SUMEY & SUMEY

[2019] FamCA 679

FAMILY COURT OF AUSTRALIA

SUMEY & SUMEY [2019] FamCA 679

FAMILY LAW – PARENTING – Where the father has spent no time with the children for approximately three years – Where the father sought graduating time with the children – Where the mother sought no time with the father - Where the father has a history of aggressive and violent behaviour – Where the children had been exposed to this behaviour – Where the children were protective towards the mother – Orders made for the mother to have sole parental responsibility – Orders for the children to live with the mother – Orders for the father to have conditional graduating time with the children – Where the Independent Children’s Lawyer is extended for two years to oversee the implementation of these Orders.

FAMILY LAW – RELOCATION – Where the mother sought to relocate to Northern New South Wales – Where this relocation was supported by the Independent Children’s Lawyer – Where the mother had carefully considered the feasibility of the relocation – Where relocation is in the best interests of the children – Order made.

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

MRR v GR (2010) 240 CLR 461
Taylor & Barker (2007) 37 Fam LR 461

APPLICANT: Ms Sumey

RESPONDENT: Mr Sumey

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 7655 of 2014

DATE DELIVERED: 6 September 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 10-12 and 25-26 July 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Stapleton

SOLICITOR FOR THE APPLICANT: Swaab, Solicitors

THE RESPONDENT: Mr Sumey appeared on his own behalf

INDEPENDENT CHILDREN’S LAWYER: Ms Karagiannis

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. All existing Orders in relation to the children:

   ·C born … 2007 and

   ·D born … 2009 ("the children")

   are discharged.

2. The mother has sole parental responsibility for the children.

3. As soon as is practicable, the mother notify the father of the following relating to the education of the children:

   3.1      a change in the school which either of the children will attend

   3.2      the secondary school in which she intends to enrol either of the children.

4. As soon as is practicable, the mother notify the father of any major health issue affecting either of the children which shall include:

   4.1      if either of the children is diagnosed with a life threatening illness

   4.2if either of the children is required to undergo surgery which requires hospitalisation for more than one day.

Live with

1. The children live with the mother.

2. After the conclusion of school term 4 in 2019, the mother is permitted to relocate the residence of the children to the Town L region which shall extend to include an area of 50 kms from the Town L township.

Communicate with – from date of Orders for a period of three months

1. For a period of not less than three months after the date of these Orders the father communicate with the children as follows:

   7.1by cards, letters or e-messages which may include a recent photograph of the father, such communications to be sent to the clinician providing therapy for the children pursuant to Order 27 ("the clinician") to be provided to the children by the clinician, if she/he considers, in her/his absolute discretion, that the communication will not cause either of the children any emotional distress or harm

   7.2the communications referred to in Order 7.1 will be provided by the father to the children's clinician at a frequency of not less than once each month

   7.3after the father has provided at least one form of communication pursuant to Order 7.1, he is at liberty to prepare a video for the children which will be sent to their clinician to be viewed by them in the presence of the clinician, if the clinician considers, in her/his absolute discretion, that the video will not cause either of the children any emotional distress or harm.

Spend time with at Contact Centre

1. After having communicated with the children in accordance with Order 7 for a period of not less than three months, for a period of twelve months the children spend time with the father at and under the supervision of S Contact Service in Suburb U, or an equivalent contact service, ("the Contact Service"), on days and at times nominated by the Contact Service as follows:

   8.1      on one occasion each month

   8.2      the dates for visits to occur on a weekend, if possible, during school terms

   8.3each visit be for a duration of two hours or such other period of time as can be accommodated by the Contact Service

   8.4the father shall confirm that he will attend a scheduled visit by telephone call to the Contact Service not less than twelve hours prior to the visit if the children are living in Sydney and 48 hours prior to the visit if the children are living in Town L

   8.5if the father does not confirm his attendance at a visit pursuant to Order 7(d), the Contact Service shall be at liberty to cancel the visit and that scheduled visit shall be forfeited by the father

   8.6subject to the consent of the Contact Service, and provided that the children have had not less than three occasions of time with the father, he is at liberty to bring his son P, his current wife or their child to the Contact Service for the whole or part of the time with the children.

2. The Independent Children's Lawyer is granted leave to provide a copy of these Orders to the Contact Service.

3. Within 14 days following the date of these Orders the mother and the father each telephone the Contact Service to arrange to undertake the intake process.

4. The mother and the father each complete any documents required from time to time by the Contact Service for use of the Contact Service for supervised time promptly upon request by the Contact Service.

5. Each parent comply with all rules and directions of the Contact Service in relation to the time which the children spend with the father.

6. The mother and the father each pay to the Contact Service promptly the amount imposed on that parent by the Contact Service for use of the Contact Service.

Spend time with following time at Contact Service

1. After the children have spent time with the father on twelve occasions at the Contact Service, the children thereafter spend time with the father in the presence of an agreed person being:

   14.1    a member of the paternal family; or

   14.2    a member of the maternal family; or

   14.3    a friend of the parties.

2. If the parties are unable to reach agreement for the purposes of Order 14 they do all acts and things necessary to engage Q Group, or another equivalent supervision service ("the Supervision Service") to facilitate such time.

3. The children's time with the father pursuant to Orders 14 and 15 take place as follows:

   16.1    on one occasion each month;

   16.2unless otherwise agreed by the parties in writing, on the first Saturday of each month;

   16.3for a minimum period of four hours but not exceeding six hours commencing at 11.00 am, unless otherwise agreed by the parties in writing at least 48 hours before the visit;

   16.4if a private person is facilitating the time, changeovers take place at the Contact Service or such other venue agreed in writing by the parties

   16.5if the Supervision Service is facilitating the time, changeover taking place as arranged with the Supervision Service;

   16.6these visits are conditional upon the father having confirmed his attendance by text message no later than 8.00 pm on the Wednesday preceding the visit with such messages to be sent to a number nominated by the mother from time to time.

4. If the Contact Service is facilitating changeover pursuant to Order 16.4 then:

   17.1the mother and the father each complete any documents required from time to time by the Contact Service for use of the Contact Service for or changeover promptly upon request by the Contact Service

   17.2the mother and the father each comply with all rules and directions of the Contact Service in relation to changeovers

   17.3the mother and the father each pay to the Contact Service the amount imposed on that parent by the Contact Service for use of the Contact Service for changeover.

5. If the Supervision Service is facilitating the time:

   18.1the mother and the father each complete any documents required from time to time by the Supervision Service for use of the Supervision Service

   18.2the mother and the father each comply with all rules and directions of the Supervision Service

   18.3the mother and the father each pay to the Supervision Service the amount imposed on that parent by the Supervision Service for use of the Supervision Service.

6. Commencement of the time prescribed in Orders 14, 15 and 16 is conditional upon the following:

   19.1the father having attended no less than twelve visits scheduled at the Contact Service; and

   19.2the father having complied with all rules and reasonable directions and requests made by the Contact Service; and

   19.3the father having no charges or convictions for any criminal offence or serious traffic violations from the date of these Orders; and

   19.4the father having undertaken random urinalysis on a monthly basis pursuant to Order 22 which all show a clear result.

