Wagner & Oakley
[2023] FedCFamC1F 390
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Wagner & Oakley [2023] FedCFamC1F 390
File number(s): WOC 806 of 2019 Judgment of: ALTOBELLI J Date of judgment: 19 May 2023 Catchwords: FAMILY LAW – PARENTING – Where the Mother seeks sole parental responsibility and the Father seeks equal shared parental responsibility – Where the Father seeks increased time with the children – Where there are allegations of family violence by the Father against the Mother – Where the Father has mental health issues – Where the Father has drug and alcohol issues – Where there is a risk of harm to the children – Mother to have sole parental responsibility – Children to live with Mother and spend time with Father.
FAMILY LAW – PROPERTY – Where the Father received multiple Total and Permanent Disability superannuation payments – Where the Father received a lump sum from a worker’s compensation claim – Where there have been numerous partial property settlements – Where the father made greater contributions but the mother has greater future needs – Order for a 60:40 alteration of property interests in the father’s favour.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CC, 61DA, 65DAA, 68B, 75(2) Cases cited: Carter & Wilson [2023] FedCFamC1A 9
F v M [2021] EWFC 4
Falcken&Weule [2019] FamCAFC 140
Helbig & Rowe and Ors [2016] FamCAFC 117
Illgen & Yike [2018] FamCA 17
Miller & Miller [2009] FamCAFC 121
MRR v GR (2010) 240 CLR 461; [2010] HCA 4
Ramzi & Moussa [2022] FedCFamC2F 1473
Division: Division 1 First Instance Number of paragraphs: 152 Date of hearing: 23–25, 27 and 30 January 2023 Place: Sydney Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Mitchell Family Lawyers Counsel for the Respondent: Mr Lawrence Solicitor for the Respondent: Rmb Lawyers Counsel for the Independent Children's Lawyer: Mr Anderson Solicitor for the Independent Children's Lawyer: Helen Volk Lawyers ORDERS
WOC 806 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WAGNER
Applicant
AND: MR OAKLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
ALTOBELLI J
DATE OF ORDER:
19 May 2023
Amended pursuant to r 10.13(g) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 24 May 2023
THE COURT ORDERS THAT:
PARENTING
Parental Responsibility
1.The Applicant mother (“the mother”) have sole parental responsibility for the children of the relationship, namely, X born 2011, Y born 2014, and Z born 2015 (“the children”).
2.In the exercise of her responsibility pursuant to the preceding order, the mother notify the Respondent father (“the father”) within 72 hours of:
(a)Any decisions made by her, within 7 days of such decision being made;
(b)Any medical assessments conducted or reports prepared in respect of any of the children, and the identity of such medical service provider;
(c)Any significant illness or injury suffered by the children, or any of them, requiring medical treatment or medication, and the identity of any medical practitioner providing medical attention to the children, or any of them; or
(d)Any enrolment or change to the children's enrolment in any educational institution.
Living Arrangements
3.The children live with the mother.
Spending Time Arrangements
4.Upon the paternal grandparents providing an undertaking to the Court substantially in the terms annexed and marked “A”, the children spend time with the father in the general presence of either or both of the paternal grandparents, Mr J or Ms K:
(a)From the making of these Orders until 30 June 2024:
(i)On the first Sunday of each month, from 10.00am until 4.00pm with such time to occur predominantly at the home of the paternal grandparents, which shall not preclude local outings from the home of the paternal grandparents during such time.
(b)From l July 2024 until 30 June 2025:
(i)During NSW Public School terms, on the first Sunday of each month, from 9.00am until 5.00pm; and
(ii)From 9am Saturday until 5pm Sunday on the first weekend of each of the Term 1, 2, 3 NSW Public School holiday periods, and the second weekend of the Term 4 (Christmas) NSW Public School holiday period, with such overnight time to occur at the home of the paternal grandparents.
(c)From l July 2025 until 30 June 2026:
(i)During NSW Public School terms, on the first Sunday of each month, from 9.00am until 5.00pm; and
(ii)From 3.00pm Friday until 5.00pm Sunday on the first weekend of each of the Term 1, 2 and 3 NSW Public School holiday periods, and the second weekend of the Term 4 (Christmas) NSW Public school holiday period.
(d)From 1 July 2026 until 30 June 2027:
(i)During NSW Public School terms, on the first Sunday of each month, from 9.00am until 5.00pm; and
(ii)From 3.00pm Friday until 3pm Monday on the first weekend of each of the Term 1, 2 and 3 NSW Public School holiday periods and the second and fourth weekend of the Term 4 (Christmas) NSW Public school holiday period.
(e)From 1 July 2027, subject to the provisions of Order 5:
(i)During NSW Public school terms, on the first Sunday of each month, from 9.00am until 5.00pm;
(ii)From 3.00pm Friday until 3.00pm Monday on the first weekend of each of the Term 1, 2 and 3 NSW Public school holiday periods; and
(iii)From 3.00pm on 1 January until 5.00pm on 7 January each year.
5.Upon each child attaining the age of 16 years, the parents shall have regard to the wishes expressed by the child, should they wish to increase or forgo the time they spend with the father during the school holiday periods.
Communication
Communication between the Children and the Parents
6.The children communicate with the father by telephone or video call, with the mother to facilitate the children instigating such communication:
(a)Between 10.00am and 11.00am on Christmas Day;
(b)Between 4.00pm and 5.00pm on each of the children’s birthdays; and
(c)Between 10.00am and 11.00am on Father's Day.
Parental Communication
7.The parents communicate by email except for the purpose of facilitating communication between the children and by telephone in case of emergency.
8.Each parent shall notify the other of any change to their contact telephone number or email address within 24 hours of such change occurring.
9.Both parents are restrained from communicating with the other parent except for the purposes of complying with, or implementing these orders, and shall be limited to matters pertaining to the children or any of them.
Changeover
10.For the purpose of facilitating the time the children spend with the father, unless otherwise agreed in writing between the parties, the mother or her nominee will deliver the children to and collect the children from the paternal grandparents at McDonald's Family Restaurant at Suburb L at the commencement and conclusion of the time the children are to spend with the father.
11.Should the father attend changeover with his parents, the father shall remain in the vehicle at all times.
Restraints and authorities
12.Both parents are restrained from communicating with the other parent except for the purposes of complying with, or implementing these orders, and shall be limited to matters pertaining to the children or any of them.
13.Except for the purposes of complying with these orders the father is restrained pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) from doing each of the following:
(a)Approaching within 20 metres of the mother;
(b)Approaching within 20 metres of all, each or any of the following children:
(i)X, female born 2011;
(ii)Y, male born 2014; and
(iii)Z, female born 2015;
(c)Approaching within 100 metres of any school at which any of the above named children are attending from time to time;
(d)Approaching within 100 metres of any residential property in which the mother or any of the above named children are residing from time to time; and
(e)Communicating with the mother or any of the above named children by any means, including but not limited to telephone communications and SMS messaging otherwise than in accordance with these orders.
14.The preceding order is an order for the personal protection of the mother, MS WAGNER born 1991, and the children, X born 2011, Y born 2014, and Z born 2015.
15.Pursuant to s 68B of the Act, the parents are restrained by injunction from:
(a)Making any negative, critical, belittling, insulting or derogatory comments about the other parent or members of the other parent's family or household (including, but not limited to, questioning or criticizing the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of the children or being complicit in any other person doing so;
(b)Physically disciplining the children or allowing any other person to physically discipline the children while the children are in their presence or respective care;
(c)Discussing with or showing the children any document filed in or prepared in connection to these proceedings or any allegation made or evidence during these proceedings or allowing any other person to do so; or
(d)Showing or providing a copy of any document filed in or prepared in connection to these proceedings to any non-party (except as otherwise provided for by these Orders or for the purpose of obtaining legal advice).
16.This order operates as the authority of the mother, to any educational, extra-curricular or medical service provider who provides services to any of the children, to provide any information in respect of the care, welfare, or development of the children, or any of them, as the father may seek.
Overseas Travel
17.The mother be at liberty to apply for, and or renew, an Australian travel document (as defined in the Australian Passports Act 2005) to issue for the children, or any of them, without the signature or consent of the father, and that, upon application by the mother, the Minister issue an Australian travel document for the child or children pursuant to s 11(b) of the Australian Passports Act2005.
