Stone and Stone

[2013] FamCA 357

FAMILY COURT OF AUSTRALIA

STONE & STONE [2013] FamCA 357

FAMILY LAW – CHILDREN – Where the parents of the children aged 8 and 5 have been litigating for a long time – where there were allegations of child sexual abuse – where the mother was fearful of the father – criteria for evaluation of evidence of sexual abuse – Briginshaw – where no positive finding or negative finding can be made – unacceptable risk – consideration thereof - children to live with mother – consequences of her failure to support relationship with the father

Family Law Act 1975 (Cth) ss 60CA, 60CC, 61B, 61C, 61DA(1), 61DA(4), 61DA(2)
Evidence Act 1995 (Cth) s 140

B & B (1988) FLC 91-978
Briginshaw v Briginshaw (1938) 60 CLR 336
M & M (1988) 166 CLR 69

APPLICANT: Mr Stone

RESPONDENT: Ms Stone

FILE NUMBER: CAC 497 of 2010

DATE DELIVERED: 19 April 2013

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 2-4 October 2012
7-9 November 2012
18 and 19 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr N McPherson

SOLICITOR FOR THE APPLICANT: Evans Family Law

COUNSEL FOR THE RESPONDENT: Ms L Goodchild

SOLICITOR FOR THE RESPONDENT: Elizabeth Fleming

SOLICITOR FOR THE INDEPENDENT CHILDREN'S LAWYER: Legal Aid Commission (ACT)

Orders

IT IS ORDERED THAT:

1. Ms Stone, (“the mother”), have sole parental responsibility for O, born … February 2005, and P, born … May 2007 subject to the orders set out hereafter. 

2. The mother will authorise and direct that any school the children attend provide to the children’s father, Mr Stone, (“the father”) all reports, notices and school photo order forms about the children and will authorise and keep authorised all medical, counselling and educational professionals involved with the children to communicate with the father about the children. 

3. a.     The mother will inform the father by e-mail or by telephone or by ordinary mail as soon as is practicable after any event involving the children’s health, about the incident and provide information to the father about any medicine the children might be taking or treatment that they are undertaking. 

b.The mother will listen to any advice that the father may wish to provide about matters relating to the children’s health but in the event of there being any difference of opinion between the professionals the mother has consulted and the father’s view, the mother will have final determination as to the treatment or medicine to be undertaken or taken. 

1. a.     The parents will communicate with each other by e-mail between the father and the mother’s husband, or as they may otherwise agree, about events involving the children which the father may attend if he is able to do so.  This includes sporting events and concerts. 

   b.If the father attends any such event he be and is hereby restrained from saying unkind or unpleasant things about the mother to any of the other parents or other people attending such functions. 

   c.   In addition, unless the mother should initiate such action, at any such function, the father will not approach the mother and will not undertake any conduct which may embarrass the mother or her husband. 

   d.   Each of the parents will at any such function do all within his or her power to ensure that the children appreciate the fact that both their parents are at the function and provide opportunities for the children to spend time with each of the parents.  

2. a.   The children may communicate with their father when they are with their mother by telephone or Skype on any day. 

   b.   When the children are with their father they may communicate with their mother by telephone or Skype on any day. 

   c.   While no specific times are nominated for the children to communicate with the other parent ordinarily the communication would occur once per day.  But this is a matter for agreement not prescription for the parents. 

   d.   During the course of any communication by telephone or by Skype between either or both of the children and the other parent the parent from whose house the communication is made will absent him or herself and cause his or her wife or husband to be absent from the room in which the children are conducting their conversation. 

   e.   Each parent is restrained from using the children as a means of communication to the other parent but each of the parents will encourage the children to discuss with the other parent any activities they have undertaken or other events which they enjoy. 

   f.   Each of the parents acknowledges that it may not be physically possible for any number of reasons for the children to communicate with the other parent on each day and each will accept that it may take in some cases several attempts to communicate with the other parent. 

   g.   Except by agreement, neither parent will ring the children except on each of their birthdays, the parents’ birthdays, Christmas Day, Easter Sunday and other siblings’ birthdays.  If such a telephone call is made to the children the parent in whose care the children are at that time will facilitate the children talking to the other parent.

3. The children will spend time with their father as maybe agreed between their parents, but in default of there being any such agreement:

a.For the whole of the New South Wales school holidays at the end of the first and second terms in each year; and

b.For the first half of the holidays at the end of the third term of school in New South Wales. 

c.It is noted in this regard that the parents will so far as they are able to do so, try to arrange times or to vary the times that are stipulated above to allow some overlap between the school holidays in New South Wales and Queensland if that is possible.  This will not require the mother to remove the children from school but would not prevent her from doing so. 

d.In addition to the time the children spend during the shorter school holidays the children will spend one half of the longer school holidays in each year with their father.  This will be the first half of such holidays in years ending in an odd number and the second half in years ending in an even number or zero. 

e.In each case school holidays will be deemed (subject to any other agreement between the parents) to commence on the first Saturday after the last day on which either of the children is obliged to attend school and will terminate on the Sunday evening before the first day on which the children are obliged to attend school.  To the extent that it is relevant, the midpoint of school holidays will be determined as being on the Saturday at the end of the first half of the school holidays (unless the parents otherwise agree).

1. The father is to ensure that all items brought with the children should return with the children at the conclusion of his time with them.

2. During any time that the children spend with their father the children will not sleep in the same bedroom as the father and the father be and is hereby restrained from allowing or permitting this to occur.

3. a.     In relation to each period in which the children spend time with their father, the mother will be responsible for and will deliver the children to the airport in Canberra on the basis that they will fly as unaccompanied minors to the Brisbane airport.  The mother will book the fares for such travel and pay for them. 

b.The father will collect the children from the Brisbane airport and be responsible for returning them to Brisbane airport for return to the Canberra airport at the end of the time that they spend with him.  The father will pay for the Brisbane to Canberra flight. 

10.a.     Each parent will advise the other parent of the details of the flights for the children in sufficient time to enable the children’s collection from the respective airports and unless there is good reason to the contrary will do so not less than seven days before such flight is to take place. 

b.Details may be communicated by telephone between the father and Mr B or by e-mail or as the parents may otherwise determine. 

11. Either parent is at liberty to travel overseas with the children during the time the children are in his or her care and each of the parents will facilitate the provisions of the children’s passports to enable such travel to occur.  Any parent proposing to travel overseas with the children will provide details to the other parent at the earliest possible opportunity together with copies of the return tickets for the children and a copy of the itinerary. 

12. The provisions set out herein before about communication between the children and the parent with whom they are not then travelling will be suspended for the period of the overseas travel subject to any other agreement between the parents. 

13. Neither parent will inform the children of the recording of 8 July 2012 which was O’s conversation with C nor will they permit any other person to do so. The father will use his best endeavours to ensure that Mr D does not inform his daughter C about the recording.

14. That each of the parents, Ms E and Mr B are hereby restrained from administering any physical punishment to the children. This includes but is not limited to, pinching, kicking, or hitting.

15. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

16. That each party advise the other party and keep the other party advised of their current address and the children’s current mobile contact number and advised the other party of any changes to these details within seven days of such change occurring.