7. In the event that the father has not complied with any of the conditions prescribed by Order 19, the time which the children spend with the father continue to take place at the Contact Service in accordance with Order 8 and in the event that the father fails to attend two consecutive visits without a reasonable excuse this time is suspended.

Spend time thereafter

1. If the children spend time with the father pursuant to Orders 14, 15 and 16 and that time is not suspended for any reason, then after a period of twelve months the children spend time with the father as follows:

   21.1    on one occasion each month

   21.2unless otherwise agreed by the parties in writing, on the first Saturday of each month

   21.3commencing at 10.00 am and ending at 6.00 pm, unless otherwise agreed by the parties in writing at least 48 hours before the visit

   21.4changeovers take place at the Contact Service or such other venue agreed in writing by the parties

   21.5the visits are conditional upon the father having confirmed his attendance by text message no later than 8.00 pm on the Wednesday preceding the visit, such text messages to be sent to a number nominated by the mother from time to time.

Urinalysis testing by father

1. The father will submit to urinalysis testing under the following conditions:

   22.1the urinalysis undertaken will test for opiates, benzodiazepines, cannabis, cocaine, amphetamines, and methamphetamines

   22.2the drug testing will be by way of chain of custody urine drug screens with samples supplied in a supervised environment and checked for adulteration

   22.3the drug testing will meet the Australian/New Zealand Standard 4308/2008 procedure for collection, detection and quantification of drug abuse in urine.

2. The father will direct and authorise the testing laboratory to provide to Legal Aid NSW (Attn:  …) and to the mother or her solicitor, copies of all test results forthwith upon those results becoming available.

3. The father will submit to the random drug testing within 24 hours of receipt of a request from the Independent Children's Lawyer and such request is to be made by the Independent Children's Lawyer by emailing the father directly to his to his nominated email address.

4. The Independent Children's Lawyer will make such a request for testing pursuant to these Orders at a frequency of no more than once each calendar month.

5. The father shall meet the costs of urinalysis testing undertaken pursuant to these Orders.

Counselling for the children

1. Within 14 days following the date of these Orders, the mother contact the children's clinician to arrange an appointment for the children to consult the children's clinician for the purpose of:

   27.1assisting and supporting the children with their re-introduction to the father

   27.2assisting and supporting the children in their future relationship with the father

   27.3addressing the issues raised by the single expert, Dr R in her report arising from the children having been exposed to family violence and risk of harm when in the care of the father

   27.4assisting and supporting the children in their introduction to the father's current wife and baby.

2. The children's clinician will be Ms T or a counsellor or psychologist with expertise in relation to children, nominated by the mother and approved by the Independent Children's Lawyer.

3. The Independent Children's Lawyer is granted leave to provide the children's clinician with the following documents:

   29.1the report prepared for these proceedings by the single expert, Dr R on 15 January 2019 and

   29.2a copy of these Orders and

   29.3Reasons for Judgment of the Court.

4. The mother facilitate the children's attendance upon their clinician at a frequency and for a duration nominated by the children's clinician.

5. The mother is responsible for payment of all fees for the children's consultations with the children's clinician.

Restraints

1. Each parent is restrained from denigrating the other parent or speaking in a derogatory or insulting way about the other parent in the presence or hearing of the children, or either of them.

2. Each parent shall use their best endeavours to ensure that no third party denigrates the other parent or speaks in a derogatory or insulting way about the other parent in the presence or hearing of the children, or either of them.

3. Each parent is hereby restrained from discussing the issues or any other aspect of these proceedings with the children.

4. Each parent is hereby restrained from showing the children, or either of them any document prepared during these proceedings and is further restrained from facilitating the children, or either of them, viewing such documents.

5. The father is restrained from spending time with, or communicating with the children, including by any form of social media, except as set out in these Orders or as arranged during any therapy session between the children's clinician and the children.

6. The father is restrained from applying for a passport in the name of either of the children.

7. The father Mr Sumey, and his servants and agents, be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children C (a male) born … 2007 and D (a male) born … 2009 from the Commonwealth of Australia

   AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Watch List in force at all points of arrival and departure by air or sea in the Commonwealth of Australia and maintain the names of the said children on the Watch List until the court removes the removal of a name or names of the said children or upon the respective child attaining the age of 18 years of age, whichever first occurs.

8. The father, and his servants and agents, be and are hereby restrained from approaching or attending or contacting any school which either of the children attends from time to time and any place which the children, or either of them, may attend for sport or extra-curricular activities.

9. The father is hereby restrained from approaching the mother or the children, except in accordance with these Orders.

10. The father is hereby restrained from harassing, threatening or intimidating the mother or any member of the mother's family or household.

11. The father is hereby restrained from posting photographs of the children, or either of them, or messages about the children or either of them, on any social media sites.

Children's Contact with Paternal Family

1. The children spend time with the father's immediate and extended family on four occasions each year facilitated by an agreed family member or failing agreement, by Q Group, or another equivalent supervision service ("the Supervision Service") and this time take place in the presence of the agreed family member or the Supervision Service.

2. The parties do all acts and things necessary, including completing all applications and other documents, to engage the Supervision Service to facilitate the time.

3. The children's time with the paternal family take place as follows:

   45.1    if possible, on a special family occasion

   45.2for a minimum period of four hours but not exceeding six hours commencing at 11.00 am, unless otherwise agreed by the parties in writing at least 48 hours before the visit

   45.3changeovers take place as arranged with the Supervision Service.

Costs of the Independent Children's Lawyer

1. Within 28 days after the date of these Orders each party pay to Legal Aid NSW the sum of $6,761.25 as a contribution to the costs of the Independent Children's Lawyer in the proceedings.

Other provisions

1. Each party and the Independent Children's Lawyer are at liberty to request the proceedings be relisted in relation to any issue which arises in relation to the implementation of these Orders upon request to this Honourable Court by 14 days written notice.

2. The appointment of the Independent Children's Lawyer is extended to a date two years following the date of these Orders.

3. The Independent Children's Lawyer be granted leave to issue a subpoena to NSW Police Force at any time during the period of two years after the date of these Orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7655  of 2014

Ms Sumey

Applicant

And

Mr Sumey

Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. Ms Sumey and Mr Sumey are the parents of two children:

   ·C born in 2007 (11) and

   ·D born in 2009 (10).

   These proceedings now concern parenting orders in relation to C and D.  The parties resolved their financial issues prior to the trial and I made final orders by consent on 21 May 2019.

2. The proposal of the mother involved a relocation of the children to Town L on the North Coast of New South Wales.  The ICL supported this proposal.  The father resisted the relocation of the children.

3. The mother and the Independent Children's Lawyer ("the ICL") proposed that she have sole parental responsibility for the children.  The father consented to an order for sole parental responsibility in favour of the mother, subject to the following restraints:

   1.        Agree with the mother's proposed order 1.

   2.Agree with the mother's proposed order 2 subject to the mother being restrained from:

   I.Changing the children's residence to a place outside of NSW;

   II.        Changing the names of the children;

   III.      Changing the children's school enrolment;

   IV.Agreeing to any hospitalised medical treatment without giving the father 7 days written notice of such proposed treatment, and in the case of an emergency, such notice is to be provided within 12 hours of diagnosis.

