Spargo and Spargo

FAMILY COURT OF AUSTRALIA

SPARGO & SPARGO

[2013] FamCA 917

FAMILY LAW ─ CHILDREN ─ Parenting arrangements ─ best interests ─ parental responsibility ─ where the children live primarily with the mother ─ where the parties cannot agree how often the father should spend time with the child and whether supervision is necessary ─ where it is in the child’s best interests that the mother have sole parental responsibility and inform the father and for the children to live with her ─ where it is appropriate that the father spend limited time with the child, initially on a supervised basis in order to promote a meaningful relationship between the father and the child ─ allegations of child sexual abuse.

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65DAA

APPLICANT:

Ms Spargo

RESPONDENT:

Mr Spargo

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

7008

2011

DATE DELIVERED:

22 November 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Loughnan J

HEARING DATE:

6, 7, 8 and 9 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Johnston

SOLICITOR FOR THE APPLICANT:

Santone Lawyers

RESPONDENT FATHER IN PERSON:

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Falloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms M Power

Orders

All previous orders relating to H born … 2002, X born … 2004, and C born … 2008, are hereby discharged.
Except as otherwise provided in these orders, the mother shall have sole parental responsibility for decisions about long-term issues including the children’s education and any elective medical or dental procedure or proposed treatment.
Subject to her discretion as to the timing and manner of doing so, the mother shall:
i.Advise the father of any significant decisions she proposes to make;
ii.Consider any views conveyed to her in writing in a courteous and timely manner by the father;
iii.Advise the father of the decision she has made, and provide him with all relevant information relation to the decision about education, including the name and location of a school or other educational facility, and in case of a decision about any significant elective medical or dental procedure or proposed treatment, the name and contact details of the medical or dental professional proposing the treatment; and
iv.Give such authorities as may be necessary for third parties to provide information to the father as referred to in this order.
Notwithstanding order 2, the mother shall do nothing to prevent the father from:
i.Obtaining information from a child’s school about his or her progress and development, including but not limited to copies of school reports and other information ordinarily provided to parents;
ii.Discussing proposed elective medical or dental procedure with the relevant treating professional; and
iii.Visiting a child in hospital.
Notwithstanding order 2, the consent of both parties shall be required on any application for passports for the children or any of them, provided that the father shall not unreasonably withhold such consent.
The mother shall retain the children’s passports.
The mother is permitted to remove any or all of the children from the Commonwealth of Australia. However , unless the parents otherwise agree in writing, or a Court otherwise orders, such travel must not cause the children or any of them to be outside of the Commonwealth of Australia for more than 10 weeks at any one time.
In the event that the mother proposes overseas travel for the children or any of them, the mother shall, as soon as is practicable prior to the intended date of departure from Australia, provide to the father in writing:
i.An itinerary, including all flight departure and arrival dates and times, and details of all places at which it is intended that the children or any of them will stay while outside Australia; and
ii.Details as to how the children may be contacted by way of telephone, text message or email while outside Australia.
That the children H and X spend time with the father as follows:
i.Alternate weekends during school term:
a.      on the first weekend following the making of these orders and on each alternate weekend thereafter, commencing from 9am until 5pm Saturday;
b.      on the third weekend following the making of these orders and on each alternate weekend thereafter, from 9am Saturday until 5pm Sunday;
c.      the arrangements pursuant to a. and b. will recommence at the start of each new school term.
ii.During the December/January school holidays from 9am on 27 December to 9am on 30 December in each year; and
iii.In term school holidays from the first Saturday at 9am to 9am on the following Tuesday.
For the purposes of changeover, at the commencement of the father’s time with the children, the mother will deliver the children to the Family Relationship Centre at B (“the Contact Centre) or such other centre as nominated by the mother from time to time and the father shall deliver the children to the Contact Centre at the conclusion of his time with the children.
That the child C spend time with the father, unless the parents otherwise agree, supervised at the Contact Centre, as follows:
i.During the December/January school holidays from 9am until 11am on 27 December in each year; and
ii.On the first Saturday of each month when H and X are spending time with the father in accordance with order 9 i, from 3pm until 5pm;
For the purposes of orders 10 and 11 each party must:
i.Contact the Contact Centre within seven (7) days to arrange an appointment for assessment for suitability for C to spend supervised time with the father and for the purpose of changeovers to occur for H and X;
ii.Attend the assessment;
iii.Comply with any appointment made by the Contact Centre;
iv.Comply with all reasonable rules and requests or directions of the staff of the Contact Centre; and
v.The parties shall equally share the fees nominated by the Contact Centre for the provision for its service.
Subject to the advice and agreement of the contact centre, the father may attend for his visits with C with H, X and his partner, Ms U.
The parents shall co-operate with each other and with the contact centre to arrange, if possible, for the times C spends there with the father to be co-ordinated with changeovers for H and X.
In the event that either of the parties is unable to facilitate the father spending time with the children or any of them in accordance with these orders, that parent shall provide written notice to the other at the earliest opportunity and shall be responsible for the cost, if any, of the contact centre for that visit.
The mother shall be under no obligation to provided make-up time for any periods when the father is unable to take the opportunity to spend time with the children, or any of them, pursuant to these orders, but may do so at her discretion.
The mother shall facilitate the father and children freely to corresponding with each other via email, Instagram, KIK, Facebook and other current forms of social media as well as future forms of social media.
The father shall maintain a fully-paid mobile telephone plan and a mobile telephone or telephones for the purposes of the children communicating with him, and the mother shall encourage and shall do nothing to prevent the children from communicating with the father at any reasonable time by telephone.
If a child suffers illness or injury requiring hospital admission, the parent having care of the child at the time shall:
i.As soon as is reasonably practicable, advise the other parent and provide all relevant information including the location of the hospital and a telephone number; and
ii.Provide the other parent’s contact details to the hospital.
Neither parent shall, in the presence or hearing of the children or any of them, make any derogatory, critical or insulting comments to or about the other parent or a member of the other parent’s household.
Neither parent shall discuss these proceedings in the presence or hearing of the children or any of them, or permit the children or any of them to read any documents relating to the proceedings.
Neither parent shall require the children or any of them to discuss events or conversations taking place in the household of the other parent.
Unless they otherwise agree in writing, neither of the parents shall be present at any venue where the children are attending for training or a sporting event at a time when the children are in the care of the other parent pursuant to these orders.
The father is at liberty to provide a copy of these orders and copies of the reports of the court-appointed expert Dr L to any appropriately qualified professional he engages for the purpose of personal counselling and/or development of his parenting insights and skills.
For the purpose of these orders, communication in writing shall include emails and telephone text messages, and the parents shall conduct those communications in a courteous and business-like manner.
Each parent shall keep the other advised of his/her contact telephone number and email addresses.
The mother shall give the father not less than 21 days notice in writing of an intention to move from the suburb in which she presently lives.
The Court noted that the father intends to meet the following expenses for the children:
i.All school fees for H, X and C to attend a Catholic High School, such as … until each child completes year 12;
ii.All school fees for H, X and C to attend a Catholic Primary School, such as …; and
iii.Sporting registrations and sporting equipment for the children to play their chosen sports.
Leave is granted to the parties to apply within 28 days, on giving at least seven (7) days’ notice to the Court and each other in relation to the wording of these orders.
Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7008 of 2011

Ms Spargo

Applicant

And

Mr Spargo

Respondent

REASONS FOR JUDGMENT

Introduction

These are parenting proceedings in relation to three children, H who was born in 2002 and is currently 11 years of age; X who was born in 2004 and is currently nine years of age; and C who was born on in 2008 and is four years of age (“the children”).

