Tyler and Tyler

FAMILY COURT OF AUSTRALIA

TYLER & TYLER

[2019] FamCA 554

FAMILY LAW – CHILDREN – Contested residence.

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

Goode & Goode (2006) FLC 93-286
Jones & Dunkel (1959) 101 CLR 298

APPLICANT:

Mr Tyler

RESPONDENT:

Ms Tyler

FILE NUMBER:

CAC

2015

DATE DELIVERED:

30 August 2019

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Baumann J

HEARING DATE:

22, 23, 24 and 25 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms R Wheeler

SOLICITOR FOR THE APPLICANT:

Australian Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr R Weil

SOLICITOR FOR THE RESPONDENT:

Williams Winter

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms P Treyvaud

INDEPENDENT CHILDREN’S LAWYER:

Schetzer Constantinou

Orders

THE COURT ORDERS BY CONSENT ON A FINAL BASIS:

That all previous orders be discharged.
That the children spend time with the father until commencement of the 2019 school year as follows:
(a)during school term for each alternate weekend from the conclusion of school Friday to the commencement of school on Monday commencing on 26 October 2018;
(b)for the long summer holidays:
(i)with the father from the conclusion of school 21 December 2018 to 5.00pm on Friday, 4 January 2019;
(ii)with the mother from 5.00pm on Friday, 4 January 2019 to 5.00pm on 18 January 2019; and
(iii)with the father from 5.00pm 18 January 2019 to 5.00pm 28 January 2019.
That the children spend time with each parent during the school term holidays as follows:
(a)in 2019 and each alternate year thereafter:
(i)with the mother for the first half of the holidays from the conclusion of school until 5.00pm on the middle Saturday; and
(ii)with the father from 5.00pm the middle Saturday for the remainder of the holidays, to the commencement of school.
(b)in 2020 and each alternate year thereafter:
(i)with the father for the first half of the holidays from the conclusion of school until 5.00pm on the middle Saturday; and
(ii)with the mother from 5.00pm the middle Saturday for the remainder of the holidays, to the commencement of school.
That the children spend time with each parent during the Christmas school holidays as follows:
(a)in 2019/2020 and each alternate year thereafter:
(i)with the mother for the first half of the holidays from the conclusion of school until 5.00pm on the middle Saturday;
(ii)with the father 5.00pm the middle Saturday for the remainder of the holidays until the commencement of school for term one (1);
(b)in 2020/2021 and each alternate year thereafter:
(i)with the father for the first half of the holidays from the conclusion of school until 5.00pm on the middle Saturday; and
(ii)with the mother from 5.00pm the middle Saturday until the commencement of school.
That notwithstanding anything contained herein the children shall spend time with the parents on Mother’s day and Father’s Day as follows:
(a)with the mother on the Mother’s Day weekend from the conclusion of school Friday to the commencement of school Monday; and
(b)with the father on Father’s Day weekend from the conclusion of school to Friday to the commencement of school Monday.
That for the purposes of changeover:
(a)All changeovers that occur before and after school shall take place at school;
(b) All changeovers that do not occur at school shall occur as follows:
(i)the mother shall deliver the children to father’s home at the commencement of the time the father spends with them; and
(ii)the father shall deliver the children to the mother’s home at the conclusion of the fathers time.
That both parents be permitted to telephone the children on Christmas Day and each of the children’s birthday each year that they do not spend with the children at 8.00am (Victorian time), with the parent who does not have the children to initiate the telephone call to the other parent’s mobile telephone and the other parent will ensure that the children answer the phone and speak to the other parent.
That the parents use Our Family Wizard for communication with each other.
That the parents and the children engage in family therapy with Dr H at times as proposed by Dr H. Each of the mother and the father pay for their respective sessions with Dr H and the cost of joint attendances or sessions with the children be shared equally by the mother and father.
That the mother undertake treatment with psychologist Dr J. The mother is to attend and continue to attend as recommended by Dr J, with the first appointment to take place on 12 November 2018 at 1.00pm. The mother to be solely liable for the cost of such treatment.
That leave be granted for the Independent Children’s Lawyer to provide the mother’s treating psychologist and Dr H with copies of the family report by Dr B dated 2 September 2016, the psychiatric report by Dr K dated 29 June 2018, the family report by Dr L dated 14 September 2018 and copy of these Orders and the Reasons for Judgment of Justice Baumann.
That the parents each provide the other with no less than seven (7) days prior written notice and particulars of any change of residential address or telephone number.
That neither parent denigrate or criticise the other parent or their partners or family within the hearing or presence of the children nor allow any other person to do so.
That neither parent nor their nominee be permitted to speak to the children about these Court proceedings or permit the children to inspect or read any documents prepared for or in relation to these proceedings including but not limited to any correspondence passing between the parties and/or solicitors, nor allow any other person to do so.
That either parent or their family members be permitted to attend any sporting or extra-curricular activities the children are participating in.
That either parent or their family members be permitted to attend the children’s school during the other parents time with the children.
That both parents be restrained by injunction from taking the children to attend upon Ms M.
That the mother be restrained by injunction from attending upon Dr N or any other treating psychologist save for Dr J or as recommended by Dr J.

THE COURT FURTHER ORDERS ON A FINAL BASIS:

That the parents have equal shared responsibility for major long term issues for the children, C born … 2008 and D born … 2010 (“the children”).
That the children live with the mother when not living with the father.
That the children live with the father during school terms, unless otherwise agreed in writing, as follows:
(a)Commencing Friday, 18 October 2019 from after school Friday to before school Tuesday each alternate week;
(b)Commencing Friday, 7 February 2020 from after school Friday to before school Wednesday each alternate weekend;
(c)The regime of school term time shall recommence, unless otherwise agreed in writing, as follows:
(i)Where the children spend the first half of school holidays with the father then the first weekend of the new school term; and
(ii)Where the children spend the second half of school holidays with the father then the second weekend of the new school term.
That the Independent Children’s Lawyer be discharged.

IT IS NOTED:

A. That although certain orders reflect that they are made by consent now, they were handed to the Court in a certified form on 26 October 2018 but appear to have never been made on that date.

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 Tyler & Tyler 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 BRISBANE

FILE NUMBER: CAC 16 of 2015

Mr Tyler

Applicant

And

Ms Tyler

Respondent

REASONS FOR JUDGMENT

Introduction

These Reasons relate to a parenting dispute concerning two boys, now aged 10 years and eight years, that has engulfed them and their parents almost since the parties separated nearly seven years ago.
The children have always lived with the mother, however the father’s assertion that the mother has “alienated” the children from him, has resulted in the father Mr Tyler seeking an order that the children live with him and his new wife Ms P.
The mother Ms Tyler opposes a change of residence. This has proved to be a matter with some complex dynamics and is quite evenly balanced. The decision the Court has come to as to what is in the best interest of the boys, whilst entirely based on the evidence and a matter for discretion, is also shaped by a hope these parents (but particularly the mother), are able to modify their behaviour into the future; comply with the orders which are now made and give both of their sons collectively and individually the prospect of having a meaningful relationship with the father and mother well into adulthood.

Competing proposals

After four days of evidence, much of it quite painful for these parents, the Independent Children’s Lawyer (“ICL”) produced a certified consent order on 26 October 2018, which dealt with a number of important issues, such orders for context being Appendix One to these Reasons (“the said consent orders”). I make further comments on these orders at the conclusion of these Reasons.
They took account of the likely delay in delivering reasons for some time in 2019. I regret that the delay is probably longer than the parties were entitled to expect. What is noted however, is that no application has been made by either the parents or the ICL to re-open the proceedings since the judgment was reserved. It at least suggests that the orders the parties agreed to make have created a form of “truce” between the parents. The specific orders for the children and parents to engage in family therapy with Dr H (order 9); the mother to undertake treatment with psychologist Dr J from 12 November 2018 (order 10) and ancillary restraints on the mother attending upon a treating psychologist save for Dr J (order 18), are all likely to have assisted to calm down the situation.
Of course, in the absence of any application to re-open, the Court has no actual direct evidence as to compliance with the said arrangements or how effective the agreed strategies to engage with different independent therapists have been, in reducing the conflict between the parents.
I am mindful of the potential for these Reasons to “inflame” rather than “calm” tensions, but despite the period since the hearing of evidence concluded on 25 October 2018, the Court has decided not to initiate a re-opening, although consideration to doing so was given to that course.
Accordingly, the competing proposals which are summarised below record the positions of the parties at the time of the hearing.

Father

The father’s case outline filed 18 October 2018 contained at Annexure A the form of minute that he sought (being Appendix Two to these Reasons) – many of the proposed orders being agreed to by the ICL and the mother at the end of the hearing. Relevantly however, despite agreements as to school holidays, special occasions and engagement in new therapy with different experts, the father maintained that the children should live with him and that he should have sole parental responsibility for major long term decisions.
The father no longer contended for a regime of time conditional upon the mother’s counselling, beginning with three hours each alternate Sunday after the change of residence, graduating to each alternate weekend (Friday to Monday). Instead, the father contended for the change of residence to occur “at the end of the Christmas holiday contact orders” (namely that they concluded the 2018 school year living with the mother), and when the 2019 school year commenced and the children were living with the father, the children would spend time with the mother each alternate weekend (Friday to Monday).
At the core of the father’s position is that he says the mother is alienating the children C and D from him and although not entirely achieved at the time of the hearing, the result is inevitable and only able to be stopped by a change of residence.

