SWG & KAG

[2005] FamCA 115

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA AT SYDNEY	No. SYF3943 of 2003
IN THE MATTER OF	SWG Applicant Husband
AND	KAG Respondent Wife
Coram:	The Hon. Justice Rose
Dates of Hearing:	31 January 2005 & 1, 2 & 3 February 2005
Date of Judgment:	4 March 2005
Date of Orders:	4 March 2005

JUDGMENT OF THE HONOURABLE JUSTICE ROSE

Appearances:

INTRODUCTION

In these proceedings parenting orders are sought by each of the parties in respect of their two children in which each of the parties seeks a residence order in his/ her favour with a contact order in favour of the other party.
The applicant, who is the husband in the proceedings, seeks the orders as set forth in his Amended Application filed 27 January 2005. In substance, the contact order in favour of the wife that he seeks provides for her to have contact with the two children each alternate weekend, each Wednesday from after school until 7.00 pm, half of school holiday periods and certain other specified occasions and further that the wife collect and deliver the two children at the commencement and conclusion of all contact occasions.
The wife who is the respondent seeks parenting orders in accordance with her Response filed 15 July 2003. The contact order sought by her in favour of the husband in substance provides for him to have contact in one week from Thursday 5.00 pm until Monday 9.00 am, or as otherwise agreed, on an alternate week basis and in the intervening weeks from Thursday 5.00 pm until Friday 5.00 pm. In addition, contact is sought in favour of the husband for the first week of all school holiday periods commencing from January 2005 and otherwise on specified occasions. The wife had also sought an order that she deliver the two children to the husband at the commencement of contact and that he return them to her at the conclusion of contact.
The wife also sought property settlement orders in her Response. I was informed by counsel at the commencement of the hearing that orders were sought by consent in accordance with the document entitled “Terms of Settlement” annexed to the Case Outline document filed on behalf of the husband to be made contemporaneous with final residence orders. The document referred to by counsel has been marked by me as Exhibit X. It was agreed that I would be provided with a signed copy of the “Terms of Settlement”. It has not been received as yet. When it is received, I will proceed to make the property settlement orders to which I have referred.
The parties cohabited for a period of approximately 5 years which commenced in about January 1998 and continued until they finally separated in March 2003 under the same roof being the property "A" (“the former matrimonial home”). They have remained separated in those circumstances subject to complying with the interim orders made by consent on 16 December 2004 (“the interim consent orders”) to which subsequent reference will be made.
The parties married in September 1998. In the absence of other evidence or information, I infer that the marriage has not been dissolved.
The husband is 37 years of age. He is employed as a telecommunication technician.
The wife is 28 years of age and is engaged in home duties.
The two children are:-
(i)BKG 5 years of age having been born in 2000 (“BKG”).
(ii)HSG 3 years of age having been born in 2001 (“HSG”).
The two children reside with each of the parties in the former matrimonial home whereby one party or the other has sole occupancy of it pursuant to the interim consent orders.

PREVIOUS ORDERS

Relevant previous orders are as follows.
On 31 July 2003 interim parenting orders were made by consent which in substance provided for the two children to reside with each parent for differing periods in alternate weeks being either from 7.00 pm Sunday until Wednesday morning, or otherwise from 7.00 pm Friday until 7.00 pm Sunday with a further provision for parental care to one party or the other as designated from Wednesday after day care until Friday 7.00 pm. It is common ground that the arrangements reflected in those orders were not adhered to by the parties. Rather they continued to live in the former matrimonial home with the two children and did not distinguish between one or the other so far as parental care of the two children was concerned. That was in part due to a dispute regarding the commencement of operation of proposed property settlement orders otherwise agreed upon.
On 20 September 2004 interim orders were made for the attendance by each of the two children at kindergarten.
On 10 December 2004 orders were made dismissing the application of each of the parties for an order for exclusive occupancy of the former matrimonial home, the lodgement of terms of settlement pursuant to Rule 10.04(3), an injunction in relation to application for orders for property settlement, non-molestation and directions including the fixing of a date for the hearing of submissions in relation to a further parenting order regulating the times at which the two children may be absent from the former matrimonial home in the care of either of the parties.
On 16 December 2004 the interim consent orders were made.

PARENTING PROCEEDINGS

RELEVANT LEGAL PRINCIPLES PURSUANT TO THE FAMILY LAW ACT 1975
AS AMENDED (“THE ACT”)

Section 65E of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:

“A Court must regard the best interests of the child as the paramount consideration.”