Applications

The applicant mother sought orders in terms of a minute of order – exhibit 22 as follows:
(reproduced as original)
1.That the mother have the sole parental responsibility of the children, [H] born … 2002, [X] born … 2004 and [C] born … 2008 (“the children”).
2.That in the event of a proposed change in schooling, change of address, medical procedure or other major long-term decision the mother makes for any child she shall inform the father of such proposal and take into consideration any matter he may make in relation to any such decision.
3.That the children live with the mother.
4.That [H] and [X] spend time with the father as follows:
a.       Alternate weekends commencing from 9am until 5pm Saturday, such time being suspended during school holidays;
b.      During the December/January school holidays from 9am on 27 December to 9.00am on 30 December in each year;
c.       In term school holidays from the first Saturday at 9am to 9am on the following Tuesday.
5.That [C] spend time with the father as follows:
(a)     During the December/January school holidays from 9am until 1lam on 27 December in each year;
(b)    On the first Saturday of the month when [H] and [X] are spending time with the father in accordance with order 4(a), from 3pm until 5pm.
6.For the purposes of changeover, the mother will deliver the children to the Family Relationship Centre at [B] or such other centre as nominated by the mother from time to time at the commencement of the father’s time with the children and the father shall deliver the children to the Family Relationship Contact Centre at [B] at the conclusion of his time with the children.
7.That [C’s] time with the father be supervised by the Family Relationship Centre at [B] or such other centre as nominated by the mother from time to time.
8.If Mother’s Day falls on a weekend when the Father is spending time with the children in accordance with these orders, the Father’s time with the children that weekend shall be suspended and the time he would have otherwise spent with the children shall occur the following weekend.
9.That the Father shall not attend any venue where the children are attending sports training or a game during any period when the Father is not spending time with them pursuant to these Orders.
10.That the Father shall not require the children to play any organised game in which they are not a team member.
11.That the Father maintain a fully paid mobile telephone plan and mobile telephone for the use of the children to telephone him.
12.That the father be and is hereby restrained from communicating with the mother in person via telephone, mobile telephone, text message, email, letter or any other way unless:
a.       An emergency involving a child arises whilst a child is in his care;
b.      To give the mother 24 hours notice of his inability to see the children.
13.That the father be and is hereby restrained from entering upon the mother’s premises or attending at her work place or coming within 500 metres of either location without the express written consent of the mother first had.
14.That the father be and is hereby restrained from attending any school or pre-school without the express written consent of the mother first had.
15.That in the event that the father cancels any booked session at the Contact Centre he shall be responsible for any cancellation fee charged.
16.That each parent permit the children to telephone the other at reasonable times should the children desire to do so.
17.That each party be restrained from making any negative comments about the other party or members of the other party’s family or household in the presence and/or hearing of the Children or any of them.
18.That each party be restrained discussing the proceedings in the presence and/or hearing of the Children or any of them.
19.That each of the parties will not unnecessarily withhold their consent to the issue of passports for the children and do all things and sign all necessary documents to facilitate the issue of the passports for the children.
20.That the mother be at liberty to remove the children from the jurisdiction of Australia for the purpose of taking the children on holidays and she shall give the father 28 days notice of any intended travel including notice of destination.
21.The children’s passports be retained by the mother.
It was conceded in the mother’s case that albeit that the wording might need to change and she would prefer her version or the Independent Children’s Lawyer’s (“ICL”) version - she did not oppose the thrust orders sought by the father, being 1, 2 & 3, 20, 23, 30, 31, 32, 33, 34, 35, 37, 38 & 40. As to the ICL’s proposals the mother finds acceptable: 1, 2i, ii & iii, 3, 5, 6, 7Aii, 7B, 8, 10, 11, 12, 13 – 23 & 26.
The mother presses her proposed 9, 10, 11, 12, 13, 14 (save that he could attend if the children are not there). It was agreed that the cancelling party will pay the outstanding fee.
The orders sought by the father changed during the course of the trial and particularly after he had heard the evidence of Dr L in cross-examination. At the conclusion of the trial the father sought orders in terms of a document titled “Orders Being Sought by [Mr Spargo] 9.8.2013” which was part of exhibit 2 as follows:
(reproduced as original)
1.That the mother shall have sole parental responsibility.
2.That the mother though she shall have sole parental responsibility shall invite and consider the input of the father of any major proposed change for the children such as health procedures, surgery and change of school.
3.That the mother inform the father of any hospitalisation of the children and change to their health.
4.That the father shall spend time with the boys on the first weekend of each month from 0900 hours each Saturday until 1730 hours each Sunday. This time being unsupervised.
5.That for the first six months from date of orders that on the weekend the father spends the Saturday only with [H] and [X], [C] is delivered to the paternal grandparents at 1200 hours. The father will then spend time from 1200 hours until 1730 hours with all three children but with supervision by [Ms U] of his time with [C].
6.That on the first weekend’s time of the father’s after that initial six month period from date of orders that on the weekend the father spends Saturday only with [H] and [X]. The father shall spend time with [H], [X] and [C] from 0900 hours until 1730 hours. The time with [ C] being supervised by [Ms U].
7.That the father shall not be alone with [C], take her to the toilet, or bathe her during this time.
8.That [H] and [X] spend four days commencing from 0900 hours Tuesday and concluding 1730 hours Friday of the first week of each school holidays, being Holidays in Term 1, Term 2 and Term 3. These weeks or days can be changed through communication of both parties to accommodate Holidays the other parent may wish to take.
9.That [H] and [X] spend four days commencing from 0900 hours Tuesday and concluding 1730 hours Friday of the first week of the Christmas School Holidays.
10.That [H] and [X] spend four days commencing from 0900 hours Tuesday and concluding 1730 hours Friday of the second last week of the Christmas School Holidays.
11.That the parent attempt mediation after 12 months of this order being in place to look towards more time with all children and the relation of supervision around [C].
12.That the father be free to contact the children on the mobile phone he provides once each day with no calls before 0900 hours each day and no calls after 1900 hours each day.
13.That the children being [H], [X] and [C], be free to call their father at any time on the mobile phone provided by the father.
14.That the mobile phone provided by the father be left on and charged so calls may take place.
15.That the mother be free to attend any sporting match, school sports carnival, presentation or training that the children are playing or competing in when in the fathers care.
16.That the father be free to attend any sporting match, school sports carnival, presentation or training that the children are playing or competing in when in the mothers care.
17.That should the mother be unavailable to take the children to any sporting or school activity the parents may communicate and the father if available can take the children to these activities.
18.The father be free to attend any school presentation days, awards night, school productions, school open days and school mass.
19.The father is free to attend any school orientation days that the children may attend prior to commencing a new school.
20.That the father not be coach of any of the children’s sporting teams.
21.That the father is able to correspond via email with the mother once per week in relation to the children’s health, sport, and school, this can also be used as a way to discuss Christmas gifts and Birthday gifts for the children.
22.That the mother within 72 hours of receiving the email respond to the father’s questions.
23.That the father and children be free to correspond with each other via email, Instagram, kick, Facebook and other current forms of social media as well as future forms of social media.
24.That the father and his family be invited to special religious events such as First Holy Communion that the children may undertake.
25.That the mother works towards a continuing strong relationship with the paternal side of the family, being with the children’s paternal grand-parents, aunts, uncles and cousins.
26.That the children call their paternal grand-parents on their birthdays, Christmas, Easter and receive calls from the children’s paternal grandparents on such occasions
27.That the father shall pay all school fees for [H], [X] and [C] to attend a Catholic High School, such as … until each child completes year 12.
28.That the father shall pay all school fees for [H], [X] and [C] to attend a Catholic Primary School, such as …
29.That the father shall pay for sporting registrations and sporting equipment for the children to play their chosen sports.
30.That the parent shall not denigrate each other to the children
31.That should the children’s time with the father fall on Mother’s day the time with the father will be suspended and a make-up weekend the following weekend will occur.
32.That should the children’s time with the Mother fall on Father’s day the time with the mother will be suspended and a make-up weekend the following weekend will occur.
33.That the mother retain the children’s passports.
34.That the children reside in the state of NSW.
35.That all change overs of the children occur at [B] Family Relationship Centre, located ... for the benefit of both parents.
36.That in the event of a death in the father’s family that the children be able to attend the funeral with the father. This being immediate family.
37.That the mother be free to remove the children from the Commonwealth of Australia for the purpose of Holidays.
38.That the children must not be outside of the Commonwealth of Australia for more than 10 weeks at any one time.
39.That no earlier than 12 months and no later than 13 months of these orders being implemented, face to face mediation take place by both parents to better understand each parents position on the children and their needs
40.That on any weekend that the father’s time not be able to occur due to reasons such as business travel or the unavailability of a supervisor in the case of [C] then the father provide sufficient notice to the mother

