Stanton and Crawford
[2018] FCCA 1700
•12 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STANTON & CRAWFORD | [2018] FCCA 1700 |
| Catchwords: FAMILY LAW – Interim parenting – where serious allegations of family violence made – supervised contact ordered – matter transferred to the Family Court of Australia. |
| Legislation: Family Law Act 1975, ss.4AB, 60B, 60CA, 60CC, 61DA, 65DAA, 68B |
| Cases cited: Goode & Goode [2006] FamCA 1346 Insley & Insley [2018] FCCA 438 MRR v GR [2010] HCA 4 |
| Applicant: | MS STANTON |
| Respondent: | MR CRAWFORD |
| File Number: | WOC 944 of 2017 |
| Judgment of: | Judge Altobelli |
| Hearing date: | 21 May 2018 |
| Date of Last Submission: | 21 May 2018 |
| Delivered at: | Wollongong |
| Delivered on: | 12 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Eldershaw |
| Solicitors for the Applicant: | Hansons Lawyers |
| Counsel for the Respondent: | Ms Gillies SC |
| Solicitors for the Respondent: | Nikolovski Lawyers |
ORDERS
Pending further order, the Child [X] (‘the Child’) born 2012 live with the Mother.
Each party must:
(a)contact Care Centre and CatholicCare Suburb A; (the ‘Contact Centres’) within 7 days and arrange an appointment for assessment for suitability for supervision of the time the Child spends with the Father;
(b)attend the assessment;
(c)comply with any appointments made by the Contact Centres for supervised time;
(d)comply with all reasonable rules of the Contact Centres; and
(e)comply with all reasonable requests or directions of the staff of the Contact Centres including to participate in a program or programs.
Pending further order, the Child spend time with the Father each Wednesday for two hours as agreed, with such time to be supervised by Care Centre or CatholicCare Suburb A, whichever is available first to provide supervised contact.
Pending further order, the Father fund the cost, if any, of the supervision in Order 3.
Leave be granted to the parties to file Consent Orders in Chambers in relation to an agreed supervisor for the time the Child spends with the Father.
By consent and or a without admissions basis as regards the Father, within 14 days, the Father enrol in an anger management program and provide written confirmation of enrolment and completion to the Mother’s solicitor.
By consent and pending further order, and or a without admissions basis as regards the Father, pursuant to section 68B of the Family Law Act 1975, the parents be restrained from:
(a)Consuming alcohol to excess during any time the Child spends with them and otherwise;
(b)Denigrating the other parent in the presence or hearing of the Child or in a manner likely to come to the attention of the Child; and
(c)Discussing the proceedings with the child.
Pursuant to section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the Child [X] (born 2012) and the Legal Aid Commission of New South Wales is requested to provide such representation.
The parties are to provide to the Legal Aid Commission at SYDNEY forthwith all documents thus far filed by them in these proceedings together with all existing orders and copies of any relevant reports.
Leave be granted to the Independent Children’s Lawyer to issue such additional subpoena as they consider relevant to the issues before the Court.
Leave be granted to the Independent Children’s Lawyer to inspect and photocopy any documents produced on subpoena in these proceedings.
Leave be granted to the Independent Children’s Lawyer to relist the matter on short notice by communication with Chambers in appropriate circumstances.
Leave be granted to the parties to file Consent Orders in Chambers appointing a single joint Expert.
The proceedings are transferred to the Family Court of Australia at Sydney to be listed for Directions before a Registrar on a date and time to be fixed.
NOTATION
A.This Court estimates that this matter will take more than four days to hear at a Final Hearing.
IT IS NOTED that publication of this judgment under the pseudonym Stanton & Crawford is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 944 of 2017
| MS STANTON |
Applicant
And
| MR CRAWFORD |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about [X], born 2017, currently 5 years old. These Reasons for Judgment explain the Orders that the Court has made for [X] to continue to live with her mother, and spend supervised time with her father.
Background
[X]’s mother is 47 years old, and her father 41. The Mother has children from a previous relationship. The parents commenced their relationship in 2010, and commenced living together in 2011. [X] was born in 2012. The relationship appears to have been a volatile one with a number of separations, albeit short separations, before the final separation that took place in June 2017. After separation, [X] spent regular overnight time with her Father for a period, but this then ceased. The Court is not able to establish, in the context of an Interim Hearing, why the Father apparently ceased to spend time with [X] between July and November 2017. [X]’s time with her Father resumed from about November and included overnight time. There were disagreements between the parents about this contact. The details, and the cause for this conflict, do not matter in the present context.
In September 2017 the Mother commenced the present proceedings. Whilst these Reasons for Judgment deal with parenting matters, there are also outstanding financial issues between the parents. The matter came before the Court for the first time on 13 November 2017 and Interim Orders were made by consent for the Father to pay to the Mother $440 per week by way of spousal maintenance. The matter next came before the Court on 27 February 2018. A Conciliation Conference was ordered, which did not result in a settlement. A Child Dispute Conference was ordered, and took place on 4 May 2018. The contents of the relevant memorandum will be discussed below. The matter was adjourned to 21 May 2018 for Interim Hearing. It is clear, as at 27 February 2018 that [X] was not spending time with her Father and the Mother’s position was that any such time should be supervised.
When the matter came before the Court on 21 May 2018, the Mother was represented by Ms Eldershaw of Counsel, and the Father by Ms Gillies of Senior Counsel.
