Freedom Law

Jones v Dunkel Rule – what does it mean?

Jones v Dunkel Rule – what does it mean?

After the judge had finished summing up a juryman asked a direct question seeking further guidance upon the significance of the fact that the defendant Hegedus could have given evidence and did not. His question was: “Rightly or wrongly I have it in my mind that the defendant could have come here today and given evidence. Am I entitled to regard that in my mind as a weakness in the case of the defendants, that he did not?” The judge said: “Counsel for the defendant has the responsibility for the conduct of the defence. Counsel decided not to call evidence, and having directed you already with regard to that matter I do not propose to say anything more to you.” Counsel for the plaintiff then intervened and in the course of doing so referred to what Jordan C.J. had said in De Gioia v. Darling Island Stevedoring and Lighterage Co. Ltd. (1941) 42 SR (NSW) 1; 59 WN 22 , and submitted “when the matter goes to the jury then I do submit that the jury are entitled to take into consideration that here was a case where on the merits there was one person who could have told them the facts and they have no answer from that person”. Counsel for the defendants then submitted that the plaintiff had the onus of proof “and the fact that the defendant does not call any evidence does not absolve the plaintiff from proving her case”. The trial judge then gave a further direction as follows: “This is the position, the defendant having called no evidence it is a matter of common sense that you should accept the plaintiff’s evidence with respect to the facts as being accurate. The fact that the defendant Hegedus has not gone into the box and offered any explanation leaves you in this position, that you can accept the facts given by the plaintiff as proved, but the question then is whether you should find negligence against him as a matter of inference to be drawn from those facts, and that is the question for you, whether you think from the proved facts an inference of negligence ought to be drawn. If you think so, the plaintiff is entitled to your verdict. If, on the other hand, you think no such inference can be drawn then the verdict must go against the plaintiff and in favour of the defendant.” (at p312)

8. I regard this direction as incomplete and because the trial judge gave it as part of his answer to the juryman’s question and after counsel for the plaintiff had objected to the earlier part of that answer, I think O. XXII, r. 15, does not prevent the misdirection being taken as a ground of appeal. (at p312)

9. In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. (at p312)

10. Taking the summing-up as a whole I think the first and second matters to which I have referred were covered adequately but I do not think that the third was referred to at all and in giving the guidance that the juryman sought not only was no reference made to it but the distinction made in the course of the summing-up between “proved facts” and “inferences” was emphasised and the impression was conveyed that once the jury came to the point of drawing inferences the defendant’s absence from the witness-box could have no significance. To use the words of Smith J. in Black v. Tung [1953] VicLawRp 84; (1953) VLR 629 : “The charge therefore withdrew from their consideration a matter which, if there was evidence proper to be submitted to them, they were entitled to regard as rendering more probable the inferences as to negligence and causation contended for by the plaintiffs” (1953) VLR, at pp 634, 635 . In my opinion this entitled the plaintiff to a new trial. (at p313)

11. The Full Court was, it appears, inclined to think that there was no case to go to the jury and being of that view it rejected the argument that the failure of Hegedus to give evidence could be relied upon to supply the deficiency of evidence. I agree with the Full Court that the failure of Hegedus to give evidence could not be used to fill gaps or to convert suspicion into inference but I treat this as a case where the failure to give evidence could be used to assist the jury in deciding which of the inferences open to them they should draw. (at p313)

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Freedom Law The Family Law Specialist

1300 365 108

Overseas divorce – property settlement time limit does not apply

Overseas divorce – property settlement time limit does not apply


  1. In my view, the legislation is clear. “Divorce order” relates to a divorce obtained pursuant to the Family Law Act. The statutory limitation in relation to property settlement applies only to parties to a divorce order.
  2. No part of the legislation, including the definition of “matrimonial cause”, would lead to the conclusion that the term “divorce order” should apply to a divorce obtained overseas by order or otherwise. The term “divorce order” is used consistently throughout the legislation – pertaining to Australian divorces exclusively.
  3. It may seem to be an anomaly, that foreign divorces recognised under Australian law do not have the same temporal limitations imposed where the parties seek a property settlement in this country. There is no doubt that a divorce may be obtained in another country with different administration and different limitation periods. The Act clearly has provided a limitation period only for Australian divorces.
  4. For these reasons it cannot be accepted that, on an ordinary construction of the relevant sections of the Act, an application for property settlement in circumstances where there is a foreign divorce recognised pursuant to s 104, requires leave after the expiration of the time provided by s 44(3).
  5. The appeal should be dismissed.