17. The above mentioned parties are the parties to a final ADVO made by … Local Court on … August 2012.  Order 5 contained in that order restricts the communication that can be made by the father to the mother. Despite the terms and effect of that order, the parties agree as follows:

a.That the father will only communicate by email to the email address of Mr B at email address … or any other email address as notified in writing from time to time.

b.The email correspondence from the father to the mother (Mr B) is to be solely used for notification and advice of the travel arrangements for the children and specific and necessary matters concerning the care of the children.

c.That the father is at liberty to text to the mother’s mobile ph … only for the purposes of emergency or immediate and necessary matters arising with respect to the travel arrangements for the children.

d.That the mother (or Mr B) will only communicate by email to the email address of the father at email address … or any other email address as notified in writing from time to time.

e.The email correspondence from the mother (Mr B) is to be solely used for notification and advice of the travel arrangements for the children and specific and necessary matters concerning the care of the children.

f.That the mother (or Mr B) is at liberty to text to the father’s mobile ph … only for the purposes of emergency or immediate and necessary matters arising with respect to the travel arrangements for the children.

For the avoidance of doubt, it is the intention of the parties that the terms of this order or the ADVO are not impacted on or effected in any other manner than those identified in this agreement.

18. Pursuant to s 62B and s 65DA(2), 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 to adjust to and comply with an order, are set out in the document entitled Parenting orders - obligations, consequences and who can help, a copy of which is annexed to these orders.

19. All material produced by subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.

20. Any material produced by subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.  Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period.

21. The matter be removed from the Pending Cases Inventory.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Stone & Stone 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 CANBERRA

FILE NUMBER: CAC 497 of 2010

Mr Stone

Applicant

And

Ms Stone

Respondent

REASONS FOR JUDGMENT

1. This was a matter about the living arrangements for two young children, O who was born in February 2005, and P who was born in May 2007.  Each of the parents was substantially agreed about the time that the children should spend with the other parent if they were primarily living with him or her.  Although the mother visibly agonised with her position, her counsel in submissions confirmed her client no longer sought supervision of the children during the time they were with their father.

2. The father lives near Town G on the Sunshine Coast in Queensland and the mother at Town F on the South Coast of New South Wales.  Although there were differences in detail each of the parents sought in effect that the children would live in the mother’s place with her in Town F or in the father’s case with him in Town G and that the children would spend substantial periods during their school holidays with the other parent. 

3. They were also agreed that there should be communication by telephone, Skype or webcam but there were differences of opinion about who would pay for the airfares but broad agreement about the fact that the children would travel as unaccompanied minors between Canberra airport and Brisbane airport. 

4. Each of them was in agreement that the children should be at liberty to travel overseas with either parent on appropriate notice. 

5. The minutes sought by each of the parties constitute Endnotes 1 and 2 to this judgment and those sought by the Independent Children’s Lawyer (ICL) (which are couched in the alternative) are Endnote 3. 

6. The ICL proposed two sets of orders. The first were interim orders which meant the children would live with their mother and spend time with their father but if the mother fails to facilitate the time the children spend with their father that the matter would be re-listed and the father would in the terms of the minutes “press his application for change of residence”.  If the orders persisted successfully for eighteen months then they would become under this arrangement, final orders. 

7. In the end however, the ICL opted for the proposition that if final orders were to be made (and I had indicated my preference for making final orders) the children should live with their father and spend time with their mother. 

8. This unusual recommendation arose primarily out of the mother’s statement in cross-examination that

   Do I take it by that, that you’re saying you’re not confident that you can ---?--- That’s correct.

   So you’re not confident that the orders that you seek are ones that you can be confident will be implemented? --- You could say that.[1]

   [1] T 7 November 2012 p 14

Other orders sought

1. In addition the father sought orders initially in relation to child support (see Orders 12 and 13 in Endnote 1).  This was abandoned during the course of the proceedings when it became apparent that there was no jurisdiction to make the orders sought. 

2. In addition, the father sought enforcement orders (see Orders 14, 15, 16 in Endnote 1). 

Background

1. In the case outline document filed on behalf of the father, counsel referred to the fact

   … the Father and  Mother have been involved in complex parenting and property matters before the Federal Magistrates Court and now the Family Court of Australia for more than three years.

2. This seemingly bland phrase refers to the fact that the parties have been in protracted and on occasions, difficult litigation over quite a long period.

3. The mother has an older child from a previous relationship – C born in April 2000.  C lives with her father in Canberra.  Although Mr D brought Family Law proceedings in relation to C at the time when Mr and Ms Stone were living together, he was, in this matter, a witness for the father.[2]

   [2] His involvement in the Skype incident (referred to later) does him no credit and his evidence demonstrated an insensitivity which diminished the value of his observations and comments.

4. Since separation the mother has married Mr B.  The father also re-partnered marrying Ms E who has two children from her previous relationship and the father and Ms E now have a child of their own, H who was born in January 2011. 

5. The parents began their relationship in about January 2003 and married in December of that year.  Their relationship was somewhat tempestuous and there were elements of domestic violence.  I accept that the evidence supports that the father breached the AVOs in place on more than one occasion.

6. In relation to this aspect of the proceedings I prefer the evidence of the mother for the reasons which I will outline in due course. 

7. That relationship came to an end in July 2008 where they separated under the one roof and the mother finally vacated the premises in December 2009.  The parties were divorced in January 2011. 

8. In the difficult period before the mother finally moved out of the former matrimonial home C went to live with her father in Canberra.  This has meant that C has lived primarily with her father since.  There is ambivalence about her relationship with her mother. 

9. In February 2010 the mother moved with the children to Queensland without any notice to the father and he took proceedings in May 2010 to require the mother to return from Queensland with the children. 

10. She complied with those orders but there was a period between February and June 2010 where the children did not spend any time with the father. 

11. The mother began her relationship with Mr B in November 2010 and property matters between the parties were resolved by final orders by consent on 22 February 2011.  Those orders also dealt with the children. 

12. However, in February 2011 the father moved to Queensland.  The children began spending time with their father during holidays.  In May 2011 there was an incident at a soccer game which does not show any credit to either parent in the end and demonstrates their general lack of ability to communicate effectively one with the other. 

13. It was in June 2011 that P alleged his father had been touching him inappropriately.  There was a further report by O that she saw her father touching P again in July 2011 and a further report from P to his mother about his father putting his fingers in P’s “bum”. 

14. The following day P said to his mother that his father “plays with my nuts”.  Later that month there was a JIRT investigation. 

15. It seems fairly clear from the evidence that prior to his being interviewed by the Police P was told by his mother, and possibly his grandmother, that he should tell the Police that his father had touched him as he had previously indicated.  He did, but the investigators nevertheless declined to prosecute.[3]

    [3] The mother’s intervention in this way may be explicable but was unfortunate.

16. The Family Law proceedings were transferred from the FMC to the Family Court of Australia on 24 November 2011 and interim orders were made on 12 December 2011. 

17. The children continued to spend time with their father during school holidays periods but during March 2012 while the father and Ms E were on the South Coast to see the children, the mother notified the Care Authority in Queensland that Ms E’s children were being neglected or at least not adequately supervised.  This prompted a visit from the Police and some embarrassment.  The children had in fact been left in the care of their father.  It is hard to find an altruistic motive for the notification.