   3.Agree with the mother's proposed order 3.

   4.Agree with the mother's proposed order 13.

4. The parents and the ICL agreed that there should be order that the children live with the mother.  There was considerable dispute as to the amount of time, if any, and conditions under which the children should be in the care of the father.

1. The mother sought orders to the effect that the children spend no face-to-face time with the father and that contact between them be limited to one email per month.  The mother sought further that she have sole discretion as to whether these communications should be passed on to the children.  The mother sought orders to restrain the father from applying for a passport for the children;  removing them from the Commonwealth of Australia;  approaching their school or extracurricular activities or posting information in relation to them on social media.

2. The father sought orders which may be summarised as follows:

   ·the children spend time with him from 9.00 am to 6.00 pm each Sunday under the supervision of the paternal grandmother, for a period of three months

   ·thereafter the children spend time with him each alternate weekend from Friday afternoon until Monday morning;  each Thursday night and for half of all school holidays

   ·the father be at liberty to attend all events at the children's school which normally are open to parents.

3. The ICL proposed orders which may be summarised as follows:

   ·for a period of three months the father send communications to the children by card, letter or email via a clinician

   ·the children's clinician have sole discretion whether to pass on the father's communications and at a frequency no greater than once per month

   ·after one such communication, the father be at liberty to provide a video to the children's clinician

   ·after such a period of three months, the children spend time with the father at a contact centre for a period of twelve months

   ·these visits at a contact centre take place on one occasion each month, subject to confirmation by the father of his attendance 48 hours prior to the scheduled date

   ·after three occasions at a contact centre the father be at liberty to bring to visits his son P, his current wife and their child

   ·after such a period of twelve months the children spend time with the father once per month for four to six hours in the presence of a person agreed by the parents, or in default of agreement, a professional supervisor

   ·the commencement of this time is conditional upon the father having attended a minimum of twelve visits at a contact centre;  complied with all rules and reasonable requests of staff;  having faced no criminal charges nor been convicted of any offence or serious traffic violation;  undergone three hair follicle tests and monthly random urinalysis

   ·subject to compliance by the father with these conditions, the children thereafter spend time with him from 10.00 am until 6.00 pm on the first Saturday in each month.

4. The ICL proposed that the children spend time with the paternal family on four occasions per year, in the absence of the father.  This time would take place under the supervision of an agreed person or a professional supervisor.

5. The ICL proposed that each parent be restrained from:

   ·denigration of the other parent

   ·discussion of the proceedings with the children

   ·provision to the children of any document prepared in the proceedings.

6. The ICL sought orders to restrain the father from:

   ·applying for a passport for the children

   ·removing the children from the Commonwealth of Australia

   ·approaching or contacting the children's school

   ·approaching the mother or the children other than in accordance with court orders

   ·harassing, threatening or intimidating the mother or any member of her family or household

   ·posting photos of or messages about the children on social media

   ·communicating with the children. including by social media, other than in accordance with court orders.

7. The ICL proposed that her appointment continue for a period of two years and that she have leave to issue subpoenas to the New South Wales Police Force at any time during that period.  The ICL sought an order that each of the parties pay to Legal Aid NSW a sum of $6,761.25 as a contribution to her costs.

Background

1. The mother and the father, who are aged 38 and 48 respectively, began to live together in 2003/2004.  They married in 2005 and separated on 31 August 2014.  The parties were divorced by an order made in 2017.

2. The father commenced a relationship with Ms E in 2014 and they lived together until their separation in September 2016.  Ms E gave birth to their son P in 2015.  P is now almost four years of age.  The father gave uncontradicted evidence that he began to spend time with P early in 2019 by arrangement with Ms E, despite the turbulent circumstances of their separation.

3. The father began a relationship with Ms N in approximately 2017 and they married in Country O in 2017.  Ms N is a citizen of Country O, who has spent time in Australia in 2017 and 2018.  The father has spent time in Country O since 2017.  In late 2019 Ms N will give birth to a daughter, M, who is the child of herself and the father.

4. On 18 October 2014 the father attended the former matrimonial home, without prior notice to the mother, and entered the property in her absence.  The father contended that he went to the home to collect motorcycle clothes and that he gained access through an unlocked side door.

5. The mother maintained that she changed the locks to the property on 18 September 2014.  She had obtained a provisional Apprehended Violence Order ("AVO") against the father on 17 September 2014.  The application for a final AVO was dismissed on 23 February 2015, after a contested hearing.  The mother alleged that police failed to present evidence that she had changed the locks prior to the father entering the former matrimonial home.

6. These proceedings were commenced by the mother on 5 December 2014, when she filed an Initiating Application.  The father unilaterally removed the children from their school on 4 December 2014 and retained them until orders were made for their immediate return to the mother on 8 December 2014.  During that

   
   

   four-day period the mother had no knowledge of the whereabouts of the children, nor any communication with them.

7. On 8 December 2014 orders were made which may be summarised as follows:

   1.        the father return the children to the mother forthwith

   2.        the children live with the mother

   3.        the father is restrained from approaching the children's school

   4.the children spend time with the father as agreed in writing between the parties

   5.an ICL is appointed for the children

   6.the proceedings adjourned to a Duty List on 25 February 2015.

8. In January 2015 the parties agreed that the children spend time with the father each alternate Saturday, under the supervision of members of the paternal family.  On 25 February 2015 interim orders were made by consent, for the children to spend time with the father on Saturday, 28 February 2015 and each alternate Sunday from 9.30 am until 6.30 pm.  These orders restrained the father from attending the mother's residence without her prior written consent.  On a without prejudice basis, an order was made which provided that Ms E not be present during the children's time with the father.

9. On 13 April 2015 the parties consented to a sale of the former matrimonial home, with the net proceeds to be lodged in a controlled monies account.  On 23 October 2015 the husband was ordered to pay spouse maintenance of $920 per week to the wife.  A further order was made that the wife receive a sum of $100,000 from the controlled monies account by way of partial property settlement.

10. On 24 April 2015 interim orders were made, which included a "without admissions" provision that the father undergo random urinalysis at the request of the ICL.  These orders also provided that the children spend overnight time with the father each alternate weekend, subject to receipt by the mother and the ICL of medical information in relation to Ms E.

11. On 19 October 2015 interim orders were made by consent which provided that the children spend time with the father from the conclusion of school on Friday until 6.30 pm on Sunday for a period of six months.  Thereafter the children would spend time with the father each alternate weekend from the conclusion of school on Friday until the commencement of school on Monday.  These orders made provision for the children to spend one week with the father in January 2016.

12. On 20 September 2016 the father's urinalysis test returned a positive result for benzodiazepines.  The father maintained that he returned this positive result because he took a diazepam (Valium) tablet which he obtained from a general practitioner.  Dr V provided an affidavit and was cross-examined at trial.  I accept that Dr V provided one Valium tablet to the father in September 2016, in an attempt to assist him with stress and insomnia.  I accept the affidavit and oral evidence of Dr V.

13. The children's time with the father ceased after this positive drug test in September 2016.  On 1 December 2016 the father provided a clear result to a urinalysis test.  Nonetheless, there was no resumption of time for the children with the father.

