Wilder & Nellis
[2022] FedCFamC2F 483
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wilder & Nellis [2022] FedCFamC2F 483
File number: MLC 9524 of 2021 Judgment of: JUDGE O'SHANNESSY Date of judgment: 14 April 2022 Catchwords: FAMILY LAW – final parenting – protecting children from parents’ emotions and grief – substantial and significant time – equal shared time not in the children’s best interests – family therapy to assist implementation of orders – family therapy does not stand alone – family therapy not untethered to orders. Legislation: Evidence Act 1995 (Cth): s 140.
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61DA, 65DAA and 65DAC.
Cases cited: Fox v Percy (2003) CLR 118.
Jacks & Samson (2008) FLC 93-387.
Oberlin v Infield (2021) 63 FamLR 88; [2021] FamCAFC 66.
Division: Division 2 Family Law Number of paragraphs: 107 Date of hearing: 3, 4, 8 March 2022 Place: Melbourne Counsel for the Applicant: Mr D Carne Solicitor for the Applicant: SMR Legal Counsel for the Respondent: Mr J Korke Solicitor for the Respondent: Family Centred Law ORDERS
MLC 9524 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WILDER
Applicant
AND: MS NELLIS
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
14 APRIL 2022
THE COURT ORDERS BY CONSENT THAT:
1.The Father and Mother have equal shared parental responsibility for the children X born in 2015 and Y born in 2017 ('the children').
BY THE COURT:
2.The children live in a fortnightly routine as follows unless otherwise agreed:
(a)The children live with the Mother;
(b)During school term the children spend time with the Father:
(i)In week one commencing Thursday, 28 April 2022, and each alternate week thereafter from the conclusion of school / kinder on Thursday (or 3:30pm if a non-school / kinder day) until 6:00pm on the following Monday save in the event that the Monday is a non-school day in which event such time shall extend to conclude at 6:00pm on the Tuesday;
(ii)In week two commencing Thursday, 5 May 2022, and each alternate week thereafter from the conclusion of school / kinder on Thursday (or 3:30pm if a non-school / kinder day) until the commencement of school / kinder on Friday (or 9am if a non-school / kinder day).
(c)As otherwise agreed between the parents in writing, text message, email, or via the App.
BY CONSENT:
3.Commencing at the Term 2 school holidays in 2022, the shared care arrangement in paragraph 2 hereof be suspended during each of the three term school holidays and during these periods the children live with the parties on an equal basis and failing agreement with the Mother from 4pm on the first Friday of each such holiday period until 4pm on the middle Saturday and with the Father from 4pm on the middle Saturday until 4pm on the last Sunday of each such holiday period.
4.The shared care arrangement in paragraph 2 hereof is suspended as follows:
(a)On the Mother's Day weekend from 4.00pm on Saturday until 4.00pm on Sunday and the children live with the Mother during this time;
(b)On the Father's Day weekend from 4.00pm on Saturday until 4.00pm on Sunday and the children live with the Father during this time;
(c)During the long summer holidays with children to spend time with the parties throughout such holidays as follows:
(i)In the 2022 / 2023 long summer holidays and each alternate year thereafter as follows:
A.With the Father from the conclusion of school on the last day of Term 4 until 4pm on 23 December;
B.With the Mother from 4pm on 23 December until 4pm on 9 January;
C.With the Father from 4pm on 9 January until the commencement of school on the first day of Term 1;
(ii)In the 2023 / 2024 long summer holidays and each alternate year thereafter as follows:
A.With the Mother from the conclusion of school on the last day of Term 4 until 4pm on 23 December;
B.With the Father from 4pm on 23 December until 4pm on 9 January;
C.With the Mother from 4pm on 9 January until the commencement of school on the first day of Term 1;
(d)Such other times as may be agreed in writing.
5.Where applicable, the shared care arrangement in paragraph 2 hereof shall resume after each of the three school term holidays and the long summer holidays as if they had continued in the ordinary pattern throughout the preceding holiday period.
6.The children communicate with each parent via telephone and/or Facetime as follows:
(a)Between 5:30pm and 6pm on each third night that the children are not in that parent's care;
(b)Between 5:30pm and 6pm on the parents' birthdays and the children's birthdays; and
(c)Such other times as may reasonably be requested by the children
with the parent with whom the children are not living at the time to initiate the call and the other parent to ensure that the children are available to receive same.
7.Unless otherwise agreed in writing or via the App, all non-school / kindergarten changeovers shall occur at the Location B McDonalds in Town C.
8.The Father shall enrol in and complete a Men’s Behavioural Change program at his expense with a provider of his choosing and shall provide to the Mother’s solicitors proof of his completion of that program within seven (7) days of receipt of same.
9.The Father and the Mother, by themselves, their servants and/or agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other's household or family to or in the presence or hearing of the children or either of them and from permitting any other person so to do;
(b)physically or verbally abusing the children or using any form of corporal punishment in relation to the children;
(c)exposing the children to family violence; and
(d)discussing these proceedings or any intervention order proceedings with the children or either of them or in their presence or hearing;
or from allowing any other person to do so.
10.The Father and Mother:
(a)Keep the other advised at all times of their respective residential addresses and mobile telephone numbers via email or SMS message and advise the other within 24 hours of any change to same;
(b)Advise the other immediately by telephone in the event that the children, or either of them suffer any serious illness or injury;
(c)Keep the other advised at all times of the details of any medical practitioner or allied health professional upon whom the children, or any of them may attend from time to time, including as to any appointments made or attended;
(d)Authorise any medical practitioner or allied health professional upon whom the children, or any of them may attend from time to time to communicate with the other in respect to the child or children's medical condition and or requirements and a sealed copy of these Orders shall stand as all necessary authorisations for same;
(e)Authorise all schools at which the children, or either of them, may attend from time to time to:
(i)Provide the other, at the expense of the other, copies of school reports, school notices and school photographs in relation to the child;
(ii)Communicate with the other by telephone, in writing or by personal attendance;
(iii)In respect to the child's progress at the school; and
(iv)Allow the other to attend all school functions and sporting events to which parents are normally invited, including the first day of each school year;
subject to any school policy in relation thereto and a sealed copy of these Orders shall stand as all necessary authorisations for same.
11.The Father and the Mother shall be at liberty to provide a copy of these Orders to any one or more of the following:
(a)The Principal or delegate of the Principal of the school attended from time to time by the children;
(b)Any Medical Practitioner and/or allied health professional attending upon any one or more of the children, the Mother or the Father; and
(c)The Regional Director of the Department of Families Fairness & Housing.
12.The Father and the Mother be at liberty to provide these reasons and orders of 14 April 2022 to any other Court conducting proceedings between the Father and the Mother and to the Regional Director of the Department of Families Fairness & Housing.
13.Save in an emergency, all communications between the parties shall be via 'AppClose' or such other agreed parenting app (‘the App’) and the parties confine all communications solely to matters directly concerning the care and welfare of the children.
BY THE COURT:
14.The parties forthwith do all acts and things and sign all documents necessary for the purpose of facilitating an intake with a family therapist as agreed between the parties in default of agreement, as nominated by the family report writer, Mr D, for the purpose of therapy to assist the parents implement these orders: and
(a)The parties follow all reasonable directions and recommendations of the family therapist including attendance at scheduled appointments;
(b)The parties complete and return any documents requested by the family therapist within 7 days of such request;
(c)The parties be at liberty to provide the family therapist with a copy of all documents filed by them in the proceedings, including a copy of the Family report dated 18 October 2021, these reasons and all Orders made in these proceedings to date; and
(d)The costs of the counselling be shared equally by the parties and if applicable and appropriate the parties are at liberty to apply for a mental health plan.
(e)Unless agreed between the parties in writing, text message or email, the therapy conclude 6 months after the first day of therapy.
15.Pursuant to ss.65DA(2) and 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders
AND THE COURT NOTES:
A.In the event of these orders being inconsistent with a State family violence order, then pursuant to Section 68Q of the Family Law Act 1975, to the extent that these Orders are inconsistent with an existing State family violence order between the parties, these Family Law Orders prevail over the State family violence order.
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 a pseudonym Wilder & Nellis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
This matter came before me on the third day of the March 2022 Shepparton Circuit sitting of this Court. The matter was one of 17 final hearings listed for hearing between Tuesday, 1 March and Friday, 4 March 2022. The Circuit sitting and all hearings in it were conducted electronically over Microsoft Teams. The matter was heard over Wednesday 2 March 2022 and Thursday 4 March 2022 and was listed on Friday 5 March 2022 and was mentioned that day, but due to the number of other matters proceeding was unable to proceed on that day. Instead the matter was concluded on Tuesday 8 March 2022.