For the purpose of determining what is in the child’s best interests I am required to identify and apply each of the relevant paragraphs in section 68F(2). In the course of doing so, I should also consider the matters in section 60B, which set out the Object of the provisions of the Act in relation to the child and the principles that underlie that Object. They include the right to know and be cared for by both parents, a child’s right of regular contact with both parents and any other significant people insofar as his/her care, welfare and development are concerned, the parents sharing duties and responsibilities in relation to the same and agreement amongst parents relating to future parenting. All of those matters are to serve the Object of the child receiving adequate and proper parenting so that s/he might achieve full potential and parents fulfilling their duties and carrying out their responsibilities in relation to care, welfare and development of their child.[1]
[1] B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the child, the subject of these proceedings.[2]
[2] B and B, ibid
In carrying out my task it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of the proceedings.[3]
[3] B and B, ibid

RELEVANT MATTERS PURSUANT TO SECTION 68F(2)

I make the following findings in relation to relevant matters pursuant to the provisions of section 68F(2) which I am required to take into account for the purpose of determining the best interests of the two children.

The children’s wishes and relevant factors

Given the very young ages of the two children it is not surprising that there is no direct evidence of their wishes.
However, due to the loving and close relationship between the two children and each of the parties to which I will subsequently refer, it is implicit that each of the two children has a wish to spend substantial time in the care of each of the parties.

The relationship of the children with each of the parties and other persons

There is no dispute that each of the two children has a loving and close relationship with each of the parties. Independent evidence in relation to this matter as well as other relevant matters was given by Court Counsellor (“the Court Counsellor”) as set forth in the Family Report which became Exhibit 1, as well as orally. I accept the totality of her evidence in relation to the question of relationships as well as all other matters with which she dealt, as Exhibit 1 and her oral evidence was provided professionally and sensitively. It was consistent throughout.
In Exhibit 1 the Court Counsellor observed that the two children were at ease with each of the parties, despite different parenting styles and the atmosphere of intense conflict that has existed between the parties and which pervaded their care of the two children.
It is also not disputed that the two children have a close and fond relationship with the paternal grandparents and the maternal grandfather. Each of them gave affidavit and oral evidence. No contrary view was suggested to any or them or indeed either of the parties.

The likely effect of any changes in the circumstances of each of the children including separation from either of the parties

The two children have lived with the parties in the former matrimonial home since the parties separated in March 2003 subject to the interim consent orders which provided for sole occupancy by one or other of the parties for certain defined periods.
It is common ground that they will soon establish and lead separate households with the husband remaining in the former matrimonial home and the wife leaving to occupy a unit that they have both owned but which will be shortly transferred to the wife.
The two children will then benefit from a reduction in the conflict between the parties which has been a feature on a daily basis from at least since about the middle of 2002. Should the two children reside predominantly with the wife, they will then have the parent who was the primary carer of them for most of the period from their birth until the parties separated under the same roof in March 2003. However, there is likely to be an adverse effect due to the findings that I make in relation to the husband’s allegations that the wife has engaged in behaviour which amounts to child abuse. The matters relevant to that issue are subsequently dealt with by me.
In the event of the two children residing predominantly with the husband, they will benefit from a more relaxed parenting style but he will require assistance from time to time in their care, to be provided by his parents. The children have a fond and close relationship with them. Residence with the husband will entail continuing to reside in the home.

The practical difficulty and expenses of the children having contact with a parent and subsequent consequences

It is agreed between the parties that the husband will have transferred to him the wife’s interest in the former matrimonial home, subject to other terms and conditions, by way of property settlement. The wife for her part will vacate the former matrimonial home and occupy S unit (“the S unit”). In that regard, a transfer will be made to her of his interest in the S unit. No submission was made that those consequences will lead to any significant practical difficulty and expense so far as contact is concerned. Accordingly, on the evidence before me it is an irrelevant matter.