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Was Leave Pursuant to s 44(3) Required?

  1. His Honour’s findings with respect to s 44(3) are premised on leave pursuant to that section being required where parties are divorced by the law of a country other than Australia (at [185]-[193]). No ground of appeal challenges, in terms, that premise, nor do any submissions made by the wife or on her behalf.
  2. His Honour’s premise was based on one view – possibly the then predominant view – of then existing authority. Subsequently, this Court has decided in Anderson & McIntosh (2013) FLC 93-568, after considering existing authority and careful arguments in respect of the provisions of the Act and their meaning, that leave pursuant to s 44(3) is not required in respect of a divorce obtained overseas.
  3. On an appeal by way of rehearing, this Court is bound to apply the law as at the date of the hearing of the appeal (see, Coulton v Holcombe [1986] HCA 33(1986) 162 CLR 1 at 7). This appeal was heard on 2 December 2013 and the decision in Anderson was handed down on 13 December 2013. However, the effect of the decision in that case is to determine the meaning of the terms of the Act applicable on, relevantly, 2 December 2013 (when the appeal was heard), and on 27 July 2011 when his Honour heard the proceedings; 13 March 2012 when his Honour delivered judgment; and, indeed, on 26 May 2000 when the wife filed her application for settlement of property in the Family Court.
  4. As a result, his Honour was in error in determining that the wife required leave pursuant to s 44(3) of the Act to institute her proceedings for settlement of property.
  5. Although no ground of appeal asserts, in terms, an error of law in this respect and although no submissions were made to that effect, “if the judges of an appellate court hold the decision of the trial judge to be wrong, they should correct it” (Warren v Coombes [1979] HCA 9(1979) 142 CLR 531 at 553, per Gibbs ACJ, Jacob and Murphy JJ).
  6. As a result, the appeal, insofar as it challenges the alternative order made by his Honour in respect of leave pursuant to s 44(3), must succeed.

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Siblings reunited to live with their father

Siblings reunited – although siblings living separately to each other at time of final hearing, their best interests lay in living together with their father who was better able to regulate his own and the childrens’ emotions compared to the mother

Exton & Fahey 


  1. The Family Consultant was strongly supportive of the children being reunited in their father’s care. She described the two boys as having been an absolute pleasure to meet and that it had been a mutually enjoyable interview. She explained that she had not seen the different side of either child described by the parents.
  2. The Family Consultant was very firm to say that the boys should be together, that they were physically affectionate with each other and showed a really good connection on each occasion she saw them. Significantly she said that in her view each child felt a burden of guilt about their separation and that there could be long lasting repercussions if they were separated.
  3. The Family Consultant stressed the significance of the sibling relationship, “They won’t have shared experience; they will grow apart. If one parent can meet their needs, then they should be together”.
  4. The mother cross-examined Ms R. The Family Consultant stood firm about the level of time with the mother she considered appropriate in the event that the younger child went to live with his father. She challenged the mother on her proposition that it would not be fair for the child if he spent as little as one weekend per term with her.
  5. The Family Consultant explained that none of what had happened to the children had been fair for them but they had a great need to lead a settled and predictable life. She also explained to the mother that in her professional opinion the mother’s behaviour provoked the older child to behave in a certain way; that his father’s behaviour did not provoke the same response.
  6. The Family Consultant also explained that she had heard of evidence given in the trial that concerned the mother, that the mother struggled physically with the older child. In the view of the Family Consultant there needs to be someone present during all periods of time for the time to be a benefit.
  7. Having read the report of the speech therapist for the younger child the Family Consultant agreed with the mother that the child was doing very well. She went on to say that if he was doing well then he would be likely to continue to do well in the care of his father.
  8. The Family Consultant also identified that the mother treated the two children very differently and that the boys were aware of the differential treatment and that posed difficulties for their relationship. That evidence resonated with the evidence of the mother and the maternal grandfather that the younger child was a good child with no behavioural problems and that the older child was a naughty and difficult child.
  9. Finally, the Family Consultant explained to the mother that it was her inability to regulate her own emotions that was the issue, “You are responsible for your behaviour and controlling your emotions. If you can’t control yourself and help them regulate their emotions then it’s a problem”. At that time the mother appeared to understand that the Family Consultant was not directing her recommendations to fairness between adults but the fundamental needs of the children and which of the parents could meet those needs.