Competing proposals
The Mother’s proposal was that [X] continue to live with her, and spend time with the Father each Wednesday for two hours at a supervised contact centre, or using the services of a professional supervised contact service. The Father would bear the costs of such supervision. The Mother also proposed Orders that the Father engage in an anger management program, that an Independent Children’s Lawyer be appointed, and that pursuant to s.68B of the Family Law Act 1975 (Cth) both parents be restrained from consuming alcohol to excess, denigrating the other parent, or discussing the proceedings with the Child. As it turns out, the Father agreed on a without admission basis to the Orders in relation to an anger management program, and the s.68B restraining Orders.
The Court will, accordingly, make these Orders by consent, duly noting that such Orders are made on a without admission basis. There was no opposition to the appointment of an Independent Children’s Lawyer, and the very high level of conflict, together with the very serious allegations made in this case, warrant the appointment of an Independent Children’s Lawyer.
At the Interim Hearing, the order proposed by the Father as set out in his Case Outline document filed 15 May 2018, was that there be equal shared parental responsibility, that [X] live with her mother, and spend time with her father from after school on Wednesday to the commencement of school on Friday in week 1, and then from after school on Tuesday until the commencement of school on Friday in week 2.
The Father’s proposal changed during the course of submissions however. The minute that was subsequently provided to the Court provided for the Father to spend time with [X] each Saturday from 10:00am to 4:00pm until the commencement of the July school holidays, and then from 9:00am Monday until 4:00pm Tuesday during the July 2018 school holidays, and then each alternate weekend from the conclusion of school Friday until the commencement of school Monday, during term 3 2018. The time would progress thereafter.
The Orders sought by the Mother, and by the Father, are reproduced in the first schedule to these Reasons for Judgment.
It should also be noted that the Mother’s proposal in relation to [X] had also changed. Thus, in her Amended Application filed 15 February 2018, she proposed on an interim basis that [X] would spend time with her Father each Tuesday and Wednesday from after school until 6:30pm, with no requirement for supervision. The reason for the Mother’s change of proposal was raised as an issue, and the significance of this will be discussed below.
The evidence
In the Mother’s case, she relied on:
a)Amended Initiating Application, filed 8 March 2018;
b)Affidavit of Ms Stanton, sworn 28 August 2017
c)Affidavit of Ms Stanton, sworn 15 February 2018; and
d)Affidavit of Ms Stanton, sworn 7 May 2018.
In the Father’s case, he relied on the following documents:
a)Affidavit of Mr Crawford, affirmed 27 February 2018;
b)Affidavit of Mr Crawford, affirmed 7 May 2018;
c)Affidavit of Ms C, affirmed 6 March 2018; and
d)Affidavit of Ms S, affirmed 8 May 2018.
There was an agreed tender bundle that consisted of the following documents, all of which had been produced on subpoena:
a)Documents produced by Region 1 Local Health District;
b)Documents produced by NSW Police;
c)Documents produced by Company;
d)Documents produced by Ms H;
e)Documents produced by Mr J;
f)Documents produced by Ms E; and
g)Documents produced by Dr J.
The applicable law
The applicable law is found in Part VII of the Family Law Act 1975 (Cth) (hereafter referred to as ‘the Act’). In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s.60CA.
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.
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.
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.
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.
Family violence is defined in s.4AB of the Act:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b) seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c) comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d) cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The case law
In MRR v GR [2010] HCA 4, the High Court referred to s.65DAA(1) and said:
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
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.
At [15] the High Court emphasised the need for a practical approach:
15. Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The Full Court’s decision in Goode & Goode [2006] FamCA 1346 provides some guidance about the interpretation of Part VII and the way to proceed in interim hearings.
68. In our view some of the comments of the Full Court in paragraph 18 are still apposite. For example, the procedure for making interim parenting orders will continue to be an abridged process where the scope of the enquiry is “significantly curtailed”. Where the Court cannot make findings of fact it should not be drawn into issues of fact or matters relating to the merits of the substantive case where findings are not possible. The Court also looks to the less contentious matters, such as the agreed facts and issues not in dispute and would have regard to the care arrangements prior to separation, the current circumstances of the parties and their children, and the parties’ respective proposals for the future.
…
72. In our view, it can be fairly said there is a legislative intent evinced in favour of substantial involvement of both parents in their children’s lives, both as to parental responsibility and as to time spent with children, subject to the need to protect children from harm, from abuse and family violence and provided it is in their best interests and reasonably practicable. This means where there is a status quo or well settled environment, instead of simply preserving it, unless there are protective or other significant best interests concerns for the child, the Court must follow the structure of the Act and consider accepting, where applicable, equal or significant involvement by both parents in the care arrangements for the child.
…
82. In an interim case that would involve the following:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j) if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k) even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
The challenge of fact finding in this case
This is a case like so many in the Suburb A Registry of the Court that involves very serious allegations of violence, but where a decision needs to be made without the benefit of any form of hearing at which the evidence can be tested. In a recent decision of Insley & Insley [2018] FCCA 438 the Court considered some of the particular challenges of fact finding in these cases, at paragraphs 63-74:
63. In Goode & Goode the Full Court warned against making findings of fact where findings are not possible. The Court did not rule out making findings of fact and, it must be remembered that findings can be made on the basis of uncontested matters, or admissions. To the extent, moreover, that findings may be differentiated from inferences, inferences may certainly be drawn from all of the material available before the Court.
