TRENT & TRENT

FAMILY COURT OF AUSTRALIA

TRENT & TRENT

[2015] FamCA 892

FAMILY LAW – CHILDREN – Best Interests – Where the key issues for determination are parental responsibility, spend time and overseas travel – Orders for spend time arrangements with the father made largely in accordance with the recommendations of the single expert – Where it is not accepted that the mother is a flight risk as contended by the father and Orders are made which permit both parents to travel overseas with the children – Where, in relation to the issue of parental responsibility, the Court found that the parties are unlikely to agree upon day to day or long term issues and appropriate arrangements for the children, even where Orders had been made – Where Orders are made that the mother, being the children’s primary carer, have sole parental responsibility with the requirement for consultation and input from the father.

Family Law Act 1975 (Cth) s 60CC, 61DA

Dundas & Blake (2013) FLC 93-552

APPLICANT:

Ms Trent

RESPONDENT:

Mr Trent

INDEPENDENT CHILDREN’S LAWYER:

Independent Children’s Lawyer

FILE NUMBER:

SYC

5653

2013

DATE DELIVERED:

23 October 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

24, 25, 28, and 29 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnston

SOLICITOR FOR THE APPLICANT:

Santone Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Geddes SC

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Conte-Mills

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Phillip A Wilkins & Associates