14. The father was overseas between 11 December 2016 and 30 April 2017.  He spent time in Country O during that period and commenced a relationship with Ms N.  It seems that Ms N has a successful career and owns real estate in Country O.  The father's travel record (Exhibit 6) indicated that he was overseas on four occasions during 2017.

15. On 13 March 2018 the father made a threat of suicide during a discussion with staff of the Department of Human Services (“DHS”) in relation to child support.  A COPS entry (Exhibit 13) indicated that a DHS staff member reported to police that the father said "I might as well kill myself than deal with the child support issues, none of your internal processes can stop me from killing myself".  Police summoned an ambulance and the father was taken to X Hospital for a mental health assessment.

16. In May 2018 the father's car was parked outside the children's school for approximately nine days.  The mother took photos of the car, which contained signs with notes addressed to the children.  The mother deposed that the father's car was removed only after intervention by police officers.  The father told the single expert that Ms N convinced him to move the car, as she pointed out that the children may have felt uncomfortable with its continued presence outside their school.

Approach to these proceedings

1. In making a parenting order, the Court is governed by a determination of what arrangements are in the best interests of the child who is the subject of the proceedings.  Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out a number of mandatory considerations which prescribe the pathway to that decision. Section 60CC sets out two “primary” and several “additional” considerations, to which the Court must have regard in determining what orders are in a child’s best interests.

2. The Court must have regard to the objects of Part VII, as contained in section 60B(1) and the principles underlying those objects, as set out in section 60B(2).  Section 60B(3) makes particular provision for the right of an Aboriginal or Torres Strait Islander child to enjoy his or her culture.

3. Section 61DA requires the Court to apply a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility. This presumption does not apply if there are reasonable grounds for the Court to believe that a parent (or a person who lives with a parent) has engaged in abuse of the child (or another child who was a member of the parent’s household) or family violence. The presumption may be rebutted by evidence which satisfies the Court that it would not be in a child’s best interests for his or her parents to have equal shared parental responsibility.

4. If a parenting order provides for equal shared parental responsibility the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend equal time with each parent (section 65DAA(1)).  If there is no order for equal time, the Court must consider whether it is in the child’s best interests, and reasonably practicable, for him or her to spend “substantial and significant” time with each parent.  The concepts of “substantial and significant time” and “reasonable practicability” are defined in sections 65DAA(3), (4) and (5).  There is no temporal definition of “substantial and significant time”.

5. In MRR v GR (2010) 240 CLR 461 the High Court of Australia said:

   [8] Subsection (1) of s 65DAA is headed “Equal time” and provides:

   If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:

   (a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

   (b)consider whether the child spending equal time with each of the parents is reasonably practicable; and

   (c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

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

   (c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and

   (d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and

   (e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.

   Subsection (3) explains what is meant by the phrase “substantial and significant time”.

   [9]Each of subss (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. Subsection (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 subss (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”.

   …

   [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 (para (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (para (b)). It is only where both questions are answered in the affirmative that consideration may be given, under para (c), to the making of an order. The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist. If such a finding cannot be made, subss (2)(a) and (b) require that the prospect of the child spending substantial and significant time with each parent then be considered. That subsection follows the same structure as subs (1) and requires the same questions concerning the child’s best interests and reasonable practicability to be answered in the context of the child spending substantial and significant time with each parent.

   …

   [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. …

6. In Taylor & Barker (2007) 37 FamLR 461 the Full Court (per Bryant CJ and Finn J) considered the proper approach to cases which involve a proposal by one party to make a significant change to the place of residence of a child. Their Honours said, inter alia:

   (i)When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible:

   U v U (2002) 211 CLR 238; (2002) FLC 93-112 and Bolitho & Cohen(2005) 33 Fam LR 471; (2005) FLC 93-224 applied.

   (ii)There was no substance in the argument that the magistrate had erred in dealing with the issue of relocation and the reasons for it as a separate and determinative issue. A relocation proposal should continue to be considered and evaluated, so far as possible, in the context of the making of the necessary findings in relation to the relevant s 60CC matters; however, such a proposal now also needs to be considered in the context of s 65DAA. Given that the concept of the child’s best interests is the determinative factor in the application of so many of the provisions of Part VII, and given that s 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subs (2) (primary considerations) and subs (3) (additional considerations) of that section, it would seem only logical that the court make findings regarding the matters contained in those subsections (so far as they are relevant in a particular case) before attempting to apply any other provision in Part VII in which the determinative factor is the subject child’s best interests.

   …

   (v)The legislation gives no guidance as to the stage at which a court should commence a consideration of the relocation proposal, but if having found advantages in “substantial and significant time” (or for that matter in “equal time”), the magistrate had then turned to consider the “reasonable practicability” of such an arrangement, some assistance would have been gained from s 65DAA(5).  A consideration of these matters would have required the magistrate to evaluate the differing proposals of the mother and father and to consider whether “substantial and significant time” would be “reasonably practicable” if the mother were to relocate to Queensland.  This would seem to be a logical path to follow but as the legislation does not prescribe an order in which the relocation proposals are to be considered, it was not possible to conclude that the magistrate’s decision was incorrectly reached.

   (vi)The options of the child spending “equal time” or “substantial and significant time” with each parent must now be given separate and real consideration, notwithstanding that a relocation proposal may also have to be given subsequent consideration, with the advantages and disadvantages of that proposal then being balanced against the advantages and disadvantages of an “equal time” or “substantial and significant time” arrangement. Not to approach a case involving a relocation proposal in this way would devalue the imperative imposed by the Act to consider whether it is in the best interests of a child in a case to spend “equal time” or “substantial and significant time” with each parent.

The evidence and witnesses

1. The applicant mother relied upon the following affidavits:

   1.        Ms Sumey (the mother) sworn 1 March 2019 and 10 July 2019

   2.        Ms Y (the maternal grandmother) sworn 1 July 2017.

   The mother relied also upon a Financial Statement which she swore on 1 March 2019.  The mother and the maternal grandmother were cross-examined by the father and the ICL.

2. The respondent father relied upon the following affidavits:

   1.        Mr Sumey (the father) sworn on 30 July 2018 and 9 July 2019

   2.        Dr V (the father's GP) sworn on 8 July 2019.

   The father and Dr V were cross-examined by counsel for the mother and the ICL.  I had the assistance of a report by a single expert psychologist, Dr R.  The single expert also gave oral evidence by way of cross-examination by counsel for the mother, the father and the ICL.

3. The father's demeanour during his interview by Dr R was unfortunate, to say the least, and at one point caused her to become concerned for her safety.  The father swore frequently and became angry, agitated and elevated during the course of the interview process.

4. In his written submissions the father stated:

   I want to acknowledge that my demeanour was far from ideal in my meeting with Dr R, and I do regret this, but I want the Court to understand that I was broken.  At the time of the meeting, I had not had contact with my children for about 2 and a half years, and I had been advised by my lawyer at the time that the children would be there.  When I arrived at the interview and that was not the case, I was absolutely devastated and heartbroken.  I genuinely believe that her recommendations would have been vastly different had she had the opportunity to observe me with my children.