64. Senior Counsel for the Father quite properly referred the Court to the Full Court’s decision in Goode & Goode. Of course there have been later Full Court decisions that suggest in that, particularly in cases where there are allegations of family violence, a more nuanced approach is warranted. For example, the Full Court in SS & AH [2010] FamCA 13 at [100] noted that sometimes judges will have little alternative but to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. The Full Court stated that it is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue. Nonetheless, the Full Court warned, findings must be couched with circumspection.
65. The Full Court in Marvel & Marvel (No.2) [2010] FamCAFC 101, in referring to its earlier decision in SS &AH stated at [120] that decision-making in interim proceedings is difficult, and thus a conservative approach is warranted, or one which is likely to avoid harm to a child.
66. In Reece & Reece [2011] FamCAFC 24, the Full Court warned at [76] about the consequences of failing to have regard to expert evidence simply because it was untested in cross-examination. In that case the evidence was a Family Report. In this case, of course, it is a Child Dispute Conference Memorandum.
67. In Deiter & Deiter [2011] FamCAFC 82, at [54] the Full Court suggested that s.60K (now s.67ZBB) of the Act signalled a clear policy imperative of ensuring that allegations of family violence are treated seriously and dealt with expeditiously. In an ideal world, these allegations could be dealt with at a discreet issues hearing, or an expedited final hearing. In reality, in a registry of this court where almost all of the cases involve allegations of family violence, neglect, abuse, drugs or alcohol and mental health, neither a discreet issues hearing, nor expedition is possible. It is nonetheless imperative that allegations of family violence are treated seriously.
68. At [61] in Deiter, the Full Court discussed risk analysis:
The assessment of risk is one of the many burdens placed on family law decision makers. Risk assessment comprises two elements – the first requires prediction of the likelihood of the occurrence of harmful events, and the second requires consideration of the severity of the impact caused by those events. In our view, the assessment of risk in cases involving the welfare of children cannot be postponed until the last piece of evidence is given and tested, and the last submission is made. We accept, however, that it is always a question of degree depending on the evidence that is before the Court.
69. The Full Court at [77] noted that it is not open to a trial judge to simply ignore an allegation because it had not been tested.
70. The Full Court in Enmore & Smoothe [2014] FamCAFC 131 at [39] explained that a finding of risk of abuse may be reached on the basis of evidence which falls short of that required for a finding that abuse has occurred. However, that is not to suggest that evidence aimed at establishing a possible risk of abuse should not be subject to careful scrutiny, since serious consequences can also flow from a finding that a child is at risk of abuse.
71. In 2015, the Full Court in Eaby & Speelman [2015] FamCAFC 104 at [18] expressly stated that the comments of the Full Court at [68] in Goode did not mean that merely because the facts are in dispute the evidence on the topic must be disregarded and the case determined solely by reference to the agreed facts. Moreover, at [21] the Full Court recognised:
Much of what occurs in families takes place in private, as a consequence of which corroboration is often not available. It follows that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.
72. In Salah & Salah [2016] FamCAFC 100 the Full Court in 2016 focused on s.60CG, which requires a Court when considering what parenting order to make, to ensure that whatever order is made, it does not expose a person to an unacceptable risk of family violence. Again, trial judges were reminded in that judgment that corroboration or objective support for allegations is not always necessary, especially because family violence often takes place in private in circumstances where no corroboration is available.
73. Applying that law to the facts of the case as presently before the Court, the Court must consider the likely impact on X of ignoring, or failing to act, on the Mother’s allegation. His Mother would be placed in a situation that, for whatever reason, she considers unacceptable because of the fear that she would experience. The Mother is clearly X’s primary carer. It cannot be in X’s best interests to so expose the Mother.
74. Even in a case like this where the facts are so contested, the Court must adopt the course that is likely to avoid harm to X. In circumstances where the Mother is his primary carer, the Father’s proposals for X to live with him are clearly problematic. The Court would have to completely disregard the Mother’s allegations, which it is not willing to do.