BACKGROUND
The Applicant father, Mr Wilder, is aged 37 (‘the Father’) and is a tradesman. The Respondent mother, Ms Nellis, is aged 31 (‘the Mother’) and is engaged full time in caring for the parents' children. The parties have two children, X, who is 6 years old and Y who is now 4 years old (‘the children’). X is in grade 1 at a local primary school and Y remains at kindergarten. The parties commenced cohabitation when they married in 2010. X was born in 2015 and Y in 2017. The parties separated on 30 October 2018. At the time of separation, X was almost 3 years old and Y was just 1 year old and most of the time since the children have moved between the parties in a 4/4 equal time arrangement.
The question I must decide is what will be the living arrangements for the children moving between their parents as their parents raise and care for them.
The Mother decided to no longer follow the 4/4 arrangement, as discussed later, on about 23 August 2023 and travelled to New South Wales at this time. The Father issued proceedings on 26 August 2021. On 3 September 2021 it was ordered by consent that that the Mother return the children to Town C and on 23 September 2021 the parents were interviewed and the children observed by the family report writer. The family report was released on 18 October 2021 and on 19 October 2021 the parents agreed to interim orders that put the 4/4 arrangement back in place.
COMPETING APPLICATIONS
The Mother proposes that the children’s living arrangements change so that they live with her and spend 4 nights per fortnight with the Father from Thursday afternoon, after school or kindergarten, until the following Monday morning with the children being delivered to school or kindergarten. In addition, she seeks that the children have a meal on the Thursday of the other week and otherwise half school holidays with the Father.
Since soon after separation, the children have lived in a 4 days with each parent rotating time arrangement, or what has become known as the 4/4 arrangement. The Father, at the start of the hearing, sought that the 4/4 arrangement continue until the end of the 2022 year, and then the parties move to an equal week-about time arrangement for the following year, but with half of school holidays.
At the end of the case, the Father sought different orders to those he had sought by his Application and Amended Initiating Application. The Father's original Application of August 2021 had sought final orders that the children return to the 4/4 arrangement. In the Father's Amended Application filed shortly before the hearing on 23 February 2022, he sought that that arrangement continue until the commencement of the first term of 2023 and that arrangement be varied by the parties sharing school holiday periods on a week-about basis. The Father's Amended Application sought that from the commencement of school term, the children live in a week-about arrangement. In closing the Father did not press the continuation of a restraint relating to the Mother’s partner discussed later.
Both parents sought orders for equal shared parental responsibility.
By the efficient conduct of their respective cases the parties did not press for findings about many controversial matters. The extent of the Father’s emotional lability, his emotional interaction with the children, his anger and the extent of family violence and financial control during the relationship remained alive in the hearing. The extent to which the Mother supported the Father’s relationship and the reasons, or lack thereof, behind the Mother unilaterally stopping the 4/4 arrangement in August 2021 and how the 4/4 arrangement came about also remained alive in the hearing.
THERAPY AND OBERLIN & INFIELD
In closing the Father sought, in accordance with the family report writers recommendation, that the parents participate in family therapy with a named therapist. The Mother disagreed. Her counsel submitted that the Full Court decision of Oberlin v Infield (2021) 63 FamLR 88; [2021] FamCAFC 66 (‘Oberlin’) meant there was no power for such an order.
MATERIAL RELIED ON
The Mother relied upon the following material.
·Affidavit of Ms Nellis filed 27 February 2022.
·Affidavit of Ms E filed 27 September 2021.
·Amended Response of Ms Nellis filed 27 February 2022.
·Notice of Child Abuse, Family Violence or Risk filed 7 September 2021.
·Affidavit of Mr D with Family Report filed 18 October 2021.
·Interim Intervention Order filed 18 August 2021.
The Father relied upon the following material.
·Amended Initiating Application filed 23 February 2022.
·Affidavit of Mr Wilder filed 23 February 2022.
·Affidavit of Ms F filed 23 February 2022.
·Notice of Child Abuse, Family Violence or Risk filed 26 August 2021.
·Affidavit of Mr D with Family Report filed 18 October 2021
There was no Independent Children’s Lawyer in this matter. Exhibits tendered in the case were as follows.
Exhibit No: Date: Description: Party who submitted Exhibit: H1 02/03/2022 Text message of 24 December 2020
(emailed from Mr Carne).Husband H2 03/03/2022 Text message 16.04.2021
(emailed from Mr Carne).Husband H3 03/03/2022 Text messages 15.03.2021 – regarding swearing. Husband H4 03/03/2022 Text messages (3 page document). Husband H5 03/03/2022 Text messages – continuation of H4 and precedes page 9 of 38 (13 page document). Husband H6 08/03/2022 Proposed minute of final orders from Husband. Husband
The Mother, her mother, the Father, his mother and the family report writer were cross examined. I have taken into account all of that evidence including those parts specifically referred in these reasons.
STANDARD OF PROOF
Any findings are made on the balance of probability. I apply section 140 of the Evidence Act 1995 (Cth) ('the Evidence Act') which states as follows:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject-matter of the proceeding; and
(c) the gravity of the matters alleged.
It is necessary to look carefully at the events that unfolded by reference to contemporaneous records of communications. For example, the detail of the 18 March 2020 orders and the previous orders referred to therein rather than attempt to determine disputes upon only general impressions or credit findings (see: Fox v Percy (2003) CLR 118 (‘Fox v Percy’)).
In Fox v Percy, a High Court case concerning the skid marks of a Combi van on the correct side of the road, at [31], when discussing the drawing of conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses, the plurality observed:
[31]in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from false would accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance upon the appearance of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events…
(citations omitted)
THE WITNESSES
I have endeavoured to follow the direction and guidance of the High Court in Fox & Percy, and to place more weight on contemporaneous records and incontrovertible facts than on the credit of the parties. The Father's demeanour in giving evidence when cross-examined was, at times, candid and frank but demonstrated a rigid determination to maintain that he was acting morally correctly at all times and that when he had been violent, it was not very violent and there had been good reason for that behaviour caused by the Mother's behaviour. The Father demonstrated a rigid attitude to past events and little or no insight into how his behaviour would frighten the Mother and, at times, the children and others who observed his anger, including the maternal grandmother. Evidence of his emotional lability at separation was not included in his affidavit or his account to the family report writer. The Father has not been intentionally dishonest but has minimised any aspect of the evidence that would be adverse to his case.
The Father's mother, Ms F, also gave evidence and the substance of her trial affidavit was that the Father was an excellent father and that the allegations in regard to violence and mood swings were without foundation. Paragraphs 10 and 11 of Ms F’s affidavit dated 23 February 2022 state:
Allegations about Mr Wilder being violent
10.I am aware that Ms Nellis has made allegations that Mr Wilder has been violent and I have read the affidavits that Ms Nellis and her mother Ms E have filed in these proceedings.
11.I have never witnessed Mr Wilder being violent towards Ms Nellis or the boys or anyone else. I have never witnessed him have angry outbursts or act with rage. He has never had dark mood swings or treated Ms Nellis in a degrading way. I have never witnessed him as having volatile behaviour or irrational mood swings.
Ms F did observe the emotional distress of the boys when it was time to go back to their mother, entirely consistent with the Mother's evidence. Paragraph 9(j) of Ms F’s affidavit states:
I have observed the boys being upset when Mr Wilder had to go somewhere and upset when they had to go back to their mum. There was a separation anxiety issue with the boys and when that happened Mr Wilder would hug them and always reassure them that he will always be here for them. I have observed the boys upset going back to Ms Nellis and Mr Wilder would be asked to put the boys in her car and buckle them in while they cried. Mr Wilder found it heart breaking. This has improved this year and the boys appear more settled and happy to go back to their mother on most occasions.
The Father's mother unqualifiedly loves and supports her son. She has applied a filter to her evidence of what would assist her son.
I found the Mother to be an honest and mostly reliable witness. She gave evidence that the consequence of the 4/4 arrangement was that the Father had had the children with him for the 3 days of the last three Christmases. The Father was able to produce text messages which showed that that was not the case and that on one of those Christmases, the children had been with the Mother. The Mother readily admitted that she was mistaken and that her memory of the event was wrong. However, I do not regard her as being dishonest in that particular.