Mother

Whilst essentially arguing that the difficulties in the relationship between the boys (particularly C) and the father is not as a result of any of her behaviour, but entirely due to the actions of the father, and certainly not alienating behaviour by her, the mother contends for the current regime for equal shared parental responsibility and that the children live with her.
As to the time the children should spend with the father during school terms, the mother offered in her case outline filed 15 October 2018 a number of alternatives, being:
a)each alternate weekend from the conclusion of school on Friday until the commencement of school on Tuesday (4 nights per fortnight); or
b)each alternate weekend from the conclusion of school on Thursday until the commencement of school on Tuesday (five nights per fortnight); or
c)each alternate Wednesday from the conclusion of school until the commencement of school on Monday (five nights per fortnight); or
d)each:
i)alternate weekend from the conclusion of school on Friday until the commencement of school on Monday; and
ii)Wednesday overnight from the commencement of school until the commencement of school on Thursday (five nights per fortnight).

ICL

In final submissions, Counsel for the ICL contended for a continuance of the children living primarily with the mother and for the children to spend time with the father at all such times as agreed between the parents but during school terms from the conclusion of school Friday to the commencement of school Wednesday – essentially five nights a fortnight.
As already recorded, agreement was reached in respect of school holidays, special occasions and for continuing therapy, but with different therapists.
It follows from the identification of the competing proposals, that the Court is asked to determine:
a)who exercises parental responsibility for major long term decisions;
b)where the children should live, and if a change to the residence of the father is ordered, when that should occur; and
c)what is the regime of time that should be prescribed for the children to spend with the parent they do not primarily live with?
These competing proposals will be analysed within the matrix of the relevant primary and additional considerations which form part of the statutory pathway described next.

Statutory pathway

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.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
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”.
It will give some context to the findings I make to record a relevant history. In so doing, statements of fact hereafter should be construed as findings of fact. I should also mention that none of the Counsel – Ms Wheeler for the father; Mr Weil for the mother or Ms Treyvaud for the ICL (all who deserve credit for the competent and respectful advocacy they demonstrated) – contended that either parent should be regarded as untruthful or unreliable. My own impression was that these essentially competent, caring and generally child-focused parents, have been worn down by the continual and intensive conflict to which they have both contributed, including the litigation.
Where such conflict is so overt and continual, it is hardly surprising that C and D (both aware of the conflict) have struggled at times to manage their parents.

Contextual history

The husband is 52 years of age and holds a senior position in the construction industry. He lives in Suburb O with his wife Ms P with whom he has been living since January 2016.
The mother is 48 years of age and is employed in administration, and lives in Suburb G. The mother has not re-partnered.
The parties commenced cohabitation in 2007, with their sons born in 2008 (C) and 2010 (D).
The parties separated on 27 October 2012 and at around the time of separation the father assaulted the mother, in the presence of the children then aged three and a half years and two and a half years. The mother obtained an interim invention order on 3 November 2012 and the father was charged and convicted of recklessly causing injury and assault of the mother. In these proceedings the Court was not required to undertake an examination of the events surrounding separation or the circumstances concerning the grant of a new interim intervention order in December 2015 (made a final order on 3 June 2016) save it is obvious from the parents’ evidence that they have differing perspectives about these events.
Although these tensions at separation erupting as they did are concerning, perhaps more defining initially for each of the parents (and their view of the other parent), are the events from early 2013 until August 2015. Post separation, without any family law orders, the father’s time was limited to time supervised by the mother for approximately two hours no more often than every second Sunday. In February 2013, the father began working in Canberra and returned to Melbourne approximately monthly but no visits between the children and the father occurred, despite undertaking counselling and a “collaborative process” which, I accept, distressed the father and caused him to regard the mother’s behaviour as “obstructing contact”. The mother, on the other hand, took the view that the father had (by moving to Canberra) almost abandoned the family for his work arrangements. The seeds of mistrust and lack of respect for the other parent were well and truly planted during this period, with changes to care arrangements only occurring when the father returned permanently to Melbourne in August 2015, after which the parents organised alternate weekend supervised visits at the Q Contact Centre for two hours a visit. The parents sought to reach some sustainable orders although the levels of distrust had not subsided and the orders made by consent on 9 September 2015 were clearly, on their face, not final orders at all – relying, for any increase in time from supervised time between the father and his sons, on the recommendations of a named psychologist.

