Tirrell and Harmony

[2019] FamCA 163

FAMILY COURT OF AUSTRALIA

TIRRELL & HARMONY [2019] FamCA 163

FAMILY LAW – CHILDREN – where the father seeks orders for the child to spend time with him against the expressed wishes of the child – where the child has not spent any significant time with the father since 2016 – where the Court gives significant weight to the family report writer’s recommendations – where the Court finds the father presents as an unacceptable risk of emotional harm to the child – where the Court finds the father does not present as an unacceptable risk of harm of sexual or physical abuse to the child – orders made for any time between the child and the father to be initiated by the child.

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

Goode & Goode (2006) FLC 93-286

APPLICANT: Mr Tirrell

RESPONDENT: Ms Harmony

FILE NUMBER: SYC 1630 of 2017

DATE DELIVERED: 22 March 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Baumann J

HEARING DATE: 20, 21, 22 and 23 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms A Murphy

SOLICITOR FOR THE APPLICANT: Swifte Law

COUNSEL FOR THE RESPONDENT: Mr C Sperling

SOLICITOR FOR THE RESPONDENT: Legal Aid New South Wales

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms M Falloon

INDEPENDENT CHILDREN’S LAWYER: Kathryn Renshall Lawyers

Orders

1. That all previous orders with respect to B born … 2007 (“the child”) are hereby discharged.

2. That the mother shall have sole parental responsibility for the child.

3. That the child shall live with the mother.

4. That the father shall keep the mother informed of his residential address; his email address and his contact telephone number and advise in writing of any changes within fourteen (14) days.

5. That provided the father complies with order 4, the mother shall:

   (a)keep the father advised of the child’s residential address and the mother’s email address;

   (b)advise the father of any significant health issue arising for the child and the intended treatment plan;

   (c)provide the father with copies of the child’s school reports and his school photographs on a six (6) monthly basis;

   (d)if the child’s schooling arrangements change, advise the father about the change including the name and address of a new school;

   (e)give the father notice of any intention to relocate the child’s primary residence; and

   (f)give the father notice of any proposal for the child to travel overseas.

6. That the father may send to the mother’s address cards, photos and gifts for the child to mark significant dates such as the child’s birthday, Christmas and Easter.  The mother shall encourage the child to recognise the father’s birthday, Father’s Day and Christmas by sending a card or gift to the father.

7. That the mother shall use her best endeavours to maintain the child’s relationships with members of his paternal family, including but not limited to the child’s aunt Ms C.

8. That if the child expresses a wish to spend time with his father or communicate with his father, the mother shall do all things reasonably necessary on her part to facilitate such time or communication.

9. That the father may attend school functions, sporting event and extra-curricular activities in which the child is participating, but only if the child expresses a wish for the father to attend.

10. That the mother shall make arrangements for the child to have confidential non-reportable counselling with a suitably qualified therapist, to continue for as long as the therapist recommends.

11. That the mother shall provide to the therapist chosen pursuant to Order 10 with copies of:

    (a)the family report prepared by Ms D; and

    (b)these final orders; and

    (c)Reasons for Judgment delivered 22 March 2019.

12. That the father may provide the documents referred to in order 11 to Mr E of the Hospital.

13. That the mother shall use her best endeavours to restrict Mr F Harmony from interfering in any request by the child to communicate with or meet his father.

14. That the mother shall arrange for B to meet the Independent Children’s Lawyer as soon as is mutually convenient following the making of these final orders.

15. That upon compliance with Order 14, the Independent Children’s Lawyer shall be discharged, with leave granted to the Independent Children’s Lawyer to make any application for costs, in the following way:

    (a)Any application for costs is to be by written submissions filed and served within one (1) month from the date of these Orders;

    (b)The mother and father shall each file and serve any written submissions in response within two (2) months; and

    (c)Unless otherwise ordered, the application shall be dealt with on the papers in chambers.

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 Tirrell & Harmony 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 1630 of 2017

Mr Tirrell

Applicant

And

Ms Harmony

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parents of B separated over 10 years ago.  As a result B has no memory of his parents co-parenting under the one roof.

2. The parents’ relationship and communication deteriorated after separation and the tragic loss of a child (the older sibling of B) as a six year old in 2012, had been preceded by the parties’ oldest child F refusing to spend time with his father since around October 2011.

3. The chronology below reveals the tensions that have existed and the difficulty constant litigation has caused for the family.  With B now having ceased spending any regular time with the father since early 2016, the hearing before me focused on if it was in the best interests of the child, against his expressed wishes, to again attempt to create an enduring relationship between the father and his son.

4. In these Reasons, I refer to the child by the name of “B” rather than the father’s preferred first name, spelt “V”.  He said he has an “emotional investment” in the name “V” which was the original name registered for the child.  However, post separation, and with the father not registered on the birth certificate, the mother changed the name to “B” which the child has now consistently used at school for some years.  The father has had the opportunity to be registered on the birth certificate with the mother’s support, but has not filed the forms – saying he cannot afford to do so.  I found the father’s evidence in that discrete issue confusing and a little inconsistent with his passionate advocacy for a continuing relationship with B.

Contextual history

1. Statements of fact hereafter should be construed as findings of fact.

2. When the parents commenced cohabitation in 1996 the father was approximately 32 years old and the mother approximately 21 years of age.  The couple’s first born son, F came into their lives in 1998.  He is now 20 years of age and ceased spending time with his father in around October 2011.  This estrangement has, on the evidence, made things more difficult at times for B.

3. A child G was born in 2006 and the subject child B was born in  2007.  B was less than 12 months of age when the parents separated in mid-October 2008.  After separation the children lived primarily with the mother and spent regular time with the father and the communication between the parents was reasonable, although tensions in the co-parenting relationship were apparent prior to F ceasing time with his father.

4. In 2012 G died and this tragic event has, it appears and not surprisingly, caused significant emotional challenges not only for the parents but also for G’s siblings.  I choose in these Reasons not to focus on this event (its cause or reactions) because of the clearly evident pain that is still felt.  Whilst counselling for the older and young brother took place, and the parents still hold a deep and immovable sense of loss, the evidence (particularly from the grief counsellor Me E) reveals the father has become intensely focused on childhood cancer issues and internet research and support groups.

5. After the mother alleges B made a disclosure of inappropriate behaviour by the father in 2012 (less than three months after the death of G), the absence of Court orders and the sadness engulfing the family meant the time between B and the father became less regular, and then ceased, causing the father to initially commence proceedings in the Federal Circuit Court of Australia in February 2013, seeking equal time.