Importantly, during final submissions the father said that he had simply omitted from his proposals, day only time on the intervening fortnight’s weekend.
The Independent Children’s Lawyer sought orders in accordance with a minute of orders submitted on 9 August 2013 which was made exhibit 15 as follows:
(reproduced as original)
1.All previous orders relating to [H] born … 2002, [B] born … 2004, and [C] born … 2008, are hereby discharged.
2.Except as otherwise provided in these orders, the mother shall have parental responsibility for decisions about long-term issues including the children’s education and any elective medical or dental procedure or proposed treatment, on condition that the mother shall:
i.       Advise the father in writing of any decisions she proposes to make;
ii.      Consider any views conveyed to her in writing in a courteous and timely manner by the father;
iii.     Advise the father in writing of the decision she has made, and provide him with all information relation to the decision about education, the name and location of a school or other educational facility, and in case of a decision about any elective medical or dental procedure or proposed treatment, the name and contact details of the medical or dental professional proposing the treatment;
and the mother shall give such authorities as may be necessary for third parties to provide information to the father as referred to in this order.
3.Notwithstanding order 2, the consent of both parties shall be required on any application for passports for the children or any of them, provided that the father shall not unreasonably withhold such consent.
4.In the event that the mother proposes overseas travel for the children or any of them, the mother shall, not less than two calendar months prior to the intended date of departure from Australia, provide to the father in writing:
a.      a complete itinerary, including all flight departure and arrival dates and times, and details of all places at which it is intended that the children or any of them wills stay while outside Australia;
b.      details as to how the children may be contacted by way of telephone text message or email while outside Australia.
5.Notwithstanding order 2, the mother shall do nothing to prevent the father from:
a.      Obtaining information from a child’s school about his or her progress and development, including but not limited to copies of school reports and other information ordinarily provided to parents;
b.      discussing proposed elective medical or dental procedure with the relevant treating professional;
c.      visiting a child in hospital.
6.The children shall live with the mother, except when they are spending time with the father pursuant to these orders.
7.The children [H] and [B] shall spend time with the father as follows:
A.   During school terms:
i.       On the first weekend of each month: from 9am on Saturday until 5pm on Sunday;
ii.      On the third weekend of each month: on Saturday from 9am to 5pm.
B.      During each school holiday period: from 9am on the first Saturday until 5pm on the following Tuesday.
8.Changeovers for the purposes of order 8 shall be at McDonalds Family Restaurant at [P] until such time as the Family Relationship Centre at [B] (‘the contact centre’) is available for changeovers.
9.The parents may by agreement in writing vary orders 7 and 8.
10.The child [C] shall spend time with the father supervised at the Family Relationship Centre, [B], (“The Contact Centre”) for 2 hours each month, commencing immediately once a place becomes available.
11.For the purposes of orders 7, 9 and 10 each party must:
i.       Contact the Family Relationship Centre, [B], (“The Contact Centre”) within seven (7) days to arrange an appointment for assessment for suitability for [C] to spend supervised time with the father and for the purpose of changeovers to occur for [H] and [X].
ii.      Attend the assessment.
iii.     Comply with any appointment made by the Contact Centre
iv.     Comply with all reasonable rules and requests or directions of the staff of the Contact Centre.
v.       The parties shall equally share the fees nominated by the Contact Centre for the provision for its service.
12.The father may, in writing, request of the mother that [H] and [X] attend his contact centre visits with [C], subject to the advice and agreement of the contact centre.
13.The father may attend for his visits with [C] with his partner Ms [U], subject to the advice and agreement of the contact centre.
14.The parents shall co-operate with each other and with the contact centre to arrange, if possible, for the times [C] spends there with the father to be co-ordinated with changeovers for [H] and [X].
15.If the father is unable to spend time with the children or any of them in accordance with these orders, he shall advise the mother in writing.
16.The mother shall be under no obligation to provided make-up time for any periods when the father is unable to take the opportunity to spend time with the children, or any of them, pursuant to these orders, but may do so at her discretion.
17.The father shall maintain a fully-paid mobile telephone plan and a mobile telephone or telephones for the purposes of the children communicating with him, and the mother shall do nothing to prevent the children form communicating with the father at any reasonable time by telephone or by email.
18.If a child suffers illness or injury requiring hospital admission, the parent having care of the child at the time shall:
a.      as soon as is reasonably practicable, advise the other parent and provide all relevant information including the location of the hospital and a telephone number;
b.      provide the other parent’s contact details to the hospital.
19.Neither parent shall, in the presence or hearing of the children or any of them, make any derogatory, critical or insulting comments to or about the other parent or a member of the other parent’s household.
20.Neither parent shall discuss these proceedings in the presence or hearing of the children or any of them, or permit the children or any of them to read any documents relating to the proceedings.
21.Neither parent shall require the children or any of them to discuss events or conversations taking place in the household of the other parent.
22.The father shall not be present at any venue where the children are attending for training or a sporting event on days when the children are not spending time with him pursuant to these orders.
23.The father is at liberty to provide a copy of these orders and copies of the reports of the court-appointed expert Dr [L] to any appropriately qualified professional he engages for the purpose of personal counselling and/or development of his parenting insights and skills.
24.For the purpose of these orders, communication in writing shall include emails and telephone text messaged, and the parents shall conduct those communications in a courteous and business-like manner.
25.Each parent shall keep the other advised of his/her contact telephone number and email addresses.
26.The mother shall give the father not less than 21 days notice in writing of an intention to move from the suburb in which she presently lives.

