not assessed Ms Somerville’s children or her interaction with them. I do not have the expertise to do so and this is not my role. I accept Dr K’s contention that Ms Somerville’s interactions with her children may be problematic in some ways. However, I note from Dr K’s report, and I feel this is very important, that the children describe significant and ongoing attachment to both parents.
74.Dr L expressed a surprise at Dr K’s recommendation for the children to be in the full-time care of their father. The reason for this surprise was twofold – firstly, the children’s attachment to their mother, indicative of good enough parenting, the second related to the acknowledged issues relating to the father’s capacity, including a history of alcohol abuse and physical violence.
75.He concluded by expressing the opinion that the Mother would be capable of caring for her children on a day to day basis with ongoing psychological therapy and with specific counselling regarding her parenting style and the impact this would have on her children.
76.There is an obvious dissonance between the report of Dr L and the report of Dr K. This was the subject of careful cross-examination.
77.In cross-examination Dr L agreed with the proposition that there was “much you have not seen” relating to the evidence in this case, let alone the material before Dr K. He also agreed to the proposition that his report was prepared on the basis of partisan sources, namely the Mother. He openly accepted that the report was an account of his dealings with the Mother, as her treating psychiatrist. He accepted that the Mother might well be striving to present a particular perspective before him. He accepted that the Mother had not told him of her 20 suicide attempts. When it was suggested to him that it was of concern that the Mother had withheld that information from him, Dr L explained that people have different reasons for withholding information. With great respect to Dr L, on this point he was unconvincing, and did not really answer the question.
78.He was asked whether the Mother met the criteria for eligibility for a disability support pension. His answer was, “Not necessarily, but she may not be fit to work due to anxiety.” Nonetheless, he believed that her “prospects were good for the future”. He emphasised, however, that entitlement to a disability support pension was quite irrelevant to the question of parenting capacity.
79.Dr L agreed with the proposition put to him by Counsel for the Independent Children's Lawyer that the “Achilles heel of self-reporting” was that a patient would tell their doctor their own subjective account.
80.As the Mother’s treating psychiatrist, Dr L plays a unique role. His opinion is valuable because of that. Whilst he did not have the full range of information available to, for example, either Dr R or Dr K, he asserted, and the Court accepts, that he took into account the histories given in those reports. Nonetheless, the obvious limitations in his report, derived from the very nature of his involvement with the Mother, lead the Court to conclude that less weight can be placed on his report when it comes to the central diagnoses made by Dr K. It is most disconcerting that the mother did not tell him about 20 suicide attempts. It would be unfair to say that Dr L discounted this as being irrelevant. Rather, the way in which he was cross-examined meant that the issue was left incompletely explored. Dr K had available to him a range of sources of information relating to the mother, including the Mother. This greatly enhances the weight that should be placed on his report, particularly in circumstances where his evidence was very carefully scrutinised in cross-examination, but largely remained intact.
Schedule Two
Minute of Order proposed by the Applicant Father
Parenting Matters
1.That the husband have the long term responsibility for the care, welfare and development of their children namely [Z] born [omitted] 2002, [W] born [omitted] 2003, [Y] born [omitted] 2005 and [X] born [omitted] 2006.
2.That the husband be responsible for the day to day care, welfare and development of the children.
3.That the children live with the Husband.
4.That there be no orders for time spent between the children and the wife, either face to face time spent or by way of telephone or written communication.
5.That the Wife be restrained from residing within a two kilometre radius of the Husband's residence.
6.That the Wife be restrained from attending any of the schools which the children attend.
7.That the Wife be restrained from attending upon or approaching the Husband's residence.
8.That should any of the children come into the care of the Wife, she is to immediately inform the Husband by telephone of that fact and their whereabouts and make the children available for immediate collection by the Husband.
9.That the Wife be restrained from retaining the children in her care.
10.That the Wife be restrained from making any comment on any social media forum which is directed towards the Husband or is intended in any way to denigrate the Husband or to elicit a response from any third person which is capable of causing offence to the Husband.
11.That the Wife forthwith remove any material which has either been published by her or appears on a social media account controlled by the Wife which is directed towards or seeks to denigrate the Husband.
Property Matters
12.That the net sale proceeds of the sale of the parties property at [2] Property M be divided as follows:
a.$293,000.00 to the wife.
b.The balance to the husband.
c.That any interest accrued on the invested amount from 1 May onwards be divided equally between the parties.
13.That from her share of the sale proceeds the wife pay to the husband the amount of$4,672.00 being the cost incurred by the husband in attending to the clean up at [1] Property M subsequent to the wife vacating it.
