Aitchison & Elkers - [2023] FedCFamC2F 1476

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Aitchison & Elkers [2023] FedCFamC2F 1476

File number(s): ADC 1613 of 2011

Judgment of: JUDGE McGINN

Date of judgment: 16 November 2023

Catchwords: FAMILY LAW - CHILDREN – Previous orders made – Third application – Child 11 years at trial – Child withheld then compliance with order – Parents not lived together since child’s birth – Co-parenting relationship – Support for other parent’s relationship – Lack of support in the past – Lack of support affecting school attendance – Risk of repetition – Sibling relationships – Risk of future disruption of parental relationship

Legislation:
Evidence Act 1995 (Cth) s140

Family Law Act 1975 (Cth) ss60B, 60CA, 60CC, 65DAA

Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021

Cases cited:
Andrew & Delaine [2009] FamCA FC 182

Australian Securities and Investments Commission (ASIC) v Hellicar; ASIC v Brown; ASIC v Gillfillan; ASIC v Koffel; ASIC v Terry; ASIC v O’Brien; ASIC v Willcox; ASIC v Shafron [2012] HCA 17; 247 CLR 345

Bielen v Kozma [2022] FedCFamC1A 221; 6 Fam LR 59.

Carriel v Lendrum [2015] FamCAFC 43

D & P [2006] FamCA 170

DL & W [2012] FamCAFC 5; (2012) FLC 93–496

Dodd & Dodd v Stuart (1976) 1 FamLR 111, 540

Fairfield & Hoffman [2021] FamCAFC 151

Friscioni & Friscioni [2010] FamCAFC 108

Goode & Goode 92006) FLC 93-286

Hall and Hall [1979] FamCA 73; (1979) FLC 90 – 713

Hannigan & Sorraw [2010] FamCAFC 257

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Muldoon & Carlyle [2012] FamCAFC 135; (2012] FLC 93 – 513

Oakley & Cooper [2009] FamCAFC 133

Rader & Haines [2022] FedCFamC1A 156

Rice v Asplund ([1978] FamCA 87; (1979) FLC 90 – 725; 6 FamLR 570

Division: Division 2 Family Law

Number of paragraphs: 643

Date of last submission/s: 12 February 2023

Date of hearing: 11 – 15 July 2022; 29 August 2022; 21 November 2022

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Douglas Hoskins Legal

Counsel for the Respondent: Mr McQuade

Solicitor for the Respondent: Ryder Family Law
ORDERS

ADC 1613 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR AITCHISON

Applicant

AND:
MS ELKERS

Respondent

ORDER MADE BY:

JUDGE McGINN

DATE OF ORDER:

16 NOVEMBER 2023

IT IS ORDERED:
1.That all previous parenting orders in relation to the child X born in 2021 be hereby discharged.
2.That the parties have equal shared parental responsibility for X.
3.That X live with the mother other than those times when X shall live with the father as provided for in these orders.
4.That X live with the father during school terms, each alternate week from the conclusion of school Thursday (or 3:00pm if a non-school day) to the commencement of school Wednesday (or 9:00am if a non-school day) consistently with the rotation established in the orders of the court of 30 June 2021.
5.That unless the parties otherwise agree in writing, during all short school holiday periods X shall live for one half of each such period with the father from 3:00pm on Wednesday until 3:00pm the following Wednesday in accordance with the alternate week cycle pursuant to paragraph 4 herein.
6.That unless the parties otherwise agree in writing, during the long school holiday period X live for one half of each such period with the father from 3:00pm on Wednesday until 3:00pm the following Wednesday in accordance with the alternate week cycle pursuant to paragraph 4 herein and every alternate week thereafter.
7.That notwithstanding paragraph 7 hereof and unless otherwise agreed in writing, X live with the parties for Christmas as follows:
in 2023 and each alternate year thereafter with the father from 3.00pm on Christmas Eve to 3.00pm Christmas Day noting X will be in the care of the mother from 3:00pm Christmas Day to 3pm Boxing Day;
in 2024 and each alternate year thereafter with the mother from 3.00pm Christmas Eve to 3.00pm Christmas Day noting X will be in the care of the father from 3:00pm Christmas Day to 3pm Boxing Day.

8.X live with the parties for Easter as follows (unless otherwise agreed in writing):
in 2024 and every alternate year thereafter with the father from 5:00pm Easter Thursday to 5:00pm Easter Saturday provided that X live with the mother from 5:00pm Easter Saturday to 5:00pm Easter Monday;
in 2023 and every alternate year thereafter with the mother from 5:00pm Easter Thursday to 5:00pm Easter Saturday provided that X live with the father from 5:00pm Easter Saturday to 5:00pm Easter Monday.