   (As per the original)

5. The father contended that the recommendations of Dr R "should not be followed" for the following reasons:

   ·her opinion was affected by "the voluminous amount of police intelligence documentation" and the mother's lengthy affidavit

   ·she placed "a lot of emphasis" on the "demeanour, manner and tone" of the father, from which she inferred that he "have bad parenting skills"

   ·she did not observe the father and the children together

   ·the recommendations were "unclear", "not practical in nature and setting the father up to fail"

   ·she did not consider the ages of the children "and their changing needs and wants”

6. In her oral evidence Dr R explained why she elected not to observe the children with the father.  She said words to the effect "... because of the two year time lapse it would effectively have been a reunion and this would be atypical.  The children had been through a lot and I did not want to introduce them if they would not see him for a long time.  I was concerned about his behaviour with me.  It was only a short time since the episode of the car outside the school.  For different reasons they were both concerned about their mother.

7. I accept that Dr R made a clinical judgment, having regard to the best interests of the children, that a reintroduction should not occur in the context of interviews for her report.  I accept entirely that this decision was in no way whatever attributable to any personal animosity of Dr R on account of the father's conduct toward her.

8. The father asked Dr R about the influence of the police documents upon the formulation of her opinions and assessments.  She said words to the effect:  "I think the police documents have influenced my opinions but I have read a lot of these documents and of themselves they do not prejudice me.  It was your non-compliance and anger when someone stops you."  I accept that Dr R was not "prejudiced" by this material, which was but one element of the information and observations upon which she based her opinions and assessments.

9. Otherwise, I do not accept that the report of Dr R should carry limited weight as contended by the father.  Her recommendations, with respect, do not determine the outcome of the proceedings.

10. Counsel for the mother and the father helpfully provided comprehensive written submissions.  The father's submissions contained in part his version of certain events which were not addressed in his affidavit evidence.  I have had regard to this material in the submissions of the father, while taking into account that these matters were not deposed to upon his oath or tested by way of cross-examination.

The best interests of the children: section 60CC considerations

Section 60CC(2) considerations

1. The children have spent no time nor communicated with the father for almost three years.  Both boys told Dr R that they would like to see the father but expressed reservations and concerns in relation to his past behaviour.

2. Dr R reported as follows, inter alia, in relation to her interview with C:

   104.I then asked C some questions about how he was coping with not seeing his father.  He became very emotional at this point of the interview.  He said on the one hand "It is hard not seeing your Dad".  He said or acknowledged that he missed his father but said "I'm worried about it because he could take us".  He said "I'm worried it could be dangerous".  He said he has been "disappointed" by his father speaking badly and doing silly things.  However, he also said "I kind of want to see him".  I asked C what he would tell his father if he could and he said "I miss you" and "start doing the right thing" and "you can't bribe me with money – I should just love you for your niceness".  At this point I noticed that C had tears in his eyes and was trying not to cry.

3. Dr R reported as follows, inter alia, in relation to her discussion with D:

   120.D told me the last time he saw his father was at C's birthday where there were lots of soccer things.  I asked D why he did not see his father anymore and he said "he has done a lot of bad things".  He said "he has choice and if he did the right thing he could see us ..."

4. Dr R reported further on in relation to her interview with D:

   121.D said repeatedly that he wanted his father to "do the right thing".  He said he would like to see his father but that his father "doesn't like doing the right thing".  I asked him to give me some examples of this and he said that his father used to speed in the car and he had to tell him to slow down ...

5. As noted above the mother sought orders which would result in the children spending no time with the father and limiting communication to one email per month, which she may elect to withhold from them in the her sole discretion.  Effectively, this proposal amounts to a continuation of the present arrangements and would not allow for a meaningful relationship of the children with the father.

6. The ICL did not support this proposal of the mother.  Dr R, on balance, considered that the children should have a form of relationship with the father.  She opined as follows:

   179.I have carefully considered whether it is appropriate to reintroduce the children to the father.  On the one hand, I remain very concerned about the father's parenting capacity and the degree to which he is likely to expose the children to things which are physically and psychologically damaging to them.  On the other hand, I think it is important that the children have some sort of relationship with their father so that they do not feel abandoned or do not develop a rather idealised image of their father.  On balance, I think it would be appropriate for a supervised reintroduction of the children to the father.

7. In her oral evidence Dr R expressed a view that the children would "be very sad" if they continue to spend no time with the father.  She said also that they would be likely to feel that "they were not enough" to motivate the father to moderate and regulate his behaviour such that they could enjoy time together.

Section 60CC(2)(b)

1. This subsection is of particular significance in the determination of these proceedings.  A pivotal issue is the need to protect the children from harm in the unsupervised care of the father.  I make no suggestion that the children would be at risk of abuse or neglect in the care of the father.  The evidence indicated that the children have been exposed to family violence between the father and his previous partner Ms E.

2. In my view, the risk to the children arises from the apparently problematic inability of the father to regulate or control his behaviour.  There was evidence of incidents which would indicate that the father on occasions has lacked impulse control and insight and has engaged in angry, aggressive behaviour toward other people.

3. Tendered in the case for the mother were a number of police reports ("COPS entries") in relation to the father, which spanned the period 2004 to 2018.  In my view considerable caution must be exercised in terms of the evidentiary weight which can properly be attached to these documents, because the contents were not given on oath by their authors and were untested by cross- examination.  In particular, I place no evidentiary weight upon entries in these documents which refer to "Intel" in relation to the father.

4. Notably, there were no police reports in evidence for the period between 2005 and 2013.  The father pointed out that the majority of these reports related to the times surrounding the breakdown of his relationship with Ms E, which he said was a very difficult and trying, emotional experience for him.  I do not doubt that the father was correct, as to the timing of these particular incidents, but the issue again is his ability to regulate his impulses in trying situations.

5. Nonetheless, I consider that some of the material contained in these COPS entries can be relied upon safely for present purposes.  I refer here to an apparent pattern of conduct by the father in the nature of his interactions with and blame of other people, including police officers, rather than acceptance of responsibility for his own actions.

6. Two of these COPS entries (Exhibits 9 and 14) relate to traffic infringements, with no suggestion of any inappropriate conduct toward police officers on the part of the father.  The COPS entry dated 30 April 2017 (Exhibit 15) simply recorded that the father surrendered his passport to police and entered into a bail undertaking.  I place little weight on this evidence.

7. The COPS entry of 15 September 2018 (Exhibit 12) appeared to concern a dispute arising from a contract for sale of a motor vehicle by the father to a third party.  This document recorded a threat allegedly made by the father to the other party to the contract but the conclusion was that "Police believe this is a civil matter".

8. It is my view that these four COPS entries hold little significance for present purposes.  Obviously, however, it is undesirable that the father has engaged in conduct which attracted the attention of police.

9. The first COPS entry (Exhibit 7) related to an incident on 20 November 2004, when a fracas occurred at a restaurant.  The contents of the documents suggested that the father directed violence at two police officers.

10. In her affidavit (para 40) the mother deposed "I believe [Mr Sumey] had been previously charged with 4 assaults, including assaulting a police officer".  In cross-examination by the father, the mother said "I was not aware of four assault charges, I knew about one when you were younger".  The mother told Dr R that she attended court with the father in relation to charges arising from this incident.

