Children ordered to live with Father instead of Mother – Parenting Orders made by Family Court of Australia

Jackman & Felton [2015] FamCA 783 (21 September 2015)

Last Updated: 24 September 2015

FAMILY COURT OF AUSTRALIA

REPRESENTATION

ORDERS

1. That the following parenting orders are made in relation to the children B born … 2004 and C born … 2006 (“the children”).
2. That all previous parenting orders are discharged.

Parental Responsibility

3. That the father shall have sole parental responsibility for the children.
4. That the father shall advise the mother of any major decision he makes pursuant to this order and that such notice shall be in writing and not less than 72 hours prior to any such decision.

Live with

5. That the children shall live with their father.

Spend time

6. That the children shall spend time with their mother as follows:

(a) Each alternate weekend commencing on 9 October 2015 from after school Friday to commencement of school the following Monday but if Monday is a school holiday or pupil free day, to commencement of school the following Tuesday;

(b) From 9.00 am until 5.00 pm on Mother’s Day; and

(c) On Boxing Day from 9.00 am until 5.00 pm.

Changeover

7. That changeover, other than from or to school, shall occur at the Suburb D Contact Centre unless such is unavailable in which case it shall occur at McDonalds Restaurant Suburb E.

Suspension

8. That the father shall have leave to suspend the mother’s time with the children on the following basis:

(i) that such suspensions occur during school holiday periods;
(ii) that such suspensions occur for no more than one block of three weeks in any year; and
(iii) that the father shall provide the mother with six weeks notice by email and provide the mother with one weekend of makeup time, the mother to nominate such weekend by email.

Medical

9. That in the event that the children require emergency medical care while they are in the care of their mother she shall notify the father immediately by SMS of the medical treatment and provider.

School

10. That the father shall provide the mother with school reports for each of the children within seven days of such becoming available to him.
11. That the father shall provide such assistance to the children’s school as the school might request with respect to any application for additional funding from the Education Department or any other funding program in relation to either of the children.

Therapy

12. That the father shall ensure that each child shall attend the Child Adolescent Psychology Service for such time as may be required by that service and he shall comply with all recommendations of that service in relation to treatment of the children.
13. That any counsellor or psychologist of the Child Adolescent Psychology Service is at liberty to make contact with either parent for the purpose of therapy for either child and the Independent Children’s Lawyer is at liberty to provide a copy of the following to such therapist:

(a) The orders;
(b) The judgment;
(c) Dr F’s report; and

(d) Dr G’s reports.

Restraints

14. That other than for urgent medical treatment or in accordance with these orders the mother is restrained from taking the children to any medical or psychological practitioner, or treatment provider.
15. That the mother is restrained from contacting the Child Adolescent Psychology Service except where any counsellor or psychologist engaged with that service initiates contact with her.
16. That the mother is restrained from attending any school in which the children, or either of them, are enrolled unless invited by the Principal or Vice Principal.
17. That both parents are restrained from denigrating the other, or any member of the other’s household, in the presence or hearing of the children and shall remove the children from the presence of any third party who engages in such conduct.
18. That both parties are restrained from discussing these proceedings or any matter arising therein with the children including showing the children any document in relation to the proceedings and shall remove the children from any third party who attempts to do so.

Courtesy

19. That each parent keep the other informed about their current address and telephone number and shall notify the other of any changes thereto 7 days prior to any such change.

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

FILE NUMBER: SYC 5846 of 2007

Applicant

And

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. B and C are 11 years and nine years of age respectively. Unfortunately, their parents have been engaged in litigation concerning parenting arrangements for the children for most of the children’s lives.
2. Their parents are Mr Jackman and Ms Felton. For convenience I shall refer to them as “the father” and “the mother”.
3. Despite there having been two previous sets of final parenting orders, the parents found themselves back before this Court requesting the Court to determine yet another set of final parenting arrangements for the children.
4. Dr F, clinical psychologist, had been appointed single expert. Dr F interviewed the children, the parents and others and recommended in her report dated 17 June 2014 that there be a change in the children’s residence from living with their mother to living with their father. Dr F expressed the opinion that C’s schooling was at crisis point, that if he was to remain living with his mother his bad behaviour would escalate and he would be at risk of developing oppositional defiant disorder. Dr F also thought that B was at risk of an anxiety disorder and/or depression if he was to remain living with his mother.
5. In these circumstances I heard an urgent application by the father and made orders on 28 July 2014 for the children to live with their father, and to change schools from H School to I School. I also expedited the remaining part of the substantive hearing.

APPLICATIONS

6. The father seeks orders to the following effect:
   • That he have sole parental responsibility for the children;
   • That the children live with him;
   • That the mother spend time with the children each alternate Saturday from 9.00 am until 5.00 pm and on Mother’s Day from 9.00 am until 5.00 pm;
   • That changeover be at McDonalds Restaurant, Suburb E;
   • That certain orders be made in relation to notification concerning medical treatment or emergency, provision of school reports, and updating residential addresses and telephone numbers as specified in the orders; and
   • That the mother be restrained from attending the children’s school.
7. The Independent Children’s Lawyer seeks orders broadly in line with those sought by the father. These include:
   • That the father have sole parental responsibility for the children and that they live with him;
   • That the children spend time with their mother each alternate Sunday from 9.00 am to 5.00 pm, Mother’s Day from 9.00 am to 5.00 pm and the same times on Boxing Day;
   • That changeover occur at the Suburb D Contact Centre;
   • That the father have leave to suspend time as specified;
   • That the father deliver the children to their maternal grandparents for a skiing holiday upon receiving 14 days notice of the proposed date and that the mother be restrained from attending that holiday;
   • That various orders be made in relation to notification about emergency medical care, provision of school reports, attendance by the children for counselling, updating addresses and telephone numbers;
   • That orders for various restraints be made including restraining the mother from attending the children’s school; and
   • That non-denigration orders be made as well as orders to restrain the parties from discussing the proceedings or permitting the children to see any document filed in, or with respect to, the proceedings.
8. The mother seeks orders to the following effect:
   • That she have sole parental responsibility for the children and that they live with her;
   • That the children spend time with the father each alternate weekend from after school Friday until commencement of school the following Monday, for half of the school holidays at the end of Term 1, the entirety of the school holidays at the end of Term 3 and for specified time in the December/January school holidays;
   • That any changeovers not at school be at Suburb D McDonalds Restaurant;
   • That the mother be permitted to enrol the children at H School;
   • That various orders be made including for the provision of school reports, notification of school activities, notification about emergencies or urgent medical treatment;
   • That orders be made for telephone communication with the children;
   • That each party is restrained from denigrating the other party or any member of their family;
   • That the mother continue her attendance upon her psychologist Ms J; and
   • That in the event of further disputation between the parties relating to the welfare of the children they endeavour to resolve the dispute by first engaging in alternate dispute resolution.

In the alternative and if the children are to live with the father:

• That the children spend time with the mother:
  <li “=””>- Each alternate weekend from after school Friday to commencement of school the following Monday;

<li “=””>- For one half of school holidays and the whole of the school holidays following Term 2;<li “=””>- For special days as specified; and

• That orders as specified be made in relation to provision of school reports, notification of school activities, medical needs, exchange of information, restraints and dispute resolution.

9. Each of the minutes of orders setting out the orders sought by each party is attached at Annexure A to these reasons for judgment for completeness.

