Yates and Woodford and Ors (No 2)

[2018] FamCA 590

FAMILY COURT OF AUSTRALIA

YATES & WOODFORD & ORS (NO. 2) [2018] FamCA 590

FAMILY LAW – CHILDREN – Best interests – final parenting orders made for the three oldest children to live with the maternal grandmother and spend time with the mother – interim parenting orders made for the two youngest children to live with the mother and spend time with the maternal grandmother pending the mother’s relocation to Victoria

Family Law Act 1975 (Cth)

Banks v Banks (2015) FLC 93-637
Goode v Goode (2006) FLC 93-286
Marvel v Marvel (2010) 43 Fam LR 348

APPLICANT: Ms Yates

FIRST RESPONDENT: Ms Woodford

SECOND RESPONDENT: Mr Calder

THIRD RESPONDENT: Mr Eade

INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers & Solicitors

FILE NUMBER: MLC 4475 of 2017

DATE DELIVERED: 1 August 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Hogan J

HEARING DATE: 30 & 31 July 2018
1 August 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Duffy

SOLICITOR FOR THE APPLICANT:	Purcell & Purcell
COUNSEL FOR THE 1ST RESPONDENT:	Ms Mansfield

SOLICITOR FOR THE 1ST RESPONDENT: Perisic Lawyers

SECOND RESPONDENT: In person

THIRD RESPONDENT: No appearance

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Glaister

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Macgregor Barristers & Solicitors

Orders

Amended on 1 August 2018 pursuant to rule 17.02 of the Family Law Rules 2004

Further Amended on 7 August 2018 pursuant to rule 17.02 of the Family Law Rules 2004

IT IS ORDERED BY CONSENT UNTIL FURTHER ORDER THAT

1. The children, E (“E”) born … 2010 and F (“F”) born … 2014, shall reside in the greater H Town area by 29 September 2018.

2. In the event the mother is residing within 20 km of J School, then the children shall live with her and shall spend time with the maternal grandmother at all times as may be agreed between the parties in writing, but failing agreement as follows:

   (a)each alternate weekend: from after school Friday until commencement of school Monday, with changeovers to occur at school or kindergarten respectively; and

   (b)for half of each school holiday period: on dates to be agreed, with such time to commence in the long summer school holidays in 2018/2019.

3. In the event the mother and E and F are not residing within 20 km of J School by 29 September 2018, then the children E and F shall live with the maternal grandmother in Victoria and shall spend time with their mother in Victoria at all such times as may be agreed between the mother and the maternal grandmother in writing and failing agreement as follows:

   (a)each alternate weekend: from after school Friday until commencement of school Monday, with changeovers to occur at school or kindergarten respectively; and

   (b)for half of each school holiday period: on dates to be agreed, with such time to commence in the long summer school holidays in 2018/2019.

4. The children, E and F shall spend time and communicate with the father on a professionally supervised basis at K Children Contact Centre and the father forthwith make application to the Contact Centre for supervised time.

5. The child, D born … 2008 (“D”), spend time at communicate with the father in accordance with his wishes and he have the option of spending the time with E and F provided for in Order 4 above.

6. The children, B born … 2005 (“B”), C born … 2006 (“C”) and D spend time and communicate with the mother at such times as may be agreed between the mother and maternal grandmother in writing and, failing agreement as follows:

   (a)on a supervised basis at the K Children's Contact Centre with such time to occur on alternate fortnight basis (following acceptance into the Centre) and at such times as may be accommodated by the Centre.·

7. The mother and maternal grandmother shall not approach each other when they are in attendance at the children's school/s.

8. Where practicable, the mother and maternal grandmother shall attend the children's school events (such as parent/teacher interviews) at separate times and, for whole school events, Order 7 shall apply.

9. The mother shall not approach or contact the children, B, C or D in the school grounds or at school events unless in an emergency situation and unless as otherwise agreed between the mother and the maternal grandmother.

10. The children shall be permitted to telephone each other at any reasonable hour and the mother and maternal grandmother shall facilitate this communication.

11. The parties forthwith make an application to K Children's Contact Centre in H Town for the purpose of facilitating the children, E and F's supervised time with their father.