The cases summarised
The Mother’s case is that she had been subjected to serious family violence as defined in the Act. The Mother contends, in fact, that the Father’s aggression commenced before cohabitation, continued during the period of their relationship and afterwards. The chronology contained in the Mother’s Case Outline document filed 14 May 2018 is a useful summary of the allegations that she makes about family violence, and the sources of the information that she relies on in making those allegations. It is useful to reproduce the chronology here:
| DATE | EVENT | EVIDENCE |
| 1971 | The Applicant Mother is born | |
| 1977 | The Respondent Father is born | |
| 2005 | [A] (Mother’s child from previous relationship) is born | SS 28.08.2017 p 2 (SS = affidavit of Ms Stanton) |
| 2010 | Parties commence relationship | SS 28.08.2017 p1 |
| Mid 2010 | Father becomes verbally abusive to Mother and begins to call Mother derogatory names, regularly stating “you are a dog.” | SS 28.08.2017 p4 |
| 2011 | Parties commence cohabitation | SS 28.08.2017 p 2 |
| 2011 | Mother’s self harm attempt. Mother takes herself to Hospital. Mother’s evidence is that this was as a result of the Father’s psychological abuse. | Subpoena Local Health District tab A2 & A3 SS 7.05.2018 p 38, 39. |
| 16.09.2011 | NSW Police incident report noting the Father (POI) who attended his Father’s home he owned with his current wife (victim) “the POI being Mr Crawford attended the victim’s home. She is married to the witness who is suffering the early stages of dementia. The witness is the father of the POI. The POI was very hostile and requested that the witness sign the deed to his house over to him. When the witness refused the POI became very aggressive and verbally abusive towards the victim calling her lots of offensive names like “fat old bitch. Over the past year the POI has become very hostile towards the victim and witness. He often confronts them about financial problems and the deed to their house. | “NSW Police S3-4), tabbed at A26. |
| 2012 | Mother discovers she is pregnant. She informs the midwife at the hospital that she has “abusive husband/partner” and she provides them with her GP referral letter which informs the antenatal clinic as follows “Ms Stanton came to me...she is in a very abusive relationship...I referred her to a clinical psychologist. She assured me that her partner had not been physically abusive but very verbally so...he has thrown objects around her”. | SS 28.08.2017 p 3 Subpoena Local Health District tab A4 & A5 |
| 2012 | Father becomes more aggressive regularly telling the Mother, “Get the fuck out of my house.” | SS 28.08.2017 p4 |
| 24.07.2012 | Mother discloses to her treating psychologist, Dr J, that she is verbally abused by Father, disclosing that she has no other support in the area. She continues attending upon Dr J following the birth of the child. | Subpoena Ms J |
| 2012 | [X] (‘the child’) is born | SS 07.05.2018 p 1 |
| 2012 | Mother discloses to hospital social worker after birth of child that she is in a domestic violence relationship and the notes recorded on the file are as follows; “Ms Stanton states that the verbal abuse began approximately 6 months into their relationship. Ms Stanton states that after one episode of continued DV Ms Stanton attempted to commit suicide and slit her wrists. Ms Stanton states that Mr Crawford threatened to kill Ms Stanton and her unborn child if Ms Stanton betrayed him...Ms Stanton states she has packed a bag but was unaware of where to go...Mr Crawford came into the room and therefore social worker unable to provide information...Social worker completed...immediate report to FACS...contacted helpline. | Subpoena Local Health District, tabbed at A7. |
| July 2012 to November 2012 | Mother continues to attend upon Dr J and updates her on progress regarding DV. Notes indicate “post natal depression present”. Obtains mental health plan and referral for Ms E. | Subpoena Ms J |
| February 2013 | Mother makes contact with Ms E, appointment is made but Mother does not attend appointment Ms E until 17 April 2014. Seeks help from counsellor as to how to leave relationship. | Ms E, tabbed at A23-24 |
| 04.04.2013 | Mother and Father have an argument. Father states, “you are a wog lover” Mother advises Father that she has (nationality) heritage, stating “well [X] must be a ‘wog’ then, she has (nationality) heritage, my Mum is (nationality).” Father then spits on the child and says, “If I ever see that little Wog cunt ([A]), if he ever comes to my front door I will hit him over the head with a 4x2.” Mother begins to record conversation out of fear of Father. The Police records regarding the remainder of this incident are as follows; “The defendant sees the phone and a struggle ensued between the Defendant and PINOP but she scrambled for the phone. PINOP states she grabbed at the Defendant and his clothing in desperate attempts to retrieve her phone. The struggle came to a point where the Defendant grabbed the PINOP around the throat with his left hand pushing her back against a door jam. The PINOP states the Defendant said “I never hit a woman but I just want to kill you right now”. The defendant pinned the PINOP against the door jam causing her to gasp for air. The Defendant released the PINOP and walked towards the floor...threw the mobile phone against the floor. The PINOP attempts to pick it up however the defendant snatched it and charger her into a wall damaging the wall. Eventually the PINOP met outside the front of the premises. The defendant was holding the child at the time. The defendant offered the PINOP an option of the child or the phone. PINOP took the child and called for help...defendant took the child and placed her into his vehicle and locked the door. PINOP ran inside and called 000...the defendant attempt to enter the vehicle but PINOP stood in the way hindering his...a scuffle ensued the defendant carrying the PINOP up into the front yard. He removed her belt as she struggled he attempted to tie her legs together with the belt. The PINOP got free and ran back to the car. Again the Defendant lifted her up and placed her on the grass and attempted to tie her up. the defendant eventually made it into his vehicle and began reversing out of his premises. ...PINOP attempted to enter the vehicle through the rear...defendant drove off, she fell of the rear of the vehicle onto the road surface suffering grazes, bruising and lacerations. Defendant apprehended a short time later at (location omitted)”. A provisional ADVO is made for the Mother’s protection and Police encourage Mother to leave Father. Mother gives evidence that the Father pressured her into dropping the AVO. The Mother does not attend Court. Mother moves into a refuge and thereafter rental accommodation until late 2013. Father was participating in a “Good to great fathering” course with Centre at the time of the above incident. | SS 28.08.2017 p 5, SS 07.05.2018 p 40-42, 45, 48. Provisional ADVO dated 5 April 2013. “NSW Police S3-4), tabbed at A27. |
| April 2013 | Mother attends upon GP and reports “low mood and anxiety due to difficult relationship with partner, he is verbally abusive post natal depression....depressive anxiety disorder” | Dr J tab A19 |
| April 2013 | Mother and child leave family home for approximately four (4) months. Mother obtained private rental accommodation. Recommenced relationship with Father. | SS 28.08.2017 p26 |