18.Pursuant to s 65Y of the Act the mother be permitted to remove the children from the Commonwealth of Australia for the purpose of overseas holiday travel.
Specific Issues
19.The Independent Children’s Lawyer be granted leave to provide a copy of the final orders made and any reasons for judgment to Dr M, for the purpose only, of his own edification no earlier than 30 days after the conclusion of these proceedings or the determination of any appeal.
20.The mother inform the children that the paternal grandparents will be available to the children, if needed, should the children, or any of them require support or assistance during the time the children spend with the father.
21.The father be granted leave to provide a copy of the Report of Dr M dated 28 December 2021 and the final orders of this Court to any psychologist, psychiatrist or clinical social worker engaged by the father to provide him with therapy to assist him with personality, mental health or relational difficulties.
22.The mother be granted leave to provide a copy of the Report of Dr M dated 28 December 2021 and the final orders of this Court to any therapist providing counselling or support to the mother or the children.
ANNEXURE A – UNDERTAKING
Acknowledgements
23.I, Mr J/Ms K, am the paternal grandmother/grandfather of the children X born 2011, Y born 2014, and Z born 2015.
24.I am the parent of the children’s father, MR OAKLEY.
25.I have been provided with a copy of the final parenting orders made by his Honour, Justice Altobelli on 19 May 2023.
26.I acknowledge that the purpose of my general presence during the time the children spend with the father is to protect the children from abuse, neglect or family violence or being exposed abuse, neglect or family violence.
27.I acknowledge that family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family, or causes the family member to be fearful.
28.I acknowledge that such behaviour includes:
(a)An assault;
(b)A sexual assault or other sexually abusive behaviour;
(c)Stalking;
(d)Repeated derogatory taunts;
(e)Intentionally damaging or destroying property;
(f)Intentionally causing death or injury to an animal;
(g)Unreasonably denying the family member financial autonomy;
(h)Unreasonably withholding financial support;
(i)Preventing the family member from making or keeping connections with his or her family, friends or culture; and
(j)Unlawfully depriving the person of their liberty.
29.I acknowledge that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effect of family violence, such as:
(a)Overhearing threats made by a family member to another family member;
(b)Seeing or hearing an assault upon a family member by another family member;
(c)Comforting or providing assistance to a family member who has been the victim of an assault;
(d)Cleaning up a site after a family member has intentionally damaged property; or
(e)Being present when police or ambulance officers attend an incident involving the assault of a family member by another member of the child's family.
Undertaking
30.I undertake to this Court:
(a)That where the orders require that myself or my wife/husband be substantially or generally present during the time the children spend with the father, I undertake that I will remain, at all times, in the general presence of the father and the children. Should I be unavailable, I will ensure that my husband/wife is able to do so.
(b)If I am unavailable and my husband/wife is also unavailable, I will immediately inform the mother, MS WAGNER prior to the time scheduled for such time to occur.
(c)Where the time the children spend with the father is to occur substantially at my home, I will ensure that such time occurs substantially at my home and in my general presence.
(d)Where the time the children spend with the father overnight is to occur at my home, I will ensure that such time occurs at my home and will remain in the home overnight.
(e)Where the time the children spend overnight with the father is NOT required to occur at my home, I will be present with the father and the children wherever such overnight time occurs.
(f)I will facilitate the changeover of the children with the mother or her nominee at McDonald's Family Restaurant at Suburb L, or such other place as is mutually agreed, and, if my son MR OAKLEY is with me at such time, I will ensure that he remains in the vehicle, and I will collect the children from and return the children to the mother inside the restaurant.
(g)Should the father engage in any behaviour which would result in the children being exposed to family violence, or the father behaves in a way toward any other person during the time the children are spending with him that is violent or intimidatory, I will forthwith remove the children from the presence of the father, and contact the mother, MS WAGNER, to arrange to return the children to her.
(h)I will provide support and reassurance to the children during the time the children spend with the father should they seek or require it.
PROPERTY
31.Within seven days of these orders, the parties are to do all acts and things for the father to transfer to the mother the sum of $295,093.66 from the funds held in the RMB Lawyers trust account, and with the remainder to be paid to the father or as he directs.
32.Within 30 days of these orders, the parties are to do all acts and things necessary to transfer Motor Vehicle 1 at N Property to the father.
33.Except as provided for in these orders, the father shall retain all other assets and liabilities in his sole name and possession.
34.Except as provided for in these orders, the mother shall retain all other assets and liabilities in her sole name and possession.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wagner & Oakley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders that the Court has made in a dispute between two parents about their children, and about the division of their property. The first part of these reasons will deal with parenting, and the second with property and financial issues.
BACKGROUND
The mother is the applicant in this case (“the mother”). She is 31 years old and describes herself as working in the beauty industry. The father is the respondent (“the father”). He is 33 years old and is currently unemployed and claims that he is unlikely to be able to engage in the workforce in the future due to a previous workplace injury. They both live in a region of New South Wales. They have three children: X, who is 11, Y, who is eight, and Z, who is seven (“the children”). The children currently live with their mother and spend time with their father supervised by P Contact Centre, pursuant to orders made on 16 July 2021.
The parents commenced their relationship in around late 2005 or early 2006, and commenced cohabitation in 2010. X was born in 2011. They purchased their first property in Suburb C in 2013. Y, was born in 2014, and Z in 2015.
The father tragically suffered a serious workplace injury in 2016. The injuries were both physical and psychological. To add to the tragedy experienced by this family, in 2017 Y was diagnosed with a serious illness. For several years thereafter, the family coped with the serious illnesses of both the father and Y. The relationship between the parents deteriorated. They separated in March 2019.
Reflecting on the evidence of both the mother and the father, it is clear that their relationship was an unhappy and often tumultuous one. The causation of this is complex but, the Court will find, includes family violence that was perpetrated by the father on the mother even before his workplace injury in 2016. The father’s debilitating injury, and Y’s illness, all contributed to the pressures in the parental relationship.
The period after separation was difficult for the family. The parental conflict continued, indeed worsened at times. In early 2019, following an incident involving the mother and the mother’s sister, the father was arrested and a provisional apprehended domestic violence order (“ADVO”) was made by New South Wales Police protecting the mother and the children. The following month, an interim ADVO was put in place restraining the father from contacting or approaching the mother and the children. During this time, the father was in and out of hospital, mainly due to mental health issues.
The father commenced a compensation proceeding following his workplace injury in 2016. In 2019, he received over $100,000 by way of a total and permanent disability (“TPD”) claim from his superannuation fund, Superannuation Fund 1. On the next day, he received over $140,000 in a similar claim from another superannuation fund, Superannuation Fund 2.
The present proceedings commenced on 31 July 2019 when the mother filed an Initiating Application. A number of interim orders were made regarding both the parenting and property issues prior to the final hearing.
On 30 September 2019 orders were made by consent for the children to live with the mother and spend time with the father for three hours every Sunday, to be supervised by a paternal grandparent and on the condition that the father produced a negative hair follicle test result.
On 31 January 2020, orders were made by consent for the mother to be permitted to draw down the sum of $8,500 from the mortgage accounts to enable her to purchase a vehicle, and for the father to have sole occupation of the matrimonial home (on the condition that he pay all rates, insurance and mortgage payments).
On 12 February 2020 orders were made for the children to spend time with the father for five hours every Sunday on the condition that he returned a negative result on quarterly hair follicle tests.
On 1 December 2020, orders were made by consent for a partial property settlement using the funds from the father’s personal injury settlement proceedings held in the trust account of RMB Lawyers.
On 22 March 2021, further orders were made by consent for a partial property settlement to allow the father to make mortgage repayments and pay for hair follicle testing. On 21 April interim orders were made by consent for the sale of the former matrimonial home.
On 16 July 2021 orders were made by consent for the father to spend professionally supervised time with the children for up to five hours, and for a partial property settlement to allow the father to pay for these services.
On 25 January 2022 ex parte orders were made by Judge Campbell in chambers pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) restraining the father from approaching or communicating with the mother and the children.
On 18 February 2022 orders were made by consent for a further partial property settlement to allow the father to pay for hair follicle testing, for payment to the Independent Children’s Lawyer to pay the expert’s fees and for each party to pay counsels’ fees. On 5 December 2022 orders were made by consent for a further partial property settlement to enable the parties to pay legal fees.