BACKGROUND

10. The mother was born in 1974 and the father was also born in the same year.
11. The parties commenced living together in April 1997 and married in 2001.
12. In 2004 B (“B”) was born.
13. In 2006 C (“C”) was born.
14. The parties were living in K Town.
15. The parties separated in June 2006. The father relocated to Sydney and the mother and children remained living in K Town.
16. In 2007 the mother and children moved to Sydney and lived with the mother’s parents in Suburb L.
17. In July 2007 final orders were made in the Federal Magistrates Court, as it then was, providing for the children to live with their mother and spend time with their father each Wednesday night overnight, from Thursday to Sunday the following week, and for 4 seven day block periods per year.
18. On 3 November 2007 the parties divorced.
19. In February 2008 the father commenced cohabiting with Ms O. Ms O has a daughter from her previous relationship with Mr M, N born in 2002.
20. In April 2008 the mother relocated to H Town with the children. The father said that he thought this was a reaction to his application in February 2008 for orders for a shared parenting arrangement. This made it much more difficult for the children to spend time with their father. The father commenced proceedings in the Federal Magistrates Court seeking the return of the children to the Sydney Metropolitan area.
21. In August 2008 the mother made an application for an Apprehended Violence Order (“AVO”) against the father. The matter was ultimately resolved by undertakings without admissions.
22. Also in August 2008 C was scheduled to have an ear operation on a day when he was to spend time with his father. The father became upset about this and took the view that the mother had arranged the operation on his day to interfere with his time with the child.
23. On 23 February 2009 Federal Magistrate Kemp, as he then was, dismissed the father’s application for the return of the children to live in the Sydney Metropolitan area.
24. In March 2009 the father and Ms O married.
25. In March 2009 paediatrician Dr P, diagnosed C with autism based upon information provided to him by the mother. He made a referral to the Sydney Children’s Hospital for further opinion. The father said that the mother refused his request to take C to the hospital for further assessment.
26. On 15 July 2009 the father took C for further assessment to paediatrician, Dr Q who concluded that he had speech/language delay but no features suggestive of autism. Dr Q recommended further assessment.
27. The father said that he observed B communicating to C in sign language in September 2009. The father alleged that the mother told him she had commenced doing sign language to assist C to communicate with her. The father said that C’s speech therapist specifically advised against this.
28. R, the child of the father and Ms O Jackman was born in 2009.
29. On 5 December 2009 psychologist Dr S conducted a formal assessment of C’s cognitive functioning. Dr S found that C had an overall high average IQ with relative weakness in visual motor integration. C was referred to occupational therapy and continuation with speech therapy.
30. C’s behaviour deteriorated in 2010. In particular, there had been incidents of C biting, hitting and kicking his pre-school teachers and carers. He had also engaged in violent behaviour at school towards other children in the class and had urinated on the floor and walls of the mother’s home.
31. In March 2010 family consultant Ms T reported the children as experiencing a high level of distress and anxiety because of the level of acrimony between their parents. She said that the children had difficulty moving between households and that they were “hyper-loyal” to their mother.
32. In 2010 the mother told Dr G that she had seen a psychiatrist to rebut the father’s allegations that she had mental health issues.
33. In July 2010 consent orders were made by the Federal Magistrates Court for the children to spend time with their father each alternate weekend from after school Friday to before school Monday and for various periods during school holidays.
34. On 31 August 2010 B refused to go with his father for weekend time. B’s behaviour had deteriorated around this time. He had refused to go to school and had bitten a pre-school teacher, and his speech therapist. He had also hit and screamed at his mother. The mother took B to counsellor, Ms U and subsequently did not make the children available to the father for three weeks.
35. On 14 September 2010 Federal Magistrate Altobelli, as he then was, made orders for the father to have “supervised contact” with the children at Catholic Care Wollongong, made orders for appointment of an Independent Children’s Lawyer (“ICL”) and transferred the proceedings to this Court.
36. The father filed a Notice of Child Abuse, Family Violence or Risk of Family Violence on 17 September 2010.
37. On 25 November 2010 the father filed an application seeking holiday time and time at a contact centre with the children. On 6 December 2010 the father’s application for holiday time was dismissed by Justice Watts.
38. In April 2011 Dr G completed an expert report recommending that the children remain living with their mother and spend unsupervised alternate weekends with their father from after school Friday to before school Monday. But he thought the mother’s anxiety about being away from the children might cause problems. He said that if B developed further separation anxiety and was unable to attend school or contact with his father, there should be a reversal of residence so that the children would live primarily with their father.
39. In 2011 there was an application to the New South Wales Department of Education for funding for a teacher’s aide on the basis that C had a diagnosis of autism.
40. In 2012 the mother made enquiries to enrol C in the V School for children with autism.
41. On 17 May 2012 C was suspended for three days following an incident where he climbed up onto the windowsill in his classroom and attempted to jump. The mother failed to attend the suspension resolution conference at the school.
42. In May 2012 the mother was admitted to Wollongong Hospital for a suspected stroke due to difficulties with speech, cognition and movement. The mother was subsequently diagnosed with a conversion disorder due to psychological stress. The mother left the children in the care of her parents when she was in hospital.
43. When the children next went into their father’s care in accordance with the then current orders for weekend time with him, the father refused to return them to the maternal grandparents. The father asked the maternal grandfather about the mother’s health and the grandfather did not assist with information. In those circumstances the father considered the mother unable to care for the children and he retained them. The mother discharged herself from hospital against medical advice and the father failed to return the children following her discharge.
44. On 24 May 2012 the then principal of H School, a Ms W, made a complaint to the New South Wales police that the mother had verbally abused her and threatened to come to the School and assault her if she expelled C from the School. The mother conceded this.
45. In June 2012 several incident reports were filed by H School in relation to violent behaviour by C towards his teachers and classmates.
46. On 2 June 2012 the father took the boys with him, his wife Ms O, N and R to watch N play netball. The mother had decided to take the children back into her care. With a friend, the mother went to the netball venue. The father said that the mother and another female attended and pushed him forcibly from behind, causing him to drop R from his lap and that the mother thereafter attempted to remove the boys from their father’s care. The police attended.
47. The mother’s version of the incident was that she attended a “public place” where she expected the father to be with the children and that she and her friend removed the children. Apparently the police read the then current orders which provided for the children to live with their mother and supported the mother keeping the children. In any event, it is clear that a great deal of upset was caused. The boys were distressed and all netball games at the venue were suspended.
48. From July 2012 the mother did not make the children available to the father for a period of three weeks.
49. On 17 July 2012 and 8 August 2012 C was suspended from school.
50. In October 2012 Dr X, developmental and behavioural paediatrician, assessed C and found that he did not meet the diagnostic criteria for autism or for pervasive development disorder. But Dr X did observe behavioural difficulties in C which required ongoing support and he recommended access to counselling, learning and behavioural management support as well as ophthalmology review. Dr X specifically recommended that the parents be involved in the process.
51. The father’s application to obtain primary care of the children was set down for final hearing in this Court on 23 October 2012. The day before commencement of the hearing, Dr G’s report became available. He expressed the view that the mother was parenting the children adequately and that the father appeared to have a need for control. He expressed concern that given C’s speech difficulties, some features of autistic spectrum, his difficulties at school and need for additional assistance the father taking what he described as a “rigid, oppositional approach” did not appear to be in C’s best interests.
52. On the first day of the hearing, orders were made by consent that the children live with the mother, that the parties have shared parental responsibility and that the children live with the father every second and third weekend in a three-week cycle during terms one and four from Friday afternoon to Monday morning and every alternate weekend in terms two and three.
53. On 20 December 2012 the mother advised the father by email that she did not consent to the children travelling to Country Y.
54. On 14 March 2013 the father filed an Application in a Case seeking interim and final orders that he be permitted to take the children to Country Y between 20 September and 6 October 2013.
55. On 6 May 2013 the father filed an Application in a Case seeking interim orders that the children’s birth certificates be amended to include his name and that he be permitted to obtain passports for the children.
56. On 11 May 2013 C was suspended from school.
57. On 27 May 2013 an order was made for the appointment of an ICL.
58. On 27 May 2013 the mother filed a Response to an Application in a Case seeking that the father’s Application in a Case be dismissed. The mother also filed a Notice of Child Abuse, Family Violence or Risk of Family Violence claiming that B had reported on several occasions that he had been hit by the father, that he had recorded this on his iPod and tried to email the mother but was denied access by the father.
59. On 28 June 2013 Justice Le Poer Trench made directions for an interim hearing. His Honour declined to make an order permitting the children to travel to Country Y.
60. On 26 July 2013 there was a serious argument between the mother and her partner at the time, Mr Z. The mother said that Mr Z became very angry with her and pushed her over a bin. There was a lot of yelling by each of them. The mother reported this incident to the police.
61. On 9 October 2013 C was suspended from school.
62. On 18 October 2013 C was suspended due to violent behaviour at school. The father said that C was given time out in his room, that he attempted to leave while Ms O Jackman was at the door and scratched himself.
63. The mother said that on 21 October 2013, when she collected C from school, he had a large scratch down his face and that he said that Ms O did it. The mother also said that C said that the father confiscated his mobile phone and did not allow him to contact the mother. The mother alleged that she called the father’s mobile phone, to which there was no answer so she thereafter attended the police station. The mother said that the police noticed the scratch. She told the police that C had said that Ms O had done it. The father and Ms O Jackman denied any assault. They said that C might have scratched himself accidentally when he pushed past Ms O. C told Dr F that “once [Ms O] scratched my face” but said that “it was an accident”. C had also informed the police that it was an accident. The police had the view that the mother was trying to use C’s condition to her advantage in her family law proceedings.
64. On 24 October 2013 the mother filed an Application in a Case seeking that she have sole parental responsibility for the children and a Notice of Child Abuse, Family Violence or Risk of Family Violence regarding the scratch to C’s face.
65. On 25 October 2013 the mother withheld the children from spending time with the father.
66. In November 2013 the mother organised counselling for the children at Anglicare in AA Town. She said that the children’s doctor recommended the children attend counselling and that the father had said he did not oppose counselling.
67. On 6 November 2013 Justice Watts made directions and an order expediting the hearing of the final application.
68. The father said that on 8 November 2013 the mother did not make the children available for time with him.
69. In December 2013 the mother did not make the children available for after school care on days when they were to be with their father because the after school care service would not provide the mother with certain information she had requested.
70. On 18 December 2013 the father filed a Response to the mother’s Application in a Case seeking that:
    • the children live with him;
    • the father have sole parental responsibility; and
    • the mother spend time with the children during school terms between 4.00 pm and 6.00 pm each Tuesday for a period of 12 weeks and each Tuesday thereafter, commencing Term 4 of the 2014 school term each alternate Saturday, with proposed time increasing to overnight commencing Term 1 in 2015.
71. On 30 January 2014 Dr F was appointed as single expert.
72. In April 2014 C was suspended from school.
73. The mother said that on 7 April 2014, C’s occupational therapist suggested he should be checked for visual dyslexia. The mother made an appointment with an optometrist who suggested that he be referred to a dyslexia specialist for assessment. The mother presented C to the BB Clinic for assessment for dyslexia on 15 April 2014 without consulting the father. When the father found out that C was on his way to the relevant clinic he telephoned the clinician and instructed this person not to provide the service to the child during school hours. Her subsequently ascertained that the service had been provided.
74. In May 2014 the mother commenced seeing clinical psychologist Ms J on a fortnightly basis.
75. On 3 June 2014 the H School principal, Mr CC, wrote to the mother warning her that if she continued to use aggressive and threatening behaviour, an Inclosed Lands Act order would be issued to prohibit her from attendance at the School. He said that she had engaged in intimidation and that her behaviour had distressed staff. He said that her relationship with the School was tested and that unless it improved she would not have access to the School grounds.
76. On 17 June 2014 the father wrote to the BB Clinic which was providing dyslexia treatment for C and made it clear that they had breached his instruction not to treat C. He threatened the Clinic with legal action.
77. This appears to me to be a considerable over reaction to what had occurred. But Dr F thought that the mother had acted inappropriately in removing C from school for a whole day to undertake the assessment. I agree. The school documents indicate some concern by staff at the school about C missing a whole day of school in circumstances where the school did not consider that his reading was a problem.
78. On 17 June 2014, Dr F completed her report about the family. Amongst other things, Dr F opined that she thought the mother’s anxiety was having a significant and deleterious impact on her parenting capacity. She said that the mother appeared to have a pattern of interpersonal relationship difficulties which appeared to be escalating. Dr F thought that the mother was experiencing significant problems with her mental health which were having a significant impact on her parenting and a deleterious impact on the children.
79. On the other hand, Dr F thought that there was no indication that the father had any diagnosable mental health disorder. She found that his conduct at all times was appropriate and child focussed.
80. Dr F’s assessment was that the father and Ms O Jackman would be more likely to be able to provide the children with a child-focussed, structured and consistent daily life than the children were experiencing with their mother. She thought that if their residence did not change then they were at serious short and long term risk. As indicated above, she thought that C was at risk of developing oppositional defiance disorder and later, conduct disorder. She also thought that he was at risk of developing self injurious, or impulsive and dangerous, behaviour that would put him and others at significant risk. Dr F thought that C’s schooling was at crisis point and that B was at risk of an internalising disorder, most likely anxiety and/or depression, as I have said.
81. Dr F thought that the mother’s mental health had significantly impeded her capacity to parent in a consistent and predictable manner. She thought that if the children were continually exposed to such a parenting style there were psychological risks for them.
82. Dr F also considered that the children should have a period of at least six months where they spent time with their mother under supervised conditions and if the mother received specific psychological assistance the children could spend overnight unsupervised time with her.
83. Dr F also flagged the need for care in releasing her report to the mother because she was concerned that the mother might engage in impulsive or erratic behaviour that might put herself and the children at risk.
84. On 4 July 2014 the father filed an Application in a Case seeking that the consent orders of 23 October 2012 be discharged, that he have sole parental responsibility for the children, that the children live with him, that a recovery order be issued and that various injunctions be made restraining the mother.
85. On 28 July 2014 the mother filed in Court a Response to an Application in a Case seeking that the father’s application be dismissed and various other orders.
86. On 28 July 2014, after the representatives of each of the parties had cross-examined Dr F about the recommendations in her report, I made orders that the children live with the father and that the father be permitted to enrol the children either at I School or DD School. I also ordered that the children were to have no contact with the mother until 9 September 2014 and that the father make arrangements for the children to attend upon the school counsellor and ensure that if the children were referred by such counsellor to an external psychologist they attend the psychologist. I also listed the final proceedings for further hearing on an expedited basis from 27 to 31 October 2014.
87. On 31 July 2014 B and C commenced at I School.
88. On 6 August 2014 the mother commenced attending counsellor Mr EE through Anglicare.
89. On 14 August 2014 the father travelled to New Zealand and spent six days on holiday there apparently to celebrate his fortieth birthday. The father considered postponing the holiday in the circumstances of the children just having recently come to live with him and Ms O. But the trip had been paid for and the costs were non-refundable. Ms O cared for the children while the father was in New Zealand. She said that the children were very comfortable in her care during this period and that it was not a big issue for them. I shall refer to this matter again below.
90. In approximately September 2014 the father and Ms O commenced attending upon a counsellor, Ms FF, at the Wellbeing Clinic, Suburb GG for advice about how best to parent their extended family.
91. On 9 September 2014 orders were made for time between the children and their maternal grandparents to occur on Saturday, 11 October 2014. This visit occurred with somewhat unfortunate consequences. I shall refer to this again below.
92. On 17 October 2014 the hearing resumed.
93. On 30 October 2014 I made orders in effect:
    • Restraining the mother from attending the children’s school unless requested in writing by the principal or deputy principal;
    • Requiring the father to co-operate if C’s school sought funding for a teacher’s aide for C;
    • Requiring the father to facilitate counselling for the children through the school counsellor;
    • Requiring the parents to register with the Interrelate Contact Centre, Suburb GG for supervised time between the children and the mother;
    • Providing for the children to spend supervised time with the mother at the above Centre fortnightly for no longer than two hours commencing on 8 November 2014 with the mother to pay the costs; and
    • Requiring the mother to continue with weekly counselling and certain other orders.

CREDIT

The Father

94. The father was quite responsive in his answers to questions during cross-examination. However, he was far from economical with words providing very detailed answers which tended to run over some time. Although the father made some concessions it was often the case that he found it very difficult to concede answers which might be somewhat unfavourable to his case. In such responses the answer invariably came with a self-serving explanation.
95. Having said this I regard the father as being a truthful witness.