1. In July 2012 there was a conversation between C and O on Skype which was recorded by the father and Ms E.  Notwithstanding its provenance the tape recording of this conversation was admitted into evidence and became Exhibit F1.  The recording of the conversation brings no credit to the father or Ms E.  Their justifications rang hollow and I believe on balance that the motivation was forensic.  The father conceded that they had recorded a substantial number of other conversations but had erased them pre-trial.  The mother and Mr B however subsequently conceded in cross-examination that they had also followed a practice of recording change-overs.  Both sets of conduct are to be deplored.  I had considered referring the father’s recording to the Attorney General to investigate whether or not he should be prosecuted.  I have not done so.

2. The hearing of the matter took place on 2-4 October 2012, 7-9 November 2012, 18 and 19 March 2013 and the Court was assisted by reports from Dr J dated 2 August 2010, Dr K dated 16 February 2011 and Dr K dated 24 April 2013.  The parties relied upon a number of affidavits which are listed at Endnote 4 to this judgment. 

Foreword

1. In this matter the antipathy between the parents is palpable.  In fact this is illustrated by the comment from Dr K (Single Expert) in his report which became Exhibit J2.

   There has been no improvement in the parents’ relationship and indeed it may well have deteriorated if that was possible since I last saw them [emphasis added] [4]

   [4] P 22

2. For her part the mother probably remains convinced that the father has interfered with P.  The father believes that this is a construct of the mother which she has imposed on the children.  The children as is evidenced particularly by the taped conversation between O and her step-sister C, have been forced to make decisions they have not wanted to make about where they might live either through the direct or indirect influence of their parents.  The children have been forced by circumstances and by the actions of their parents to make decisions about which of their parents they might have to hurt.  In the end it seems more likely than not, (and I so find) that the children have been prepared to tell lies to both parents about the nature of their feelings towards the other parent.  I suspect in relation to the allegations of child abuse they may have been telling their mother what she did not necessarily want to hear - but maybe expected to hear.

Best Interests of the children

1. Whatever the adults want, and whatever some sense of equality maybe thought to be appropriate, my paramount consideration must be the best interests of the children.[5]

   [5] S 60CA of the Family Law Act 1975

2. Under the Family Law Act 1975 each of the parents of the child who is not 18 has parental responsibility to the child.[6]  Parental responsibility is defined as meaning

   all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[7]

   [6] S 61C

   [7] S 61B

3. 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.[8]

   [8] S 61DA(1)

4. This presumption is subject to rebuttal and

   The presumption does not apply if there are reasonable grounds to believe that a parent of the child … has engaged in:

   (a)  abuse of the child or another child … or

   (b)  family violence.[9]

   [9] S 61DA(2)

5. In addition,

   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.[10]

   [10] S 61DA(4)

6. In this matter I am satisfied that the presumption should not apply.  I have indicated previously that there was family violence between the father and the mother during the time they were together. 

7. Precisely what happened has been the subject of some serious controversy between the parties.  I will not recount all of the evidence given by each and the different versions of the events that each of them asserts.  However, while I do not make a finding generally about credibility of either parent in relation to the issues about violence, I accept the evidence of the mother as to the nature of the relationship and in particular as to the controlling attitude and at times physical violence of the father towards her. 

8. I come to this conclusion not only because of my acceptance of the mother’s evidence taking into account her demeanour generally and her manner of giving evidence, but also the conclusions reached by Dr K particularly in his first report.  I was also influenced in coming to this conclusion by the extent and frequency of the negative comments that the father made about the mother in the course of his first report with Dr K.  These continued notwithstanding that Dr K made comments to him about it during the course of his observations of the father and which Dr K recorded in his first report.  The father was “sensible” enough to adjust his conduct for the sake of the second report.  I do not interpret this as a change of heart.

9. While I have come to that conclusion which is in itself enough to cause the presumption not to apply I am also satisfied that on balance it is not in the children’s best interests that the parents should have equal shared responsibility.  The parents have demonstrated over what is now quite a lengthy period that they are unable to communicate or cooperate effectively - even on relatively mundane matters. 

10. I was informed when the trial resumed recently, that there had been an improvement in the communications between the parents.  I applaud the fact that has occurred but it does not give me much comfort that with the removal of the “shadow of the law” and the “penumbra” of pending proceedings, communications will continue or be effective.  Without communication the sharing of parental responsibility will be ineffective, if not impossible. 

11. That does not mean that the parents should not share information about the children.  It does not mean that each of the parents should not facilitate access by the other parent to information about the children from third parties such as specialists treating them.  It does not mean that when the children are living with one parent, that the other must be excluded from events in the children’s lives.

12. An example of what not to do was the soccer incident referred to in the background above.  Putting it at its kindest the mother and her now husband may have felt that to allow O to continue to be involved with her soccer on a weekend when she was going to be with her father may have unreasonably restricted her time with her father.  However, this was not really their decision to make and the father not unnaturally wanted to have an opportunity of seeing his child play football.  His subsequent attendance at the football and conduct there were insensitive acts on his part in the circumstances. 

13. The resulting events were certainly not in the best interests of the children and demonstrated a desire on both parents’ parts to persist with their particular view of what might be best for the children irrespective of what the other parent may think or want. 

14. I remarked to the parties during the course of the hearing that it would have been relatively easy for communication about each of the events involved to have taken place and sensible people would have found an opportunity for cooperation rather than accusation. 

15. The presumption should not apply. 

16. Because the presumption does not apply (and otherwise no order about equal shared parental responsibility will be made) it is unnecessary for me to consider the matters set out in s 65DAA about whether the children should spend equal time with each of the parents or substantial and significant time with each of the parents. 

17. To their respective credit each of the parents believes that it is important to the children to have a proper relationship with the other parent.  This at least is their stated position.  There was a curious comment made by the mother in the course of cross-examination which I referred to above and there is also the change of attitude exhibited by the father between the two reports of Dr K.  However, it is perhaps not unusual for people with a deep emotional investment in proceedings to be somewhat equivocal in their support of the children’s relationship with the other parent.  In this case I am prepared to accept as the considered position of each of the parties their statement of commitment to the children’s relationship with the other parent.

BEST INTERESTS

Physical violence

1. In determining what would be in the children’s best interests I am obliged under the Act to take account of matters set out under s 60CC.  I am obliged to give greater weight to the consideration of:

   the need to protect the child[ren] from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. I should perhaps deal with the question of physical violence first.  The mother asserts that the father has exerted unreasonable physical punishment on the children including pinching them. 

3. It is difficult in the context of the proceedings in this matter to determine how much of any such report from the children might have been based on a desire to appease the parent to whom they were returned (in this case the mother). 

4. Each of the parents asserts that he or she no longer (if they did in the past) use physical punishment for the children.  The father had explanations for his pinching the children. 

5. It suffices to say that I am satisfied that if I impose an order restraining either of the parents from engaging in any form of physical punishment of the children, that would remove in my opinion any unacceptable risk that the children would be exposed to any physical harm. 