6. Little point is served in recording the history of the litigation in the Federal Circuit Court of Australia save to observe that before final consent orders were made by Judge Sexton during a final hearing listed in January 2015, what can be clearly identified is that B’s relationship was significantly interrupted during that stage of the proceedings with only supervised time ordered (which commenced about March 2014) and where the parents engaged in mediation and family report interviews.

7. The “final” orders made by consent on 27 January 2015 were as follows:

   “1.      That all previous parenting orders be discharged, save for Orders 11, 12 and 13 of the Orders of 1 December 2014.

   2.        That the Mother have sole parental responsibility for the child, F born … 1998 (“F”).

   3.        That the Mother have sole parental responsibility for the child, B born … 2007 (“B”) provided that, except in the case of an emergency, prior to making any decision in accordance with such parental responsibility, the Mother:

   a.        Give the Father as much written notice as possible as to any decision that is to be made including the nature of that decision and the reason for it;

   b.        Invite the Father to make a response to the matters raised in that written notice including whether he agrees and if he does not reasons for the disagreement;

   c.        Consider any written response from the Father and the matters that he raises in that written notice;

   d.        Provide the Father with written notice of the decision that was ultimately made.

   4.        That F and B live with the Mother.

   5.        That F spend time and communicate with the Father in accordance with F’s express wishes and the Mother to do all things to facilitate such communication and time, including but not limited to ensuring that F is kept informed of the Father’s address, telephone number and email address.

   6.        That B spend time with the Father as follows:

   a.        Until 27 July 2015, each Saturday from 1 pm to 3 pm supervised by the paternal aunt, Ms C;

   b.        From 27 July 2015 until 27 January 2016, each Saturday from 1 pm to 3 pm, such time to be unsupervised;

   c.        From 27 January 2016 until 27 July 2016, each Saturday from 1 pm to 5 pm, such time to be unsupervised;

   d.        From 27 July 2016, each Saturday from 1 pm to 7 pm.

   7.        That B spend time with the Father on the following special occasions:

   a.        On Christmas Eve from 4 pm to 6 pm;

   b.        On the Father’s birthday from 4 pm to 6 pm;

   c.        On B’s birthday from 4 pm to 6 pm;

   d.        On Father’s Day at the same as provided for on the Saturday prior to Father’s Day in accordance with Order 6, such time to be in lieu of the Saturday that weekend.

   8.        That for the purposes of changeover, the Father is to collect B from the Mother’s residence at the commencement of time and return B to the Mother’s residence at the conclusion of time.  Changeover is to be facilitated by the Father remaining in the car and notifying the Mother via SMS once he has arrived.

   9.        That B’s time with the father in accordance with order 6(a) be conditional upon:

   9.1      The paternal Aunt, Ms C entering into signed undertakings with the Court with respect to her supervision of the father’s time with B, and

   9.2      The Father doing all acts and things necessary to ensure that Mr H is not present when he is spending time with B.

   9.3      That the supervisor, paternal aunt Ms C be provided with the telephone contact details of the mother and the mother be provide with the telephone contact details of Ms C, and both the mother and paternal aunt ensure that the other is advised of any changes to these details within 7 days of such change occurring.

   10.      That if the supervisor, Ms C is unable for any reason to continue to supervise the father’s time with B, then all parties shall do all acts and things and sign all documents for the father to spend time with B at the J Organisation at Suburb K under supervision for a period of two hours each fortnight as follows:

   10.1    To contact the J Organisation at Suburb K to place B’s name on the waiting list for the J Organisation,

   10.2    Attend all intakes and assessments as directed by the J Organisation at Suburb K,

   10.3    Comply with all appointments and reasonable rules of the J Organisation at Suburb K,

   10.4    The mother is to facilitate taking B to the J Organisation at Suburb K at the commencement of his visit with his father and collect B at the end of his visit with the father

   10.5    That the parties each to pay one half of the fees nominated by the J Organisation at Suburb K.

   11.      That the Mother be at liberty to suspend B’s time with the Father on a maximum of four occasions per year provided that:

   11.1    She provides to the Father a minimum of 14 days notice via SMS;

   11.2    The time suspended does not coincide with a special occasion provided for at Order 7.

   12.      That the parties are to notify each other of any serious medical issue or other emergency concerning F and/or B.

   13.      That the mother shall provide the father with the contact details of any treating medical practitioner or psychologist that B is currently attending and provide authority to the treating medical practitioner of psychologist to speak to the father.

   14.      That the Mother be at liberty to provide a copy of these Orders to L Organisation or such other therapeutic service engaged with respect to B from time to time:

   14.1    The Mother is to notify the Father of the service engaged and the reasons for it;

   14.2    The parents to engage with any such service if requested to do so.

   15.      That within 14 days of F or B’s enrolment at any school, the mother do all acts and things and give all irrevocable authorities necessary to ensure that whichever school the children may attend from time to time, that the school forward directly to the father copies of all of the children’s school reports and merit cards.

   16.      That each party advise the other party and keep the other party advised of their current address and contact telephone numbers (including both landline and mobile phone number if applicable) and advised the other party of any changes to these details within seven (7) days of such change occurring.

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

   18.      That without admissions as to the need for such an order, the Father be hereby and hereby is, restrained from leaving B in the sole care or presence of the paternal uncle, Mr H Tirrell.

   And the Court Notes

   A.       The parties agree that if additional time between B and the Father is in his best interests, the parties will attend upon a Family Dispute Resolution Practitioner to discuss same.”

8. As can be seen from the orders, unsupervised day time was reintroduced for B and the father from 1 August 2015.  The visits for the first six months after the orders were made that took place in the presence of the father’s sister Ms C progressed well.  Unsupervised time for two hours each week commenced 1 August 2015 but from 19 September 2015, B began refusing to spend time with the father.  The reasons for these expressed wishes are disputed by the parents (see paragraph 30 of the mother’s Affidavit and paragraph 233 of the father’s Affidavit).  The incident of and various findings arising from the evidence about 19 September 2015 are dealt with further in these Reasons.

9. With negotiations and the assistance again of the father’s sister Ms C, B recommenced time with his father on his birthday for four hours and weekly visits continued until time again ceased in January 2016.  Under the orders of the Federal Circuit Court of Australia (which were still operative although time was not occurring), the child was to spend time with the father each Saturday, and by order 8, changeover were to occur at the mother’s home.

10. The father’s actions, in the midst of this chaos, in attending the mother’s home each Saturday from mid-2016 to March 2018 appears to have exacerbated the situation not improve it.  The father explained his reasons for doing so as well as his action in attending during this period at B’s school.  The effect of these actions on B are not easy to ascertain – however the mother felt strongly that his continued attendance at her home was a form of harassment.  I am not satisfied that the father’s actions were in any real way prompted by the mother’s decision to re-partner and cohabitate with Mr M  in  2016.