The capacity of each party or other person to provide for the needs of each of the children including their emotional and intellectual needs

It is not disputed that the husband has the capacity to provide for the physical and intellectual needs of the two children. Historically, the husband has taken the opportunity for overtime work in his occupation as a telecommunications technician. That has involved him at times working late at night and/ or the early hours of the morning with occasional work on weekends. His evidence, which I accept, is that he has done so largely prior to separation and subsequent to separation during periods when the wife was in the home or when the children have not been in his care. He claims that he will be able to manage his finances without that degree of overtime as it is voluntary in any case and he will take advantage of it only when his parents can assist in the care of the two children or when they are in the care of the wife. He impressed me as a sincere man who would not jeopardise the care of the two children for the sake of overtime work. Accordingly, I accept his evidence and make findings that reflect it.
I find that he also has the capacity to provide for the emotional needs of the two children, subject to the concern expressed by the Court Counsellor in Exhibit 1 "about his capacity to set adequate boundaries. He appears to be overcompensating for what he considers to be the [wife's] punitive attitude towards the children". He also inappropriately sought to involve the children in the decision regarding with whom of the parties they would leave at the conclusion of the Court Counsellor’s interview. That was obviously inappropriate in the circumstances as described in Exhibit 1, paragraph 31. In addition, there have been incidents of conflict between the parties in which the husband has also played an active role in the power struggle between them, which with the benefit of hindsight both he and the wife are likely to regard their actions as having been the cause of unnecessary stress for the two children. With the finalisation of litigation and the parties being on the eve of establishing separate households, the problems to which I have adverted are likely to be ameliorated.
I find that the wife has the capacity to provide for the intellectual needs of the two children. So far as the children’s physical and emotional needs are concerned, other than the physical environment that can be provided, I find that the wife’s capacity is seriously qualified in view of my findings that she has engaged wittingly or otherwise in child abuse. I appreciate that the wife has been experiencing much stress due to the conflict between the husband and her, heightened by them both continuing to live in the former matrimonial home with the undoubted anxiety of the litigation between them. I also consider that due to the wife’s medical history of environmental depression which required medication to be prescribed for her several years ago and again in about August 2004, that her ability to handle stress has been adversely affected. The manifestation of stress and pressure could be reflected in part in the unacceptable behaviour by her towards the children and to the husband in their presence to which I have referred. Nonetheless, regardless of the underlying causes, there are serious doubts as to her capacity at least at the present and in the short term, if not in the foreseeable future, in being able to so conduct herself as to promote a healthy and positive interaction with the two children that satisfies their needs both physically and emotionally. Her actions in the discipline of the children whether by physical chastisement, verbal abuse or threats, demonstrate that she has serious problems that need immediate professional attention and assistance as otherwise the children’s health will be affected and she will be unable to provide the quality of parenting that they require. Her conduct in that regard is not ameliorated by the periods during which she has given love and attention to the two children.
The wife's general practitioner gave evidence that he has provided her with a referral to a psychiatrist. I have no evidence as to whether or not that referral was acted upon by the wife, let alone a diagnosis, treatment, therapy and a prognosis that may have been provided by that psychiatrist. Indeed, in his evidence he stated that should the allegations of child abuse be established, then the wife should consult a psychiatrist.
The maturity, sex and background of the two children and any other relevant characteristics
Although not specifically dealt with in Exhibit 1, it is reasonable to infer that the two children have the maturity commensurate with their age and gender.
However, the Court Counsellor was of the view that BKG is "a shy, reserved child who shows some separation anxiety from both parents throughout the day. She quickly settled with the playroom attendant once the parents were no longer present".
Whilst the Court Counsellor was of the view that HSG "presented as an active and curious boy who seemed more at ease with himself than did his sister". Nonetheless, her opinion was that the children had "fragile emotional states, especially [BKG]".

The need to protect the two children from physical or psychological harm which may be caused by being subjected or exposed to abuse, ill treatment, violence or other behaviour and/ or exposure to such conduct directed towards another person

This matter represents one of the principal issues for determination in the proceedings. Its prominence is allied with the capacity of each parent to provide for the emotional needs of the two children and in the case of the wife, their physical needs.
At the forefront of the husband’s case is that since about mid-2002, the wife has behaved to the two children, especially HSG, in ways that amount to child abuse. In his primary affidavit, the husband has provided detailed allegations of the following conduct of the wife:

32.1 Berating one or both of the two children by using foul language.
32.2 Threatening to leave [him] at a shopping centre and come home.
32.3Physically abusing [him] for not eating a meal.
32.4Using foul language to describe the husband as well as his manner of relating to the two children.
32.5Using foul language in the description of and her reference to the children.
32.6Putting [him] outside the front of the house without clothes and leaving him there very upset.
32.7During an outing on a boat with friends threatening to put the children overboard.
32.8Threatening and physically chastising one or other of the children for not going to the toilet.
32.9Threatening [her] with taking her to the top of the street and leaving her there.
32.10Seeking to alienate the two children against the husband by blaming him for them having to attend kindergarten.
32.11Using foul language to describe a neighbour who had previously developed with her husband a close relationship with the parties and the two children including regularly furnishing them with cooked meals.
32.12Using derogatory or foul language to describe the husband when the wife refers to him to or in the presence of the two children.