Whether it would be preferable to make the order that would be least likely to lead to the institution of future proceedings in relation to the child

  1. For the past 15 months the children have been separated from each other. The orders providing for the children to spend time with each other and the parent with whom they were not living have required the children to do extensive travel, more importantly they have not been complied with by the mother in more than one respect. The mother failed to return the older child after the 2015/2016 school holiday period. The mother did not comply with the orders for her time with the older child to be supervised by her father. The mother has not ensured that the father spends time with the younger child.
  2. The change for the children which will most stabilise their situation is for them to be re-united with each other. The evidence strongly supports a finding that the father at this stage of their lives is better equipped to meet their needs and on that basis an order will be made that the younger child B moves to live in the father’s household.
  3. Although the younger child has made good progress especially with his speech and has enjoyed the greater calm of the mother’s household, he has asked his father about living with him and his brother. To maintain the status quo, of separation of the children, would inevitably lead to further applications, most particularly if the mother chose to move to a new location with her partner.

Family Report Process

What is a family report and how is it used?

The court or an independent children’s lawyer (if one has been appointed) may organise a family report during family law proceedings. A family report provides information about you, your children and your family to help the court identify what is in your children’s best interests. A family report is one of many documents that the court will consider when making decisions about your children.

A family report may include recommendations to the court about:

  • parental roles and responsibilities
  • how your children will spend time and communicate with their parents, family members and other significant people in their lives
  • any safety issues
  • support services or interventions that may help the children or adults, like attending a post-separation parenting program, for example.

Who writes the family report?

An accredited professional, such as a social worker or psychologist, will write the family report. This report writer usually has a lot of experience working with children and families. The court considers report writers to be independent experts in child and family matters.

How is the information for a family report collected?

  • The report writer will speak to the adults and children.
  • The report writer will decide whether they need to see the children and adults together as well as individually.
  • The report writer usually sees everyone at their offices and does not usually attend your home.
  • The report writer will determine who they need to see and speak to during the course of your scheduled appointment/s.
  • The adults and children involved in the court proceedings will also be involved in the family report assessment.
  • The report writer may involve other household members and significant others (eg extended family and friends) if they think it is necessary.

The report writer may collect information about:

  • your children and their individual needs
  • your children’s relationships with family members and significant others
  • your children’s views – if they want to tell the report writer
  • your views about what is in your children’s best interests
  • your family history, including the history of parenting roles and arrangements and the relationships between the adults (past and present)
  • what is currently happening in your child’s life
  • issues relevant to the children’s and adults’ safety.
  • If you have any questions about your family report appointment you can ask the independent children’s lawyer (if there is one), your lawyer (if you have one) or the report writer.

How to prepare for your appointment with the report writer:

  • think about what is best for your children and why you think it is best for them.
  • Tell the children they are going to see someone that is helping you to work out the best way for the children to spend time with people who are important to them.
  • The amount of time the appointment takes will vary (depending on the issues and the number of people involved) but you will probably be there for most of the day.
  • Whoever is bringing the children needs to bring someone to look after them while the adults are being interviewed.
  • Bring food, drinks and some things to keep the children entertained.
  • The adults should bring along, or have in mind, a play activity they can do with the children as the report writer may want to observe the children spending time with the adults.