Written Evidence

The mother relied on:
Further Amended Initiating Application dated 6 August 2013
Mother’s Affidavit filed 25 July 2013
Mother’s Affidavit filed 17 May 2013
Affidavit Ms W sworn and filed 22 June 2012
Affidavit Ms F sworn and filed 22 June 2012
Affidavit Mr S sworn 22 July 2012 and filed 23 July 2012
Notice of Child Abuse or Family Violence filed 15 November 2011
The father relied on:
Father’s Affidavit sworn and filed 20 July 2012
Affidavit Mr SS sworn 17 July 2012 and filed 20 July 2012
Affidavit Ms U sworn 17 July 2012 and filed 20 July 2012

Expert Evidence

The following expert evidence was relied on:
Report of Dr L dated 2 June 2013
Report of Dr L dated 28 July 2012
Report of Dr L dated 25 April 2012

The Hearing

The hearing commenced on 6 August 2013. The father did not have legal representation. At the commencement of the hearing the father sought an adjournment of the proceedings as the mother had purported to amend her Application of 25 July 2013 to seek permission to relocate the children to Queensland. For reasons given at the time I indicated that the adjournment would be granted. The mother’s Further Amended Application was then withdrawn and the hearing proceeded.
At the conclusion of the trial on 9 August 2013, orders were made to resolve an issue about parenting arrangements pending the delivery of judgment, as follows:
1.Pending arrangements to facilitate changeover at the Family Relationships Centre at [B], on all occasions of changeover of [H] and [X] between the parties at [P] McDonalds Restaurant, the father shall remain within his motor vehicle until the changeover has been effected.
2.An order is made in terms of paragraphs i, ii, iii and iv of the order sought at paragraph 11 of the Minute of Orders Proposed by the ICL which is exhibit 15 for the purposes of facilitating those changeovers occurring at that Centre, as follows:
i.       Contact the Family Relationship Centre, [B], (“The Contact Centre”) within seven (7) days to arrange an appointment for assessment for suitability for [C] to spend supervised time with the father and for the purpose of changeovers to occur for [H] and [X].
ii.      Attend the assessment.
iii.     Comply with any appointment made by the Contact Centre.
iv.     Comply with all reasonable rules and requests or directions of the staff of the Contact Centre.
Otherwise judgment was reserved and the parties were excused on delivery of judgment.

Short History

The father was born in 1967 and is currently 46 years of age. The mother was born in 1972 and is currently 41 years of age. The parties met in March 2000 and married in 2001. They separated in 2010 and were divorced on 20 September 2012.

Credibility

The purpose of a credit finding is not to allocate blame or make a moral judgment. It is solely to assess the value of the evidence of a witness in resolving disputes about relevant facts. In these proceedings there are a number of issues that fall to be determined by reference to the testimony of the parties and in respect of which there is little or no independent evidence or corroboration. Therefore the credit of the witnesses is relevant.
In my view, there was a concern about the mother’s credibility in that her case made little sense. She told me that she is certain that the father deliberately burnt his then three year old daughter with a cigarette; that he dragged his son, H by the hair through a house; that on several occasions after separation he entered her home without permission, once with a gun and that on one of those occasions he accessed and changed her private internet accounts. Despite alleging what amounts to controlling and sociopathic behaviour, she nevertheless seeks that he spend time with the children, albeit supervised in the case of C. That invited the speculation that either the mother does not believe her allegations against the father are true, which damages her credit or perhaps more alarmingly, that she seeks orders that she does not believe are in the best interests of the children. On balance I take it that, although the mother has not withdrawn her allegations, she allows that in respect of the most serious of them, she may be wrong or may have exaggerated her evidence.
The mother appeared to be anxious in the witness box and during her cross-examination by the father, gave her evidence with her back slightly turned to him. I accept that the process of cross-examination by the father in person must have been extremely difficult for the mother.
The mother conceded that aspects of her earlier representations were incorrect. She said that reference in two places in her Notice of Abuse, about X grabbing a knife was not true and the wording of paragraph 91 of her primary affidavit was not entirely accurate. In the latter regard I note that she did not call any corroborative witness to the events to which she deposed in that paragraph and no explanation was provided for that. The father was roundly criticised on behalf of the mother for exaggerating his evidence given in the property settlement proceedings, in relation to the financial contribution he made to the purchase of a property at G during the marriage and yet the wife’s evidence (paragraph 10 of the wife’s affidavit sworn on 15 May 2013) seems to suffer from the same complaint. As I understood the cross-examination of the father on behalf of the mother, he was criticised for claiming to have contributed to the G purchase, $160,000 in equity from the sale of his N property, when the equity was only of the order of $120,000 or $130,000. However, it was the wife’s evidence that his equity was only $5,463.83.
The mother gave evidence to the effect that the father sent her an abusive email on 2 August 2013. When presented with the email during cross-examination the mother conceded that it was not abusive. Otherwise, the mother was not successfully challenged on any significant issue. Based on her own case she made some concessions against interest. For example she agreed that she did nothing when she watched the father drag H by the hair through her house. The mother was not a good witness, albeit that she was more credible than the father.
Ms W was briefly cross-examined and did not resile from her testimony.
Ms F was required to attend for cross-examination but no questions were put to her.
Mr S was briefly cross-examined but did not resile from his testimony. However he said that he was asked to prepare his affidavit to comment on the mother’s parenting and to deal with some issues or incidents. As his affidavit makes clear, he included some but not all of the incidents he knows of. In relation to his evidence in paragraph 15 about an incident on Saturday, 22 April 2012 he corrected the date, in chief, to 2011. I gather that it is not in dispute that the date in question was a Saturday. He was not fazed when I told him that 22 April 2011 was not a Saturday. I understood what he said next to mean that his evidence about the date, both when he swore the affidavit and when he gave his oral evidence, was not based on his unaided recollection. The evidence about the date is not reliable. Nothing much turns on the issue, save to say that he was not careful in preparing his affidavit and therefore his evidence is not of much assistance.
The father gave his oral evidence in an assertive and self-confident manner. While cavilling with the wording of the evidence of the mother, Dr L and with some exhibited material, he variously conceded and did not dispute having an extensive history of dishonesty by word and deed. Because of the father’s concession I will not set out the remarkable examples given in evidence. On the one hand the father asserted that he has made changes in his life and said he believed that he is no longer dishonest. In final submissions however, he said: “I still make mistakes and I still tell lies.”
At times the father’s presentation was so self-confident and relaxed that I was left in some doubt about his ability to objectively reflect on his past conduct. More importantly, some of his evidence before the Court was demonstrably unreliable. In the clearest examples he directly contradicted his own testimony. For example: he never used C’s medication after separation[1]; but later he conceded that he took a spoonful on one occasion because he had a cough. The father is not a reliable witness.
[1] Paragraph 42 of the father’s affidavit
Ms U was a good witness. Albeit after a slight hesitation, she was able to condemn conduct of the father when he told the boys something to the effect that if he did not get the parenting orders he wanted, he would not see them until they were 16 years of age. Given her relationship with the father and the fact that she was under his gaze when the evidence was given, that cannot have been easy. She was extensively tested in relation to an incident with the children at the former film site on the Kurnell peninsular. She was unshaken, the objective material was equivocal and I accept her evidence on that issue and generally.

The Issues

The main issues remaining at the conclusion of the trial were:
·The extent to which the father should have notice and a right to be heard in relation to decisions in the course of what is agreed will be the mother’s sole parental responsibility;
·Whether Cs time with the father should be supervised at a contact centre or by the father’s partner and the period for which supervision should continue;
·Whether the father should have any overnight time with the boys other than a few days in each of the school holidays;
·Whe wording of various specific purpose orders; and
·The timing and extent of the obligations of the parties in relation to telephone communication.