I found the Mother’s mother, Ms E, to be a careful and reliable witness. Her evidence included the following:
…
12.That many of the things Ms Nellis talked about raised alarm bells for me because of Mr Wilder's history of angry outbursts and rage, which I witnessed many times during their marriage, as well as dark mood swings and degrading treatment of Ms Nellis.
…
15.That on or about June 2019, in the front yard of my home, I witnessed Mr Wilder in an emotional outburst.
a. He was due to have the boys for three hours mid-week.
b.Ms Nellis told Mr Wilder that Y had been really sick and was sleeping, and that he needed to stay with her.
c.She said to him "why don't you spend the three hour visit one on one with X, and I'll nurse Y".
d. In a rage, Mr Wilder left with X in his car.
e. I remember the sound of the tires screeching.
f. We were alarmed and feared for X's safety.
16. That when they returned Mr Wilder was very emotionally unstable.
a.He was crying, stomping around, and shouting, for more than an hour, in front of the children.
b.He repeatedly said something like "this is the start! You're going to take my kids from me. This is what everyone said would happen".
c. He was yelling and berating Ms Nellis for "destroying his life."
d. His behaviour was very frightening.
17.Mr Wilder can appear to be a kind and reasonable person. I say I am witness to his volatile behaviour, and irrational mood swings in close personal relationships outside of the public eye.
…
Ms E’s evidence in cross examination included the following:
…
MR CARNE:… You don’t really like Mr Wilder, do you, Ms E? --- It’s not about what I like. I don’t – I don’t want to answer that.
…
MR KORKE:… Thank you. When you say, “very frightening,” do you mean that you were frightened?---Yes. I – I was – I was very frightened.
What were you frightened of?---I – I just didn’t know what was going to happen. It was – it was so violent, and it was such an outburst of – and yes. It was – he’s – he’s a big man, and you just didn’t feel safe. I just didn’t feel safe.
…
Ms E clearly supports her daughter and was reticent about criticising the Father from the witness box but was forthright in her affidavit. Notwithstanding that disparity I accept her evidence of what she observed about the Father.
HOW THE 4/4 CAME ABOUT FOR A TODDLER AND A BABY
Within the dispute about how to share the children’s lives, the parties disagree about the extent of family violence and the nature of the relationship between the children and the Father. The parties disagree as to how the 4/4 arrangement came about. The Father's case is simply that the parents agreed. His motivation to pursue the 4/4 arrangement was as follows:
MR KORKE:… The rotating four days with each parent arrangement, that has been in place since 2019. Yes?---Yes, I’m pretty sure; yes.
And that was your idea, wasn’t it?---Yes. I wanted to – as much time as I could with the boys, yes.
Well, why was that as much time as you could spend with them?---Well, I was in the rotating cycle at Employer H where I was working four days on, four days off.
So that was - - -?---That’s the - - -
- - - driven by your roster at Employer H?---Yes. That’s right.
…
The Father said that when his worked changed (from the 4 days on/4 days off shift work) he did not tell the Mother of that change. I accept that evidence.
The Mother's case is that the parents discussed the living arrangements and discussed a number of different options. She says that one of the options discussed was the 4/4 arrangement and that there were about another five arrangements discussed between the parties. She says that she only agreed to the 4/4 arrangement as a trial, and a trial for six weeks to be then reviewed. She says that when the time for the review came about, the Father would not countenance any change from this arrangement and simply insisted on its continuance. I accept that evidence.
The parties also dispute the dynamics or circumstances of the children, and X in particular, being able to separate from the Father when he drops him off at school and/or it is time to move to his Mother's care. The Father's explanation is that the child has a very close relationship with him and that as a result of the Mother stopping their time with him is fearful he will not see his Father. The Mother's explanation is that the Father has a highly emotional and unstable interaction with the children. It is common ground that in the 2022 year (X is in grade one) the school principal and the school welfare person became involved and spoke to the Father about how to have X disengage from him when dropping him off at school. It is common ground that the Mother has no such problem or issue.
The Mother's case is that she was the victim of controlling and coercive behaviour from the Father including financial control. On all of the evidence I am unable to find that the Mother was subjected to financial control. I accept the Father had difficulties with his business and that money was, at times, very tight. The Father took on the primary responsibility for providing for the material needs of the family and, in difficult circumstances, found that difficult and stressful. What one partner, particularly the one with the responsibility for providing the material needs of the family, sees as sensible budgeting in financially difficult times, can be experienced by the other as “control”. In this case it was not disputed there were financially tight times. There is no evidence of what may be the other side of the financial control coin: self-indulgent spending by the party claiming the need for the other to budget. I accept the Mother may now feel that she was then subjected to financial control but the evidence does not permit me to determine whether or not what the Mother now sees as control was or was not sensible budgeting. I make no finding as to that allegation.
The Mother’s case includes that the Father has a real problem with anger and emotional control. It is her case that she was subject to family violence and that, in 2021, the Father's angry and emotional outbursts were experienced as scary behaviour by the children and that the children were scared to attend with the Father. It is common ground that the Father communicated to the Mother in 2021 that he had smacked X too hard. Not long after these events, the Mother decided to suspend the Father's time altogether and she went to stay in New South Wales, and for about six weeks. The Father did not see the children at all. It is common ground that following receipt of a letter from the Father's solicitor, the Mother sought and obtained a Family Violence Order protecting herself and the children.
EARLY FAMILY REPORT OBTAINED
These events triggered the Father to issue these proceedings, seeking that the 4/4 arrangements be reinstated. To the credit of the parties, upon the first return of the matter in court, on 31 August 2021 the parties agreed to attend upon Mr D, a family consultant for the purpose of obtaining a family report. The parties attended upon Mr D on 18 October 2021. At the time that Mr D saw the family, the children had not seen the Father for about six weeks. Mr D interviewed the parties on 23 September 2021 and observed the children with each of the parents. He prepared a family report on 18 October 2021 and that was released to the parties soon after. On 19 October 2021, and responding to the observations in the family report, the parties agreed to orders that the 4/4 arrangement resume. The orders of 19 October 2021 adjourned all extant applications to 11 November 2021 for a directions hearing, and on 11 November 2021 trial directions were made fixing the matter for final hearing in the February/March Shepparton Circuit Sitting of this Court. Hence at the time the matter had come before me the children had, for the greater part of their lives, been living in the 4/4 arrangement.
The family report interviews were prepared at a time when the Mother had unilaterally interrupted the long standing 4/4 arrangement and the children had not seen the Father since about 20 August 2021. Many of the parent’s comments to the family report writer were critical of the other parent’s behaviour during the relationship and each denied, or justified, the allegations.
The family report writer’s observations included the following:
36.Ms Nellis has since made claims that their marriage was marred by Mr Wilder’s rages, that he would throw things making holes in walls, smashed furniture in a rage, was physically intimidating, was verbally violent, threatened to remove the children from her when they want to be with her, threatened to speak to the boys about who she really is if she does not agree, was financially, economically and emotionally abusive during the relationship.
…
55.In July 2021 there was an incident involving X whilst in the care of Mr Wilder where X had been frightened by the actions of Mr Wilder and had not known what to do. She identified that the boys had tried to get their father’s attention while he was playing games on the computer and he had yelled at them. She identified that she promised X that she would handle the matter for him and told X the next day that he did not have to go to his father’s if he was frightened. She identified that X had had a bad dream and did not want to go to his father’s care, the time also coincided with his birthday.
56.Mr Wilder recalled he had shown the boys games on the computer and they asked him to play the games. He described how the boys were misbehaving and accepts that the volume of his voice at the time and yelling at the boys would have scared X.
57.Ms Nellis claimed that X has witnessed Mr Wilder ‘have several outbursts of rage’ and she considered he had been reactive after time with Mr Wilder, was angry and flinching on return from his father’s care and was angry. She again noted that X had wet his bed twice at this father’s in recent times and was referring to his father as ‘scary Daddy’ and has been having nightmares regarding ‘scary Daddy.’ Ms Nellis claimed that Mr Wilder can enter extreme rages.
58.Mr Wilder stated he has never had a rage with the boys.
…
97.Mr Wilder is 36. He presented as pleasant and cooperative throughout the process. He was observed to be attentive to the children and patient with both.
…
102.Mr Wilder does not have any police record, any drug history, does not drink alcohol and has never used drugs or alcohol in the past.
…
105.Mr Wilder considers that Ms Nellis has fabricated or over exaggerated a variety of issues as she has identified. He spoke of being shocked that they were requiring the support of Court.