9.That should Father’s Day fall on a weekend when X is otherwise in the mother’s care then X shall live with the father on that day from 6:00pm on the evening preceding Father’s Day to 5:00pm on Father’s Day.
10.That should Mother’s Day fall on a weekend when X is otherwise in the father’s care the mother shall live with X from 6:00pm on the evening preceding Mother’s Day to 5:00pm on mother’s Day.
11.That X live with each of the parties on the occasion of X’s birthday and the respective parent’s birthday or the birthday of any sibling as may be agreed between the parties or in default of agreement as follows:
if the birthday falls on a school day with the non-resident parent from the conclusion of school to 6:30pm;
if the birthday falls on a non-school day with the non-resident parent for a period of three (3) hours as agreed and in default of agreement from 4:00pm to 7:00pm.

12.That the parties be at liberty to travel interstate during their time with X provided that he/she gives the other party thirty (30) days’ notice in writing of his/her intention to do so provided that the parties when notifying provide an itinerary and emergency contact details.
13.That unless otherwise agreed in writing between the parties prior to a handover, handover not otherwise occurring at school shall be effected between the parents as follows:
with the mother to take X to the father’s home at the commencement of X’s time with the father;
with the father to take X to the mother’s home at the conclusion of X’s time with the father; and
with both parents to remain in their vehicle for the purposes of such handover.

14.That the paternal grandparents be at liberty to conduct any handovers on behalf of the father if the father is unable to attend.
15.That both parties be at liberty to attend all school functions and sporting events to which parents are normally invited to attend that occur in that time when X is to live with the other party only ON THE CONDITION THAT:
written consent is first had and obtained from the other party for the requesting party to attend; and
neither party approach the other at such function or event.

16.That the parties be at liberty to obtain copies of X’s school reports, newsletters and school photographs direct from X’s school provided that if there is any cost associated with same parties cover their own cost.
17.That both parties keep the other parent informed via SMS text message as to all medical issues concerning X and any illness suffered by X as well as any specialist appointments which may be arranged for her and be at liberty by operation of this Order to consult with and obtain advice from X’s medical or other treating practitioners.
18.That forthwith the parties advise the other parent by text message in the event of any illness or accident (including emergency visits) suffered by X requiring hospitalisation or other medical treatment and permit the other parent to attend at any hospital or other facility to which X has been admitted or treated.
19.That the parties do all things necessary wherever practicable to ensure X’s attendance at all extra-curricular activities they are enrolled as well as X’s attendance at all friends’ birthday parties and social events to which she is invited.
20.That the parties be restrained and an injunction be granted restraining each of them from:
abusing, denigrating or insulting the other party to or in the presence of X or allowing any third party to do so; and
discussing these proceedings or the allegations made in these proceedings with or in the presence of X or allowing any third party to do so;

21.The parties be restrained and an injunction granted restraining each of them from attending upon the other party’s residential property save and except as provided for in these orders.
22.That the mother be restrained and an injunction is granted restraining the mother from attending at X’s school during any period of time that X is scheduled to live with the father SAVE AND EXCEPT as to:
taking X to school on the Thursday coinciding with the commencement of the father’s time with X; and/or
collecting X from school on the Wednesday at the conclusion of the father’s time with X; and/or
attending at the request of either the school or the father.

23.That the parties otherwise be restrained and an injunction is granted restraining each of them from keeping X home from school on any scheduled school day, SAVE AND EXCEPT:
in the case of an emergency; and/or
in circumstances where they have obtained and provided to the other parent and X’s school a medical certificate which details X’s presenting illness and/or health concern, which in the opinion of her treating health practitioner renders X incapable of attending school.

24.That all outstanding parenting applications do otherwise stand.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN

Before the Court are competing applications for final parenting orders in respect of the child X born in 2011 (aged 12 years) (“X”).
The applicant father by his Amended Initiating Application sealed 6 May 2022 seeks (in summary form):
(a)sole parental responsibility;
(b)that X live with him;
(c)that X spend no time with the mother following a period of three months (other than when the father determines what time X spends with her mother), then X spend time with her mother for six months on alternative weekends Saturday to Sunday, then for six months on alternate weekends Friday to Saturday, then for six months on alternate weekends from Saturday to Sunday, then for six months on alternate weekends from Friday to Sunday and then on alternate weekends Friday to Monday;
(d)that X attend upon a Family Consultant acquainted with family law matters to assist with her transition to the father’s primary care;
(e)that X spend time with each party for special occasions as per paragraphs 7-11 of the final orders of 18 October 2019;
(f)that handovers that do not occur at school occur at the parents’ respective places of residence;
(g)an injunction restraining the mother from attending X’s school whilst she is in the father’s care (with exceptions);
(h)mutual injunctions against each of the parties keeping X home from school (with exceptions); and
(i)that orders 12, 14, 16-19 and 21-22 of the final orders of 18 October 2019 do continue.
The applicant father by his case outline of 8 July 2022 continued to seek the orders set out above with the addition of reimbursement of fees for the expense incurred by the father in respect of the preparation of the Family Consultant’s Report fixed in the sum of $2,000.
The respondent mother seeks by her Response to Application for Final Orders sealed 5 May 2021 (in summary form):
(a)that the parties have equal shared parental responsibility for X;
(b)that X live with the mother;
(c)that X spend time with the father as ordered by the Court;
(d)mutual injunctions against the parties precluding:
(i)abusing, denigrating or insulting the other; and
(ii)discussing the proceedings with X.
The mother in her trial affidavit of 7 June 2022 said she sought family therapy for X, herself and the father.
The mother in her case outline of 10 July 2022 sought that the orders made 18 October 2021 do continue until further order and that orders 5 and 6 made 30 June 2021 continue. The latter orders related to injunctions restraining the mother from attending at X’s school except under certain circumstances and restraining each party from keeping X home from school except under certain circumstances.
The pursuit of family therapy orders appeared then to have been abandoned.
By the time of the mother’s written submissions of 18 January 2023 the mother in addition sought an order for separate counselling as recommended by the Family Consultant in the course of the Family Consultations cross-examination. The type of counselling was not specified in the evidence other than it not being “reunification therapy” and that it should be for the purpose of informing what the father should and should not do when X is in his care.
The trial hearing was conducted over July, August and November 2022 as to the taking of evidence with the last of submissions provided in February 2023.
I express my regret and apologise to the parties in the delay in the delivery of this judgment. The nature of the parties’ respective cases and the need to review and synthesise the evidence into a comprehensive judgment has taken considerable time.
DOCUMENTS RELIED ON
The father sought to rely upon:
(a)his Amended Initiating Application sealed 6 May 2022;
(b)his trial affidavit filed 9 May 2022;
(c)an affidavit filed in reply to the mother’s affidavit sealed 23 June 2022;
(d)an affidavit of his sister a Ms J, sealed 7 May 2022; and
(e)an affidavit of the paternal grandmother a Ms K, sealed 9 May 2022.
Ms J was not required for cross examination and her affidavit evidence came before the Court unchallenged.
The mother sought to rely upon:
(a)her Response to Application for Final Orders sealed 5 May 2021,
(b)her trial affidavit sealed 7 June 2022;
(c)an affidavit of her counsellor a Ms L sealed 9 June 2022;
(d)an affidavit of X’s older brother a Mr C sealed 9 June 2022; and
(e)an affidavit of X’s teacher a Ms M sealed 15 June 2022.
It was conceded that the affidavit of Ms L was not admissible and should not come before the Court in evidence. Further, the affidavit of X’s sibling, Mr C, came not to be relied upon by the mother.
Accordingly, the Court has had no regard to the affidavit evidence of Ms L or Mr C.