| Mid 2014 | Child begins to involve herself in arguments between parents. On one occasion grabbing a family photograph saying “look Mummy and Daddy are happy.” | SS 28.08.2017 p27 |
| 25.08.2016 | Mother comes home from work and Father asks her words to the effect of, “how much did you earn today.” Mother informs Father who then becomes aggressive making angry remarks to her. Mother walks away and Father begins to push Mother around the living room. Mother falls onto the lounge and asks Father to leave her alone. Mother tries to walk outside back of house and Father approaches her and pushes her off of the back deck, 1.5metres above the ground height. Mother is injured feeling as though her arm is dislocated and begins to cry. Father says, “shut up” and drags the Mother up the deck and inside. Father says, “I am going to sleep in the front room, you are not to come to the front of the house. You are going to stay back there.” Mother tries to get Panadol for her arm and Father tells her to move back to the back of the house. | SS 28.02.2017 p28 |
| 26.08.2016 | Mother attends upon doctor who refers her to hospital. Hospital confirms that Mother’s arm is broken. Mother reports that Father was responsible for the injury, disclosing abuse sustained in relationship. Mother is assigned case worker and declines to report matter to police out of fear of the Father. Hospital staff note “Ms Stanton reports to have brought herself to hospital after a DV incident with partner of six years Mr Crawford. Ms Stanton reports this has been a verbally abusive relationship which as recently escalated to physical violence. Ms Stanton reports they were arguing about general things and Mr Crawford shoved her, she fell off the back deck and landed on her arm... Ms Stanton states that she is afraid to talk to police as Mr Crawford threatens to take her daughter.” | SS 28.02.2017 p 7 Subpoena Local Health District, tabbed at A1. |
| Early September 2016 | Mother attends Women’s Centre in Suburb A and seeks help to leave Father | SS 28.08.2017 p29 |
| May 2017 | Child breaks out in psoriasis and doctor makes link between child’s condition and stress. Child also sees specialist for intestinal issues. | SS 28.08.2017 p31 |
| June 2017 | Mother moves out of family home and into private accommodation as she commences full time university | SS 28.08.2017 p32 |
| May 2017 – 27 July 2017 | Child commences spending Tuesday to Thursday with the Father. From 27 July 2017 Father refuses to spend time with the child and refuses to respond to the Mother’s messages requesting he spend time with the child. Father does not again request time until November 2017 which the Mother facilitates. | SS 28.08.2017 p35 |
| 2017 | The child’s birthday falls on and the Mother purchases a gift for the child to give to her Father. The child says to the Mother, “No I don’t want to go, you take it Mum.” The Father is not home and the Mother drops the present at the Father’s home. Mother messages Father to advise him and queries why he had not given the child a birthday present, the Father replies, “fuck you.” | SS 15.02.2018 p 8 |
| 13.11.2017 | Matter comes before the Court for first return and the Father consents to Orders as to the payment of weekly spouse maintenance. | Order 13.11.2017 |
| Mid November 2017 | Father requests time with the child. Mother asks child if she would like her father to take her to (hobby) on Wednesday which she appears content with. Mother and Father arrange this time. | SS 15.02.2018 p 10 |
| Mid November 2017 | Parties exchange text messages and agree that Father would pick child up from Pre School on Tuesday afternoons at 5.00pm and Mother would collect her Thursday morning at 8.00am. This continues until 21 December 2017. | SS 15.02.2018 p 11 |
| November 2017 | Mother attends upon current psychologist Ms H and continues to attend upon her on a fortnightly basis throughout early 2018 for ongoing counselling. Ms H’s notes report as follows; “at first appointment Ms Stanton scores on the DAS score were in normal range and extremely severe for depression. At second appointment DAS scores were in normal range for depression, anxiety and stress...commenced Valdoxin medication for depression... | Ms H notes tab A29. |
| 08.01.2018 | Father requests that he be able to collect the child at 9.00am at McDonalds. Parties agree that Father will have child for two (2) nights to be returned to the Mother on Thursday morning at 9.00am. Mother attends changeover at McDonalds to collect child. Father tells Mother, “I’m bringing her back 9.00am Friday morning.” The Mother does not press the issue, feels intimidated. The Father leaves with the child. | SS 15.02.2018 p 14, 15. |
| 15.01.2018 | Father contacts Mother advising that he would be collecting the child at 3.00pm at their usual changeover location. The Father advises that he would be returning the child at 9.00am on Friday. The Mother tells the Father that the agreement was Thursday and that he needs to follow the agreement. Father refuses to Thursday changeover and Mother withholds child. The Father sends Mother messages advising, “I will be at pick up point at 3pm Tuesday to have my access to my daughter.” Mother does not attend changeover. Mother instructs her lawyers to write to the Father’s lawyers seeking interim Orders so as to ensure the child’s return. The Father does not agree and does not take up those opportunities that are offered by the Mother for him to spend time with the child. | SS 15.02.2018 p 16, 19. |
| 06.02.2018 | The child asks the Mother if she can speak to the Father. The Mother messages the Father advising him that the child wishes to speak to him. Mother receives no response from the Father. Child calls Father and receives no answer. | SS 15.02.2018 p 23 |
| February 2018 | Mother amends her Application seeking Orders as to no overnight time and that the Father engage in therapy. Father does not take up opportunities to spend time with the child that are proposed by the mother. | |
| 27 February 2018 | Parties attend Court, Father’s affidavit is served upon the Mother 15 minutes prior to Court appearance. Mother reads the material, becomes extremely concerned regarding the father’s mental health and instructs her lawyer to amend her application seeking Orders for supervised time. Mother thereafter offers on numerous occasions that the child spend supervised time with the Father and the Father does not take up those opportunities. | SS 07.05.2018 p 1,3 |
| February 2018 | Child commences school Father attends her first day at school | SS 15.02.2018 p 5 |
| 27.02.2018 | Matter comes before Court again and is set down for CDC. | Order 27.02.2018 |
The Mother’s case is that having regard to the violence perpetrated on her by the Father, often in the presence of [X], there would be an unacceptable risk of harm to [X] if her time with the Father were unsupervised. The Mother accepted that there were inconsistencies in her case for example in the sense that she had agreed to the Father spending unsupervised time with [X] in the past. She acknowledged that she did not appear at the final hearing of the AVO proceedings against the Father. She acknowledged that she did not always report incidents of violence to the police. She acknowledged that she had changed her position during the course of the proceedings.