6. I accept that this reposes confidence and trust in the parents’ obeying my order, but I am satisfied that without the conflict between the parents continuing in court proceedings, it is improbable that there will be a repetition of any inappropriate corporal punishment - if in fact any had previously occurred. 

Sexual Abuse

1. In this matter the allegations of sexual abuse in relation to P were investigated by the Police and by the Department.  In the end neither took any action.  However, the Department would not have taken action while the mother acted protectively to the children, and the Police were unable as a result of their considerations and interviewing of the child to conclude that there would be enough evidence to secure a conviction. 

2. The allegations/disclosures made by the children are about alleged actions which do not apparently fit comfortably within the children’s normal age experiences and that in itself may lend some plausibility to the accusations or reports. 

3. However this must be offset against the father’s sworn denial that anything of the sort occurred and the considered conclusions of both the Police and the Department not to take any proceedings. 

4. I am obliged to consider allegations of child sexual abuse on the basis of whether on the balance of probabilities they are more likely to have occurred than not, and in doing so to apply the principles set out in s 140 of the Evidence Act 1995 (Cth) which in part codified the decision in Briginshaw v Briginshaw.[11]

   [11] (1938) 60 CLR 336

5. In the confused environment (reported upon so cogently by Dr K) I could not be convinced that the events alleged took place.  I cannot be satisfied that the events occurred even though a mere mechanical “balancing of probabilities” might lead to the conclusion that something happened. 

6. The need for the children to please both parents affects my ability to have the satisfaction that would be necessary for me to make a positive finding that something had occurred. 

7. There is something undeniably poignant about the much repeated comments by O in her Skype communication with her step-sister C “It’s too hard [C]”.  This was a little girl crying out for help in circumstances where she felt as she expressed to her step-sister that she had to lie to each of her parents to survive emotionally.  I accept that P was not party to that conversation and the effect on him of the conflict between his parents is not so readily apparent from the reports. 

8. On the other hand corroborative of the father’s position that nothing untoward had occurred is the fact that the children, as reported by Dr K and to some extent even by the mother and her husband, appear to have had a good time with their father as Dr K remarked[12] “…the materials I have seen as well as the JIRT materials and my interviews with the parties and the children suggested to me that the conclusions of the JIRT team are more likely to be correct than not”.  This is not consistent with the abuse referred to. 

   [12]  on page 23 of his second report (Exhibit J2)

9. However, my inability to be able to make a positive finding (or for that matter a negative finding – that nothing happened) does not bring an end to the matter.  (I should indicate that while I cannot find that what was reported took place I cannot be satisfied either that nothing took place.)  As the High Court pointed out in M & M[13] and B & B[14] the obligation for the Court is not to make orders which would impose an unacceptable risk of abuse on the child(ren).

   [13] (1988) 166 CLR 69

   [14] (1988) FLC 91-978

10. In this matter I am satisfied that there is no unacceptable risk in the children’s spending time with their father without any professional supervision for the reasons set out below.  I note that the mother abandoned her application for supervised time for the children with the father.

11. If I make orders that mean that the opportunities for any abuse to occur are minimised, then in my opinion there would not be such a risk in the children spending time with their father as would unreasonably expose either of them to abuse.  There would be potentially more risk if the children were living with their father as there would potentially be more opportunities for the children to be alone with their father.  Holiday time would be likely to see Ms E present when the father was present.  This is not to find that the alleged abuse occurred but only to comment that orders providing for the children to live primarily with the mother would, as a matter of logistics, reduce risk.  The concept of unacceptable risk is fraught with logical difficulties.  If a judge cannot make either a positive or a negative finding, it is hard to make a determination about risk.  If the events did not happen, supervision or its equivalent cannot be justified except to eliminate all possibilities of something happening in the future.  But can this be said to be acceptable when there is no obvious way of measuring the likelihood of the event occurring?

12. In support of this conclusion I indicate first the uncertainty that anything did happen; second the father’s new relationship with Ms E and the unlikelihood in my opinion that she would consciously permit anything untoward to occur (and she is likely to be present with the children); and three, the fact that the children are now older and less likely to be able to be persuaded to silence - or otherwise groomed if in fact the husband were setting out to abuse them.

13. Unfortunately this situation is somewhat complicated because of the mother’s stated potential inability to require the children to do what any orders of the Court require.  It seems improbable that the mother who has (commendable in some respects) maternal protective instincts will accept in her heart of hearts my analysis about whether or not sexual abuse has occurred.

14. That raises the very real risk that if I were to make orders that the children live primarily with their mother she may not be able to facilitate the time that they would spend with their father.  I shall examine this consequence in more detail a little later on.

15. However, it sufficies to say that subject to any appeal which may come to a different conclusion from me, if the children are living with her and if she fails to facilitate the orders about the time they spend with their father and if the matter is returned to this Court, it is more likely than not that whoever hears the matter again would conclude that the only way in which the children’s relationship with each of the parents might be fostered would be for them to live with their father.  As this would appear to represent the worse possible outcome for the mother, for the children, this should affect and influence her ability to participate and facilitate the orders relating to the children spending time with their father. 

Meaningful relationship

1. The second primary consideration is “the benefit to the child[ren] having a meaningful relationship with both of the child[ren]’s parents”.    I reiterate that both parents have indicated a formal commitment at least to the proposition that it is important for the children to have a relationship with the other parent.  The opinion of Dr K[15] supports the proposition that the children will benefit from a relationship with both of their parents. 

   [15] (see page 23 F2)

2. The children’s time with their (non-resident) parent must be restricted in this matter by the parties’ circumstances.  Either the children will live primarily with their mother and spend holiday time (in essence) with their father or vice versa.  The fundamental question remains whether the children should live primarily with their mother or primarily with their father. 

3. The fundamental impediment to the children’s having a relationship with their father if they were living primarily with their mother is the mother’s self declared potential inability to comply with Court orders about the time the children would be with their father.  For the reasons indicated above it seems to me that this is a matter which can be dealt with in two ways, one by order and second by the impending threat of a change in the arrangement if the mother should find herself unable to comply with the orders.

Additional Considerations

1. I am obliged to take into account the views of the children and indeed these views have encouraged each of the parents to pursue a policy of having the children live primarily with him or her.  The recording of the Skype conversation between O and C and the reported comments and actions of the children in their interviews with Dr K reveal a complex situation in which the views of the children are not easy to ascertain. 

2. This complexity also reveals the problems the children have suffered from the conflict between their parents and the obligation they feel either to be fair to both parents or to choose between them. 

3. On balance, I do not accept that the children have expressed unequivocal opinions about where they want to live.  The observations of Dr K[16]  about the relationship with each of the parents would suggest that they may have a closer relationship with their mother and to the extent that that then is an expression of views it is a matter I take into account.  Nevertheless little weight might be attributed to the views expressed orally by the children to either parent.  The most eloquent testimony to this is the comment by O in her conversation with C “It’s too hard [C]”. 

   [16] J2  page 23

4. The children have a complicated relationship with each of their parents as has been set out above.  I do not propose to add anything further to the comments that I have already made.  They appear to have reasonable relationships with each of their parent’s new partners and broadly have a supportive relationship with their wider family.  There are no aspects of these relationships which would bear strongly upon any determination I should make about where the children should primarily live. 