A Family Assessment Report was prepared for the purposes of these proceedings dated 1 October 2021 by Family Consultant Ms B pursuant to orders of Justice Kari dated 30 June 2021. Altogether, over the years the Family Consultant has prepared three Family Assessment Reports dated 7 June 2012, 17 September 2018 and 1 October 2021 for various tranches of these proceedings. The three Reports were admitted into evidence at trial as Exhibit 9.
It was agreed that I could also have regard to the terms of the Court’s judgment delivered on 30 June 2021. That judgment was made available to the Family Consultant in these proceedings and was quoted from in the third Family Report of 1 October 2021.[1]
[1] Exhibit 9, third family Report 1 October 2021, [138]
That judgment was delivered by a different Judge of this Court (as Her Honour then was). I have had regard to that judgment for the purposes of the matters of record as to what the parties then put to the Court and when and what was ordered. I have not otherwise adopted any findings of fact in the Court’s then reasons for the making of those orders.
BACKGROUND
The father was born in 1983 and is aged 40 years.[2]
[2] Affidavit of Mr Aitchison filed 9 May 2022 [1].
The mother was born in 1981 and is aged 42 years.[3]
[3] Affidavit of Mr Aitchison filed 9 May 2022 [2].
The mother was adopted from Country O when she was a baby and brought to Australia by her adoptive parents.[4]
[4] Affidavit of Ms Elkers filed 7 June 2022 [4].
The parties had a short relationship of about one year which ended upon the mother falling pregnant with X[5] and which was followed by unsuccessful attempts to reconcile the relationship prior to X’s birth.
[5] Affidavit of Ms Elkers filed 7 June 2022 [18].
X’s parents have never lived together since her birth.
The father lives with his parents, Ms K and Mr P, in their home in Suburb Q.[6] It is a large home in which X has her own bedroom.[7]
[6] Affidavit of Mr Aitchison filed 9 May 2022 [98].
[7] Affidavit of Mr Aitchison filed 9 May 2022 [99].
The mother lives in a house in the suburbs of Adelaide.[8]
[8] Affidavit of Ms Elkers filed 7 June 2022 [15].
The mother has two older children from two different relationships, Mr C born in 1998, aged 24, and Mr D born in 2004, aged 18.[9] Mr D lives with the mother and was in year 11 at S School as at the date of trial.[10]
[9] Affidavit of Ms Elkers filed 7 June 2022 [6].
[10] Affidavit of Ms Elkers filed 7 June 2022 [8]; Family Report of Ms B dated 1 October 2021 [6].
The father is a qualified tradesperson who is currently self-employed.[11] He suffered a significant injury in 2019 in the course of his employment and has not worked since this time.[12]
[11] Affidavit of Mr Aitchison filed 9 May 2022 [101].
[12] Affidavit of Mr Aitchison filed 9 May 2022 [100].
The mother is an allied health worker employed by a government organisation[13] working in shifts.
[13] Affidavit of Ms Elkers filed 7 June 2022 [13-14].
X
X was born in 2011 and was 11 years old[14] as at the date of trial and will be 12 years by the date of this judgment.
[14] Affidavit of Mr Aitchison filed 9 May 2022 [3].
As at the date of trial X was in year 6 at T School and is performing “satisfactorily.”[15]
[15] Affidavit of Mr Aitchison filed 9 May 2022 [83].
X attends extracurricular activities after school with the mother.[16]
[16] Family Report of Ms B dated 1 October 2021 [9].
In early 2021, a general practitioner suggested X see a psychologist due to concerns that she was suffering from depression and anxiety.[17]
[17] Affidavit of Ms Elkers filed 7 June 2022 [161].
It is known to the mother that X has called a helpline on some occasions during 2021.[18]
[18] Affidavit of Ms Elkers filed 7 June 2022 [165].
In 2021 X was diagnosed with a medical condition.[19]
[19] Affidavit of Ms Elkers filed 7 June 2022 [164].
Since her birth X has lived primarily with her mother.
Presently X’s parents have equal shared parental responsibility for her and X lives with her mother and spends six nights a fortnight and school holiday periods with her father pursuant to orders made June 2021.
PROCEDURAL HISTORY
The parties have been in ongoing dispute regarding the father’s time spending with X for ten years, with the father believing that the mother does not support his relationship with X and is deliberately obstructive of it.[20]
[20] Family Report of Ms B dated 1 October 2021 [12].
The father first initiated proceedings in May 2011, arguing that the mother was not permitting him time with X whilst the mother argued X was at risk in the father’s care.[21]
[21] Family Report of Ms B dated 1 October 2021 [13].