In late 2020, the father’s work injury damages claim settled. The father received a settlement in the amount of $800,000. After various deductions were made, the balance of $570,000 was held on trust by RMB Lawyers. Since this time, the father has been receiving $1000 per week from these funds, and the funds have been further distributed to satisfy partial property settlements, as outlined above and below.
The family was in financial difficulty and the funds that the father received from his various compensation claims were drawn on from time to time to meet living expenses, to pay mortgage repayments and child support, and to pay legal fees. The mother contends, but the father denies, that he frivolously wasted some of these funds, for example, on gambling and fast food.
During the time that the parents struggled to agree, and then subsequently implement, an arrangement for the children to spend time with the father, the COVID-19 pandemic caused disruption, and the father’s mental health issues continued to plague him at the same time as there were concerns about his drug use.
In mid-2021, the family home hold sold, with settlement occurring in mid-2021. Just before then, the father sold the family motor vehicle for $13,000. Another significant financial transaction occurred in mid-2021 when the father banked a cheque for $80,000 from Medicare instead of placing it in the trust account kept by his lawyers. Indeed, only $20,000 was eventually transferred into that account.
The only good news for the family in this period was that Y’s illness went into remission in early 2019.
THE PARENTING CASE
The Competing Proposals
The Independent Children’s Lawyer, in her Minute of Proposed Order received on 30 January 2023, proposed that the mother have sole parental responsibility for the children, with the mother to notify the father of certain decisions regarding medical assessments, illness or injury, and education. She proposed that the children live with the mother and spend time with the father for six hours on the first Sunday of each month, gradually increasing by 1 July 2027 to three weekends per year and one full week in January. This time was to be in the general presence of either or both of the paternal grandparents. She proposed that the children communicate with the father by telephone or video call on special occasions, and the mother and father communicate via email and otherwise be restrained from communicating with each other. Once the children reach 16 years of age, she proposed that the parents have regard to the children’s wishes. The Independent Children’s Lawyer also proposed an injunction under s 68B of the Act, restraining the father from approaching or communicating with the children.
The mother produced a proposed Minute of Order on 30 January 2023. In terms of parenting, the mother proposed an almost identical arrangement to the Independent Children’s Lawyer. However, there were additional provisions for special occasions, and a more detailed proposal restraining the father under s 68B of the Act. In terms of property, the mother proposed that she be paid $411,129.83 from the RMB Lawyers trust account and for the balance to be given to the father, with the father to pay $3,041.92 in child support arrears from that balance. She also proposed that Motor Vehicle 1 be transferred to her if the Court finds that it has a value of less than $4,500.
The father’s proposed orders are contained in his Further Further Amended Response filed on 19 December 2022. In terms of parenting, the father proposed that he and the mother have equal shared parental responsibility, and that the children live with the mother and spend time with the father during the day on alternating Saturdays and Sundays and three nights during the school holidays, increasing to full alternate weekends and half of school holidays. He proposed that for the first six months either the paternal grandparents or the father’s partner will be present during his time with the children, and the first three occasions of overnight time will occur at the paternal grandparents’ residence. He proposed that children are to communicate with either parent at the request of the children, or otherwise communicate with the father via FaceTime for one hour twice a week. The mother and father are to communicate via text message or email, with such communication to be only in relation to the children. The father also proposed that each parent participate in a Parenting Orders Program through Relationships Australia. In terms of property, the father proposed that the funds held in the RMB Lawyers trust account be divided as to 30 per cent to the mother and 70 per cent to the father. He also proposed that the mother return his recreational equipment and transfer her interest in Motor Vehicle 1 to him.
Accordingly, the issues for the Court are determining parental responsibility, the amount of time the children will spend with the father and how long supervision is to continue, how the funds in the RMB Lawyers trust account are to be distributed, and ownership of Motor Vehicle 1.
The Applicable Law
The applicable law is found in Part VII of the Act. In determining parenting matters under Part VII of the Act the Court must regard the best interests of the child as the paramount consideration: s 60CA.
The objects and principles of Part VII are set out at s 60B:
60B Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
(Emphasis in original)
At the very core of Part VII of the Act is the creation of a presumption of equal shared parental responsibility in s 61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(Emphasis in original)
If the presumption applies, the Court is required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1)Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a)consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) Subject to subsection (6), if:
(a)a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b)the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c)consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d)consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e)if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4)Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5)In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)how far apart the parents live from each other; and
(b)the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c)the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
…
(Emphasis in original)
Because s 65DAA refers to the best interests of the child the Court must then go back to consider s 60CC which specifies how the Court must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child's best interests
(1)Subject to subsection (5), in determining what is in the child's best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note:Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Additional considerations
(3) Additional considerations are:
(a)any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views;
(b) the nature of the relationship of the child with:
(i)each of the child's parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child;
(ca)the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child;
(d)the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child's parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(k)if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter;
(l)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 child;
(m)any other fact or circumstance that the court thinks is relevant.
(Emphasis in original)
The definition of family violence is found in s 4AB of the Act, reproduced below:
4AB Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
The case law
In MRR v GR (2010) 240 CLR 461, the High Court referred to s 65DAA(1) and said:
9.Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13.Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
At [15] the High Court emphasised the need for a practical approach:
15.Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.
The words “coerces” and “controls” can be found in the definition of family violence as set out in s 4AB(1) of the Act.
There have been a number of authorities, both in Australia and in comparable jurisdictions, in which these words have been considered both separately and in combination (see, for example, Illgen & Yike [2018] FamCA 17; Ramzi & Moussa [2022] FedCFamC2F 1473; and F v M [2021] EWFC 4).
It is clear from these authorities that context is important. As stated by McClelland DCJ, Bennett and Campton JJ in Carter & Wilson [2023] FedCFamC1A 9 (“Carter & Wilson”) at [17]:
The mere fact that [a party’s conduct] could fall within the example provided in s 4AB(2)(i) does not, in and of itself with nothing more, condemn the conduct as being family violence within that subsection.
(Emphasis in original)
The combination of the wide definition set out in s 4AB(1) and the non-exhaustive list in s 4AB(2) conveys the legislative intention of a broad category of potentially unacceptable conduct (Carter & Wilson at [75]). These wide terms catch behaviour that could be seen as either undesirable or necessary depending on the context (Carter & Wilson at [71]). Therefore findings of fact need to be made and evidence evaluated in order to contextualise the conduct of the perpetrator (Carter & Wilson at [71] and [84]). A finding that a party has engaged in coercive and/or controlling behaviour will generally require a description of what was said and done and the context in which that conduct occurred (Helbig & Rowe and Ors [2016] FamCAFC 117 at [91]). The more subtle or ambiguous the behaviour is, the more detailed such an enquiry and evaluation must be (Carter & Wilson at [84]).
It must also be stated that an intention on the part of the perpetrator is not a necessary component of coercive or controlling behaviour under s 4AB of the Act (Carter & Wilson at [80]).
The Evidence
In support of her case, the mother relied upon:
(a)Amended Initiating Application filed 10 June 2022;
(b)Her affidavit filed 19 December 2022 (and exhibit);
(c)Affidavit of Ms Q filed 18 February 2022;
(d)Minute of Proposed Order (annexure A to case outline);
(e)Tender bundle dated 18 January 2022; and
(f)Various documents tendered and marked as Exhibits A1–A15.
In support of his case, the father relied upon:
(a)Further Further Amended Response filed 19 December 2022;
(b)Financial Statement filed 19 December 2022;
(c)His affidavit filed 19 December 2022;
(d)Affidavit of Ms R filed 19 December 2022;
(e)Affidavit of Mr J filed 19 December 2022;
(f)Affidavit of Ms K filed 19 December 2022; and
(g)Various documents tendered and marked as Exhibits R1–R44.
In support of her case, the Independent Children’s Lawyer relied upon:
(a)Child Dispute Conference Memorandum dated 13 January 2020; and
(b)Single Expert Report of Dr M dated 20 January 2022.
During the final hearing both the mother and the father were cross-examined, as well as the father’s partner, Ms R, and the father’s parents, Ms K and Mr J. The single joint expert, Dr M, was also cross-examined.
Family Violence
The most important issue in this case is whether the children, directly or indirectly, continue to be at risk of harm as a result of the family violence that the father allegedly perpetrated on the mother, sometimes in their presence or hearing. This is not the only issue in this case, of course, but on balance it is the most significant one and is ultimately determinative of the orders made in this case.