How will the report writer use the information they collect?

The report writer will use the information they collect during this process to write the family report. The information you provide to the report writer cannot be kept confidential. The court can access any information collected by the report writer, even if it is not used in the final family report. If the matter goes to a hearing, the report writer may be required to give evidence at your hearing.

Who will see the family report?

Once the report writer has finished writing the family report, a copy will be given to:

  • the court
  • the independent children’s lawyer (if one has been appointed)
  • you or your lawyer (if you have one)
  • the person you are in dispute with or their lawyer (if they have one).

No one else will be given or shown a copy of the report.

Who will tell my child about the court’s decision?

Usually the parents explain the court’s decision to the children. In some instances, the report writer and the independent children’s lawyer may explain the outcome to your children when the court has made its final decision.

What if I have concerns about the report or the report writer?

If you have concerns about the report, the process used, or the report writer you can talk to us about what options are available in these circumstances.

What if I have concerns about my safety?

Sometimes people have concerns about their safety, or their children’s safety, around other people who will be involved in the family report. It is important for the report writer to know if you are concerned about your safety or if there are protection orders in place, so steps can be taken to ensure the safety of everyone involved in the report process.

More information

If you would like more information about a family report, please contact us at Freedom Law for an in person or online consultation.

Making decisions for your children when you separate

Making decisions for your children when you separate

Sometimes parents feel that it is best for children to make up their own minds about where they want to live. Young children are not usually ready for this responsibility as they are not generally mature enough to make this important decision. Having to make such a decision places a heavy burden on them and having to choose between their parents can lead them to feel guilty about the parent they have not chosen. Usually the best decisions about where and how the children live are those made together by the parents. However, parents should consider the feelings of their children and be willing to listen to them. Children should not be required to express a view when to do so would mean reprisal from a disappointed parent. Parents normally know their children’s needs and are usually in a better position than anyone else to make decisions about their children’s future. If parents are unable to make these decisions themselves because of conflict, family and child mediators and counsellors can help them to negotiate with each other. Mediators and counsellors can be contacted through the Family Court of Australia Mediation Service and through groups such as Relationships Australia, Centacare and Anglicare. They may assist parents who wish their children to be involved in decisions and they can help parents assess the needs of their children. If an agreement is still not possible at the talks, it then becomes necessary for the Family Court judges to make a decision. The judges will make decisions which they believe are in your children’s best interests, whether you agree with those decision or not. The Family Law Act guides judges as to what facts they need to consider when determining what is in a child’s best interests.

Messy separations – how to avoid hurting the children

Messy separations – how to avoid hurting the children

Things to avoid

Children are usually very loyal and trusting so it is important to look at the ways in which you behave with them to make sure you are not abusing their loyalty and trust. Set out here are some of the subtle ways in which parents can take advantage of their children in the midst of a messy separation.


– using your children as messengers between the two of you teaches children that adults cannot talk honestly or directly to each other.

‘I Spy’

– asking a child to report on the other parent is destructive – it is using a child for your own ends.

‘Your father is a slob’ ‘Your mother is a fool’

– anger between parents has a destructive effect on children.

‘Disneyland daddy’ ‘Mummy Santa’

– when visits are used just to give the child a good time, or outings and gifts take the place of normal parenting.

‘I still love him but he doesn’t love me’ ‘I want to keep the house for the kids but she wants to sell it’

– this puts pressure on your children to take sides.

‘You can go if you like … but we are going on a picnic’

– don’t set up competing activities, it spoils children’s pleasure in being with either parent.