14.That the wife do all acts and things to transfer to the husband her entire right title and interest in the property at [1] Property M being the whole of the land contained in certificate of title folio identifier [omitted] and upon such transfer the husband shall refinance into his sole name the entire mortgage loan secured on that property and shall thereafter indemnify the wife and forever keep her indemnified against any liability in respect of the property including the payment of rates, taxes, mortgage repayments and insurances and the Wife shall be restrained from removing from this property, the furniture, white goods and desks.
15.That the Husband be the sole owner of the [S] motor vehicle registration number: [omitted].
16.That the husband be the sole owner of the Yamaha motor bike, bicycles, trailer and the sale proceeds of the caravan.
17.That the husband be the sole owner of his [B] shares.
18.That the wife be the sole owner of her jewellery.
19.That the base amount allocated to Ms Somerville the non-member spouse in these proceedings out of the interest held by Mr Somerville in [B] Super is $125,000.00
20.That pursuant to paragraph 90MT{1)(a) Family Law Act 1975, whenever the Trustee of the [B] Super makes a splittable payment from the interest held by Mr Somerville member number: [omitted] the Trustee shall pay to Ms Somerville or her administrators, executers beneficiaries, heirs or assigns the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement Mr Somerville would have had in the [B] Super but for these Orders.
21.That Order 19 have effect from the operative time and the operative time shall be deemed to be two (2) weeks from the date when these Orders are served upon the Trustee.
22.That this Order binds the Trustee of [B] Super.
23.That the husband do all acts and sign all documents necessary to transfer to the wife his entire right title and interest in the parties jointly owned property at Property R and thereafter the wife shall have sole ownership of her share in the property.
24.That the wife be responsible solely for any arrears owed in respect of the Property R property.
25.That the husband and wife have the sole right title and interest in:
a.Any chattels goods furnishings and other property which are, at the date hereof, in their possession respectively.
b.Any moneys, shares, debentures which stand in their sole name respectively at the date hereof.
26.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Schedule Three
Minute of Order proposed by the Respondent Mother
PROPERTY
1.That the husband shall within 8 weeks from the date of these orders, do all such acts and things and sign all necessary documents so as to transfer to the wife all his right title and interest in the property situate at and known as [1] Property M being the whole of the land contained in Title Reference [omitted] (herein referred to as [1] Property M).
2.That simultaneously with the transfer referred to above, the wife shall do all such acts and things and sign all necessary documents so as to discharge the mortgage in respect to [1] Property M and the wife shall refinance the mortgage into her sole name.
3.That the parties shall forthwith do all acts and things necessary to cause the funds currently held in a controlled monies account operated by CVC Law to be paid to the Wife's Mother.
4.That the husband shall within 7 days, pay to the wife the sum of $10,800.00 plus interest in accordance with the Rules (being the sum owed to the wife for the periods 18 April 2014 to 5 May 2015, 54 weeks x $200 = $10,800) with such sum being the arrears owing to the wife pursuant to the Orders dated 14 March 2014.
5.That the Husband be restrained and injuncted from further increasing the encumbrance secured over [1] Property M including but not limited to drawing down monies in respect to the re-draw facility attached to this loan.
6.That the wife shall transfer to the husband (at the husband's expense) one share in her interest in the time share, Property R.
7.That the husband shall make available for collection by the wife (at a location agreed between the parties in writing) within 14 days from the making of these Orders the following chattel items:
a.Power tools located at [1] Property M;
b.2 x Aldi brand Theromixers;
c.Ute roof racks (Holden Rodeo);
d.Canopy to ute (Holden Rodeo).
8.That the Husband pay to the Wife the sum of $1,340 per week by way of spouse maintenance commencing on the date of these Orders for a period of four years.
9.That the Court allocate, as required by Section 90MT(4) of the Family Law Act 1975 a base amount of $284,745 to the wife Ms Somerville out of the husband Mr Somerville's interest in the [B] Superannuation Fund ("the Fund").
10.That, pursuant to paragraph 90MT( )(a) of the Family Law Act 1975 whenever the Trustee of the [B] Superannuation Fund makes a splittable payment out of the husband's interest in the Fund the Trustee shall:-
a.pay to the wife, or her administrators, executors, beneficiaries, heirs or assigns, the entitlement calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
b.make a corresponding reduction in the entitlement the husband would have had in the [B] Superannuation Fund but for this Order.
11.That Order 9 has effect from the operative time.
12.That the operative time for these Orders is a date four days after service of the Orders on the Trustee.