5. Each of the parents has pursued this litigation single-mindedly over a long period.  The papers associated with this matter represent a pile some 40cms high on my desk.  This in sheer volume is tribute to the fact that the parents have each tried to do what each thinks is best for the children even though this has given rise to bitter litigation. 

1. The incident at the soccer (about which I have commented above) indicates that to date the parents have been unable to cooperate in allowing each other to participate in matters related to the children.  I am not prepared to attribute blame for these matters.  That does not however, exonerate either parent from in the future attempting to make a far better fist of involving the other parent in the children’s lives. 

2. There have been disputes about the level of child support paid.  This has also involved an assertion of the mother that the father has effectively arranged his affairs as to minimise the amount of financial contribution he can make.  There appears to be some force to this assertion, based on the fact that the father gave up what appears to have been a lucrative income in the business in Town F to pursue either reduced or little remuneration from his own efforts in Queensland.  I was not satisfied with the father’s evidence about his attempts to find more appropriate employment but (save only for my dismissal of his application relating to child support) I leave this as a matter to be determined under the Child Support Assessment Act.  It might be said nevertheless that the father has failed to demonstrate a positive commitment doing more than the minimum required by law.

3. If the children were to live with their father this would represent a large change from the environment in which they have grown up.  It would mean a new school, new full-time step-brothers and most importantly a removal from the person who has been the most constant factor in their lives to this date - their mother. 

4. The father would urge on me that removing the children from their mother would be a positive for the children in that it would reduce what he believes is the malign influence their mother has upon their lives.  I do not accept this attribution of bad intent to the mother.  I accept particularly but not exclusively from the evidence of Dr K that the mother has been, and probably continues to be, significantly fearful of the father.  I accept also that this has produced a state of mind in the mother in which she is more likely to believe the worst of the father.  This behaviour on the part of the mother is unhelpful to the children, probably unhelpful to her own peace of mind and likely to provoke negative responses from the father.  It is nevertheless in my opinion, more likely than not to be a sincere expression of the concern that the mother feels for the protection of her children. 

5. The practical difficulties and expense of the children spending time with both parents is likely to remain an impediment to the children’s being able to maintain a proper relationship with both parents.  That is not a factor which would cause me to choose for them to live with one parent rather than the other. 

6. Parental capacity is always difficult to gauge particularly in circumstances where the children have lived for quite a long time with one parent.  In this regard the mother has demonstrated a strong ability to support the children emotionally and socially.  As I have mentioned previously this is somewhat overlayed with over-protectiveness perhaps.

7. The father’s ability to provide for the emotional, psychological and physical support of the children is less clear.  There is no reason to suppose that he would not apply himself in this regard.  And while I find that he had generally exaggerated his involvement with the children during the time the parents were together, I accept that he did fulfil significant roles for the children and for the household.  It is difficult to find a dividing line between the husband’s exaggeration of his involvement and the mother’s minimisation of that involvement. 

8. There is little to doubt about the father’s ability to care for the children physically. 

9. His readiness to record the Skype interview and other telephone conversations between the children and their mother demonstrates an insensitivity but this is matched by the mother’s and Mr B’s admission that they too had recorded times of handover. 

10. The children’s complaints about their father’s lack of attention to them as voiced to the mother and recorded by her in her affidavits and to Dr K are also difficult to assess.  In the context of the children’s determination to please both parents it would fit that they would be “critical” of their father’s attention to them when they are with him. 

11. Overall I assess the mother’s capacity to provide for the needs of the children to be superior to that of the father’s but this is not a major distinguishing factor.  This conclusion is based on her long-standing engagement with the children and that there is no significant criticism of her care of the children except in relation to their relationship with their father.

12. I am not satisfied that there is any material difference between the sort of lifestyle that the children might enjoy with either parent.  The mother has successfully involved the children and herself and her husband in a number of activities for the children. 

13. The children may have a more relaxed lifestyle with their father although it would to some extent be a busier time given the additional children that would be in the household. 

14. Neither parent made any particular reference to the children’s New Zealand/ Maori background through the father.  This may become an important thing in the future for them.  The parents are agreed that the children should be able to visit New Zealand.

15. I have commented previously about the attitude of each of the parents to their responsibilities.  It sufficies to say at this point that no parent is ever perfect and each parent will probably always find more reasons to question the attitude of the other parent rather than engaging in any degree of self examination about any of their own deficiencies. 

16. I have made findings previously that there was family violence when the parties were together and I have found that that violence was principally directed by the father towards the mother.  Thankfully that situation will not occur because of the parent’s choices to remain geographically well removed from each other and from the apparent success given the ages of the children now in their travelling between the parents on an unaccompanied basis - thereby precluding the need for any physical meeting between the parents.  I have commented previously about aspects of the physical punishment of the children but I do not regard this as being a factor which would cause me to be concerned about what happens when the children are with one parent or the other. 

17. To the extent that there have been family violence orders it seems to me for the reasons mentioned above that these are no longer a significant factor in determining factors about the children except for the influence the father’s violence towards the mother has had on her ability to deal successfully with the father. 

18. I am directed by the Act to make orders that will be less likely to lead to the institution of further proceedings about the children.  This is a difficult matter in this case illustrated by the approach suggested by the ICL.  Ms Burgess’s suggestion that I should make, in effect, “interim orders” in favour of the children’s living with their mother but leave them open to review on the basis that if the mother failed to support and encourage and facilitate the time that the children spend with their father change should then be either considered or undertaken.  She did not go so far as to recommend a self-executing order and indeed any such order would be inimical to the children’s best interests.  Something operating automatically without reference to the circumstances applicable would rarely, in my opinion, provide a proper basis for the welfare of the children. 

19. Notwithstanding that carefully thought-through recommendation from the ICL it seems to me that final orders are a more appropriate way of proceeding.  Final orders of course do not necessarily always mean final orders.  The best interests of a child will prevail over other factors. 

20. Nevertheless these parties need some finalisation of their litigation.  The children need some finalisation of this litigation.  The children need to be removed from the possibility of considering that they are in some way responsible for the time that they had with each parent.  The children should be able to cease feeling guilty about enjoying the time they spend with either parent.  Each of the parents needs to be able to get on with his or her life without the thunder cloud of litigation hanging over his or her head. 

21. I comment generally that the children should be free to travel, particularly to New Zealand with their father.  This is not a matter of contention between the parents.

Summary

1. As will be seen from the conclusions that I have reached above this is a matter in which has been quite finely balanced but in the end it seems to me that this balance must be tipped in favour of the children remaining with their mother. 

2. The factors that have influenced me most strongly in this regard are the fact that they have spent more of their time with their mother than anyone else and stability and familiarity may well represent a good foundation for future development of an appropriate loving relationship with each of their parents. 

3. Indeed the father, during the course of his cross-examination, said that he would favour the children remaining with their mother if he could be certain that she would comply with Court orders.  By the end of proceedings that position had receded possibly in the light of the mother’s somewhat blunt revelation about her own doubts in relation to her ability to implement the orders.  However, this “concession” was made by the father after a very long period of litigation and after deeply disturbing allegations made on both sides about the conduct, mental health and capacity of each of the parents.  It is I believe a pointer to the resolution of this matter.  Such an opinion expressed (even if subsequently retracted) by a person in the position of the father ought not to be disregarded lightly. 