Through her Counsel, and in her evidence, the Mother provided explanations for what might otherwise be regarded as inconsistent behaviour. Much of her behaviour could be characterised, submitted her Counsel, as fairly typical behaviour of a woman who had suffered sustained and serious family violence, was in fear of the Father, and continued to be in fear of him even after the proceedings had commenced.
From the Mother’s perspective, the turning point was on receiving the copy of the Father’s affidavit filed 27 February 2018 in which he, according to the Mother, blatantly lied about the family violence that he had perpetrated. The absence of any acknowledgement, insight, or remorse on his part, provided no reassurance to her about [X]’s safety in her Father’s care.
The Mother’s case emphasised that there was sufficient corroborative evidence from objective sources to suggest that her allegations of violence should receive considerable weight, even in an interim hearing. Indeed, the Mother’s chronology extracted above refers to documents produced on subpoena which do, in fact, create the impression that the Mother experienced family violence from the Father from at least 2012, when she was pregnant. Moreover, the documents referred to in the chronology suggest that the Father was, at the very least, aggressive to other persons and, indeed, continued to be aggressive, even in his workplace, as recently as March 2018.
It must be recognised, the Court notes, that the definition of family violence contained in the Act is a very broad one, taking into account not just physical violence, but verbal and emotional abuse, as well as control. Moreover, if the Mother’s account of the violence is accepted, it often took place in [X]’s presence.
Unsurprisingly, the Father’s case painted a different picture. He emphasised the nature and extent of his involvement in [X]’s life. He raised concerns about the Mother’s mental health dating back to November 2010 when, he contends, she attempted suicide. Indeed, there may well be substance to this concern. Even on the Father’s account of the relationship, however, it was a tempestuous one. There was frequent conflict. He doesn’t deny that the conflict was often played out in [X]’s presence.
In the Mother’s case, there is reference to a significant event on 13 April 2013. The Father provides a different account. He depicts the Mother as the aggressor, rather than himself. Even he agrees, however, that when the police arrived it was he who was arrested and that an interim AVO was made against him. Even he concedes that the Mother moved to a refuge for a week or so. It is common ground that when the AVO came before Wollongong Local Court, it was dismissed as the Mother did not appear. The Father raises concerns about the Mother’s heavy drinking, often followed by aggression. He alleges that the Mother seriously assaulted him with a shovel, and threatened to kill him.
The two accounts given of the relationship are very different indeed.
Discussion of the evidence
There is no shortage of inconsistency in the cases presented by both parents. The Father emphasises the inconsistency in the Mother’s present proposal of the Father only spending supervised time with [X] when the undisputed fact is that he spent unsupervised time with [X] after separation. Curiously, the Father does not address the inconsistency in his case: that he proposes that [X] continue to live with her Mother, notwithstanding the very serious allegations that he makes about her mental health, her aggression and violence. His Counsel submitted that the inconsistencies in the Mother’s case, and her dramatic change of mind in terms of the spends time with proposal, simply does not make sense. With respect, the inconsistency between the serious allegations made by the Father, and his proposals to spend time with [X], also do not make sense.
In the Father’s case, he is most critical of what his Senior Counsel described as the revisionism that permeated the Mother’s evidence. Thus, for example, he was critical of the Mother asserting that her depression was attributable to long-term family violence, when in fact her depression pre-dated the relationship with the Father. The Father’s case was critical of the Mother’s manipulation of both facts, asserted facts and events.
This Court is comfortably satisfied that the authorities mandate a conservative and protective approach to managing the risk of family violence, and its broader repercussions, to children. Thus, for example, the issue is not so much in this case as to whether the Father presents a risk of family violence to the Child, but rather the broader issues of the impact on both the Mother, and Child of spending unsupervised time with a father who manifests an inappropriate attitude and behaviour towards the Mother. The focus is always on the risk of harm. The mere fact that allegations are untested in cross-examination is no reason to ignore them. The absence of corroboration of assertions is not necessarily determinative in proceedings of this kind. The Court must be concerned about the potential consequences to both the Mother, and [X], of ignoring, or failing to place adequate weight, on the Mother’s allegations. This is especially so, in a case like this, where the Mother is the undisputed primary carer for [X], a situation that the Father does not intend to change on a final basis.
There are features of this case, however, that in fact make it less difficult compared to many others. The Mother’s allegations of family violence are supported by reference to the business records of the local area health district, the New South Wales Police, the Mother’s counsellors, and the Mother’s medical records. Indeed, as Counsel for the Mother pointed out, even the Father’s account of the violent incident on 13 April 2013, contained in his Affidavit filed 27 February 2018, contains a number of significant concessions by him. He acknowledged, for example, that he spat during the course of a clearly tumultuous event. He acknowledged that he physically picked the Mother up and put her on the grass. He acknowledged that he took a belt off the Mother, and then tied her feet up, so that he could get away in the car with [X].