Books for children dealing with separation and divorce

Books for children dealing with separation and divorce

  • ‘It’s Just Different Now’
    Espie, Linda
    Spectrum Publications, Richmond 1999
    – For children aged 3-7 years
  • ‘Mom’s House, Dad’s House: A Complete Guide for Parents who are Separated, Divorced or Remarried’
    Ricci, Isolina
    Fireside Books/Simon & Schuster,
    New York, 1997
  • ‘Two of Everything’
    Cole, Babette
    Jonathan Cape, London, 1997
    – For children aged 5-12 years
  • ‘Dad’s Place : A Guide for Fathers After Divorce’
    Burrett, Jill
    Angus & Robertson, Sydney NSW 1996
  • ‘I have Two Dads’
    Wilson, Lorraine
    Illustrated by Chantal Stewart. CIS Cardigan
    Street, Carlton, Victoria 1995
    For children
  • ‘The Suitcase Kid’
    Wilson, Jacqueline
    Illustrated by Nick Sharatt. Yearling
    Books/Doubleday, London, 1993
    For children
  • ‘To and Fro Children – A Guide to Successful Parenting after Divorce’
    Burrett, Jill
    Allen and Unwin North Sydney 1991
  • ‘At Daddy’s on Saturdays’
    Girard, Linda Walvoorol
    Albert Whitman 1987
  • ‘Break-up’
    Padoan, G. – Milan, Italy
    Happy Books 1987
  • ‘Dinosaurs Divorce’
    Brown, L and Brown M
    Little, Brown 1986
    – For children up to 10 years
  • ‘Jason Goes to Stay with Dad’
    Liddicut, J. – Richmond, Vic
    Ossie Books, 1986
  • ‘When Jason’s Dad Moved Away’
    Liddicut, J. – Richmond, Vic
    Ossie Books, 1986
  • ‘Daddy Doesn’t Live Here Anymore’
    Boesehold, B. – New York
    Western Publishing Co. Inc., 1985
  • ‘Megan’s Book of Divorce’
    Jong, E – London
    Granada, 1985
  • ‘What Kind of Family is This?’
    Sevling, B – New York
    Western Publishing Co. Inc., 1985
  • ‘High Pavement Blues’
    Ashley, B. – Harmondsworth & Middlesex
    Puffin Books, 1984
  • ‘Mom and Dad Don’t Live Together Anymore’
    Stinson, Kathy
    Annick Press, 1984
  • ‘Breaking Up’
    Willkott, F. – London
    William Collins Sons & Co. Ltd, 1983
  • ‘What am I Doing in a Step-Family?’
    Berman, C. – Melbourne, Vic
    Angus & Robertson, 1983
  • ‘Bring to a Boil and Separate’
    Hadley Irwin – New York
    Atheneum, 1981
  • ‘I Have Two Homes’
    Althea – Cambridge
    Dinosaur Publications, Ltd, 1980
  • ‘My Mom and Dad are Getting a Divorce’
    Bienenfeld, F. – St Paul, MN
    E.M.C. Corp., 1980
  • ‘So Mum and Dad have Separated’
    Messenger, D.R. – Melbourne, Vic
    Listen and Learn Productions, 1980
  • ‘Divorce Can Happen to the Nicest People’
    Mayle, P. – Melbourne, Vic
    Sun Books, 1979
  • ‘Divorce is a Grown Up Problem’
    Sinberg, J. – New York
    Avon, 1978
  • ‘It’s not the End of the World’
    Blune, J – London
    (Piccolo) Pan Books, 1972

Look for these and others in your local library or book store

Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales

Relocation order sought by Father that Mother and children move from Queensland where they have been living for 12 months to New South Wales