4. I am also partially influenced in coming to my decision by the complicated nature of the sibling arrangements that would exist in the father’s household. The children now need a period of stability and peace. 

5. I also place weight upon my finding that the husband was violent towards the mother in the past.  While this conduct may have only occurred in the context of the parties’ relationship as it then was, I can look to the future by reference to the past.

6. I also place weight on the question of unacceptable (or perhaps acceptable) risk as I have analysed that issue in my reasons above.

7. I remain concerned - as was Dr K - about the mother’s ability to overcome her fear and anxiety.

8. In the end it seems to me that the children will best be served by remaining principally with the mother if she can overcome her “visceral fear and anxiety concerning their father”[17].  I hope she accepts that there are no more choices.  If she cannot support and encourage the children’s relationship with their father there can be no other logical outcome other than their living with their father. 

   [17] J2 page 21

9. I hope that my decision will ease the burden of responsibility for the mother and the children and also for the father who has persisted against massive odds to support his relationship with the children.

Orders

1. While there is general agreement about the fact the children should spend holiday time with the parent with whom they are not living there are some differences.  The children should be able to spend some holiday time with each of the parents and they should be able to spend some time with their friends during holiday periods as well. 

2. Accordingly, if they are living with their mother they should be able to have some holiday time in Town F.  On the other hand it is important that they should be able to maximise the time that they spend with their father and should spend as much time as they can with him.  They should also have the opportunity of having something more than just a single week holiday with a parent during the year, notwithstanding that they might have the opportunity for having three weeks during the longer school holidays. 

3. Balancing all of these matters it seems to me that the appropriate order should be that the children spend the whole of the holidays in New South Wales at the end of first and second term with their father.  Hopefully such an arrangement will allow some overlap between the times between New South Wales and Queensland school holidays so that the children can have some time with their step-siblings. 

4. The children should spend the whole of the second term holidays with their father.  This would enable them to spend a winter period in Queensland which seems to be desirable to a number of people in the southern parts of Australia.

5. They should spend one half of the holidays at the end of the third term with their father.  This is the holiday period that will be closest to the longer Christmas period and therefore might be truncated to allow the mother to have a little more holiday time as well as term time.

6. Otherwise the children should spend the first half of the summer holidays with one parent and the second half with the other.  For this year, the children should spend the first half with their mother and the second half with their father and those periods should alternate thereafter. 

7. None of these arrangements should interfere with the ability of the parents, if they are able to do so, to make alternative arrangements to accommodate specific requirements of either parent or to adjust so that one parent might have a longer period with the children during one holiday period if there were some special reason for doing so.  However, I lack confidence that the parents will be able to make flexible arrangements and accordingly the orders will prescribe the arrangements I have set out above as a default arrangement. 

8. The children should travel as unaccompanied minors between Canberra and Brisbane and each of the parents should be responsible for getting the children from his or her home to the relevant airport.  The mother should pay for the children’s flights from Canberra to Brisbane and the father from Brisbane to Canberra.  It would be sensible for the parents to maximise frequent flyer privileges by using one airline and one account.  However, I will not prescribe such a practice.  If they are intent on using different airlines and different frequent flyer arrangements that is a matter which ultimately will have to be borne by them. 

9. There had been difficulties in the past about communication of flight details.  It would be sensible for these flight details to be communicated by the father to Mr B either by text or by telephone if that should be necessary. 

10. There have been difficulties about communication between the children and the parent with whom they are not living.  Both parents must now try to facilitate appropriate communication.  To that end the children who have in the past had their own phones should continue to do so and each parent should ensure that the children are able to ring the other parent at any reasonable time.  It would be sensible if the children were also able to communicate with the other parent by Skype on any occasion they wanted to do so and I recognise that that may be difficult in the light of past experiences.  It would be wonderful for the children if they felt a parent would offer to facilitate a Skype communication with the other parent. 

11. Whether the children are speaking by telephone or Skype to the other parent the parent in whose house they are living at the time should absent themselves completely from where the children are speaking.  There should be no recording of any conversation between the children and the other parent even if this were legal.  Accordingly I will make orders. 

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 19 April 2013

Associate: 

Date:  19 April 2013

Endnote 1
Minutes of Proposed Orders on Behalf of the Applicant Father
Parenting Orders

1. All prior parenting Orders be discharged.

2. The father have sole parental responsibility for the children namely [O] born … February 2005 and [P] born … May 2007.

3. The children live with the father.

4. The father be permitted to relocate the children’s permanent residence to the Sunshine Coast, Queensland.

5. The mother will spend time with the children as follows:

   i.For one half of each of the Queensland school holiday periods as agreed between the parties and failing agreement:

   a.   The first half in years ending in an odd number;

   b.   The second half in years ending in an even number.

   ii.At such other times as agreed between the parties.

6. The mother will communicate with the children as follows:

   i     By telephone/skype/webcam each Tuesday and Sunday between the hours of 6pm and 7pm;

   ii    On each of the children’s birthdays, mother’s day and the mother’s birthday, and on Christmas Day when the children are not otherwise with the mother between 6pm and 7pm;

   iii    At such other times as agreed between the parties.

7. For the purposes of the children’s travel pursuant to Order 5 the mother will be solely responsible for the cost of the children’s return air travel between Brisbane and Sydney and the mother will collect and deliver the children to and from the Sydney Domestic Airport at the commencement and conclusion of her time with the children, unless as otherwise agreed between the parties.

8. The mother will provide to the father on not less than 7 days notice, the flight and/or other travel arrangements for the children to facilitate time in accordance with Order 5.

9. The father will provide an authority to each of the children’s respective schools authorising the release of information to the mother including but not limited to school reports, school photograph order forms, invitations and flyers for school events.

10. The father will provide an authority to each of the children’s treating medical practitioners authorising the release of information to the mother regarding the children’s medical treatment.

11. Each party be at liberty to travel overseas with the children when the children are in their care, providing that such travel does not interfere with the other parents time with the children, with each party to provide the other with 28 days notice of their intention to travel overseas.

Child Support

1. That for the period from 1 February 2011 to 31 December 2012 the father’s liability to pay periodic payments of child support pursuant to an administrative assessment under the Child Support (Assessment) Act in respect of the children [O] born … February 2005 and [P] born … May 2007 be assessed as Nil.

2. From 1 January 2013 the father’s liability to pay child support (if any) in respect of the children [O] born … February 2005 and [P] born … May 2007 be subject to further administrative assessment of child support as calculated by the Child Support Registrar pursuant to the Child Support (Assessment) Act.

Enforcement Orders

1. Pursuant to Order 19 of the Orders of the Federal Magistrates Court, Canberra (CAC 497/2010) that the funds held on trust for [the father] and [the mother] by Evans Family Lawyers be applied as follows:

   i.In accordance with Order 19A(vi) to the repayment of Medicare reimbursements in the sum of $8,036.26 (or such other amount as is now due and payable);

   ii.In accordance with Order 19A(vi)(b) to the reimbursement of the husband for the payment of the balance of the account to Meridian Lawyers (formerly Guild Lawyers) in the sum of $3,783.50;

   iii.In accordance with Order 19A(vi)(d) to the payment of the account to [Business L] in the sum of $6,547.20 (or such other amount as is now due and payable);

   iv.To the payment or readjustment of any further liabilities associated with the sale of [Business M].