11. The father maintained, essentially, that he acted in self-defence during this incident.  He was asked about his police record by Dr R, who described his response in these terms:

    67.... I asked him whether he felt there was anything a reasonable person would be concerned about in his police record.  He said "not in relation to the children".  He said "what was I supposed to do – I'm in a club with friends – was I supposed to get stabbed in hospital and then make everyone see?"  He went on to say that he had been trained in Martial Arts to defend himself and he cannot see how this is of any concern of the Family Court.  He thought these were unrelated matters.  He then went on, in an extremely angry and elevated tone to say that "maybe this profile should have been put together before we got married".  He indicated that it is unfair for a Court or an expert to put him through this sort of scrutiny.

12. The COPS entry dated 23 December 2014 (Exhibit 17) recorded that the mother attended a police station and reported that the maternal grandmother had received a text message from the father.  The mother apparently told police officers that this message contained no threats and that she considered that the father had breached an AVO.  This entry recorded that police explained to the mother that the father had not breached the AVO but that a variation of the order could be sought so as to include the maternal grandmother.

13. The COPS entry dated 13 June 2016 concerned an incident when the father was stopped by a single police officer while driving in the Sydney CBD.  The document recorded that the father hit and pushed a police officer and disobeyed his instructions to terminate a phone call and sit on the ground.  This incident resulted in convictions of the father for drive a motor vehicle while not carrying a licence, disobey a no right turn sign and assault an officer in the execution of his duty (Exhibit 11).  The father received fines for these three convictions.

14. The father described this incident to Dr R, who reported as follows:

    66.I asked the father about the recorded event in June 2016 where the police record the father as driving dangerously and as being belligerent to the police to the extent that he had to be restrained with capsicum spray.  Again, the father was very agitated, he immediately denied that the police deployed capsicum spray on him.  He said, again, with great condescension that he had turned right on a no right- hand turn signal in the Sydney CBD.  He said at the time he was telephoning a friend and told his friend that he had been pulled over by the police.  He said that this allowed the police to escalate matters and the police officer had pulled out the capsicum spray and wanted to strip search him.  He said that the police officer had wanted him to kneel on the ground and he said "I'm not going to fucking sit there".  Mr Sumey said to me "it smelt like fucking urine and I refused to sit down."  He said other police came.  He repeated "I was not going to sit on the fucking urine".  Eventually, he told me, the police let him go.

15. A COPS entry dated 14 March 2016 related to an incident when the father was stopped by police while driving with the children in the breakdown lane of a major road.  The document recorded that the father exceeded the speed limit and that the police considered that he had placed himself, the children and other drivers in a dangerous situation.  The father claimed in his evidence that he was forced into the breakdown lane when another vehicle braked hard in front of him and that he had to force his way back onto the roadway.

16. Dr R spoke to the father about this incident.  She reported as follows:

    65.I asked the father about some of the more recent police events, including the recorded event in March 2016 when police charged the father with dangerous driving.  Again, Mr Sumey was very agitated and swore copiously.  He said, with great condescension that the police "pulled me over in the transit lane".  He said this had only happened because someone deployed their brakes in front of him.  I asked him whether he had a fight with the police officer and he told me he did not.  I asked him whether the children were involved and he said the police did not talk to the children.

17. D spoke to Dr R about this incident, in the context of his expressed wish that the father "would do the right thing".  Dr R reported as follows:

    121.... He said he can remember being pulled over by the police on one occasion and that "C talked to the police".  D said the police were nice to him but not nice to their father.  He said that he became very scared and laid down on the seat.  He said this occurred because "Dad was arguing back with them [the police]."  He said that his brother started "talking back to the police because Dad told him to".  He said he can recall his father and the police officer shouting and that his father said "listen to what my son has to say to you" and that C said "you are also shouting too [speaking to the police officer].

18. The COPS entry dated 9 December 2016 (Exhibit 16) concerned an AVO issued against the father for the protection of Ms E.  It appears that Ms E alleged that the father verbally abused her in obscene terms.  The document recorded that Ms E provided police with a copy of a voice message, in which the father could be heard directing obscene language at her.

19. Dr R attempted to ask questions of the father concerning this AVO for the protection of Ms E.  She reported as follows:

    67.I then asked the father some questions about the ADVO with his former partner Ms E.  At this point, Mr Sumey became very elevated to the extent that I became concerned about my own safety ...

20. Dr R reported further in relation to the AVO between the father and Ms E:

    68.Mr Sumey went on to say that Ms E had made serious allegations and "was caught out to be lying in the Court" ...  In any case it was his version of events that Ms E had manufactured or made up the allegations against him which had led to the interim ADVO.  He said that it became clear that Ms E had been lying to the Court and the charges had been dropped.

21. The father's criminal history (Exhibit 11) indicated that the father was charged with a contravention of ADVO as a result of these events.  This charge was dismissed after a defended hearing.  It would thus appear that the father correctly informed Dr R that this charge was dismissed after a hearing.

22. Two of the COPS entries concerned the incident in May 2018, when the father's car was parked outside the children's school for several days.  The entry dated 11 May 2018 recorded that the father denied to police that he had driven his car to the school and claimed that he had loaned the vehicle to a friend.

23. The father gave a different version of this incident to Dr R, who reported as follows:

    80.I then asked the father about his decision to park his car near the children's school in April 2018.  He said, again in loud and aggressive tones "because I have no fucking communication with the children".  He said "I want to see them" and "they are my kids".  He said he did not want the children to feel that he did not care about them and he knew that the car is something they enjoyed and he wanted them to know.  I asked the father if this could have been a negative thing for the children.  He said he thought it might have been negative because they would see the car and realise that they are unable to see him. 

24. C expressed concern to Dr R in relation to the father's anger.  He said that when his father became angry "he got really angry".  C then described an incident when his father and "Uncle W" were having a fight “where his father or uncle shoved the table over".  He said that he was very upset and that his father "took him, his brother, Ms E and the baby away".  C said that his paternal grandfather was crying during this incident and that Ms E comforted him and his brother after the altercation.

25. Both children described to Dr R confrontations and arguments between the father and Ms E.  C said "Dad and Ms E used to really fight".  He said it was horrible because they were “yelling or swearing" and he told Dr R that he took D to hide in their bedroom.

26. Dr R reported as follows as to D's account of the altercations between the father and Ms E:

    117.D said the most difficult thing after separation was "Dad and Ms E were fighting and C and I had to hide".  He said that it was quite scary and they had to hide down the side of his bed in the corner of the room.  He said he can recall his father and Ms E screaming and shouting at one another.  He said that during an argument "Dad dropped the baby off the bed".  At other times, he indicated that the baby was in the room whilst the fighting was occurring.  I asked him how often this happened and he said "it happened a lot".  He thought that Ms E was "nice".

1. C told Dr R that "Dad says swear words about Mum" and "Mum never says anything or anything bad about Dad".  He said "I feel really bad when he is talking about Mum" and "I love my Mum and my Dad."  C said that he worries "that dad would hurt mum because he has said some mean things about her."  D described to Dr R an incident when his father became angry and "had a shouting voice".