For reasons which are disputed, the supervised routine broke down from 26 February 2016. By that date, the mother had commenced further proceedings for a new interim intervention order; the parties were in conflict around the terms of a Binding Child Support Agreement and the father had commenced cohabitation with his partner Ms P.
After the father initiated parenting proceedings in this Court on 11 July 2016 seeking unsupervised time with C and D, which the mother opposed, Johns J on 22 July 2016 made the following orders:
“1. That the parents and the children attend upon Dr B for the purpose of the preparation of a Family Report on such dates(s) and time(s) as advised by Dr B.
2. That the Family Report deal with the following matters:
(a) Any views expressed by the children and any factors (such as the children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b) The matters set out in ss 60CC, 61DA and 65DAA of the Family Law Act 1975 (Cth); and
(c) Any other matters Dr B considers important to the welfare or best interests of the children.
3. That the costs of the Family Report are to be paid equally by both parents.
4. That within 7 days of the date of these orders each party send to Dr B a copy of that party’s court material.
5. That upon receipt of a sealed copy of these orders the solicitors for the applicant father provide a copy of the sealed orders to the Family Consultant.
By the Court
6. That until further order the children C born … 2008 and D born … 2010 (“the children”) spend time and communicate with the father as follows:
(a) Saturday 23 July 2016 at D’s soccer to watch him play soccer and for one hour after the conclusion of the soccer game, with changeover to occur at the soccer ground at which the match has been played;
(b) Sunday 24 July 2016 at C’s soccer to watch him play soccer and for one hour after the conclusion of the soccer game, with changeover to occur at the soccer ground at which the match has been played.
(c) Saturday 30 July 2016 to watch D play soccer and for a period of two hours after the conclusion of soccer;
(d) Sunday 7 August 2016 to watch C play soccer and for a period of two hours after the conclusion of soccer;
(e) Saturday 13 August 2016 and each alternate Saturday thereafter to watch D play soccer and for a period of five hours from the conclusion of the soccer match, such time to commence at 10.00am in the event there is no scheduled soccer match that day;
(f) Sunday 21 August 2016 and each alternate Sunday thereafter to watch C’s soccer match and for a period of five hours from the conclusion of the soccer match, such time to commence at 10.00am in the event there is no scheduled soccer match that day;
(g) Any other time as agreed between the parents in writing.
7. That the paternal grandmother Ms E Tyler be in substantial attendance during the visits at paragraphs 6(a) and (b).
8. That the mother is to send the father a text message as soon as practicable advising him of the times and locations of the children’s soccer matches.
9. That in order to facilitate changeover where it does not occur at the children’s soccer, changeover will be at the food court at the Woolworths Shopping Centre, Suburb F.
10. That the father is permitted to contact the children’s soccer clubs and provide a copy of these orders and to be added to the mailing list for the children’s soccer fixture.
11. That all extant interim applications are adjourned to the Senior Registrar’s Duty list on 21 October 2016 at 10.00am for interim hearing.”
Pursuant to these orders, a family report was prepared by Dr B released in September 2016 which clearly shaped the final orders made by consent by MacMillan J on 21 October 2016 as follows:
“1. That all previous orders be discharged.
2. That the mother and father have equal shared parental responsibility of the children of the marriage:-
C born … 2008; and
D born … 2010
(“the children”)
3. That the children live with the mother.
4. That the children spend time and communicate with the father as follows:-
(a)From after school or 3.30pm Friday 14 October 2016 until 4pm Saturday 15 October 2016;
(b)During the school term on each alternate weekend from the conclusion of school or 3.30pm Friday to school on Monday commencing on the following dates:
i.28 October 2016;
ii.11 November 2016;
iii.25 November 2016;
iv.9 December 2016;
v.3 February 2017;
vi.17 February 2017;
vii.10 March 2017;
viii.24 March 2017;
ix.5 May 2017 (to be returned at 9.00am 7 May 2017 – for Mother’s Day);
x.19 May 2017;
xi.9 June 2017;
xii.23 June 2017;
xiii.7 July 2017 (5.00pm) to 10 July 2017 (5.00pm);
xiv.21 July 2017;
xv.4 August 2017;
xvi.18 August 2017;
xvii.1 September 2017;
xviii.15 September 2017;
xix.28 September 2017 (5.00pm) to 2 October 2017 (5.00pm); and
xx.13 October 2017.
xxi.and every alternate weekend thereafter.
(c)From the conclusion of school at the end of term 4, 2016 to 5pm Monday 26 December 2016.
(d)From 5pm Friday 13 January 2017 to 5pm Sunday 15 January 2017.
(e)From 10am Tuesday 24 January 2017 to 5pm Sunday 29 January 2017.
(f)From 5.00pm Friday 7 April 2017 to the commencement of school Tuesday 18 April 2017.
(g)On C’s birthday on … 2016, from the conclusion of school to 7.00pm (to be returned to the Mother’s residence at the conclusion of the time, with the Mother to remain in her home and the Father to remain in his car).
(h)The Mother will facilitate D calling the father at 10am on … 2017 (D’s birthday) and the father can speak to both children during that call.
(i)Commencing June 30, 2017 the father to have the children from 5PM on the middle Saturday of Term 1, 2 and 3 school holidays until the commencement of school term in odd years.
(j)Thereafter the father to have the children from the end of school term until the middle Saturday 5pm in even years for school holidays Term 1, 2, 3.
(k)At any other time as agreed between the parties in writing.
5. The children to spend time with each parent during the Christmas school holidays as follows:
(a)In 2017 and each alternate year thereafter:
i.With the mother from the conclusion of school to 5pm two weeks later;
ii.With the father from the conclusion of the mother’s time in (a)(i) above and for two weeks thereafter;
iii.With the mother for two weeks thereafter.
(b)In 2018 and each alternate year thereafter:
i.With the father from the conclusion of school to 5pm two weeks later;
ii.With the mother from the conclusion of the father’s time in (b)(i) above and for two weeks thereafter;
iii.With the father for two weeks thereafter.
(c)The times at Christmas at paragraphs (a) and (b) are to be two consecutive weeks alternating for the entirety of the Christmas school holidays and regardless of any other order, the children will live with the mother from 5pm Saturday prior to the school term commencing.
6. The children will be with the mother from 5pm the day before Mother’s Day until 5pm on Mother’s Day regardless of any other order.
7. The father will be with the children from 5pm the day before Father’s Day until 5pm on Father’s Day regardless of any other order.
8. That regardless of any other order to the contrary the children will spend Easter with the parents as follows;
(d)Odd numbered years with the father from 5pm Easter Thursday until 9am Easter Tuesday;
(e)In even numbered years with the mother from 5pm Easter Thursday until 9am Easter Tuesday.
9. Both parents be permitted to telephone the children on the children’s birthday at 6pm.
10. That both parents be permitted to telephone the children on each alternate Saturday (on the weekends that they do not spend with the children) at 7.00pm, with the parent who does not have the children to initiate the telephone call to the other parent’s mobile telephone and the parent with whom the children are spending time with will ensure that the children are available to answer the calls and speak to the other parent.
11. The children will be permitted to telephone either parent’s mobile telephone at all reasonable times and the parent with whom the children are living/spending time with, are to facilitate such telephone calls.
12. That where changeovers occur at the children’s school on a Friday afternoon, the father or his partner will collect the children from the bottom gate on S Street (as per directions given by T Primary School administration on 5 October 2016) and the mother is not to be in attendance.
13. That where changeover does not occur at the children’s school, changeover will be at the food court at the Woolworths Shopping Centre, Suburb F, unless an alternate agreed changeover location is agreed in writing between the parties.
14. Both parties encourage the children’s extracurricular activities, however neither party will enrol the children in any further sporting or extra-curricular activities that would impact on the other parent’s time with the children, without the consent in writing of the other parent.
15. That within seven (7) days of the date of these Orders the mother will advise the father in writing of all sporting and extra-curricular activities the children attend and provide the contact details of the organisation(s) and the father is permitted to contact such organisations, and the mother will continue to advise the father within 24 hours of any new sporting or extra-curricular activity the children are enrolled in.
16. That neither parent is to attend any sporting or extra-curricular activities the children are participating in that occurs during the other parent’s time with the children, with the exception of special events, including but not limited to finals, presentations and swim-meets.
17. The mother is to supply the father with the sporting uniforms and protective gear, as supplied with enrolment of the children’s extra-curricular activities when they are with the father by way of a separate sports bag and the father is to return those items at the end of the time.
18. Should an activity be organised for the children during their time with the father, such as a birthday party, extra-curricular activity or other event, the father be permitted to take the child/ren to that activity and attend, if parents are normally permitted to attend such an activity.
19. The mother is to provide the father with a copy of all family photos prior to and up to separation (end October 2012). An external hard drive will be provided by the father to enable transfer.
20. That within 7 days of the date of these orders the mother is to provide a certified copy of the children’s birth certificates to the father.
21. That neither party denigrate the other parent or their partners or family within the hearing or presence of the children nor allow any other person to do so.
22. That neither parent speak to the children about these Court proceedings or permit the children to inspect or read any documents prepared for or in relation to these proceedings including but not limited to any correspondence passing between the parties and/or solicitors.
23. That when speaking to the children about their mother, the father will refer to her as “mum” and when speaking to the children about their father the mother will refer to him as “dad”.
24. That the mother comply with the recommendation of Dr B by attending upon a counsellor or such other professional as recommended by Dr B’s report dated 2 September 2016 and attend all appointments recommended by that professional and for this purpose a copy of the report prepared by Dr B dated 2 September 2016 be provided to that professional.
25. That all communication in relation to the children is to be directly between the mother and father via email or text.
26. Both the mother and father will keep the other advised of their current residential address and mobile and landline telephone numbers, and inform the other parent within seven days of any change.
27. The mother and father will advise the other as soon as possible, and in any event within twelve hours, of any serious illness or injury suffered by either of the children, and each parent will be at liberty to contact any doctor or hospital treating the child to obtain information.
28. The mother and father will inform the other of the name of any medical practitioner, paediatrician, psychologist or other professional who treats either of the children while they are in that parent’s care.
29. The mother will do all things necessary to authorise the children’s school(s) to provide or allow the father to obtain all notices, letters, school and other reports, photographs, and invitations to attend parent/teacher interviews or other activities to which parents are normally invited.
IT IS FURTHER ORDERED THAT
30. Otherwise all extant applications be otherwise dismissed and removed from the list of cases awaiting hearing.
IT IS DIRECTED THAT
31. All documents produced to the Court pursuant to subpoena and exhibits relied upon by the parties be returned by the subpoena clerk of the Family Court of Australia, Melbourne Registry, to the person or organisation who produced same.
AND THE COURT NOTES THAT
A. That for the purposes of all changeovers at Woolworths Shopping Centre it is intended that, where possible, the father’s partner, Ms P, will attend the changeover, however all other communication is to be between the mother and father directly.
B. The mother has organised counselling in accordance with recommendation 7 of the report of Dr B dated 2 September 2016 and for this purpose a copy of the report prepared by Dr B may be provided to the mother’s counsellor.
C. At present the children’s annually enrolled activities are:
i.Swimming;
ii.Soccer;
iii.Cubs Scouts;
iv.Nippers; and
v.Cricket (the father will not be taking the children to cricket during his weekends).”
Sadly, with the benefit of hindsight, it is clear that each parent felt they had compromised their preferred positions in making the final orders. Non-compliance with the parenting orders which prescribed the children spending time with the father, occurred within a short period after they were entered into. Proceedings in the local Court around new allegations justifying new orders by each party, culminated in mutual intervention orders (consented to without admission) being made for a term of three years on 14 February 2017.
As some of the ugly and concerning events between December 2016 and May 2017 have contributed to, in my view, the entrenched negative views each parent holds about the other, I will deal with that period more fully below as it serves the purpose of explaining, in part, how these parents have reached the polarised position about where the children should live, they now hold.
In April 2017, the father launched recovery proceedings as well as contravention proceedings (asserting 30 contraventions between October 2016 and April 2017) and shortly thereafter on 12 May 2017, the father formalised his position (that the children live with him), by filing an amended Application seeking such orders.
I hold little doubt that that the father formally seeking residence caused the mother great distress and these tensions increasing from October 2016 contributed to the mother’s often inappropriate emails (including to the children’s school) which I discuss further below.
When the proceedings came before Johns J on 6 June 2017, her honour made some slight variations to the existing final orders – relevantly changing the point of handover between the parents to a supervised location. It does no credit to either of these parents that such an order was necessary.
In June 2018, Psychiatrist Dr K interviewed both parents separately and produced a report dated 29 June 2018. He was briefly cross examined and I deal with his evidence later in these Reasons, as I do with the evidence of counsellor Ms M who began counselling of the children in August 2017.
The parental conflict continued to also be played out in intervention proceedings including the mother’s appeal against the intervention order made against her on 14 February 2017 (abandoned on 14 May 2017); breach proceedings against the father which were dismissed on 5 May 2017 and breach proceedings against the mother in June 2018, resulting in the mother ordered to pay a fine and placed on a bond.
Whilst it may have been a relief to both parties that the final hearing was allocated, they were no doubt anxious about the expert evidence of Dr L, Psychologist, arising from interviews on 28 August 2018. Thankfully, due to the efforts of the ICL, Dr L was fully briefed with other expert opinions and was able, as he deemed appropriate, to explore some of the issues that had caused such conflict and tensions sine the orders of October 2016. His report, as a result, is very helpful and he was cross examined as the last witness in the case. His evidence deserves discrete analysis, which I do below.
Again, I record my regret to the parents, that these Reasons were not delivered more quickly.