  1. On any view of the evidence the fact is that the father has had virtually no relationship with Y and his relationship with X has been significantly strained due to the distance between he and the child post separation.
  2. The father himself created some distance by moving to the (omitted) in February 2016, shortly after separation.
  3. The mother has added to that distance by relocation to Queensland.
  1. In assessing the evidence at this interim stage, I am satisfied that it is more probable than not that the mother and the children have been living in Queensland since relocation in June 2016.
  2. These are interim proceedings. It is clearly the mother’s intention that she continue to reside in Queensland since her relocation. That will no doubt be her application on a final basis.
  3. If I caused the children to be returned to New South Wales this will cause a disruption to their life. A life that on my findings has been settled for approximately 12 months in Queensland following relocation. This has the potential to be disadvantageous to the children.
  4. Of course a move to New South Wales might place them closer to their father. The disadvantage of the move must be weighed against any advantage to be gained in having a meaningful relationship with the father.
  5. It is not the father’s application that the children should reside with him in the (omitted) area. It is his application that the children reside with the mother in the (omitted) area.
  6. I would therefore need to make a coercive order as to where the mother was to live.
  7. In Oswald & Karrington[5] the Full Court said that the court’s power to make a coercive order should be exercised only in rare and extreme circumstances.
  8. The Full Court in Sampson & Hartnett [6] said that there is an imperative for the court to explore and consider alternative to restricting freedom of movement particularly when the coercive order will require a party to relocate contrary to that party’s proposal, and involve a primary care giver undertaking that role in a place not of that parents choosing.
  9. There is no evidence before me to suggest that the father does not have freedom of movement. That is, the father does not say he cannot afford to travel to Queensland nor does he say that work commitments prevent him from travelling to Queensland.
  10. He will need to establish a relationship with Y and reconnect with X. This will require shorter visits and perhaps more frequent visits however I am not persuaded that based on the evidence currently before me that the father cannot or would not travel to Queensland for the benefit of his children.
  11. Furthermore, I am not persuaded that there are rare or extreme factors that warrant me exercising my discretion to make a coercive order. There has been too much water under the bridge. These children and their mother have resided in Queensland for approximately 12 months.
  12. In those circumstances, weighing the two competing proposals with regards to the disadvantages to the children, I am satisfied that it would be more disadvantageous to remove them from Queensland at this time.

Relocation cases are determined according to children’s best interests

Relocation cases are determined according to children’s best interests

Relocation cases:

  1. Parenting proceedings involving relocation are to be determined in the same manner in which all parenting proceedings are determined. That is, by following the legislative framework set out in the Family Law Act 1975 (Cth) (“the Act”) with a view to determining what orders, if any, are in the best interests of the children.
  2. In Zahawi & Rayne,[3] the Full Court noted:

47. All applications for parenting orders before the court involve a situation that, axiomatically, is not in the children’s best interests. What is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve, again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests. Concomitantly, Gummow and Callinan JJ said in U v U:

…The reality is that maternity and paternity always have an impact upon the wishes and mobility of parents: obligations both legal and moral, the latter sometimes lasting a lifetime, restrictive of personal choice and movement have been incurred.

48. “Relocation cases” are no different from other applications for parenting orders in that respect. Like all applications for parenting orders, an application to have the children live with a parent significantly geographically remote from the other parent is to be determined by the children’s best interests. However, the issues in a “relocation case” are, by reason of the proposed geographical separation of parents from their children, often significantly more acute and all the more so in cases of proposed international relocation. And, of course, that same factor will usually render more acute the burden or burdens to be borne by one parent or the other, including restrictions on their freedoms.

  1. In short, there are no special tests that apply to such cases and each case must therefore be determined on its own facts. While the Full Court noted that, as a result of the consequences of a proposed relocation, the burdens rendered on the parties may be more acute, it is not the case that the party desiring to relocate needs to establish “compelling reasons” for the relocation.[4]

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Brisbane/ Gold Coast/ Sunshine Coast / Townsville

Family Contact Service evidence assists father gaining more time with children



(delivered ex tempore)