1. That the wife pay to the husband the amount as assessed by the Australian Taxation Office for the payment of penalties and arrears in respect of the late payment of taxation in accordance with the Notice of Assessment – Year ended 30 June 2011 on behalf of the husband.

2. That the balance of the funds held by Evans Family Lawyers be distributed to the parties as follows:

   i.To the reimbursement to the father of the flights for the children, other travel costs and sundry expenses of the father for the following periods:

   a.    Term 3 school holidays 2011;

   b.    Term 4, week 5, 2011;

   c.     Term 1, week 5, 2012;

   d.    Term 1 school holidays 2012;

   e.     Term 2, week 5, 2012.

   ii.The balance thereafter to be distributed 70/30 in favour of the wife.

Endnote 2
Orders sought by the Mother
Parenting Orders:

1. That all prior parenting Orders are discharged.

2. That the children, [O] (born … February 2005) and [P] (born … May 2007) (‘the children’) live with the mother.

3. That the mother has sole parental responsibility for the children.

Spend Time With

1. That the children shall spend time with the father as follows:

   a.     For one week in each mid-year school holiday period as agreed between the parties, in the absence of agreement for the first week of each school holiday period in even numbered years and for the second week of each school holiday period in each odd numbered year.

   b.     During the Christmas school holiday period:

   i.In 2013 for two weeks from 29 December 2013 until 12 January 2014

   ii.In 2014 for two weeks from 21 December 2014 until 4 January 2015

   iii.In 2015 for two weeks from 3 January 2016 until 17 January 2016

   iv.In 2016 for two weeks from 18 December 2016 until 1 January 2017

   v.In 2017 for two weeks from 31 December 2017 until 14 January 2018

   vi.In 2018 for two weeks from 23 December 2018 until 6 January 2019

   vii.In 2019 for two weeks from 29 December 2019 until 12 January 2020

   viii.In 2020 for two weeks from 20 December 2020 until 3 January 2021

   ix.In 2021 for two weeks from 2 January 2022 until 16 January 2022

   x.In 2022 for two weeks from 18 December 2022 until 1 January 2023

   xi.In 2023 for two weeks from 31 December 2023 until 14 January 2024

   xii.In 2024 for two weeks from 22 December 2024 until 5 January 2025               

2. That the changeover for these orders shall occur as follows:

   a.     For Order 4a. and 4.b the mother is to deliver the children to the Canberra Airport and the father is to collect the children from the Brisbane Airport

3. That for the purposes of order 4a and 4.b the father is responsible for the cost of flights to and from Canberra Airport with the children to travel as unaccompanied minors on direct flights from Canberra to Brisbane.

4. That any contact required by these orders between the father and the mother will be made to [Mr B] in substitution of the mother in accordance with annexure A.

5. The flights that the father books for the children will be at a reasonable time of day, and whenever possible, with arrival and departure times from Canberra Airport between 10am and 2pm.

6. The father is to provide departure and arrival flight details to the mother for both the departing and returning flights from Canberra, no less than 21 days before the commencement of his holiday time with the children, and those details are to include flight numbers and arrival and departure times.

7. In the event that the father does not notify the mother of the return flight details more than 21 days before the commencement of his holiday time with the children, then this next period of holiday time with the children is cancelled and the mother shall be under no obligation to deliver the children to Canberra Airport. 

8. That for the purposes of these orders school holidays shall be defined as follows:

   a.     The “first week” of school holidays shall be defined as from the first Sunday following the conclusion of school until the following Sunday

   b.     The “second week” of school holidays shall be defined as occurring from the second Saturday following the end of the school term until the following Saturday.

Communication

1. The children may use their phone or skype to contact the mother at any time while in the father’s care.

2. The children may use their phone or skype to contact the father at any time while in their mother’s care.

3. The father and/or [Ms E] are to ensure that the children’s phone is not removed from their possession.

4. The father is to ensure that all items brought with the children should return with the children at the conclusion of his time with them.

5. During any time that the children spend with their father the children will not sleep in the same bedroom as the father and the father be and is hereby restrained from allowing or permitting this to occur.

6. On Christmas day, the party that is spending time with the children will cause the children to phone or skype the parent that the children are not currently spending time with between 9am and 9.30am for up to the whole of, but not necessarily the whole of that period.

7. Neither parent will elicit or request that the children ring or skype at any particular time.

8. Neither parent will return a missed call from a child. However, the children are free to re-ring the parent at any reasonable time.

9. Each of the parents be and is hereby restrained from being in the same room as the children when the children are talking to the other parent. Excluded from this prohibition is such physical acts as may be necessary to initiate the call or alternatively to receive the call for the purposes of having it handed to the children. Each of the parents will do all things within her or his control to ensure that the children have privacy for the conversation they have with the other parent. This includes the parent with whom the children are staying removing himself or herself from the immediate vicinity of the children when this conversation is occurring and not placing himself or herself or permitting his or her partner to place himself or herself in a position where the call might be overheard.

10. Neither parent will inform the children of the recording of 8 July 2012 which was [O’s] conversation with [C] nor will they permit any other person to do so. The father will use his best endeavours to ensure that [Mr D] does not inform his daughter [C] about the recording.

11. That each of the parents, [Ms E] and [Mr B] are hereby restrained from administering any physical punishment to the children. This includes but is not limited to, pinching, kicking, or hitting.

12. That the father may post the children mail to their address as he wishes. The mother will hand such communication to the children unopened.

13. That each party refrain from making critical or derogatory remarks in relation to the other parent in the presence or hearing of the child and that each party do all things necessary to ensure that no third party makes critical comments about the other party in the presence or hearing of the child.

14. That each party advise the other party and keep the other party advised of their current address and the children’s current mobile contact number and advised the other party of any changes to these details within seven days of such change occurring.

15. That within 14 days of these orders and within 14 days of the children’s subsequent enrolment at any school the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that school forward directly to the father copies of all of each child’s school reports and merit cards, or any written material pertaining to each child’s academic activities, including but not limited to school newsletters. Should any extra expense be associated with forwarding the father copies of the same, the father shall bare the cost.

16. That during any period referred to in these orders, in the event of the children being hospitalised or receiving emergency medical attention, the resident parent shall notify the other parent as soon as practicable after the first contact with either the medical practitioner, medical centre or hospital.

17. The father shall ensure the mother is kept informed of:

    a.     any medical problems or illnesses suffered by the child;

    b.     any medication that has been prescribed for the child;

    c.     any other matter relevant to the child’s welfare;

    while in the father’s care.

18. That the mother shall ensure that prior to any contact period with the father, the father is informed of any medication that has been prescribed for the children or current illnesses of the childrens that may impact on the children whilst they are in their fathers care.

19. That the father is restrained from entering at, or coming within 100 metres of the place of residence of the mother and the children.

20. That the father is restrained from contacting the mother directly and that any contact between the children and the father is to occur using the children’s mobile phone (…) at times outlined in these Orders – or such other phone number as notified by the mother. For the avoidance of doubt the father is not to contact the mother by any means except in an emergency or in accordance with order 31.