11. I deal later in these Reasons with events that arose around March/April 2016 at the Easter Hat Parade at school and the JIRT interview on 14/15 March 2017 – save to note that investigations by authorities ceased on 19 May 2017, without any action having been taken.

12. The father, understandably, from his perspective, and in circumstances where he feels a sense of unfairness, injustice and frustration about the ineffectiveness of Court orders and the Court processes, commenced fresh proceedings on 14 March 2017 seeking reintroduction of time between B and himself and ultimately a week about parenting arrangement within 30 kilometres of Suburb K.

13. Although Court records suggest no less than 14 events before a Registrar, the father’s interim application for orders leading to time recommencing (and for that matter the mother’s cross application by way of Response filed 21 April 2017 seeking discharge of orders 6 to 11 made in January 2015) was not dealt with, although reports were produced and an order for the preparation of a family report by Ms D was made on 19 December 2017.

14. Ms D, a forensic and clinical psychologist, conducted interviews and observations on 18 January 2018, resulting in a report dated 12 February 2018, released to the parties shortly thereafter.  Ms D was cross examined before me on her report at the end of the trial which commenced before me on 20 August 2018.

15. The Court expresses its regret to the parties for the delay in publishing these Reasons in this sad case.

Principles to be applied

1. 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 (“the Act”) 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 child.

2. 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.

3. 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.

1. In Goode & Goode (2006) FLC 93-286 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents.  If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.

Competing proposals

1. By the time of final submissions, the positions of the parties had altered from those articulated in their final applications and/or case outlines.  This is not unusual for, although the Court is not bound to adopt any of the proposals, parents who sit through the evidence at times do reflect on that evidence and their earlier proposals and give instructions to their advocates accordingly.

2. In this regard, I acknowledge the assistance in this difficult matter of Counsel for the father Ms Murphy; Counsel for the mother Mr Sperling and Counsel for the Independent Children’s Lawyer (“ICL”) Ms Falloon.

3. The final positions contended for were as follows:

   a)ICL:  The ICL explained that proposal, which is Appendix One to these Reasons (and marked Exhibit 18), was to be seen as a “no prescribed contact proposal” rather than a “no contact proposal” so as to deal with the realities as the child sees it;

   b)The mother:  The mother largely supported the proposals of the ICL, save for some variations including:

   i)that whilst the mother agreed with Mr F Harmony not interfering with B’s communication with the father, the mother indicated she could only use her best endeavours to guide F’s behaviour, but as he is an adult (and not a party to these proceedings) some practical limits exist;

   ii)she needs to be able to obtain a passport for B; and

   iii)the mother seeks an order pursuant to s 68B of the Act, that the father “other than for the purpose of spending time with B pursuant to his wishes, the father be restrained from coming within 100 metres of any school or educational institution attended by the child, without the mother’s written consent”;

   c)The father:  The minute of final order proposed by the father was marked Exhibit 19, and is set out at Appendix Two.  It proposes a graduation of time after initial reunification being:

   i)for the first six months “in accordance with his wishes as expressed to the father or Ms C”;

   ii)thereafter provided the child has spent time with the father, B will spend time with the father from after school Friday to 5.00pm on Saturday each alternate weekend, as well as time on special occasions on Father’s Day, Easter, Christmas and birthdays;

   iii)further time “as the parties may agree from time to time”; and

   iv)telephone communication for 15 minutes two times a week.

4. The father seeks that the Court make an order for equal shared parental responsibility (with the mother and the ICL seeking an order for the mother to have sole parental responsibility), together with a range of specific issues orders restricting the child’s international travel, removal from State R or change of school.  The father seeks an order that the child shall reside within 30 kilometres of Suburb K and, by proposed order 24.16, that:

   “the parties attend for family therapy with Ms N or such other therapist as may be agreed between the parties.”

5. Before I commence an assessment of the competing proposals within the matrix of the primary and additional considerations, I will deal with some discrete issues that arise on the evidence.

Interaction on 19 September 2015

1. The parents were the subject of cross examination on the versions they gave in their trial Affidavits - the father at paragraphs 233 to 253 and the mother at paragraphs 30 and 31.  The parties were the subject of cross examination, and from this evidence I make the following findings:

   a)Leading up to 19 September 2015, it is apparent tensions about what B was expressing to each parent had arisen again.  The text exchanges (marked Exhibit 4) reflect this growing disagreement;

   b)The mother says, and I accept, that she was hearing B express reluctance to see the father, however I am not satisfied the father was actually doing anything to annoy B deliberately (e.g. lifting his shirt and scratching him);

   c)A dispute about an Ipod occurred.  It is clear that the father regarded it as “his” property (see paragraph 235) and the father says he allowed B to take the Ipod upstairs to take a photo of a pet.  The mother’s version, which contains some conversations she heard, suggest that the children went down for the purpose of getting the Ipod, which B regarded as his property;

   d)I accept when B returned to the home with the Ipod the mother told him to go back and speak with his father.  B said he wanted the mother and F to accompany him.  This turned out to be a bad idea, as B then witnessed an ugly exchange between his older brother and the father about whose Ipod it was.  The father admitted some of his words and actions (which I accept are recorded accurately by the mother), were wrong, harsh and I find provocative.  To a large extent it was an argument between F and the father;

   e)B refused to go with the father; said some nasty and hurtful words and the father showed no capacity to defuse the situation.  Rather he demanded B get “my Ipod” and get in the car because there were “Court orders”.  When B went back upstairs the father sent a text message to the mother saying he would call the Police if B did not come “in the next five minutes”.  The father called the Police; and

   f)Although the father says he did not see or believe the child was distressed, I accept the mother’s contrary evidence and I am sure his distress was not assisted when the Police arrived at about 1.30pm that day and spoke with B who told them it was his Ipod and that he did not want to go with his father.

2. Sadly, over a relatively minor incident, the father’s overreaction caused the child’s slowly developing interest in spending time with his father again (notwithstanding expressing some reluctance to the mother before 19 September 2015) to evaporate.

3. All the evidence points, in my view, to the child forming a view (perhaps inaccurately at times) that the father did not care about him; was not prepared to listen to him and simply did not understand his feelings.  The father’s rigid behaviour thereafter by inter alia:

   a)calling Police to attend on at least three unsuccessful visits (see Exhibit 6);

   b)on 24 October 2015 filming the “non-attendance” by the child and walking up the driveway and looking in the mother’s car – which I accept, despite the father’s denials, occurred; and

   c)claiming in front of the child on 31 October 2015 with the mother present that “You are breaking court orders.  Your mother is in big trouble.  Get in the car B”,

   did not assist.