There is enough material before the Court for it to be sufficiently satisfied that the risk of harm to [X] would be far greater by ignoring the Mother’s contentions, than it would be to accepting the Father’s contentions. The Mother’s case is better corroborated than the Father.
There is no doubt that this was a high conflict relationship and that [X] was exposed to this. The Child Dispute Conference Memorandum, which came into evidence, is more than adequate confirmation of this.
In the circumstances of the case, the Court accepts that for the time being, at least pending the receipt of expert evidence, the Father’s time with [X] should be supervised. Ideally, he would be spending several hours a week with [X], but on a supervised basis. Whilst the Order will provide that [X]’s time with her Father be supervised by a professional contact supervision service, or at a supervised contact centre, this should not rule out to the parties the possibility of finding an agreed supervisor of their choice.
The Orders proposed will ensure that the meaningful relationship that exists between [X] and her father continues. Risk of harm considerations prevail in this case. This is the order that effects the least amount of change in [X]’s life. There are no insurmountable issues of practical difficulty and expense. There are issues pertaining to the capacity and attitudes of both parents that are best dealt with at a final hearing, and which do not inform the present decision. Section 61DA(3) is invoked in circumstances where the Court believes there is neither benefit nor detriment to [X] in the Court dealing with the issue of parental responsibility at this stage of the proceedings.
The level of conflict in this case, and the seriousness of the allegations they each make against the other, warrants the appointment of an Independent Children’s Lawyer.
Lest there be any doubt, this Court is firmly of the view that an Expert’s Report is required, possibly even a Psychiatric Report. The Independent Children’s Lawyer may have a view about this which he or she should express at the earliest possible time.
There is every indication that the final hearing of this matter will include not just parenting, but financial issues. When I raised with Counsel the issue of whether this case could be contained to four days, there was an appropriate scepticism about this, and a general concession that, in the circumstances, the matter should be transferred to the Family Court of Australia. An order will be made to that effect.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Date: 12 July 2018
Schedule 1
Mother’s Minute of Orders Sought
That the child subject of the proceedings, namely [X] (‘the child’) born 2012 live with the mother.
That the child spend time with the Father each Wednesday for two hours as agreed with such time to be supervised by Care Centre or Catholic Care.
That the Father funds the cost, if any, of the supervision in Order 2.
That within 14 days, the Father enrol in an anger management program and provide written confirmation of enrolment and completion to the Mother’s solicitor.
That an Independent Children’s Lawyer be appointed.
That pursuant to section 68B of the Family Law Act 1975, the parents be restrained from-
(a) Consuming alcohol to excess during any time spent with the child and otherwise;
(b) Denigrating the other parent in the presence or hearing of the child or in a manner likely to come to the attention of the child;
(c) Discussing the proceedings with the child.
Father’s Minute of Orders Sought
IT IS ORDERED:
That the father and the mother are to have equal shared parental responsibility for the major long term decisions relating to the child [X] born 2012 (“The Child”).
That the parents are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:
2.1 they shall inform the other parent about the decision to be made;
2.2 they shall consult with each other on terms that they agree; and
2.3 they shall make a genuine effort to come to a joint decision.
That notwithstanding the provision of Order 3:
3.1 the mother shall be responsible for the daily care, welfare and development of the child when living with or spending time with the mother; and
3.2 the father shall be responsible for the daily care, welfare and development of the child when living with or spending time with the father.
That each parent shall:
4.1 keep the other parent informed at all times of their residential address and telephone number including mobile/landlines and of any changes within twenty four (24) hours of any change occuring;
4.2 keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the child and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the child; and
4.3 inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the child. This Order authorises any treating medical practiitoner to release the child’s medical information to the other parent.
The parents authorise by this Order, the day care centres and schools attended by the child to give each parent information about the child’s educational progress and other related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the child (at that parent’s cost).
During the time the child is with either parent, that parent shall:
6.1 respect the other parent’s privacy and not question the child about the personal life of the other parent;
6.2 speak of the other parent respectfully and refer to the other parent as “mum”, “dad”, “mummy” or “daddy” as the case may be; and
6.3 not denigrate or insult the other parent in the presence or hearing range of the child and use their best endeavours to ensure that others do not denigrate or insult the other parent to or in the presense of the child.
That the child shall live with the mother.
That the child live with, spend time with and communicate with the father:
8.1 Until the commencement of the July school holidays each Saturday from 10am to 4pm;
8.2 During the July 2018 school holidays, from 9am each Monday until 4pm Tuesday;
8.3 During the term 3 of the 2018 school year each alternate weekend from the conclusion of school Friday until the commencement of school Monday with the first such occasion to tbe the first weekend in term 3;
8.4 In the school holidays commencing at the end of term 3 2018, from 9am each Monday until 4pm Thursday.
8.5 For 2 weeks during the 2018 Christmas school holidays as agreed in writing between the parties at least 28 days prior to the commencement of those school holidays or failing agreement, 9am on the third and fifth Monday in that period to the following Monday at 9am;
8.6 From the commencement of the 2019 school year and during school terms as follows:
a. Week 1: from the conclusion of school Thursday until the commencement of school Friday.
a. Week 2: from the conclusion of school Friday until the commencement of school Monday.
8.7 From the commencement of the 2019 school year for one half of all school holiday periods as agreed in writing between the parties or failing agreement for the first half of all school holidays in years ending in an odd number and for the second half of all school holidays in years ending in an even number. The Court notes and the parties agree that school holidays commence at the conclusion of school on the last day that the child is required to attend and end at the commencement of school on the first day the child is required to attend.