The evidence about family violence falls into three categories. In the first category, the father admits violence and the consequential ADVO that was made. As will be seen, however, the admission is generally limited to the facts, and the evidence does not reveal that the father understood the broader implications of the violence on both the mother and the children, as well as the broader impacts it may have had on the mother’s capacity to parent the children. The father showed little or no insight into these matters.
The second category of family violence is where the mother makes allegations which are denied by the father. For the reasons that are set out below, the Court will find it is far more likely than not that the mother’s allegations are correct, and the father’s denials are either disingenuous, or he was a poor historian of the events that actually took place.
There is a third category of violence in this case which arises from the remarkable dissimilarity in the evidence of the mother and father about family violence. The mother’s evidence was comprehensive. The father’s evidence was minimalistic. There were thus many allegations of the mother that were neither dealt with at all in the father’s affidavit and were not the subject of cross-examination, other than, perhaps, in the most superficial manner. The Court likewise finds that the mother’s evidence is accepted.
The Court finds, as it turns out consistently with the observations of Dr M the single joint expert in this case, that the father was the perpetrator of significant family violence against the mother which had its beginnings early in the relationship, continued right up until the date of separation, and continued to manifest itself in other forms up until, and including, the hearing itself.
The mother’s evidence about family violence commences from paragraph 13 of her affidavit filed 19 December 2022 and concludes at paragraph 50. The father deals with the issue in his affidavit filed 19 December 2022 at paragraphs 95–130. The Court recognises that the evidence referred to above is not exclusively about violence but includes other evidence which the parties considered relevant. For example, the mother deals with the father’s mental health, which she clearly considers to be related to his violence. The father sets out evidence about his efforts to spend time with the children, as providing context for the family violence that he concedes.
The mother’s evidence, as described in her affidavit filed 19 December 2022, is that the family violence commenced at the time of cohabitation and included, for example, the father: trashing the large room in which they were living (paragraph 13); locking the mother out of their rented residence, kicking the mother’s car, throwing an object at the mother, throwing her belonging and smashing it on the floor, and throwing objects at the wall, all in 2010 (paragraph 14); breaking the mother’s iPhone with his hands in 2010 (paragraph 15); getting into a physical fight at a store, which resulted in a man and a woman going to hospital (paragraph 16); getting into a physical fight with the mother’s brother-in-law at a party, and making a threat to kill the mother’s brother-in-law (paragraph 17); getting into a physical fight with a guest at a party in 2011 (paragraph 19); pinching, and bruising, the mother’s arm whilst the father was in Queensland in about 2013 (paragraph 20); threatening to kill himself (paragraph 24); locking himself in the garage and the mother thinking he was going to kill himself (paragraph 27); pulling out a knife at a store in 2019 (paragraph 33); throwing an object out of a glass sliding door in the family home, causing the glass to smash everywhere (paragraph 38); threatening that he was going to come over and “fuck up your car” in the course of a telephone call to the mother in 2019 (paragraph 41); and telling the mother’s sister during a telephone call that the mother was “going to be taught a lesson… I choose to burn her car, I choose to burn her car now it doesn’t matter where it is” (paragraph 42).
Only some of these events received much attention in cross-examination. Where the father made denials, they were often in the context of vague and unconvincing explanations. The father often simply could not recall the events in question. He did not deny, for the most part, his intoxication during several of the events in question. Dr M makes observations about the father’s narrative, which will be discussed when the expert evidence is considered below. The father did not deny that he was experiencing mental health issues in 2016. He did not deny the self-harm attempts. Where the father accepted that an incident occurred, his narrative that his actions were not observed by the children, or would not have put the mother or children in fear, is found by the Court to be completely disingenuous.
Both the mother and the father were cross-examined about the father’s aggression in the context of the incident when he threw an object out of the glass sliding doors in the family home and smashed the glass. The mother was, by far, the better historian of the event in question. Indeed, the father seemed more focused on attempting to convince the Court by his evidence that it was not possible for one of the children to have observed, or even experienced this event by hearing it.
The threats that the father made to both the mother, and her sister, about “fucking up her car” ultimately resulted in the making of an ADVO for the protection of the mother and the children. The father contested this, but at a hearing in 2019 at the City S Local Court, an ADVO was put in place for the protection of the mother and children for a period of one year.
At paragraph 107 of the father’s affidavit, he admits telling the mother’s sister: “If I choose to burn her car, I choose to burn her car down. It doesn’t matter where it is. I know the consequences of that.” At paragraph 113 he concedes that following a contested hearing, the ADVO order was granted. At paragraph 114 he states: “I understand that [Ms Wagner] felt threatened by my comments during my conversation with [Ms T]”. At paragraph 115 he deposes: “I did not intend to make [Ms Wagner] feel threatened by my comments”. He does not depose to the fact that he nonetheless appealed the order made by the learned Local Court magistrate, without success.
Two matters arise out of the father’s own evidence and his omission to disclose the appeal. At paragraphs 114 and 115 of his affidavit, remembering that this evidence is given years after the facts deposed, and after having the benefit of Dr M’s report released 20 January 2022, all the father could acknowledge is an understanding that the mother felt threatened by his comment, but he did not intend that. To be fair to the father, at paragraph 117 he deposes: “I am sorry for how I made [Ms Wagner] feel, for my choice of words and poor explanation”. The father missed the opportunity to demonstrate some insight into the impact this must have had on the mother directly, and indirectly on the children.
His rationalisation, with the benefit of hindsight no doubt, is found in paragraph 116 where he talks about the powerlessness he felt in terms of having a relationship with his children, as well as his mental health issues which included chronic post-traumatic stress disorder (“PTSD”), depression and anxiety. From the Court’s perspective, the father’s mental health issues, which were largely not in dispute, provide a context for understanding the violence that took place, but is neither an explanation nor an excuse.
The second issue of interest to the Court, however, is the fact that the father appealed the Local Court decision, but did not disclose it in his affidavit. The fact of the appeal was disclosed by the mother. From the Court’s perspective, admittedly with the benefit of the totality of the evidence spanning many years, the appeal, notwithstanding its lack of success, is, in the context of the overall facts of this case, an example of controlling behaviour, which is of itself family violence. In cross-examination the father plainly did not rule out the possibility of an appeal if he was dissatisfied with the orders made. In cross-examination Dr M referred to a future risk of re-litigation as the father could not maturely respond to even relatively minor issues relating to the children, hence the need for the presence of another person when he spends time with them. The father’s conduct of the litigation itself was an ongoing manifestation of his controlling behaviour. For example, in March 2022 the mother asked the father whether they could change the time he spent with the children from Saturdays to Sundays and/or that the location for changeover be moved in order to facilitate the children’s extracurricular activities. The father threatened to file a contravention application if the mother did not facilitate the children spending time with him pursuant to the orders which were then in place. The father did in fact file a contravention application on 11 July 2022, which was withdrawn on the first day of the final hearing on 23 January 2023.
Dr M, in his extensive report, had much to say about family violence.
The report of Dr M, a consultant psychiatrist and child, adolescent and family psychiatrist, is dated 28 December 2021 and was released on 20 January 2022. Under the heading of “Exposure to Family Violence Within Parental Relationship”, Dr M states at paragraph 592:
592.My impression is that the reality over time was closer to the narrative of the mother, than that of the father. In this regard, it is my impression that there was a significant pattern of family violence perpetrated by the father against the mother, with its beginnings during the early ears [sic] of their relationship, a marked step up in intensity after the father's workplace accident in mid-2016, a crescendo from late 2018 until the interim AVO in early […] 2019, then continuing (in form modulated by containing court orders) in the father's behaviour towards the mother over the subsequent years until the present day.
At paragraph 595 he explains what he means by family violence:
595.It is important to note that in using the term "family violence" I am not suggesting that the father has necessarily been physically violent to the mother. The mother's narrative is that the father had not been physically violent to her, but that there had been moments when she had felt physically intimidated and threatened by his behaviour including his throwing and/or breaking objects, and on the two occasions that he held a knife in anger. I am using the term "family violence" as it is commonly used in clinical practice and in the clinical and social sciences literature (interchangeably with the term "domestic violence") to denote a pattern of behaviour within a family relationship that is coercive, intimidating, disrespectful, and harmful to the other.