Ms O Jackman

96. Ms O is the father’s wife. The most impressive of all witnesses, she was very responsive and forthright in her answers. She took a very matter of fact approach to responding to the questions. Ms O was appropriately sensitive, showed good insight and demonstrated a good understanding of second-order effects.
97. I have no hesitation in accepting the evidence of this witness as being an accurate account.

The Mother

98. Ms Felton was not always responsive in her answers to questions. She gave me the impression that she was trying very hard to give a good impression as being very reasonable. She did make a lot of concessions. And upon being taken during cross-examination to numerous examples of her quite inappropriate behaviour she readily agreed that she could have handled events differently.
99. But on numerous occasions I had the sense that Ms Felton experienced considerable difficulty confining her response to what was required by the question. On these occasions I sensed that she felt the need to add to her answers information which was not called for but rather appeared to me as probably perceived by her to favour her case.
100. There were many instances where the mother denied the father’s version of events. Time and again I had the sense that the father’s version was more likely to be accurate than the denial.
101. Generally where the evidence of the parties was in conflict I prefer that of the father.

Mr Felton

102. Mr Felton is the children’s maternal grandfather.
103. He gave his evidence in a very direct and forthright manner. But Mr Felton appeared to have difficulty making any concessions. I had a strong sense that Mr Felton’s antipathy and disappointment concerning the father brought some level of imbalance to his evidence. So that where his evidence was in conflict with that of the father I had some reservation about its likely accuracy.
104. Having said this, otherwise I would regard the evidence of this witness to be reliable.

Mrs Felton

105. Mrs Felton is the children’s maternal grandmother.
106. Like her husband, Mrs Felton gave her evidence in a very direct manner. Mrs Felton said that she was unable to forgive the father for leaving the mother. She also said that she found herself unable to support the children in having a meaningful relationship with their father.
107. As in the case of her husband’s evidence, I would accept it except to the extent that it conflicts with that of the father.

Dr F

108. Dr F is the single expert.
109. There was a very strong submission by learned counsel for the mother setting out a number of concerns which the mother had concerning Dr F’s report as follows.
110. Firstly, it was submitted that Dr F failed to take into account the mother’s somewhat strained circumstances upon arriving for the interview and these affected the mother’s demeanour. The mother felt stressed, she was running late and these matters might have exacerbated her anxiety on the day. In addition, the proceedings had been continuing for a long time and the mother would have been trying to communicate to Dr F as much relevant information as possible.
111. I note that Dr F was cross-examined by the mother’s counsel about the mother’s presentation. Dr F said that the mother’s nervousness continued throughout the interview and that it was more acute at the start. Dr F agreed that it would not be irrational for the mother to be concerned about how she might present and that people are often under pressure in such interview situations.
112. In my view, Dr F demonstrated during cross-examination that she well understood that the interview process was stressful for the mother. She described it as being “enormously stressful for anyone”. It could not have escaped Dr F’s attention that the mother was late for interview. In any event, it is clear that quite some time passed following the mother’s arrival at Dr F’s rooms and when the mother was actually interviewed. This is because Dr F reported that she first observed the children and the mother and then she interviewed the children. After this she interviewed the mother separately.
113. I do not accept that Dr F failed to take account of the matters asserted by Ms Neville, counsel for the mother, and that this affected her observations and assessment of the mother.
114. Secondly, it was submitted that when Dr F formulated her recommendations she had not had the benefit of knowing that the father had chosen to take his holiday in New Zealand at a time when the children had only recently transitioned into his care. This is true, but when Dr F was appraised of this she said that she thought it ill-advised and psychologically unhelpful for the children. But I note she did not change her recommendations.
115. It was also submitted that Dr F did not have the benefit of evidence about the father’s night terrors when she made her recommendations. Dr F said that she would have expected the father to have informed her about this. But she also said that night terrors in adults is not very worrying from a psychological point of view because there is a physiological component.
116. It was also submitted that Dr F identified the litigious approach taken in these proceedings and attributed this largely to the mother when the majority of applications have been brought by the father against the mother. I am not sure that Dr F largely attributed to the mother responsibility for the litigation. She was certainly critical of the mother for filing a notice of child abuse and an application seeking sole parental responsibility in relation to the scratch on C’s face.
117. In any event it takes two persons to litigate and even if Dr F considered the mother more responsible for the litigation than the father this would have been far from the most significant factor in guiding her recommendations.
118. It was further submitted that the mother’s remaining concern about Dr F’s report was that the Court might consider an outcome inconsistent with Dr F’s recommendation in the light of the responses of the children after having had their first contact with their grandparents since they went to live with their father. Dr F said that the children’s reactions in seeing their grandparents indicated that they were able to regroup their emotions quickly and that the visit with their grandparents did not appear to be something that was traumatic for them.
119. With respect to learned counsel for the mother, in my view, this is somewhat of an understatement of the children’s reaction after the visit. They were very upset following the visit. But Dr F said the level of their distress and their emotional response was within the range of what she expected. Dr F did not agree with learned counsel for the mother that the fact that Ms O Jackman said that the boys’ upset was over within 24 hours showed that B had the capacity to deal with the upset of the visit. She said that what it showed was that he could “re-group his functioning and get back to school”.
120. I must say that the criticisms of Dr F’s evidence by learned counsel for the mother, when analysed, are not such that I could be persuaded away from what I regard as the careful, thoughtful and very professional nature of Dr F’s evidence. Where I have set out or referred to Dr F’s evidence in these Reasons it can be taken that I accept such evidence.

C’S NEEDS

121. There has been an issue between the parties over quite some years whether C has the condition of “Autism Spectrum Disorder” (“ASD”).
122. As indicated above, in October 2012 Dr X, a developmental and behavioural paediatrician, assessed C and found that he did not meet the diagnostic criteria for ASD or Asperger’s Disorder or Pervasive Development Disorder (not otherwise specified). But Dr X did observe that C had some behavioural difficulties which needed some ongoing support. These included access to counselling, learning and behavioural management support in his school environment, an ophthalmology review, an occupational therapy assessment, speech pathology assessment and counselling. As indicated above, Dr X specifically recommended that the parents be involved in the therapy and counselling to ensure they are working with similar strategies when caring for him individually.
123. Dr F has accepted Dr X’s diagnosis on the basis that it was comprehensive, that it occurred when C was older than some inconsistent earlier diagnoses, that it was based on reports of his behaviour from both parents and that it included information from other sources.
124. Dr F said that it appeared that C had significant behavioural problems at school including oppositional behaviour, difficulty following the directions of others, disobedience, physically lashing out and distraction when not engaged in a task of his choosing.
125. Mr CC, the principal of H School said that C displayed a number of difficult and disturbing behaviours including being non-compliant with teachers’ directions. These included deciding not to do school work, walking around the classroom, being obstinate and distracting others. He said that on other occasions C would become violent and aggressive towards others. But Mr CC also said that C could be compliant.
126. Dr F said that both parents indicated that C did not display these behaviours at home. She said that the mother reported that C displayed many symptoms that are consistent with ASD including repetitive and stereotypic patterns of behaviour, sensory sensitivity, difficulty coping with changes in routine and inflexible patterns of behaviour.
127. It is common ground that C has a speech delay and that he has low muscle tone. All professionals attended by C over the years suggested he required professional assistance with his speech.
128. Dr F said that she did not consider C to have Oppositional Defiant Disorder (“ODD”). She said this was a pattern of angry/irritable mood, argumentative/defiant behaviour or vindictiveness which has occurred over a period of six months and comprises a minimum number (4) of specific indicators. She said that C’s behaviour does comprise some features of ODD, namely that he can often lose his temper and will often defy or refuse to comply with requests from authoritative figures. But she said that reports from the school indicate that his behaviour has not been consistent and that there have been many periods where he has been compliant, has followed teacher requests and has not been angry and/or explosive.
129. Dr F said that neither parent nor C’s school indicated that he is resentful, that he blames others for his mistakes or behaviour or that he is spiteful or vindictive. Consequently Dr F thought that although he has problematic and non-compliant behaviours she was not satisfied that he currently meets diagnostic criteria for ODD.
130. Having said this, Dr F considered that C’s current behavioural problems are best understood as serious precursors to ODD. But she considered that he has not developed the disorder. She thought it most likely that his behavioural problems have been either caused or exacerbated by the chronic inter-parental hostility to which he has been exposed.
131. Dr F said that there was no evidence that C currently suffered from any other psychiatric or psychological condition. She said that he did not present as a child with ASD. She said that he had very good social skills, was able to respond with reciprocity to questions and speak on topics not of his own choosing. Dr F said that he did not display any repetitive or perseverant behaviour and he was able to speak with appropriate affect. She said that he also had appropriate non-verbal behaviours.
132. In relation to the mother having taken C for an assessment of whether he had the condition of dyslexia, Dr F expressed reservations about the correctness of a “diagnosis” of dyslexia in relation to C. Dr F observed that a Mr HH assessed C’s vision and used a “dyslexic determination test” to assess for indicators of dyslexia. Dr F said that it did not appear that Mr HH had collected necessary and available information about C’s reading, writing or spelling. She said that Ms II (“Visual Dyslexia Therapist” “VDT”) of the BB Clinic took a history from the mother and performed a range of visual tests and concluded that C would benefit from treatment for dyslexia. Again, Dr F said it did not appear as though Ms II had received any information from C’s school, from C’s father or other sources. Dr F expressed concern about such a diagnosis in circumstances where C’s school did not have any significant concerns about his reading or writing.
133. In conclusion Dr F found no indication from her observations and assessment that C currently has anxiety or any mood disorder.

MOTHER’S PSYCHOLOGICAL CONDITION

134. Dr G, the first single expert appointed in the proceedings, made the following observations about the mother in his initial report dated 28 April 2011.

… I formed the view that [Ms Felton] had a strong dependency on [Mr Jackman]. [Ms Felton] appeared to have rather anxious personality style. I believe that she may have been traumatised by the premature birth of [B] and his near-death experiences. The combination of his anxiety and the dependency may have exacerbated the problems in the relationship with [Mr Jackman]. There was some post natal depression suggesting difficulty coping with great stress.
I formed the view that [Ms Felton] cared a great deal about the children and wanted to provide well for them. I think her intentions are to support the children and her relationship with [Mr Jackman]. However, I believe that her anxiety has led to a degree of overprotection and possible enmeshment with the children. It’s difficult for her to separate her anxiety from the children’s anxiety. The relationship particularly with B appears to be a very close one and has led to B having difficulty with separation and also some conflict.
…
I believe that she is capable of caring for the children. I formed the view that [Ms Felton] was a reasonably competent mother except that her anxiety and dependency did impact on her parenting ability as she was prone to misinterpretation [of] the children’s problems.

135. In respect of the mother’s mental health Dr G said:

AXIS I: No diagnosis. However I do believe that she has had adjustment disorders in the past after major life events such as the birth of her children, the breakdown of the marriage and stress of the court case.
AXIS II: The main mental health issues is [sic] her or [sic] personality style which is a dependent and anxious personality style with some obsessional features which make it difficult for her to be able to separate from her anxiety and her emotional reliance on others. I am concerned that she’s become overly reliant on the children and [B] has been overburdened by this reliance on him.

136. Dr G prepared an updated report on 1 October 2012. In relation to the mother’s mental health Dr G said as follows:

As I said previously I didn’t believe there was a mental health disorder on an AXIS I perspective. I did raise issues on an AXIS II with regard to personality whether she had some dependent and anxious personality features and perhaps obsessional features. Whilst this does appear to be the case she seems to have been able to respond and try and deal with her own anxiety issues and put those issues aside whilst she was attempting to assist the children such as her way of increasing the time apart from her with B to assist him with his separation anxiety. This has been very impressive. I therefore don’t believe that her anxiety issues could be construed as a personality disorder. It is possible that stress could have contributed to her breathing and weakness issues when she presented to hospitals.