Orders

IT IS ORDERED

That all previous Orders are discharged.
That the mother, Ms Trent, shall have sole parental responsibility for the children, D born … 2009, C born … and U born … 2012.
That before making any decision about the long term care welfare and development of the children including, but not limited to, elective medical treatment and education, the mother advise the father of the issues in writing by email and consider his views before making that decision. In the case of medical treatment, the mother shall advise the father of the relevant treating doctors and authorise those doctors to consult with the father and provide to him any information about the children that he seeks.
That the mother provide a copy of these Orders to the children’s treating doctors.
That the children live with the mother.
That the father spend time with the children as follows:
(a)During school term time, commencing Wednesday 28 October 2015, until the commencement of the Christmas school holidays in December 2017, every second Wednesday from after school (or 3:00 pm if not a school day) until before school (or 9:00 am if not a school day) Friday;
(b)During school term time, commencing Friday 23 October 2015, until the commencement of the Christmas school holidays in December 2017, each alternate weekend from after school (or 3:00 pm if not a school day) Friday until before school (or 9:00 am if not a school day) Monday;
(c)During school term time, commencing in the second week of term 1 in 2018 and thereafter, for five (5) consecutive nights a fortnight from after school Wednesday (or 3:00 pm if not a school day) until before school (or 9:00am if not a school day) Monday;
(d)For one half of each of the school holiday periods as agreed and failing agreement:
(i)In the holiday periods between terms 1 and 2, 2 and 3, 3 and 4, for the first half commencing after school (or 3:00 pm) on the last Friday of the school term until the middle Saturday at 3:00 pm in odd numbered years and for the second half commencing at 3:00 pm on the middle Saturday until before school (or 9:00 am) on the Monday of the week that school returns;
(ii)In the Christmas school holiday periods commencing December 2015, December 2016 and December 2017 for two (2) blocks of eight (8) consecutive nights from 1:00 pm Christmas Day until 3:00 pm 2 January, and from 3:00 pm 9 January until 3:00 pm 16 January;
(iii)On occasions where the father has spent the first half of the holidays with the children, his time with the children in accordance with Orders 6 (a), 6 (b) and 6 (c) herein shall resume in the first week of the next school term and accordingly, where the father has spent the second half of the school holidays with the children, his time with the children in accordance with Orders 6 (a), 6 (b) and 6 (c) herein shall resume in the second week of the next school term;
(e)At Easter, if it does not fall within the school holidays, from 5:00 pm Holy Thursday until 5:00 pm Easter Saturday in even numbered years and from 5:00 pm Easter Saturday until 5:00 pm Easter Monday in odd numbered years.
(f)On Fathers’ Day from 5:00 pm on the day prior until 5:00 pm on Fathers’ Day if the children are not otherwise in the father’s care.
(g)Notwithstanding any other order, from 1.00 pm on Christmas Day until 1.00 pm on 26 December each year.
That in addition to Order 5 herein, the mother shall spend time with the children:
(a)Notwithstanding any other order, from 12 noon in Christmas Eve until 1.00 pm on Christmas Day.
(b)At Easter, if it does not fall within the school holidays, from 5:00 pm Holy Thursday until 5:00 pm Easter Saturday in odd numbered years and from 5:00 pm Easter Saturday until 5:00 pm Easter Monday in even numbered years.
(c)On Mothers’ Day from 5:00 pm on the day prior until 5:00 pm on Mothers’ Day if the children are not otherwise in the mother’s care.
That for the purpose of the Orders, school holidays will commence on the day school term finishes and end on the day school resumes.
That unless the parents otherwise agree in writing, the children shall attend the K School, Suburb S for their primary education.
That for the purposes of changeover, if the children are attending school/pre-school then the children shall be collected from or dropped off at the school/pre-school. If the children are not in attendance at school/pre-school then, unless otherwise agreed in writing, the mother shall deliver the children to the father’s residence at the commencement of his time and the father shall deliver the children to the mother’s residence at the commencement of her time.
That the father is restrained from allowing or permitting any member of his family to be present during any changeover.
That in the event that the parents are unable to agree on winter and summer sports for the children, the mother shall be entitled to choose the winter sporting activity and the father shall be entitled to choose the summer sporting activity.
That each parent ensure that the children attend any training, rehearsal, game, performance, presentation or other event associated with the children’s chosen summer and winter sports during the time the children are in the care of that parent.
That each parent shall advise the other by email in a timely manner of any sporting, social or other activities which the children or any of them may attend or which that have been invited to attend and which are scheduled to occur during the other parent’s time with the children. The parent with whom the children are spending time during the scheduled activity or event shall make the decision as to the attendance of the children/child, shall not unreasonably withhold their consent for the children’s/child’s attendance, shall RSVP as necessary in a timely manner and shall use their best endeavours to ensure the children’s/child’s participation in the activity.
The parents shall use their best endeavours to ensure the children are brought up in their religious faith.
That on one (1) occasion in each even numbered year commencing in 2018, the mother is permitted to travel overseas with the children for a period of not more than three weeks (21 days), during the period that the children live with her in the Christmas holidays, provided that:
(a)She has given the father at least sixty (60) days’ notice of such intention to travel in advance of the date of travel; and,
(b)Travel is only to countries who are signatories to the Hague Convention; and,
(c)She has given the father an itinerary which includes departure and return dates, location/s of travel, accommodation and contact details of the accommodation and her preferred contact details whilst overseas; and,
(d)She has given the father a copy of her return ticket and copies of the return tickets for each of the children together with their travel insurance and details of any vaccines needed; and,
(e)She has deposited an amount of $20,000 as surety into the trust account of a solicitor nominated by the father, such surety to be paid directly to the father in the event the children fail to return from overseas without reasonable excuse seventy-two (72) hours after the return date and time on the ticket.
That on one (1) occasion in each odd numbered year commencing in 2019, the father is permitted to travel overseas with the children for a period of not more than three weeks (21 days), during the period that the children live with him in the Christmas holidays, provided that:
(a)He has given the mother at least sixty (60) days’ notice of such intention to travel in advance of the date of travel; and,
(b)Travel is only to countries who are signatories to the Hague Convention; and,
(c)He has given the mother an itinerary which includes departure and return dates, location/s of travel, accommodation and contact details of the accommodation and his preferred contact details whilst overseas; and,
(d)He has given the mother a copy of his return ticket and copies of the return tickets for each of the children together with their travel insurance details and detail of any vaccines needed; and,
(e)He has deposited an amount of $20,000 as surety into the trust account of a solicitor nominated by the mother, such surety to be paid directly to the mother in the event the children fail to return from overseas without reasonable excuse seventy-two (72) hours after the return date and time on the ticket.
The passports currently held in the Family Court of Australia, Sydney Registry, shall be released to the mother within seven (7) days and she shall retain the passports for the second half of each calendar year and the passports shall be retained by the father for the first half of each calendar year.
That the children’s names shall be removed from the Airport Watchlist effective from 1 January 2018.
That each parent shall:
(a)Ensure for all non-emergency medical situations, the children attend upon the Suburb L Medical Centre unless otherwise agreed in writing or unless such attendance is not reasonably practicable (such as if the children are away on a holiday);
(b)In the event that a child is prescribed medication, notify the other parent of the prescribed medication as soon as practicable thereafter, but not later than twenty four (24) hours after the medication has been prescribed and ensure that the medication will be provided to the other parent and the parent being provided the medication will ensure that it is given to the child as prescribed and returned to the other parent at the conclusion of the child’s time with that parent.
(c)In the event that any of the children are involved in a medical emergency, notify the other immediately and provide details of the health care professional or medical facility upon which the child attends.
That other than as provided in Order 12, neither parent shall enrol the children in any extra-curricular activity which takes place in the time that the children spend with the other parent, unless that parent agrees in writing by email.
That each parent be at liberty to attend:
(a)the child’s sporting and extracurricular activities; and
(b)any school functions, activities and events that allow for parental attendance, including but not limited to concerts, plays, sporting, open days, excursions, fetes, speech nights, assemblies, parent and teacher interviews, canteen duties and social functions.
That each parent shall inform and keep the other informed at all times of their respective residential addresses, telephone contact numbers, email addresses, and any other information necessary for the children to communicate with the other parent, and shall notify the other parent of any changes thereto within forty eight (48) hours of the date of such change occurring.
That these Orders shall be sufficient authority for any school attended by the children to provide to the mother and the father, copies of any material ordinarily provided to parents, including but not limited to, school reports, reports on school progress and behavioural issues, school photograph order forms, circulars and school bulletins, invitations, and notices of parent and teacher meetings and sporting events, and in the event that the child’s school refuses or is unable to provide copies of same to both the mother and the father individually, then the mother shall provide copies to the father as soon as is practicable.
That in the event that the passports of the children have expired, or upon expiry of those passports, the mother and father are responsible for making application for issue of further Australian passports for the children under the Australian Passports Act 2005 (Cth) (or any Act replacing that Act and making like or similar provision), and both parents shall do all acts and things and sign all documents necessary to ensure that the passports are renewed and shall equally share the cost of the passport renewal or replacement.
That the parent with whom the children are living/spending time with in accordance with these Orders shall facilitate telephone or such other similar means of communication with the other parent, at any reasonable time, upon the request of the children or any of them.
That within fourteen days (14) of the date of these Orders, the parents approach Dr M of N Centre, or such other suitably qualified person as agreed between the parents, for the purpose of organising and participating in family therapy. Such therapy shall be with, or without, the children and at such frequency, and for such duration, as recommended by the therapist.
That Dr M or such other therapist be provided with a copy of Dr E’s report in these proceedings, dated 19 April 2015, and a copy of these Orders and judgement.
That the therapy provided by Dr M or such other family therapist be non-reportable.
That with respect to further psychiatric treatment, the parents follow the advice of Dr M and/or their general practitioner and shall attend upon a psychiatrist or psychologist in accordance with those recommendations.
In the event that either parent obtains further psychiatric/psychological treatment, they are at liberty to provide that psychiatrist/psychologist with a copy of Dr E’s report in these proceedings, dated 19 April 2015, and a copy of these Orders and judgement.
That each of the parents are hereby restrained by injunction from:
(a)showing the children any documents relating to these proceedings, discussing these proceedings in the presence or hearing of the children, or permitting any other person to do so;
(b)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent, or any member of the other parent’s household or extended family to or in the presence or hearing of the children and each parent must use their best endeavours to ensure that no other person does so; and
(c)using physical discipline with the children.
That pursuant to Sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5653 of 2013