13.That the Trustee of the [B] Superannuation Fund shall do all acts and things and sign all such documents as may be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the trustee can calculate the entitlement of, and make payment to, the wife in accordance with Order 9 of these Orders.
14.That other than as otherwise set out in these Orders, the parties have the sole right, title and interest in any other property which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
15.That the husband and wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made therein.
16.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument and to do all acts and things necessary to give validity and operation to the said deed or instrument and such Registrar of the Court shall be satisfied upon Affidavit evidence of the party alleging the refusal or neglect that a party is in breach of these Orders.
PARENTING
1.That all previous order and parenting plans are discharged.
2.That the mother shall have sole parental responsibility for the children namely :
a.[X] born [omitted] 2006
b.[Y] born [omitted] 2005
c.[W] born [omitted] 2003
d.[Z] born [omitted] 2002
3.That otherwise as provided for in these orders the children shall live with the mother.
4.That [Y] and [Z] shall live with the father as follows :
a.During school term each alternate weekend from the conclusion of school Friday until the commencement of school Monday with the first such occasion to occur on the first weekend after the making of these orders.
b.During school holiday periods for one half of each school holiday periods as agreed in writing between the parties or failing agreement for the first half of all school holiday periods that commence in a year ending in an even number and the 2nd half of all school holiday periods that commence in a year ending in an odd number.
c.In the event the children would otherwise be living with their mother:
i.From 9am to 5pm each Father's Day.
ii.From 5pm Easter Saturday until 9am Easter Monday in years ending in an odd number
iii.And from 5pm Easter Thursday until 9am Easter Saturday in years ending in an even number.
d.Such other times as agreed between the parties in writing.
5.That [W] and [X] shall live with the father as follows and provided that such time is supervised by an approved independent supervisor agreed between the parties or failing agreement CatholicCare:
a.During school term time each alternate weekend from 9am to 3pm Saturday and Sunday with the first such occasion to occur on the first weekend after the making of these orders.
b.During school holiday periods on each day of the first half of each school holiday periods from 9am to 3pm for all school holiday periods that commence in a year ending in an even number and for each day from 9am to 3pm for the 2nd half of all school holiday periods that commence in a year ending in an odd number
c.From 9am to Spm each Father's Day.
d.From 9am to 3pm Easter Sunday in years ending in an odd number
e.And from 9am to 3pm Good Friday in years ending in an even number.
6.The children's time with the father shall be suspended as follows:
a.From 9am to Spm each Mother's Day
b.From 9am to 3pm Easter Sunday in years ending in an even number
c.And from 9am to 3pm Good Friday in years ending in an odd number
d.Each Chinese New Year from 9am on the day of Chinese New Year to 9am the day after Chinese New Year.
7.Each party is restrained from approaching a child or the children or a school in which they are enrolled during the time that the child or children is in the care of the other parent.
8.The parties shall communicate solely in relation to the children and only via sms message.
9.For the purposes of facilitating Order 8 the parties shall keep each other advised of their current mobile telephone number upon which sms messages should be sent.
10.Where the children's time with their parents does not commence or end at their school the changeover shall be facilitated at the entrance of the [omitted] McDonalds.
11.Each party is restrained from denigrating the other parent or a member of their household or family in the presence or hearing of the children and shall immediately remove the children from the presence or hearing of any third person who does so.
12.Both parties are restrained from using physical chastisement or discipline on the children.
13.The father is restrained from toileting, showering [X] and/ or [W] or otherwise being present when [X] and [W] are in a partially undressed state.
Schedule Four
Minute of Order proposed by the Secretary, Department of Family & Community Services
1.All previous orders and parenting plans are discharged.
2.The father [Mr Somerville] be granted sole parental responsibility for:
a.[X] ("[X]"), born [omitted] 2006, presently aged 8 years, 9 months;
b.[Y] ("[Y]"), born [omitted] 2005, presently aged 10 years. 2 months;
c.[W] ("[W]"), born [omitted] 2003, presently aged 11 years and 6 months; and
d.[Z] ("[Z]"), born [omitted] 2002, presently aged 12 years 9 months;
hereafter collectively referred to as "the children".
3.The children shall live with the father.
4.Pursuant to s. 688 and 67ZC of the Family Law Act 1975 ("the Act") the First Respondent, Ms Somerville ("the mother"), is hereby restrained by injunction from:
a.spending any time with any or all of the children;
b.approaching, communicating or contacting by any means, including through any third person, any or all of the children;
c.entering or remaining in or being within 200 metres of any place of education or residence of any of the children and contacting by any means, including through any third person any place of education or residence of any of the children;
d.be restrained from removing or attempting to remove any or all of the children from his or her place of residence or educational facility;
e.harassing, molesting, stalking, threatening or causing bodily harm, to any or all of the children or any person in whose care any of the children may be.