A Report prepared pursuant to section 62G of the Family Law Act 1975 (Cth) (“the Act”) was submitted to the Court in June 2012.[22]
[22] Family Report of Ms B dated 1 October 2021 [13].
A first lot of final parenting orders were made with the consent of the parties on 18 March 2013 which provided X reside with the mother and X have graduated and increasing time with her father as X approached five years of age. The parents were to attend mediation in regards to X’s increases in time with her father.
In 2017, private mediation was conducted and was unsuccessful.[23]
[23] Family Report of Ms B dated 1 October 2021 [15].
The father then initiated parenting proceedings for a second time in April 2018.[24]
[24] Family Report of Ms B dated 1 October 2021 [15].
A second Family Report dated 17 September 2018 was prepared. That Report was prepared pursuant to orders made in June 2018.
This second set of proceedings were resolved when orders were made with the consent of the parties on 18 October 2019 which provided that X reside with the mother and spend time from after-school Thursday to commencement of school Monday with her father each alternate week and with that time to increase as of term one (1) 2020 and again as of term one (1) 2021 such that the time would then be from conclusion of school on Thursday to the commencement of school on Wednesday each alternate week.
As far as the mother was concerned it was her view that those ordered arrangements would stay in place until X was finishing secondary school.
At the commencement of term 1 in 2021, when X was aged 9 years of age, the mother failed to facilitate the father’s time and argued that such lack of time was in accordance with X’s wishes.
The applicant father commenced this third tranche of proceedings on 5 March 2021 following this failure to facilitate time with X.[25]
[25] Affidavit of Mr Aitchison filed 9 May 2022 [15].
The father also filed an Application – Contravention on 19 April 2021.
On 30 June 2021, Her Honour Judge Kari (as Her Honour then was) made orders amongst other orders for:
(a)X’s time with the father to resume;
(b)X to spend 2 consecutive weeks with the father in the July 2021 school holidays;
(c)the mother not to attend at X’s school on days the father was to collect her;
(d)the parents to each ensure X attends school when in their respective care; and
(e)the production of a further Family Report.
Since June 2021, X’s time with her father has taken place pursuant to the orders made on 18 October 2019, that is, from after-school Thursday to the commencement of school Wednesday each alternate week. As a consequence of the orders of 30 June 2021, such time has taken place on the basis that the mother is not to attend X’s school on the day that she is due to be collected by her father and that the parents were to ensure X attends school when in their care and provide a medical certificate if X was absent due to illness.
A FUNDAMENTAL ISSUE
The orders of October 2019 have been complied with since June 2021. Why this is so is a matter of importance to these proceedings.
The applicant father’s present application was precipitated by the mother’s extended withholding of X from January 2021 to June 2021 a period of about five months.
There are allegations of family violence in this matter and the mother continues to allege that she is a victim of the father’s violence and that the father has abused X.
The father argues he is the victim of the mother being highly manipulative, condescending and controlling despite there being limited personal contact between them since October 2019.
Neither parent raised issues of a risk to X’s welfare on account of drug or alcohol abuse.
This case is fundamentally about the persistence of the ability, capacity and willingness of each party to support X's relationship with the other parent and the consequences of any parent's failure to do so and if there were to be a change in X’s primary care from her mother to her father, whether such a change would best serve X’s interests.
THE WITNESSES
The father was called and gave evidence.
The Court received into evidence his affidavit sealed 9 May 2022 save and except where objections were upheld in relation to that affidavit.
The father was extensively cross-examined by the mother’s counsel.
I formed the view that the father was a witness who was generally truthful in giving his answers to questions under cross-examination. However, in saying that, I considered that in giving those answers and endeavouring to be truthful, the father was defensive in relation to the answers that he gave. He sought to deflect the difficulties that he had experienced in forming and conducting his relationship with his daughter to the feet of X’s mother or her actions. This deflection gave me some concerns.
The father appeared motivated by a view that the mother at every opportunity is actively seeking to undermine his relationship with X and that the mother is unable to conduct herself in any other way with the inevitable consequence that the father’s relationship with X will be completely and utterly lost to X. The father expressed himself thus whenever the opportunity presented itself.
I have taken his views in this regard and the manner of their expression into account when considering and weighing the father’s evidence.
Only in one respect do I consider that the father’s evidence given under cross-examination should not be accepted. The father was asked by the mother’s counsel whether the tone and content of his answer directed to the mother’s counsel was an exact sample of how he spoke to the mother in about 2011 and his denial I did not consider was a truthful answer.
The husband's mother was called to give evidence and was cross-examined.
The paternal grandmother gave her evidence in a cautious way and was on occasions reluctant to give answers to questions which I considered to be an effort on her behalf to be careful with her answers so as to not prejudice her son's case.
Having heard the paternal grandmother’s evidence and considered her affidavit material and her cross-examination I am in no doubt that the paternal grandmother loves and cares for X and her son and would act in a manner so as to support her son in whatever way would be reasonably necessary in his caring of X. This includes those difficulties that might arise during the course of any transition of X’s principal care from that of her mother to her father.
The paternal grandmother has had next to nothing to do with X’s mother and X siblings. The paternal grandmother’s interaction with X’s siblings was limited to a very brief meeting back in 2010 and when attending Court hearings in about 2011.