Ms Trent

Applicant

And

Mr Trent

Respondent

REASONS FOR JUDGMENT

D born in 2009 (“D”), C born in 2010 (“C”) and U born in 2012 (“U”) are the children of Ms Trent (“the mother”) and Mr Trent (“the father”).
The mother who was born in Country O has lived in Australia since 1986 and is an Australian citizen.
The parents married in 2008 and lived in a home which they purchased in Sydney. In August 2011 the father was offered a two year employment contract in Singapore and the family moved to Singapore.
On 5 August 2013 the mother left Singapore with the children and returned to Australia. Initially it had been agreed between the parents that the mother would come to Australia for two weeks. On 15 August 2013 the mother was told, by the medium of a telephone conversation between her father, Mr P, and the paternal grandfather, Mr Trent, that the marriage had finished. On 29 August 2013 the father made an application to the Singapore Central Authority pursuant to the Hague Convention seeking the return of the children to Singapore (“the Hague Convention proceedings”). On 26 September 2013 the mother commenced proceedings in the Family Court of Australia seeking parenting orders.
On 3 October 2013 interim Orders were made by consent, pending the determination of the Hague Convention proceedings, providing for the children to live with the mother and spend time with the father. Provision was also made for maintenance and the return of the property of the mother and the children.
On 16 December 2013 the Hague Convention proceedings were discontinued and final Orders were made by consent for the children to live with the mother in Australia and spend time with the father. Those Orders provided that the mother and the father have equal shared parental responsibility for the children and that they would be raised in the Roman Catholic religion. The Orders specified that the children were to attend a particular medical practice and that they would attend K School at Suburb S for their primary schooling.
The Orders were made in contemplation of the father remaining in Singapore and set out the time the children were to spend with the father in incremental steps. As will be apparent later in these reasons there is a considerable disagreement between the parties about the interpretation of Order 7.6 of those Orders.
Orders 12 and 13 permitted the father to remove the children from Australia for the purpose of taking them on holidays during his holiday time with the children and for the mother to remove the children from Australia to take them on holidays overseas.
Significantly the Orders contained the following notation:
A.The mother and father agree that if the father moves to Sydney he may seek to spend additional time with the children and at that time he shall:
A.1. Invite the mother to attend mediation with a Family Dispute Resolution practitioner; and
A.2. If an agreement is unable to be reached with the mother then the father may initiate proceedings to seek parenting orders without having to overcome the Rice v Asplund threshold.
On 10 February 2014 Orders were made after defended proceedings for spousal maintenance and child support.
On 3 March 2014 the father resigned his position in Singapore. On 12 March 2014 the father’s solicitors wrote to the mother advising that he was resigning his position in Singapore and returning to Australia. Because of conditions of the father’s contract of employment he was unable to take employment in Australia.

On 18 June 2014 the father applied to discharge the Order for spousal maintenance. The mother was unable to maintain the rent on her premises and, on 31 October 2014, moved into the home of her parents which had been renovated to provide separate living accommodation for her and the children.
On 16 May 2014 the mother filed a further Amended Initiating Application in the Family Court of Australia seeking orders for the discharge of the consent Orders of 16 December 2013. The mother sought an order that she have sole parental responsibility for the children and an order that the father be restrained from bringing the children into contact with the paternal grandmother, Dr Trent (“Mrs Trent”) and restraining Mrs Trent from attending at the children’s school, preschool or other activities.
The Court was assisted by an independent children’s lawyer (“ICL”) and by a report from an expert Dr E, a child and family psychiatrist in private practice. Dr E’s report dated 19 April 2015 was in evidence and Dr E was cross-examined.
The mother relied upon evidence from each of her parents who were cross-examined. The father relied upon evidence from each of his parents who were cross-examined.
Although each of the parties filed voluminous affidavit material setting out their grievances one against the other dating back to the time they met it was apparent that there were in fact only four issues before the Court for determination. Those issues were:
A.     Whether the mother should have sole parental responsibility for the children or whether the parties should have equal shared parental responsibility;
B.     Whether the children should spend five nights each fortnight as was recommended by Dr E and agreed by the mother or six nights each fortnight as the father sought, and the way in which those nights should be structured;
C.     Whether the children should spend half of their school holiday periods with their father or a lesser period as contended by the mother; and
D.    Whether the mother should be permitted to travel overseas, and particularly to Country O, with the children.