4. The parties were able to facilitate B spending his birthday on 2015 with the father – with the father accompanied by his sister.  From earlier visits, I am satisfied B drew comfort from Ms C being present – as did the mother.  The notes of visits attached to Ms C’s Affidavit filed 3 June 2018 confirm that to be the case.  However, this could never be a long term option.

5. I see no need to deal with every visit from 7 November 2015 until the yelling match on 12 March 2016 between the father and B described at paragraph 50 of the mother’s Affidavit.  On any version (and I accept the mother’s version as accurate) B was exposed to the uncontrolled toxicity of the parents’ claims one against the other.  As I discuss later, the father is convinced the mother either, by this time was deliberately “alienating” the child from him and could have done more to “force” B to go (e.g. putting him against his expressed wishes into the car) whilst the mother says, despite all her encouragement, B was so distressed by the father’s actions and words that he kept refusing to go with the father.

6. The ongoing attendances at the home certainly, in my view, was more motivated by the father’s desire to get evidence of the mother’s failure to comply with the orders, without any insight or appreciation of how this might upset B – or worse, reinforced in the child’s mind that the father was more interested in making things difficult for the mother than seeing him.

7. From the father’s perspective, he had Court orders which were not being complied with.  He was desperate to see his son – but he continued to engulf the child in disputes – for example, accusing F of deliberately damaging the Ipod.

8. By the time the proceedings had been recommenced, I believe sadly irreparable damage to the father’s relationship with B had occurred.  The father naturally points to any courteous comment or recognition offered to him by B when the only interactions were happening at school.  For a father who, from his perspective had lost a relationship with F and has a deceased son G, I understand why he would grasp at these small “straws” (including the brief interaction in 2017 for B’s birthday).

9. However, as the report and assessment of the expert family report writer Ms D opines, moving B into a position where he is now – over 10 years since his parents separated – able to engage with his father is highly problematic.

Family report evidence

1. Forensic and clinical psychologist Ms D published her report dated 12 February 2018, arising from interviews and observations undertaken on 18 January (see Exhibit 19).

2. It is trite to record that the Court is not bound by the opinions and recommendations of a Court expert, as a family report writer effectively is, however where the factual foundation for opinions is established by all the evidence, and subject to concessions or changes which might arise from cross examination, it is appropriate for a Court to give some weight to an expert’s evidence.

3. Such is the case in this matter, where Ms D was fairly cross examined but hardly deviated from the opinions expressed.  Of significant relevance are the following matters that arise from the expert’s evidence:

   a)At paragraphs 30 to 33, Ms D undertook some psychological assessment of the father concluding at paragraph 32 that the father’s presentation at interview and other data “was indicative of significant aberrations in Mr Tirrell’s personality functioning” and that he presents with a number of “narcissistic traits” including “difficulties empathising and appreciating the experience of others around him, including his children”.  Ms D said her conclusion at paragraph 32 was a “critical factor” in her assessment.  In my view, this assessment of the father is supported by other evidence of his interactions with others and I accept the father is “overly preoccupied with how others viewed him” and further that the history set out above (particularly the “Ipod incident”), demonstrated “a tendency to respond to criticism by attacking others or withdrawing from them completely”.  The father’s estrangement from his family is an example;

   b)Also his comments about his relationship with F and the reasons they are also estranged (see paragraphs 38 and 39) are described by Ms D as revealing a “negative view” of F and that he appeared “dismissive of his oldest son, suggesting that issues in their relationship are due to F”.  Ms D, in cross examination, acknowledged she was critical of the father for making little effort with F since time ceased in 2011;

   c)At paragraph 51, and consistent with the father’s case generally, the father told the report writer that “B’s reluctance to see his father was not related to cessation of supervision by Ms C, rather that it is a function of Ms Harmony interfering with B’s views by buying him gifts including a puppy”.  The father denied that B’s express wish for no contact “is his own view” pointing to a positive interaction on B’s birthday in 2017.  The father suggested B had been “primed” by his mother to behave the way he did during the family report observations;

   d)The father was able to express many reasons why he sees himself as an excellent parent, but at paragraph 61, the report writer records the father expressing many negative views of the mother’s parenting and lifestyle – accusing her of emotional abuse.  In circumstances where all the evidence does not support the father’s view of the mother’s parenting, these comments again demonstrate the type of personality traits identified by the expert as set out earlier in these Reasons;

   e)At paragraph 68, when seeking to explain the inconsistencies observed and on the data with the psychometric testing undertaken, Ms D opined that “what seems more likely, however, is that Mr Tirrell has limited insight into his personality functioning and his capacity for relationships with others”.  I accept this opinion;

   f)The mother presented to Ms D without “overt signs of psychopathology” who impressed “as an articulate woman with strong social skills”.  Nothing in the mother’s report of her history or feelings raised concerns for Ms D and at paragraph 95 the mother described “the period of time after G’s death as overwhelming, complicated by F’s sudden refusal to spend time with his father and B’s disclosure of alleged sexual abuse”.  The mother denied benefiting financially from G’s death – an allegation made by the father.  I accept the mother’s denials and sadly, the maintenance of such hurtful allegations by the father again demonstrates the level of his antipathy towards the mother;

   g)At paragraph 98, the mother confirmed that her current relationship with Mr M commenced in 2015 and she says he is supportive with the children and that he “has a good relationship with F and B although he does not view himself as their stepfather”.  Mr M, a professional, gave evidence before me and was the subject of cross examination.  He impressed me as an honest witness, who truly supports the mother, yet has an understanding of the father’s frustrations but supports B’s expressed wishes.  He acknowledged his intervention in the exchange in September 2016 could have come across as “aggressive” but that was not his intention.  I am satisfied that he and the mother have a solid and loving relationship;

   h)At paragraph 106, the mother explained her confusion about the father’s focus on B and exclusion of F and said to Ms D that B “does not understand why his father is focusing on him”;

   i)Ms D’s interview with F (paragraphs 124 to 131) revealed the use of similar language to that was used by the mother on occasions.  F had prepared some “dot points” that enabled him to detail a “litany of complaints about the father” and few positives.  F said that his father’s attendance at the house every Saturday is a “joke now” and that he believes “a normal dad would realise that a kid wants some space…wouldn’t force themselves onto the child” and that the father did not adopt a similar approach when he ceased seeing his father stating that “he never brought anything, presents” but recalled receiving some birthday cards that he described as “not nice”.  It was clear from F’s account that he and the mother have shared their feelings about the father –which the mother admitted but only as F got older;

   j)Having “negotiated” a five minute observation session with B, the observation between B and the father revealed no engagement by the child with the father, despite the father’s appropriate attempts to do so.  Ms D continued the session for eight minutes before ceasing the observations and before B “became emotionally overwhelmed” (see paragraphs 132 and 133).  The observation of B with the mother (and after 10 minutes also including Mr M), was warm, easy and engaging;

   k)At paragraphs 138 to 145, a detailed account of the expert’s interview with B is recorded – accurately I am satisfied.  Paragraphs 138 and 139 set out the child’s expressed wishes, and I include those paragraphs in these Reasons for context:

   “138.   B presented as a petite boy who appeared well-groomed and was neatly dressed for the assessment.  He was animated and articulate and engaged easily in the assessment, requiring minimal effort on my part.  He demonstrated appropriate eye contact and did not demonstrate overt signs of psychopathy.  B understood that the purpose of the assessment, stating:  ‘it’s about Mr Tirrell – we’ve been trying to avoid him on Saturdays, he works at school, I do not like that at all.  I hate it’.  He added that his father sometimes volunteers in his classroom, which is ‘even worse’.  He spoke about his father blocking the driveway at home some weekends and that he ‘stalks’ the family.  B said he feels ‘sad’ when his father arrives every Saturday, adding that he ‘gets bad energy’ and ‘can’t wait until he leaves’.

   139.    B said that his father has ‘always been rude’, recalling that he would often ‘yell’ at B and his brothers.  He also referred to his father forcing the children to shower with him and said that Mr Tirrell would ‘touch [their] private parts a lot’ which he described as ‘disgusting’.  B said that when he was younger, he ‘didn’t know [he] had a choice and [he] tried to be the perfect son to him’ but that his father was ‘always mean, slapping [him]’.  He could not recall any positive memories of his father.  B said that he calls his father ‘Mr Tirrell’ because he ‘hate[s] him and [doesn’t] want him to be [his] dad’.  He suggested that his father was never a real father to him, ‘more like a big bully’.  He recounted some confusing stories detailing times that Mr Tirrell was allegedly mean to him, but the detail of these suggested that he was exaggerating or confused in his recollections.  For example, one of the stories portrayed a time when people came to his house dressed as superheroes for a party and Mr Tirrell spent the entire time smacking B.”

   B told Ms D that he would like the Court to tell the father “to move on, get out of our lives” and he does not believe his father “is genuinely interested in him”.  I acknowledge it would have been upsetting for the father to read what B said about him;

   l)Although counselling notes for two sessions between the father and psychologist Ms O were tendered (Exhibit 10), the father did not call Ms O.  Ms D did speak with Ms O (see paragraphs 151 and 152) and Ms O described the father “as intentional in his actions, which can sometimes result in him being manipulative of situations or other people.  She reported some concerns about his personality functioning that were consistent” with Ms D’s clinical observations of the father set out in her report;

   m)After dealing, as directed by earlier Court orders with a number of s 60CC(2) and (3) factors, Ms D made some considered recommendations which I set out in full now:

   “169.   On the basis of the information available to me in the preparation of this report, including the documentation provided, my interviews and observations with relevant parties, and collateral contact, I make the following recommendations:

   a)   B should continue to reside with his mother.  No evidence was provided to me suggesting that the Orders regarding Parental Responsibility should be reviewed as part of the current Court matter;

   b)     At this point in time, no Orders should be made enforcing that B spend time with his father, except as he wishes.  Mr Tirrell should not contact B unless B initiates this.  He should cease attending B’ school, unless invited by B. He can continue to receive information from the school and attend parent-teacher interviews, but should not attend at times that he will see B.  Mr Tirrell should also cease attending Ma Harmony’ home every Saturday;

   c)     Ms Harmony should inform Mr Tirrell regarding significant developments in B’s education, health, and functioning;

   d)     The parents should communicate by text message or email and only as required for important issues regarding B, such as that pertaining to his health and education;

   e)     Mr Tirrell should engage in a therapeutic process to gain insight into his personality functioning, to identify and prioritise his child’s needs, to contemplate B’s experience of him as a father, to respect his son’s boundaries, and to develop alternate ways of engaging with his son.  This should extend to Mr Tirrell developing more appropriate communication approaches to Ms Harmony and to understand the importance of her role in B’s life.  This intervention should be provided by a clinician with expertise in family law matters, such as those at P Organisation, Q Organisation, or Dr N;

   f)   Should Mr Tirrell demonstrate meaningful change in this regard, he may choose to bring an application to the Court for the case to be reconsidered due to a change in circumstances.  Meaningful change would be demonstrated by Mr Tirrell adequately articulating B’s experience of him, being able to outline B’s needs as a unique individual and demonstrating through his actions that he is respecting B’s boundaries, and consistently speaking respectfully of Ms Harmony and her role in B’s life;

   g)     Mr Tirrell and Ms Harmony should be restrained from denigrating the other to B and if possible, this restriction should apply to F and other family members;

   h)     B would benefit from a therapeutic intervention to process his relationship with his father and consider the role that he would like him to play in his life in future.  Again, this should be provided by a clinician with experience in family law matters and one who is willing to communicate with Mr Tirrell’s therapist as appropriate;

   i)   Should B wish to contact his father, he can do so by any means (including but not limited to phone call, text message, email, or other media that he has access to).  Ms Harmony should assume primary responsibility for supporting B to contact his father as he wishes;

   j)   Ms Harmony should be permitted to relocate to State S in future, assuming that this will not significantly interrupt the relationship between B and his father as it stands at that point in time.”

1. In cross examination, and after the testing of a number of her opinions expressed, Ms D did not deviate from her recommendations.

2. I am comfortable in this case, to give the opinions and recommendations of the report writer significant weight.

3. I will now discuss the competing primary proposals of the parties within the matrix of the relevant primary and additional considerations.  In doing so I rely upon but do not repeat earlier findings made above.

Primary considerations

1. Although I find the child would benefit from having a meaningful relationship with the father, with the relationship between the father and B effectively estranged, creating by orders an opportunity where it might optimally be possible to establish a meaningful relationship is challenging.  Over the years since separation a number of strategies have been attempted to maintain a positive momentum towards a more secure and meaningful relationship.  However, as the incident on 19 September 2015 demonstrates, where the relationship at that time was tenuous but developing, the father’s behaviour in my assessment caused the momentum to stop.  The father blames the mother for that effect, but I regard the father’s lack of insight and his inappropriate reaction was the major contributor.

2. B does have ongoing benefit from having a meaningful relationship with the mother.

3. The parliament has indicated through s 60CC(2A), that the Court is to give greater weight to the need to protect the child from physical or psychological harm than the benefit of having a meaningful relationship.