21. The father is restrained from initiating contact between the children and [C] while the children are in his care.

22. The parents are restrained from recording or making any recording or using any type of listening device of the phone calls while the children are in his care or communications between him and the children

ANNEXURE ‘A’

The above mentioned parties are the parties to a final ADVO made by … Local Court on … August 2012.  Order 5 contained in that order restricts the communication that can be made by [the father] to [the mother]. Despite the terms and effect of that order, the parties agree as follows:

1. That the father will only communicate by email to the email address of [Mr B] at email address … or any other email address as notified in writing from time to time.

2. The email correspondence from the father to the mother ([Mr B]) is to be solely used for notification and advice of the travel arrangements for the children and specific and necessary matters concerning the care of the children.

3. That the father is at liberty to text to the mother’s mobile ph … only for the purposes of emergency or immediate and necessary matters arising with respect to the travel arrangements for the children.

4. That the mother (or [Mr B]) will only communicate by email to the email address of [the father] at email address … or any other email address as notified in writing from time to time.

5. The email correspondence from the mother ([Mr B]) is to be solely used for notification and advice of the travel arrangements for the children and specific and necessary matters concerning the care of the children.

6. That the mother (or [Mr B]) is at liberty to text to the father’s mobile ph … only for the purposes of emergency or immediate and necessary matters arising with respect to the travel arrangements for the children.

For the avoidance of doubt, it is the intention of the parties that the terms of this order or the ADVO are not impacted on or effected in any other manner than those identified in this agreement.

Endnote 3
Independent Children's Lawyer Minute of Orders

In the event the children live with the mother
Interim Orders:

1. The [sic] [O] born … February 2005 (aged 7) [P] born … May 2007 (aged 5) shall live with the mother. 

2. Each of the parents is hereby restrained from:

   a.     Informing the children of the nature and fact of any court proceedings between them

   b.     Discussing any issues arising from these proceedings with the children

   c.     Saying negative things about the other parent, or inviting negative comment from the children about the other parent.

3. The mother shall have sole parental responsibility for the children save that

   a.     The mother will keep the father informed by email or mail as to all matters relating to the children’s health, counseling [sic], education, and extracurricular activities on at least four occasions each year

   b.     The mother shall provide the father with copies of the children’s school reports and school photo order forms

   c.     The mother shall authorize, and keep authorized, all medical, counseling (sic) and educational professionals involved with the children, to communicate with the father about the children.

4. The children shall spend time with the father as follows:

   a.     For all the terms 1, 2, and 3 school holidays each year, commencing on the Saturday following the conclusions of the term and concluding on the Saturday preceding the commencement of the new school term

   b.     For one half of the Christmas school holiday period being the first half in odd numbered years and the second half in even numbered years.

5. The mother/father shall facilitate the children making a phone/skype call to the other parent when they are in her/his care, between 6:30pm and 7:00pm on:

   a.     On each of the children’s birthdays;

   b.     On Christmas Day;

   c.     On Easter Sunday;

   d.     On the mother’s birthday;

   e.     On any relevant siblings birthdays.

6. For the purposes of changeover, the mother will arrange a third person to deliver the children to the Canberra airport.  The mother will not be in attendance at the airport.  The father may arrange unaccompanied minor flights for the children, attend in person to collect the children, or send an agent.

7. The father shall pay the costs of all flights and shall provide the flight details to the mother prior to the day of departure.  The mother will be responsible for the costs of travel to and from the Canberra airport.

8. Either parent is at liberty to travel overseas with the children during the time the children are in their care and the parent who has the children’s passports will make them available to the other parent.  The parent who is travelling will give the other parent details of the dates of travel and itinerary as soon as possible.

9. If, at the conclusion of 18 months from the date of these orders, the children have spent time with the father in accordance with these orders, unless cancelled by the father, these orders shall become final.

10. If the mother fails to ensure the children catch the intended flights to the father, the father may relist the matter on 14 days notice and press his application for change of residence.

11. The mother shall arrange for the children to meet with the Independent Children's Lawyer, and if available, a family consultant, to explain these orders. 

In the event the children live with the father
Final Orders:

1. The [sic] [O] born … February 2005 (aged 7) [P] born … May 2007 (aged 5) shall live with the father. 

2. Each of the parents is hereby restrained from:

   a.     Informing the children of the nature and fact of any court proceedings between them

   b.     Discussing any issues arising from these proceedings with the children

   c.     Saying negative things about the other parent, or inviting negative comment from the children about the other parent.

3. The mother and father shall have equal shared parental responsibility for the children and specifically:

   a.     The father will keep the mother informed by email or mail as to all matters relating to the children’s health, counseling [sic], education, and extracurricular activities on at least four occasions each year

   b.     The father shall provide the mother with copies of the children’s school reports and school photo order forms

   c.     The father shall authorize, and keep authorized, all medical, counseling (sic) and educational professionals involved with the children, to communicate with the mother about the children.

4. The children shall spend time with the mother as follows:

   a.     For all the terms 1, and 3 school holidays each year, commencing on the Saturday following the conclusions of the term and concluding on the Saturday preceding the commencement of the new school term

   b.     For the first week of the term 2 school holidays each year commencing on the Saturday following the conclusions of the term and concluding on the following Saturday

   c.     For four weeks of the Christmas school holiday period being the first four weeks in even numbered years and the second four weeks in odd numbered years.

5. The father shall facilitate the children making a phone/skype call to the mother when they are in his care, between 6:30pm and 7:00pm on:

   a.     Each Sunday;

   b.     On each of the children’s birthdays;

   c.     On Christmas Day;

   d.     On Easter Sunday;

   e.     On the mother’s birthday;

   f.     On any relevant siblings birthdays.

6. For the purposes of changeover, the father shall fly the children to and from Canberra.  The mother will collect the children from the Canberra airport and return them to the airport. 

7. The father shall pay the costs of all flights and shall provide the flight details to the mother prior to the day of departure.  The mother will be responsible for the costs of travel to and from the Canberra airport.

8. Either parent is at liberty to travel overseas with the children during the time the children are in their care and the parent who has the children’s passports will make them available to the other parent.  The parent who is travelling will give the other parent details of the dates of travel and itinerary as soon as possible.

9. The mother or father shall arrange for the children to meet with the ICL, and if available, a family consultant, to explain these orders. 

Endnote 4
List of documents filed and dates

Initiating Application – Father – 1 April 2010
Response – Mother - 22 April 2010
Amended Initiating Application – Father – 16 July 2010
Amended Initiating Application – Father – 30 July 2010
Application in a case – Father – 21 December 2010
Initiating Application – Father – 16 September 2011
Response – Mother – 28 October 2011
Affidavit – Mother – 28 October 2011
Response – Mother – 1 December 2011
Application in a case – Father – 20 July 2012
Affidavit – Father – 20 July 2012
3 Affidavits – Mother – 20 September 2012
1 Affidavit – Father – 21 September 2012
2 Affidavits – Father – 24 September 2012
Application in a case – Mother – 27 February 2013
1 Affidavit – Mother – 27 February 2013
1 Affidavit – Mother – 13 March 2013