HOW MANY NIGHTS EACH FORTNIGHT SHOULD THE CHILDREN SPEND WITH THE FATHER

Little of the material in the voluminous affidavits assisted the Court in making a decision about this issue. Whilst each of the parents complained about the behaviour of the other there was no submission which linked that behaviour or the effects of that behaviour to the time the children should spend with their father.
The evidence in relation to that issue is contained in the report of Dr E and in his oral evidence. An important matter in Dr E’s consideration was the psychological and mental health concerns in relation to each of the parents. His evidence in relation to this issue was not challenged.
Dr E observed that both parents have anxious and obsessional temperaments and are both quite sensitive to criticism or perceived rejection. Dr E observed:
Each of the parents was quite emotionally needy within the parental relationship, but each often expressed that need in unconstructive ways. Each had good intentions towards the other, but was disrupted in their capacity to provide for the emotional needs of the other.
Dr E also observed:
Each parent has ongoing vulnerabilities in terms of personality functioning, mental health and relational capacity, and each parent thus carries a risk of future personal and functional disruption or decompensation under stress. But, each parent, having recovered from their struggles during the parental relationship, is now in my view minimising, denying or disowning their own vulnerabilities. Each would improve their resilience by instead owning and (with professional assistance) talking through and seeking to address those vulnerabilities.
Dr E observed that in his view of the two parents the mother has the stronger personality functioning and parenting capacity and that the children would be best served by forming a foundation of connection and “home” in the mother’s care. Dr E opined that the father has:
…adequate personality functioning and parenting capacity to allow for the children to benefit from substantial and significant time with him, with a greater ordinariness and a reduction in the tensions involved in handovers by him collecting the children from and delivering them directly to school or child care where possible.
Dr E observed that both of the parties have a dependence upon their own parents. In his report he stated (emphasis in original):
The mother’s has been more an idealised dependence, and the father’s a hostile-dependence, but my impression is that there was a lot of emotional investment and warmth or heat in each parent’s relationship with their own parents prior to their meeting, and subsequently in the couples interactions with both sets of their parents. For some time during the partner relationship, the father appeared to take on the maternal grandparents and alternative parental support figures, and to enact his bond with his own parents through a hostile resentful challenge to them to measure up.
Post-separation, each parent has turned to their own parents and extended family. Whilst this split along blood-lines has amplified partisan perspectives, it has also provided support and backup for each parent and thus for the children. Because each parent has their vulnerabilities, this support and backup is important, in terms of the depth and resilience of the parenting resources available for the children.
In this regard, another reason for my suggesting that the children would be best served by forming a foundation of “home” in the mother’s care is that I feel the mother’s relationship with her parental and extended family support system is more functional and stable than is the father’s. When the mother feels stressed or threatened she tends to turn towards her parents and support system in a way that is effective in eliciting support and backup, whereas when the father feels stressed or threatened, he can become defensive, oversensitive, and can attack or split away from his parents and support system in a way that would increase the risk to the children were they in his care, as he would be cutting off his supports at the time that he most needed them.
In relation to the mother’s mental health and parenting capacity Dr E found that the mother carries a vulnerability to anxiety and obsessionality, which is likely related to an underlying sensitive, anxious and obsessional temperament, and to personality factors discussed below. Dr E said “Currently, the mother’s anxiety is not causing significant distress or dysfunction, and thus I would not describe her as having a current anxiety disorder. But, she likely met criteria for the same in the past, and may do so again in the future.”
The mother herself in cross-examination acknowledged that she agreed with Dr E’s assessment. The mother also accepted Dr E’s recommendation was that she seek the assistance of a psychiatrist for the next ten years.
In relation to the father Dr E said in his report (bold emphasis in original) “I think it likely that the father has a depressive order, recurrent, currently in sustained remission.” Dr E said:
Like the mother, I observe that the father has quite an anxious and obsessional personality style, with associated idealism and perfectionism. Whilst the mother has a need for control and order, the father has a need for acknowledgment, affirmation and admiration. When the father feels secure in the acknowledgment and affirmation of others, his obsessional personality style is an advantage, and “brings out the best” in him.…
But, the father carries significant personality vulnerability, which I would term narcissist personality traits. For the father, this is a fragile secondary narcissism. Primary narcissism occurs when a person carries a secure and stable belief in their own special and admirable status. Secondary narcissism is a tough / superior psychological defence against underlying insecurity, and I feel that this describes the father.
In addition, the father shows some borderline personality traits, with instability of emotion, thinking, relationships, and perspective on relationships, and self-harm impulses. Under pressure, he is prone to unstable shifts between idealising and devaluing in relationships, and prone to intense anger at himself and others in response to perceived slight.
Dr E went on to say in relation to the father:
A key vulnerability of the father’s has been his high need for affirmation and admiration from those around him, his associated sensitivity to perceived criticism or negative appraisal, and his defensive, angry, aggrieved and retributive response to that criticism.
Dr E expressed concern that the father, in response to perceived criticism or rejection, can be quite retributive and cruel and lose empathetic connection with the other person. Dr E expressed the view that:
…the father’s current global attack on the mother’s character and capacity I feel is disingenuous and part of a retributive counter-attack against what the father perceives to be the maternal motive to “try to destroy [his] reputation”.
Dr E reported that the father presented at interview with him as being:
…quite intensely bitter and aggrieved, with a barely contained angry aggression towards the mother. He spoke of her and years of the parental relationship, and in particular of the maternal grandparents, with sarcastic tone, and with a global negativity.
Dr E expressed the view that the father has the capacity to meet the children’s intellectual and developmental needs and that, at a basic level, he has the capacity to meet their emotional needs. Dr E expressed the view that the father may struggle to meet some of the children’s more complex emotional and relational needs because of his own personal vulnerabilities. He said in his report:
The father may struggle to understand and respond empathetically to the children’s emotional needs, and his need for affirmation and positive regard may make it difficult for him to maintain positive and child-focussed parenting if a child is dismissing of or defiant towards him. This latter concern might particularly be evident in adolescence.
In my experience, the children, particularly [D] who appears quite vigilant and keen to receive positive regard from adults, are likely to develop a degree of anxious-avoidant attachment style in relating to the father, where they supress their own needs and desires, and focus instead on giving positive “mirroring” to the father, that is affirming their love and valuing of him, in order to continue to bring out the best in him. This is a positive adaptation, but can be wearing, and limiting of emotional and relational development if it becomes the child’s predominant relational style.
Dr E recommended that the father also seek assistance from a psychiatrist for the next ten years. The father, in his oral evidence, emphatically rejected that recommendation.
Dr E also recommended family therapy for the parents and the children and both parents accepted that recommendation. Orders will be made accordingly.
In relation the amount of time the children should spend with their father Dr E in his report said:
In my view, the father’s parenting capacity is related to the children’s “dose” of time with the father.
If the children spend significant, but well less than 50%, of their time with the father, the father will fill this time with energetic and positive and meaningful engagement, and the children will mostly look forward to and enjoy this. The children will thus give the father the acknowledgment, affirmation, appreciation and even idealisation that he needs, and will continue to bring out the best in him.
If (as I expect) the children over time develop and anxious-avoidant attachment style, with a pattern of them meeting their father’s need for affirmation, this is adaptive and not burdensome if it is not constant and not their predominant attachment style. The children have a home of relationship with the mother, that in my view will be more balanced, focussed on their needs, and welcoming of and resilient to more complex and even negative relational responses.
Dr E’s assessment of the father’s psychological and emotional state was not challenged.
In cross-examination by senior counsel for the father, Dr E said that he preferred an arrangement where the children spend five nights a fortnight with him to an arrangement where they spend six nights because he had assessed that it necessary for the children to have a clear and substantial home base with their mother. He was of the view that an arrangement whereby they spent nine nights a fortnight with their mother would be more likely to induce feelings of security and a “robust outcome” for the children.
It was Dr E’s view that the five days with the father which he recommended should commence immediately and be split so that the children spend three days in one week with the father and two days in the next week. Dr E suggested that the children should spend Friday, Saturday and Sunday nights with the father in one week and Wednesday and Thursday nights in the alternate week so as to minimise changeovers.
It was Dr E’s evidence that when U reaches four and half years, that is in January 2017, the children should spend a block of five nights with their father each alternate week.
I accept the evidence of Dr E that the appropriate period for the children to spend with their father is five nights per fortnight.
Dr E in his report recommended that the children spend half of each school holiday period with their father. The father sought orders to that effect. The orders which were sought by the mother provided for a substantial decrease in the holiday time that the children currently spend with their father. Pursuant to the Orders made 16 December 2013, commencing with the second term school holidays of 2015, the Orders provide for the children to spend one half of each school holiday period with their father.
The orders sought by the mother are as set out below:
From the date of these orders until the conclusion of the term 4 December 2018/January 2019 holidays, during the school holidays as agreed between the parties, but failing agreement, as follows:
i.At the conclusion of term one, from after school on Friday until 9am Monday in the first week of the Holidays and 9am Friday until 5pm Sunday on the last weekend of the school holidays;
ii.At the conclusion of terms two and three, for 4 nights, commencing from 5pm on the last day of school until 9am on the fifth day and from 5pm on the last Friday until 5pm on the last Sunday of the school holidays;
iii.At the conclusion of term 4, for 3 nights, commencing from 5pm on the last day of school until 9am on the fourth day of the school holidays, for 4 nights from and from 5pm on 29 December until 9am on 2 January and from 5pm on 22 January until 9am on 26 January.
From the commencement of the holidays at the end of term 1 2019:
i.In odd numbered years, for the first half of each of the Term 1, 2 and 3 school holidays from 5pm on the last day of the school term until 5pm on the second Saturday of the school holidays;
ii.In even numbered years, for the second half of each of the Term 1, 2 and 3 school holidays, from 5pm on the second Saturday of the school holidays until 5pm on the last Sunday of the school holidays;
iii.In the term 4 school holidays, each alternate week, commencing in week one in even numbered years and week 2 in odd numbered years;
d) At such other times as agreed between the parties from time to time in writing.
It can readily be seen that the mother’s orders constitute a considerable lessening of the time that the children will spend with their father during school holiday periods. The children have already spent two periods of seven days with their father during holidays and apparently enjoyed those holidays. The mother says that the children were a little unsettled when they were returned but no more.
What is inexplicable in the mother’s position is that, for example, in 2016, having been with their father for periods of time increasing over the holidays in 2015, they will return to the regime which the mother proposes at the conclusion of term 1, the time will gradually increase until the term 3 holidays and in 2017 will again retreat to the lesser position.
The mother was unable to explain the logic of that position.
The Christmas school holidays should initially be shared week about. That is the position of each of the parties. When U has been at school for a year and the block periods of five nights with the father have been in place for two years, that is for the Christmas holidays in 2018, the holidays should be split equally between the parents in two block periods.