5.A Police Officer may arrest the mother without warrant, pursuant to s.68C of the Act, if such Police Officer believes on reasonable grounds that the mother has since the orders were made, breached the injunction contained in paragraph 4 of these orders and it is taken for the purposes of this order that each of the injunctions in paragraph 4 relate to the personal protection of the children or any of them.
6.The father shall not consume alcohol during any time when the children are in his care and shall not be affected by alcohol at any such time.
7.That the mother is and shall be hereby restrained from:
a.Applying for a passport in the name of any or all of the children;
b.Applying for a passport in the name of herself and any or all of the children;
c.from removing and/or causing or allowing any or all of the children to be removed from the Commonwealth of Australia.
8.That the mother shall forthwith surrender the passport of each of the children to the Registrar of the Court, if she has not already done so.
9.The Marshall of the Federal Circuit Court of Australia and all officers of the Australian Federal Police and of the police forces of the States and Territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either parent from removing or attempting to remove the said children from the Commonwealth of Australia.
10.The Commissioner of the Australian Federal police and the Secretary of the Ministry of Immigration take all necessary steps to immediately place the children on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said children at all flights leaving any international airport in all States and all Territories of the Commonwealth of Australia and maintain each of the children's names on the Airport Watch List until the children attain the age of 18 years.
11.Pursuant to s. 688 and 67ZC of the Family Law Act 1975 ("the Act") the First Respondent, Ms Somerville ("the mother"), is hereby ordered to:
a.Forthwith remove or caused to be removed from Facebook, or any other social media or web sites and applications, any references to the children, their caseworkers, the legal representatives, or the experts who have appeared, given evidence in or are connected to these proceedings.
12.Pursuant to s. 688 and 67ZC of the Family Law Act 1975 ("the Act") the First Respondent, Ms Somerville ("the mother"), is hereby restrained by injunction from:
a.Publishing or posting by any means to any web applications and accessible internet sites including but not restricted to social media, (for example such as Facebook, Pinterest, Tumblr, Flickr, Digg, Dribble, LinkedIn, Tagged, and StumbleUpon), any material including text, photos, visual representations or audio files which identify the children or references to the children, their caseworkers, the legal representatives or the experts who have given evidence in or connected to these proceedings without first obtaining an order of the Court to permit her to do so.
b.Disseminating in any way material utilised in these proceedings including but not limited to reports, affidavits, transcripts, subpoena documents, memoranda and notes.
Schedule Five
Minute of Order proposed by the Independent Children’s Lawyer
1.The father is to have Sole Parental Responsibility for the children [X] born [omitted] 2006, [Y] born [omitted] 2005, [W] born [omitted] 2003 and [Z] born [omitted] 2012 (the children).
2.The children are to live with the father.
3.That up until each child attains the age of 16, the mother is restrained from:-
a.spending any time with any of the children except as set out in Orders 7,8,9,10,14,15,16,17,18 & 19.
b.approaching, communicating or contacting by any means, including through any third person, any of the children except as provided for in orders 5,6, 7,8,9,10,14,15,16,17,18 & 19.
4.That up until each child attains the age of 18, the mother is restrained from:
a.being within 200 metres of any place of education or residence of any of the children and contacting by any means, including through any third person, any place of education or residence of any of the children; and
b.removing or attempting to remove any of the children from his or her place of education or residence; and
c.harassing, molesting, stalking, threatening to cause bodily harm to any of the children or any person in whose care any of the children may be; and
d.uploading information regarding these proceedings on any internet web site.
5.The mother is at liberty to communicate with the children by sending letters or cards to the children in or around each child's birthday, Chinese New Year and Christmas.
6.The children are at liberty to communicate with the mother by sending letters or cards to the mother in or around the mother's birthday, Mother's Day, Chinese New Year and Christmas AND the father is to ensure that letters or cards written by the children are sent to an address provided by the mother from time to time.
7.That when each child turns 14 and up until that child turns 16, that child can spend supervised time with the mother upon 4 occasions each year for a minimum of 3 hours in February, May, August and December.
8.Where more than one child has turned 14, the children's supervised time with their mother in accordance with order 7 should occur simultaneously.