This lack of direct experience in interaction with the mother and X’s siblings indicates that the paternal grandmother has only been able to make sense by way of inference of X’s behaviour and relationships with any of those persons.
In this regard the paternal grandmother’s evidence is to be regarded with some vigilance.
The paternal grandmother had judged the mother’s conduct in relation to not facilitating X’s relationship with her father in June 2012 as reprehensible and maintains that assessment of the mother’s behaviour to the present time.
The paternal grandmother maintains a poor view of the mother despite it being based upon limited and aged interaction between them.
I reject the submission that the paternal grandmother had nothing positive to say about the mother. The paternal grandmother did agree that X was loved by her mother, that X had been helped to “grow well” in her mother’s care and acknowledged that credit was due to the mother for X being developmentally where she is presently.
The paternal grandmother was a witness who was reluctant to criticise her son, the applicant father, and ready to complain and be judgmental about the mother in respect of what the paternal grandmother understood X’s mother’s role was in her undermining X’s relationship with the father.
However, I am not persuaded that the paternal grandmother is generally dishonest and I note that portions of her affidavit evidence were not challenged. As I have indicated above, I shall be vigilant in considering the paternal grandmother’s evidence particularly where exaggeration may have been present.
The mother was called and cross-examined after giving brief evidence in chief as to her attendance upon Ms L for counselling for a period of three years. The mother gave no evidence as to what she gained or learned from attending upon Ms L.
The mother was cross-examined at length.
I found the mother to be a witness who was confident but defensive and, at times, argumentative in her manner of answering questions when it did not appear to me that the mother needed to be. The mother was a witness who was careful in the way she expressed herself in her evidence.
Her manner in giving her evidence led me to the view that the mother was deliberate and used language purposefully when expressing herself, in particular, when putting forward and justifying her views to school staff, general practitioners and the Family Consultant as to what had been wrong in her view in X’s relationship with her father in the past and presently and, at times, why X needed the assistance of a psychologist.
The mother’s evidence left me in no doubt that she considered her role in X’s life as more significant, important and of greater priority than the relationship X has with her father.
The affidavit of Ms M came before the Court as unchallenged evidence and she was not required for cross-examination. However, Ms M’s evidence is of little or no weight in respect to the matters that come before me for determination in this case.
Family Consultant Ms B attended the hearing and was cross-examined by each of the parties. Her evidence was the subject of challenge by the mother as to not only her opinions but the basis upon which such opinions were based and how those opinions came to be expressed. This challenge is addressed below.
The mother’s case outline of 10 July 2022 indicated that the mother’s eldest child Mr C (whom I shall refer to, with respect, as “Mr C”), aged 23 at the time of trial, was not being called as a witness for the purposes of the trial hearing.
The father in his written submissions seeks to make something of the fact that Mr C was not called to give evidence at trial despite his affidavit for trial being filed on the mother’s behalf.
The mother under cross-examination confirmed that whilst Mr C attended the trial hearing as a support person, no explanation had been given by her as to why she did not seek to rely on Mr C’s trial affidavit and there was no reason as to why he could not attend to give evidence at trial. When it was put to the mother as to why Mr C was not called by the mother as a witness at the trial, the mother said that she did not know how to answer as she was told that Mr C was not needed and she did not know how the trial worked.
The mother was bound by the decision that her legal representatives took on her behalf and which are presumed to have been made consistently with her instructions. I infer that although the mother could not explain the decision for Mr C not to be called as a witness at trial, it nevertheless remained her decision in the sense that it was made on her behalf and with her authority. There is no evidence to the contrary.
The father contended that the mother’s failure to call Mr C permits the Court to draw inferences that Mr C was unlikely to support the mother’s evidence in that:
(a)firstly, the mother no longer promoted that X was unsafe with her father and/or that there had existed a proper basis to “relieve” X from spending time with her father; and,
(b)secondly, a challenge could not be validly maintained by the mother in respect of what the Family Consultant recorded as Mr C having said to her in interview.
The mother answered that contention by reference to the authority of Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The mother’s answer said, firstly, that what inferences might be drawn from the failure to call Mr C could only arise where a particular, specific issue had been joined by the parties and because there were no facts asserted by the father upon which Mr C could give any direct evidence, no inference should be drawn; and, secondly, in any event, the mother is not obliged to call all witnesses supporting her case.
I now turn to the first proposition.
The so called “rule” in Jones v Dunkel[26] is about how evidence that could have been called, but was not, may be properly taken into account in determining whether a party has proved its case to the requisite standard.[27]
[26] [1959] HCA 8; (1959) 101 CLR 298.
[27] Australian Securities and Investments Commission (ASIC) v Hellicar; ASIC v Brown; ASIC v Gillfillan; ASIC v Koffel; ASIC v Terry; ASIC v O’Brien; ASIC v Willcox; ASIC v Shafron [2012] HCA 17; 247 CLR 345.
The starting point in considering what, if any, inference is to be drawn is what is the issue to be established and who is seeking to establish it.
This is not a Court of pleading. Issues are to be joined between the parties by their affidavits and applications and case outlines and what they make known to third parties specifically for the purposes of use in the proceedings. In respect of the latter, disclosure in the course of Family Reports interviews are but one example.