Section 60CC(3) considerations

Section 60CC(3)(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

1. I have referred above to the views expressed to Dr R by the children in relation to time with the father.  The boys also discussed their views concerning the proposed relocation to Town L.  C said "I don't really want to move because I would miss my friends" but, on the other hand, he said "I would accept it".  He commented life would be “cheaper" in Town L.

2. D told Dr R he felt "ok" about the move to Town L but commented that he felt a little nervous about making friends.  D said that he "was pretty good with moving" and commented "it takes about three or four weeks to get used to a new apartment or home."

Section 60CC(3)(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)

1. The mother has been the primary carer of the children since the parties' separation, when they were aged approximately seven and five years.  I accept the assessment of Dr R that "both children have a positive, close and secure attachment to the mother".

2. Both boys made comments to the single expert which would suggest that they have adopted a protective attitude toward the mother.  C expressed concern about her financial position and remarked that the mother has been required to sell jewellery to meet expenses.  As noted above, he said life would be “cheaper" in Town L.

3. D expressed concern in relation to the mother's levels of stress and said "she has to fit in a lot of stuff as a single parent".  He indicated that, when he sees signs of stress in the mother, he suggests that she "have a nap" or "offers her a glass of water."

4. Dr R was untroubled by this protective aspect to the children's relationship with the mother.  She opined as follows:

   148.Despite these sensitivities, I did not feel that the children were overwhelmed or burdened by their mother's emotions.  My observation of the children indicated that they felt free to contradict their mother, were developing normal challenging behaviours and did not display the sort of anxiety or contained behaviours that occur when children have become enmeshed with a parent or carer.

5. Dr R described the nature of the children's relationship with the father as "somewhat complex" and opined as follows:

   149....  Undoubtedly, both children love their father and may idolise some aspects of this behaviour or their experiences with him.  Subsequent to separation, when the children started spending regular weekend time with their father, they participated in a range of highly enjoyable activities.  It appears that the father doted on the children and provided them with attention, play and enjoyable experiences.  This has not been unnoticed by the children.

   150.However, it is also the case that the children have experienced their father as a volatile, angry and unpredictable.  They were exposed to the father's verbal aggression and violence in the relationship with Ms E and perhaps in other family relationships.  The children told me about the father's conflict with his extended family members and with other people, such as the police officer outlined above.  The children's accounts to their counsellor also indicate that they found the father to be emotionally taxing in his telephone calls to them, overly involving them in the dispute between their parents and verbally denigrating their mother.  The children's accounts to me indicated that they found this aspect of their father's behaviour to be emotionally overwhelming and disturbing.

6. In the opinion of Dr R, aspects of the father's recent behaviour have disturbed and distressed the children, for example his car being parked outside their school for several days.  C said that he found this incident to be "creepy" and "embarrassing" and that he was "disappointed" that the father had not changed his ways so "we could start doing stuff".  D said that this incident was "upsetting" and that he "got very scared that he was going to kidnap us again".

7. Both children spoke to Dr R about the incident when the father took them from their school.  C referred to this episode "spontaneously" and said that the father had “lied to him.  D said to Dr R that the father told him he had the permission of the principal to take the children out of school.  D said that he later discovered that the father had no permission to take him and C from school and that he thought "you foolish idiot" in relation to this behaviour.

Section 60CC(3)(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

1. In my view, there is no doubt that each of the parents has wished to participate in major long-term decisions in relation to the children and to spend time and communicate with them.  The children's time with the father was suspended after a positive urinalysis test, for which there would now appear to be an innocent explanation.

2. I accept the father has harboured a strong and genuine wish to spend time with the children, despite his absences from Australia since the parties' separation.  I accept that his regrettable actions in removing the children from school and parking his car outside those premises were driven by a powerful desire to spend time with the children.

3. In making these observations, I do not minimise the father's irresponsibility or lack of child focus in taking these actions.  I can only hope that he has reflected on these incidents and tried to appreciate the impact of his conduct upon the children.  In relation to his taking of the children from their school the father said:

   Looking back it was the worst thing I did but at the time I thought I had an entitlement to my children.

   With regard to the same incident the father said:

   I have learned from experience that when I took the children from the school I should have notified the mother and the school immediately.  It was at the height of the separation, I had no access to the children other than at the school.

Section 60CC(3)(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

1. The father accrued a debt for arrears of child support in the sum of approximately $105,000 as at 25 February 2019.  The father consented to the mother receiving this amount, plus arrears of spouse maintenance, from the monies held in the controlled monies account following the sale of the former matrimonial home.  Pursuant to orders made by consent on 2 May 2019, the mother effectively received the whole of the proceeds of sale of the former matrimonial home.

2. I accept the evidence of the mother, to the effect that she is unable to rely upon payments of child support by the father to meet the recurring expenses of herself and the children.  Exhibit MsS44 to the mother's affidavit demonstrated that the father made child support payments erratically between August 2014 and February 2019.  The mother deposed that the Child Support Agency took enforcement action, including a departure prohibition order, against the father from time to time.

3. In his written submissions, the father suggested that the interim order for spouse maintenance and the child support assessments combined to create financial difficulty for him.  I am conscious, however, that the father travelled overseas extensively at times when he paid no child support.  The fact remains that the mother largely was left to shoulder the burden of the day-to-day provision of financial security for the children, with the assistance of the maternal family.

Section 60CC(3)(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

1. The mother proposed a significant change in the children's circumstances, being a relocation from Sydney to Town L.  She deposed that she has an opportunity to work in her mother's homewares business in an expanded role in Town L.  The mother and the maternal grandmother both deposed that they wish to expand the business from its present on-line operation to a shopfront/showroom and warehouse model.  The mother deposed that she is in the process of qualification in design and intends to combine these skills with her role in the business of the maternal grandmother.

2. In her affidavit the maternal grandmother indicated that she intends to remain in Sydney for the first one to two years following the move of the business and then relocate permanently to Town L.  The mother deposed that the move to Town L would provide her with greater financial security, as she would be employed as a manager by her mother and also have an opportunity to establish her own business, once she completes the design course.  I have no reason to doubt the evidence of the mother and the maternal grandmother, to the effect that they have considered this plan carefully.

3. The mother gave evidence in her affidavit as to her enquiries concerning schools and the cost of rental accommodation in the Town L area.  The mother maintained that accommodation would be more affordable outside of Sydney.  She indicated that she has been required to borrow money from her parents and her mother's partner to meet her living expenses since the separation.

4. The mother proposed to move to Town L before C starts high school in 2020.  He will change schools at that point, regardless of a relocation, and there would be a disruption to his friendship group in any event.

5. The father strongly opposed the relocation of the children to Town L.  He used profane language and spoke very angrily to Dr R when discussing this issue.  He rejected completely the suggestion that continuing to live in Sydney would impose financial stress upon the mother.

6. The father addressed the relocation proposal more calmly and rationally in his written submissions.  He described the reasons for the relocation as "largely financial in nature" and suggested that the result would be instability for the children.  The father stated that another major reason for his opposition to the proposed move would be the separation from himself and his family.