Issues arising between October 2016 and May 2017

Although the father withdrew his contravention application filed 18 April 2017 (in which he asserted the mother had failed to comply with the final orders sustaining 30 separate counts), it was proper for him to rely upon those allegations – not so as to establish whether the mother contravened the order without reasonable excuse, with exposure to the serious sanctions if so found - but because he says it establishes the “alienating behaviour” of the mother.
Overall I assess the evidence which follows (and was in a large part relied upon by Dr K) as very troubling. I deal with the two events where the children “ran away” from school discretely, however I accept the father’s evidence that:
a)the mother did not always present the children to the father so that they could exercise their time as ordered with the father;
b)whilst the children did spend extended time with the father for six days around Christmas 2016, after this visit the mother sent an accusatory email to the father asserting he had not bathed the children nor ensured they brushed their teeth. The father denied such an allegation. I accept the father’s evidence;
c)I am satisfied the mother, on 13 January 2017 and 24 January 2017, initiated a dispute at changeover in the presence of the children, which caused them distress and encouraged them to say they did not wish to spend time with the father. The mother, on this occasion, held the children’s hands – hardly an act of encouragement. The father says the maternal grandmother (who was present on 24 January 2017), said in the presence of the children “you are not taking the children”, thereby entering into the fray and creating, in my assessment, a higher emotional hurdle for the children. These changeovers were problematic and under the orders at that time were to occur at a shopping centre;
d)On 17 February 2017, when school had resumed and changeovers reverted to school, when the father arrived to collect the children they were not there. Enquiries he made with the school from around 3.20pm that day failed to identify where the children were and understandably the father (and I suspect the school) were very concerned, with the father reporting the disappearance to the local Police, he says, around 4.10pm. Whilst it is difficult, on the evidence, to be satisfied as to the full extent of the mother’s involvement (she claims she was surprised they walked to her home), the mother, I assess, was not entirely surprised, but did nothing to discourage these two children from undertaking what could have been a potentially dangerous journey to the home. Furthermore, she allowed both the father and the school to become very anxious, when she knew the father would have been there to collect the children, and she did nothing to relive his anxiety. Her actions, in my view not with genuine concern for the children, in presenting them in a distressed state to the father at 4.45pm was in the circumstances going to discourage the children further. They said to their father that they did not wish to go. Although he was rightfully upset, he put the interest of the boys first and did not require them to go with him for that weekend;
e)On 24 March 2017, the children attended school; were marked as “present”; but appear to have left the school at lunch time – without getting the school’s permission to do so. It is very concerning that the mother would support the children leaving the school grounds without permission – for that is what occurred. Again the father engaged Police, who ultimately found the children were in the mother’s care and conducted a “welfare check” and apparently explained to them that “running away” was dangerous. When the children’s actions were so concerning – the mother in her email to the school at 5.23pm on 24 March 2017 (Exhibit 5) describing it as “acting on their emotions” – the statement by the mother accusing the father effectively of stealing their uniforms (“I bet their uniforms aren’t in there”. He has been dying to get his hands on a free set of uniforms since November last year”), demonstrates clearly her lack of child focus;
f)Under paragraph 4(f) of the 2016 final consent orders, the children were to spend time with the father from 7 to 18 April 2017. At the changeover location at Suburb F, the mother was accompanied by her aunt and they were holding the boys hands when the mother said (in their presence) “the boys do not want to go with you”. Rather than further distressing the children who were witnessing this very uncomfortable behaviour by the mother, the father did not press time. In my view, his actions on that day were child focused and do him credit.

Although the father says problems with telephone calls also occurred, he brought the mother’s behaviour to the Court’s attention urgently filing his Contravention Application on 17 April 2017. His earlier Recovery Application and his Contravention Application did not come before a Judge (Johns J) until 6 June 2017 when, I infer, the mother was informed that her behaviour was troubling. Either the changes to the orders or the “lecture” from the Judge had at least the effect of the mother complying more fully with the orders then in existence until the trial.
I have not dealt with every allegation the father makes in this summary including:
a)the Father’s Day breakfast at school and the mother’s extremely hurtful email of 26 August 2017 (paragraphs 54 to 56 of the father’s trial Affidavit);
b)the confusion over Mother’s Day 2017 (created by the terms of the order made in 2016 but easily capable of sensible compromise) – see paragraphs 60 to 63 of the father’s Affidavit;
c)the mother’s engagement of the Department of Health and Human Services Victoria (“the Department”) (see paragraphs 64 to 69) which resulted in one assessment by the Department of substantiated emotional harm by the mother; and
d)the events at D’s soccer match on 11 June 207 involving the maternal grandfather.
The mother was well aware of the numerous and extensive allegations and in her trial Affidavit, the mother offers a range of reasons/excuses for both her behaviour and the children’s behaviour. The mother did not call any evidence from her parents or her aunt. Her failure to do so, without proper explanation, allows the Court to make a Jones & Dunkel (1959) 101 CLR 298 finding – namely that their evidence was not likely to assist the mother.
The mother, in her reply Affidavit (sworn 21 June 2018) says that apart from “some isolated incidents over 12 months ago” the children have spent time with the father pursuant to the orders. As these Reasons reveal, the incidents where time did not occur were serious and more than isolated. The mother’s Affidavit seeks to either deny or minimise her actions. Her statement at paragraph 125 that:
“125. I have encouraged and will continue to encourage the children to spend time with [Mr Tyler] pursuant to these orders understanding that it is important that the boys have an ongoing and functional relationship with their father”,
was the subject of extensive cross-examination, and shapes the ultimate determination as the reasons below reveal.

Expert evidence

Although the father contends that the first family report was “not favourable” to the mother, such report was superseded by the more recent report of Dr L relied upon by the ICL. As Dr B was not the subject of cross-examination (properly in my view), little benefit flows from analysing that earlier report other than to observe its historical context and, it seems, the reliance afforded some of the opinions expressed in reaching the final consent orders in October 2016. It is appropriate that the expert evidence relied upon before me (and tested by cross-examination) be considered.

Dr K

Dr K, a highly experienced Consultant Psychiatrist was briefed by the ICL; and assessed the mother (on 26 June 2018) and the father (on 27 June 2018) enabling him to prepare a report dated 29 June 2018. He was the subject of cross examination and from his evidence I record the following opinions of this expert:
a)He had read Dr B’s report by way of background and also, after the preparation of his report, read the report of the children’s counsellor Ms R. He had not spoken to the children or observed them with each of the parents. He relied upon what he was told by each parent as, for any cross sectional interview, he must. Dr K is not in a position to determine disputed facts;
b)He did not diagnose the mother with a psychiatric condition, including Post Traumatic Stress Disorder. He did not review the notes of sessions undertaken by the mother with Dr N. The mother told him she did not agree with the recommendations and concerns which Dr B reached about her (and had reported Dr B to the Australian Health Practitioner Regulation Agency following the assessment). She strenuously disagreed that she had “relentlessly undermined the relationship between the father and the children”, and reported to Dr K that “the children were enjoying contact with their father”. The mother’s concessions that the father was not currently a “risk” to the children appeared to the expert to be “dramatically opposed to that (conclusion) which she provided earlier in the interview”;
c)It was the mother’s account that the father had a “serious personality disorder; that she knew him well; that he wouldn’t change; that he couldn’t be trusted with the children, and in keeping with those concerns… she reported him to the Police frequently and at one stage came to the notice of DHHS”. Dr K found it “difficult to comprehend” the two alternating accounts in regard to the ongoing contact between the children and their father – which the mother sought to convey was due to the children’s benefit from counselling and that “she was feeling more relaxed about their ability to manage the situation at their father’s home”. This account, to Dr K, is consistent with the evidence the mother gave during the hearing – about the improved situation and the less “reactive” approach she was adopting. Of course the issue remained as to whether this was a permanent change of attitude by the mother, or one shaped by the upcoming hearing and anxiety around the father’s application for residence;
d)I return to this fundamental issue later in these Reasons, however it was certainly the position and assessment of Dr K, that beyond “affable and convincing presentation, there were glimpses of her own resentment” such that Dr K felt he “was in the company of somebody who on the one hand may be hiding her deeper emotions of resentment towards Mr Tyler, or on the other hand, has little connection with that part of herself which clearly holds him in contempt, in line with what appears to be a number of attempts by her to undermine his time with them”. In cross-examination Dr K indicated he had not changed his opinion that the mother “is undermining and alienating the children from their father and as this has continued, aspects of her motivation and psychological functioning are of concern”. I express my caution in accepting this opinion without reservations in circumstances where the evidence before the Court reveals that essentially the care arrangements since April 2017 have continued without the disruption that certainly occurred in the six months prior to the that; where Dr K did not have the benefit of the notes of evidence of Ms M or the evidence of Dr L and, more importantly, he had no opportunity to make any assessment of the children having not seen them;
e)Although I express some reservations, I do accept that the mother holds the father in enmity and mistrust and that whilst the mother says she has “changed”, the history of the mother’s behaviour (as previously set out above) creates some uncertainty about any such change being sustained;
f)The father was confronted by an assessment by a psychologist Ms U in May 2013 who was providing the parties with joint and individual counselling that he “demonstrated signs of Narcissistic Personality Disorder in addition to depressive symptoms and poor emotion regulation with regard to anger”. Noting such an assessment (which did not amount to a diagnosis, nor was that diagnosis tested before me) took place shortly after separation, Dr K clearly explored with the father his perception of his state at that time and since. The father, in my view with some candour, acknowledged that:
i)he took Ms U’s concerns on board (whilst not accepting her “diagnosis”) culminating in further therapy with her for 18 months and attendance at a men’s behaviour program;
ii)he had some anger problems at the time and recalled feeling “quite depressed” with his situation;
iii)he saw himself as a victim at the time of the mother’s behaviour and aggression and he became “hurt and withdrawn” and resentful; and
iv)he now regrets going to Canberra when he did but rationalised the move on the basis that he was not getting anywhere (with the collaborative law process) and was not having regular contact with the children. He acknowledged that “perhaps he may have wished to distance himself from the conflict”.
g)noting these candid responses, coupled with the benefits that the father obtains from a close, secure and trusted relationship with his new partner Ms P, Dr K opined that the diagnosis (if that is what it was) by Ms U in 2013 is not appropriate now – preferring to describe the father as a person “of obsessional, driven goal-orientated personality style, possibly with a certain level of emotional rigidity…and his various anger issues are more likely to be explained…at the time by his increasing sense of helplessness, anger and ‘grimness’” to which I would add, a sense of frustration. I regard Dr K’s opinion as accurate on all the evidence;
h)I also accept the assessment of Dr K that the father is a man “committed to his children and his grief and loss in the context of his increasing sense of helplessness” coupled with his belief that the mother was undermining his relationship with the boys, were both genuine and real and was the motivation for the father seeking a change of residence. Dr K notes that the father is quite fixed in his belief that the children are alienated from him.