OVERSEAS TRAVEL

The father seeks orders that would prevent the mother from ever travelling overseas with the children. It is his assertion that she is a flight risk. He bases that assertion upon the fact that she left Singapore with the children; his allegation that the maternal grandmother, Ms P, said to him on 31 December 2013 that he would not see the children for twenty five years; and the fact that after the father informed the mother, through his solicitors, that he intended to return permanently to Australia, the maternal grandfather, Mr P, sold a number of assets.
The mother left Singapore with the children with the consent of the father although it is clear that he did not consent to her relocating to Australia and thought that the visit would be temporary. She returned to live with her parents in the country of which she is a citizen and where she had lived since she was eight years old. I do not consider that her having left Singapore in those circumstances is corroborative of the father’s concerns that she is a flight risk.
In relation to the alleged threat by Ms P, both the mother and Ms P deny that the threat was made.
The father gave evidence that it was. Mrs Trent, the paternal grandmother, said that the threat was made and Mr Trent, the paternal grandfather, says that he heard the threat made.
The incident on 31 December 2013 bears further comment. The children were staying with the father at the home of the paternal grandparents at Suburb Q between Christmas and New Year and were to be collected by the mother at 9.00 am. The mother, in her affidavit sworn 6 August 2015, gives the following account of that event:
On 31 December 2013, I was met by [the father], [the paternal grandparents], [Ms R], [Ms S], [Mr T] and another male in the driveway of [Mrs Trent’s] [Suburb Q] residence. A verbal altercation occurred. [Mrs Trent] had her video camera and was filming. She placed the camera into my car as I was buckling the children into their seats and was filming my actions. She also stood one metre from me when I was in the driver’s seat and filmed [the father] yelling. Not once did any of their family members help to diffuse the situation but rather antagonised it and looked (and filmed) on.
Mrs Trent was cross-examined in relation to this incident. She agreed with the first three sentences of the mother’s affidavit. Mrs Trent denied that she placed the camera in the car as the mother was buckling the children into their seats and filmed the mother. She did not know whether she had stood a metre from the mother and denied that the father had been yelling. She agreed that nobody in the family attempted to diffuse the situation but denied that they antagonised it. Mr Trent was also cross-examined. He said that he had distinctly heard the conversation.
In the course of Mrs Trent’ cross-examination she was asked to produce the footage of the film she had taken on 31 December 2013, and that footage was made available the next day. Ultimately the footage was tendered in the mother’s case and viewed in Court. The footage supports the mother’s version of the events. Mrs Trent had her video camera inside the mother’s car. She was standing very close to the mother when she was filming. The father yelled at the mother in the presence of the children. The video footage demonstrates that when the three children were buckled into their seats in the back seat of the mother’s car, and the mother and Ms P (who did not at any time get out of the car) were sitting in the car, the father yelled at the mother through the open window on the driver’s side of the car, accusing her, in the presence of the children, of having hit D. He refused to restrain himself when the mother told him that he should not be speaking to her in this way in front of the children. One of the female members of the family joined in the conversation and accused the mother of having hit D. Nobody attempted to diffuse the situation or to restrain the father from acting so inappropriately in front of the children.

It is agreed by counsel that the word “25” can be heard. Having watched the video footage now on a number of occasions, I agree the word “25” is spoken but it is impossible to know who was talking. Ms P did not at any time get out of the car and cannot be seen on the video footage to be engaging in conversation with either the father or his mother. Mr Trent does not appear to be standing in the proximity of the car at the time and it is unlikely that he could have overheard.
Having viewed the video footage in Court in the presence of the parents I find the behaviour of the father and the paternal family to have been appalling on that occasion.
The video footage does not support the father’s allegation that Ms P threatened to remove the children from Australia.
In relation to the disposition by Mr P of assets, he was cross-examined and explained the manner in which assets had been sold and the money reinvested, primarily in extensive renovations to his very substantial home in Sydney. I do not accept that the fact that Mr P sold assets and utilised the money for other purposes, as was comprehensively explained by him, is evidence that the mother is a flight risk.
Both Mr and Ms P gave evidence that they have no property in Country O and they have no intention of returning to live in Country O. The mother has no property in Country O and she also gave evidence that she had no wish to return to live in Country O although, she said, she would like to visit because she has relatives there and the children have, in the past, enjoyed aspects of life in Country O, particularly the animal life.
The mother is very reliant upon her parents for both physical and emotional support. It is unlikely that she would choose to live with the children away from their assistance. Her only source of income is a social security payment and the child support which the father contributes. She does not have the means to establish herself in another country. Mr P has offered to pay a bond of $20,000 to secure the mother’s return to Australia in the event that she is permitted to travel overseas.
The only place the mother, presently, has any wish to visit is Country O which is a Hague Convention country.
I do not accept that the mother is a flight risk and orders will be made which permit both of the parents to travel overseas with the children.
There is a dispute about when that travel should be permitted to commence. The mother asks the Court to make an order that she can travel from the Christmas holidays in 2016. The ICL proposes that the travel should not commence until the Christmas holidays in 2018. Pursuant to the final Orders that will be made, by 2018 the children will be settled into a routine spending five days a fortnight with their father and he will have the opportunity to spend a block period of the school holidays with them. In my view that is the appropriate time for the mother to be permitted to travel overseas.