137. Dr F made observations about the mental state of the mother in some detail. Her report included the following.
138. It appeared that prior to the breakdown of the marriage the mother had reasonable mental health and was able to function in terms of maintaining employment, attending to the tasks of parenting and maintaining relationships with others. However since separation there have been a number of difficulties in terms of the mother’s psychological functioning. These have included significant breakdown in multiple relationships, feeling overwhelmed by stress, a psychiatric hospital admission and ongoing anxiety.
139. The mother appears to have had significant difficulty managing anxiety. At times the mother has had clinically significant anxiety to the degree that she has found it difficult to function appropriately.
140. For example Dr F thought that at the time of interview the mother was overwhelmed by stress to the extent that she could not see things rationally and to the extent that she could not exercise functional behaviour when it came to many aspects of parenting the children.
141. Dr F said that the mother has a tendency to misinterpret the behaviour of others, including the children, and tends to assume a sinister intent or catastrophic outcome which is disproportionate to the reality.
142. The mother’s anxiety has had a significant and deleterious impact on her parenting capacity. For example the mother’s attitudes and actions in not allowing the children to attend a family holiday to Country Y based on what she considered to be safety concerns, that is that the father would not adequately administer C’s asthma medication, suggests that she is unable to proportionately assess risk and make reasonable decisions. On this occasion there had been significant evidence available to the mother, including expert evidence from the family consultant, that there was no risk to the children and yet the mother still was unable to alter her anxious beliefs.
143. The mother’s action in taking the children to the police to report an alleged assault on them by their step-mother suggests that her anxious interpretation of the children’s accounts had eclipsed her capacity to make sensible and child-focused decisions. C appeared to have reported clearly to the police (as he did to Dr F) that this was an accidental injury and that he had never been hurt by his step-mother or his father. Despite this, the mother was unable to contain her anxiety and allowed the children to be exposed to a terrible situation in having them report these matters to the police.
144. The mother tends to misinterpret the children’s experience or exaggerate it. For example, her account to the school principal that the children had been “traumatised” by the family report interviews appeared to be dramatically inconsistent with Dr F’s experience in interviewing the children. The school principal informed Dr F that the mother had frequently described the children to be “traumatised” by contact with their father and/or disturbed to the extent that they had behavioural problems immediately after contact with him, in circumstances where the school had not seen any consistent pattern of this and where the children’s direct behaviour with their father appeared to be relaxed and appropriate. The mother reported to both Dr F and subsequently to the principal that B had been highly stressed and agitated about the NAPLAN tests. However, on interview by Dr F and subsequently as reported to her by the school principal, B appeared to be comfortable about participating in the tests.
145. Over time, such a pattern of anxious interpretation of the children’s experience had become entrenched in the mother to the extent that she is unable to accept feedback which suggests an alternative interpretation. It is also meant that the mother has continued to expose the children to her views and has placed them in many situations of avoidance. For example, avoiding school, contact with their father and participation in holidays. Such avoidance has been both detrimental to the children’s development but also potentially psychologically damaging. Children exposed to such a parenting style are at risk of developing an anxious pattern of interpretation themselves and might use avoidance as a coping mechanism.
146. The mother has sought psychological or counselling assistance from numerous practitioners over time ranging from seeing a psychiatrist to seeing alternative practitioners. In 2012 the mother was admitted to hospital and was ultimately considered to have been experiencing a conversion disorder (also known as Functional Neurological Symptom Disorder). This is best understood as a psychiatric disorder where a person suffers from neurological symptoms (such as numbness, blindness, paralysis) without an established organic cause and where symptoms are considered to be related to stress. Although conversion disorders can occur in isolation they are often associated with personality disorders or maladaptive personality traits. Conversion disorder is likely to recur without appropriate treatment. Yet the mother discharged herself from hospital against medical advice.
147. Dr F was very concerned about this because she said that a conversion disorder is a really serious psychiatric disorder. She said that she was surprised that the hospital had not followed up the mother’s condition.
148. The mother’s attitude to C’s special needs has (probably) been influenced by anxiety. Although C had some early developmental difficulties (such as delayed speech and poor muscle tone) it also appears as though the mother was adamant that he had ASD. Yet despite professional consensus that C does not have an ASD the mother continues to believe that he does. She says that he has “autistic features” and she thinks he would be most suited to a specialised school for children with ASD. The mother also uses behavioural regimes for C which are specific to children on the autism spectrum. For example, using visual aids and boards at home. The mother highlights many aspects of C’s behaviour which are consistent with ASD.
149. The mother’s unilateral presentation of C to be assessed and treated for “dyslexia” despite the fact that psychometric and school testing results indicated that his reading and writing were at age level and his spelling only marginally below average, suggested that the mother possibly misinterpreted or exaggerated C’s symptoms.
150. In addition to such mental health conditions, Dr F said the mother (appeared) to have a number of personality traits which are problematic and highly relevant to her parenting capacity. In this regard the mother appeared to have a pattern of interpersonal relationship difficulties which appeared to be escalating. The mother (appeared) to have developed a chronic pattern of belief that others do not understand her plight, they frequently deceive her or are “against” her in some way. She tended to perceive attacks on her character or reputation that are not necessarily apparent to others and she is quick to react angrily or to counter attack. The mother’s behaviour and attitude to school staff has been hostile and aggressive when she perceives that they disagree or challenge her. The school principal observed that the mother had a limited capacity to accept feedback from others.
151. It was unclear to Dr F whether these maladaptive personality traits have been life-long, stable traits as one might see in an individual with a personality disorder, or whether they have developed more recently in response to chronic stress. In either case, Dr F said that the mother is currently experiencing significant problems with her mental health which are having a significant impact on her parenting and are consequently having a deleterious impact on the children.
152. And Dr F thought that as at 28 July 2014, when I made orders for the children’s residence to change to the father, the mother had not accepted that there was a problem with her psychological health and functioning, a problem with her interpersonal relationships with others and therefore a considerable problem with her parenting of the children. To be fair, I accept, as Ms Neville for the mother brought out in cross-examination, not only had the mother been attending upon her psychologist Ms J, to whom she had provided a copy of Dr F’s report, but she had also been complying with the school’s direction that she not attend at the school. The mother said she has only gone to the school gate. As Ms Neville suggested, this was indicative of capacity in the mother to comply with boundaries. As indicated above in relation to the mother’s credit, the mother accepted during cross-examination that she could have handled many situations where she behaved inappropriately in a different manner. These matters and her presentation at trial gave some impression that the mother might well be making some headway in respect of the issues about which Dr F had been so critical. But upon Dr F being asked to comment on this, she said that such matters might be indicative of a psychological change in the mother, but she was far from certain about this because in circumstances where the mother was not seeing the children she would be highly motivated (to give a good impression).
153. The mother said that she does not have mental health issues but that she suffers from stress at court times. Upon being reminded of Dr F’s opinion about this and observations about some of her behaviours the mother conceded that she might have a mental health issue. But she said that she is only seeing her psychologist because Dr F has recommended this and the court orders require it.

FATHER’S PSYCHOLOGICAL CONDITION

154. Both Dr G and Dr F expressed the view that there was no indication that the father had any diagnosable mental health disorder. Both observed that the father had stability in his relationships and Dr F recorded that he appears to have exhibited a stable pattern of employment and friendships. She also observed that the father did not appear to have any problems with anxiety, mood disorder or interpersonal distress. She thought at times he had been under enormous pressure and would undoubtedly have experienced extreme frustration. She found his conduct was at all times appropriate and child-focused.
155. Dr G observed that the father appeared to be functioning well. He did think, however, that the father had features that suggest he may be quite rigid and controlling in his personality style.
156. It came as somewhat of a surprise to Dr F to be informed during cross-examination by Ms Neville for the mother, that the father had undertaken hypnotherapy for night terror involving hallucinations and yelling during his twenties which had resolved by his early thirties. He had seen Mr JJ, psychologist and hypnotherapist. Dr F said that she was concerned that the father had failed to inform her about this. She said that night terror in adults was not very worrying in a psychological sense and tended to have a physiological component. But for the father not to have informed her about this indicated he either had a lapse of memory or was withholding information which he thought she might potentially regard in a negative way.
157. The mother suggested that the father had informed her that he had suffered night terror as a child. Dr F said such a condition in a child was of psychological relevance. But the evidence about whether the father did have this condition as a child was unsatisfactory.
158. The father has also seen other psychologists as referred to below in relation to difficulties in his relationship with the mother.

ADDITIONAL ALLEGED INCIDENTS

159. There are various additional alleged incidents between the parties which have not been included in the background facts. I shall include these for the purpose of illustrating their longstanding conflict. I am unable to make a finding about most of these alleged incidents.
160. The mother alleged that in January 2006 while she was eight months pregnant with C, the father pushed her causing her to hit her head.
161. The father alleged that following an argument in April 2006 the mother left with the children telling the father on the telephone that he would never see them again and that she was “going to drive us off the …bridge”. The mother denied making such a threat and said that she recalls saying to the father after a fight on a different occasion “Just let me come home. I’m so tired I’m worried I’m going to drive off a bridge.”
162. The father alleged that in May 2006 the mother attempted to get out of a moving vehicle and was screaming obscenities while the children were in the car. The mother denied ever attempting to get out of a moving vehicle.
163. The mother alleged that during an argument in May 2006 she and the father pushed each other. She alleged that she fell on the ground and the father crouched over her and put his hands around her neck. The mother alleged that a couple of days later she reported this to the medical centre and to police.
164. The father alleged that in late 2006 the mother complained to police that the father had threatened her and obtained an interim AVO which she subsequently withdrew. The father conceded in cross examination that he cross applied against the mother and that the AVO was withdrawn on the basis of undertakings given by the mother and father.
165. In 2008 the mother made a complaint to police that she was assaulted by the father and filed for a further AVO. The father cross applied. The AVO was again withdrawn on the basis of undertakings given by the mother and father.
166. An altercation occurred during handover on 13 February 2008. The father alleged that after placing the children in his car, he started the car in an attempt to leave the mother’s residence, however C leaned over and opened the car door. The father said the door flung open and he instantly stopped the car and closed the door. The father said that the mother ran over to the car screaming and told him he could not take the children. The mother then pulled the children out of the car. The children were crying. The mother and father then engaged in another ten minutes of negotiation before eventually the mother agreed that the father could take the children with him.
167. The father alleged that there was an altercation at contact changeover on 12 February 2009. He deposed that the mother attended changeover with her parents and following a dispute about the time the children would return to the mother, the maternal grandfather forcibly removed C from the father’s arms. B was standing next to the maternal grandfather and was upset. The children eventually got into the father’s car and went home. The father made a report to the Department of Community Services about the incident. The maternal grandfather denied the allegation and the grandmother said she could not recall it.
168. The father alleged that in 2009 the mother was physically aggressive towards Ms O at a contact changeover. He said that the mother attempted to film Ms O, that she swore at her and on one occasion lashed out and scratched her face. The children witnessed the event and the father subsequently called the police. In cross examination the mother conceded that this incident occurred and said that she was filming Ms O for safety reasons.
169. The mother said that after she became aware of the father taking C for further assessment to paediatrician Dr Q on 15 July 2009, the father said to her “my son is not a retard… you are mentally ill for wanting an autistic child!”. In cross examination the father denied saying this.
170. On 12 January 2010, the father sent the mother an email proposing a range of orders and stating that should the mother not agree to the orders, that the father would see her in court. The father conceded in cross examination that he sent this email as he was frustrated and was attempting to tell the mother that he would have to resort to court if they could not agree.
171. On 24 October 2013 the mother filed a Notice of Child Abuse and an Application in a Case seeking sole parental responsibility amongst other orders. The father sent the mother an email which said “Dear [Ms Felton], you are insane” and “what sort of mother takes children to the police station… police think you are nuts”. The father said in cross examination that he was very angry with the mother but could have used more appropriate words in his email.