At paragraph 596 Dr M records his impression that the “pattern of family violence had a significant impact on the mother, creating apprehension, vigilance, tension and insecurity in the day-to-day, as well as motions of intermittent acute terror, which themselves then amplified and perpetuated the background day to day apprehensive, vigilant state”.
Dr M discusses a theme that emerged in the father’s case, not just in his counsel’s cross‑examination of the mother, but in the father’s cross-examination as well. That theme, which in fact was central to the father’s case, was that the mother had been untruthful in her allegations about family violence. Dr M insightfully deals with this at paragraphs 618 and 619:
618.If the mother did show a pattern of untruthfulness, and more specifically of fabricating or amplifying narratives of abuse, then the father's assertion would be reasonable. But, my concern is that if there is substance to the mother's and to [X’s] abuse narrative (which, in my view, is likely the case), then the father's pre-emptive assertion of the mother as untruthful can be a process that delegitimises and disempowers the mother's voice, thus perpetuating the abuse, and increasing subsequent risk to herself and the children.
619.The father's narrative about the mother at interview and in his documents was that the mother could be verbally abusive to him, deliberately provocative to him, or deliberately undermining of his wellbeing and his recovery after his accident. At times, he appeared to contextualise or externalise causation for his aggressive acts onto maternal "provocation", for example his assertion that the upturning of the bed occurred only after prolonged maternal verbal abuse. This contextualising and externalising narrative is concerning, in that it disrupts processes of accountability, responsibility and robust behavioural change, and increases risk of future recurrent paternal aggression and violence, should the same contexts or "provocations" recur.
Dr M refers to X, who the mother contends in her evidence, and the Court accepts, was exposed to the father’s family violence and indeed was able to provide what Dr M considered to be a compelling account of the same. At paragraph 660 of his report Dr M states:
660.I observe that the father's aberrant behaviour towards the mother has also had significant direct impact at a cognitive and an emotional/ bodily level, upon [X], who was old enough and aware enough during the parental relationship to comprehend and remember some adverse incident. There will have been direct effect upon the younger children too at an emotional/ bodily level, disrupting their wellbeing and producing vigilant states that disrupt wellbeing and development and increase risk of anxiety, over time. All three children will have experienced indirect negative effect through the impact of the father's aberrant behaviour upon maternal wellbeing, and thus on her parenting capacity.
In the context of the risk that the father poses to the children, Dr M discusses the risk of filicide at paragraph 779–783. His view was that the risk of the father committing filicide was low. At paragraph 780 he states:
780.In my view, the risk of the father committing filicide is low. The father's pattern of intermittent aggressive, threatening, menacing, punitive and retributive reactions increases the risk, as does his past history of violence to property and persons, as does his history of suicidal thought and action, and his personality immaturity. But, the father has not made filicidal threats or acted to harm or threaten or intend to harm the children.
He adds at 782–783:
782.I do not feel in this case that the risk of filicide is high, and I do not feel that this is a central issue in this case. But, I make the point here that I feel that the mother's fear of the same is understandable, and that the risk is significantly higher than community baseline risk.
783. My more cogent concern is the risk of the children being exposed to an incident or incidents of explosive paternal aggression, and/or to broader paternal immature/ resentful/ irritable/aggressive behaviour in his relationship with a future partner or with one or more of the children themselves.
At paragraphs 813–814 Dr M comments on the potential implications on the children arising out of risk of family violence from the father:
813.If the court finds that it is likely that there is risk to the children in the father's care, in particular risk of the children experiencing paternal explosive aggressive/ menacing behaviour, or broader aggressive or coercive behaviour to a partner, to themselves or to others, then the father's time with the children be limited or constrained sufficiently to manage that risk. My view is that what risk that does exist is managed by the recommendations outlined below.
814. If the court finds that the children face indirect risk through paternal disruption of maternal wellbeing, security and agency (in my view, this is the case), the management of this risk take priority over paternal freedoms or sensibilities, and even over the promotion of the child-father relationships. My view is that what risk that does exist is managed by the recommendations outlined below.
The risk is thus twofold: to the children directly, and to the children indirectly through their mother.
The risk to the children is exacerbated by what Dr M described as the father’s poor reflective functioning. At paragraph 662 of his report this was described as “[t]he father’s lack of acknowledgment of and expressed responsibility” for perpetrating significant family violence towards the mother, often in the presence of the children. This lack of acknowledgment exacerbated the risk of future family violence behaviours.
Dr M observes at paragraph 713:
713.I observed at interview that the father showed poor reflective functioning, that is a disrupted capacity to pause, to reflect upon, and to accurately appraise his own thoughts, feelings, motivations and actions, and the thoughts, feelings, motivations and actions of others. He also showed poor capacity for empathic attunement, that is an ability to pause, and to engage with and respond to the emotional experience of the other. Reflective functioning and empathic attunement are fundamental capacities underlying good personality functioning, and underlying effective parenting.
Clearly, from the Court’s perspective, the risk of family violence is exacerbated by poor reflective functioning. This is a plausible hypothesis for some of the father’s behaviour in the litigation, for example: the appeal of the magistrate’s decision; the reference to an appeal in cross-examination; proposing an order for equal shared parental responsibility, notwithstanding his own concessions in relation to family violence perpetrated by him; his reluctance several times in cross-examination to concede that the mother would have been scared of him during various violent incidents; his externalisation of blame for some of the violent incidents in which he was involved; suggesting in cross-examination that if there had been no ADVO, there would have been greater opportunities to co-parent the children; and in cross-examination, describing his anger as being an expression of sadness on his part.
The Court makes two clear findings in relation to family violence. Firstly, that it occurred throughout the relationship, commencing from shortly after cohabitation, continuing through to separation, and manifesting itself in more subtle forms right throughout these proceedings. Secondly, the father has shown no, or very little insight into his violence and its impact on both the mother and the children. The risk of harm to the children, and to the mother, identified in Dr M’s report is real and continuing. It is not the only risk to the children, but it is probably the most significant one.
The father’s mental health
The chronology, which was part of the father’s Outline of Case document filed 22 January 2023, contains the following relevant admissions in relation to the father’s mental health.
Reverting to his chronology, the father contends that in mid-2016 he was diagnosed with PTSD by Dr H. In early 2017 Dr U diagnosed him with chronic PTSD, major depression and anxiety disorder. In early 2018 he was admitted to V Hospital with suicidal ideation following a flair up of pain symptoms. In late 2018 he undertook PTSD exposure therapy at V Hospital. At the end of that month he was admitted to V Hospital due to increased suicidal ideation, and completed a mood and anxiety program. In early 2019 he was admitted to V Hospital due to exacerbated depressive symptoms. He remained there that month and completed treatment.
Of course, to be fair to the father, the context and genesis of his mental health issues must be acknowledged. In mid-2016 he suffered a workplace injury which rendered him totally incapacitated for work at the time. Lengthy compensation proceedings ensued. He explains that in mid-2016 he was doing maintenance on heavy machinery. The machinery fell on him and crushed his body. He deposes to no history of psychological or psychiatric difficulties predating his injury. In terms of his ongoing injuries, he deposed to suffering from chronic pain, as well as psychology symptoms including flashbacks and panic attacks.
In his affidavit, the father acknowledges that his ongoing mental health is a concern to the mother, particularly with his engagement with his treating doctors. At the hearing he, in effect, conceded that he has no current reports from those doctors. To the extent that he suggested that he could not afford to obtain these reports, the Court does not accept this. The reasoning for this will become apparent from the reasons for judgment on the property dispute between the parties. In short, the father seems to have had access to funds whenever he needed it, and the Court will find that the mother’s concerns about his dissipation of the same to be well-founded.
Despite the father’s concession above, he asserts that he continues to engage with his treating practitioners on an as-needs basis, and that (e.g. at paragraph 76 of his affidavit filed 19 December 2022) he has been progressing well in the treatment of his mental health and feels that he has made significant progress in managing the same, and life stressors.
The Court observes that a feature of the father’s own evidence about his mental health is, once again, purporting to externalise responsibility and blame onto the mother. At paragraphs 96 and 97 of his affidavit, for example, there is the clear allegation that the mother was attempting to make his mental health worse. At paragraph 71 of his affidavit he alleges that the mother encouraged him to take his maximum dosage of medication, even though, at times, he considered himself to be progressing and not in need of the maximum dosage.
In the mother’s evidence, the father’s evidence about his mental health and physical injury are largely not put into contention. Her case, however, is that his mental health issues and physical limitation represent another set of concerns for her about the welfare of the children in the father’s care. It was, in effect, another reason why she required supervision of his time with the children by the paternal grandparents. The evidence of her concerns about the father’s suicidal ideation have already been discussed above, in the context of family violence.
It is clear from the mother’s affidavit that from 2020 she became increasingly concerned about the father’s lack of ongoing treatment in relation to his mental health. Her lawyers observed an inconsistency between what the father was saying about the medical advice he was receiving, and the written reports, often in the context of the father’s compensation cases, that recommended intensive and ongoing treatment regimes. The mother was concerned about whether the father was medication compliant. When, for example in 2021, the father’s hair follicle tests revealed no prescription drugs she became further concerned about this issue. The father’s failure to disclose, through his solicitors, the true nature and extent of his medical treatment was merely exacerbated, from the mother’s perspective, when she discovered after the fact about the father’s mental health admission, even at a time when the father was seeking unsupervised time with the children.
The father’s mental health was an important aspect of Dr M’s report. He records at paragraph 282 that the father did not currently feel depressed and was not experiencing PTSD symptoms on a day to day basis. At paragraph 283 he notes that when the father was asked about his medication treatment “the father presented as defensive and minimising in tone”.
The father was interviewed on 13 September 2021, and then again on 8 September 2021. He told Dr M that he had not seen a doctor since April 2021. The father is recorded as telling Dr M at paragraph 286 that he did not need to see anyone about his mental health, but if he did feel that need, he would consult his doctor.
At paragraph 336 of the report, Dr M states as follows:
336.The father tried everything, to help himself get better. Then, he picked up, as soon as the mother and children left. The paternal grandmother's narrative mirrors that of the father, externalising responsibility for the father's persistent aberrant mood state and behaviour onto the mother. [Dr U’s] notes challenge a narrative that the father picked up, as soon as the mother and children left, noting persistent mental health difficulties through 2019, including relapse in [mid-2019] requiring acute treatment, and drinking alcohol in the evenings for stress management in [mid-2019].
(Emphasis in original)
This occurs in the context of Dr M’s interview of the paternal grandparents. It is nonetheless highly relevant, indicating, once again, the father’s externalising behaviour, and also suggesting the persistence of mental health difficulties throughout 2019.
Dr M discusses the father’s mental state, substance use and personality functioning at paragraphs 679–713 of his report:
679.The father does not appear to have suffered from a mental disorder prior to his serious workplace injury in [mid-2016], which caused serious injury to [him], and also involved the terrifying and life-threatening experience of the [machinery] descending down upon the father to crush him beneath its weight.
680.The father's longstanding treating psychiatrist has diagnosed him with a major depressive disorder, chronic post traumatic stress disorder (PTSD), and a chronic pain syndrome, the latter related to the father's […] injury, but also carrying a significant psychological component, as the [physical injuries] had healed well.
681.In [early] 2020, [Professor W] referred to "a vexed combination of chronic pain, chronic PTSD and chronic Major Depressive Disorder", with no improvement after "comprehensive psychiatric treatment for twelve to eighteen months".
682.The father did struggle to adapt from the time of his injury in mid-2016. [Dr AA], his rehabilitation specialist described the father on discharge after his initial acute medical/ surgical hospital admission, experiencing "intrusive episodes of anxiety".
…
688.During this period the father was treated with antidepressant medications and [a] mood stabilising medication […]. Medicare/ PBS documents suggest that he was reasonably compliant with these medications. He was treated with […] medications for pain and [medications] for anxiety/ insomnia and possibly also for muscle spasm. Both of these latter classes of medications will have been quite sedating and dulling of emotional responsivity. They were continued until late 2020.
689.In [early] 2020, the father is described by [Dr AA] as "the best I've seen him", but he struggled later in the year, presenting as "very down" to his general practitioner [Dr BB] in [mid-2020].
690.The narrative of the father and the paternal grandparents at interview was that the father's improvement in mental state occurred after he was free of the mother's disruptive negative influence, but my impression is that the factors assisting his recovery were likely the conclusion of the Workcover court case in 2019, his own Workcover compensation case in [late] 2020, then perhaps most importantly the father commencing a new partner relationship in late 2020. The latter gave the father back a sense of role and purpose, acceptance and adequacy.
691.The father told me at interview that he had come off his medications under the guidance of [Dr BB]…
692.At interview, the father told me that he was still regularly taking [medication], up to two tablets per day. This is consistent with the father continuing to experience some anxiety and emotional reactivity associated with his PTSD symptoms.
693.My impression is that the father's major depressive disorder is currently in sustained complete remission, that this chronic post traumatic stress disorder (PTSD) is in sustained partial remission. His chronic pain syndrome is persisting, but the father has found more positive ways to manage the same.
694.The father does carry risk of relapse into recurrent depression or PTSD, for example if he suffers further life disruption or loss (in particular actual or perceived rejection or disloyalty in family or other domains of life), or exacerbation of his pain syndrome.
695.The father describes a current pattern of alcohol consumption that is moderate. He admits to having consumed excess alcohol at times when he was under stress or distress, for example early 2020.
696.The mother does not allege ongoing paternal alcohol misuse, but does describe incidents of paternal vengeful aggression when he was intoxicated, an example being the serious incident of paternal menacing behaviour, holding a knife, in [early] 2019, when her narrative suggests that the father then drove off in the car in anger and under the influence of alcohol.
697.I do not feel that the father has an alcohol use disorder, but do feel that his risk of impulsive aggression to self or others is increased by the disinhibiting effects of alcohol. The risk of such impulsive aggression is thus reduced during periods when he is not consuming alcohol.
698.The father admits to intermittent/ social cannabis use in his younger years, and in more recent years, cannabis use to manage pain. He denies use post-separation.
699.The father denies any period of regular or problematic use of […] other illicit drugs. He denies any use at all, during or since the parental relationship.
700.I put to the father the positive (though low) reading for [an illicit substance] in the hair test of June 2020. He denied any [illicit substance] use.
701.The mother expresses concern about paternal cannabis use, and about him appearing dazed and confused or falling asleep, which she attributed to the father's use or overuse of his pain and psychotropic medications. The mother's expectation of regular "clean" paternal drug tests as a prerequisite for him seeing the children appears to be an extension of her broader concerns about his lack of responsibility/ reliability and his propensity for unpredictable episodes of extreme aggression.
702.The father at interview presented as affronted about this focus upon his drug testing, and if his narrative is accurate this affront may be understandable.
703.That said, I carry a concern that after returning a "clean" hair follicle test covering June to September 2019, the father then did not proceed with a test requested by the ICL in February 2020. His next hair test was in June 2020, covering February to June, and included the low result for [an illicit substance]. It is possible that this omission related to other factors, but I am concerned that it may have related to some paternal drug use (cannabis or [other substances]) during the period between September 2019 and Feb 2020.
704.In line with my comment regarding alcohol use, I see no evidence that the father has had an ongoing substance misuse disorder. But, if he has intermittently used illicit drugs, then risk of impulsive aggression may be increased at times of such use.
705.The father has some personality strengths…
706.Notwithstanding these personality strengths, in my view, the father demonstrates some personality dysfunction, and this personality dysfunction has over time gotten in the way of the reliable enactment of his personality strengths in day to day life, particularly in family life, and particularly at times of stress.
707.I do not see traits typical of one of the DSM 5 personality disorders, but the father shows some dysfunction in each of the four domains of personality identified in the DSM 5 category of "General Personality Disorder", these being Cognition (ways of perceiving and interpreting self, other people, and events), Affectivity (the range, intensity, lability, and appropriateness of emotional response), interpersonal functioning, and Impulse Control.
…
709.I do note that the 2016 injury was a particularly challenging incident for the father, disrupting domains of personality strength (occupational competence and physical outdoor pass times) and amplifying domains of personality vulnerability (with shifts between passivity/ despair and resentful agitation, overwhelming the father's capacity to reflect upon, empathise with or respond to the experience of the other).
710.Personality vulnerability tends to be more prominent in times of stress, and this was the case for the father. I did not observe at interview the extremes of despairing or agitated presentation described by the father's treating clinicians at times, or by the mother.
…
712.It is my impression that the father does not have a personality disorder, as his personality dysfunction is not sufficiently pervasive or disruptive of function to warrant such a diagnosis, and exists alongside some personality strengths. But, if the patterns evident in the father's intimate relationships have also been evident in other settings such as in friendships and occupational relationships and/or have been more pervasive or impactful than I have observed, then the father may do…
713.I observed at interview that the father showed poor reflective functioning, that is a disrupted capacity to pause, to reflect upon, and to accurately appraise his own thoughts, feelings, motivations and actions, and the thoughts, feelings, motivations and actions of others. He also showed poor capacity for empathic attunement, that is an ability to pause, and to engage with and respond to the emotional experience of the other. Reflective functioning and empathic attunement are fundamental capacities underlying good personality functioning, and underlying effective parenting.
(Emphasis in original)
Clearly, the evidence indicates that the father has experienced sustained mental health issues in the past, which, in the view of this Court, clearly warranted the mother adopting a very cautious approach about the father spending time with the children. The Court finds that the father was not diligent in disclosing information about his mental health to the mother, and when the mother found out through other means, this merely exacerbated her concern about the risk to the children from the father’s mental health.
(21)That the father be granted leave to provide a copy of the Report of Dr M dated 28 December 2021 and the final orders of this Court to any psychologist, psychiatrist or clinical social worker engaged by the father to provide him with therapy to assist him with personality, mental health or relational difficulties.
(22)That the mother be granted leave to provide a copy of the Report of Dr M dated 28 December 2021 and the final orders of this Court to any therapist providing counselling or support to the mother or the children.
Costs
(23)That the Respondent pay the Applicant's costs of and incidental to the Application.
ANNEXURE A- UNDERTAKING
Acknowledgements
(1)I, Mr J/Ms K, am the paternal grandmother/grandfather of the children X born 2011, Y born 2014, and Z born 2015.
(2)I am the parent of the children's father, MR OAKLEY.
(3)I have been provided with a copy of the final parenting orders made by His Honour, Justice Altobelli on ..... .
(4)I acknowledge that the purpose of my general presence during the time the children spend with the father is to protect the children from abuse, neglect or family violence or being exposed abuse, neglect or family violence.
(5)I acknowledge that family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family, or causes the family member to be fearful.
(6)I acknowledge that such behaviour includes:
(a)An assault;
(b)A sexual assault or other sexually abusive behaviour;
(c)Stalking;
(d)Repeated derogatory taunts;
(e)Intentionally damaging or destroying property;
(f)Intentionally causing death or injury to an animal;
(g)Unreasonably denying the family member financial autonomy;
(h)Unreasonably withholding financial support;
(i)Preventing the family member from making or keeping connections with his or her family, friends or culture;
(j)Unlawfully depriving the person of their liberty.
(7)I acknowledge that a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effect of family violence, such as:
(a)Overhearing threats made by a family member to another family member;
(b)Seeing or hearing an assault upon a family member by another family member;
(c)Comforting or providing assistance to a family member who has been the victim of an assault;
(d)Cleaning up a site after a family member has intentionally damaged property;
(e)Being present when police or ambulance officers attend an incident involving the assault of a family member by another member of the child's family.
Undertaking
(8)I undertake to this Court:
(a)That where the orders require that myself or my wife/husband be substantially or generally present during the time the children spend with the father, I undertake that I will remain, at all times, in the general presence of the father and the children. Should I be unavailable, I will ensure that my husband/wife is able to do so.
(b)If I am unavailable and my husband/wife is also unavailable, I will immediately inform the mother, MS WAGNER prior to the time scheduled for such time to occur.
(c)Where the time the children spend with the father is to occur substantially at my home, I will ensure that such time occurs substantially at my home and in my general presence.
(d)Where the time the children spend with the father overnight is to occur at my home, I will ensure that such time occurs at my home and will remain in the home overnight.
(e)Where the time the children spend overnight with the father is NOT required to occur at my home, I will be present with the father and the children wherever such overnight time occurs.
(f)I will facilitate the changeover of the children with the mother or her nominee at McDonald's Family Restaurant at Suburb L, or such other place as is mutually agreed, and, if my son MR OAKLEY is with me at such time, Twill ensure that he remains in the vehicle, and I will collect the children from and return the children to the mother inside the restaurant.
(g)Should the father engage in any behaviour which would result in the children being exposed to family violence, or the father behaves in a way toward any other person during the time the children are spending with him that is violent or intimidatory, I will forthwith remove the children from the presence of the father, and contact the mother, MS WAGNER, to arrange to return the children to her.
(h)I will provide support and reassurance to the children during the time the children spend with the father should they seek or require it.
Property
(24)That this Order shall operate as authority for RMB Lawyers to pay to the Wife a total sum of $411,129.83 from the trust account held on behalf of the Husband, the balance be remitted to the Husband thereafter.
(25)From the amount due to be paid to the Husband from the RMB Lawyers Trust account pursuant to Order 27 above, the sum of $3,041.92 in child support arrears be first paid to the Wife.
(26)In the event that the court accepts that Motor Vehicle 1 has a value of or less than $4,500, that within 28 days, the Husband do all things and sign all things as to transfer his interest in Motor Vehicle 1 to the Wife.
(27)That except as provided for in these Orders the Wife shall retain all other assets and liabilities in her sole name and possession including cash at bank, personal possessions, and her superannuation interest.
(28)That except as provided for in these Orders the Husband shall retain all assets and liabilities in his sole name and possession including cash at bank, personal possessions, and his superannuation interest (if any).
(29)Unless otherwise expressly stated in these Orders each party is liable for the payment of any debt incurred in their sole name or jointly with any other person or encumbering any property retained by the party in accordance with these Orders and is to indemnify and keep indemnified the other party in relation thereto now and in the future.
(30)Should either party refuse or fail to sign any document required by these orders, then pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit Court of Australia at City S shall be appointed to sign any and all such documents on his or her behalf as may be necessary to give effect to these Orders, and the Registrar shall be satisfied as to his or her authority under this Order upon the complying party or his/her legal representative filing an Affidavit setting out the defaulting party's failure to comply.
Costs
(31)That the Respondent pay the Applicant's costs of and incidental to the Application
SCHEDULE 3 – THE RESPONDENT’S PROPOSAL
Property Orders
(32)That these Orders are made pursuant to Section 90SM of the Family Law Act.
(33)That within seven (7) days of the date of these Orders, the parties shall do all things and provide all necessary consent to release the funds held in RMB Lawyers Trust Account, in the following manner and priority:
33.1 30% of the current balance to the Applicant; and
33.2 70% of the current balance to the Respondent.
(34)That for the purposes of Order 33 above, these Orders shall act as authority for RMB Lawyers to distribute funds payable to each party pursuant to that Order, however so directed by that party.
(35)That within seven (7) days of the date of these Orders, the Applicant shall return to the Respondent the recreational equipment in good condition.
(36)That within fourteen (14) days of the date of these Orders, the Applicant shall do all things and sign all documents necessary so as to transfer to the Respondent all her right, title, and interest in Motor Vehicle 1 situate at N Property.
(37)That as between the Applicant and the Respondent, and subject to the above Orders, the Applicant and the Respondent shall each respectively retain all interest in and entitlement to:
37.1. All personal property now in his/her respective possession or control.
37.2 All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
37.3. All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
(38)Both the Applicant and the Respondent hereby release the other from all actions, proceedings claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other for or by reason of or in respect of any act, cause, matter or thing.
(39)That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Child Support
(40)40. That the Departure Application sought by the Applicant be dismissed.
Parental Responsibility
(1)That the Applicant and the Respondent have equal shared parental responsibility for the children X (dob: 2011) and Y (dob: 2014) and Z (dob: 2015) including but not limited to matters of a long-term nature including:
1.1.The education of the children – both current and future;
1.2. The religion of the children;
1.3. The health and medical treatment of the children; and
1.4. Any change to the children's living arrangements that make it significantly more difficult for the children to spend time with the other parent.
(2)That the Mother shall have the sole parental responsibility for making decisions about the day-today care, welfare, and development of the children during periods when the children are living with or spending time with her.
(3)That the Father shall have the sole parental responsibility for making decisions about the day-to-day care, welfare, and development of the children during periods when the children are living with or spending time with him.
Live and Spend Time With
(4)That the children live with the Mother.
(5)That the children spend time with the Father as follows:
From the date of these Orders for a period of two months
5.1. From 8.00am to 5.00pm on Saturday each alternate weekend; and
5.2. From 8.00am to 5.00pm on Sunday each alternate weekend.
From three months from the date of these Orders, and continuing for a further four months
5.3. From 8.00am on Saturday to 5.00pm on Sunday each alternate weekend.
Thereafter
During NSW School Terms
5.4. From the conclusion of school on Friday (or 3.00pm ona non-school day) to 5.00pm on Sunday each alternate weekend.
During NSW School Holidays
During the Term Two 2023 School Holidays
5.5. For a period of three nights each alternate week of the New South Wales Term Four gazetted School Holiday Periods as agreed between the parties in writing, and in the absence of agreement from 5.00pm on the first Saturday of the school holiday until 5.00pm on the fourth day thereafter, continuing each alternate week of the school holiday period.
From Term Three 2023
5.6. For a period of five nights of the New South Wales Terms One, Two, and Three gazetted School Holidays Periods as agreed between the parties in writing, and in the absence of agreement from the conclusion of school on the last day of the school term until 5.00pm on the sixth day thereafter.
5.7 For a period of five nights each alternate week of the New South Wales Term Four gazetted School Holiday Periods as agreed between the parties in writing, and in the absence of agreement from 5.00pm on the first Saturday of the school holiday until 5.00pm on the sixth day thereafter, continuing each alternate week of the school holiday period.
From Term One 2024
5.8. For one half of the New South Wales Terms One, Two and Three gazetted School Holiday Periods as agreed between the parties in writing, and in the absence of agreement from the conclusion of school on the last day of the school term until 5.00pm on the middle Monday of the school holiday period
5.9For a one-half block period of the New South Wales gazetted Christmas School Holiday periods, as agreed between the parents in writing, and in the absence of agreement. from the conclusion of school on the last day of school until 5.00pm seven nights thereafter, continuing each alternate week of the school holiday period.
Special Occasions
(6)That in addition to spending time with the Father in accordance with Order 5 above, the children shall spend time with the Father on the following occasions of special significance, unless otherwise agreed between the parents in writing:-
6.2 From 3.00pm on Christmas Eve until 43.00pm on Christmas Day in even numbered years commencing in 2024;
6.3From 3.00pm on Christmas Day until +3.00pm on Boxing Day in odd numbered years commencing in 2023;
6.4In the event that Father’s Day falls during a time when the children are spending time with the Mother, then the children are to spend time with the Father from 5.00pm the Saturday prior to Father’s Day until 5.00pm on Father’s Day of each year;
6.5 In the event that the children are not in the care of the Father, on each of the children’s birthdays for a period of three hours as agreed between the parties, and in the absence of agreement from 4.00pm until 7.00pm.
(7)That in addition to living with the Mother pursuant to these Orders, that the children spend time with the Mother on the following special occasions as follows:
7.1. From 3.00pm on Christmas Eve until 3.00pm on Christmas Day in odd numbered years commencing in 2023;
7.2. From 3.00pm_on Christmas Day until 3.00pm on Boxing Day in even numbered years commencing in 2024;
7.3. In the event that Mother’s Day falls during a time when the children are spending time with the Father, then the children are to spend time with the Mother from 5.00pm the Saturday prior to Mother’s Day until 5.00pm on Mother’s Day of each year:
7.4. In the event that the children are not in the care of the Mother, on each of the children’s birthdays for a period of three hours as agreed between the parties, and in the absence of agreement from 4.00pm until 7.00pm.
Designated Supporting Adult
(8)That for the purposes of the children spending time with the Father pursuant to these Orders, either the paternal grandmother, paternal grandfather, or Father’s partner are to be the designated supporting adult.
(9)That for the purposes of these Orders, from the date of these Orders, and for a period of six months thereafter, the designated supporting adult shall be present and available to the children at times that the children are spending time with the Father.
(11)That for the purposes of Order 5.3, the first three occasions at which the children spend overnight time _in the Father’s care shall occur with the children sleeping at the paternal _grandparent’s residence.
Changeover
(12)That unless otherwise agreed between the parties, and for all changeovers that do not otherwise occur at the children’s school, for the purposes of changeover the Mother, or her agent, shall deliver the children to GG Park, HH Town, at the commencement of the Father’s time with the children, and the Father, or his agent, shall deliver the children to GG Park, HH Town at the conclusion of his time with the children.
Communication
(13)That the children shall have FaceTime communication with each parent at any times as requested by the children, and each parent shall do all things to facilitate that request.
(14)That the children shall have FaceTime communication with the Father each Tuesday and Thursday between 4.00pm to 5.00pm, and the children shall be afforded privacy during the FaceTime communication.
(15)That the parties communicate by the following means:
15.1. Text message and/or email; and
15.2. Telephone in the event of an emergency.
With such communication to be only in relation to the children.
(16)These Orders are taken to be an irrevocable authority for the children's school or educational to provide information to either of the parties about the children, at the requesting parent’s expense, including but not limited to any:
16.1. Report:
16.2. Invitation;
16.3. Circular;
16.4. Newsletter 16.5. School photograph order form:
16.6. Notice; and
16.7. Any other notification or communication provided to the other parent.
(17)These Orders are taken to be an irrevocable authority for the children’s treating medical practitioners or allied health workers, to provide information to the parties about the child, at the requesting party’s expense, including but not limited to:
17.1. Treatment;
17.2. Referrals;
17.3. Medication: and
17.4. Any other information regarding medical history.
(18)That in the event that either parent makes a medical appointment for either of the children, other than in the event of an emergency, that parent shall inform the other parent of the time and date of the appointment within twenty-four (24) hours of the appointment being made.
(19)The Mother and Father are at liberty to attend all things including but not limited to:
19.1. Meetings:
19.2. Interviews:
19.3. Consultations;
19.4. Appointments;
19.5. Social, cultural, sporting, extra-curricular or other events; and 19.6. Any other events that allow for parental attendance and/or engagement.
(20)The parties will provide each other with their current residential address and a contact telephone number, and will forthwith provide updated contact details to the other parent or within twenty-four (24) hours of such change occurring.
(21)The parties will promptly notify the party of any significant illness, or any injury suffered by either of the children that requires medical treatment or medication while in that parent’s care and will include details of such illness, injury, medical treatment, or medication.
Restraints
(22)That each party be restrained by injunction from:
22.1. Discussing these proceedings, or showing any document related to these proceedings to the children, or permitting any other person to do so;
22.2. Denigrating the other party, or members of the other party's family to the children or in the hearing or presence of the children, or allowing other persons to denigrate the other party, or members of the other party’s family to the children or in the hearing or presence of the children.
22.3. Relocating the children’s residence outside of JJ Region.
(23)That within fourteen (14) days of the date of these Orders, each parent shall enrol in and thereafter participate as directed _in a Parenting Orders Program through Relationships Australia at City S, and shall provide evidence of the enrolment to the other parent within seven days of that information becoming available.
(24)That each parent shall accept any referrals into further Programs made by Relationships Australia.
Dispute Resolution
(25)That in the event that the parties cannot reach a joint decision about:
25.1. A major long-term issue involving the children; or
25.2. The interpretation of these Orders: or
25.3. The implementation of these Orders; or
25.4. The enforcement of these Orders.
which involves the children, the parties will do all things necessary to participate in Family Dispute Resolution with a person authorised to do so under the Family Law Act.
(26)That before an Application is made to the Court for a variation of these Orders to take into account of the changing needs or circumstances of the children or of the parties, each of the parties is to take the following steps:
26.1. The parties shall each do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act;
26.2. The parties shall participate in Family Dispute Resolution with a person authorised under the Family Law Act: and
26.3. Neither party shall cease to comply with these Orders pending the parties’ engagement in the above Dispute Resolution process.
Costs
(27)That the Applicant pay the costs of the Respondent as agreed or in default of agreement, as certified under the Federal Circuit and Family Court Rules.
NOTATION:
A.The Father proposes that in the event that the Father and his partner were to relocate to the City S area not before 2025, that the parties will attend upon a further Mediation in relation to the increase in the Father’s with the children progressing to an equal time arrangement.
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