7. The father appeared to criticise the mother for her four changes of accommodation since the separation.  It seems that he failed to take into account the impact of his erratic provision of financial support for the children on the mother's ability to maintain secure, long-term accommodation.  I have no reason to doubt the mother's evidence that:

   170.... I have struggled to locate affordable rental accommodation for me and the children in the Suburb Z area where the children currently go to school.  I have moved with the children to 4 different rental properties since the former matrimonial home was sold, as a result of the high rent prices and the nature of the Sydney rental market. ...

8. The orders sought by the ICL would alter the children's circumstances by an introduction of carefully managed communication between them and the father, followed by supervised face-to-face time.  This regime, which was based on recommendations by the single expert, was designed to reintroduce the children to the father in a way which would minimise the risk to them of disappointment and non-child focussed communications or behaviour on his part.

Section 60CC(3)(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

1. Obviously, the relocation to Town L would create difficulties of distance and expense in the children spending time with the father.  In answer to a question from the ICL, the mother said that she would bring the boys to Sydney for supervised time with the father if they moved to Town L.  In written submissions her counsel, however, indicated that supervised time should occur at Lismore.  This change apparently was based on Dr R's "preference" for supervised time to occur in the area of the home of the children.

2. The orders sought by the father would see an immediate introduction of time for the children, under the supervision of the paternal grandmother, each alternate weekend from Friday afternoon until Monday morning and every Thursday night.  The children would begin to spend time with the father during school holidays immediately, under the supervision of the paternal grandmother.  This supervision would continue for three months and, presumably, time would progress from that point without any restrictions or conditions.  There was no evidence as to the paternal grandmother as to her willingness or ability to take on the supervisory role.

Section 60CC(3)(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

1. In my view, the mother has demonstrated an admirable capacity to provide for the needs of the children.  She has fulfilled the role of primary carer, in challenging financial circumstances since the separation of the parties.  She has managed to accommodate the children so that they could remain at Suburb Z Public School.  Their 2019 mid-year reports (Exhibit 18) indicated that they are performing well academically and socially at school.

2. The capacity of the father provide for the needs of the children is a more problematic issue.  I referred above to incidents when, in my view, the father prioritised his needs over those of the children.  I am mindful particularly of the father's taking of the children from school and leaving his car parked outside those premises for several days.  I note that the father told Dr R that part of his motivation in taking the children from their school was "giving her [the mother] a taste of what she was doing to me".  I note also, however, that the father said that he has learned from past mistakes.

Section 60CC(3)(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

1. The father is of Middle Eastern background and belongs to a large extended family.  He has a strong and reasonable wish that the children become familiar with their cultural heritage.

Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents

1. The evidence indicated that the mother has an appropriate attitude to the children and her role as a parent.  I have no doubt that the father loves the children dearly but, at times, he has failed to prioritise their needs and best interests over his own wishes.  It is to be hoped that he no longer holds the view that he has "an entitlement to my children", as he expressed in the context of his taking of the children from their school.

Parental responsibility

1. The mother sought an order that she have sole parental responsibility for the children.  This proposal was supported by the ICL, subject to provision that the mother keep the father informed of significant matters in relation to the health and education of the children.  The father's Response set out his agreement to the mother's having sole parental responsibility but subject to four conditions relating to the children's place of residence, name, school and medical treatment.  In my view, the imposition of these conditions would amount to a situation of equal shared parental responsibility.

2. Section 61DA of the Family Law Act provides as follows:

   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.

   Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).

   (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.

3. In my view the presumption is rebutted in these proceedings by evidence that it would not be in the best interests of the children that the parties have equal shared parental responsibility.  The mother has a deep distrust of the father, which, in my assessment, is based on the reality of certain of his past actions and conduct.  In cross-examination the father said words to the effect of "I agree it is no surprise that [the mother] does not trust me".

4. In these circumstances, it seems to me to be most unlikely that the parents could consult with each other and make constructive decisions jointly concerning important issues in relation to the children.  I am mindful also that the children expressed concerns about aspects of the father's behaviour to the single expert.  For these reasons, I conclude that the father must establish to both the mother and the boys that he can behave consistently in a reliable and trustworthy manner.  In my view, this conclusion applies both to the allocation of parental responsibility and the method of reintroduction of the children to the father.

Conclusion

1. As there will be no order for equal shared parental responsibility I am not required to consider whether it would be in the best interests of the children, and reasonably practicable, that they spend equal or substantial and significant time with each of their mother and their father.  I am at liberty to determine directly what orders are in their best interests.

2. I am satisfied that an immediate resumption of unsupervised time for the children with the father carries a risk of psychological or emotional harm to them.  Significantly, the children themselves expressed to the single expert in clear terms that they both have concerns about the past behaviour of the father and as to how he may conduct himself in the future.  As I stated above, it seems to me that the father must earn the trust of the mother and the boys if they are to achieve again an appropriate relationship.

1. I propose to adopt substantially the proposals of the ICL with some modifications.  These proposed orders could be accommodated if the mother and the children live in Town L rather than Sydney.

2. I will make orders which permit the mother to relocate the children to Town L during the 2019/2020 Christmas school holidays.  I am satisfied that the mother has suffered financial stress since the separation of the parties and that there are good prospects that the relocation will alleviate this economic pressure.  I accept that the mother and the maternal grandmother have considered carefully the ramification of this plan and its likely impact upon the children.

3. I am satisfied that the boys have considered the implications for them of the proposed move and that they would accept and adjust to the relocation.  In my view they are likely to benefit from circumstances in which their primary carer is less stressed and in a more stable and secure financial situation.

4. An issue which then arises is whether time should occur at a contact centre in Northern New South Wales or Sydney.  There are disadvantages with each of these alternatives but, on balance, I conclude that more potential benefits attach to time at a contact centre in Sydney.  The mother indicated in her oral evidence that she would bring the boys to Sydney for time with the father at a contact centre.

5. Additionally, regular trips to Sydney would enable the boys to see their existing friends and both extended families.  Further, the orders proposed by the ICL include a framework for the children to form relationships with the father's wife and their baby.  In my view, it would be expensive and difficult for the father and his current nuclear family to travel to the Town L area.  The orders proposed by the ICL also allow for the father's son P to attend visits with the boys.  P lives in Sydney with his mother and similar difficulties would arise with his inclusion in visits.

6. I will not order that the father undergo hair follicle testing, as proposed by the ICL.  In my view, there was an innocent explanation for the father's positive test and urinalysis would suffice for present purposes.

7. I will make the order proposed by the ICL in relation to communication between the children and the father except as set out in the orders of the court.  This order is directed at the father and it is incumbent upon him to take whatever steps are available to him to prevent additional communication, in particular by social media.

8. I was somewhat troubled by the proposed restraint on the father being present during time for the children with the extended paternal family.  I am inclined to agree with the father that his absence would seem confusing and strange to the children.  On the other hand, I appreciate the dilemma that would arise if the children are seeing the extended paternal family but a terminating event has occurred which puts a halt to time with the father.  I do not wish to encourage further litigation but, perhaps, this scenario should be addressed if and when that should become necessary.

I certify that the preceding one-hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 6 September 2019.

Associate: 

Date:  6 September 2019