4. Sadly I have formed a view, on all the evidence, that the father presents as a risk of emotional harm to B arising from:

   a)his strong and consistently negative views of the mother which he has been unable to shield B from on a regular basis.  The child expresses how he has heard such criticisms and, it upsets him.  I accept this has occurred;

   b)his lack of insight (arising most likely from his personality traits as identified by Ms D) into his behaviour in the past and how it has adversely affected both B and F.  The father criticising F about the damaged Ipod to B was thoughtless and caused further distress to the child; and

   c)The child B, from his own experiences, has formed a view that the father does not listen to him; understand him or care about him.  I accept the father does truly love B – however B’s reality is different.  I do find that there have been times in the past where the mother could have been more assertive in encouraging B’s relationship than merely using words.  However the father’s constant criticisms of the mother, and lack of respect for her role as the mother of B, reduced her capacity (in the face of such criticisms) to remain positive and encouraging.  Now we have reached a stage, in my view on all the evidence, that the mother’s forced encouragement could seriously put at risk her relationship with B – a relationship he relies upon, as he has since his parents separated, for his sense of security and wellbeing.

5. I formally find that the evidence does not establish that the father is an unacceptable risk of harm to B of sexual abuse or physical abuse.  The  reports and investigations do not support an adverse finding and no such finding was pressed by the mother or the ICL.

Additional considerations

1. I find the views expressed by B not to spend time with his father currently, are his genuinely held views.  Whilst I accept that he would be aware of the mother’s concerns about the father and also of F’s hurt and dismissive attitude to the father (and both would make it hard for B to be positive about the father) he has demonstrated previously the strength of character and desire to pursue a relationship.  However sadly, as noted, when some momentum was developing, the father’s behaviour has reinforced in B’s view, the father does not care and he then expresses and demonstrates no wish to spend time.  That is the position he now holds clearly and unequivocally at the time of the hearing.

2. B’s strongest bond is with his mother, however F, although some nine years older, is important to B.  The siblings suffered the loss of G and have shared a similar journey with the mother since separation 10 years ago.  The father’s relationship with B is currently estranged.  I accept that B has a warm relationship with Mr M – but he is not a substitute father figure – rather he is seen by B as a person who cares about him and loves his mother.  He is very comfortable with Mr M.  To the father’s credit, although he is estranged from most members of his extended family (save for his brother Mr H Tirrell and his wife Ms C), he does see some benefits in B spending time with those other paternal family members.  This has been facilitated and arranged by the mother.  It allows B a chance to gather information and an understanding of his paternal roots.

3. The mother has carried the responsibility for decision making and financial support for B however the father has shown a keen interest in being involved with the child’s school.  When his time with B under the January 2015 orders ceased, he chose to get heavily involved with the child’s school.  I find that whilst the main focus for the father was to create an opportunity to be near to B, his commitment to the school tuckshop and other school activities drew appreciation and support from staff and the school community.  At the time, the father increased his involvement, and although initially the child seemed comfortable with the father being present, apart from the occasional conversation or smile, over time the child found the father’s attendance at school a pressure on him.  He explained to Ms D that he does not want the father to come to school now.  The father should (and has more recently) respected B’s views in this respect.

4. I deal with s 60CC(3)(d) later in my Reasons.  I have already made findings and expressed a view about the parent’s individual capacity and attitude to parent.  Ms D identified few concerns about the mother in this respect, and I agree with her assessment.

5. To be fair to the father, he has had limited opportunities to spend unsupervised time with B over the last three years or so and his capacity to parent has not really been tested.  I find he has capacity to meet the physical needs of the child. However, his attitude to parenting shaped by his personality and frustrations, is compromised and as he is not emotionally attuned to B, I am sadly of the view his capacity to meet the emotional needs of B are limited.  Whether, as Ms D observed, a course of therapeutic support and therapy for the father would achieve or change in attitude and focus, I seriously doubt on the evidence at this time.  My view in this respect is also shaped by the comments of Ms O (to Ms D) and the evidence of Mr E, the grief counsellor.

6. Family violence issues do not arise in this case.

7. Where the parties have been engaged in litigation around B since the father commenced proceedings in February 2013 (and despite final orders having been made previously), the desire to make orders “least likely to lead to further proceedings” is an important consideration.

8. The proposals of the ICL (adopted by the mother) are more likely to achieve finality.  The father’s proposal - which begins with a hope that reconciliation between the father and B can be achieved by virtue of enforceable Court orders and further therapy – in my view are doomed to break down.  B will be forced to spend time with the father against his wishes.  Even though I find the mother would try to comply with the Court orders – the father’s orders are more aspirational then realistically achievable.

Parental responsibility

1. The final orders of 27 January 2015 prescribed that the mother should have sole parental responsibility.  The evidence clearly demonstrates that the mother, in exercise of that power, has made appropriate decisions for the child – despite the father’s lack of involvement as he might have expected or hoped.  The communication between the parties is worse than existed at the time of the first final orders.  In my view, not only is there no basis to change the order at this time, it still remains in B’s best interests for the mother to have sole parental responsibility.

2. One aspect of sole parental responsibility that was contentious during the hearing, is the prospect in the future of the child relocating to the City T where Mr M says he has family and where he believes better work opportunities exist.  The mother indicated, although no definite plans have been set, a movement to the City T by the start of the 2020 school year is a strong possibility.  The father’s proposal seeks to restrain the child relocating.  This issue should be considered within the context of the parenting orders the Court is making.

Form of parenting orders

1. I agree with the submissions of the ICL that the prospect of B seeking out in the future, a relationship with the father is more likely if pressure is now taken off both the child and the mother through compliance with prescribed time orders. The threat of contravention applications and new applications to vary orders loom large if the father’s proposal, well intended as they are, was adopted.  As Ms D opined, and I accept, the father has over the last few years adopted a very “legalistic” approach.  This has shaped his behaviour – for example, attending at the home after time ceased, for well over a year every Saturday.

2. With an eye to s 60CC(3)(d), I find that the effect of the orders proposed by the father on B would be emotionally destructive at this time.

3. The proposals of the ICL, broadly adopted by the mother, create the possibility (but not probability) of B viewing the limited interaction by the father so permitted as a demonstration of the father’s continuing interest and love.  This is an opportunity which the oldest boy F has remarked, the father did not peruse with him.

4. I accept that it is extremely difficult for any parent in the father’s current position, and this father in particular, to wait patiently for the child to initiate a greater involvement with him.  However, I find the mother, despite her concerns about the father’s behaviour and attitude to her, is genuine in her expressed view that she would support B in his own way, exploring further relationship opportunities with the father.

5. To the extent that the father sought to characterise this case as an “alienation” case (as that term is too commonly used in this area of law), I specifically reject such a contention.  The mother also lost a child.  She demonstrated a sadness that the father’s behaviour has been the major (but not only) contribution to the views now strongly expressed by B about not seeing his father.