Background Facts

The father was born in 1967 and is currently 46 years of age.
The mother was born in 1972 and is currently 41 years of age.
The parties were married in 2001.
The child H was born in 2002. Towards the end of 2002 H was diagnosed with Cystic Fibrosis (CF).
The mother resigned from her paid employment at the end of 2002 to care for H. In June 2003 she resumed work two days a week and on those days H was cared for by a nanny in the parties’ home.
The child X was born in 2004.
In mid-2004 the father was a voluntary patient at A Private Hospital for five to six weeks.
In 2006 the mother increased her paid employment to four days a week. H and X began attending day care two days a week.
In December 2007 the parties moved to Perth so that the father could take up a business opportunity.
In 2008 H was diagnosed with Bronchiectasis.
The child C was born in 2008. C was born with Cystic Fibrosis. Both C and H attended the CF Clinic at a hospital in Perth every 12 weeks.
In 2009 C was hospitalised with Swine Flu and pneumonia.
In March 2010 the parties returned to Sydney from Perth.
In June 2010 the mother returned to full time employment. C was cared for by the paternal grandmother five days per week during school term. During the school holidays all three children were cared for by the mother.
In late 2010 the parties separated.
Following separation the father consulted a psychologist and was referred to Y Private Hospital. The father consulted his GP Dr T who prescribed Luvox. I do not believe it would be controversial to say that Luvox is an antidepressant medication used in the treatment of major depressive disorder and other related mental health disorders. The father says he never took that medication.
On 6 January 2011 the father moved out of the matrimonial home into a two bedroom apartment 400 metres from the matrimonial home. The parties agreed that the children would live with the mother and spend time with the father every alternate weekend, every Wednesday night (for the two boys only) and one week every school holidays. The father regularly attended the children’s sporting and social events.
In March 2011 H and X were referred to two separate psychologists by their school. H saw a psychologist until December 2012 and X saw a psychologist for most of 2011 however he did not respond well to his second psychologist, Ms R, who he saw in 2012.
On her return from the father on 10 April 2011, C was taken by the mother to Hospital in relation to an injury to her lower back.
On 15 April 2011 the mother provided a statement to the police in relation to her concerns about the children’s behaviour and her concerns about the father.
On 22 April 2011 the maternal uncle, Mr S, stated that during a visit to the mother’s home, X had a major outburst, saying “I want to kill myself”, and was extremely violent towards the mother and H.