Ms M

Ms M, a Clinical Psychologist, was retained to provide counselling to the boys, with her report dated 13 July 2018 before the Court. Ms M was the subject of cross-examination. I am conscious of the agreement of the parents, incorporated in the recent consent orders, that Ms M would no longer provide counselling to the children. Although this was a position adopted by the father, ultimately both the ICL and the mother saw the benefit of a “fresh therapist” for the children.
It is optimal that therapy for the children is supported by the parents and that the counsellor have the benefit of input from both parents who feel that such input is valued and considered. The father, in my view, revealed his ongoing level of frustration when, not for the first time, he allowed a dispute about C’s choice of hairstyle to boil over. Whilst I accept that Ms R was acting as C’s advocate when she sent an email on 9 October 2018 to the father expressing the view that forcing C to cut off his ponytail “would be extremely detrimental” as this is C expressing himself through his choice of hairstyle, the father’s email response within an hour or so about the most “pressing issues should be the continued alienation tactics being used by the mother to instil fear and anxiety into C and D” was unhelpful. Ms M claims the father was aggressive to her staff and she would not further engage with him. A change of counsellor for the boys became necessary.
I do not ignore the opinions expressed by Ms M which were formed during a difficult period of parental conflict from August 2017. Although the father was not able to identify significant support for the boys from such counselling, overall I formed the view Ms M understood well the different personalities of the boys and the different effect upon each of them of the parental conflict. In circumstances where the father’s strongly held view has been that the mother’s behaviour has been the sole cause of the children’s expressed distress and uncomfortableness at times, he was less able to accept his behaviour at times was also a contributor.
Whilst I well understand the hurt he felt (shared by Ms P and her teenage children) in C in particular expressing negative views about them and even holiday locations, the father attributes the sole source of this view as the mother. As Ms M identifies, there are a number of influences.
At the time of the hearing, the planned wedding of the father and Ms P was to occur in a few weeks. At paragraph 21 of her report, Ms M recorded that C had expressed “how unhappy he is about his father and Ms P getting married”. I do not accept the father has pushed the “new family” on the boys. It is the father’s reality and although C was expressing concerns at the time of the hearing, the mother gave evidence she supported the boys being involved in the marriage ceremony and if that was, as I expressed at the time, conveyed by the mother to the boys, that important life event hopefully included both boys.
I do not regard it as helpful, with a new group of therapists involved, to dissect further the evidence of Ms M. I accept she was professional and caring in her approach, but that the history of past conflict and continuing parental mistrust (in the shadow of these proceedings), presented a difficult task for her.
I note her opinions expressed at paragraphs 36 and 37 of the report, and further note that under cross-examination, Ms M said that:
a)she did not support a change of residence and felt that even though C has a strong alliance with the mother, the father had not been able to foster a positive relationship with C from what he tells her;
b)D is coping, by comparison, well with the changes in the father’s household and his more robust personality means he is better able to engage; and
c)Although speculative, she said that a 9/5 care arrangement with the boys primarily in the mother’s care is possible with therapeutic support.

Dr L

Dr L had the benefit, not otherwise all available to either of the other experts, of having:
a)the sources of information set out in his report including recent Affidavits, the report of Dr B, the reports of Dr K and the report of Ms M; and
b)interviews on 28 August 2018 with the father, the mother and the children, together with the chance to observe the children with each parent.
Dr L accepted it was a slight limitation to his report that he did not formally interview or observe Ms P or her children including with the subject children, however overall I attach significant weight to the observations and opinions expressed by Dr L.
It is trite to note that a Court is not bound to accept a family report opinion or recommendation, but on the whole of the evidence placed before me, I do accept:
a)his recommendations for further fresh therapeutic intervention, now also accepted by the parents and incorporated in the orders made by consent, although he expressed some concerns about the parents being “treatment ready”;
b)there is no current co-parenting relationship in existence (see paragraph 39) as these parents “self-evidently despise each other, and as a result, have not managed to forge any functional interaction in the interests of their boys”. They have fixed negative views about each other;
c)At paragraphs 44 and 45 of his report, Dr L, when discussing the children’s express wishes, opined that the Court “could reasonably be cautious in the degree of weight their wishes carry”. I agree, broadly for the reasons given by Dr L in these paragraphs. He felt, and I accept, that their narratives “were not balanced” and presented “with a very distorted picture of the world around them – concerningly so with respect to their father”. The father says that when the children are in his care, they express wishes different to those expressed to Dr L and Ms M;
d)On all the evidence, I accept his assessment of minimal risk of domestic violence from the father at this time, for the reasons articulated at paragraph 48 of the family report;
e)At paragraph 49 of his report, and based on observations and assessments identified in his report, Dr L opined that the children are at a risk of psychological harm through their mother’s behaviour in the past, which I find (although less intense since May 2017) still was being demonstrated. That it is having an effect on the children (which the father has found very difficult to counter) is explained fully by the report writer at paragraph 50. The father of course argues that the children are alienated from him (and certainly that is how he feels), however I accept the opinion of Dr L expressed in paragraph 50 that, inter alia:
“This is not yet a parental alienation case, however it is on that trajectory. These boys are not completely refusing to see their father, or speak to him, nor acting violently toward him. Still, there is an alignment with their mother, and rejection of their father, and dysfunction between the parents, all of which may lead to that point. As noted previously, it is entirely conceivable that C and D will eventually go on to reject their father entirely if there is not some fundamental change in their parenting arrangements”.
f)In a case where Dr L felt few optimal solutions exist at this time, on balance he did not recommend a change of residence at this stage, although he seriously considered that option. After expressing a view he expressed an opinion that the mother has a “moderate” capacity (with focused therapy) to change her behaviour but that he is not convinced the mother “understands that what she is doing is creating apprehension and unease in these boys” and that the mother “is in dire need of treatment” with a clinical or forensic psychologist who is experienced in family matters. The consent orders at order 10 so provided and an early appointment was made. It might be overly optimistic to assume, as previously noted, that the lack of any re-opening application, means some success in this respect has been achieved;
g)At paragraphs 55 and 56 of the report, Dr L engages with the critical issue for this Court’s determination and, as explored during cross-examination, that the current 11/3 arrangement is “insufficient to allow these boys to have a meaningful relationship with both parties” and, whilst rejecting an arrangement where the children would primarily live with the father (as the father proposed), he recommended as “the best of a number of imperfect options” a week about configuration. The best way to implement such an arrangement, in Dr L’ view, is explained at paragraph 57. Under cross-examination by Counsel for the father, Dr L indicated he was not convinced five nights is a “sufficient block”. In this case, as I explained, I am not satisfied that an equal time arrangement is in the best interests of these children and reasonably practicable.
At the time of the hearing, the strong reservation of Dr L in paragraph 58 weighs heavily on the Court’s consideration, namely:
“58. I would be remiss not to highlight that my recommendation to this Honourable Court would be markedly different if Ms Tyler continues to behave in the ways she has done over the last two years or so. Should she fail to heed the advice and recommendations of now three clinicians that have now raised serious concerns regarding her conduct, there may be a need for the court to remove these boys from her care entirely. She is setting up very real risks for C and D by continually impairing their ability to connect with their father free of her own emotional influence.”
Of course, the father by final submissions and after hearing this final evidence, contends that the mother’s behaviour will not change; that if the children are not “alienated” from him, now that is where this matter is headed, and decisive action needs to occur now, whatever might be the initial consequences for C and D (including a change of school).
The father’s proposal cannot be quickly rejected but, as the analysis below sets out, careful consideration has persuaded me that the mother should maintain the majority of care.
When making findings within the matrix of the primary and additional considerations which follow, I rely upon but do not on every occasion repeat my earlier findings. I discuss these considerations in a narrative style.