The wife denied generally the allegations. However, she did concede that she has occasionally referred to the two children as “little shits” and has used foul language to the husband. The wife also conceded that she has used obscenities at the children when children have been screaming but that these incidents have not been a regular occurrence.
The paternal grandfather acknowledged that he has heard the wife refer to the two children as “little shits” and he has on a number of occasions asked her to stop addressing them in that way.
The husband was cross-examined in relation to his allegations. He denied any fabrication or exaggeration. He stated that he had kept a diary of the matters set forth in his primary affidavit which was available at the Court. No further challenge was made to his evidence by reference to that diary or otherwise.
The husband’s case in relation to aspects of these matters was corroborated by his parents and neighbours. Their evidence was tested in part on the basis that they were in effect neighbours who should have been minding their own business and were substantially on the lookout for incidents to report by peering through the window of their bedroom. As one neighbour described it, he could not help be attracted to the incidents in the former matrimonial home due to hearing a child screaming, sometimes “endless screaming”, the use of loud foul language by the wife and a door opening or slamming. In addition, he had a distinct recollection of HSG being left outside the front door of the former matrimonial home in the manner to which I have earlier referred and the wife describing HSG as a “filthy little bastard”. I found both neighbours to be sincere and truthful witnesses who were genuinely disturbed by the wife’s conduct, especially against a background where they had become friendly and caring neighbours including the provision of meals to the household, care and loving attention to the two children.

Some further corroboration for the husband’s case is found in the affidavits of other neighbours. Their affidavits were plausible. They were not required for cross-examination. I accept their evidence.
In relation to the boat incident to which I have referred, the owner of the boat who was present at the time of the alleged conduct by the wife, AR was called to give evidence on behalf of the husband. He provided a detailed statement which became Exhibit 10. It corroborated the evidence of the husband. He was cross-examined. He did not resile from the substance of Exhibit 10. He appeared to me to be embarrassed at having to give evidence in a case involving the parties and seemed to be genuinely offended by a suggestion that his evidence was not true. He impressed me as an honest witness whose evidence was not shaken as to its essential features. I accept his evidence which corroborates the evidence of the husband.
Allegations of child abuse are serious matters for obvious reasons. This is especially so with very young children who are emotionally vulnerable. It matters not whether the alleged perpetrator is a man or a woman. The civil standard of proof applies, although being satisfied that it has been made out requires me to proceed with caution.[4] However, I am satisfied on the balance of probabilities that the wife has indeed behaved to and/ or in the presence of the two children in the manner alleged by the husband as I have accepted his evidence and that of his corroborating witnesses.
[4] Section 140(2) Evidence Act 1995 (Cth)
I accept the evidence of the Court Counsellor that the manner in which the wife referred to the two children and previously stated and conceded by her is "very damaging of children’s self-esteem and that the early years of the life of a child are integral and essential to building that self-esteem". In addition, the Counsellor emphasised that children are “forgiving” and can still have a loving and affectionate relationship with a parent who has engaged in significant levels of abuse towards them.
The husband has also alleged that the wife has absented herself from the former matrimonial home on many occasions from Friday evening for one or two nights, including the intervening daytime and that the periods involved have well exceeded any intention that she has expressed, no message received from her except at times very belatedly and no contact with the two children. Typical occasions have been the wife announcing that she was going out with her girlfriend or girlfriends to a club or other places. This of course, must be seen in the context that the parties’ relationship had been deteriorating badly since at least during 2002, ultimately leading to their separation under the same roof in March 2003. It is understandable that the wife has sought to escape from the tense home atmosphere which arose in those circumstances, especially when there was acrimony between the parties. However, it is a question of degree in the circumstances. Especially when the two children were obviously dependent upon her presence to some extent let alone the additional aggravation that was involved.
It subsequently emerged that the wife has been involved in an intimate relationship with her current friend AB since early 2003. No doubt that was a factor involved. The husband’s evidence was not departed from in any significant way on this issue. The wife’s evidence was less convincing. I accept the evidence of the husband corroborated in part by JW and make findings accordingly.

The parental attitude of the parties

Each of the parties love the children and I accept are concerned with their best interests. However, so far as the wife is concerned, that attitude is compromised by her propensity for the child abuse to which I have earlier referred.

The preference for an order least likely to lead to the institution of further proceedings in relation to the two children

Due to the high level of conflict that has existed between the parties for a considerable time, I have concluded that one parenting order as opposed to another so far as residence and/ or contact is concerned will not meet the object of this particular matter. Even allowing for the fact that they will soon no longer live together in the former matrimonial home, it is difficult to see how one order as opposed to another will promote more harmony between the parties and a level of constructive communication to further the interests of the two children with less likelihood of further proceedings. There has been some glimmer of hope as during the hearing they both attended the first day of school for BKG, apparently without incident.

CONCLUSION

I have determined that it is in the best interests of the two children for them to reside primarily with the husband for the following reasons.
Whilst each of the parties has a loving relationship with the two children, the more relaxed parenting style of the husband, as opposed to the stricter approach of the wife and her propensity for periods of child abuse the subject of my previous findings, are important matters which I have taken into account. In that regard, I have given considerable weight to the recommendation of the Court Counsellor in Exhibit 1. That:
“One of the important considerations for the Court in this matter in determining final arrangements for the children is which parent is least likely to expose the children to on-going duress once the separation is clear.”
In addition, the two children will have the benefit of the stability that the home provides for their continued occupation in circumstances where the proposed consent orders for property settlement[5] provides for the wife’s interest in the home to be transferred to the husband on certain terms and conditions. That matter is especially important as the two children will have to accustom themselves to changes that flow from the separate households that will be established by the parties and different premises that will be occupied by the wife on an indefinite if not permanent basis, being the S unit.
[5] Exhibit Z
The husband will be able to be capably assisted by the paternal grandparents in the care of the two children when required. They live nearby. They have a close and fond relationship with the two children and have been accustomed to providing assistance in their care over several years.
The conduct of the wife whereby on the one hand she has shown herself to be a loving and attentive parent and on the other engaged in child abuse represented largely by emotional abuse, has demonstrated to me that she is a person very much in need of professional assistance from a psychiatrist or other appropriate health professional. As has been emphasised by the Court Counsellor, children are able to have a loving relationship with a parent who at times abuses them. Those matters raise a dilemma which cannot be completely resolved by a Court. A consideration is that a child should not reside or have contact with a parent or other person who has been found to have engaged in child abuse or whose past actions represent an unacceptable risk of abuse occurring, other than perhaps on a supervised basis. On the other hand, these two children who are very young, need to have parenting provided by the wife in circumstances in which supervision realistically cannot take place other than perhaps at a contact centre which was not an issue that was raised in these proceedings. Consequently, there is an ongoing risk of child abuse by the wife should she be in a mood or reacting to circumstances which lead her to act in an uncontrolled fashion. No contact with her, even for a relatively short time may by itself amount to child abuse due to the emotional need that the children have to be in her care beyond a token period.
Unfortunately, it is not possible for me to so structure orders and control the way the wife deals with her problems so as to provide a perfect solution. I consider that it is in the best interests of the two children that there be a residence order in favour of the wife substantially in terms of that sought by the husband so as to maintain the two children’s relationship with her in a substantial way in all the circumstances given that they will reside primarily with the husband. I derive some reassurance from the proposal that the wife will reside with the maternal grandfather pending the availability of the S unit for her occupation which will not occur until 2005 on the information that I have been given by the solicitors for the parties. That has been as a consequence of the notice that was required to be given to the tenant of the S unit. The maternal grandfather impressed me as a person who loved and was very concerned with the welfare of the two children and gave his evidence in a frank fashion, including some matters which may have been seen by others not to be in the interest of the wife so far as the litigation is concerned. It may assist him to help and support her by being more fully informed of the contentions made by the husband in respect of the wife’s behaviour by him reading the husband’s primary affidavit sworn 22 September 2004 rather than relying upon a selective version which may have been provided to him by the wife. I will make a suitable order for that purpose and also to enable him to read a copy of the Judgment.
I consider that it is in the best interests of the two children that the periods of residence with the wife continue to be spent in the former matrimonial home, notwithstanding the inconvenience that that may cause to the parties. That is a secondary consideration compared to the children’s best interests. At least since the interim consent orders, the children have had the benefit of continued stability by the familiar surroundings of the home, regardless of the parent who was caring for them. The number of changes that they must be accustomed to needs to be minimised where possible in all the circumstances. Consequently, I will make an order that in effect continues the substance of the interim consent orders until such time as the S unit is available for occupation by the wife. That will mean that the husband will have to vacate the home as he has been doing since the interim consent orders to enable the wife to live there with the two children during the relevant residence periods.
It is obvious to me that the sooner the wife commences to receive professional assistance in controlling her abusive behaviour, not only to the children but avoiding the foul language which she has been prone to use to the husband whether in the presence or hearing of the two children or not, the better it will be for both her and as a consequence the two children. For that purpose I will make orders in relation to the enrolment and completion of an appropriate anger management course.
The parties' ability to communicate with each other in a constructive fashion needs to be enhanced as soon as possible. Should that be able to be achieved, then that can only be for the benefit of the two children. Due to the ages of the two children, the parties have many years in front of them when it will be necessary to make arrangements to deal with the changes in the activities and needs of the two children as they become older. An appropriate counselling course can only assist in that regard.
I will make an order which enables the arrangements between the parties pursuant to parenting orders otherwise made to be altered should they so agree. As I have previously observed, it is inevitable that flexibility, sensitivity and some common sense be applied from time to time to meet changes in the needs and requirements of the two children which will arise as they become older and due to school, sport and extra-curricular activities. They need to feel free to make those arrangements. Hopefully in doing so they will realise that it is not a matter of counting every day an hour spent by the two children with one party as opposed to the other.
An issue between the parties related to the kindergarten to be attended by HSG this year due to the animosity that had developed between the wife and staff of the kindergarten attended by the two children last year. That animosity is unlikely to be overcome regardless of where the fault lay. It is in the best interests of HSG that each of the parties be able to be relaxed in approaching a kindergarten staff member to enquire about and otherwise make arrangements concerning HSG. Whilst I have taken into account that there is much benefit in HSG continuing at the kindergarten he attended last year, including the daily interaction with cousins, I have concluded that his best interests are better served in him attending another kindergarten as that should alleviate the tension to which he will be indirectly exposed so far as the wife and staff are concerned. The parties will be free to decide otherwise should they be so minded.

ORDERS

I make the following orders:-
1.That the children of the marriage BSG born in 2000 and HSG born in 2001 reside with the husband subject to the residence order in favour of the wife AND that the parties shall note the obligations created by this Order and the other parenting Orders made this day AND the consequences which may follow if a party or person contravenes any of such orders set forth in the attached Annexures A and B.
2.That the two children otherwise reside with the wife as follows:-
(a)During school term each alternate weekend from after school/ kindergarten until before school/ kindergarten Monday morning or on the Tuesday morning if it is a long weekend and the first occasion of such weekend residence shall commence on Friday 11 March 2005.
(b)During school term each Wednesday from after school until the commencement of school or kindergarten the next day and from after school/ kindergarten until 7 pm on the Monday in the week in which weekend residence does not occur.
(c)For one half of each of the children’s school holidays as agreed between the parties but in the absence of agreement as to which half then the second half of each school holiday period in 2005 and each alternate year thereafter and the first half of each school holiday period in 2006 and each alternate year thereafter and subject to order 3(d) hereunder.
(d)From 4 pm Christmas Eve until 4 pm Christmas Day in 2005 and each alternate year thereafter providing however that the husband shall have contact with the children from 4 pm Christmas Eve until 4 pm Christmas Day in 2006 and each alternate year thereafter.
(e)From 9 am until 5 pm on Mother’s Day should Mother’s Day not fall on a contact weekend.
(f)Should Father’s Day fall on a contact weekend then the wife’s contact with the children shall cease at 9 am on Father’s Day.
(g)By telephone any day at reasonable times.
(h)For such substituted and/ or alternative and/ or further periods as the parties may agree upon.
3.The wife will collect and deliver the children at the commencement and conclusion of weekend and mid-week contact and on other contact occasions the wife shall collect the children at the commencement of contact and the husband shall collect the children at the conclusion of each contact period except in respect of Order 2(d) above when the husband shall collect the children at the commencement of his Christmas Eve contact.
4.That each of the parties shall have the sole responsibility for the day to day care, welfare and development of the two children whilst they reside with him or her respectively.
5.That the parties enrol the youngest child in the IPS or such other pre-school as they agree upon in writing at the earliest possible date and they shall ensure that he continues to attend that pre-school until such time as he is able to be enrolled in the same school as BKG.
6.That each of the parties ensures that the other party is promptly notified of any serious illness or injury suffered by either of the two children including the name, address and telephone number of the relevant hospital or medical practitioner.
7.That the husband authorise the principal of all kindergartens, pre-schools and schools attend by the two children to furnish the wife with copies of all reports and relevant notices and correspondence in relation to all school, sport and other extra-curricular activities pertaining to the two children.
8.That the parties have the joint responsibility for the long term care, welfare and development of the two children.
9.That neither party denigrate the other and/ or any of his/ her relatives to or in the presence or hearing of the two children or either of them and each of the parties shall use his or her best endeavours to ensure that not other person conducts himself or herself in that fashion.
10.That on or before 18 March 2005 the wife enrol in an anger management course conducted by a qualified psychologist or counsellor and that she proceed to complete such course within the next six months and further that she provide to the husband written details of such course and her completion of it immediately upon her enrolment and subsequently following completion of the course.
11.That on or before 18 March 2005 the parties or their solicitors attend upon the Manager, Mediation Services of the Sydney Registry to obtain her recommendation of a suitable “parenting after separation” course for the parties and that each of them proceed to take part in and complete such course within the next six months and shall provide to the other as soon as possible written details of his/ her enrolment and completion of that course.
12.That the wife may exercise residence with the two children exclusively in the home at "A" pending the availability for occupation by her of the S unit.
13.That copies of the affidavit sworn by the husband on 22 September 2004 and this Judgment may be provided by the parties to any health professional that either consults or attends and also to the maternal grandfather.
14.Liberty to apply to set aside, vary or suspend all or any of the Orders made this day upon 7 days written notice being given.

15.That all documents produced on subpoena may be returned to the person who produced the same.
16.That the proceedings be removed from the Active Pending Cases List.

I certify that the preceding 63 paragraphs
are a true copy of the reasons for judgment
delivered by the Hon. Justice Rose

……………………………..
Associate

ANNEXURE A

Specific Issues Order
1.1These orders include a specific issues order made under the Family Law Act 1975. That order deals with an aspect of parental responsibility for a child, other than the person or persons with whom the child is to live, contact between the child and another person or other persons, and maintenance of the child.
1.2While the specific issues order is in force, and if the specific issues order confers responsibility on a person (the carer) for the child’s long-term or day-to-day care, welfare and development, a person bound by the order must not hinder the carer in, or prevent the carer from discharging that responsibility.

Residence Order

2.1These orders include a residence order made under the Family Law Act 1975. The residence order deals with the person or persons with whom a child may live.

2.2        A person bound by the order must not, contrary to the order:
2.2.1        remove the child from the care of a person; or
2.2.2        refuse or fail to deliver or return the child to a person; or
2.2.3interfere with the exercise or performance of any of the powers, duties or responsibilities that a person has under the order.

Contact Order

3.1These orders include a contact order made under the Family Law Act 1975. That order deals with contact between a child and another person or other persons.

3.2 A person bound by the order must not, contrary to the order:
3.2.1hinder or prevent a person and a child from having contact in accordance with the order; or
3.2.2interfere with the contact that a person and the child are supposed to have with each other under the order.

If a person contravenes the order without reasonable excuse, a court may, on application:

4.1issue a recovery order authorising police officers to recover the child and to deliver the child:

4.1.1in the case of a specific issues order, to a person who has a specific issues order in relation to the child; or

4.1.2in the case of a residence order, to a person with whom the child lives; or

4.1.3in the case of a contact order, to a person with whom the child is to have contact.

4.2        order the person to attend a post-separation parenting program;
4.3        in the case of a contact order, make a compensatory contact order;
4.4        require the person to enter into a bond;
4.5        fine the person up to a maximum of $6,600;
4.6        make a community service order against the person;
4.7        imprison the person for a maximum of 12 months;
4.8        vary the order that was contravened.

ANNEXURE B

Penalties for
breaking parenting orders

The Government has made new laws to ensure that court orders and registered agreements about children, such as parenting plans, are not being broken.
The new laws seek to:

ninform separated parents about their responsibilities when an order or registered parenting plan about their children is made
nimprove communication and help resolve conflict between separated parents through attendance at parenting programs
ninform separated parents that they face a penalty if they break an order or registered parenting plan about their children

This page is relevant if the court has made an order about your children, a parenting plan has been registered, or you have been given advice or help with the making of a parenting plan, that affects your parental obligations in some way. Once a parenting plan is registered it has the same effect as an order.
On this page the word order includes a registered parenting plan.
This page explains what will happen if you break an order about children (known as a parenting order).
The steps outlined below apply only to orders about children. For example, they do not apply to orders about property.
This page sets out:

nyour legal obligations and how to get help to avoid breaking a parenting order.
nthe penalties you face if you break a parenting order.

Parenting orders

Parenting orders (including registered parenting plans) can cover:

who the children live with, including any shared arrangements (this is called a residence order)
contact setting out the times the children have contact with a parent, if they are not living with them, or contact with anyone else who plays an important part in their life (this is called a contact order)
financial support for a child usually this is done through the Child Support Agency, however when a child support assessment cannot be made (such as when a couple separated before 1 October 1989 and all their children were born before that date) an order called a child maintenance order can be made
any other matter covering the care, welfare and development of a child such as religion, education, sport, change of name and other issues (this is called a specific issues order).

Your legal obligations

You must do everything that the parenting order says.
The order remains in force until a new parenting order or registered parenting plan changes it in some way.
Even if your circumstances, or those of your children or former partner change, the first court order continues to apply to you until it is formally changed in writing by the Court.
You must continue to do what the parenting order says until the Court formally changes it.
Sometimes people talk to each other about making an ongoing change to arrangements set out in a parenting order. These talks do not change the order.
If you both agree to change the arrangements you can ask the Court to change the parenting order. You do this by applying for a consent order. (If you have a registered parenting plan you change it by applying to revoke the original plan and registering a new one). Registry staff can give you the forms you need. Although you can apply yourself, you may benefit from the help of a lawyer.
If you want to change the parenting order or registered parenting plan and your former partner will not agree, you may need to seek help from the Courts Mediation Service or other counselling or mediation organisation. If you still cannot agree you can apply to the Court to alter the original order. Again, registry staff can give you the forms you need. The Law Society in your State or Territory can put you in contact with a lawyer specialising in family law or you may be able to receive some free advice from a community legal centre or Legal Aid.

Penalties for breaking a parenting order

You must attend a court hearing if your former partner makes a formal application alleging that you have broken a parenting order.
If it is the first time such a complaint has been made and the Court finds you have broken the parenting order without reasonable excuse, the Court must do one or more of the following:

norder you to attend a parenting program the organisation running the program will assess if it is suitable for you
nmake another parenting order to compensate your former partner for any contact time with the children lost as a result of your actions
ndelay (adjourn) the court action to allow either or both of you to apply for a further parenting order that cancels or changes the original order
nchange the parenting order that has been broken.

Even if it is the first time, if your behaviour also shows serious disregard for the parenting order, the court must give the appropriate penalty.
Anyone who shows serious disregard for a parenting order faces the same range of penalties as a person who has broken a parenting order before and does so again without reasonable excuse.
In both these cases, if the Court decides it is not appropriate for you to go to a parenting program, it must order you to do one or more of the following:

nwork in community service
nlodge a bond
npay a fine of up to $6600
ngo to gaol for up to 12 months.

Attendance at Court

If you do not attend the hearing orders may be made in your absence, including an order for your arrest.
You can attend in person or ask a lawyer to represent you. If distance or travel is a problem you can make arrangements with the Court before hand to give evidence by telephone or videolink. Registry staff can tell you how to arrange this. They will also be able to tell you the forms you will need to respond to the allegation.

Parenting programs

The Attorney-General is preparing a list of organisations that run approved programs aimed at reducing conflict between separated parents and helping you to understand your parental responsibilities.

When do you have to attend a parenting program?

If the Court orders you to attend a parenting program you must enrol with one of the organisations on the list. If there is no program being run within a reasonable distance from your home or work then you must still contact the organisation nearest to you on the list so that it can make arrangements for your attendance. If you fail to go to a program as ordered without reasonable excuse you may be dealt with by the Court for breaking a parenting order. The penalties for this are listed above.

Locating missing children and adults involved in family law cases

If you break an order or registered agreement about children and you cannot be found, the Court may make a location order that requires another person or organisation to give any information they have about where you and your children may be.
If you break a court order or registered agreement by failing to return children as required, the Court may make a recovery order. This is an order issued to the Family Court Marshal or Federal or State police to find the children and to search any vehicle, vessel, aircraft or any other premises, where the children may be found.
Anyone who tries to stop the police or marshal from finding the children, or hinders them in some way to prevent the children being found, may face arrest or other penalties.

Further information and legal advice

If you have any questions about the steps outlined in this brochure ask Court staff for help. Court staff cannot give legal advice. If you have any legal questions you should talk to a lawyer. The Law Society in your State or Territory can give you the names of lawyers specialising in family law. You may also be able to get free legal advice from a community legal centre or Legal Aid.

Maximum penalties

Penalties are subject to change from time to time. The penalties on this page are correct as of January 2001.

[2005] FamCA 115

4 March 2005

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Duty of Care

Negligence

Natural Justice

Procedural Fairness