6. The orders which I pronounce and which are set out at the commencement of these Reasons are in the best interests of B at this time.  In respect of the form of the orders, and in relation to some discrete issues of controversy, I find that:

   a)The tenor of the orders are consistent with the evidence of Ms D that although it is important for B to have “closure” – which I took to mean that the litigation ends – it was also important to “leave the door open”;

   b)As a result no prescribed orders for B to spend time are made.  As earlier found, I am satisfied that the mother will facilitate and not discourage B from seeking a relationship with his father in the future, if B so desires;

   c)Order 13 has been varied from the ICL’s draft proposal, to take into account that F is not a party to these proceedings:  that he is an adult and that the mother can only use her best endeavours to ensure that the views of F about the father do not create a barrier to B seeking a future relationship with the father;

   d)I also include in proposed order 6 an obligation on the mother to encourage the child to recognise Father’s Day, the father’s birthday and Christmas by sending a card or letter to the father (provided, of course, the father has given the mother his contact details);

   e)Because of the non-prescribed nature of the orders for B to spend time with the father, it would in my view on all the evidence, be consistent with the child’s best interests to relocate to the City T at some future time, if the mother elects to do so because:

   i)the mother, I am satisfied, would not do so if she felt B strongly resisted the move; and

   ii)the mother’s relationship with Mr M, which provides significant support to B also, is currently strong and may well get stronger if, as Mr M indicated, the work opportunities for him would be enhanced and his family, being closer, would be available to offer support to the family; and

   iii)the mother says, and I accept, that if B is living with her on the City T, telephone and electronic communication between B and his father could occur in the same way as if he were in City U. Furthermore, the mother specifically said, and I accept, that she would facilitate any reasonable physical contact between the father and B even if she had moved.

   For these reasons, proposed order 5 is slightly amended and the Court will not make orders 24 and 25.14 proposed by the father.  It could, of course, be argued that with the mother having sole parental responsibility for major long term issues, that these orders around permission to relocate in the future are not necessary.  They are included to avoid any doubt.

   f)For the reasons given earlier, the Court does not at this time regard it as in the child’s best interests to engage in “family therapy” as sought by the father in proposed order 25.16.

   g)Consistent with the practice and obligations of ICLs in New South Wales, a process for the ICL to make an application for costs is incorporated in the orders.

I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 22 March 2019.

Associate:

Date:  22 March 2019

APPENDIX ONE

1. All previous orders with respect to B born … 2007 (“B”) are hereby discharged.

2. The mother shall have sole parental responsibility for B.

3. B shall live with the mother.

4. The father shall keep the mother informed of his residential address and his email address and his contact telephone number.

5. Provided the father complies with order 4, the mother shall:

   a)Keep the father advised of B’s residential address and the mother’s email address;

   b)Advise the father of any significant health issue arising for B and the intended treatment plan;

   c)Provide the father with copies of B’s school reports and his school photographs;

   d)If B’s schooling arrangements change, advise the father about the change including the name and address of a new school;

   e)Give the father notice of any proposal for B to travel overseas.

6. The father may send to the mother’s address cards, photos and gifts for B to mark significant dates such as B’s birthday, Christmas and Easter.

7. The mother shall use her best endeavours to maintain B’s relationships with members of his paternal family, including but not limited to B’s aunt Ms C.

8. If B expresses a wish to spend time with his father or communicate with his father, the mother shall do all things reasonably necessary on her part to facilitate such time or communication.

9. The father may attend school functions, sporting events and extra-curricular activities in which B is participating, but only if B expresses a wish for the father to attend.

10. The mother shall make arrangements for B to have confidential non-reportable counselling with a suitably qualified therapist, to continue for as long as the therapist recommends.

11. The mother shall provide to the therapist chosen pursuant to order 10 with copies of:

    a)the report of the court-appointed single expert Ms D; and

    b)the final orders made by the court and the reasons for judgment.

12. The father may provide the documents referred to in order 10 to Mr E of the Hospital.

13. The mother shall not permit Mr F Harmony to interfere in any personal for B and his father to communicate with each other or meet each other.

14. The mother shall arrange for B to meet the Independent Children’s Lawyer as soon as is mutually convenient following the making of final orders.

15. Upon compliance with order 14, the appointment of the Independent Children’s Lawyer shall terminate.

APPENDIX TWO

1. That all previous orders be discharged.

2. That the parties have equal shared parental responsibility for B born … 2017 (sic) (“the child”).

3. That the child live with the Mother.

4. That the child spend time with the father for the first six (6) months after the date of these Orders in accordance with his wishes as expressed to the Father or Ms C.

5. That for the purpose of Order 4 the Father provide the telephone number, address and email address of Ms C to the mother within 48 hours of the date of these Orders and the Mother provide those contact details to the child within a further 24 hours.

6. That the Mother inform the child forthwith that he may contact Ms C is he wishes to spend time with his Father.

7. That upon receiving any message from Ms C or the Father that B wants to spend time with his Father the Mother shall contact the Father by email or SMS text message within 24 hours of the message and arrange for B to spend time with his Father in the presence of Ms C at the residence of Ms C or at a location within 3 kilometres of Ms C’s residence as agreed between the parties.

8. That from 6 months after the date of these Orders provided that B has spent time with his Father in accordance with Orders 4 and 7 of these Orders the Father shall spend time with B from after school on Friday to 5.00pm on Saturday each alternate weekend during school terms with the Father to collect B from school at the commencements of the time and deliver B to school at the conclusion of the time.

   Father’s Day:

9. Notwithstanding any other Order the child shall spend time with the Father from 9.00am on Father’s Day to 5.00pm on Father’s (sic) with the Father to collect the child from McDonald’s at Suburb K at the commencement of the time and deliver the child to McDonald’s at Suburb K at the conclusion of the time.

   Mother’s Day:

10. Notwithstanding any other Order the child shall live with the Mother on the Mother’s Day weekend from after school on the Friday immediately preceding Mother’s Day to before school on the Monday falling immediately after Mother’s Day with the Mother to collect the child from school at the commencement of the time and deliver the child to school at the conclusion of the time.

    Easter:

11. That notwithstanding any other Order the child shall live with the Mother from 3.30pm on Easter Thursday to before school on the following Tuesday in all even-numbered years commencing in 2018 with the Father to deliver the child to McDonalds at Suburb K at 3.30pm on Easter Thursday if the child is in his care.

12. That notwithstanding any other Order the child shall spend time with the Father from after school on Easter Thursday to before school on the following Tuesday in all odd-numbered years commencing in 2019 with the Father to collect the child from school at the commencement of the time and deliver the child to school at the conclusion of the time.