Primary considerations

I find that C and D will benefit from having a meaningful relationship with both the father and the mother. Despite the challenges from the history recounted above, the father’s determination, persistence and the quality of his parenting has preserved his meaningful relationship at the time of the hearing. If the mother’s evidence as to her increased understanding of the need for the boys to have a “functional” relationship with their father is demonstrated by her actions into the future, then C and D will flourish.
The Court is required to give greater weight to the protection of these children from physical or emotional harm (s 60CC(2)(b)). I find that although both parents are capable of meeting the children’s physical needs; support their education and have a sensible view as to the benefits of extra-curricular activities of a healthy and character forming nature, the children are at risk of emotional harm as follows:
a)Through the actions of both parents who at times have fuelled the parental conflict; and
b)Through the father’s actions in not being sensitive to some of the children’s expressed anxieties around, for example, quickly accepting the father’s choice of a new wife (and her children) as important to them in the same way as clearly they are important to the father and the father’s entrenched view that C’s hairstyle choice is too “girly” and not appropriate; and
c)If the father is unable to accept this decision, and/or prolongs the conflict.
However, these risks are pale when assessing the emotional risk to these children should the mother repeat her past behaviour that has sought to undermine the children’s relationship with the father; having caused the children distress contributed to by confusion and a deep sense of loyalty to their mother and has engaged extended family at times in her agenda. As I have indicated, at the time of delivery of these Reasons, it seems hostilities have quelled. However, if that does not prove to be an enduring situation, the highly critical findings against the mother in this Judgment may well set the platform in the future for a more drastic outcome for C and D.

Additional considerations

I treat with caution, and do not apply determinative weight to, the wishes and views expressed and recorded by Dr L in his report (see C – paragraphs 29 to 32 and D – paragraphs 33 to35). I was greatly troubled by the assessment by Dr L that “level of bias” particularly of C against the father was “clinically remarkable”. Simply stated, the expressed reluctance to spend time with the father has not been demonstrated in their happiness (as I find it has been recently as the father says is the case) in spending time with the father. I am able to say however, that nothing in the children’s words remotely suggest that they wish to live with their father or change their schools (a consequence of such change of residence).
As to relationships, both C and D have a strong and warm relationship with the mother (and probably with her extended family although the lack of evidence makes that hard to definitively assess). If the father’s increasingly strong relationship with the boys is again interrupted by the mother’s actions, I predict the outcome might be unexpected by the mother – namely they may have reached a level of understanding consistent with the expert evidence that the mother is damaging their relationship with their father. It is not possible to predict how much more warmth and connection can occur in the relationship between the children and Ms P (and her children). However the evidence establishes, in my view, that Ms P is committed to the father; their relationship has been tested (by at least this litigation) and has gained strength and importantly, the children are developing a closer relationship with her. In no way should Ms P been seen (or described) as an alternate mother. She is an important person in the father’s life; has demonstrated good parenting skills and cares about C and D. There is no limit to the number of people who can genuinely support and love a child. More “inclusion” and less “exclusion” by the mother and father needs to be shown as they are the primary role models for C and D.
I rely on earlier findings for s 60CC(3)(c) and further record that the father has always paid significant child support. I deal with the “likely effect of any changes in the children’s circumstances” (s 60CC(3)(d)) later in these Reasons.
Although the suburbs of Suburb O and Suburb G are less than 25 kilometres apart, the traffic conditions do extend the practical difficulties and time in transit. I accept that if the children live with the mother and attend their current school (T Primary School) then the father will have some additional travel impost. Similarly, if the children live with the father and go to a school closer to the father’s home (as is the father’s desire), the mother will have some additional travel impost. Finding a school somewhere midway between the parents’ homes – causing a possible severance of established peer relationships – is not a scenario the Court considers in the best interests of the children. Extra-curricular activities (and the area where competing teams play) will provide some challenges. However, such inconveniences are a feature of highly engaged children with parents seeking to support them. In short, any practical difficulties can be dealt with sensibly by these parents, and do not determine with which parent the children should live.
The father’s work schedule and level of management responsibility do require him to achieve some flexibility as well as support for moving the children around from his wife Ms P. I do not ignore she has her own responsibilities to facilitate travel for her own biological children. The mother is less restricted in her other commitments. Save for this issue, I repeat an earlier finding, namely that the father and mother both have the capacity to provide for the needs of the children and that (with the caveats already mentioned), their attitude to the responsibilities of parenting are reasonable. The children are not Aboriginal nor do they have “special needs”.
At the time of the hearing, mutual State intervention orders existed. I agree with Dr L, that now some nearly seven years after separation, the prospects of the parents engaging in family violence, is minimal. I accept the definition of “family violence” under the Act is wide – and in the past intemperate and harassing emails have caused concerns about breaches of intervention orders occurring. Hopefully both the mother and the father have learnt from the past.
Section 60CC(3)(l) requires the Court, in determining what orders are in the best interests of the children, to consider:
“whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings” in relation to the children.
I am sure the learned Judge, when making the 2016 final orders, did so believing that would be the end of further proceedings – at least because these two seemingly well-adjusted parents consented to the orders and had agreed on a mechanism for review. Sadly that has not proved to be the case and I cannot claim to have any clearer “crystal ball” available to me. One significant difference however between the current orders made in 2016 and the orders pronounced today, is that I have conducted a four day hearing and delivered findings about the parents that should make any future proceedings more informed.

Parental responsibility

The orders in 2016 provided for the parents to have equal shared parental responsibility for major long term decisions and I find it is in the best interests of the children to apply the presumption at least because:
a)there has not been a dispute about a major issue (a style of haircut not being a “major issue”) since separation;
b)the parties, albeit with the assistance of Counsel, were able to compromise and reach agreement on a number of important issues, as the consent order handed to the Court on 25 October 2018 attests;
c)the care arrangements which I will make are inclusive and, in those circumstances, neither parent should be excluded from the opportunity in participating in major long term issue resolution.
It is further noted that whilst the father submitted he should have an order for sole parental responsibility, that was a part of a suite of orders which included the children living with him. As the children will continue to live with the mother – but under my orders shall spend increased time with the father - it is my view that the quality of any decision of a major long term character, is best achieved by consultation between both these parents.
Finally, although it may never occur that the level of trust permits of respectful oral communication (although that would certainly set a good example for C and D), the history shows that communication by email has been possible – although not at all times respectful.

Where should the children live

I have formed the view on all the evidence that although there is a risk of the mother’s behaviour, as set out in earlier findings, re-emerging with potentially devastating effect for the children, the children are not currently “alienated” from their father. He is a strong candidate for the orders that the children live with him, however what needs to be weighed in the balance is:
a)a change of residence will cause a change of schooling and peer group. In this respect, although no direct evidence from teachers at T Primary School was offered to the Court, Exhibit 20 (the school reports) showed good attendance; excellent behaviour for D and for C, a comment that his effort and behaviour “needs attention”. He is recorded as deriving his “greatest enjoyment [from] interacting with his friends and peers”;
b)Neither of the boys has expressed any desire to live with the father for the majority of the time;
c)The father’s parenting style is more rigid than the mother’s, and this would require an adjustment by the boys, which I am not satisfied at this time the children would easily cope with – although over time, and with more engagement with the father and his household including Ms P and her children, they may do so; and
d)The “loss” of the regular engagement with their mother, at the same frequency as now exists (or even less as I will order), will be an adjustment as well for them, and apart from some of the behaviour of the mother directed to the father (and in this respect the ongoing intervention order proceedings in the past have caused a lack of child focus to develop for both parents at times), many aspects of the mother’s parenting have not been criticised by the father and could not be. C is certainly more closely and emotionally aligned to the mother than is D, who himself is likely to be influenced by his big brother’s statements.
At the core of my decision to not change residence at this time, is that on balance I have formed the view that the mother has (at the time of the hearing) finally got “the message”. She has modified her behaviour and has been more supportive of the boys’ relationship with their father. In so doing the boys feel “allowed” to explore the opportunities to nurture and develop their understanding of who their father is and how much he loves them.
I cannot, of course, guarantee to the father that the mother may not revert to past behaviour. I understand he feels that is probably inevitable – but I do not. I note that counselling for the mother with Mr J commenced in November last year. I believe that is likely to have greatly assisted the mother in truly understanding the importance of the children having a meaningful relationship with the father.
For the reasons set out in this Judgment, I have come to the conclusion that C and D should continue to live with the mother primarily. In this regard, the ordering of equal shared parental responsibility requires the Court to consider whether an equal time order is in the best interests of the children and reasonably practicable. Having considered that option (although neither parent nor the ICL in final submissions asked for such an order), I conclude it is not in the best interests of the boys to so order, although it is in their best interests to increase the time they spend with the father – to a continued level of substantial and significant time. It is also reasonably practicable.