MATERNAL GRANDPARENTS VISIT 11 OCTOBER 2014

172. As indicated above, on 9 September 2014 I made orders for a visit by the children with their maternal grandparents between 10.00 am and 2.00 pm on 11 October 2014. The orders noted undertakings by the grandparents as follows:
     • Not to allow the mother to see, speak to or spend time with the children;
     • Not to discuss the proceedings or orders with the children; and
     • To only discuss the mother’s wellbeing and health in general terms with the children.
173. On that occasion the father delivered the boys to their grandparents at McDonalds at Suburb D and the grandparents took them to their home.
174. Unfortunately the grandparents and children were visited by a person called Ms KK, whom apparently is the mother’s next door neighbour. Ms KK brought to the visit a puppy which the mother had purchased only a week before the children left her care under the 28 July 2014 orders. B later informed his father that Ms KK had shown him photos on her phone of the mother and that there was nothing wrong with her. The children also received gifts of torches.
175. After the boys returned to the father’s home following this visit B became very distressed and angry. Upon C seeing how distressed B was he became very tearful at bedtime. The next day both boys were defiant. C acted out poorly and was screaming and defiant. The father said that he had never seen such aggressive behaviour from C and had only heard about it from teachers at C’s H Town school. The father expected the children to be upset after the visit but he appeared to have been shocked at the level of their distress and destabilisation. I shall refer to this matter again below.
176. I must say it was expected that the grandparents would have managed the visit with appropriate sensitivity. But permitting the mother’s neighbour to be present and showing the children photos of their mother, let alone taking the children’s new puppy, were not matters which were likely to soften for the children the weight of the absence of their mother. I regret to say that, in my view, the manner in which the grandparents dealt with their opportunity to assist the children on this occasion did not well reflect the confidence the Court had placed in them. I note that Dr F also thought the visit had not been managed in a child-focussed and sensitive manner.

ALLEGED VIOLENCE

177. An issue in these proceedings is whether the father engaged in family violence.
178. Family violence is defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”) as follows:

4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.

4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):

(a) an assault; or

(b) a sexual assault or other sexually abusive behaviour; or

(c) stalking; or

(d) repeated derogatory taunts; or

(e) intentionally damaging or destroying property; or

(f) intentionally causing death or injury to an animal; or

(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or

(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or

(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or

(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.

179. Sub-sections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:

4AB(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.

4AB(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:

(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or

(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or

(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or

(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or

(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

180. Both the father and the ICL submitted that there was no evidence in this case which would bring the proceedings within the statutory definition of family violence.
181. On the other hand, learned counsel for the mother submitted that there are matters which bring these proceedings within the definition of family violence as follows.
182. Firstly, it is the case that each of the parties had applied for Apprehended Domestic Violence Orders against the other and they both withdrew their applications on the basis of undertakings. Ms Neville also pointed to the June 2012 incident at the netball courts. The mother said that the father called out to her when she and her friend arrived “she just escaped from the mental institution”. Ms Neville submitted that while the father denied this she said it coincided with the mother’s recent discharge from hospital from suspected stroke/conversion disorder.
183. The details of this incident are not clear to me. But I do know that there was a lot of yelling by both the father and the mother. A photo of the mother taken during this incident depicts her as gesticulating with her right hand, being quite emotionally upset and probably shouting. It shows C as being very upset and probably frightened. The police attended and took the mother’s friend who accompanied her on this occasion away in a police vehicle.
184. The view I take about this incident is that it is more likely than not that the circumstances on this occasion fell within the definition of family violence in the Act.
185. Even if the father’s version is correct and he did not call out to the mother in derogatory terms, there was a physical altercation on that occasion and yelling by both parents. The children were distressed. In my view, this would bring the behaviour within s 4AB(4) of the Act.
186. I am satisfied also that it is more probable than not that the father has made derogatory comments about the mother’s mental health over a long period and that this behaviour was designed to coerce her. Dr F thought that the father’s behaviour was bullying behaviour which was designed to cause the mother to be fearful. I accept this.
187. Accordingly, in my view, the father has engaged in family violence within the meaning of the Act.

THE APPLICABLE LAW

188. The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.
189. When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
190. The objects in this context are to ensure that the best interests of the children are met by:
     • Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
     • Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
     • Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
     • Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
191. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
     • Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
     • Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
     • Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
     • Parents should agree about the future parenting of their children; and
     • Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
192. In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
193. Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
194. Section 61DA(1) of the Act provides that 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.
195. Section 61DA(2) of the Act provides in effect that 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 abuse of the child or another child member of the parent’s family or family violence.
196. Sub-section 61DA(4) provides to the effect that 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.
197. 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 first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
198. The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

PARENTAL RESPONSIBILITY

199. Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
200. As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in family violence (s 61DA(2)(b)). As indicated above, in my view, the father has engaged in family violence. So the presumption would not apply. But even if I am wrong about this, the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them (s 61DA(4)).
201. It was common ground that it would not be consistent with the best interests of the children for their parents to have any form of shared parental responsibility. It was common ground that the parties have a very poor relationship, are unable to communicate effectively in relation to matters concerning the children, have a very poor level of cooperation, all of which are demonstrated by the fact that litigation between them has been ongoing for almost the entirety of the children’s lives. Dr F summarised this in the following terms:

These parents have a history of ongoing hostility and acrimony.
The chronic nature and severity of the parents’ dispute/s suggests that it is unlikely to be resolved. The parent’s [sic] capacity to communicate, make joint decisions and support the relationship between the children and the other parent is extremely poor and unlikely to improve.
I think that ultimately these children will need Orders that ensure that the parents do not have contact with one another.

202. Dr F also said during cross-examination that any joint decision-making responsibility (awarded to the parents) would fail and would put the children at risk.
203. Each of the parents has sought an order for sole parental responsibility and in all the circumstances of this case in my view that will be appropriate.

SECTION 60CC CONSIDERATIONS

204. As I have said, in deciding to make a particular parenting order the Court must consider the best interests of the child as the paramount consideration.
205. How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

206. The primary considerations are set out in s 60CC(2) of the Act. These are:
     • The benefit to the child of having a meaningful relationship with both of the child’s parents; and
     • The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
207. Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
208. Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

209. The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(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

210. There is very little evidence about the children’s views.
211. Dr F said that the mother had said that B has become extremely worried about his father’s insensitivity in putting them through Court proceedings and that he did not want to come to her interview. She said that the mother described B as being very anxious, afraid of the dark and “hypervigilant” to the possibility that his father will “take him again”.
212. B told Dr F that he did not want to spend any more time with his father because last Christmas he received an iPod for Christmas and his father and Ms O would not let him have it.
213. It was submitted on behalf of the mother that given the ages of the boys their wishes were not irrelevant. It was said they were informative not determinative. I accept this.
214. In any event, the children have such an enmeshed and complex relationship with their mother that, in my view, the Court could place little weight on their views.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

215. The father acknowledged to Dr F that the children have a very close relationship with their mother. I accept this.
216. Dr F thought that the mother had an enmeshed relationship with the children. In describing her interview with the mother and the boys Dr F said that her interview was punctuated by numerous interjections by the mother to correct the children or provide more detailed answers to Dr F’s questions of the boys.
217. On the other hand Dr F said that C and B have positive relationships with both their father and step-mother as well as a close relationship with their step-sister N. She described a close interaction between B and R during the interview. She said that he was physically affectionate with R and that she responded to his affection with great enthusiasm. Dr F said that during the interview both B and C appeared to have an extremely comfortable interaction with their father and Ms O Jackman.
218. Dr F referred to Ms O Jackman as having said that the children have a good relationship with her. Ms O said B likes to “hang around” her and always wants to please her and be near her – he likes to go to the shops with her. Ms O said that when the children are frightened they will seek comfort from her. She said that all four children get on well with one another.
219. The children appeared to have close and loving relationships with both their maternal and paternal grandparents.

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

220. This was not a significant matter in these proceedings except to the extent that the mother has made unilateral decisions.
221. On many occasions the mother has acted unilaterally and presented C for assessment by one or other medical professionals in what this Court and Dr F have regarded as questionable circumstances.

Sub-section 60CC(3)(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;

222. This was not a matter of significance.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

223. Dr F agreed that separation of the boys from their mother would be likely to be accompanied by them pining for her, missing her and feeling sad. For B this would likely involve internalisation of his emotions and for C, externalisation of his emotions. For C, a child for whom change of routine involves challenge, he would be facing a change of school, new teacher, new classmates and new friends. Dr F said that there were risks inherent in such change for C. But she also saw potential benefits. She thought for C the opportunity to start afresh with peers, a new teacher and a new principal would be of great benefit for him. She considered a strength of both boys to be their confidence in their peer relationships and regarded them as not likely to have difficulty in making new friends.
224. In fact, during her cross-examination, Dr F said that C’s successful and positive transition into his father’s care had surprised her. The fact that B had not mentioned his mother much was exactly what she predicted and while she did not think this was good for C, it was typical of the way he interprets things.
225. In my view, the effect on the boys of separation from their mother in terms of their grief and sadness was graphically illustrated by their behaviour when they returned to their father’s care following their visit with their grandparents in October 2014. But Dr F said that upsetting as it was, their distress fell within the range of behaviour she had predicted. She said it showed that B, while having been extremely upset, was able to “regroup” his functioning and get back to school. Dr F said that she thought that C’s behaviour might have been “far more wild” than it was following the visit.
226. Dr F said nevertheless, not seeing their mother would be difficult and their grief reaction to this might surface later and could affect their lives. So Dr F thought that if the children’s residence was to change it would be important for them to have counselling to support and assist them with the emotional challenges involved.

Sub-section 60CC(3)(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.

227. I understand that the mother continues to live at H Town and the father lives at Suburb LL so that whichever parent the children are to live with, spending time with the other parent would involve approximately 1½ hours travelling time. But this would be manageable.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and 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.

228. C told Dr F that all the adults (Mum, Dad and Ms O) look after him well and keep him safe.
229. In my view both parents have the significant parenting deficiency of having virtually no insight into the serious negative impact which their longstanding and ongoing litigation is having on the children.