PARENTAL RESPONSIBILITY

The mother asks the Court to make an order that she have sole parental responsibility for the children. The father asks for equal shared parental responsibility.
There is a presumption in s 61DA of the Family Law Act 1975 (Cth) (“the Act”) that it is in the best interests of a child that the parents have equal shared parental responsibility when making parenting orders. The presumption is rebuttable.
The relevant paragraphs of s 61DA are set out below:
Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
There is no allegation that the father has engaged in any act of abuse of the children. There is no allegation of family violence. The mother, in her application, therefore relies on s 61DA(4).
The Full Court in Dundas & Blake (2013) FLC 93-552, in relation to parental responsibility, said at 87,408 – 87,409:
56.
Her Honour’s discretion in determining the question of parental responsibility was not at large. Her Honour’s discretion was circumscribed by s 61DA, which requires the court to apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. In this case, as we have already indicated at [34], her Honour was required under

s 61DA(4) to rebut the presumption “by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child”.
57. In our view, her Honour was in error in making an order for sole parental responsibility. Section 61DA is mandatory in its requirement that the presumption must be applied until a level of satisfaction upon the evidence is reached that it would not be in the interests of the child for it to apply…
58. It is not, in our view, sufficient for her Honour to point to the parties having poor communication or little confidence in each other’s parenting capacity.
At Paragraph 61 their Honours said:
In our view, the mandatory requirement to apply the presumption, unless the evidence satisfies the court that it is not in the best interests of the child, makes it necessary for there to be explicit and cogent reasons why the presumption should be rebutted.
Therefore, in order to determine all of the issues between the parents, in particular the mother’s application for sole parental responsibility, it is necessary to look to the matters in s 60CC in order to determine what is in the children’s best interests.
The mother relies, in support of her application, on an asserted inability of the parents to communicate in relation to the children.
There have been difficulties in communication. The father has at times insisted that they communicate through their respective solicitors. The mother relies on 190 text messages to the father. He replied to 84 messages.
However, the issue is not their inability to communicate but their inability to reach an agreement.
The parents cannot agree on what sport D plays in winter. On the weekends that he is with his mother he plays soccer. On the weekends that he is with his father he plays rugby. The father will not take D to soccer training in his time. This is not an issue that will be assisted by the allocation of parental responsibility but is illustrative of their inability to agree.
Although the parents consented to Orders that the children attend K School in December 2013, the father now wants them to attend V School.
Although they consented to Orders nominating a medical practice for the children to attend, the father now wants the children to attend a different practice.
There is no trust between the parents. That absence fundamentally underpins their inability to reach agreement about day to day and long term issues for the children.
The father believes that the mother has behaved in a sexually inappropriate manner with her own father and towards the children. The father relies on the fact that Mr P kisses the mother on the lips (as does Ms P), a fact that the mother freely admits. The father places further reliance on the fact that Mr and Ms P were present in the delivery suite when C was born (as was the father). The father tendered photographs taken in the delivery suite. The obstetrician was clearly present and presumably other nursing and medical staff as well. A photograph was taken as the baby was born and another as the father cut the umbilical cord. The photographer was standing at the end of the delivery table. The father said that it was Mr P who took the photographs although other photographs show Ms P holding a camera. In one photograph, the mother is holding the baby on her chest and Ms P is kissing the mother on the mouth.
Both Mr and Ms P gave evidence of the circumstances whereby they were in the suite when C was born. Both deposed that they were asked by one of the parents to video the delivery but were reluctant to do so. Mr P stood where he could not see the delivery. He deposed that he did not take video footage of the birth but took some photographs after C was born. Mr P deposed to an overwhelming recollection of feeling awkward. Ms P has never seen the video footage and regards it as private to the parents.
Neither Mr nor Ms P was cross-examined in relation to that evidence.
Neither the mother nor Mr and Ms P saw anything concerning in the photographs. Clearly the mother and the father were both aware that the photographs were being taken at the time. Why the father gave them a sinister interpretation is unclear. The father’s mother, Mrs Trent, also gave evidence that she found the photographs disturbing.
Also tendered in the father’s case is a folder of photographs of the boys as babies. The father and Mrs Trent both gave evidence that they found the photographs disturbing and inappropriate because of the number of photographs (there were 20 in all although Dr H refers to having been shown 35), because of the focus on the genitalia of the children and because the photographs had been allegedly hidden by the mother.
The father found the photographs on the family computer after the mother left Singapore. There is no suggestion that he could not have seen them at any time before that. The father showed the photographs to Dr E and to the Department of Children and Family Services to whom he made a report.
Dr E was not asked about the photographs in cross-examination by senior counsel for the father.
The first two photographs show a tiny baby in the bath being held. Mrs Trent gave evidence that the baby is shown being held, inappropriately, by its genitals. My observation is that an adult’s hand is holding the baby’s torso.
Eleven photographs show a tiny baby in a baby bath. Four show Mr P with one or two of the children in a swimming pool. The children, probably C and U, are naked. The youngest child depicted in those photographs is about six months old. They are charming family photographs.
The insistence of the father and Mrs Trent that the photographs are sinister and depict an abusive relationship is but one of the matters that has led to the destruction of trust between the parents.
In relation to the parents’ inability to agree upon long term issues for the children, the primary dispute between them at the present time relates to medical treatment for the children and, in particular, for D. The father believes that the mother suffers from Munchausen Disease by Proxy (“Munchausen”), that the children are excessively treated by doctors and that they are at risk if the mother is allowed to have control of their medical care.
Documents tendered in the father’s case record that, in Singapore, D had been diagnosed with bilateral otitis media, vasometer rhinitis, tonsillitis and a tongue tie. Surgery was planned (with the father’s consent) to address the tongue tie and adenoids and to insert grommets.
C had been assessed for an eating disorder on three occasions in October, November and December 2011. He was treated after swallowing window cleaner on February 2012 and was hospitalised for viral gastroenteritis in May 2012. C was to be referred to an audiologist to assess slurred speech.