  1. Orders were made by consent on 21 September 2017, which include, by order 6, that the father spend each Wednesday from 4:00pm to 6:00pm and each Saturday from 8:00am to 10:00am in supervised time with the children at a Family Contact Service for the first six occasions that he spends that time with them.
  2. Order 7(c) of those orders provided that the father obtain and meet the costs of a report from the professional supervisor at the Family Contact Service at the conclusion of the six supervised occasions of contact and that provided that the report does not raise any significant concerns about the time spent, the requirement for supervision cease.
  3. The Court has been provided with a report from the Family Contact Service, Ms J, and that gives a detailed account of the interaction between the father and the children on Saturday 30 September, Saturday 7 October, Saturday 13 October, Wednesday 18 October and Saturday 21 October 2017.
  4. Without quoting from it, on my reading of that account from the Family Contact Service, the time that has been spent between the father and the children has gone extremely well. There is a sense of joyousness about the interaction, the children seeming relaxed and comfortable with the father and the father is behaving appropriately with the children. There is nothing in that report indicating that there has been any behaviour which would suggest the children have not enjoyed their time with their father.
  5. This is contrary to what is said by the mother in paragraph [21] of her affidavit affirmed 1 November 2017, wherein she states:
    The children have been upset and difficult to settle after their time with the applicant. They are having real difficulty with the time with their father at present.
  6. Having regard to the fact that Ms J is an experienced supervisor, she has provided a detailed and comprehensive account of the time that the children have spent with the father and that she is non-partisan, I accept her account of how the children spend time with the father. There is no evidence that the children are having real difficulty with their time with the father at present. Notwithstanding this, the mother has not allowed the father to have time on, I understand, two occasions since the supervised time finished.
  7. The issue is what occurs between now and the time for obtaining a family report. Orders have been made for the parties to attend an appointment for that purpose on 31 January 2018.
  8. In my view, there should be some variation of the orders that were made on 21 September 2017. There have been competing proposals in relation to the time that the father spends with the children:
    1. the father proposed that the Saturday time for the next four weeks be extended from 10:00am to 6:00pm and the Wednesday arrangement remain in place. After four weeks, he proposed that the time be extended from Friday evening to Sunday evening each alternative weekend and the Wednesday arrangements remain in place.
    2. the mother proposed increasing the Saturday time by two hours so instead of time being from 8:00am to 10:00am it run from 8:00am to 12:00pm and the Wednesday remain the same.
  9. The orders that I have made are in effect a compromise between the competing positions and provide an opportunity for the father to spend meaningful time with his children but on a more limited basis than that which he proposed. Given that there are clearly ongoing tensions between the parents regarding arrangements for the children, in my view the graduated approach which is reflected in the orders is one that is likely to lead to less tension. In view of the extremely positive account of the time that the father spent with the children in a supervised setting, in my view the children will benefit from spending a longer period of time with their father.
  10. The mother filed an affidavit sworn 1 November 2017 which detailed what she regarded as breaches of an intervention order which occurred in the period up to 9 September 2017. These include allegations of telephone calls made by the father to the mother and instances where the mother saw the father drive past and then pause and look into the window of the business operated by the mother in (omitted) Street.
  11. The affidavit also sets out a translated Facebook message from the father’s new partner to the mother which was highly derogatory of the mother (particularly her appearance). That text message was sent in May 2017. The message was plainly inappropriate and was accepted as such by counsel for the father and I expect that no further similar communications will be made by the father’s new partner. Text messages between the mother and the father which were tendered to the court indicate that they both have a poor approach to communicating with one another.
  12. The allegations made by the mother in her most recent affidavit relate to events which are alleged to have occurred prior to the orders made on 21 September 2017. There is no evidence of any allegation of further incidents since those orders were made. I do not believe the allegations of family violence are such to affect the father’s capacity to parent or to put the children at risk whilst in his care.
  13. The mother made allegations of drug use in her affidavit, in particular marijuana use. The allegations are vague and I note that the mother has not sought orders that the father submit to drug tests. The evidence does not establish on an interim basis that the children are at risk because of the father’s alleged drug use.
  14. In my view, these orders are appropriate and are in the best interests of the children. They were formulated by the Court following discussion with the party’s representatives in open Court. I have made these orders having regard to the principles stated in Goode v Goode [2006] FamCAFC 1346(2006) 36 Fam LR 422 at [82].