The mother

230. I refer above to Dr F’s opinion that the mother is currently experiencing serious problems with her mental health which are having a significant impact on her parenting and consequently having a deleterious effect on the children.
231. In my view, the difficulties which the mother had been having with the school and its officials are probably symptomatic of such problems. It is the case that the mother has been unable to support the children to have a stable and settled school experience.
232. Mr CC informed Dr F that he and his staff felt extremely concerned about the mother’s response to C’s poor behaviour. He and other staff had observed the mother to seek to undermine consequences (which the school had imposed) for C, sought to have him treated differently and often provided excuses for C’s behaviour. The principal observed that it often appeared as though the mother was “happy” when she was called to the school to collect C (in circumstances where he misbehaved). The principal also felt that C often plays on his mother’s anxiety and tendency to withdraw him from any consequences (which the school might impose). The principal said that the mother thought that she was doing the best possible job of parenting and had little or no capacity to accept feedback from others or to trust others with the care of C.
233. On occasions the principal thought that the mother had interrupted the children’s positive adjustment with her own anxiety or anxious interpretation of an incident. He described one occasion where C was happily settling into a class activity with the assistance of a teacher’s aide when the mother interjected saying something like “are you sure you are ready to go [to class] now C?” and then suggested to the teacher’s aide that C had not been properly encouraged to enter the activity.
234. The principal informed Dr F that the current relationship between the mother and C’s teacher was extremely poor. He said that he thought this was because the mother had taken exception to a comment made by the teacher about the inappropriateness of rewarding C following an afternoon of particularly poor behaviour. He said that the mother had engaged in a very heated conversation with the teacher and then made a formal complaint. He said that the relationship between the mother and the teacher had deteriorated to the point where there was no trust between them and the principal had to intervene and request that all communication be through him.
235. The principal informed Dr F that such a pattern of behaviour in relationships was characteristic of the mother in dealing with staff members. He gave numerous examples which it is unnecessary to detail.
236. The principal said that he found it difficult to deal with the mother’s oscillating presentation. He said at times the mother presented as irrational, angry and aggressive whereas at other times she presented as happy and bubbly and friendly. He said that she could be demanding of office staff and teaching staff and that she had made numerous complaints about the school, including formal complaints to the Department of Education. He said that he has the impression that the mother has falsely developed the sense that the school are against her. The principal said that the mother was at the school every day and that her attendance is usually unwarranted and unwanted by teaching staff. He said there was a time when the mother would be removing C from class almost every day, particularly when she disagreed with the teacher’s approach and she would resort to marching C out of class with a look of glee on her face.
237. The principal said that dealing with the mother was extremely stressful for the school. He estimated that he spent 4-5 hours per fortnight dealing with matters relating to the mother and C. He said that many staff members had been expressing their distress at dealing with the mother. He said that C’s kindergarten teacher was still damaged from her experience of the mother. He said that many staff members had said that they find the mother highly dysfunctional in terms of her relationships with the children and that staff members often express their concern about the children to him.
238. Such was the level of the mother’s dissatisfaction about the staff and teachers at the children’s school that she made a complaint to her local Member of Parliament.
239. Dr F also noted that the mother’s capacity to communicate with and liaise with the school appeared to be negligible to the extent that the school had recently warned the mother not to be on school premises. Dr F noted that the school staff had reported that they feel fearful of the mother and feel unable to put into operation an appropriate behavioural plan for C because they think that the mother will undermine it. She said that for a child with C’s level of behavioural deregulation to have such a poor system of communication between home and school placed C at ongoing risk of behavioural problems, social isolation and academic disadvantage. In such circumstances Dr F thought that the situation with respect to C’s school was at crisis point (as at June 2014).
240. I note that unfortunately, this behaviour of the mother not being able to co-operate with persons who have been providing a service to the children has not been limited to the staff and teachers at the boys’ school. The mother has also engaged in disputation with staff at the after school care facility known as “MM Childcare”. I have read some of the relevant email correspondence from the mother to this service. I regard it as disrespectful, aggressive and threatening.
241. Some years ago apparently the father had been having difficulty in being able to arrive at the children’s school at H Town on the relevant Fridays to take the children into his care on time. So he enrolled them at MM Childcare. When the mother found out that the father had been using this service she made inquiries and then became upset that the father had not provided the service with her details. The mother subsequently provided her details. The mother also asked the service to provide a considerable amount of information concerning what details they had in their records about the children including medical information, special requirements, health issues, allergies and additional detailed information. The service took the approach that because the children had been enrolled by the father they were not at liberty to disclose the information provided by him. The mother took great exception to this. She informed the service that they had exposed the children to risk.
242. The mother also became upset that the service had included her email address, with the email addresses of all other parents who used the service, on a notice to all users. She informed the service that she regarded this as a breach of her privacy and a breach of the law.
243. The mother made a formal complaint about the service. I understand that this complaint became the subject of formal investigation by the relevant authorities who concluded that the service had complied with their legal requirements. In any event, notwithstanding that it was the father who enrolled the children at this service, the mother took it upon herself to withdraw the children from the service. She conceded during cross-examination that a factor in the manner in which she behaved towards this service was that she was trying to inconvenience the father. In my view her behaviour in this regard was quite disruptive of the children and it reflects poorly on her capacity as a parent.
244. Dr F thought that the mother was not going to change her entrenched attitudes easily because she thought that they were not easy patterns of behaviour to change.
245. In my view the needs of the children must include their need to be able to have a meaningful relationship with the other parent. In this regard, in my view, the mother would appear to have a very poor capacity to be able to facilitate and encourage the children’s relationship with their father.
246. The mother did tell Dr F that she would like the children to have their father involved in their lives. I must say there is much about her behaviour which would bring this assertion into question.
247. In this regard I accept the father’s evidence that the mother did not permit the boys to attend R’s birthday party nor her christening. As indicated above, the mother has taken the children to various professionals without consulting the father, the most recent being her presentation of C for assessment in respect of dyslexia.
248. The mother successfully opposed by court response the father’s plans to take the boys for a holiday to Country Y. The mother took the children to the police when C returned home from his father’s care with a scratch despite C reporting that it had occurred by accident. The mother sought to use this incident to have the children’s time under the court orders with their father suspended. The mother forcibly removed the children from the father’s care at the netball courts, a most distressing scenario for the children in which the police attended as indicated above.
249. Dr F said that the most concerning aspect of such behaviour by the mother was that it occurred in situations where there was no reasonable indicator that the children were at risk.
250. In addition, the father said that B had been required to report to the mother whether the father had appropriately administered C’s medication. I accept this.
251. Dr F expressed the opinion that she thought the mother had an extremely poor capacity to facilitate the children’s relationship with their father and thought that without appropriate intervention the children would end up with limited or no contact with their father. This opinion accords with my own in relation to this matter.

The father

252. On the other hand, as indicated above, there is no evidence of any adverse mental health issues in the case of the father. As indicated above, the father had attended on a psychologist in 2002 in relation to his night terror referred to above. He also attended a Dr NN and he was referred to Ms OO psychologist at a time when things had become very difficult between him and the mother. The psychologist assisted the father with techniques in managing stress and de-escalating situations with the mother.
253. Dr G in both reports expressed the view that the father was a capable, caring parent who would cope well with the children being in his care.
254. Dr F described the father as having presented as a thoughtful, logical and calm man. Dr F said that her assessment was that the father and step-mother would be more likely to be able to provide the children with a child-focussed, structured and consistent daily life than the children had been experiencing with their mother. Dr F regarded the father as having been able to successfully manage C’s behaviour in an appropriate manner (by exerting a timely, and proportionate consequence). She said that the father and step-mother have a good history of being able to cooperatively parent with each other, in the case of their child R, and also in the case of N. In addition the step-mother and father have been able to work consistently and co-operatively with N’s father, which Dr F thought boded well for their capacity to ultimately facilitate a relationship between the children and their mother.
255. Dr F also said that the father appears to have had a constructive and positive relationship with C’s school staff. He appears to be able to accept advice and feedback from professionals. She said that there was no indicator that the father had minimised or dismissed C’s behavioural or emotional concerns.
256. The school principal, Mr CC, said that he had observed the children as having been happy going into their father’s care. He said that the father appeared to respond well to C’s behaviour. He said that he had seen the father assist C to acknowledge his inappropriate behaviour, apologise to the member of staff involved and explain to C that there would be a consequence delivered at home. The principal said that C responded well to his father’s discipline.
257. A negative in the father’s parenting capacity was that notwithstanding Dr X’s assessment of C in 2013 and recommendation that C have an ophthalmology review, occupational therapy and counselling the father did not involve himself in such. Of equal concern, the father did not implement Dr X’s recommendation to engage in individual counselling to assist with the interpersonal difficulties in his relationship with the mother which clearly Dr X considered would be important in serving the best interests of C.
258. It was also submitted on behalf of the mother that the father did not act in a child focussed way when he challenged the school’s decision to arrange for a teacher’s aide for C. Yet I note that Dr F did not accept that for C to have such a support would necessarily be helpful. So I reject this submission.
259. And, as indicated above, in my view some of the father’s behaviour satisfies the definition of family violence.
260. The father informed this Court and also Dr F that he supported the children having a relationship with their mother. Dr F said that it was difficult to accurately predict the likelihood that the father would do this. She said this was due largely to the fact that the children had primarily resided with their mother so that the father has not really acted as a “gatekeeper” to the children’s relationship with her.
261. However, the father generally regards the mother as loving the children and thinking that she is doing the best that she can, rather than regarding her actions as malicious in her intent. He described her during cross-examination as being very loving towards the children and said that they are usually happy with her. He said that she has always been very attentive towards them and conscious of any issues with which they might need help.
262. Dr F said that the father also believes that with support, the mother’s behaviours and actions would be able to be corrected. The father rightly acknowledged that the children would be upset if they had no contact with their mother and he had thought about ways to ameliorate such concerns by them. The father also acknowledged that the children have a very close relationship with their mother. But as Dr F said, ultimately the father views the mother as psychiatrically unwell and unable to properly fulfil the parenting role.
263. The fact that the father absented himself as the children’s primary carer for a six day holiday only a couple of weeks after the children came into his care reflected poorly on his parenting capacity in my view. Dr F said that she considered this ill-advised and psychologically unhelpful for the children.
264. A negative for the father in terms of being able to facilitate a relationship between the children and their mother is the fact that following her discharge from hospital in 2012 he declined to return the children to her as indicated above. And upon the children commencing to live with their father in July 2014 the father did not make any contact with the mother to inform her about how the children were going, although he did indicate that he would inform her solicitor about this.
265. The father did inform Dr F that despite the enormous conflict between the parents he thought he would be able to facilitate the children having a relationship with their mother because he understood their love for her.
266. By the end of the hearing the children had been in the care of the father and Ms O for almost seven months. Apart from the somewhat distressing aftermath of the poorly managed visit with their grandparents in October 2014, it appears that the children have been coping well with the enormous change in their living arrangements. The ICL had made inquiries of the children’s school and was informed that the children had settled in well. There was no evidence of any repetition of C’s bad behaviour which had become such a regular feature under the care of his mother. In my view this reflects positively on the parenting capacities of the father and Ms O.

Sub-section 60CC(3)(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.

267. There is nothing of significance in this.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting order under this Part will have on that right;

268. This is not applicable.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

269. Neither parent has demonstrated much commitment to facilitating the children having a relationship with the other parent. Neither parent has demonstrated insight into the damaging effect that their ongoing disputation and litigation is having on the children.
270. Each of them has been more focussed on their frustration with the other and their ongoing dispute than on the needs of their children.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child‘s family;

271. I have referred to this matter above.
272. After the mother complained to the police about the scratch on C’s face, the father sent her an email message in which he said, amongst other things that she was insane and that the police thought she was nuts. I accept that this amounted to a level of bullying behaviour by the father, was certainly not sensitive to her state of mental health and could only have added to her anxiety, all of which would ultimately not have assisted her in parenting the children.

Sub-section 60CC(3)(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 nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

273. There is no current family violence order.

Sub-section 60CC(3)(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

274. As indicated above, the parents have engaged in litigation about parenting arrangements for their children for almost the entirety of the children’s lives. Apart from putting in place orders on a final basis it is difficult to be confident that one or other parent will not file a further application.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

275. It is not necessary to add to what is otherwise included.

PRIMARY CONSIDERATIONS

276. As indicated above, the primary considerations are the benefit to the children of having a meaningful relationship with both of their parents, and the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. Sub-section 60CC(2A) requires the Court in applying these considerations to give greater weight to the latter consideration.
277. I am satisfied, particularly on the basis of the evidence of Dr F, that for these children, living with their mother had exposed them to serious risk of emotional and psychological harm, and in the case of C, physical danger. It is unnecessary to repeat the details of these risks as referred to above.
278. As also indicated above, the children have a close and loving relationship with their mother. No doubt it is a meaningful relationship. At one level it would benefit the boys to be able to continue their meaningful relationship with their mother. Unfortunately the evidence is to the effect that their meaningful relationship with their mother has come, at least in more recent times, at great cost to their emotional and psychological well-being.
279. On balance, unfortunately in my view, the very serious risks to the children posed by them living with their mother far outweigh the benefit to them of a continuity of residence with her.
280. Having come to this view in July 2014 about what their best interests required, I made orders for the children’s residence to change from living with their mother to living with their father in circumstances where I was satisfied that they were at considerable risk in the care of their mother. I have not changed my view in this regard.
281. The father does not present as an unacceptable risk to the children. The mother conceded that the children are safe and well looked after in his care.
282. In my view, the children will be able to have opportunity to have a meaningful relationship with their mother by being able to spend time with her in accordance with orders I propose.