On 27 April 2011 C stopped spending overnight time with the father. That was at the mother’s insistence and with the father’s agreement.
In May 2011 the father commenced fulltime employment as a Manager for M Australia Pty Limited, a position he retained as at the date of the trial.
On 13 May 2011, by consent and without admissions a final Apprehended Domestic Violence Order (ADVO) was put in place against the father for the protection of the mother for six months.
In July 2011 C was hospitalised for two weeks with pneumonia and staphylococcus colonisation in the lungs. The mother stayed with C in hospital and H and X stayed with the father.
In July 2011 C spent one night with the father.
From 4 October 2011 C spent three consecutive nights with the father while the mother travelled interstate for work. The mother said she was uncomfortable about leaving the child with the father but did not think she had any choice.
On 7 October 2011 C was returned to the mother’s care without her CF medication. The mother said H told her that “Dad drank it”. The father denied he drank the medication. The father conceded during the trial that on one occasion he took a spoonful of the medication. It is not possible to match up the evidence and no finding is possible on that issue.
On 4 November 2011 the mother terminated the children’s contact with the father.
The mother stated that between November 2011 and February 2012 she noticed an enormous (positive) change in the children’s behaviour. It is her evidence that she was able to reinstate boundaries (for the children) and they were happy and loving to each other and to her.
On 9 November 2011 the ADVO was extended for 12 months and the children’s names were added as protected persons.
On 16 November 2011 the mother commenced these proceedings and filed a Notice of Child Abuse or Family Violence.
On 16 November 2011 the mother commenced these proceedings by filing an application in the Federal Magistrates Court (as the Federal Circuit Court was then known).
At the end of 2011 the mother stopped arrangements for C to be cared for by the paternal grandmother.
On 5 December 2011 the father filed his Response.
On 6 December 2011 orders were made by consent, for (among other orders):
·The children to live with the mother;
·The children to spend time with the father under the supervision of a private contact supervisor or a person agreed between the mother and father every alternate Saturday from 9am to 5pm, for a period on special days, and other times as agreed;
·The parties to be restrained from discussing the proceedings with the children and disparaging the other parent in front of the children;
·The appointment of an ICL;
·A Single Expert Report to be prepared by Dr L; and
·The matter to be listed for final hearing from 10-12 September 2012.
In January 2012 the father and his partner Ms U started living together at K.
On 9 February 2012 further consent orders were made (among other orders) as follows:
·Order 2 made on 6 December 2011 (in relation to the father’s supervised time) to be discharged;
·The children to spend supervised time with the father every alternate Saturday from 9am to 5pm, on Father’s day and other times as agreed; and
·The father’s time to be supervised by:
oMr SS, Mrs SS, Mr J SS or any other person agreed between the parties, subject to the proposed supervisor signing and providing to the ICL supervisor undertakings (annexed to the orders) and speaking to the ICL by phone; or
oa privately funded contact supervisor.
In 2012 the father coached a football team in H and X’s football club.
Between February and May 2012 the children saw the father three times a week (twice for training and once for the Saturday football game). The mother said that the children’s behaviour regressed in this period.
On 14 February 2012 the father consented to a final ADVO without admissions for a period of three years.
In March 2012 the father completed a “Parents not Partners” course at the B Family Relationship Centre.
On 10 March 2012 C and H met Ms U. The mother asserted that H told her “Dad showed me his scar and said ‘this is so [Ms U] and I won’t have any more babies’ and ‘this is the bed where [Ms U] and I sleep. This is where we have sex”.
On 11 April 2012 Dr L interviewed the family for his report.
The mother asserts that between mid and late April 2012 she had a conversation with C during which C said “[AA] and [CC] touched and looked at my front bottom”. AA and CC are other children.
On 21 April 2012 C was injured in an incident at football and at the home of the paternal grandmother, while in the care of the father.
On 23 April 2012 the mother withdrew her consent for the paternal grandfather to supervise the father’s time with the children.
On 29 April 2012 the maternal aunt, Ms F stated that at a football game C said to the paternal grandfather “You pushed me”. The paternal grandfather responded, “No, I didn’t push you. Who told you that? [H] pushed you”. To which C replied, “No Poppy, you did push me, you hurt me”.
On 3 May 2012 Dr L report dated 25 April 2012 was released by the Court.
On 14 May 2012 the mother spoke to C’s day-care class room teacher, Ms D, who told the mother that the day care staff observed some “concerning behaviour”. C was said to be touching her genitals during rest time when she was lying on the bed. The mother reported this to the police and Department of Family and Community Services (FACS) and stated that she thought the father might have been responsible. The mother was informed by the Police that the matter would not be investigated further.
On 15 May 2012 the mother’s solicitor sent a letter to the other parties about the preschool’s concerns. The letter also stated that on 26 May 2011 C had a nightmare where she woke up screaming “Don’t touch me there, Daddy. Don’t touch me”.
On 7 July 2012 Ms U supervised the father’s time with the children. Ms U and the father state that the father tickled C around her chest and upper arms and that H pinched her on the upper legs at which time C stood up, stopped laughing, and said “No [H] you are not allowed to touch me there” and pointed to her vagina. Ms U says that H appeared stunned, as he did not touch her there and that the following conversation then took place:
Father: You should not touch anyone around that area.
[H]: [C] and Mum always talk about you touching her on her vagina.
[C]: No! Daddy never touches me there.
[H]: Yes you do, you and mum always talk about it.
[C]: No! Daddy never touches me there.
Father: Enough of that. As long as we know not to do things like that to anyone.
The mother says that on 19 July 2012 she bathed C and that C complained of her vaginal area being sore and then said (during the course of a conversation about her sore vagina that is detailed in the mother’s affidavit) “No one can touch me there mamma, but it’s OK to have tickles. Daddy gives me tickles”. The mother says that she asked H and X about this and H confirmed that he saw the father ticking C on the upper leg and pubic area while H was on the lounge playing with his iPod and footy cards. The mother said that during the course of this conversation, C stated, “Daddy does sloppy kisses” and when asked where, replied, “On my vagina. I told him mummy says you can’t touch there”.
On 30 July 2012, according to the mother’s evidence, C made disclosures at preschool about the father touching her on the vagina and giving her “sloppy kisses” on her vagina. Childcare worker, Ms D made a report to FACS.
On 1 August 2012 the updated expert report of Dr L was released.
On 2 August 2012 the mother spoke to Ms D from C’s day care when dropping C off and was told about C’s behaviour/comments at preschool on 30 July 2012 and that a report was made to FACS. The mother’s solicitor notified the father’s solicitor and the ICL that C would not be made available to spend time with the father on the coming weekend.
The mother said that on 3 August 2012 H was upset and anxious about spending time with the father.
H and X spent time with the father on 4-6 August 2012 and visited the site where a movie was filmed. There is a dispute between the parties about whether the children were properly supervised on that day. The mother alleges that the father and Ms U allowed or encouraged the boys to access a part of the film site that was fenced off. The evidence is equivocal about that incident. I accept the evidence of Ms U on this issue. On that basis it is likely that the boys were permitted to enter a fenced off area but no meaningful conclusions can be drawn, adverse to the father on this issue.
The matter was listed for final hearing before Federal Magistrate Sexton (as her Honour then was) for 13 to 15 August 2012. Interim orders were made on 14 August 2012 and the matter was transferred to this Court. The interim consent orders made by her Honour, were as follows:
UPON NOTING THAT
(a)    Subject to the outcome of the Joint Response Unit investigations, the Independent Children’s Lawyer may approach the parties in relation to [C] spending supervised time with the Father at a contact centre; and
(b)    It is anticipated the Family Court will allocate this matter a hearing on an expedited basis
THE COURT ORDERS BY CONSENT PENDING FURTHER ORDER THAT:
1.      All previous parenting Orders in relation to [H] born … 2002, [X] born … 2004 and [C] born … 2008 be discharged, except Order 3 made on 6 December 2011 appointing the Independent Children’s Lawyer.
2.      The Children live with the Mother.
3.      [C] shall spend no time with the Father and the Father shall not communicate with her unless the parties agree for supervised time to occur at a contact centre.
4.      Until the Joint Response Unit advises that it has concluded all interviews for its current investigation, [H] and [X] shall spend no time with the Father and shall not communicate with him.
5.      In the event the outcome of the Joint Response Unit investigation results in the Father being charged, [H] and [X] shall cease spending time with the Father.
6.      The Father shall not attend any venue where [H] and/or [X] are attending football training or a game during any period when the Father is not spending time with them pursuant to these Orders.
7.      The Father shall not require [H] or [X] to play any other game in which they are not a team member.
8.      The Mother shall not attend any venue where [H] and/or [X] are attending football training or a game during any period when the Father is spending time with them pursuant to these Orders.
9.      The Children’s time with the Father be suspended during the second half of the December 2012/January 2013 school holidays.
10.    Each party be restrained from making any negative comments about the other party or members of the other party’s family or household in the presence and/or hearing of the Children or any of them.
THE COURT FURTHER ORDERS PENDING FURTHER ORDER THAT:
11.    On the Saturday following the Joint Response Unit advising that it has concluded all interviews for its current investigation, [H] and [X] spend time with the Father from 9.00 a.m. to 5.00 p.m. each alternate Saturday, with such time to be supervised by the Father’s partner, Ms [U], or such other person as may be agreed in writing between the parties and the Independent Children’s Lawyer.
12.    Upon the Joint Response Unit advising that it has concluded all interviews for its current investigation, the Mother ensure [H] and [X] telephone the Father on Tuesday and Thursday evenings each week between 6.30 pm and 7.00 pm and for the purpose of this Order, the Father maintain a fully paid mobile telephone plan and mobile telephone for the use of [H] and [X].
13.    The Mother forthwith provide Ms [U] with her mobile telephone number and ensure Ms [U] is immediately advised should that number be changed.
THE COURT FURTHER ORDERS THAT:
14.    This matter be transferred to the Family Court of Australia, to be listed for directions before a Judge on a date to be fixed and each party have leave to approach the list clerk forthwith to obtain this date.
On 13 September 2012 the ICL wrote to the parties indicating that she had been advised by JIRT manager caseworker Ms O that the interviews for the JIRT investigation had concluded.
On 1 November 2012 the ICL was advised by the JIRT manager caseworker Ms O that the JIRT investigation had concluded and that the allegations were not substantiated. The ICL wrote to the parties proposing that C commence spending time with the father at the Children’s Contact Centre at B (“the Contact Centre”) at which there were current vacancies.
On 2 November 2012 the mother advised the ICL by letter that she was agreeable to C spending time with the father at the Contact Centre.
On 7 November 2012 the father advised by letter that he did not agree to spending time with C at a Contact Centre.
On 3 December 2012 the first day of the trial was conducted before me.
In December 2012 H ceased consulting his psychologist Ms R.
In March 2013 the mother commenced a relationship with Mr E.
The father concedes that on 13 April 2013 he told the boys something like, if the Court decides that he needs a supervisor he would say goodbye and see them when they are 16.
The mother agreed for the children, H and X, to have a sleepover at the paternal grandparent’s house on 11 May 2013 because their cousins were there.
On 22 May 2013 the parties and the children attended interviews with Dr L. On 2 June 2013 Dr L’s third report was released.
On 17 July 2013 the mother forwarded to the father and the ICL an unfiled, signed Amended Initiating Application seeking to relocate with the children to the Sunshine Coast, Queensland.
The mother filed that Amended Application on 25 July 2013 but withdrew the relocation proposal at the commencement of the final phase of the hearing and the Further Amended Application was filed on 6 August 2013

The Expert Evidence

The Evidence of the Single Expert

Dr L is a clinical psychologist. Dr L prepared three reports dated 25 April 2012, 28 July 2012 and 2 June 2013.
Dr L was awarded a Masters Degree in Clinical Psychology in 1981 and a Ph.D was conferred on him in 1995. Dr L is a member of the Clinical and Forensic Colleges of the Australian Psychological Society, the Australian and New Zealand Association of Psychiatry, Psychology and the Law; and the Australian and New Zealand Association for the Treatment of Sex Abusers. Dr L commenced his clinical experience as a psychologist, treatment manager in 1978. He subsequently worked as child psychologist and later as team leader in adult mental health, child and family mental health and school mental health. In 1987 he was appointed Senior Clinical Psychologist, specialising in working with young offenders. In 1988 Dr L commenced teaching, at various universities. He is now a Director of Z Psychology a forensic and clinical private psychology practice. His forensic work includes providing reports and assessments in Children’s Court and Family Court matters. He has provided reports to the Family Court of Australia since 1999.
Dr L prepared three reports and was cross-examined. His recommendations changed over time and he conceded that he struggled with aspects of those recommendations.