U had been treated for reflux, conjunctivitis, sleep issues and croup.
Dr E reviewed the medical material produced on subpoena. It was his impression that the mother had been “quite obsessional and persistent” in seeking out diagnosis and help for the children, herself and the father “but not with deception and not with an intent to gain attention or to have conscious or unconscious needs met through the process.”
Dr E commented that, at interview, the mother did not appear pre-occupied with medical matters and that the children did not appear to carry any awareness of matters relating to illness.
Having reviewed “in depth” the notes produced in relation to the family, Dr E observed that there was no pattern of the mother being deceptive or fabricating symptoms or seeking out medical intervention for its own sake. Rather, he observed that the “mother in her engagement with medical services, is focussed on an identified problem (such as an infant’s sleep or fussy eating, C’s difficult behaviour, D’s ‘glue ear’, or the father’s perceived emotional instability/reactivity) and is seeking a solution”.
Dr E did not identify a pattern of the mother amplifying symptoms in order to extend or intensify treatment.
Dr E disagreed with the statement by Dr H that the mother preferred medication to other treatment options. He stated that was not an accurate reflection of the documents or the mother. Dr E also gave examples of the mother being willing to consider her own contribution to difficulties experienced by and with the children.
In relation to the mother’s own seeking of medical attention, Dr E commented that it was thorough rather than treatment-seeking.
The father was highly critical of the level of medical attention provided to the mother and the children in Singapore. However, he produced no evidence to suggest that any medical practitioner through her consultations, both in relation to herself and the children, were not reasonably necessary.
I now set out a chronology of events which, in addition to the matters detailed above, reveal the progressive breakdown of trust between the parties and their inability to agree upon decisions relating to the children.
In relation to the dispute between the parties regarding the proposed ENT surgery for D, in or about May or June 2013, when the parties were living in Singapore, D and C attended upon Dr W, an Ear Nose and Throat (ENT) surgeon in Singapore. Dr W recommended that D and C undergo a tonsillectomy, adenoidectomy, shaving of septum and insertion of grommets, and also recommended a release of tongue tie for D. The mother deposed that both parents signed the necessary consent forms for the children and undergone blood tests in anticipation of the surgery. The father did not deny that he had signed the consent forms; however, he deposed that he was alarmed by the proposed surgery and asked the mother to obtain a second opinion in Sydney.
As the mother was scheduled to visit Sydney with the children in August 2013, the parties agreed that it was appropriate to obtain a second opinion from a specialist in Sydney.
After the mother returned with the children to Sydney, the lack of trust between the parties in relation to medical matters became chronic.
On 12 August 2013, the mother consulted with a specialist in Sydney, Dr X. The mother was not happy with Dr X’s investigations which she did not observe to be as thorough as the investigation carried out in Singapore. Dr X did not recommend surgery. Dr X prepared a report which was sent to the GP on the same day of the appointment in which he remarked that D was well, that his naval passageway was excellent, and that he was appropriately treated conservatively. The mother did not receive a copy of the report and no copy was sent to the father. The mother deposed “I did not obtain a written report from [Dr X]”. That was disingenuous. She did not ask the GP if a report had been sent or ask for a copy so that it could be sent to the father.
The father telephoned Dr X’s rooms (either as a result of the mother telling him about the consultation or as a result of his having seen a payment to Dr X on his credit card statement) in mid-August 2013. He was told that a report had been sent to the GP.
On 15 August 2013, the mother sent the following text to the father via Whatsapp:
I have asked you to please make contact with me and you are sadly not amendable (sic) to this.
Today, I have no choice but to communicate with u over what’s app as at least I will know u have read my message….(The mother referred to tests booked for herself on the following Wednesday).
I am still waiting and pushing hard for the ENT doctors to see the children earlier- As I told u on the phone, they are currently booked in on the 5th September but there have been no cancellations for the boys to see the doctors (there is a practice of four doctors, initially I was recommended jut (sic) one of them but now have asked to be on the wait list for all four).
I am unsure what you want me to do regarding [C’s] behavioural assessment – are u keen to get it done or not? Please let me know so I can make the necessary arrangements.
On that same day, the father responded:
Thanks [Ms Trent] for letting me know. a) I understand doc sed (sic) boys ears r fine, if anything there are specialists in singapore if need be B) [C] needs his dad not even more assessing, [D] and [C] especially need stability back in their home, with their toys, friends, and school and dad. C) Boys shd (sic) come bac (sic) to school in singapore this week and you can wait for your test results in Syd. I did not agree for any further extension of the boys to be away from home longer than the pre arranged two weeks.
There is a dispute about whether the mother told the father by telephone about either the appointments or the recommendations of Dr X. The mother says she did. The father says she did not and that that he learnt of this appointment on perusal of his credit card statement in August 2013. However, on 15 August 2013, as outlined above, the father in a Whatsapp message said that he understood that the children’s ears were “fine”.
The parties separated shortly after the mother’s arrival in Sydney and the mother remained in Sydney with the children. She consulted Dr Y on 22 August 2013. Dr Y did not recommend surgery for C and recommended less invasive surgery as that recommended by Dr W for D.
On 29 August 2013, the mother’s solicitors wrote to the father and stated:
As you are aware, [D] and [C] have recently attended appointments with [Dr Y], a paediatric Ear Nose and Throat Surgeon….
[Dr Y] has recommended that it is not necessary for [C] to have any surgery.
In relation to [D], ]Dr Y] has recommended that [D] undergo surgery to insert bilateral ventilation tubes, adenoidectomy and division of tongue tie. Could you please indicate whether you are agreeable to [D] undergoing this operation. Our client is of the view that it would be beneficial for [D] to have this surgery before he commences school next year.
The mother’s solicitor advised that Dr Y had availability to carry out surgery on the afternoon of Monday 9 September 2013 and attached a report dated 22 August 2013 by Dr Y outlining his recommendations for D.
Also on 29 August 2013, the father signed an application form authorising the Singapore Central Authority to commence Hague Convention proceedings for the return of the children to Singapore. In the application, the father alleged that the mother was unwell and unfit to take care of the children.
On 2 September 2013, the father emailed Dr Y and informed him that he did not consent to D undergoing surgery.