The mother asserted that the father was abusive and controlling during the parties’ relationship,[28] the father was aggressive in conversations with her[29] and in March 2021 she had her sons in an attempt to encourage X to go with her father[30] and had encouraged Mr C to see his own father.[31] In interview with the Family Consultant, Mr C was said to have reflected that:
(a)X did not feel safe in her father’s care (similarly to the way he had not felt safe in his father’s care);
(b)he recalled the father during the time that he lived with the parties as being condescending and controlling;
(c)he had assisted in handovers of X encouraging her to go despite her father’s behaviour including observing the father attempt to pull X into his car;
(d)he had encouraged X to spend time with her father in early 2021; and
(e)“them” (which appears to include Mr C) informed X she had no choice but to attend upon her father and her time with her father had then resumed and he found it hard to bear seeing X spend time in an abusive home.[32]
[28] Mother’s trial affidavit, 7 June 2022, [19].
[29] Mother’s trial affidavit, 7 June 2022, [24].
[30] Mother’s trial affidavit, 7 June 2022, [114].
[31] Mother’s trial affidavit , 7 June 2022 [190].
[32] Exhibit 9, Report 1 October 2021 [71 – 73].
In the second Family Report of September 2018 Mr C, amongst other things, describes X as being distressed on occasion when returning from her father and observations of the father’s behaviour at handovers.[33]
[33] Exhibit 9, Report 17 September 2018 [51 – 54].
I take each of these matters to be part of the mother’s case and matters which the mother bore the onus to establish on the balance of probabilities.
I now deal with the mother’s second proposition.
Whilst the second proposition is true, it is not sufficient to answer the father’s contention in the circumstances of this case. Mr C had been a member of the mother’s household throughout X’s life until he left sometime after August 2018 and since then has continued to attend 3 or 4 nights a week at his mother’s house and was a close sibling with whom the mother considered that X shared a strong bond. Mr C had been interviewed by the Family Consultant in August 2018 and September 2021 for the purposes of the second and third Family Reports. Mr C had been identified by the mother as witness to be called at trial directions. Mr C cannot be considered to be just another witness able to give evidence that might otherwise come from other persons or sources. His position in the mother’s household and X’s family makes him qualitatively different from other possible witness.
The second proposition should not be adopted in respect of this case in relation to the failure of the mother to call Mr C insofar as Mr C could have given evidence about those matters which formed part of the mother’s case such as the comments made by X about her father’s conduct and that of members of family.
Where the mother seeks to rely upon the matters stated in her affidavit and in the Family Consultant’s Report that involved Mr C, I would draw an inference that Mr C’s evidence would not have assisted the mother’s case. That inference is, however, but one matter which must be weighed and taken into account with other evidence available[34] in respect of matters that the mother puts forward in support of the orders she now seeks.
[34] Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 at [63] per Heydon, Crennan and Bell JJ.
In finding matters of fact I must do so on the balance of probabilities taking in to account those matters identified in s 140 of the Evidence Act 1995 (Cth).
CONSIDERATION OF THE SO-CALLED “RULE” IN RICE V ASPLUND
As the present proceedings before the Court seeking parenting orders are not the first such proceedings to have been brought before the Court, an issue arises as to whether the proceeding should proceed or in retrospect have proceeded to the extent that they have in light of the so‑called “rule” in Rice v Asplund.[35] The “rule” is merely a manifestation of the best interests principle in respect of the impact of the conduct of subsequent proceedings upon children.[36]
[35] ([1978] FamCA 87; (1979) FLC 90 – 725; 6 FamLR 570).
[36] DL & W [2012] FamCAFC 5; (2012) FLC 93–496 at [70].
In the circumstances of this case, the nature of the change in X’s living arrangements sought by the application agitated by the father, that the last orders were made in October 2019 when X was aged eight years and a lack of compliance with those orders between January and June 2021 resulting in X not seeing her father during that time, demonstrate a change in circumstances sufficient to justify the further hearing of the father’s most recent application.[37]
[37] DL & W at [73].
THE EVIDENCE OF THE FAMILY CONSULTANT AS AUTHOR OF THE FAMILY ASSESSMENT REPORTS
The Family Consultant’s Family Reports of 2012, 2018 and 2021 came before the Court in evidence with the consent of the parties as Exhibit 9.
The Family Consultant in preparing the most recent Report of 1 October 2021 took into account the affidavits of the parties, orders and a Court judgment in the proceedings and other documents (numbering 34 in total) and was based upon interviews with X, the parties, X’s siblings, the paternal grandmother, X’s school principal, the mother’s counsellor and the father’s sister-in-law.
In doing so, the Family Consultant was seeking to fulfil the requirement of Court orders of 30 June 2021 to provide the Court with the Family Assessment Report.
The commencement of the presentation of evidence at trial in this matter took place nearly 9 months after the conduct of interviews and the preparation of the October 2021 Report. As such, the Family Consultant could not be in possession of all the evidence that came before the Court during the trial of this matter nor would the Family Consultant have available to her the findings of fact that ultimately come to be made by this Court with its advantage of being able to consider all of the evidence brought forward including that of the parties and their witnesses tested by cross-examination.
The evidence of the Family Consultant both in the form of her Reports and her oral evidence requires careful consideration in the circumstances of this matter.
Family Reports by their very nature often involve the family consultant having to consider a range of sources of information, some of which may be incomplete or conflicting and also undertake enquiries not only of the parties and the children involved in proceedings but also others who may be charged with the children or the parties’ care.