    Christmas:

13. That notwithstanding any other Order the child shall spend time with the Father from 5.00pm on 24 December to 5.00pm on 25 December in every even-numbered year commencing in 2018 with the Father to collect the child McDonalds (sic) at Suburb K at the commencement of the time and deliver the child to McDonalds at Suburb K at the conclusion of the time.

14. That notwithstanding any other Order the child shall live with the Mother from 5.00pm on 25 December to 5.00pm on 26 December in every even-numbered year commencing in 2018 with the Mother to collect the child McDonalds (sic) at Suburb K at the commencement of the time and deliver the child to McDonalds at Suburb K at the conclusion of the time if the child is not otherwise in her care.

1. That notwithstanding any other Order the child shall live with the Mother from 5.00pm on 24 December to 2.00pm on 25 December in every odd-numbered year commencing in 2019 with the Mother to collect the child from McDonalds at Suburb K at the commencement of the time and deliver the child to McDonalds at Suburb K at the conclusion of the time.

2. That notwithstanding any other Order the child shall spend time with the Father from 5.00pm on 25 December to 5.00pm on 26 December in every odd-numbered year commencing in 2019 with the Father to collect the child from McDonalds at Suburb K at the commencement of the time and deliver the child to McDonalds at Suburb K at the conclusion of the time of the child is not otherwise in his care.

   Child’s Birthday:

3. That notwithstanding any other order the Father shall spend time with the child on the child’s birthday each year commencing from 7 November 2018 from 3.00pm to 6.00pm if the child’s birthday falls on a school day or from 12.00pm to 5.00pm if the child’s birthday falls on a weekend or otherwise as agreed in writing between the parties with the Father to collect the child from school or McDonalds at Suburb K at the commencement of the time and deliver the child to McDonalds at Suburb K at the conclusion of the time.

4. Father’s Birthday:

   That notwithstanding any other order the child shall spend time with the Father on the Father’s birthday each year commencing from 27 May 2018 from 3.00pm to 6.00pm if the Father’s birthday falls on a school day or from 12.00pm to 5.00pm if the Father’s birthday falls on a weekend or otherwise as agreed in writing with the Father to collect the child from school or McDonalds at Suburb K at the commencement of the time and deliver the child to McDonalds at Suburb K at the conclusion of the time.

5. Mother’s Birthday:

   That notwithstanding any other order the child shall live with the Mother on the Mother’s birthday each year commencing from 28 October 3.00pm to 6.00pm if the Mother’s birthday falls on a school day or from 12.00pm to 5.00pm if the Mother’s birthday falls on a weekend or otherwise as agreed in writing between the parties with the Father to deliver the child to McDonalds at Suburb K at the commencement of the time and collect the child from McDonalds at Suburb K at the conclusion of the time if the child is in his care.

   Additional Time As Agreed Between the Parties:

6. The father may send additional time with the child for such other periods as the parties may agree from time to time.

   Telephone Communication:

7. That the Father have telephone communication with the child for fifteen (15) minutes commencing at 7.00pm Eastern Standard Time each Tuesday and Thursday with the Father to initiate the telephone call to a mobile telephone number to be provided to the Father by the Mother within seven (7) days of the date of these Orders and the Mother to do all such acts and things necessary to facilitate the telephone communication including have the mobile telephone switched on and recharged at the appointed times, answering the telephone call promptly and encouraging the child to speak to the Father whilst affording the child privacy to do so.

   Travel:

8. That until further Order each party, Mr Tirrell date of birth … 1964 and Ms Harmony date of birth … 1975, their servants and/or agents be and hereby restrained from removing or attempting to remove or causing or permitting the removal of the said child B date of birth … 2007 from the Commonwealth of Australia without the written consent of both parents and it is requested that the Australian Federal Police give effect to this Order by placing the name/names of the said Child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watch List until the Court Orders its removal.

9. If either parent intends taking the child out of the Commonwealth of Australia with the written consent of the other parent they are to advise the other parent in writing not less than six weeks prior to the planned departure date and are to provide the other parent with a full itinerary including documentary evidence of return airfares, proof of any inoculations recommended by the child’s GP and contact details whilst overseas.

10. That neither parent remove the child to live from the State of R without the written consent of the other parent.

    Other Orders:

11. ORDER that each of the father and Mother will from the date of these Orders:

    Medical:

    24.1Notify the other parent as soon as possible and in any event without 24 hours of any serious injury or illness suffered by the child whilst the child is in the care of that parent.

    24.2Notify the other parent of the names and contact details of all doctors, dentist and allied health practitioners (such as physiotherapists, psychologists etc) treating the child.

    24.3That if the child is prescribed and taking any medication the other parent shall provide that medication and instructions for its use when the child is handed over to the other parent under these Orders.

    Provision of Orders to FACS, School and Treating Practitioners:

    24.4That the parties be permitted to provide a copy of these Orders to FACS, the child’s school and any doctor, dentist or allied health practitioners (such as physiotherapists etc) treating the child.

    Communication:

    24.5That both parties keep each other informed of his/her telephone number and notify the other not less than 7 days before changing that party’s telephone number, of such change.

    24.6The Mother and Father shall communicate with each other by email for non-urgent matters and in the event of an emergency including a medical emergency must communicate each other via telephone call.

    Schooling:

    24.7That neither party change the child’s school without the written consent of the other party.

    24.8That both parents be authorised at the child’s school to receive copies of all the child’s school reports, school newsletters and school photographs at their own cost.

    Extracurricular Activities:

    24.9That both parents keep each informed at least seven (7) days in advance of all extracurricular activities including but not limited to sports, drama, school concerts/plays in which the child participates and the location and times of those extracurricular and be at liberty to attend these extracurricular activities.

    24.10That the Father be at liberty to attend all extracurricular activities attended by the child.

    24.11That both parents notify each other immediately by SMS text message of last minute change to social and extracurricular activities in which the child participates and the date, time and address of any changes to these activities.

    24.11That both parents complete a post-separation parenting course and provide the Father with a copy of the certificate of completion within seven (7) day of the completion of the course.

    24.12That neither the Mother nor the Father shall denigrate the other parent or the other parent’s family or associates to either child in the presence of either child nor allow any third party to denigrate such persons to the child or in the presence or the hearing of the child.

    24.13That neither the Mother nor the Father shall discuss these proceedings in the presence of the hearing of the child.

    24.14That the child shall reside within 30 kilometres of Suburb K.

    24.15That both parents do all things possible to facilitate a positive relationship of the child with the other parent.

    24.16That the parties attend for family therapy with Ms N or such other therapist as may be agreed between the parties and ensure that the child attends all therapy sessions as recommended by the family therapist.