…
107.He specifically denied any problem with anger and estimated that he might get angry ‘once every couple of years.’
…
109.He spoke of Ms Nellis noting she was raised by her mother as a single parent. He understands that her mother seemed nice but now wonders if she may be an enabler. He noted that he considers that he ‘was the only one pulling Ms Nellis up’ at times and added; ‘I think I became her father in the relationship and not a husband.’
…
129.The writer observed that Ms Nellis wanted nothing to do with Mr Wilder. Interestingly, the children encouraged her to come into the room with him together with them in the early stage of observation. Ms Nellis did so but was later clear that she would not do this again. The writer made it clear that it had not been expected and would not be repeated. Mr Wilder seemed surprised by this ‘visit’ by Ms Nellis but kept focus on the children during the time this occurred.
…
134.The writer observed the children with each parent.
135.They presented well and were well dressed and showed evidence of being provided good basic care and hygiene. Ms Nellis was accompanied by her mother who showed a comfortable relationship with the children.
136.They relatively easily separated from Ms Nellis to see Mr Wilder who was already in the building when they arrived and was waiting in another room. Mr Wilder had a birthday present for X as he had not seen him for his birthday. This was a slot car racing set and the boys set this up on the table and played with Mr Wilder. This went on for some time. They did to seek to return to their mother. The writer tested this again by suggesting that Mr Wilder and the boys go to a nearby playground. They agreed. Again they played well and interacted well with Mr Wilder. He was attentive at all times.
137.The writer observed the boys distress as separating from Mr Wilder and they wailed loudly on separation. The writer suggested to Ms Nellis that this can be a sign of children who are not getting enough time with a parent and have no clear understanding of the next time they might meet. She quickly disagreed and suggested that she knew her children and this was not the case.
138.Ms Nellis was assisted by her mother to carry the crying children away as they stretched out their arms saying goodbye to their father who eventually had to leave in order to allow the boys to settle.
…
143.Ms Nellis drove their separation. She re-partnered reasonably quickly. Mr Wilder seems to be concerned about Mr G and the writer suggests that this may also need to be tested.
144.The children appear to have thrived in having time with each parent. Their clear evidence of distress at separation from Mr Wilder suggests that they are needing time with him.
RECOMMENDATIONS
The writer, having considered the information gathered respectfully recommends the following:
145.That in the absence of clear evidence that they are at risk, there be an immediate return to significant and substantial time spent so the boys can have a relationship with Mr Wilder. The writer is not convinced that these boys need supervision or substantial attendance but if this assists getting the matter moving then the writer would suggest that the Court consider Mr Wilders parents or either of them or his brothers or either of them. In short, it is suggested that the sooner they get back to a time spent arrangement the better for the boys. This should include overnight and special occasions. The writer suspects that the pressure will be whether they return to equal time or not and notes that the writer considers significant and substantial time could suffice;
146.Equal shared parental responsibility;
147.The parents consider family therapy to try to rebuild a parenting relationship beyond this experience.
…
The day after the release of the family report, the parents agreed on an interim basis to return to the 4/4 arrangement and it has been in place since.
The report writer did not have all of the information now available to the Court and in particular, the Father’s evidence as to his emotional interaction with the children.
MOTHER’S NEW RELATIONSHIP
The parties met whilst attending the same church and, during the relationship, it was important to both parties to live according to what each of them understood to be Christian values. After separation, the Mother pursued a relationship with a Mr G. Mr G had been known to the parties prior to separation and had been significantly involved in the same church as the parties and, at one point, had been the Father's employer. The Father suggests that the Mother was involved with Mr G prior to separation. It is clear that the Mother had at least a deep affection for Mr G that overlapped with the breakdown of the marriage and that breakdown overlapped with what the Mother experienced as the Father’s “rages”. Not long before separation, the Mother had some suicidal ideas and sought medication for anxiety and on one occasion collapsed from taking more than the prescribed medication. But it is common ground that she pursued that relationship with Mr G after separation.
The Father’s attitude to the Mother pursuing another relationship can be gleaned from applications and orders and the following evidence in cross examination of the Father.
MR KORKE: … That’s a message that looks to be from you that starts with:
Beware the man who justifies sin for he will lead you to your death, a verse straight out of the Bible.
Did you send that message?---Yes, yes.
What’s that all about?---I think it was around the time when Ms Nellis left me, I – I’m pretty sure, or it feels like. So basically I think this – this is three years ago, so, you know, my memory could be rough, but it was around the time when Mr G left me – Ms Nellis left me for Mr G and they were justifying that in God’s eyes it was okay to do it – whatever they’re doing, and so I tried to get across to Ms Nellis that that’s not what God says. Anyone who – like, the people that justify sin are the ones that you have to stay away from and be careful of.
MR KORKE:And so that’s quite a long text message that goes through to page 10 of 38 and then into page 11 of 38 and if I look at the top of page 11 of 38 there are the words:
Mr G destroyed my life and put more pressure on me than I can handle and brought more pain than I’ve ever felt.
Those are your words as well, aren’t they?---Yes. That’s right.
And I’m not trying to put words in your mouth so tell me if I’ve got this wrong. What you were saying there is that because Ms Nellis left you and was then in a relationship with Mr G, Mr G had destroyed your life and put you under terrible pressure and pain; is that correct?---Yes, both Ms Nellis and Mr G yes.
The orders of 19 October had also, by consent, provided:
…
5.Without the Mother’s admitting the necessary for same, during any and all times the children are in the Mother’s care, the Mother, her servants and agents be and are hereby restrained by injunction from allowing the children or either of them to remain unsupervised in the presence and/or care of Mr G.
…
The Initiating Application sought that the Mother be restrained from bringing, or causing, or suffering anyone else to bring the children or either of them into any form of contact with Mr G. That order was sought knowing that the Mother was in a relationship with Mr G approximately three years after separation. The Amended Application of 23 February 2022 sought an order the same as the order that had been made by consent, that is, that the Mother was not to allow the children or either of them to remain unsupervised in the presence and/or care of Mr G. Mr G was not a witness in the proceedings, but it was not disputed that his criminal history had been subpoenaed to court and that Mr G had no criminal convictions for the previous 18 years. Upon final addresses, the Father's pressing for the restriction upon the Mother's contact with Mr G ceased. He did so without admission that such a position was not genuine, but on the basis that there was no evidence that could support such a position.
The Father’s antipathy to the Mother’s new partner is, on a human level, an understandable emotion. That the Father grieved at the loss of his marriage and Mr G’s role in that loss is also, on a human level, entirely understandable. That the antipathy to Mr G continued so long is tied up with the Father’s grief at the loss of his marriage and the family life before separation. That grief drove the antipathy to Mr G, and also to the Mother, and persisted to this day and is a part and parcel of the Father’s view of the world and of his emotional lability. His antipathy to the Mother and Mr G helps him justify to himself that the Mother is the cause of his emotional lability, including in his interaction with the children.
FATHER’S ABILITY TO PROTECT THE CHILDREN FROM HIS GRIEF
The Father's affidavit of evidence-in-chief was filed on 23 February 2022. The Father alleged that it was in early 2019 when the children commenced to live in the shared care of the 4/4 arrangement. The Father's affidavit refers to this arising at mediation but acknowledges that a parenting plan was not signed by the parties. The Father's affidavit set out the circumstances in regard to Mr G and includes the following:
40.Ms Nellis has re-partnered to Mr G ("Mr G"). They lived together from after separation until late 2019/early 2020 when Mr G relocated to Town J in New South Wales, where his ex-wife lives with their children. I understand that Ms Nellis and Mr G have continued a long distance relationship since that time with Ms Nellis travelling to Town J at least once a week, when the children are in my care.
41.I have known Mr G for about 18 years. I am aware that he has an extensive criminal record and has been to jail on a number of occasions for offences involving violence and drugs.
The Father also alleged at paragraph 16 of his trial affidavit as follows:
16.Ms Nellis has alleged that I have trouble regulating my emotions and that the children get upset because I get upset and because they worry about me when they are not with me. I do not believe that this is the case. My concern is that Ms Nellis is questioning the children about their time with me and projecting her fears on to them and therefore they tell her what they think she wants to hear. On a number of occasions X will tell me something but then say "Mummy said not to tell you". I am always careful to speak age appropriately to the children and not to involve them in adult issues. If they are anxious when they return to Ms Nellis then I reassure them that they will see me again soon and that whilst we will miss each other we will be OK.