Report dated 25 April 2012

In his first report Dr L recommended that it would be in the children’s best interests to have good levels of contact with their father. Dr L did not believe the children were at such a risk of harm that supervision was necessary. He expressed some doubts that a three week block with the father over Christmas was safe, given the father’s capacity to be manipulative and irresponsible. Dr L opined that two periods of time making up about three weeks might be better, subject to considerations about trips away. Dr L thought there should be no problem for the children spending overnight weekend time with the father on a fortnightly basis, or a week during each school holidays and stated that would be useful, given the strength of their relationship with him.
Dr L was unclear whether Wednesday nights should be re-instituted. He reported that the children would prefer to spend Wednesday nights with their father but questioned the potential disruption to the children’s routine and the father’s ability to be responsible on a school night. Dr L recommended that if the Court found that the father is still at risk of significant irresponsibility then overnight time during the school week should not occur, otherwise it would be in the children’s best interest that it be re-instituted.
Dr L recommended that the mother consider some of her attitudes towards the father and attend a Parenting After Separation Course.
Dr L was concerned about the child X and did not believe he would benefit from seeing a psychologist at this time. Dr L recommended that X’s behaviours be monitored at school and if the concerns continue, a referral to a counsellor may be appropriate.
In respect of the father, Dr L wrote at paragraph 148 that he was not of the view that the father suffered from a mental health problem:
It is possible his glib, persuasive and self-focused manner constitute traits underpinning some elements of sociopathy, however I was unable to elicit any significant grandiosity or sense of entitlement to suggest a personality disorder such as narcissistic personality disorder.
Dr L identified the critical issue being whether the children are generally at risk of harm from the father. He identified three potential risks; physical abuse, neglect and risks arising from the father’s irresponsible attitude.
According to Dr L there was no evidence to show the children are genuinely at risk of any physical abuse. He did not accept that the abrasion to the child C’s back was deliberate and made the assessment that the father’s profile did not suggest he would act in that way. However, Dr L commented that if the Court determines that the father deliberately sabotaged C’s medication then it raises major concerns about “the father’s capacity for insight in cooperating with the mother on the important issue of managing his children’s quite serious disease”.
Dr L concluded that the father appears to be “somewhat self absorbed” rather than “deliberately neglectful”. He noted at paragraph 152 that “when something comes up that he wants to get engaged in he will simply forget about the children”.
In respect of the mother, Dr L reported at paragraph 149 that “It is probable the mother does transmit her feelings about [the father] to the children, and this anger has probably contributed to the unsettled nature of the older boys last year”. Dr L concluded that there is little in the information provided to suggest the mother has an alcohol abuse problem as alleged by the father and there is little risk of abuse to the children from the mother. He opined at paragraph 156 that the mother has successfully displayed parental responsibility but she “is simply overborne by the task and she does need some respite”.
Dr L was concerned that the children may mimic the father’s “irresponsibility and lack of social propriety”, particularly the boys as they enter adolescence. Dr L did not think that with limited contact the father would be a particularly dangerous role model.
Dr L commented that the father admitted to being a compulsive liar yet also said he was completely honest in the assessment. He gave greater weight to the issue of neglect and highlighted that given the children’s high vulnerability, X in particular, “conservatism in judgments around risk of harm has to prevail” [paragraph 154].
Dr L made the following recommendations:
·That the children should have good levels of contact with their father without the need for supervision;
·Dr L was not convinced of the safety of a three week period with the father over Christmas and suggested that time be split into two periods of time;
·Overnight weekend time each fortnight and one week during school holidays with the father; and
·No overnight school time if the father is found to be at risk of significant irresponsibility.

The price of sole responsibility for long term decisions is that the mother will need to keep the father informed and, where practicable, consider his views. However, the father’s proposed order in relation to the mother responding to his weekly emails could become an instrument of oppression and seems to add weight to what Dr L described as the father’s “manipulativeness”. To be fair the father made it clear in the course of oral submissions that he did not intend that outcome but had struggled to find a wording of an appropriate order. In any event, the proposals made on behalf of the children strike a better balance than those sought by the father. It was submitted on behalf of the mother that I should not, by the orders made, seek to micro-manage the mother’s parenting. Even with the proposals of the ICL I am concerned that there is a risk of the consultation obligation becoming burdensome or, more importantly, exciting further litigation. For example, “a decision about any elective medical or dental procedure or proposed treatment” would presumably catch a scale and clean by a dentist; a cold treatment for X etc. An adjective that attempted to introduce a measure of importance, like “significant” calls for a level of interpretation that could itself lead to conflict. That problem can be addressed if the orders make it clear that the timing and manner of the consultation are left to the discretion of the mother. That is how I will address that issue.
In relation to overseas travel I will combine aspects of the proposals of the father and the ICL. The father’s proposal is less onerous than that put on behalf of the children. The Court should not be more concerned than the parents about such an issue. However, I am not sure why he has limited the permitted travel to holidays. That was not the subject of specific submissions. One could imagine other reasons that might justify return travel, such as school or extracurricular purposes. There is scope for great embarrassment if in ten years time a school trip is aborted because of an infelicitously worded order. I will remove the limitation on the purpose of travel. Subject to a provision whereby the parties can otherwise agree, I will adopt the father’s proposal about the duration of travel.
Otherwise the proposals made by the ICL for notice seem appropriate.

Conclusion

The s 61DA presumption applies. However in the circumstances of this case, it is rebutted. Dr L’s opinion strongly supports the agreed position of the parties, that the mother will have sole parental responsibility.
Each of the parents must inform the other about relevant matters. In particular, and without it becoming burdensome, the mother is obliged to keep the father advised of her arrangements for the children and of matters of significance in their lives.

Living Arrangements

The mother does not consent to McDonalds Restaurants being a changeover venue and at the conclusion of final submissions I understood there to be little controversy about the best venue being a contact centre.
The important issues are whether there should be any increase in the father’s time with the boys during school term, whether that should include overnight time and whether C’s time with the father should be supervised by Ms U or at a centre.

The children H and X

As to school holidays, the only argument is whether there should be three or four days of overnight time with the boys. There is no additional risk in the shorter period. I will order three days.
The father proposes that the boys spend unsupervised overnight time with him once per month, a day time visit on the intervening fortnightly weekend and for four consecutive days in the school holidays.
The mother opposes an increase in time with the children. She opposes unsupervised time with C. She argued that the father does harm to the children with day only, once a fortnight visits and that there is no reason to increase the time. The mother seeks that the boys spend day only time, unsupervised, with the father once per fortnight until February 2014 when the boys can spend day only time with the father on a consecutive Saturday and Sunday on alternate weekends. The ICL proposes that the boys spend unsupervised overnight time on the first weekend of each month, additional day only time on the third Saturday of each month and three consecutive nights in the school holidays.
It is agreed that the boys will spend time with their father each fortnight. The key area of dispute is overnight time during school term.
Given that it is agreed that the boys can have overnight time with their father in school holidays, the mother’s objection to overnight time during school term cannot be one of principle. Albeit that he changed his mind over time, the ultimate recommendations of Dr L included one overnight stay each month, which would reflect the boys’ wishes and in his opinion, would not unduly upset the mother or the children.
There is no ‘right’ answer to this question. All other things being equal the boys are at an age where they would have regular overnight time with both parents and where their wishes will have increasing importance. Their lawyer supports overnight time, the expert recommends it and the boys have requested such an arrangement. I will provide for fortnightly time between the father and the boys with every second occasion involving one overnight.