Form of order

I propose to order an increase of the time the children spend with their father in two steps:
a)Commencing with the beginning of the final school term in 2019 (around early October 2019), the children will spend time with the father from after school Friday to before school Tuesday; and
b)Commencing with the start of the 2020 school year, the children will spend time with the father from after school Friday to before school Wednesday.
The orders commence on the date shown being aware of Victorian gazetted school holidays and the agreed arrangements for time spent over school holidays. It is noted the children spend the second half of September 2019 school holidays with the father as well as the second half of the 2019/2020 school holidays.
The evidence of the father and his partner Ms P did identify at the time of the hearing, some practicable challenges in facilitating the children spending increased time with the father whilst maintaining their education at T Primary School. These arise from the father’s work commitments and the availability of Ms P to assist because of her other commitments.
However, the father’s desire to spend more time with his sons is so important to him, that I find he will make any orders pronounced “work” – he being such a “can do” person.
The parents having agreed on a variety of other orders, as earlier indicated, those orders and the ones I now pronounce are in the best interests of these delightful children. It is my genuine hope that as these two families work together into the future for the best interests of C and D, that each boy will reach their potential and will not be further compromised by their parents’ conflicts.
The ICL shall be discharged with the thanks of the Court.

I certify that the preceding eighty-six (86) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 30 August 2019.

Associate:

Date: 30 August 2019

APPENDIX ONE

That all previous orders be discharged.
That the children live with the mother and spend time with the father until commencement of the 2019 school year as follows:
a. during school term for each alternate weekend from the conclusion of school Friday to the commencement of school on Monday commencing on 26 October 2018;
b. for the long summer holidays:
i.with the father from the conclusion of school 21 December 2018 to 5pm on Friday 4 January 2019;
ii.with the mother from 5pm on Friday 4 January 2019 to 5:00pm on 18 January; and
iii.with the father from 5pm 18 January 2019 to 5:00pm 28 January 2019.
The children spend time with each parent during the School Term Holidays as follows:
a. in 2019 and each alternate year thereafter:
i.with the mother for the first half of the holidays from the conclusion of school until 5pm on the middle Saturday; and
ii.with the father from 5:00pm the middle Saturday for the remainder of the holidays, to the commencement of school.
b.in 2020 and each alternate year thereafter:
i.with the father for the first half of the holidays from the conclusion of school until 5pm on the middle Saturday; and
ii.with the mother from 5:00pm the middle Saturday for the remainder of the holidays, to the commencement of school.
The children spend time with each parent during the Christmas School Holidays as follows:
a. in 2019/2020 and each alternate year thereafter:
i.with the mother for the first half of the holidays from the conclusion of school until 5pm on the middle Saturday; and
ii.wth the father 5:00pm the middle Saturday for the remainder of the holidays until the commencement of school for Term 1;
iii.in 2020/2021 and each alternate year thereafter:
iv.with the father for the first half of the holidays from the conclusion of school until 5pm on the middle Saturday; and
v.with the mother from 5:00pm the middle Saturday until the commencement of school.
Notwithstanding anything contained herein the children shall spend time with the parents on Mother’s day and Father’s Day as follows:
a. with the mother on the Mother’s Day weekend from the conclusion of school Friday to the commencement of school Monday; and
b. with the father on Father’s Day weekend from the conclusion of school to Friday to the commencement of school Monday.
For the purposes of changeover:
a. All changeovers that occur before and after school shall take place at school;
b. All changeovers that do not occur at school shall occur as follows:
i.the mother shall deliver the children to father’s home at the commencement of the time the father spends with them; and
ii.the father shall deliver the children to the mother’s home at the conclusion of the fathers time.
That both parents be permitted to telephone the children on Christmas Day and each of the children’s birthday each year that they do not spend with the children at 8.00am (Victorian time), with the parent who does not have the children to initiate the telephone call to the other parent’s mobile telephone and the other parent will ensure that the children answer the phone and speak to the other parent.
That the parents use Our Family Wizard for communication with each other.
That the parents and the children engage in family therapy with Dr H at times as proposed by Dr H. Each of the mother and the father pay for their respective sessions with Dr H and the cost of joint attendances or sessions with the children be shared equally by the mother and father.

10. That the mother undertake treatment with psychologist Dr J. The mother is to attend and continue to attend as recommended by Dr J, with the first appointment to take place on 12 November 2018 at 1:00pm. The mother to be solely liable for the cost of such treatment.

11. That leave be granted for the Independent Children’s Lawyer to provide the mother’s treating psychologist and Dr H with copies of the family report by Dr B dated 2 September 2016, the psychiatric report by Dr K dated 29 June 2018, the family report by Dr L dated 14 September 2018 and copy of these Orders and the Judgement of Justice Baumann.

12. The parents each provide the other with no less than 7 days prior written notice and particulars of any change of residential address or telephone number.

13. That neither parent denigrate or criticise the other parent or their partners or family within the hearing or presence of the children nor allow any other person to do so.

14. That neither parent nor their nominee be permitted to speak to the children about these Court proceedings or permit the children to inspect or read any documents prepared for or in relation to these proceedings including but not limited to any correspondence passing between the parties and/or solicitors, nor allow any other person to do so.

15. That either parent or their family members be permitted to attend any sporting or extra-curricular activities the children are participating in.

16. That either parent or their family members be permitted to attend the children’s school during the other parents time with the children.

17. That both parents be restrained by injunction from taking the children to attend upon Ms M.

18. That the mother be restrained by injunction from attending upon Dr N or any other treating psychologist save for Dr J or as recommended by Dr J.

19. Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

APPENDIX TWO

That all previous parenting orders be discharged;
That the Father have sole parental responsibility for the children:
a)C born … 2008; and
b)D born … 2010;
(collectively referred to as “the children”);
That the children live with the Father;
That for the period of six months following the change of the children’s residence, the children spend time and communicate with the Mother as follows:
a)Each alternate Sundays for a period of three hours or by agreement and failing agreement from 12noon until 3pm (the time to be dependent on the children’s sports commitment), with such time to be supervised by a professional supervisor as chosen by the Father, with the Mother to be responsible for such costs;
b)Should the mother be unable to contain her own emotions to the extent that she is upsetting the children during this time, the professional supervisor will remove the children from the mother’s presence and the time will be suspended;
c)The Father or his nominee shall deliver the children to and collect them from the Contact Centre to allow these supervised visits;
d)Should 4(b) occur:
i)The Mother’s time with the children to be suspended and the Mother to have increased frequency of counselling by a psychologist as nominated by the Independent Children’s Lawyer, with the Mother to pay such costs;
ii)A copy of the psychologist visits and treatment plan to be supplied to the Court and the Father; and
iii)The supervised visits to only recommence upon the recommendation and approval of the psychologist.
That after the six months in paragraph (4) the children spend time with the Mother as follows:
a)During the school term, each alternate weekend from the conclusion of school on Friday (or 5.00pm if it is a non-school day) until the commencement of school on Monday or if it is a Public Holiday or Curriculum Day to return to school at the commencement of the next School Day), commencing on the following dates:
i)1 February 2019;
ii)15 February 2019; and
iii)Every alternate weekend thereafter.
That after the six months in paragraph (4), the children spend time with each parent during the School Term Holidays as follows:
a)In 2019 and each alternate year thereafter:
i)With the Father for the first half of the holidays from the conclusion of school until 5pm on the middle Saturday;
ii)With the Mother from the conclusion of the Father’s time in 6(a)(i) for the remainder of the holidays, to the commencement of school;
b)In 2020 and each alternate year thereafter:
i)With the Mother for the first half of the holidays from the conclusion of school until 5pm on the middle Saturday;
ii)With the Father from conclusion of the Mother’s time in 6(b)(i) for the remainder of the holidays, to the commencement of school;
That after the six months in paragraph (4), the children spend time with each parent during the Christmas School Holidays as follows:
a)In 2020 and each alternate year thereafter:
i)With the Father for the first half of the holidays from the conclusion of school until 5pm on the middle Saturday;
ii)With the Mother from the conclusion of the Father’s time in 7(a)(i) until 5pm the Saturday prior to the commencement of the new school year; and
iii)With the Father from 5pm the Saturday prior to the commencement of the new school year until the commencement of school for Term 1;
b)In 2019 and each alternate year thereafter:
i)With the Mother for the first half of the holidays from the conclusion of school until 5pm on the middle Saturday;
ii)With the Father from conclusion of the Mother’s time in 7(b)(i) for the remainder of the holidays until the commencement of school for Term 1.
That after the six months in paragraph (4), the children will spend additional time with the Mother on celebratory occasions as follows:
a)From 5.00pm Easter Thursday until 5.00pm on Easter 2020 and each alternate year thereafter;
b)On the children’s birthday, if they are not already scheduled to spend time with the Mother, from 12.00pm until 5.00pm if their birthday falls on a non-school day and from the conclusion of school until 7.00pm if the birthday falls on a school day;
c)On the Mother’s birthday, if the children are not already scheduled to spend time with the Mother, from 12.00pm until 5.00pm if her birthday falls on a non-school day and from the conclusion of school until 7.00pm if the birthday falls on a school day;
d)On Mother’s Day each year, if the children are not already scheduled to spend time with the Mother, from the conclusion of school on Friday 5pm prior to Mother’s Day until the commencement of school on Monday (or if it is a Public Holiday or Curriculum Day, to return to school at the commencement of the next school day).
e)At such other times as agreed between the parties in writing.
The Mother’s time with the children be suspended to permit the children to live with the Father as follows:
a)From 5.00pm Easter Thursday until 5.00pm on Easter Monday in 2019 and each alternate year thereafter;
b)On the children’s birthdays, if the children are not spending time living with the Father, from 12.00pm until 5.00pm if their birthday falls on a non-school day and from after school until 7.00pm if the birthday falls on a school day.
c)On the Father’s birthday, if the children are not in his care, from 12.00pm until 5.00pm if his birthday falls on a non-school day and from after school until 7.00pm if the birthday falls on a school day.
d)On Father’s Day each year, if the children are not already scheduled to live with the Father, from the conclusion of school on the Friday 5pm prior to Father’s Day until the commencement of school Monday (or if it is a Public Holiday or Curriculum Day, to the return to school at the commencement of the next school day).
e)At such other times as agreed between the parties in writing.
That at the completion of the three six months in paragraph (4) the Mother be at liberty to communicate with the children by telephone on Wednesday evenings each week at 7pm (Victorian time) with the Mother to initiate the telephone call to the Father’s mobile telephone and that the Father will ensure that the children answer the phone and speak to the Mother, with such calls to be on loud speaker
That when the children are spending time with the Mother, the Father be at liberty to communicate with the children by telephone on Wednesday evenings each week at 7.00pm (Victorian time) with the Father to initiate the telephone call to the Mother’s mobile telephone and the Mother will ensure that the children answer the phone and speak to the Father and have privacy to speak to the Father.
That both parents be permitted to telephone the children on Christmas Day each year that they do not spend with the children at 8.00am (Victorian time), with the parent who does not have the children to initiate the telephone call to the other parent’s mobile telephone and the other parent will ensure that the children answer the phone and speak to the other parent, with such calls to be on loud speaker.
That after the six months in paragraph (4), the children will be permitted to telephone either parent’s mobile telephone at all reasonable times and the parent with whom the children are living/spending time with, are to facilitate such telephone calls.
For the purposes of these Orders, where changeovers do not occur at the children’s school (if it is a non-school day) changeovers will occur:
a)at the commencement of the Mother’s time at the Suburb F Shopping Centre;
b)at the conclusion of the Mother’s time at an agreed supervised handover centre, and failing agreement at V Group, Suburb W Victoria with the Mother to cover the supervised handover costs. The proof of booking and payment is to be provided via email to the Father 7 days prior.
That neither parent or their family members and nominees (including but not limited to the grandparents) be permitted to attend any sporting or extra-curricular activities the children are participating in that occurs during the other parent’s time with the children, with the exception of special events, including but not limited to finals and presentations.
That the father (and after the three six months in paragraph (4), the mother and her nominees, including but not limited to the maternal grandparents and maternal family) be at liberty to attend all school prize nights, school assemblies, school functions, parent/teacher nights and any other school events that parents usually attend, and are authorised to receive all invitations and other notifications in relation to these activities and events.
The Mother (including but not limited to the maternal grandparents and other maternal family members or other nominees) is restrained by injunction from attending at the children’s school (except as per paragraph 16) other than to collect or return the children to school in accordance with these orders, and is not to permit any other person to do so on her behalf, and is not to attend upon the school without written authority from the Father.
The Mother will not place the child/ren in the care of another person on an overnight basis without giving the Father first priority to care for the children.
Each party will:
a)Keep the other informed of any changes to their address, telephone number or email address within 24 hours of any such change.
b)Keep the other parent informed of any adult moving into their address, with gender, name and age within 24 hours of that adult taking residence.
c)Inform the other parent about any medical issues affecting the children prior to handover (minimum 24 hours prior), via email and advise of medication taken, with name of medication and dosages administered.
d)Inform the other parent about any medical issues affecting the children while they are in their care and advise them of any doctor, hospitals or health professional attended by the children as soon as reasonably practicable.
e)Be at liberty to attend any hospital to which the children are admitted, and/or attend any medical appointment that the children attend (with the exception of counselling or psychological appointments for the children, referred to in paragraph 19(f)) and each party is to notify the other in advance of any attendances/appointments, with both parents authorised to contact the children’s treating health care providers and obtain all information regarding the children that parents are normally entitled to receive.
f)Other than as specifically provided for in these orders, neither parent is to book or take the children for counselling or psychological intervention or allowing others to do so unless recommended by the child’s school or general practitioner. Any appointments are to be made by the Father and he will consult with the Mother about such decisions and provide to the Mother the name, address and telephone number of the proposed counsellor or mental health professional.
g)Authorise any school/university/college attended by the children to provide copies of newsletters, school reports and all information provided to the parents of a child to both parties, (including but not limited to information regarding events and activities that occur even during times that the children are not spending time or living with that parent) and both parents be authorised to receive such information, and a copy of these Orders will act as such authority.
h)Authorise any extra-curricular/sporting club attended by the children to provide to the other parent copies of all newsletters, fixtures, attendance records and all other information that is normally provided to the parents of a child (including but not limited to information regarding events and activities that occur even during times that the children are not spending time or living with that parent) and both parents are authorised to receive such information, and a copy of these Orders will act as such authority.
i)Provide to the other parent, at the commencement of their time with the children, all school uniforms, school shoes, school bags, school diaries, readers, homework, special activity gear, extra- curricular gear and props, sporting clothing and associated props required by the children during their time with the other parent (or as required upon their return to school or other extra-curricular activity that has been organised for the conclusion of time with the other parent).
j)Be restrained from enrolling the children into any extra-curricular or other activity that would occur or interfere with the other parent’s time, except by written agreement between the parents.
Should an activity be organised for the children during their time with the Mother, such as a birthday party, extracurricular or other event, the Mother be permitted to take the child/ren to that activity and attend, if parents are normally permitted to attend such an activity.
Should an activity be organised for the children during their time with the Father, such as a birthday party, extracurricular or other event, the Father be permitted to take the child/ren to that activity and attend, if parents are normally permitted to attend such an activity.
Both parents will provide the other parent a copy of all invitations (in their entirety) the children receive for an event that is scheduled during the other parent’s time with the children (including but not limited to birthdays, extra-curricular and sporting events) at least 7 days prior to the RSVP date.
That neither party denigrate or criticize the other parent or their partners or family within the hearing or presence of the children nor allow any other person to do so.
That neither parent or their nominee speak to the children about these Court proceedings or permit the children to inspect or read any documents prepared for or in relation to these proceedings including but not limited to any correspondence passing between the parties and/or solicitors, nor allow any other person to do so.
The Mother is to supply the Father with a copy of all family photos prior to and up to separation (end October 2012) within 72 hours and to be delivered by registered post. An external hard drive has already been provided by the Father in October 2016 to enable transfer.
That when speaking to the children about their Mother, the Father will refer to her as “Mum” and when speaking to the children about their Father the Mother will refer to him as “Dad”.
That all communication in relation to the children is to be directly between the Mother and Father by email or text. The email contact for the Father is … and the Mother to supply preferred email address to the Court and the Applicant.
The Mother to provide the children’s current and expired passport(s) to the Father, within 72 hours of these Orders via Registered Post.
That both parties do all necessary acts and sign all necessary documents so as to cause an updated passport to be issued for each of the children at any time that a current passport expires or is due to expire. In the event the Mother refuses to or fails to do all things necessary within 14 days of the request being made in writing to obtain updated passports for either of the children, the Father has the sole responsibility to sign any passport applications and obtain the passports for the children and a copy of these Orders will act as such authority.
The Mother is to comply with all Court recommendations for psychological/psychiatric treatment and attend upon a psychologist or other such professional as recommended by the Independent Children’s Lawyer, with the costs to be paid by the mother. A copy of attendance and treatment plan is to be supplied to the Court and the Applicant within three months after the date of these Orders.
That leave be granted for the Independent Children’s Lawyer to provide the psychologist with copies of the family report by Dr L dated 14 September 2018, family report by Dr B dated 2 September 2016 and psychiatric report by Dr K dated 29 June 2018.
The Mother is to complete a ‘Parenting after Separation Course’ within three months of these Orders and provide the certificate of completion to the Court and the Father within 7 days of completion.
Pursuant to s.65DA(2) and s.62B, 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 the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
The Mother pay the Father’s costs of and incidental to this Application.
Such further and other Orders as this Honourable Court deems appropriate.

[2019] FamCA 554

30 August 2019

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Consent

Injunction

Procedural Fairness

Remedies