That paragraph can be contrasted with what the Mother asserts at paragraphs 40, 41 to 43 of the trial affidavit, filed on 27 February 2022:
…
40.He has since refused to negotiate or co-parent with me in any way. He has the children for four days and during those four days I have no idea what their routine is. I receive little to no information about the children from Mr Wilder, either when they are with him or at changeover.
Mr Wilder’s anger and lack of emotional control
41.Mr Wilder suffers from an extreme temper and appears to have little control over his anger. Both during and after the relationship, I tried to get him to go to counselling or seek help for his anger management, but he refused to admit that his outbursts were inappropriate, would get angry when I brought it up or say that he would get help for his anger and then never follow through.
42.Mr Wilder also has little control over his other emotions. He does not attempt to hide his emotions from the children, often crying in front of them, saying that his "heart will break if they aren't with me". I have been told by the school that when Mr Wilder drops X off at school, Mr Wilder often cries, is visibl[y] emotional and makes it hard for X to separate from him.
43.Mr Wilder seems to have little insight into how his angry words and outbursts, or his own emotions, affect the children.
…
The Father's evidence in his affidavit must be contrasted with the evidence given in cross-examination and to questions from the Court.
MR KORKE:Thank you. All right. Now, page 17 of 38 – helpfully there’s a date here, your Honour. It’s 4 May and 5 May 2019 – there’s a text message on page 17. It says:
His heart breaks –
and this is about X:
His heart breaks every week thanks to you. You just don’t have to deal with it.
Did you write that?---Yes, yes.
And what did you mean by X’s heart breaks every week?---So I had to see him cry and bawl his eyes out every time he had to leave me and go to Ms Nellis, but obviously his heart was breaking and - - -
All right. So when you said, “His heart breaks every week”, you meant he was crying every time he had to go back to his mum?---Yes, yes.
Yes. And then when you said the words “thanks to you”, what did you mean by that?---Well, she was the one that, sort of, took away his family.
In answer to questions from the Court the Father gave the following evidence:
HIS HONOUR: Sorry about that. Now, you have said your – I think that you were – or I understood anyway that the breakdown of your marriage between you and Ms Nellis was deeply distressing to you; is that a fair statement?---Yes, yes.
And is it fair to say that it continues to be?---I’m not worried about Ms Nellis doing her own thing now. I’m over that part, but seeing the kids hurt still affects me.
Okay. And one issue that’s in this case is the extent to which you’ve been able to protect the children from your grief or upset or frustration - - -?---Yes.
…
And what do you say about how you were able to protect the children from your grief about that?---In the first few months I don’t think I was able to protect them from it. I cried daily. I tried not to my hardest, but – yes. And I always, you know, tried to distract myself by, you know, being active and doing things, but, yes, there were a lot of times when – in the early months where I did cry in front of the boys.
I find that the Father has been, for some considerable time after separation, unable to protect the children from his very human grief or from his emotional lability. It is a powerfully confronting time for a child to see a parent, for whom the child cares, crying at all. For that to occur often, triggered by the children leaving the Father’s care, whether to the Mother’s care or to school, will have had, in ways I cannot precisely determine, a real impact on the children’s interaction with the Father. The Father did not appear to have reflected upon whether his emotional interaction with the children had affected them or the nature of their relationship with him.
Mother’s motivation to withhold time in August 2021
A central issue in the case was whether the Mother's unilateral cessation of the time in August 2021 was entirely unreasonable and motivated by her failure to recognise the importance of the children's relationship with the Father or whether it was genuinely motivated by a concern about the children being scared or fearful of the Father.
It is common ground that, when the children were very little (not yet 3 years old and just turned 1 year old), the Mother agreed, at least for a short time, that the children would spend equal time with the Father. It was common ground that the parties had attended frequent mediations because of the Mother's unhappiness with that regime. Nonetheless, it is common ground that the Mother continued that 4/4 arrangement without interruption for about two and a half years, until it was interrupted in August 2021. Following the release of Mr D's report, the following day, the Mother agreed to that relationship resuming. The Mother's application, in her response filed 27 February 2022, and to this Court, was that the Father should have substantial and significant time with the children on an extended alternate weekend basis from the Thursday night until the Monday morning, with an overnight meal in the other week and half of all school holidays. Hence, at all times, save for the controversial six weeks, or two months (and I find it was two months) the Mother has either agreed to or acquiesced in that equal shared-care 4/4 arrangement. I regard the Mother's concerns about that arrangement continuing as being genuine.
The Father’s account of the smack or the hitting was as follows:
MR KORKE: … June 2021 X punched Y. Yes?---Yes. That’s right.
And that caused you to hit X?---I smacked him, yes. Hitting I believe is different. That’s when you’re trying to induce damage to a person. Smacking is a discipline thing.
Well, what Ms Nellis says is that in August you told her this. You told her that you had smacked X way too hard, that you were very angry, and it really scared X. Do you agree that you said that to Ms Nellis?---Something along those lines.
And you also said then - - -?---I probably said “a bit too hard”, not “way too hard”.
The Mother's communication shortly after this at the time that she interrupted the longstanding 4/4 arrangement (17 August 2021) is contained at 1 to the Father's trial affidavit and includes the following text message:
Father:I agreed to let you have the boys for X birthday. So I will pick them up Thursday morning at maccas at 8.
Mother:Upon full agreement, I will allow the boys the following nights with you, on a regular basis, until otherwise professionally instructed
Thursdays 9:30 pickup at Mcdonalds (Y swimming lesion at 10) Then pick up X from school
They stay 2 nights return to mum at 4pm on Saturdays at McDonald’s
- Children must be returned at agreed time
- No physical punishment to the children
- Anger MUST remain in check
- X’s new personal phone must be fully accessible to him at all times
- If children ask for mum, they be returned
- No adult talk
I won’t negotiate, you need to accept this agreement if you are wanting nights with the boys at this point, you have traumatised X and it is my job to advocate them, I will not take their emotional and mental wellbeing lightly.
I find that the Mother’s ceasing time in August 2021 was a very human reaction to her appropriate concern about the Father’s frank conversation about the “too hard” smacking combined with a real concern about his anger and confusion about what to do in those difficult circumstances. This was not brought about by a refusal to acknowledge the importance of the Father’s relationship with the children. The unusual 4/4 arrangement, in place since the children were not quite 3 years old and just turned 1 year old, had implicit in it an acknowledgement of the significance the children’s relationship with their Father. The Mother has at all times, save for the confusion from 23 August 2021 to 19 October 2021, recognised the importance of that relationship. I find that this is so notwithstanding that at the time of the family report interviews, and at that troubled time, the Mother did not fully appreciate the significance of the Father’s role in the children’s lives.
FAMILY VIOLENCE
The Mother’s evidence included the following:
…
23.In or about 2015, when I was working and earning some money, I asked Mr Wilder if I could have an advance of $12 .00 on my allowance. He replied with "who do you think you are?" and "You have no respect for the money I earn." He then went into a rage, threw the washing basket which contained household objects off the kitchen bench, threw the decorative lantern smashing glass everywhere and picked up the exercise bike, threw it towards me causing it to break. He caused a large hole in the wall by throwing bug spray at the wall. The objects he threw were either gifts to me or were objects that I had just personally finished paying off on lay-by, over numerous months out of my $25 a week allowance. He later told me that he had purposefully chosen to smash the lantern because he thought it was a gift he had given to me and he expected it would be very hurtful to me (it was however the wrong lantern).
24.On another occasion he asked me to wax his back. As I started to rip off the wax strips he became enraged - he smashed a wooden chest style coffee table and paced up and down angrily and then demanded I remove the rest. I was aware that his behaviour would escalate if I continued to wax so to avoid any further anger, I refused and drove to my mother's house.
25.During my first pregnancy I had to use a walking frame as I has a dislocated pelvis. Each step I took was extremely painful, so I did not unnecessarily move around, and was always aided. One day Mr Wilder became angry and the following occurred:
a.He towered over me, walking towards me, cause me to step backwards, increasing my pain;
b.I placed one hand on his chest and told him sternly to “move back you are hurting me”.
c.He grabbed my shoulders very firmly and shoved me backwards a good five or so large steps and forcibly sat me on the bed. Mr Wilder was aware I was pregnant and has a dislocated pelvis. He them walked out saying “you do it to me, I’ll do it to you”. He was referring to me putting my hand on his chest.
d.This incident caused further damage to my injuries and as a result, I was completely bed ridden for the remainder of my pregnancy.