The preparation of a family report will almost inevitably involve the assimilation and synthesis of all types of sources of information so as to best assist a court in making determinations in parenting proceedings.
The orders of 30 June 2021 of this Court for the preparation of the Report were broad. Those orders directed that:
(a)the Family Report deal with X’s views and any factors that would affect the weight to be attached to such views;
(b)the matters set out in s 60 CC, s 61DA and s 65D of the Act and any other matters the expert considers important to the welfare or best interests of X;
(c)for the purposes of instructing the Family Consultant, that the Family Consultant be provided with all documents filed in the proceedings, all orders made in the proceedings, the reasons of the Court of 30 June 2021 and exhibits provided to the Court on 31 May 2021; and
(d)the Family Consultant be at liberty to liaise with any person in relation to X’s welfare.
The parties were also given liberty to provide further documents to the Family Consultant for her to consider upon the condition that a copy of such document were first provided to the other party and at least seven days before there were appointments with the Family Consultant and that the Family Consultant to have an “absolute discretion” to accept or reject the document so provided to her.
It is submitted on behalf the mother that the recommendations of the Family Consultant and, in particular, those recommending a change in X’s living arrangements should be rejected because: –
(a)the Family Consultant undertook the role of an adjudicator of facts; and
(b)in so doing, made an unsafe and unwarranted finding that the father had been the subject of domestic violence at the hands of the mother.
I reject the submission that the Family Consultant’s evidence should be rejected simply because that consultant merely expressed and recorded certain factual findings as a basis for expressing opinions and recommendations in her Reports.
In Hall and Hall[38] the Full Court of the Family Court of Australia made the observations of a general nature as to the weight to be given to a family report.
[38] (1979) FLC 90 – 713 at 78,819; (1979) 5 Fam LR 609 at [24]; (1979) 298 ALR 545).
There is no prescription in the legislation or otherwise that precludes a family consultant or other expert from stating facts (as they understand them to be) upon which they base opinions or, make recommendations.
In exercising their expertise, a family consultant should state the facts as they understand them to be, or are likely to be, so as to make clear the basis upon which opinions or recommendations come to be expressed as a result of the exercise of any expertise that the Family Consultant holds.
In undertaking an ascertainment of facts upon which a family consultant bases opinions or recommendations, the family consultant does not usurp the role of the Court nor can there be any suggestion that that the family consultant does so.
Properly understood, the statement by the Full Court of the Family Court of Australia in Hall and Hall makes it plain that, as a family consultant does not have the same opportunity as a trial judge to weigh evidence and make findings of facts based upon evidence that may come before a Court, an assessment by the family consultant can be based on facts that turn out to be mistaken or without justification in the trial judge’s view.
While all of this can and must be accepted by parties and Family Consultants who come before a trial Court, it does not follow that in merely expressing that certain facts have been adopted by the family consultant for the purposes of preparing a Report that the family consultant usurps of the role of the Court.
A family consultant cannot usurp a Court’s role as the family consultant’s and the Court’s functions are different: the family consultant provides, to the extent that the family consultant is able, expert opinion evidence to assist the Court whilst the Court undertakes the role of the adjudicator of facts, the application of legal principles to those facts and the exercise of discretions that might otherwise be available.
The family consultant expresses opinions based upon facts as the family consultant perceives them to be. If the opinions are to have any weight, a Court must be satisfied of the existence, to the requisite standard of proof, of the facts upon which the family consultant’s opinions are based.
Sometimes the facts, including a depiction of relationships, upon which opinions are based by family consultants are mixtures of information from various sources and an understanding of what that information means or implies arising from the family consultant’s expert experience and knowledge.
An appreciation of the difference in the roles between a Court as a finder of fact and of the family consultant as an expert assembling facts for the purposes of expressing an opinion or recommendations in a Family Report, informs the approach to be taken in determining what weight, if any, is to be given to the opinions or recommendations contained in such a Report.
As the Full Court of the Family Court of Australia in Fairfield & Hoffman [2021] FamCAFC 151 said:[39]
Consistent with authority, it is not suggested that the primary judge was bound by the evidence and opinion given by the single expert (Hall and Hall (1979) FLC 90-713). As to the approach to expert opinion, it is as set out in Muldoon & Carlyle (2012) FLC 93-513 at [104]:
It is not in doubt that the evidence of an expert, suitably qualified and based on an appropriate foundation, will carry substantial weight. Departure from it in such circumstances requires careful consideration; however the ultimate decision must be that of the trial judge: Friscioni & