Tilmund & Tilmund
[2023] FedCFamC1F 637
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tilmund & Tilmund [2023] FedCFamC1F 637
File number(s): LEC 78 of 2015 Judgment of: BAUMANN J Date of judgment: 4 August 2023 Catchwords: FAMILY LAW – PARENTING – Where after two days of evidence at a final hearing the parties contended for interim orders to be made – Interim orders made Legislation: Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA Cases cited: Hall & Hall (1979) FLC 90-713 Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 26 – 28 July 2023 Place: Brisbane Counsel for the Applicant: Mr P Smart Solicitor for the Applicant: Paul Denmeade & Co Counsel for the Respondent: Mrs R Bassano Solicitor for the Respondent: Legal Aid New South Wales Counsel for the Independent Children's Lawyer: Ms K Carmody Solicitor for the Independent Children's Lawyer: Ms Fletcher, Universal Law ORDERS
LEC 78 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TILMUND
Applicant
AND: MS TILMUND
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BAUMANN J
DATE OF ORDER:
4 AUGUST 2023
THE COURT ORDERS UNTIL FURTHER ORDER:
1.That all previous parenting Orders and parenting plans be discharged.
2.That the mother have sole parental responsibility for the child, V born 2008, and will consult with the father in writing about long term decisions to be made in the exercise of her sole parental responsibility as follows:
(a)she shall inform the father about the decision to be made;
(b)she shall consult with the father on terms they agree; and
(c)she shall inform the father of the decision she has made in a timely manner.
3.That except as otherwise stated, the parents have equal shared parental responsibility for the major long term issues of the children, W born 2009, X born 2011, Y born 2012 and Z born 2014 (collectively “the children”).
4.That the parents are to consult with each other in writing about decisions to be made in the exercise of their equal shared parental responsibility as follows:
(a)The parent who is of the view that a decision is required with respect to one or all of the children shall inform the other parent about the decision to be made and their views as to the decision well in advance of the date upon which the decision has to be made;
(b)the other parent shall respond within fourteen (14) days with their view as to the decision to be made; and
(c)they shall make a genuine effort to come to a joint decision.
5.That V and the children shall live with the mother.
6.That V shall spend time and communicate with the father subject to V’s wishes.
7.That the mother shall encourage V to spend time with her father and to communicate with her father by text messaging, and shall ensure V has the father’s mobile phone number and/or details of other messaging apps that the father and V could use to communicate with each other.
8.That W shall spend time with the father at the same time as X, Y and Z subject to W’s wishes, with the mother to encourage W to spend time with father.
9.That until the commencement of term four (4) 2023:
(a)X shall spend time with the father:
(i)from 2.00pm Friday, 18 August 2023 to 5.00pm Saturday, 19 August 2023;
(ii)from 2.00pm Friday, 1 September 2023 to 5.00pm Sunday, 3 September 2023 (Father’s Day);
(iii)from 2.00pm Friday, 15 September 2023 to 5.00pm Sunday, 17 September 2023; and
(iv)for school holidays from 10.00am Thursday, 28 September 2023 to 4.00pm Monday, 2 October 2023.
(b)Y and Z shall spend time with the father:
(i)from after school Friday, 18 August 2023 to 5.00pm Sunday, 20 August 2023;
(ii)from after school Friday, 1 September 2023 to 5.00pm Sunday, 3 September 2023 (Father’s Day);
(iii)from after school Friday, 15 September 2023 to 5.00pm Sunday, 17 September 2023; and
(iv)for school holidays from 10.00am Thursday, 28 September 2023 to 4.00pm Monday, 2 October 2023.
10.That from the weekend commencing Friday, 13 October 2023:
(a)X shall spend time with the father from 2.00pm Friday, 13 October 2023 to 9.00am Monday, 16 October 2023 and each alternate weekend; and
(b)Y and Z shall spend time with the father from after school Friday to before school Monday and each alternate weekend.
11.That to give effect to these Orders, changeovers shall occur:
(a)for X, at B Shopping Centre, or other public place agreed in writing between the parents; and
(b)For Z, Y and W (if he elects to attend), at their schools with the father to collect Y and Z from their schools before collecting W from his school and on non‑school days as per Order 12(a) hereof.
12.That the father shall ensure he is available to spend time with the children when they are in his care and shall not take the children to his place of work while he is working.
13.That unless otherwise agreed, the children’s schooling shall be as follows:
(a)V shall be enrolled in home-schooling through NESA;
(b)The parents shall make all relevant enquires to enable them to effect an enrolment for X at D School for 2024 (subject to the school accepting the enrolment) and keep each other informed in relation to the process, and otherwise X will remain enrolled with C School and if the enrolment at D School cannot occur in 2024 the mother will be at liberty to enrol X in Distance Education or home school X through NESA;
(c)W will remain enrolled with E School; and
(d)Y and Z will remain enrolled with C School.
14.That the mother and/or the father shall use their best endeavours to ensure all of the children in their care attend school, and in the event a child will not be attending school on a particular day, shall forthwith advise the school and the other parent of that fact and the reason for the child’s non-attendance.
15.That the parents shall communicate by way of the Talking Parents App or other agreed parenting app including using the calendar in the app to keep each other informed of any medical and allied health appointments and other appointments and extra-curricular activities the children engage in.
16.That the children shall be at liberty to communicate with their parents by phone call, FaceTime or SMS messaging at any reasonable time and the parents shall ensure the children have access to the other parent’s phone number and a phone or device to communicate with them on.
17.That the father shall be at liberty to contact the children by phone/FaceTime to the mother’s mobile phone each Wednesday and each non-contact Sunday between 5.00pm and 6.00pm, with each of the children to be given the opportunity to speak with the father individually if they wish, and all calls shall be in private, unrecorded and uninterrupted by the mother.
18.That the mother and father shall:
(a)keep each other informed at all times of their residential address and contact telephone number;
(b)keep each other informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children;
(c)inform each other as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent; and
(d)keep each other informed of the dates and times for any specialist appointments for the children.
19.That the parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost).
20.That during the time the children are with either parent, that parent shall:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)speak of the other parent respectfully; and
(c)not denigrate or insult the other parent in the presence or hearing of the children and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
21.That neither parent use physical discipline on the children nor allow a third party to physically discipline the children.
22.That the parents shall follow the recommendations of each of the children’s treating medical and allied health practitioners and maintain any prescribed medication.
23.That the mother will permit the children taking their electronic devices to the father’s home when spending time with him, and the father shall ensure the devices return with the children to the mother’s home.
24.That the parents shall facilitate the children attending upon the Independent Children’s Lawyer so as to allow the Independent Children’s Lawyer to explain these Orders to the children before 18 August 2023.
25.That the Independent Children’s Lawyer have liberty to re-list on short notice.
26.That these proceedings be adjourned for Case Management Hearing at 9.30am on 6 December 2023 in the Federal Circuit and Family Court of Australia (Division 1) at Brisbane.
27.That all parties and their legal representatives have leave to appear by telephone on 6 December 2023 by using the Microsoft Teams conferencing system as follows:
(a)They shall click the below link (if accessing this Order electronically) to join the Microsoft Teams conferencing system, by 9.25am on 6 December 2023; or
(b)They shall each telephone … by 9.25am on 6 December 2023;
(c)They shall each then enter the pass code …#; and
(d)Hold the line until the Court is ready to connect and proceed with the matter.
28.That by no later than 4.00pm on 22 November 2022, the parties shall file and serve a minute of the final orders they seek.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tilmund & Tilmund has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BAUMANN J:
At the conclusion of two days of evidence, and with a third option raised by the Court of making an interim order, rather than a final order, the parties in final submissions identified variations to future interim parenting arrangements, where many issues were agreed.
I was greatly assisted in this matter by the parties’ Counsel – Mr Smart for the Applicant father Mr Tilmund (42 years of age); Mrs Bassano for the Respondent mother Ms Tilmund (40 years of age) and Ms Carmody for the Independent Children’s Lawyer (“the ICL”).
In view of the broad agreements reached, rather than analysing all the evidence heard, and with a view to supporting the parents’ hope that the new arrangements which will operate will be the foundation for sustainable long term orders in the best interest of the five children of this union, I have elected to provide Reasons in a shorter form that might otherwise be necessary – accepting of course that it may be required to provide further Reasons at a later date if these interim orders do not lead, as is hoped, to final consent orders at a future date.
BRIEF CONTEXTUAL HISTORY
The parties were in their mid-twenties when they married in 2007, and within 18 months were blessed with the birth of their first child V (born 2008), followed in quick succession by W (born 2009); X (born 2011); Y (born 2012) and Z (born 2014).
When the parties separated in December 2014, the said children were aged six, five, three, two and under one respectively.
On 27 April 2015, the parties entered into final Orders in respect of property and parenting issues, however I am satisfied that the Orders for parenting, which made arrangements for the children to live with the mother but to spend significant and substantial time with the father, were not complied with at all times.
Even after two days of evidence, the exact particulars of non-compliance; the reasons why they occurred and the reasons why the father really did nothing about it for six and a half years is not entirely clear. What is clear however, is that by late 2019, tensions between the parties particularly arising from the children’s poor school attendance, had caused increased conflict, including an incident in late 2019, when it is alleged that the father “grabbed” W whilst, he says, he was trying to assist the mother to get W to school. Police were notified.
In October 2020, a report from the children’s school was sent to the Department (Exhibit 4) and when in June 2021, the school advised the father that W had missed a whole term of school, the father offered to the mother that W and X (at least) temporarily live with him so he could ensure the boys got into a routine of going to school.
I find that the mother, who rejected the father’s offer, felt somewhat threatened by the father’s proposals and his criticisms of her parenting (often delivered in blunt terms) which then caused Police to commence apprehended violence proceedings against the father in mid-2021.
The father regarded the commencement of these proceedings – in circumstances where he has consistently said that he has never been violent towards the mother or the children – as an affront. Furthermore, the temporary Apprehend Violence Order, he felt, limited the opportunity to spend time with the children. I sense through a combination of feelings of concern and frustration, the father commenced proceedings in November 2021 seeking orders that all children live with him.
From the time proceedings were commenced, a number of interim orders in the case management pathway were made by Registrars – some by consent. Confusingly, after Orders for the father to spend unsupervised time were made, in December 2021, Orders for the children’s time with the father to be supervised at F Contact Centre were made on 25 May 2022. Exhibit 8 are the notes of supervised visits which occurred between June 2022 and January 2023. The notes speak for themselves. The mother was frequently late; not all children attended on every visit – but when they did, the children’s engagement with the father was both affectionate and engaging.
A critical event was the scheduled family report interviews with Court Child Expert Ms G on 14 November 2022. The report writer, who was the subject of cross-examination during the hearing, acknowledged a limitation in that V, X and Z declined to be interviewed (see Exhibit 17). All children were observed with the mother (paragraphs 102 to 104) and all children (save for V) were observed with the father (paragraphs 105 to 110). The family report dated 16 December 2022 was released on 20 December 2022 – and contained concerning and, particularly for the mother, confronting opinions.
So concerned was Ms G about the significant unexplained absences of the children attending school, and the “trajectory” that such failures suggested for the children’s education and social development, that not only did Ms G feel obligated (as a mandatory reporter) to report the circumstances to the Department of Child Safety, Seniors and Disability Services (“the Department”), the report writer recommended that a change of primary residence be considered for one or more of the children. It is clear, and the cross-examination of Ms G clarified, that the two main reasons why a change of residence should be considered in the opinion of the expert were:
(a)the mother’s inability to ensure the children were consistently attending school; and
(b)a concern that the mother does not demonstrate support, by actions and words, for the children’s relationship with the father.
Although the Court is not bound to accept the opinions of the Court Child Expert (see Hall & Hall (1979) FLC 90-713), the report when published seemed in some ways to have been a catalyst for some changes in that:
(a)on 13 February 2023 and then on 5 April 2023, a Senior Judicial Registrar removed the requirement for supervision of the father’s time and unsupervised time was ordered including in the later Order, overnight time;
(b)the school attendance for W, Y and Z has shown a remarkable improvement for the 2023 school year (see Exhibit 13);
(c)the mother has identified what appears to be an excellent school option for X for the 2024 school year – D School (see Exhibit 12); and
(d)sadly, despite a change in the place for supervised changeovers, the children spending time with their father under the Orders of 5 April 2023 has been mixed (see Exhibit 10). The mother exhibited a poor understanding of how her conduct at changeovers might encourage the children to express a “reluctance” to go with their father, as was recently demonstrated by the chaos that occurred on Saturday 22 July 2023; and
(e)after the proceedings were transferred to Division 1 on 5 April 2023, so concerned was I with the opinions expressed in the family report, that I expedited a final hearing to commence on 26 July 2023. I appreciate that, in effect with the trial dates allocated at a Case Management Hearing held by telephone only on 5 June 2023, time available to prepare for trial was short. This seems, to some extent, to have led to some gaps in the evidence offered to the Court, but ultimately I was satisfied the legal representatives (including retained Counsel) were able to proceed in a fair way.
PRINCIPLES
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s 60B of the Family Law Act1975 (Cth) and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s 60CC(2) and the additional considerations under s 60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the children.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s 61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
THE CHILDREN
At paragraphs 50 to 59 of the family report, Ms G recorded what the mother told her were some of the diagnoses’, personality traits and characteristics of the five children which I incorporate in these reasons now:
50.In relation to [V] the mother said [V] has Autism Spectrum Disorder […], and selective mutism. [V] is in receipt of NDIS funding. The mother advised [V] does not currently attend school, though she is enrolled at [H School], due to “refusing”.
51.[V] last spoke at school when she was 3-4 years of age; and has not spoken outside of the family for approximately the past three years. On the last occasion [V] spoke to a nonfamily member it was to her treating psychologist, who initially rewarded [V] with sweets for repeating a word before being able to encourage [V] to respond, during a conversation. The mother advised [V] refused to attend, shortly thereafter.
52.Other than school, [V] is scheduled to attend speech therapy, but has “avoided” the last two sessions. The mother said [V] does not participate in any other activity or attend on any other therapist, as [V] is “overwhelmed, resists engagement, she’s at the threshold”. The mother said she was “not sure why” [V] was feeling “overwhelmed”, but that recently [V] had also started to “refuse spending time with [Ms J]”. [Ms J] is a NDIS funded support worker for [V] who has supported [V] for approximately three years (also present at the assessment). The mother reports [V] has “never” spoken to [Ms J]. The mother said “sometimes” [V] will be “quiet” with the mother, but usually speaks within the family. The mother said she does not know why [V] has not spent time with the father for the past two years, approximately.
53.The mother said whilst [W] has no diagnosed disability or diagnosed health concern, there are “various reasons” as to why [W] does not attend school. The reasons include [W] being “sensitive” to noise; “worried” about the mother and his siblings; has “difficulty making friends” and has “high anxiety”.
54.[W] is not enrolled in any school due to his “aggression and mental health”. The mother believes [W’s] aggression and decline in mental health is a result of “interactions” with the father. The mother said [W] has “meltdowns daily”, and is “aggressive” with the mother. Approximately 12 months ago [W] was reported to “kick” in the mother’s car window screen, as a result of the mother encouraging [W] to go to school.
55.The mother said [X] has been diagnosed with ASD […], and also “refuses” to attend school. The mother said [X] will “bite and punch” the mother, if she tries to “force” [X] to attend school. The mother said [X] “jumped on the car roof, a lot” between 2015 and “up until last year”, at the thought of attending school or spending time with the father.
56.The mother said [X] has “quirks, and everything else that comes with that”, in relation to his ASD […] diagnosis. When asked to explain [X’s] “quirks” the mother commenced talking about [X’s] noise sensitivity, tactile issues and “not verbally speaking”, before entering into explicit detail about the impact of ASD on a person’s functioning. According to the mother [X] is significantly impacted by ASD […], in all aspects of his functioning.
57.[X] attends an Occupational Therapist fortnightly. However, the mother said [X] only attends when the mother and all the children attend with him.
58.[Y] also “refuses” to attend school, however, the mother advised of no concerns for [Y’s] health and wellbeing, and described [Y] as a “very creative” child. The mother believes [Y] does not attend school due to [Y] being a “shy, timid child”, who “cries a lot” at the thought of attending school. The mother thought [Y] finds it “hard to make friends” at school, and does not like the noise of a school setting. The mother said [Y] has not wanted to spend time with the father on the last two occasions of supervised time, though she was unsure of [Y’s] reasons.
59.In relation to [Z] the mother holds no concerns in regards to his health and wellbeing. The mother thought [Z] is “refusing” to attend school due to “mimicking the others”. The mother said, in regards to trying to take [Z] to school, if she attempts to “physically pick up [Z], the other children fight me”. The mother believes [Z] experiences “high” separation anxiety, when away from the mother.
Although the Court has much more collateral information than was afforded to the expert writer (as she acknowledged), the general descriptions in the family report are accurate. I am satisfied that despite the mother having provided some information to the father about some of the children’s treatment and challenges in 2020 and 2021 (see Exhibit 7), the reports attached to the mother’s trial affidavit gave more details than the father has previously received. It is disappointing that despite the original final parenting Orders in 2015 providing for the parents to have equal shared parental responsibility, that the poor and ineffective communication between the mother and father has meant the father’s knowledge of his children’s challenges (particularly V and X with their individual diagnosis of ASD) was deficient.
In my view, the two days of evidence may well have caused both of these parents to reflect on the needs of all their children more realistically and without the prism of looking at issues from their own perspective entirely, being:
(a)the father who feels he has been marginalised from the lives of the children and unable to support and assist them in reaching their potential; and
(b)the mother who has carried the day to day responsibilities, since separation now nearly nine years ago, of caring for the five children with the behavioural and medical challenges many of them present. My sense is, at times that the mother has been overwhelmed but now feels the father’s “attacks” upon her are not deserved and unfair where, from her perspective, he has not appreciated the difficulties involved with the care of these five children and has not always been supportive. In this regard, some confusing evidence of how the father’s child support arrears of over $50,000 accumulated only caused the mother to feel unsupported financially (see Exhibits 1, 2 and 3)
With all that has passed before the final hearing, I give credit to the parties (no doubt assisted by the independent legal advice they received) in adopting the Court’s option of an interim order and as the proposals discussed next identify, reducing for the Court’s determination at this stage the issues in dispute to being, essentially, how the children’s unsupervised time with the father should be structured.
I give credit to the father, not I sense without some degree of trepidation, in accepting on an interim basis that:
(a)that the children should all continue to live with the mother;
(b)that the father’s time with V should be in accordance with her wishes; and
(c)that changeovers should now move from a supervised venue (such as K Counselling or F Contact Centre) to either school or an agreed public location at B Shopping Centre.
These interim concessions are quite different to his proposals as contained within his case outline filed 25 July 2023.
Before moving to a discussion of the issues in dispute, I make the following further observations:
(a)The parents separated in December 2014. As a result and considering the oldest child V’s development issues, none of the children could really recall their parents parenting under the same roof. These parents are very different, and not surprisingly parent differently, and I find:
(i)the father is much more structured in his parenting style. He does not, and has not, always picked up the emotional needs of the children, and firmly believes in routine and consequences for poor behaviour. He is frustrated by the mother’s parenting style; and
(ii)the mother is much more passive in her approach to parenting; sets more flexible boundaries and is highly emotionally attuned to the childrens’ emotional presentation. She finds the father’s quite different style, and his communication style, at times so robust as to feel intimidated;
(iii)Neither parent’s parental capacity is compromised by mental illness; excessive use of illicit substances or chronic family and domestic violence. They are both good parents who have much to offer their children individually – however the history demonstrates a difficulty to “co-parent”, and whatever levels of trust and mutual respect as might have existed at separation, have clearly waned since then.
(b)In determining the issues in dispute at this time I note that:
(i)the matter will return to my list on 6 December 2023, and at least 14 days before that date the parties will be required to exchange a minute of the final orders that they seek – covering the end of term four 2023 school holidays, Christmas arrangements and arrangements for the 2024 school year and beyond. As a result, the orders I now make do not cover those periods;
(ii)I will not further detail all of the relevant primary and additional considerations below, but do rely on earlier findings made above. My focus is on what I find, on the evidence I have heard, is in the best interests of the five children both individually and collectively; and
(iii)without tempting fate, but with an eye to the problems encountered in the recent past, the ICL will have liberty to relist before me if she feels, after discussing the issue with the parties, a critical issue in the best interests of one or all of the children has arisen which cannot wait until December 2023.
DISCUSSION OF THE COMPETING INTERIM PROPOSALS
When final submissions began on Friday 28 July 2023, the ICL tendered a proposed minute (Exhibit 18); the mother tendered a proposed minute (Exhibit 19) and the father’s Counsel spoke about his client’s proposal (using the ICL’s minute as a template). On the evening of 28 July 2023, the solicitor for the father emailed to the Court, the father’s proposed minute of order (which has been marked Exhibit 20). Based on these minutes and the oral submissions received, I find that the orders set out at the commencement of these Reasons are in the children’s best interests at this time. They are based on the ICL’s form of minute with the following variations:
(a)In the circumstances where no evidence about any risks associated with the father’s brother Mr L was led by the mother, the restraint set out at order 17 made 5 April 2023 should not continue;
(b)The parties agreed that they should exercise equal shared parental responsibility for the children, save for V. The ICL and the mother propose the mother have sole parental responsibility for major issues but with an obligation to consult the father. I agree at this time, and where the mother has a full understanding of V’s needs, that is in the child’s best interests;
(c)The parties agree that all children shall continue to live with the mother;
(d)Whilst the father does not seek any prescribed orders for V, he did propose “reconnection” therapy for V and the father. The ICL adopted the mother’s cautious approach, that with the child undertaking visits with so many consultants and therapists at this point in her life, further therapy should wait until (hopefully) the orders now made effect a continuous routine of contact visits which may be all V needs (with the mother’s support) to initiate time with her father. I agree with this cautious approach;
(e)All parties agree that Y and Z should spend prescribed time (although for different lengths); the father seeks all four children should be subject to prescribed orders; the ICL seeks prescribed orders for X, Z and Y with W to spend time “subject to [W’s] wishes”; the mother agrees with the ICL. W is now 14 years of age. If V does not attend visits and W also chose not to go, I anticipate (as has occurred in the past) that the younger three siblings might show reluctance. However, as W is now attending school regularly, I think it is more likely he will attend of his own choice. Bearing in mind his age and propensity for aggressively acting out his feelings, I intend to adopt the ICL’s proposal for W with a slight amendment to proposed order 10;
(f)It is not in the best interests of X, Y and Z to “empower” them in the same way as V and W – although I agree allowing X to spend less time initially might be appropriate. The orders that I pronounce seek to balance the need to have some prescription whilst not setting up for failure the arrangements, in a hope a solid base will be created and further, that W will attend from the start or shortly thereafter. It is in V’s best interests that she also attend but encouraging her to do so, or worse forcing her to do so, must be handled sensitively. I have a view that the mother may better understand the benefits for V to be included in the sibship arrangements, rather than to perpetuate her isolation;
(g)Where changeovers can occur at school, they should do so – for W, Y and Z. As it seems unlikely X will be attending school now until the 2024 school year, changeovers for him should occur at the B Shopping Centre, where other non-school day changeovers should also occur;
(h)I find it in the best interests of X, Y and Z to progress time fairly quickly and quicker than the mother’s proposal. Orders for some extended school holiday time are made, as well as for Father’s Day 2023. My hope is that for the end of term four 2023 school holidays, greater opportunities for the children to spend time with their father will be agreed. This will become apparent when the matter returns to my list on 6 December 2023;
(i)I am conscious of the father’s work obligations, although from the evidence his three sources of current income have a degree of flexibility. I was concerned by the father’s evidence that he felt it was appropriate for the children to go to his place of work around 6.00am because they “liked” doing so. If they are keen on going to such a facility, he should find a later opportunity to do so and one where he is able to devote his attention to the children, rather than work. As a result, I incorporate a provision restraining him from taking the children to his place of work when he is working;
(j)Some evidence was adduced about the children’s use of and access to technology and particularly the interest W (allegedly now in the past) and X have in gaming. I accept the use and access to technology and all the good and bad aspects of that use, is a modern day issue for most parents. Clearly balancing time for a range of both indoor/outdoor and quiet/physical adventures suits the development of most children. At this stage, I do not propose to create some sort of “arbitrary” limits on use of devices – leaving it to each parent to manage use when the children are with them. I agree with the father’s proposed order 13 that the children not be prevented from taking devices to the father’s home. In short, devices should accompany the children – however if a parent uses the children’s access to devices whilst in the other parent’s home, as an opportunity to interrupt that time, other orders may be required in the future;
(k)On this basis, and considering the physical time orders made, I have prescribed when the father can telephone the children when in the mother’s care – with such communication to be in private and uninterrupted. I accept it is difficult (maybe impossible) to shape an order for children to speak with the father in a way where they have a separate and individual space to talk – however telephone/FaceTime is really only subsidiary to physical time and becomes less important for children of their ages, if regular physical time is occurring;
(l)Although some of the father’s “specific issues” orders, from his perspective, might seem reasonable (for example returning clean school uniforms; attending school on time etc.), I do not wish to make orders at this which could be used as a basis for new applications. I do not ignore the father’s concerns, some of which have a foundation on the evidence. Simply, I seek to give the mother (in particular) an opportunity to demonstrate to the father she has taken on some of his concerns; listened to all the evidence and is able to do better in the future. Her greater success in achieving more consistent school attendance (albeit with the assistance of people from the “M Services” group) is very pleasing;
(m)The routine ordered permits alternate weekends with each parent. This allows the mother to have some respite, whilst further allowing the father to create new activities on the weekend to enjoy with the children. I could certainly envisage, if these interim arrangements progress well, extending the time the children spend with their father beyond the Monday before school. I would still have concerns whether it is in the best interests of the children and reasonably practicable for even some of the children to spend equal time – even though both parents identified that possibility as an alternate to their final orders at the commencement of the hearing.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann. Associate:
Dated: 4 August 2023
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