26.After this incident, when I brought up to Mr Wilder what he had done to me, he would attempt to confuse me by gaslighting me and say things like "no, remember how you were already sitting? Remember? The medication makes you forget, I do everything for you remember?"
27.During the last weeks of my first pregnancy:
a.I was in severe pain due to a dislocated pelvis. I was also very sick from stomach ulcers and was bed ridden and needed:
i. To be physically rolled in the bed;
ii. Assistance to go to the toilet and shower;
iii. To be fed in bed; and
iv.At times to be spoon fed due to the injuries to my body at this time (caused by underlying scoliosis and hypermobility of joints).
b. My mother would assist me when Mr Wilder was not home.
c.When I was left in Mr Wilder's care he would neglect me and play his computer games for hours on end without checking on me.
d.I remember a specific time calling his telephone about ten times, all of which went unanswered.
e.Finally, I sent a text message to him saying that "I'm extremely hungry and may start vomiting if I don't eat, I need to go to the toilet and shower and I need your help".
f.He then stormed down the hallway and threw a box of cereal against the bedroom wall and said "now leave me alone."
28.Close to my birthday in 2018 I started to discuss birthday present suggestions with the boys. Mr Wilder’s immediate reaction was to say “Birthday presents! What makes you think you deserve anything?!”. The children were both present.
…
45.The children have experienced Mr Wilder’s attempt to gaslight them. For example, there was an incident where X had witnessed Mr Wilder in a rage smashing plates in 2019, I cannot recall the exact date. X in front of Mr Wilder told me that Mr Wilder had smashed a plate. Mr Wilder response was, “no X I dropped a plate, remember? I dropped it, not smash, drop, don’t tell lies”. X then said “No daddy, you threw them down and you cut your leg and it was bleeding, it was because grandad for my finger in the door and I was crying then you threw plates and it was scary”.
…
The evidence of the Father’s mother, in cross examination, about the plate incident is consistent with the Mother’s allegation and inconsistent with the Father’s account. I accept the Mother’s account of the plate incident.
There was not a dispute about whether such incidents occurred. The Father’s account was that they were much less serious than the Mother alleged and to the effect that he was merely reacting to frustration borne of the Mother’s behaviour which included a failing to properly appreciate all he did at work and at home. I accept the Mother’s evidence of the substance of those allegations. I also accept that the Father was frustrated, was working hard, was under financial stress and felt unappreciated. But such feelings are the ordinary stuff of life and intimate relationships. The Father’s reactions were at times actually family violence and he exposed the children to that.
BEST INTERESTS AND THE APPLICABLE LAW
In deciding what particular parenting order to make I regard the best interests of the child as the paramount consideration, section 60CA of the Act.
I must consider the matters described in the Act as primary considerations and additional considerations. In doing so I take into account all of the evidence including those parts I have recited in these reasons.
I apply and take into account the whole of Part VII of the Act. I apply sections 60CA, 60CC to 60CC(3), section 61DA, 65DAA, and take into account the obligations of section 65DAC. Those provisions are as follows:
Section 60CA
Child’s best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC
How the court determines what is in the 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.
(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.
Section 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.
Section 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.
Consent orders
(6)If:
(a)the court is considering whether to make a parenting order with the consent of all the parties to the proceedings; and
(b)the order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child;
the court may, but is not required to, consider the matters referred to in paragraphs (1)(a) to (c) or (if applicable) the matters referred to in paragraphs (2)(c) to (e).
(7)To avoid doubt, subsection (6) does not affect the application of section 60CA in relation to a parenting order.
Section 65DAC
Effect of parenting order that provides for shared parental responsibility
(1)This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
PARENTAL RESPONSIBILITY
Section 4 of the Act defines major long term issues as follows:
"major long-term issues" , in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child's education (both current and future); and
(b) the child's religious and cultural upbringing; and
(c) the child's health; and
(d) the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
The Mother (in her trial affidavit) described the parental communication as follows:
…
32.When we separated, X was 3 years old , and Y was 1 year old . At the time , I told Mr Wilder that the children were too young to be away from me for extended periods of time. Mr Wilder was not focused on the children or their best interests but only that he had 'equal ' 'fair' time with them. Mr Wilder told me several times that he wanted the children "equally" and would refuse to consider anything other than that.
…
36.In or about July 2019 , Mr Wilder demanded that we change to a four day rotation (four days with me, then four days with Mr Wilder) .He kept telling me that he wanted "equal time" with the boys and the only way to do that was a four day cycle, because of his work and the fact that he was living with his parents who were able to provide care for the children either during the night or day depending on his shifts.
…
40.He has since refused to negotiate or co-parent with me in any way. He has the children for four days and during those four days I have no idea what their routine is. I receive little to no information about the children from Mr Wilder, either when they are with him or at changeover.
I accept the substance of that evidence.
The family report writer observed:
…
130. There appeared to be little scope of these parents working together at this stage.
…
139.The parents had a complex adult relationship. This complexity seeming has its core in their own childhoods and their own values and beliefs.
…
I accept the substance of those observations.
The parents agree that there should be an order for equal shared parental responsibility. That requires them to consult as provided at section 65DAC, see above. I have some circumspection that such consultation, as the parental relationship is at the moment, will work or will work without undue stress and trauma for the parents and for the Mother in particular.
Section 60CC considerations
The following headings relate to the factors set out at section 60CC (2) to (3) (a)-(m) of the Act.
Benefit of the children having a meaningful relationship with both parents
It is not in dispute in this case that the children would benefit from having a meaningful relationship with both parents.
The need to protect the children from physical or psychological harm
The Father’s difficulty in protecting the children from his grief at the loss of his marriage relationship and family life, his limited capacity to always remain in control of his anger, whether legitimate or not, and his limited insight into those matters mean that the need to protect the children from psychological harm from being exposed to abuse, neglect or family violence must be considered. The Father deeply loves his children. But at the end of the hearing the Mother’s counsel submitted as follows:
MR KORKE:The father’s behaviour frightens people, and it may be that he doesn’t fully appreciate that, but it is the case. In particular, there are two factors that combine in relation to the father which emerge from the evidence as a whole, but again, I would stress, really just from the father’s own evidence. He continues to be in a highly emotional state, seemingly very often. He has a long and admitted history of engaging in violence, which at a minimum involves smashing things. I would also note the incident where the father, on his own admission, sat the mother down on the bed. However that’s characterised, whether it was pushing her back half a metre or a metre, that was an act of physical violence in my submission.
The father engages in this type of behaviour when he is, as he puts it, frustrated. He denied doing it when angry, but said he did it when frustrated. It’s also my submission the court should conclude that the father engaged in controlling – controlling behaviour in the relationship. Now, the paternal grandmother gave evidence, and I draw your Honour’s attention to her evidence in relation to the incident when a plate was smashed. I won’t harp on about it except to say, your Honour, that the difference between the paternal grandmother’s evidence in relation to that incident and the father’s, supports a view which can also be gleaned from other evidence, but it very much highlights a view that the father minimises his past violent behaviour.
Now, much flows from that in relation to arrangements for the children but, in particular, what flows from the father’s history of being violent and frightening people, including the mother, is that the mother’s conduct when she withheld the children in August of last year may not have been consistent with what she would have been advised. Had she seen the lawyer she has now, it may not have been the optimal decision. But in my submission, it must at least be seen as having been motivated by a genuine and reasonable fear of the father and of the father’s volatility. The mother had a reasonable concern based on her own history with the father, that the father’s behaviour around the children was taking that volatile turn that she had previously thought was only going to be directed at her.
I accept that submission. At the end of the hearing the Mother’s counsel, although opposing any progression to equal time, sought that if a progression to equal time was to be considered it should only be considered after the Father had completed what is known as a men’s behaviour change program. A short time later the Father’s counsel advised that the Father agreed to undertake such a program. That is a very significant and wise concession on his part. It was made without any actual admission. That he has agreed to do so, notwithstanding findings about family violence, is one of the matters that causes me to find that there is not an unacceptable risk of the children being exposed to abuse in his care.
Any views expressed by the child
The children love both parents and are in the middle of an intense dispute between the two most important people in the world to them. In that circumstance it is not appropriate that they have the burden of expressing any views. There is no evidence of expressed views.
Nature of relationship of with each of the child’s parents and other persons
The family report writer observed that that the, “… children have thrived in having time with each parent”. The children have a close and appropriate relationship with their Mother. The children have a close relationship with their Father. The children, and particularly X, have at times found the Father “scary” and the Father has had, a least in the past at times, an inappropriate overly emotional interaction with the children that comes from his own needs and inability to protect the children from his grief. At the start of the observation for the family report, “….It was like X was caught between two parents…”. When observed with the Father, “…..there was a lot of laughter and fun.”
The report writer also gave evidence of attachment as follows:
… Certainly, they traditionally when each was born, Mum stayed home and Dad went to work. That’s what they were used to. When they separated, they went four-four, and I am aware that Ms Nellis is not happy about that, or she has certainly reported she wasn’t happy about that, but she did it, so this is the boys lived experience since separation. I think they’ve got enough attachment with both parents. They’re – there’s a complication with X, and I think that’s – that seemed to me to be escalating rather than settling down, and that was the other reason I recommended this get back going again soon rather than later, because I felt that a gap in time was going to be harmful for X, which is in direct contrast to what Ms Nellis was suggesting. But I just felt that that – it needed to get that going. They love both their parents, but there’s – I think X is more enmeshed in the adult issues than Y, and he reports things to Ms Nellis which she then sees as risks for protective issues. …
The report writer also observed in answer to questions from the Father’s counsel about their observed distress and what was going on there:
… I think they were children who had not seen their father and I suspected that they were not sure when they were going to see him again. There was a distress about separating. They wanted to spend more time… I actually felt that the distress was genuine and it was about separating from their Dad… They are young… So I don’t like the 4/4. I would never have recommended that because it means the days change… In terms of the need I felt they needed to have a connection with their father… They didn’t need supervised time (as the Mother had suggested). They needed significant and substantial time.
The Mother’s counsel also asked, “What precisely lead you to that conclusion, that supervised time wasn’t required and that it needed to go back up to significant and substantial [time]?”
The answer to that question is instructive of the nature of the relationship between the Father children and was as follows:
MR KORKE:What precisely led you to that conclusion, that supervised time wasn’t required and that it needed to go back up to significant and substantial?---I watched Mr Wilder with the boys, and he was patient, he was quiet, he responded to what they asked him – asked of him. He came prepared. I have no doubt he loves those children, and I have no doubt they love him, and I don’t think that’s in contention. I don’t think anyone is suggesting otherwise. The overall sense I got was that they needed to get back with their dad and what they were used to doing. So sometimes, your Honour, what happens is parents decide that a change is required, but the children don’t understand. They don’t understand why, they don’t understand what’s going on, and that can cause them distress, and I think that’s what I saw in the boys, is that there was distress that there was no certainty of what was going on and rules had changed and they didn’t understand why.
I accept and rely on the family report writer’s observations about the nature of the children’s relationships.
Extent each parent has taken/failed to participate in decisions or spend time
Each parent taken every opportunity to participate in decisions about, and to spend time with the children. Both parents are devoted to the children.
Extent to which parents fulfilled obligations to maintain the children
Both parents are devoted to the children and have fulfilled their parental obligations to support the children.
The likely effect of any changes in the children’s circumstances
This issue is at the heart of the dispute. The Mother asserts that the 4/4 arrangement is difficult for the parents and the children to keep track of and the children can go for some time without a weekend with a parent. Despite the family report writer not recommending such an arrangement the parents returned to the 4/4 arrangement the day after the release of the family report. The family report writer spoke against a 4/4 arrangement and did not recommend equal time. If the children go for any significant time without seeing the other parent they will miss that too long absent parent. The end of the 4/4 arrangement will provide a more regular and predictable regime for the parents and the children.
Practical difficulty and expense of children spending time
On either parties’ proposal, this is not an issue.
Capacity of parents to provide for children including emotional and intellectual needs
Both parents have the capacity to provide for the children’s intellectual needs. The Father’s ability to provide for the children’s emotional needs is hampered by his emotional lability and limited capacity to protect the children from that, and from his grief, and his limited capacity to manage his anger.
The maturity, sex, lifestyle and background including lifestyle, culture & traditions
The Father’s emotional lability and limited capacity to protect the children from that and from his grief may involve a degree of immaturity. I make no finding about that. The parents share what they regard as a Christian background and values.
The attitude demonstrated to the responsibilities of parenthood
Both parents have demonstrated an adequate, but not perfect, attitude to the responsibilities of parenthood. A most significant aspect of the responsibility of parenthood is the ability to promote the other parent’s relationship with the children and to protect children from a parent’s own feelings of grief about a relationship and antipathy to the other parent. I refer to repeat my observations about those matters already made. Another responsibility of parenthood is to resist the very human temptation to respond in kind when a peaceful or proper parental communication has been rebuffed, or responded to in sharp or harsh or critical terms. Most importantly both parents are devoted to their children and will continue to be so devoted. The members of the wider community, who would not have to actually live with either of them, would be likely to regard both parents as fine and caring parents.
Family violence and any family violence order that applies.
Triggered by a formal and lawful request to return the children’s residence to what it had been, the Mother obtained an Interim Family Violence Order. That demonstrated that the Mother is able to act very assertively if she feels that is necessary. The family violence is as described already in these reasons and the impact of that violence will, for at least many years, affect the interaction and communication between the parents.
The Father has told me by his counsel that he agrees to undertake a men’s behavioural change program and I accept what he has told me and I will make an order in accordance with that agreement. That he so agrees is a matter that partly mitigates the risk of the children being exposed to family violence by the Father.
Whether preferable for order least likely to lead to further proceedings.
It clearly is. The parties have found the litigation difficult and stressful. Further proceedings are not in the children’s interest. Both parties sought final orders.
Any other fact or circumstance that the court thinks relevant
The family report writer was asked about corporal punishment and said as follows;
… ---Well, it’s not uncommon to see an order that neither parent is to use corporal punishment on children. I – I suspect both parents are law abiding. I suspect they would follow that direction. And if Mr Wilder needed other forms of discipline, although I think in his material he talks about he might do that but he might then go into the room, explain what was going on and then – then cuddle and then 10 minutes later things are back – back chugging along again. But, your Honour, I’m also mindful of that text I read where he acknowledged that he has an anger problem, and so there is – I’m not sure. So, but I suspect both parents are honest people. They’re both Christian and they have belief systems. And I found Mr Wilder, when I asked him questions, I felt he answered me honestly. I don’t think he would – he may have an anger problem where he loses it occasionally, but I think his general method, or presentation, is to try and stay as calm as possible, and that’s certainly what I saw in him when I did the assessment, but – and the sense he gave me was he was sad, that I felt – and the anger he may be feeling might be around the ending of the relationship, the changes in the family structure, the things going the way he didn’t want them to go, but I think he’s a decent human being who wants to be given the opportunity to have a relationship with his children. I don’t think he would unduly use corporal punishment.
…
The family report writer also observed that if equal time was to be considered it should not be put in place until Y was at least 7 years old, that is 3 years away.
I accept that evidence.
With the benefit of their solicitors and counsel the parties were able to reach agreement about special days and school holiday arrangements.
Conclusion as to living arrangements
Because the parents agree that there should be equal shared parental responsibility I must consider, and consider seriously, the children living in an equal time arrangement with their parents if it is reasonably practicable. If I find that living in equal time is not reasonably practicable or not in their best interests, then I must consider, and consider seriously, the children living in an arrangement where they spend substantial and significant time with each of their parents. The provisions of section 60CA and section 60CC recited above guide those considerations.
The parents have a very poor parental relationship. The children are still very young. The family report writer recommends an arrangement of the children having substantial and significant time with the Father, not equal time. The children have a very close relationship with both parents and are accustomed to spending chunks of 4 days and nights at a time with either parent. The Father is a good parent but does not yet have insight into his anger and his limited ability to control his anger and just how scary he is when violent or angry.
I find that it is essential for the future shared parenting of these children that the Father attempt to gain insight into his behaviour and the parents engage in family therapy directed to the mode of parental communication, the importance of the other parent to the children and how the parents will and will not interact when together in the presence of or nearby to the children, such as at school events or extra-curricular events.
The children have a real need, at this time of their lives to not go very long without seeing the other parent. The children have lived the bulk of their lives in an equal time regime of the 4/4 arrangement.
By agreeing to an order for equal shared parental responsibility the parents are in substance promising to each other and the Court that they have the capacity to, and will consult each other as contemplated by section 65DAC of the Act (cited earlier) despite requiring solicitors, barristers, a family report writer and a Judge to sort out the children’s living arrangements. That the parents have such a mutual position is in the children’s best interests.