12. The parties forthwith make an application to K Children's Contact Centre in H Town for the purpose of facilitating the children, B, C and D's supervised time with their mother.

13. The child, F, shall be enrolled at the J School to commence at the school at the commencement of school term one 2019 and the parties shall do all acts and things necessary to enable her school enrolment to be completed as soon as practicable.

14. The maternal grandmother shall, upon receipt of quotes from professional services associated with the mother’s intended relocation from Queensland to Victoria, pay the costs associated with that relocation directly to the service providers in an amount of up to $5,000.00.

15. The father (Mr Calder) be restrained from living with the mother and any of the children, or spending time or communicating with the children or any of them other than in accordance with these orders.

16. The parties, their servants or agents are hereby restrained and an injunction is hereby issued restraining them from:

    (a)abusing, insulting, belittling, rebuking or otherwise denigrating any other party; and

    (b)discussing these proceedings with or in the presence of the children and from permitting any other person to do so other than in the course of the children receiving therapeutic counselling; and

    (c)physically disciplining the children or any of them.

17. The mother is hereby restrained and an injunction is issued restraining her from denigrating the maternal grandmother to, or in the presence of, the children.

18. The mother is hereby restrained and an injunction is issued restraining her from engaging the children in conversations related to their disclosures of abuse in their parents’ care or from rebuking or reprimanding them in any way about such disclosures.

19. The mother is restrained and an injunction issue restraining her from consuming alcohol to excess at any time the children are in her care.

20. The mother is restrained and an injunction issue restraining her from using any illicit substance during any time the children are in her care.

21. In the event that the mother seeks to be released from the injunction provided for in Order 20, she file an affidavit from her treating medical practitioners outlining their opinion about the impact on her medical condition of any proposed use of marijuana.

22. The mother undertake random supervised urine drug testing upon the request of the Independent Children's Lawyer within 48 hours of such a request being made and forthwith provide the results to the other parties.

23. The mother engage in counselling, with such counselling to focus on family violence and the issue of the mother being both a victim of family violence and a perpetrator of family violence toward the children, with such counselling to include the children as recommended by the counsellor.

24. The father is restrained and an injunction issue restraining him from attending at the J School.

25. The mother keep the maternal grandmother advised in writing of any person living at her residence.

26. The mother forthwith apply to attend at O Group.

27. The mother and father shall both attend a parenting orders program with L Group and advise the other parties of completion of the same.

28. The mother and the father both attend at and complete a drug and alcohol counselling course with an agency approved by the Independent Children’s Lawyer.

29. The Independent Children’s Lawyer is permitted to provide the J School with a copy of the Family Report prepared by Ms M dated 11 July 2018 and also with a copy of this order.

30. The mother’s solicitors are permitted to provide a copy of the order made today to the K Children’s Contact Centre and it is noted that the parties request that Contact Centre process the mother’s applications to use the service despite her current residential address being in Queensland.

31. The maternal grandmother, the mother, the father and the Independent Children’s Lawyer have liberty to apply to the Court, particularly with respect to any difficulties in relation to the enrolment of E at the J School.

AND IT IS FURTHER ORDERED BY WAY OF INTERIM ORDER THAT

1. In the event that the mother requires respite care for the children, E and F, she contact the maternal grandmother and the mother is restrained and an injunction hereby issue restraining her from permitting the children, E and F, to be cared for by any adult during any time she may require hospitalisation without first notifying the maternal grandmother of her intention and providing the maternal grandmother with the first option to care for the children, E and F.

2. The mother shall make E and F available at the Court’s Counselling Service at the Melbourne Registry of this Court to meet with Ms M at 2.00 pm today (1 August 2018) for the purpose of Ms M explaining the orders made this day to the children.

3. The maternal grandmother shall make B, C and D available at the Court’s Counselling Service at the Melbourne Registry of this Court to meet with Ms M at 2.00 pm today, (1 August 2018), for the purpose of her explaining the orders made this day to them.

4. The mother make E and F available at the Court Counselling Service at the Melbourne Registry of this Court at 4.00 pm on 3 August 2018.

5. The maternal grandmother collect the children, E and F, from the Court Counselling Service at the Melbourne Registry of this Court after 4.00 pm on 3 August 2018.