9.That when each child turns 14, the mother is at liberty to write to the father to request to spend supervised time with that child and the father is to write to the mother within 7 days of receiving the mother's written request and the father is to provide the mother with a list of suitable dates for that child or children to spend time with the mother in February, May, August and December.
10.Upon receiving written notification from the father of suitable dates for each child or children to spend supervised time with the mother, the mother is to do the following:
a.arrange for her time to be supervised by an agency that can prepare a report of her supervised time and one that is local to where the children are residing from time to time such as Care South or CatholicCare (the Agency);
b.provide details about the Agency to the father, including any costs that will be incurred to supervise the mother's time;
c.arrange for a copy of each supervised contact visit report prepared by the Agency to be sent to the father;
d.arrange for 3 hours supervised time to occur on a date as nominated by the father in accordance with Order 9;
e.arrange for her time to occur at a suitable public venue that is within a 20 km radius from the child or children's home;
f.notify the father of the date, time and venue for each occasion any child or children is/ are to spend time with the mother at least 7 days before each contact/ occasion;
g.arrange for employees from the Agency where possible to collect the child or children from the father's home 30 minutes before the mother's scheduled time , take the child or children to the nominated venue and then return the child or children to the father's home at the conclusion of her time with the child or children; and
h.notify the father of a changeover location at a suitable public venue that is within a 20km radius from the child or children's home where transport cannot be facilitated by the Agency.
11.Where the mother requests to spend supervised time with a child or children in accordance with Order 9, the father is to complete all necessary documentation as required by the Agency.
12.Where the mother is unable to arrange for transportation of the children to be facilitated by the Agency and she notifies the father of this in accordance with Order l0(h), the father is to ensure that any child or children due to spend time with the mother are delivered to and collected from the nominated changeover location by the father or his delegate.
13.Any costs for supervised time as permitted under Order 7 are to be shared equally between the father and mother and the mother is to arrange for a separate invoice to be sent to the father by the Agency as required by the Agency for each occasion that any child or children are to spend time with the mother.
14.That when each child turns 16, that child can request to spend unsupervised time with their mother from 10am until 5pm on the first Sunday of each month.
15.That where more than one child has turned 16, the children's unsupervised time with their mother in accordance with order 14 should occur simultaneously.
16.That if any of the children request to spend unsupervised time with their mother after they turn 16, the father is to send a letter to the mother advising her of this request.
17.Where the mother receives a letter from the father advising her that any of the children wish to spend unsupervised time with the mother after they have turned 16, the mother is to send a letter to the father advising him whether or not she is prepared to spend unsupervised time with the children.
18.Where the mother has agreed to spend unsupervised time with any of the children, the mother is to do the following:
a.arrange a changeover location at a suitable public venue that is no more than a 20 km radius from the child or children's home;
b.arrange a suitable public venue for the child or children to spend time with the mother that is within a 20km radius from the child or children's home;
c.notify the father of the changeover location and venue for each occasion a child or children is/ are to spend time with the mother at least 7 days before each meeting.
19.To facilitate unsupervised time in accordance with order 14, the father or his delegate is to deliver the child or children to the changeover location nominated by the mother at the commencement of the mother's time with the child or children and then collect the child or children from the same location at the conclusion of the mother's time with the child or children.
20.The father is to ensure that the mother is notified about important issues regarding the children's health and schooling.
21.The father is to provide the following to the mother:
a.copies of all school reports for each child;
b.school photos for each child if available; and
c.individual and combined photos of the children in June and December of each year,
22.The mother and father are to keep each other advised of their email address and residential address from time to time.
23.The mother and father are to provide each other with a telephone number that can be used in the case of an emergency only.
24.The father shall not consume alcohol during any period that the children are in his care.
25.The father is at liberty to provide a copy of any Final Orders and Judgment arising out of these proceedings to his treating therapist and to the children's treating therapist / s.
26.The mother is at liberty to provide a copy of any Final Orders and Judgment arising out of these proceedings to her treating psychiatrist and treating therapist.
27.The mother shall be hereby restrained from:-
a.applying for a Passport in the name of any of the children;
b.applying for a Passport in the name of herself and any of the children;
c.removing and/ or causing any of the children to be removed from Commonwealth of Australia.
28.That the mother shall forthwith surrender the Passport of each of the children to the father if she has not already done so.
NOTATIONS
C.It is noted that the father will facilitate therapy for any or all of the children so as to help the children understand the court outcome and final orders made and if required, to assist the children to engage positively with their mother if they commence spending time with their mother.
D.It is noted that father is at liberty to provide copies of supervised contact visit reports to the children's therapist where these reports have been provided by the mother.
0
6
2