Dr E in his report recommended that the mother have sole parental responsibility for the children.
He suggested a formula whereby the mother would consult with the father in relation to any major long term decision and consider his views before making a decision. In cross-examination by senior counsel for the father, Dr E said that he did not expect that the mother would be influenced by the father’s views but, rather, that the sort of consultation he recommended would allow the father to consult with any professionals and give his input into the decision of the professional. Dr E said that the father’s input into decisions made by medical practitioners, in particular, would be beneficial for the children.
In cross-examination, Dr E gave the example of one of the children needing prescribed treatment for a non-urgent medical problem such as acne and expressed his concern that the treatment would never be administered because the parents would not agree.
The events of the past two years suggest that Dr E is likely to be correct.
The issue of parental responsibility falls to be determined against the factual and evidentiary background that is set out above.

SECTION 60CC

It is not in dispute that the children will benefit from a meaningful relationship with both of their parents.
There are no allegations of family violence. Dr E in his report stated:
My overall impression is that each of the parents has their vulnerabilities but also their strengths, that the children currently have a positive relationship with each of their parents, that there would be great benefit in the children being able to maintain this meaningful relationship with both parents, and that risk issues can be contained and managed in such a way as to allow for this to occur.
I accept the unchallenged evidence of Dr E about the nature of the children’s relationships with each of the parents. No doubt they have a close and loving relationship with the maternal grandparents with whom they share a home and a close and loving relationship with their paternal grandparents.
The issue of the participation of the parents in decision making for the children relates directly to the consideration of parental responsibility. It cannot be in the interests of these children for there to be no mechanism to break the impasse between the parents. I accept the evidence of Dr E that it is likely that these parents will be unable to agree on significant matters relating to the children’s long term care, welfare and development and that inability may lead to their children’s being denied opportunities and advantages. I do not suggest that life threatening issues would not be attended to, but issues that are less than life threatening may be unable to be resolved because of the inability of the parents to agree.
Nothing in the history that has been recounted earlier in these reasons gives any comfort that the parents will change their method of interaction. Having regard to the high level of the father’s suspicion and distrust of the mother, it is unlikely that they will ever reach agreement about discretionary medical treatment. There is no sign that they will reach agreement about the children’s schooling, either at primary or secondary level. It is not appropriate that the decisions in relation to schooling should have to be made by a Court.
I accept the evidence of Dr E that the mother, who will be the primary carer for the children, should be the parent who will make the decisions as to their long term care, most significantly in relation to medical treatment and education.
The father has failed to take every opportunity available to him to spend time with the children, particularly in the period shortly after the mother and the children moved to Australia but I place no significance on that fact. He was in a difficult situation having work commitments in Singapore and children in Australia. The father’s unwillingness or inability to attend the appointment with Dr DD on 15 December 2014 is of greater concern, particularly when he subsequently refused to follow her advice and allow the children to see Dr JJ.
Whilst there are disputes between the parents about the father’s payment of child support, particularly in the period shortly after the father returned to Australia from Singapore, and the father’s payments have been irregular, I am satisfied that the father has eventually paid child support in accordance with the assessment.
Dr E dealt at length with the effect on the children of any change in their circumstances, the parenting capacities of each of the parents and the attitude of each of the parents to their responsibilities. His evidence, which was not challenged has been set out earlier in these reasons and need not be repeated.
In his oral evidence, Dr E said that it is unlikely that a requirement that the parties attend mediation in the event of a dispute would ameliorate his concerns about the difficulties for these parents in making a joint decision. He said that, for the children, a lack of agreement on any issue that requires the co-operation of both parents had the potential to be very damaging if they cannot agree. He expressed his concern that any dispute between the parents had the potential to result in angry contention for months, even years.
In relation to the father, Dr E said that he was influenced by his concern that the father projects blame on the mother and is unwilling to consider his own responsibility for any difficulties. Dr E’s observation accords with the father’s evidence in cross-examination and his unwillingness to consider Dr E’s recommendation for ongoing psychiatric assistance.
It is likely that, if the parents retain equal shared parental responsibility for the children, there will be further disputes, most likely about medical treatment and education which will have to be resolved by court proceedings. Further proceedings are not in the interests of the children or of the parents.
For these reasons it is necessary that the mother have sole parental responsibility, with the requirement for consultation and input from the father that Dr E recommends.

ANCILLARY ISSUES

At the commencement of submissions the ICL handed up a minute of the orders sought. Both counsel then addressed that minute and indicated whether the orders sought by the ICL were agreed and identified which were disputed.
There were a number of ancillary issues which were canvassed during the hearing about which the parents could not agree. In relation to almost all of them, there was no evidence in support of the position of either parent. I am left to decide those issues on the basis of objective reasonableness.

SPORT

The father wants D to play rugby in the winter. The mother wants D to play soccer. The ICL submitted that the mother should choose a winter sport and the father a summer sport for all of the children when appropriate. The father then proposed that he choose the winter sport. The ICL had spoken to D about this issue. I accept the proposal of the ICL and orders will be made accordingly.
Although the parties did not specifically raise the issue of other extra curricular activities for the children, in order to avoid further disagreements, the parents will be restrained from enrolling the children in activities that take place during the time the children spend with the other parent unless they both agree.

DEFINITION OF SCHOOL HOLIDAYS

The mother seeks a definition that school holidays do not include pupil free days. There was no reason advanced for that proposition. School holidays should be defined as proposed by the ICL to commence on the day the term finishes and end on the last day before the children attend school for the next term.

CHANGEOVERS

The ICL proposed that changeovers take place at school or pre-school where possible. Otherwise the ICL proposed that the father collect the children from the mother’s residence at the beginning of periods of time with him and that the mother collect them at the end of the period. The father agreed with the ICL’s proposal with the proviso that the parents stay inside the house during collection. The mother proposed that changeovers which cannot occur from school or preschool occur at her home.
In relation to school changeovers, Dr E was clear that this is not an opportunity for a parent to linger with the children. He said, and I accept, that having both their parents in the same vicinity would cause anxiety to the children. The handovers, if either parent needs to bring one or more of the children to the school, should be swift.
In relation to the father’s proviso, these are very young children. There is no reason they cannot be handed over between their parents at the front door of the respective homes. There is no need for either parent to linger or to enter the home of the other but this will ensure the safety of the children. The “home parent” should remain inside and allow the children to leave with the other parent.
If the mother delivers the children to the father at the commencement of his time this would be a positive indication to the children that she encourages and supports their spending time with him. The Orders will provide for the father to return them to the mother.
The “home” to which the children are delivered shall be the home in which the father lives on a permanent basis, that is, his current residential address. The mother is not required, unless agreed in writing by email, to deliver the children to any other address, including the Suburb Q address. Having regard to the incident which took place on 31 December 2013, the father will be restrained from having any member of his family present on changeover. The mother should not be subjected to the possibility of a recurrence of that behaviour from the paternal family.

TELEPHONE CONTACT

Dr E gave evidence that telephone contact for the children can be stressful and counterproductive. The ICL proposes orders that would provide for telephone calls to be made only if the children request contact. That proposal accords with Dr E’s recommendation.

MEDICAL PRACTITIONERS

While both parents agree that the children should only attend one medical practice, they do not agree which one. The Orders previously made specify that the children attend the Suburb L Medical Centre. The father now asks that they attend a different practice at Suburb GG.
He advances no reasons other than that he is dissatisfied with the current practice. That dissatisfaction is bound up with the father’s belief that the mother subjects the children to unnecessary treatment and, presumably, his belief that the doctors at the medical centre are complicit in her so doing.
I accept the evidence of Dr E in relation to the mother’s seeking medical attention for the children. Accordingly I do not accept that the doctors at the children’s current medical practice have acted in any inappropriate way.
The Orders will require that the children continue to attend the current practice.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 23 October 2015.

Associate:

Date: 23/10/2015

[2015] FamCA 892

23 October 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies

Injunction