The child C

The mother proposes that C spend only supervised time with the father and that changeovers should occur at a contact centre. The father seeks that for the first six months C spend a half day each month with him and the boys, supervised by Ms U, extending to a full day. The father also proposes that in 12 months the parties undergo mediation in relation to the issue of supervision for C. The ICL proposes that the father spend two hours supervised time with C each month. It is acknowledged by the ICL that supervision for C cannot continue indefinitely. Nevertheless, the ICL does not support unsupervised time for C. The ICL does not support Ms U as a supervisor and in the absence of other individual supervisors, proposes that supervision be at a contact centre. The rejection of Ms U is not intended by the ICL as a criticism of her. Rather the concern is the potential for the mother to misconstrue a report that comes to her attention out of an event supervised by Ms U. The road forward from supervised time suggested by the ICL involves counselling that puts no obligations on the mother but might lead the parents to agree on a less restrictive arrangement for C.
The father’s take on Dr L’s evidence was that he variously supported unsupervised time with C and, at the highest, proposed Ms U as a supervisor.
As I have recorded earlier, of the supervisors contemplated by Dr L in his report, only Ms U was available. Dr L noted that Ms U’s supervision was not particularly effective. The report of the boys was that Ms U was either not physically present or doing other things and that she spent time with her own family in one room. Dr L recommended that the Court should frame any orders in relation to the supervision of C’s time so that the supervisor must be physically present and involved at all times. The expert opined that if Ms U was unable to agree to a more active level of supervision then it would be necessary to think of an alternative way for C to spend time with the father. That means a contact centre. Dr L did not think that would be emotionally distressing for C. As previously stated, he went on to say that while it would not be a major obstacle to maintaining a relationship there will be a point where C will want to go to the park or to the beach and it will become limiting and that time supervised by a contact centre should be used as an interim measure.
Through her counsel, the mother said that she consented to the boys attending at a contact centre for the purposes of the father’s time with C. Dr L saw advantages in that approach.
There are countervailing arguments about this issue. Time at a contact centre is not a practical arrangement on an indefinite basis. Ms U did not agree that she failed to supervise the boys. I was impressed by Ms U as a witness and have no reason to believe she would place C in harm’s way by failing to supervise the father. However, she does not believe that the father tells lies. However, the father says he does. It could be that he does not lie to her. To the extent that her supervision of the boys was not adequate, and based on their reports to Dr L, it is possible that the task of supervision of the father’s time with two older boys was necessarily different to that of supervising C. For instance the boys could be in different places, one outside and one inside, calling on Ms U to remain with the father but making supervision more difficult. The presenting concerns in relation to the boys were different to the concerns about C. The level of concern about the boys was apparently different to that about C. It is an agreed fact that the boys’ time with the father no longer requires supervision. In my view the father did not sexually assault C and there is not an unacceptable risk of him doing so in the future. However, as Dr L identified, an important reason for supervision is the mother’s apprehensions.
The submission on behalf of the child is that for the time being, supervision should be undertaken at a contact centre. On balance that is the safer course.
Sensibly, in my view, the ICL seeks that the orders address the question of missed visits. Again an important priority is reducing the scope for the arrangements to be oppressive or the vehicle for further litigation. Those orders are:
1.If the father is unable to spend time with the children or any of them in accordance with these orders, he shall advise the mother in writing.
2.The mother shall be under no obligation to provided make-up time for any periods when the father is unable to take the opportunity to spend time with the children, or any of them, pursuant to these orders, but may do so at her discretion.

Communication

The parties and the ICL propose orders about communication. The boys have a mobile phone provided by the father. The parents appear to support the children being able to contact the other parent at any reasonable time. Paragraph 23 of the orders proposed by the father relates to email and related electronic communication between the father and the children and the mother agrees. I will make that order but will express it in a way that creates an obligation on the mother.
None of the parties proposes an order for telephone calls to be made at a specific time. That has been a source of conflict in the past and might be best omitted from future orders. I will provide for the mother to encourage the children to ring the father.

Ancillary orders

The father seeks an order that would require the mother to permit the children to attend funerals of members of the father’s family. Minds differ about children attending funerals. For that reason and given the special role that the parties have conferred on the mother in relation to decision making, in my view that issue would be best left to her judgment. The mother’s counsel submitted that I could be confident that the mother would take the same approach to family funerals in relation to paternal and maternal relatives and I accept that. I will make no order about it.
The mother seeks orders in the following terms:
That the Father shall not attend any venue where the children are attending sports training or a game during any period when the Father is not spending time with them pursuant to these Orders.
The father seeks an order to the opposite effect, permitting each of the parents to attend, irrespective timing of the game or event. The father submitted that the mother sought to attend when the children are otherwise with him. There is no indication that she seeks such an arrangement and it would be inconsistent with her case on this point. There have been incidents that lead to the children being exposed to conflict or at least split loyalties. Unfortunately, this order is appropriate.
The mother seeks orders in the following terms:
That the Father shall not require the children to play any game in which they are not a team member.
Care is needed in framing an order by which parents are to ensure that children should live. I think I understand what the mother is seeking to achieve by the proposed orders which is something to do with organised sport. Let alone individual sport or activities, minds would differ about the efficacy or desirability of a parent requiring a child to play team sport or other activity. However, an order in the terms proposed could have unintended consequences (either proscribing all manner of play, whether structured or unstructured or interfering with the capacity of a parent to put any structure around a child’s activities). It would be unfortunate to have enforcement proceedings about the odd game of chess or catching a ball. In my view an order in the terms proposed would arguably be against public policy and in any event would not be in the best interests of a child.
That each party be restrained from making any negative comments about the other party or members of the other party’s family or household in the presence and/or hearing of the Children or any of them.
That each party be restrained from discussing the proceedings in the presence and/or hearing of the Children or any of them.
These are appropriate orders which address a mischief that is likely to have impacted on the children in the past.
The father seeks orders as follows:
27.That the father shall pay all school fees for [H], [X] and [C] to attend a Catholic High School, such as … until each child completes year 12.
28.That the father shall pay all school fees for [H], [X] and [C] to attend Catholic Primary School, such as …
29.That the father shall pay for sporting registrations and sporting equipment for the children to play their chosen sports.
Those are matters going to child support and the Court does not have jurisdiction to make orders in those terms. However, I will accept them as the sincerely expressed intention of the father and I will note that intention. I gather that the father intends that those non-periodic payments would be in addition to the assessment made for periodic support from time to time. The notation may be of assistance to the parties in crystallising the child support arrangements, whether through a child support agreement or otherwise.

Conclusion

The parents have three young children. By the conclusion of the trial they agreed about the basic format of the necessary parenting orders. As to the remaining areas of dispute, the best interests of the children warrant a conservative approach that gives effect to the agreement about parental responsibility and the fact that the children will mainly live with the mother. Sadly, that means that supervision will remain in place for C’s time with the father. The boys will have unsupervised time with their father, including some overnight time.
The orders are complicated and I will provide for the parties to bring the matter back on application made within 28 days in relation to their wording.

I certify that the preceding two hundred and seventy two (272) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 22 November 2013.

Associate:

Date: 22 November 2013

[2013] FamCA 917

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Remedies