That notwithstanding Orders 8 and 9, in the event that the Child are not otherwise living with that parent the Child will spend time with the mother and the father on the following special occasions as follows and to the extent of any inconsistency the following arrangements will apply:-
(a)The Child will spend time with the father on Father’s Day from 9:00am – 5:00pm;
(b)The Child will spend time with the mother on Mother’s Day from 9:00am – 5:00pm;
(c)The Child will spend time with the parents on [X]’s birthday as follows:-
(i)In the event that [X]’s birthday falls on a day that [X] is with her mother, the Child will spend time with her father from 2:00pm – 6:00pm (in the event it is a non-school day) or from the conclusion of school until 6:00pm (in the event that it is a school day); and
(ii)In the event that [X]’s birthday falls on a day that [X] is with her father, [X] will spend time with her mother from 2:00pm – 6:00pm (in the event it is a non-school day) or from the conclusion of school until 6:00pm (in the event that it is a school day).
(iii)That [X] will spend time with the mother on the mother’s birthday from 2:00pm – 6:00pm (in the event it is a non-school day) or from the conclusion of school until 6:00pm (in the event that it is a school day); and
(iv)That [X] will spend time with the father on the father’s birthday from 2:00pm – 6:00pm (in the event it is a non-school day) or from the conclusion of school until 6:00pm (in the event that it is a school day).
(d)The Child will spend time with the parents over the Christmas period as follows:
(i)In odd numbered years the Child will spend time with the mother from 2:00pm on 24 December until 2:00pm on 25 December and with the father from 2:00pm on 25 December until 2:00pm on 26 December;
(ii)In even numbered years the Child will spend time with the father from 2:00pm on 24 December until 2:00pm on 25 December and with the mother from 2:00pm on 25 December until 2:00pm on 26 December; and
(e)On the Easter long weekend as follows:-
(i)With the mother from the conclusion of school (or 3:00pm on a non-school day) on the Thursday immediately prior to Good Friday until 6:00pm on Easter Saturday and with the father from 6:00pm on Easter Saturday until 6:00pm on Easter Monday in odd-numbered years;
(ii)With the father from the conclusion of school (or 3:00pm on a non-school day) on the Thursday immediately prior to Good Friday until 6:00pm on Easter Saturday and with the mother from 6:00pm on Easter Saturday until 6:00pm on Easter Monday in odd-numbered years; and
(f)Such other times as may be agreed to by the parents in writing (including via SMS).
That for the purpose of these Orders and unless otherwise agreed between the parents in writing (including via SMS), on school days changeover will occur at the Child’s school and on non-school days or outside of school hours, changeover will occur by the mother picking up [X] from the father’s house at the commencement of her time with [X] and the father picking up [X] on the commencement of his time with [X] from the Mother’s house.
At times when the Child is living with the Mother and not spending time with the Father, the Father will communicate with the child on the child’s iPad, or if the child’s iPad is not available on the child’s mobile telephone (either by FaceTime, Whatsapp or telephone call) between the hours of 5.30pm to 6.30pm each day..
At times when the Child is spending time with the Father, the Mother will communicate with the child on the child’s iPad, or if the child’s iPad is not available on the child’s mobile telephone (either by FaceTime, Whatsapp or telephone call) between the hours of 5.30pm to 6.30pm (Central Standard Time) each day..
To give effect to Orders 11 and 12:
(a) The Father will:
(i) Provide the Child with an iPad and data communications chip for the iPad;
(ii) Ensure that the iPad is kept in a working condition;
(iii) Keep the iPad in credit.
(iv) Ensure that the iPad is on and charged and available to accept the Mother’s call when the Mother is due to call;
(b) The Mother will:
(i) Provide the child with a mobile telephone and telecommunications communications chip for the mobile telephone;
(ii) Ensure that the mobile telephone is kept in working condition, is on and charged at all times when the Father is due to call;
(iii) Ensure that the iPad is on and charged and available to accept the Father’s call when the Father is due to call;
(iv) Pack the child’s iPad, so that the Father can update the software and add photographs when the child is spending time with the Father.
In accordance with the above paragraphs, the parties agree to utilise a ‘communication book’ which will travel with the child between households. The book shall be placed inside a sealed envelope and either placed inside one of the child’s bags for collection by the other parent or their nominee at changeover. The book shall include:
15.1 start and finishing time and locations of any special requirements of any extra-curricular activity that the child is scheduled to attend during a relevant period;
15.2 any special medication the child requires;
15.3 any special homework, assignment or school work the child is required to carry out; and
15.4 any other unscheduled or periodic activities or events of which the other parent should be aware.
That both parents shall ensure that the Child attend any school, sporting or other extra-curricular activities or events requiring their attendance that fall during those periods when the Child are in their respective care and the parent who has care of the Child on the day that any such activity or events falls shall be responsible for the day to day care of the Child at any such activity or event including arranging for the Child to be transported to and from the activity or event.
That each parent is at liberty to attend all events involving the Child including but not limited to:
(a)Sporting fixtures;
(b)Extra-curricular activities that allow for parental attendance or participation; and
(c)School functions and events that allow for parental attendance or participation;
All communication between the mother and the father be by way of email and an appropriate respose be provided within 24 hours If communication is on an urgent matter, then communication is to be by text.
0
10
2