At this time and on the evidence before me notwithstanding the history of the 4/4 arrangement, and having carefully considered equal time, I find that an equal time arrangement in all the circumstances is not in the children’s best interests. An arrangement of substantial and significant time is in the children’s best interests. The Mother’s proposal is that children live with her and that the children spend from Thursday after school until before school on the following Monday morning each alternative weekend and a meal in the Thursday evening of the other week and half of school holidays with the Father. This arrangement would not, in the long run, meet children’s needs.
Because of the poor parental relationship between the parents, as far as practical, all changeover should be school to school. In these circumstances I find that it is in the children’s best interests that they live largely as proposed by the Mother but the Thursday in the other week should not be for a meal but should be from after school Thursday to before school Friday. That is during school term the children will spend each Thursday overnight with the Father, but on every alternative week that Thursday will extend through to the following Monday morning before school, or the Tuesday morning if that Monday is a non-school day. Hence during school term the longest the children would be away from either parent would be the six nights away from the Father over the Mother’s weekend from the Friday before school until the following Thursday after school. During school term the Father will care for the children for some time on 7 days in each fortnight but for 5 nights each fortnight, not 7 as he wants.
The parties had agreed on a 6:00 PM changeover on the Monday night despite any circumspect as to that, and in circumstances where they will attend therapy I will include that in the orders.
For that 5/9 arrangement to work it will be necessary for the Father to attempt to gain insight into his anger and the impact of that on the other people the children love. It is important for the welfare of the children that he does so. I will not make any time or progress of time conditional on the enrolment in and completion of such a course. I accept the assessment of his character by the family report writer: he is a law abiding person and he has told me he agrees to undertake such a course. I accept he will keep his word.
Undertaking that course and attempting to gain insight is an important part of, and directly connected to the scheme of these orders. It is necessary for, and directly connected to, the proper implementation of these orders that the Father undertake such course and in so doing attempt to obtain insight into just how destructive violence and controlling behaviour is on his parental relationship, and the Mother, and on his children when exposed to any degree of family violence. Although undertaking such a course was agreed to, I am satisfied that an order compelling the Father to undertake same, although not conditional upon any other parenting order, is directly connected to:
·The order of equal shared parental responsibility including the capacity of the parties to comply with section 65DAC; and
·The substantial and significant time shared care regime I will order;
and is a parenting order pursuant to section 64B(2)(a) & (b), and (c) & (d) and also (i). See the statements by the Full Court in Jacks & Samson (2008) FLC 93-387 at [201-202] and [223]:
[201]The Full Court in upholding the mother's challenge to this order said at paragraph 51:
Whilst we have no doubt that an order could be made that a party attend upon a psychiatrist and undergo therapy as a condition of either a residence order or a contact order, we have significant doubt as to whether such an order can be made as a self-standing order. The Court's power to make any orders in circumstances such as these has to be found within the confines of ss 65D(1), 67ZC, 68B, or 114.
[202]Immediately thereafter their Honours, (Kay, Coleman and Brown JJ) examined the possible statutory bases for such order. Their Honours rejected s 67ZC. That provision was not amended by the amending Act, and it is not suggested by the grandparents’ counsel to be a source of power for the order under challenge. Their Honours, in the circumstances of the case before them, did not consider s 64B as it was then enacted, as an appropriate source of power but said referring to s 67ZC at paragraph 57:
In our view, whatever the limits of the wardship power are, a parent cannot be required to partake in a course of conduct or cease an activity merely because it would be in the child's interest that the parent so do. It may clearly be demonstrated that it is in a child's interest that a parent remain healthy and to that end give up smoking. Some would say it is essential that all adults undergo regular exercise, eat only healthy foods, and refrain from consuming alcohol. It would not be, in our view, a proper exercise of the “welfare” power for a court to place limits on a parent's conduct unless it could be demonstrated that those limits are necessary for the welfare of the child. Even then, careful consideration would need be given to the right of the parent to conduct their life as they see fit.
…
[223]As we have already noted, counsel for the grandparents submitted that s 61C and/or s 64B(2)(i) provided the relevant source of power to make the order. It does not appear to us as presently advised, that the amendments to s 64B(2), and in particular the addition of the words “any aspect of the care, welfare or development of the child” introduced by the amending Act were intended to enable a court to make orders directed to parents or other persons (in intact or separated families) to engage in a course of conduct which may benefit a child not directly connected to, or conditional upon, a parenting order for the child to live with, or spend time with, that parent or person. We do not, for the reasons earlier expressed, and having regard to the following matters, accept that submission.
(emphasis added)
I have considered the Father’s (in closing) proposal for the 2022 year of there being two nights in that week, the Wednesday and the Thursday. I do not consider this to be in the children’s best interests.
In all of the circumstances of this case at this time, I am not persuaded that at a particular time in the future, at the start of the 2023 year (as the Father seeks) or when Y is 7 (as discussed with, but not recommended by, the family report writer), a change to equal time or to week about equal time will be in the children’s best interests.
CONCLUSION AS TO THERAPY
It is a serious matter to compel a parent who has suffered family violence to attend family therapy when he or she is opposed to that. Because of the state of the parental relationship, for the purpose of the implementation of the shared care arrangement (that I have determined will apply) and to assist the implementation of the order for equal shared parental responsibility including the parents capacity to undertake the consultation commanded by sec 65DAC, it is necessary that the parties attend and engage in confidential family therapy. That therapy is necessary to “rebuild a parenting relationship” and to improve parental communication and to assist the parties how, and how not, to interact as parents when either together or nearby at changeovers, kinder/school events and the inevitable future extra-curricular events. I find that the attendance on such therapy is directly connected to, and necessary for, the move to and implementation of the shared care live with orders and the exercise of equal shared parental authority. Such therapy will also promote and is consistent with two of the principles underlying the objects of Part VII the Act:
Section 60B
Objects of Part and principles underlying it
…
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
…
(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
…
In those circumstances, I find that such therapy will be in the best interest of the children and is directly connected to the shared care live with orders and the order for equal shared parental responsibility that I will make. I find that order is a parenting order pursuant to sec 64B(2)(a) & (b), and (c) & (d) and also (i), see the statements by the Full Court in Jacks & Samson (2008) FLC 93-387 at [201]-[202] and [223]. I am not making this order in reliance upon the separate and parens patrie like broad power of sec 67ZC of the Act. I have considered the authority of Oberlin, which binds me, and in particular [50] therein. I do not regard, in the circumstances of this case, the order I will make about the therapy as untethered from any particular order. Of course an order is not within power merely because a Judge at first instance says it is but in this case I find that the therapy order is necessary to assist the implementation of, and hence directly connected to, the shared care orders and the parental responsibility order.
NUTS AND BOLTS OF ARRANGEMENTS
Although the parents hoped for a decision within weeks they did not and could not actually know when I would be able to deliver this decision. Hence they will have planned the immediate weeks ahead of the hearing around the existing orders and the 4/4 arrangement despite all the flaws of that. The orders sought by both parties have a different arrangement for school holidays and those holidays have commenced. The Father’s orders sought contemplate a new arrangement commencing from the April 2022 school holidays. That is sensible and I will adopt that approach but I require the assistance of the parties as to the commencement date.
Hence I will make orders largely in accordance with the Father’s H6 minute of orders sought in final address save that the school term time will be different and loosely follow the form (but not all the details) of paragraph 2 of the Mother’s Response filed 27 February 2022. The Father’s time will be, in school term, each alternate week from after school/kinder on a Thursday until 6:00 PM on the following Monday (as both parties sought). In the other week the Father’s time or live with arrangements will be from after school/kinder on Thursday until before school/kinder on Friday (one night, not two as the Father seeks, and not only from 2:00PM to 6:00 PM on that Thursday as the Mother seeks). In the event of no school or kindergarten changeover will be to the Location B McDonald’s, that being the agreed non-school changeover place.
I will make an order that the Father enrol in and undertake a men’s behavioural change program, as soon as practical, and provide to the Mother’s solicitors written evidence of such enrolment, and in due course, of completion. I will make an order that the parties attend upon a therapist for the purpose of assisting them implement these orders The therapist should be as agreed and in the event of a failure to agree upon a therapist then utilising the expertise of the family report writer as nominated by the family report writer but with a supervisory liberty to apply. The therapy will be at the equal expense of the parents. The confidential therapy will be as directed by the therapist but, unless agreed otherwise, for not longer than over 6 months.
The orders will be released in draft form, for the parties to contemplate the nuts and bolts of the orders and I need their assistance as to the starting dates of the alternate weekend regime.
I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 14 April 2022
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