CONCLUSION

283. Until 28 July 2014 these children had spent the entirety of their lives living with their mother apart from occasions when they had been spending time with their father pursuant to court orders. But serious problems started to develop with C manifesting difficult, disruptive and dangerous behaviours particularly at school and B causing his principal and teachers concern for appearing to be a sad child.
284. The mother has a strong commitment to obtaining the best level of medical treatment for the boys as well as a sound education for them. Unfortunately, her pursuit of each of these objectives has had serious negative impact on the boys. There is no question that she had been very involved at the children’s school and assisting there with the overall aim of trying to facilitate their education. Unfortunately, her involvement at school became counterproductive to the point where school officials including the headmaster found it unpleasant and stressful when the mother attended at the school. As indicated above, the mother’s behaviour at times also undermined the efforts of the principal and teachers in their endeavours to manage C’s challenging behaviours. Things became so dysfunctional between the mother and the school that the headmaster wrote to the mother in June 2014 and warned her that her behaviour towards him and the staff had become discourteous, intimidating and inappropriate and not at a standard expected of persons who enter the school. The principal warned the mother that if she repeated such behaviour or otherwise acted inappropriately at or in the vicinity of the school he might well exercise his power under legislation to prohibit or restrict her entry to the school.
285. There are serious questions in relation to the mother’s parenting capacity. Dr F described her as having had clinically significant anxiety to an extent that she had found it difficult to function appropriately. Dr F said that the mother’s anxiety has had a significant and deleterious impact on her parenting capacity. Dr F was concerned about the likelihood that if C was not removed from his mother’s care he would be likely to develop oppositional defiant disorder and conduct disorder. Dr F also said the mother’s behaviour was having a serious effect on B and if he continued to reside with her he was at risk of an internalising disorder, most likely anxiety and/or depression.
286. Dr F felt that the situation between the mother and the school was at crisis point which she thought for C, whom she regarded as having severe behavioural and psychological concerns, was a serious problem. Dr F described C’s behaviours at school as extreme and dangerous. For example, threatening self-harm, threatening to jump out of a window, hurling objects at people and physically hurting other children. She said that such behaviours are very difficult for even the best-equipped teachers to manage. But she thought for the teachers and staff to feel that not only did they not have the support of C’s mother, but that the mother was actively undermining their endeavours, put C at enormous risk of real danger.
287. Dr F recommended in strong terms that the children’s primary residence be changed from living with their mother to living with their father. In these circumstances, and following vigorous testing of Dr F’s opinions and recommendations through cross-examination of her, I made orders on 28 July 2014 for the children to move from primary residence with their mother to that with their father. This occurred on that day. A necessary consequence was that the children had to change their school from H School to I School which is close to the residence of the father and his wife Ms O.
288. The boys have a close and loving relationship with each of their parents and a good relationship with Ms O Jackman. To have required them to become separated from their mother following their change of residence posed a very considerable emotional challenge. But there was also a significant challenge for them involved in changing schools. All preliminary reports have been to the effect that the children have settled down and none of the disruptive and worrying behaviours which had been manifest at H School and in the mother’s household have been a feature under the new parenting arrangements.
289. In my view, this supports the appropriateness of Dr F’s recommendations for change of residence. It also reflects well on the parenting capacities of the father and Ms O. The evidence is that the lives of these children have improved vastly since moving to live with them and following a change of school. Previously C’s behaviour had been verging on the unmanageable, he was at close to crisis point at school, the mother had developed a dysfunctional relationship with the school, visits to the police and interviews by police and authorities, had become a feature of the children’s lives. But since moving to live with their father and step-mother, things for them have settled down. There was no evidence of bad behaviour by C at either school or home. In fact Dr F expressed surprise that C had made such a successful transition. B, although apparently still a somewhat “sad” child, who still appeared to “internalise” his problems, had also made the transition to his new school and appeared to be settled in the household of the father and Ms O Jackman.

WHAT ARRANGEMENTS FOR TIME BETWEEN THE CHILDREN AND THEIR MOTHER WOULD NOW BE IN THEIR BEST INTERESTS?

290. Unfortunately the positive aspects of this enormous change for the children have come at a cost. This is that for some time the children spent no time with their mother then moved into a regime where they spent limited supervised time with her. The question now becomes how to provide opportunity for the children to develop their relationship with their mother without destabilising the new living arrangements.
291. Dr F was troubled that the mother would not be able to support the changed parenting arrangements of the children living with their father. For this reason she recommended an initial period of no time between the children and their mother (which has occurred) and then a period of at least six months during which the children would spend time with their mother under supervised conditions (which has also occurred).
292. Following this, provided that the mother has continued to receive specific psychological assistance, Dr F considered unsupervised time each alternate weekend from after school Friday to commencement of school on the following Monday might be in the children’s best interests.
293. On 30 October 2014 I made orders which provided for the children to have supervised time with their mother for two hours per fortnight at either Interrelate Suburb GG or Axia Solutions Suburb PP.
294. My understanding as at the last day of the hearing which was 27 February 2015 was that the children and mother had been spending time together under this arrangement.
295. The mother has been attending her clinical psychologist Ms J. It is clear that prior to the change of the boys’ residence this was for supportive counselling and assistance particularly with management of the mother’s anxiety.
296. Since the change of residence the mother has continued to see Ms J. There is some uncertainty about the extent to which the matters specifically recommended for the mother’s therapy have been targeted in the sessions with Ms J. These include the mother’s vulnerability to anxious interpretation of the children’s experience and the behaviour of others, difficulty in her interpersonal relationships and her significant difficulty managing anxiety.
297. As indicated above, Dr F considered that these characteristics were so entrenched in the mother that without appropriate therapy Dr F was doubtful that there would be amelioration of such vulnerabilities and that this would continue to expose the children to emotional risk from their mother.
298. The ICL and the father were not persuaded that the mother has been addressing these problems with Ms J. Accordingly, the ICL submitted that the mother was not yet ready to be trusted with unsupervised alternate weekend time with the children. Instead there were strong submissions on behalf of both the father and the ICL that the children should spend only one day per fortnight having unsupervised time with their mother.
299. On the other hand, there was a strong submission by learned counsel for the mother that the Court could be confident that the mother has changed for the better. It was submitted that this was demonstrated by the mother’s composure during the hearing and particularly when giving her evidence which was said to be in favourable contrast to how she presented during the earlier proceedings before Justice Le Poer Trench in relation to the dispute about the proposed holiday to Country Y. It was submitted that her answer to questions were responsive and focussed and not presented in an overly tangential way. It was also submitted that she had become more reflective about past events and demonstrated some thought about how she would do things in the future. It was submitted that she had accepted the principal’s criticism of her behaviour at the H Town school and had not gone onto the school premises since receiving his warning. It was submitted that these changes in the mother’s behaviour were evidence of progress which the mother had been making in her therapy from Ms J.
300. Most of these matters were put to Dr F during her cross-examination by counsel for the mother. Dr F’s reaction to this submission was guarded. She said she would have to be careful about acknowledging that these matters were indicia of the progress in therapy as asserted. Dr F said that this behaviour was occurring in the context in which the mother was not seeing her children and said that she would be highly motivated (to endeavour to act in a manner suggestive of change in her behaviour).
301. As submitted on behalf of the mother, neither the father nor the ICL suggested to Dr F during her cross-examination that it would be in the children’s interests only to have one day per fortnight unsupervised time with their mother.
302. I accept the submissions on behalf of the mother that Dr F appeared to support the mother now commencing unsupervised alternate weekend time with the children. I have a sense that Dr F had some reservations about whether the therapy provided by Ms J was the targeted therapy recommended by Dr F. But I shall give the mother the benefit of the doubt because I am of the view that the boys should be provided with appropriate opportunity to resume their relationship with their mother and grandparents with whom they have close and loving relationships.
303. The mother and the grandparents will have to exercise care and sensitivity during their times with the children. I have some reservations about the mother’s capacity not to succumb to the temptation to use the occasions of weekend time as opportunity to undermine the children’s relationship with their father and step-mother. It will be a matter for the mother and the maternal grandparents to make this work. If they are unable to do so, and the children become distressed and revert to bad behaviour at school or in their father’s household, the question of what time between them and their mother, and the circumstances in which such would be appropriate, might have to be re-considered.
304. In all these circumstances, in my view, the best interests of these children require them to continue to reside primarily with their father and to have opportunity on weekends for them to further develop their relationship with their mother. Changeovers for the large part will be from and to school which will eliminate the need for the parents to come into contact with one another in accordance with Dr F’s recommendation.
305. The mother lives at H Town. It would be less than 1½ hours driving time from there to I School. In my view it would be reasonably manageable for the mother to drive the children to school on Monday mornings and present them on time.

COUNSELLING

306. Dr F considered that both children require psychological assistance. She thought that B needed treatment for anxiety and the burden of concern that he is currently experiencing. She agreed with Dr X that C needed assistance with behavioural management and counselling for assistance with mood regulation and impulse control.
307. Dr F thought a suitable external psychologist should be arranged through the children’s school psychologist. This has not occurred because the father raised this matter with the principal and counsellor at the children’s school. Apparently the school counsellor thought the boys were doing well and did not require such a support. On being informed about this, Dr F remained unmoved and considered it essential that the children be assisted by a counsellor.

HOLIDAY TIME

308. Dr F said that she would be concerned if the children were to have any extended holiday time with their mother. She thought that it would be too hard emotionally for the children. Even as they grew older Dr F did not think holiday time with their mother would be in their interests. She said that adolescence brings its own challenges. In any event Dr F was not optimistic that the father would be likely to facilitate such an arrangement, the inference being that the changeovers involved would probably involve unpleasant behaviour between the parents which would be distressing for the children. Dr F said that for these children, the priority was for them to be able to go to school without any bad behaviour. She said that this was the important protective priority for these children who have had so much emotional turmoil.
309. I accept this.

GRANDPARENTS

310. As indicated above Dr F said the children have a close and loving relationship with their maternal grandparents. She said she thought it was appropriate for the children to spend some time with them.
311. The ICL proposed that the children have the opportunity to have their annual skiing holiday with their grandparents on condition that the mother not attend. Dr F appeared to provide what I thought was lukewarm support for such holidays.
312. There is something to be said for the pleasure such holidays would offer the children. But the grandparents have been brutally honest about the very poor regard they have for the father and their lack of commitment to supporting the children having a relationship with their father. They are also extremely frustrated that the children are not living with their daughter. Perhaps of even more significance, the maternal grandfather indicated that he would have difficulty managing the children during such a holiday without the assistance of the mother. Accordingly, it was submitted on behalf of the mother that the mother be permitted to participate in such a holiday.
313. Unfortunately, as indicated above, in my view and that of Dr F, the grandparents did not manage the children’s visit to them in October 2014 with the sensitivity expected of them. In all the circumstances I am not persuaded that the likely benefits of such a holiday would outweigh the emotional risks to the children.
314. I accept that the grandparents and the children have a very close relationship and that the grandparents love the boys dearly. Like the mother, the grandparents are devastated by what has occurred. Unfortunately in the circumstances of this very complex case the grandparents will have to maintain and develop their relationship with the children during the children’s time with their mother.

I certify that the preceding three hundred and fourteen (314) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 21 September 2015.

Associate: Annette Turner
Date: 21 September 2015

ANNEXURE A

MINUTE OF ORDER – FATHER

1. That the father, Mr Jackman, shall have sole parental responsibility for the children, B, born … 2004, and C, born … 2006.
2. That the children live with the father.
3. That the mother spend time with the children on the following basis and at the following times:

(a) Each alternate Saturday from 9:00am until 5:00pm
(b) On Mother’s Day from 9:00am until 5:00pm.

4. That the father shall advise the mother by email of any sporting, social or other extra-curricula activities which the children may attend and which are scheduled to occur during the mother’s time with the children in accordance with order 3(a) herein. The mother shall ensure the children’s attendance at the activity if it is held during her time with the children, otherwise if the mother cannot ensure the children’s attendance then order 5 herein shall apply.
5. In the event the mother is not available to spend time with the children in accordance with order 3, then the mother shall notify the father by email as soon as possible and the father shall propose three (3) alternative times of which the mother shall select one (1) and notify the father by email of her choice.
6. In the event the children are not available to spend time with the mother in accordance with order 3(a) herein, then the father shall notify the mother at least seven (7) days prior by email and the father shall propose three (3) alternative days for make-up time, of which the mother shall select one (1) and notify the father by email of her choice.
7. That in addition to order 6 herein, the father may suspend the mother’s time with the children on no more than six (6) occasions every calendar year provided that he has given at least two (2) weeks notice by email to the mother and provided he has offered the mother make-up time by giving the mother a choice of at least three (3) days for each suspended day, of which the mother shall select one (1) and notify the father by email of her choice
8. That for the purposes of changeover, the father or his nominee shall deliver the children to the mother at the McDonalds Restaurant, Suburb E, and at the conclusion of the mother’s time with the children, the mother shall return the children to the father or his nominee at the McDonalds Restaurant, Suburb E.
9. That each parent is to notify the other by telephone as soon as reasonably practicable in the event either of the children require medical treatment by a hospital, ambulance or emergency health facility when the children are in their care.
10. That the father shall provide copies of school reports including `Naplan’ results to the mother within two (2) weeks of such a report being available to the father.
11. That each parent shall keep the other informed as to their current residential address and telephone number and shall notify the other within 48 hours of any change.
12. That the mother is restrained from attending any school in which the children are enrolled.