6. The children, E and F, shall spend time with the maternal grandmother from 4.00 pm on 3 August 2018 until the mother returns to Victoria and provides the maternal grandmother with notice in writing that she is available to resume the day-to-day care of these children in the greater H Town area.

7. The children, E and F, communicate with the mother by telephone and/or Facetime and/or Skype no less than three (3) times each week while they are spending time with the maternal grandmother pursuant to this order.

8. That the maternal grandmother has day to day responsibility for the care, welfare and development of E and F whilst they are in her care and spending time with her pursuant to the terms of this order and by this order is authorised to enrol E at the J School forthwith and to enrol F in kindergarten if that is thought appropriate and to cause the children to attend upon medical practitioners if that is necessary for them to receive medical treatment.

9. The child, E, shall be enrolled at J School to commence as soon as practicable and the parties do or acts and things necessary to enable his school enrolment to be completed as soon as practicable. 

10. The maternal grandmother do all things necessary to ensure that the child, F, is enrolled at and commences attending kindergarten as soon as practicable.

AND IT IS FURTHER ORDERED THAT

1. The children, E and F, shall spend time with the maternal grandmother and B, C and D following Ms M explaining the orders made this day to them at 2.00 pm today, 1 August 2018, with changeover to occur at the child minding room of the Court Counselling Service at the Melbourne Registry of this Court and changeover at the conclusion of time to occur at 5.00 pm today, 1 August 2018, at the courtyard of the Melbourne Registry of this Court located at 305 William Street, Melbourne.

AND IT IS FURTHER ORDERED THAT

1. Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

NOTATION:

(A)This Order has been amended on 1 August 2018 pursuant to Rule 17.02 of the Family Law Rules 2004 by adding Order 42.

(B)This Order has been further amended on 7 August 2018 pursuant to Rule 17.02 of the Family Law Rules 2004 by correcting the spelling of the child’s name in Order 12 and Order 34 and correcting the reference to Order 42.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4475 of 2017

Ms Yates

Applicant

And

Ms Woodford

First Respondent

And

Mr Calder

Second Respondent

And

Mr Eade

Third Respondent

And

The Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

1. Yesterday I made some final parenting orders by consent in relation to the children B, C and D. B and C are the mothers’ children with Mr Eade, who has not played any part in these proceedings. D is the child of the mother and Mr Calder, who has appeared to date on his own behalf.

2. For the purpose of confirmation, given the time at which the matter concluded yesterday, the orders that were made by consent were as follows: 

   a)that all previous parenting orders with respect to B, C, and D (whose full names I do not intend to read into the record) be discharged; and

   b)that the maternal grandmother have sole parental responsibility for those children; and

   c)that prior to making any major or long term decision in relation to B, C and D, the applicant maternal grandmother consult with the mother and take into account the views of the mother in making any major or long term decision; and

   d)that the maternal grandmother engage the children, B, C and D in counselling and continue to engage them in counselling in accordance with the recommendations of the counsellor – that counselling be with a counsellor at the K Contact Centre, unless that the mother and the maternity grandmother engage in family therapy elsewhere; and

   e)that the mother and the maternal grandmother engage in family therapy, as recommended and in the first instance with Mr N at the K Family Services, H Town and that the children, B, C and D, attend such therapy at the discretion of the therapist; and

   f)in order to facilitate the therapy, the Independent Children’s Lawyer and the maternal grandmother’s solicitor be at liberty to provide Mr N (or such other therapist) with a copy of the Family Report, the Children’s and Parents Issues Assessment, the correspondence directed to the Court from the Department of Health and Human Services dated 30 June 2017 and, if thought of assistance, the most recent affidavits filed by the mother and the maternal grandmother in these proceedings.

3. The purpose for the last provision, in case it needs some explanation, is to ensure that whichever therapist undertakes the therapy between the maternal grandmother and the mother appreciates the true nature of the existing relationships or absence of the same.

4. I appreciate that the provision of the documents that I have listed in that order was not the subject of discussions between those at the bar table.  However, it occurred to me overnight that the likelihood of successful facilitation of meaningful therapeutic intervention could only really be enhanced if the therapist asked to be engaged in the task of attempting to create a workable co-parenting style relationship could understand the source of the issues; that is, to maximise the prospects of successfully assisting the mother and the grandmother to achieve a workable enough relationship to facilitate communication about the children, given that it is agreed that B, C and D will live with their maternal grandmother. 

5. It is also I think, relevant, that, in the hope that it is of assistance to the therapist who ultimately engages in the task of attempting to assist the mother and maternal grandmother to get to a point where they have a workable relationship for the purpose of communication about the children, I record that I accept the evidence given by Ms M, the Family Consultant. She prepared a detailed Family Report after her interviews with the children and the parties not long ago this year and she emphasised during her oral evidence that the focus of the family therapy should be upon the adults and not the children, lest the children think that they are responsible for matters for which they are not.

6. In relation to that aspect of the evidence, I accept that completely; I emphasise that the focus of the family therapy should, in my view, be upon assisting the mother and maternal grandmother to work out a realistic, workable co-parenting relationship, taking into account the reality of the circumstances detailed in their respective affidavits, the Family Report and other documents which will be made available to the therapist (if they are of assistance) and in the context of their history and past interactions.

7. As well as the agreement in relation to the making of final orders for the parenting arrangements for B, C and D, the parties reached agreement about the terms of interim parenting orders for E and F, the children who remain living with their mother. They have remained living with her since about mid March last year, which was the time at which B, C and D moved initially to stay with their maternal grandmother – with whom they have remained living since then.

8. The parties, including the Independent Children’s Lawyer, promoted that the terms of the proposed orders signed by them reflected the best interests of the children at the current point.  So that the record is clear, I intend to mark the Minute of Proposed Orders signed by the parties as Exhibit 2 in the proceedings.

9. I intend to mark the Aide-memoire provided by Counsel for the Independent Children’s Lawyer after the evidence of the Family Consultant yesterday as Exhibit 3 in the proceedings.

10. The agreement as between the parties provides, in essence, that the children E and F remain living with their mother pending her relocation back to the Greater H Town area by 29 September 2018.  The proposed order provides that, in the event of the mother living within 20 kilometre of the J School, then the children live with her and “live with” the maternal grandmother at specified times. The signed Minute (Exhibit 2) proposed that the time with the maternal grandmother in such a circumstance be from 10.00 am Saturday to 5.00 pm Sunday, for part of the school holidays and at such other times as agreed between the mother and maternal grandmother. 

11. However, after the evidence of the Family Consultant yesterday, the parties are,  as I understand it, all agreed that the time with the maternal grandmother in such a circumstance occur from after school Friday to before school Monday, so as to facilitate changeover via school and/or kindergarten respectively.

12. In the event that my understanding of the position is flawed, it seems to me that such a provision is one that is likely to be in the children’s best interests because it will enable them to have the benefit of the buffer about which Ms M spoke, in terms of the transitioning between the households of their mother and the maternal grandmother. It will provide both the maternal grandmother and the mother with the opportunity to be involved in and to touch base with, as it were, the respective teachers and kindergarten educators, and it will minimise completely the prospect that the children be subjected to, or exposed to, any disagreement or difficulties at the time of transition during the school term.

1. The orders sought by the parties as reflected in Exhibit 2 also provide that, in the event the mother is not residing within 20 kilometres of the J School by 29 September 2018, the children E and F will live with the maternal grandmother in Victoria and will “live with” the mother in Victoria each alternate weekend. Whilst the signed Minute of Proposed Order provides for this time to be from 10.00 am Saturday to 5.00 pm Sunday each alternate weekend, it seems to me – consistent with the reasons I have already expressed for a determination that a school collection and return is preferable in the circumstances of this case and more likely to be in the children’s best interests – that the orders to take account of that eventuality should mirror those orders that provide for the children’s time with their maternal grandmother in the event that they live with their mother following her residing in the Greater H Town area by 29 September 2018: this is the date from which it is agreed the children will reside in the Greater H Town area.

2. I accept the submissions made by Counsel for the mother to the effect that, for her client, the most important thing at present is that E and F remain within her primary care and that she remain the person responsible for providing their primary care, as has been the case for the entirety of their lives.

3. I accept the submission made by Counsel for the mother to the effect that, for the mother, there is significant importance in breaching what appears to it be a current impasse in her relationship with B, C and D and that she appreciates that, in order to remedy the difficulties in those relationships, her moving to, or returning to live in, the Greater H Town area is something that is of great importance. 

4. I accept the mother’s evidence, given in affidavit, that D had asked her to return to live in the Greater H Town area and that this has been a motivator to her in undertaking the decisions that she has undertaken to date.

5. Given that the agreement as reflected in the signed Minutes (Exhibit 2) conflicted with the unequivocal recommendation contained in the Family Report that all five children be reunified in the care of the maternal grandmother – even when the circumstances made it clear that F has no relationship of any particular substance at all with her and E’s relationship could be seen (at best) as extremely tenuous as a consequence of the absence of their opportunity to spend time with her historically – I considered it appropriate that the author of the Family Report be made aware of the terms of the proposed agreement sought to be reflected in the consent interim orders I was asked to make.

6. I note, in passing, that the proposed interim parenting orders do not contain any order in relation to the manner by which parental responsibility for E and F should be allocated as between the parties.  That means that, by virtue of s 61C and s 61D of the Act, the mother and Mr Calder retain parental responsibility for E and F. 

7. That neither parent sought an interim order in respect of parental responsibility is irrelevant to the triggering of the requirement to consider the presumption contained in s 61DA that parents have equal shared parental responsibility for the major long term issues about the children: see Goode v Goode[1] at paragraph 51.  However, as the Full Court of this Court made clear in Marvel v Marvel[2] at par 76:

   A court must when making a parenting order, […], unless there is child abuse or family violence or the presumption is rebutted as it is not in the best interests of the child[ren], presume that the parents are to have equal shared parental responsibility for child[ren]. 

   [1] (2006) FLC 93-286.

   [2] (2010) 43 Fam LR 348.

8. Here, the evidence clearly establishes, in my view, on the admissions of the mother and the father to the Family Report writer and elsewhere within the evidence before the Court, the existence of actions which constitute child abuse and family violence such that the presumption to which I have referred does not apply: the power to make parenting orders is at large, subject to the requirement of regarding the children’s best interests as the paramount consideration.

9. The principles to be applied in making interim parenting orders, which I have determined is an appropriate course in relation to the parenting regime for E and F, are well-known, and need little elucidation: see Goode v Goode[3], Banks v Banks[4], decisions of the Full Court of this Court.  As is made clear by the discussion in particular in Banks v Banks[5], the importance for the Court in determining interim parenting orders is to focus upon the true issues and, of course (as is made clear by the legislation) to ensure that the best interests of each child the subject of consideration is the paramount consideration. 

   [3] (2006) FLC 93-286.

   [4] (2015) FLC 93-637.

   [5] (2015) FLC 93-637.

10. I also note that, as I understood it at least, following the evidence given by the Family Consultant and the creation by Counsel for the Independent Children’s Lawyer of the Aide-memoire (Exhibit 3), Counsel for the mother submitted, in essence, that, apart from any proposal that E and F remain in Victoria pending the mother’s intended return to Queensland and intended subsequent return to the Greater H Town area, the terms as suggested (which arose from the evidence of the Family Consultant) were all matters about which the mother agreed.

11. The consequence of that is that the issue that remains outstanding that requires particular attention and consideration is whether it is in the best interests of the children E and F to accompany their mother on her proposed return to Queensland this Saturday and remain with her until 29 September 2018, when it is agreed they will reside in the Greater H Town area.

12. The circumstances of the separation of the children in this case have certainly persuaded me that it is in all of the children’s best interests – and certainly in the best interests of E and F – that they have an opportunity to be reunified with their siblings as soon as is practicable.  The agreement reached between the parties as reflected in Exhibit 2 reflects an appreciation of this fact by the mother and the father and the maternal grandmother, given that implementation of the orders, if made in those terms, would see E and F reside in the Greater H Town area by 29 September this year, so that their interactions with their siblings, B, C and D, can be facilitated.

13. I have taken into account the following matters in arriving at my conclusion that is in E and F’s best interests that they remain in the care of the maternal grandmother pending their mother’s return to Queensland and anticipated subsequent return to Victoria.

14. I have taken into account the mother’s evidence that it is her intention to return to Queensland for the purpose of commencing the packing up process this Saturday.  The evidence before the court is to the effect that she, Mr Calder, E and F travelled from Queensland to Victoria together by car; it was her intention to return to Queensland with E and F by car.

15. The orders in relation to Mr Calder’s involvement (as agreed between the mother, Mr Calder, the maternal grandmother and the Independent Children’s Lawyer – if made in those terms) provide that he be restrained from living with the mother and any of the children or spending time or communicating with the children, or any of them, other than in accordance with the orders which, it is proposed by agreement, be made. 

16. If those orders were made, the consequence for the mother and Mr Calder (if E and F were to accompany their mother back to Queensland) would be that they would be required to undertake their process of separation, division of property and sorting out of living arrangements and finalisation of the same in Queensland in circumstances where they would have to ensure that whatever discussions and communications and division of property and taking care of practical arrangements occurred in the absence of the children: in particular, F who is yet to attend school.  That is a practical reality. 

17. I consider that the mother being most assisted in implementing her asserted plan to pack up her home in Queensland and return to take up her primary care of E and F in the Greater H Town area is more likely to be facilitated by her being afforded the opportunity to focus upon that task and without the additional requirement to care for E and F in the absence of the presence of Mr Calder, who has previously lived with her and those children.

18. I take into account, also, that such an arrangement would not have any effect upon the reality of the existing interim parenting order I am asked to make; this will see E and F live with their mother until at least 29 September 2018 and, thereafter, live with her in the event that she puts into effect what I understand to be her plan to return to live in the Greater H Town area by that time. 

19. I also take into account that the orders that I propose to make in relation to E and F’s care arrangements will maximise their opportunity to reintegrate their relationships with their siblings B, C and D. 

20. I have taken into account and considered the likely or potential impact on E of not having the opportunity to return to school in Queensland and not having the opportunity to complete the current football season in which he is engaged. 

21. I am, though, confident that, if it is explained to him by the Family Consultant (upon whom all children will attend this afternoon for the purpose of receiving an explanation of the purpose of the orders) that these things are to occur so as to assist his mother to be able to put into effect her plan to pack up their home in Queensland and to put into effect her plan to move to live with him and his sister F in close enough proximity to his siblings B, C and D, that he will be able to resume his previous close relationship with them, then with that support he is likely to be able to accept the underlying purpose of the orders. If that is not the case and I am wrong in my assessment of the likelihood of his reaction, I am confident that he is unlikely to suffer any long term negative impacts as a consequence of the implementation of the orders I intend to make. 

22. I have also taken into account and considered the fact that F has no real relationship at present with the maternal grandmother.  However, I accept from the contents of the Family Report that it appears that the existing relationships between the children remain strong; I accept that F has an established relationship with her siblings B, C and D, who have lived with their maternal grandmother since March of last year. 

23. I am confident that it is more likely than not that the existence of the sibling relationships – identified by the author of the Family Report, as being, in essence, essential to these children – is likely to be sufficient to support F.  Again, I consider it likely that, if she is told in an age-appropriate manner that the separation from her mother is intended to assist her mother to be able to make practical arrangements as quickly as possible to return to live with her in the Greater H Town area, any negative impact upon her is likely to be able to be minimised. 

24. I also take into account the fact that the evidence appears to establish that the mother was previously absent from the home she previously shared with Mr Calder, E and F between 11 March 2017 and 6 April 2017; this was as a consequence of her need to receive treatment in hospital.  That is, there was a period of about 26 days during which, as a consequence of her need for rehabilitation, the children were not able to receive day-to-day care and parenting from her.  So I have taken the fact of that absence into account also.

25. I also take into account that, if E and F were to depart with their mother on Saturday of this week and if the mother was unable to put into effect her plan to return to live in the Greater H Town area by 29 September 2018, the implementation of the agreed proposed terms would see E and F move to live in the Greater H Town area with their maternal grandmother on that date.  I think this is a relevant consideration in terms of ensuring that E and F are provided with greater opportunity to spend additional time with their maternal grandmother in case this eventuates. 

26. I also take into account, as part of my consideration of the overall raft of interim parenting orders I intend to make, that it is my intention to have the orders explained to all five of the children by Ms M this afternoon. 

27. It is also my intention, in order to facilitate a transition of the children into the maternal grandmother’s care – so as to facilitate the mother’s intended plan to return to Queensland for the purpose of packing up her home there before returning to the Greater H Town area – that this transition occur via the children attending at the Family Court Counselling Services on Friday afternoon.

28. My intention is that the maternal grandmother will bring B, C and D with her to the Family Counselling Service Section; Ms M will then facilitate E and F, who will be brought by their mother to the Court building, leaving with the maternal grandmother.  Those children will have had the benefit of an explanation this afternoon that their care with their maternal grandmother is intended, as I have said, to assist their mother to be in the best position possible to put into effect her asserted plan to pack up their home in Queensland and return to live with them and resume their primary care in the Greater H Town area.

29. I also have taken into account, in arriving at my determination about the interim orders which are in the best interests of E and F, that there has been a previous occasion on which the mother has failed to comply with an order made by the Court to return E and F to Victoria.  That order was made on 23 May 2017 and required that she return those children to Victoria by 9 June 2017.

30. In order to ensure that E and F remain in communication with their mother, I also intend to make orders to ensure that they are provided the opportunity to have frequent telephone, Skype or WhatsApp communication with her on no less than three occasions per week.

31. It also seems to me to be relevant – and it is something I have taken into account – that, given the time period during which the mother intends to implement her plan to return to Victoria (namely, by 29 September 2018) to continue with the primary care of E and F, it is also possible that her absence from them could be explained to them as being not dissimilar to the occasion last year when she was required to attend at, and be admitted to, hospital for the purpose of receiving treatment.

32. I have also taken into account the practicalities for the mother; it is my view that she is most likely to be assisted in being able to implement her plan as quickly as possible in the absence of being required to also provide day-to-day care for E and F.

33. In their absence for a short period of time she will, I consider, be able to focus entirely upon attending to those matters about which she has given evidence:  such as, arranging for the move of any medical files and transfer of any medical treatment; ensuring that she can undertake discussions and implement practical arrangements with Mr Calder in relation to their separation and the separation of their property to ensure that the two of them are able (without a concern about breaching orders which, if made in agreed terms, prohibit him from being in contact with E and F other than on a supervised basis) to attempt to see whether the existing lease can be assigned to him and to undertake other practical arrangements.

34. If the mother is able to make those arrangements for her planned return to live in the Greater H Town area sooner than 29 September 2018, then it is my intention that the orders will provide for E and F to go back into her day-to-day care in accordance with the agreement, reached between the parties, that those children live with her on an interim basis.

35. For those reasons, then, I intend to make orders to give effect to the agreement reached between the parties as demonstrated generally by the terms of Exhibit 2 and Exhibit 3.

36. Before I do so, though, it also seems to me, given the orders that I intend to make, that it is appropriate that I give consideration to making an order to ensure that the maternal grandmother has day-to-day responsibility for the care, welfare and development of F and E whilst they are in her care and that  she may, if it is thought appropriate, enrol F in a kindergarten (given the evidence of the Family Consultant yesterday) and, if necessary, that she be empowered to ensure that the children are able to attend upon a medical practitioner if necessary.

37. It seems to me that such orders will make it clear to any service providers that, in the event that there is a need for E and F to receive medical treatment at a time they are in her care (and whilst their mother is attending to her proposed move), she will be permitted to ensure that they receive that care.

38. The determination I have arrived at in relation to the interim parenting orders for E and F (namely, that they will spend time with their maternal grandmother pending their mother’s travel to Queensland and return to the Greater H Town area) perhaps makes it unnecessary to make one of the orders the parties anticipated. That order is the one that requires that Mr Calder forthwith do all acts and things as may be required to change his address for probation purposes to an address other than the mother’s current residential address in Queensland; rather, he may be able to take over the lease.

39. The importance of the orders that Mr Calder and the mother do not live together is in the context of ensuring that the children are protected from the risk of a recurrence of the family violence that has occurred previously in the course of their shared residence. 

40. For the reasons expressed, I make those interim orders I now outline.

I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 1 August 2018.

Associate:                 

Date:    1 August 2018