MINUTE OF ORDER – MOTHER

1. That all previous parenting orders be discharged.

As to live with

2. That the children B (born … 2004) and C (born … 2006) live with the mother.

As to parental responsibility

3. That the mother have sole parental responsibility for the children. As to day to day care, welfare and development
4. Each parent shall have responsibility for each child’s day-to-day care, welfare and development whilst the child is in the care of the parent.

As to time and communication between the children and the father

5. That the children spend time with the father as follows:

During each NSW gazetted school term

1. Every alternate weekend commencing at the conclusion of school on Friday and concluding at the commencement of school the following Monday.
2. The alternate weekend is to begin on the first weekend of school term 3, and on the second weekend of school term in term 1, 2 and 4.

100. Changeover at the commencement and conclusion of time is to occur by collecting and returning the children to school, and:
     1. In the event that either or both children are not attending school on a Friday when time is to commence, changeover shall occur at 3:00pm at Suburb D McDonalds.
     2. In the event that either or both children are not attending school on a Monday when time is to conclude, changeover shall occur at 9:00am at Suburb D McDonalds.

During the NSW gazetted school holiday periods falling in December / January

4. In even numbered years, time is to commence at 7:00pin on 24 December and conclude at 7:00pm on 14 January the following year; and
5. In odd numbered years, time is to commence at 7:00pm on 26 December and conclude at 7:00pm on 16 January the following year

During the NSW gazetted school holiday period falling at the end of term

6. For half of the school holiday period as agreed between the parents and failing agreement, during the second half of the holiday commencing at 3:00pm on the mid point Sunday and concluding at the commencement of school on the first day of term 2.

During the NSW gazetted school holiday period falling at he end of term 3

7. For the entirety of the school holiday period, commencing from the conclusion of school on the last day of term 3 and concluding at the commencement of school on the first day of term 4.

6. The children will live with the mother for the entirety of the NSW gazetted school holiday period falling at the end of term 2.
7. During school holiday periods, all changeovers not occurring at school shall occur at Suburb D McDonalds.
8. If the children are not otherwise spending time with the father on Father’s Day, they will spend time with him on the weekend on which Father’s Day falls in accordance with the usual arrangements during school term outlined at order 5(a) and 4(b).
9. If the children’s time with the father falls on the weekend on which Mother’s Day occurs, the father’s time with the children will be suspended for that weekend.

As to children’s schooling

10. The mother may enrol the children at H School.
11. Within 7 days of the date of these orders, each parent shall make all necessary arrangements to ensure:
    1. That they each receive a copy of all school reports and other documents prepared in relation to either or both children;
    2. That they receive notification of all school activities that they may wish to attend;
    100. That they are informed of parent teacher nights and the school is informed should they intend to attend; and
12. In the event that the children are taken from the school for emergency, remedial or other treatment, that each of them is notified as soon as practicable.
13. The father is permitted to attend any extracurricular activity involving the children which would ordinarily be attended by a parent and shall provide the mother with 24 hours notice of his intention to attend such an activity.

As to the children’s medical needs

14. In the event that either or both children suffer a medical condition or require medical attention while in the care of either parent:
    1. The other parent is to be notified as soon as practicable;
    2. The other parent is to be provided with the full details of the name and address of the practitioner, the medical facility attended and the treatment provided to the child as soon as practicable.
15. Other than in the case of an emergency, the children shall attend on the Suburb E Medical Practice or the H Town medical practice as their general practitioner.

Exchange of information

16. Each parent shall provide to the other an e-mail address for the purpose of communicating about the children.
17. Each parent shall provide to the other addresses and telephone numbers for the children while the children are in their care.
18. Each parent will ensure that the children have their mobile phone turned on, charged and in working order from 6:00pm – 7:00pm on Tuesdays and Thursdays that the children are with them.

Injunctions and restraints

19. Each party is restrained from denigrating the other party and any or all members of the other party’s family to or in the presence or hearing of the children and must ensure that no other person does so.
20. Other than in the case of an emergency in the event that either party wishes or needs to communicate with the other concerning the children such communication is to be forwarded by e-mail.
21. The mother shall continue her attendance upon her psychologist Ms J and shall comply with all recommendations made by Ms J in relation to the frequency and duration of her treatment.

Dispute resolution

22. In the event the parties consider they are in dispute about these terms or other matters relating to the welfare of the children they will endeavour to resolve those matters without litigation and will first engage with alternative dispute resolution unless an order or intervention is urgently required.

IN THE ALTERNATIVE

23. That all previous parenting orders be discharged.

As to live with

24. That the children B (born … 2004) and C (born … 2006) live with the father.

As to parental responsibility

25. That the father have sole parental responsibility for the children.

As to day to day care, welfare and development

26. Each parent shall have responsibility for each child’s day-to-day care, welfare and development whilst the child is in the care of the parent.

As to time and communication between the children and the mother

27. That the children spend time with the mother as follows:

During each NSW gazetted school term

1. Every alternate weekend commencing at the conclusion of school on Friday and concluding at the commencement of school the following Monday.
2. The alternate weekend is to begin on the first weekend of school term 1, 2 and 4, and on the second weekend of school term in term 3.

100. Changeover at the commencement and conclusion of time is to occur by collecting and returning the children to school, and:
     1. In the event that either or both children are not attending school on a Friday when time is to commence, changeover shall occur at 3:00pm at Suburb D McDonalds.
     2. In the event that either or both children are not attending school on a Monday when time is to conclude, changeover shall occur at 9:00am at Suburb D McDonalds.

4. Changeover is to take place between whenever possible between the father or his nominee and one or both of the maternal grandparents.

During the NSW gazetted school holiday periods falling in December/January

5. In even numbered years, time is to commence at 7:00pm on 24 December and conclude at 7:00pm on 14 January the following year; and
6. In odd numbered years, time is to commence at 7:00pm on 26 December and conclude at 7:00pm on 16 January the following year

During the NSW gazetted school holiday period falling at the end of term 1

7. For half of the school holiday period as agreed between the parents and failing agreement, during the second half of the holiday commencing at 3:00pm on the mid point Sunday and concluding at the commencement of school on the first day of term 2.

28. The children will live with the mother for the entirety of the NSW gazetted school holiday period falling at the end of term 2.
29. During school holiday periods, all changeovers not occurring at school shall occur at Suburb D McDonalds and changeover is to take place whenever possible between the father or his nominee and one or both of the maternal grandparents.
30. If the children are not otherwise spending time with the mother on Mother’s Day, they will spend time with her on the weekend on which Mother’s Day falls in accordance with the usual arrangements during school term outlined at order 27(a).
31. If the children’s time with the father falls on the weekend on which Father’s Day occurs, the mother’s time with the children will be suspended for that weekend.

As to children’s schooling

32. Within 7 days of the date of these orders, each parent shall make all necessary arrangements to ensure:
    1. That they each receive a copy of all school reports and other documents prepared in relation to either or both children;
    2. That they receive notification of all school activities that they may wish to attend;
    100. That they are informed of parent teacher nights and the school is informed should they intend to attend; and
33. In the event that the children are taken from the school for emergency, remedial or other treatment, that each of them is notified as soon as practicable.

As to the children’s medical needs

34. In the event that either or both children suffer a medical condition or require medical attention while in the care of either parent:
    1. The other parent is to be notified as soon as practicable;
    2. The other parent is to be provided with the full details of the name and address of the practitioner, the medical facility attended and the treatment provided to the child as soon as practicable.

Exchange of information

35. Each parent shall provide to the other an e-mail address for the purpose of communicating about the children.
36. Each parent shall provide to the other addresses and telephone numbers for the children while the children are in their care.
37. The father and the mother shall be at liberty to call the children on their mobile phone numbers.
38. Each parent will ensure that the children have their mobile phone turned on, charged and in working order from 6:00pm – 7:00pm on Tuesdays and Thursdays that the children are with them.

Injunctions and restraints

39. Each party is restrained from denigrating the other party and any or all members of the other party’s family to or in the presence or hearing of the children and must ensure that no other person does so.
40. Other than in the case of an emergency in the event that either party wishes or needs to communicate with the other concerning the children such communication is to be forwarded by e-mail.
41. The mother shall continue her attendance upon her psychologist Ms J and shall comply with all recommendations made by Ms J in relation to the frequency and duration of her treatment.

Dispute resolution

42. In the event the parties consider they are in dispute about these terms or other matters relating to the welfare of the children they will endeavour to resolve those matters without litigation and will first engage with alternative dispute resolution unless an order or intervention is urgently required.

MINUTE OF ORDER – INDEPENDENT CHILDREN’S LAWYER

1. That the father shall have sole parental responsibility for the children B (born …2004) and C (born … 2006).
2. That the father shall advise the mother of any major decision he makes pursuant to Order 1 herein and that such notice shall be in writing and not less that 72 hours prior to any such decision.
3. That the children shall live with the father.
4. That the children shall spend time with the mother as follows:

(i) each alternate Sunday from 9:00 a.m. until 5:00 p.m.;
(ii) on Mother’s Day from 9:00 a.m. until 5:00 p.m.;
(iii) on Boxing Day in each from 9:00 a.m. until 5:00 p.m.;

5. That changeover shall occur at the Suburb D Contact Centre.
6. That the father shall have leave to suspend the mother’s time with the children on the following basis:

(i) that such suspensions occur during school holiday periods;
(ii) that such suspensions occur for no more than one block of three weeks in any year;
(iii) of makeup time, and the mother shall notify the father by email of her choice.

7. That the father shall provide the children to the maternal grandparents for a skiing holiday upon receiving 14 days’ notice of the date of the holiday, and the mother be and is hereby restrained by injunction from attending that holiday.
8. In the event that the children require emergency medical care while they are with the mother, the mother shall notify the father immediately, or cause the father to be notified immediately, of the medical treatment and the treatment provider.
9. That other than for urgent medical treatment as provided for in Order 7, the mother is hereby restrained from taking the children to any medical practitioner, medical or psychological practitioner or treatment provider.
10. That the father shall provide the mother with the school reports for each of the children within seven days of those reports being released to him.
11. That the father shall provide such assistance to the school attended by the children as the school(s) may request with respect to any application for additional funding from the Education Department or any other funding program.
12. That the father shall ensure that each child shall attend the Child Adolescent Psychology Service for such time as may be required by that service and shall comply with all recommendations of that service in relation to treatment for the boys.
13. That the mother shall be and is hereby restrained from contacting with the Child Adolescent Psychology Service except where any counsellor or psychologist engaged with that service initiates contact with the mother.
14. Any counsellor or psychologist of the Child Adolescent Psychology Service is at liberty to make contact with either parent for the purposes of therapy for either child and the ICL is at liberty to provide a copy of the orders and the Singe Expert Report of Dr F to such therapist.
15. That the parties shall keep the other informed as to their address and telephone number, and shall advise the other of any change, or anticipated change, with respect to same seven days prior to any such change being effected.
16. That the mother be and is hereby restrained from attending any school in which the children, or either of them, are enrolled unless invited by the Principal or Vice Principal.
17. That the parties be and are hereby restrained from denigrating the other party, or any member of the other party’s household, in the presence or hearing of the children and shall remove the children from the presence of any third party who engages in such conduct.
18. That the parties be and are hereby restrained from discussing these proceedings or any matter arising from these proceedings including showing the children any document filed in or with respect to these proceedings and shall remove the children from any third party who attempts to do so.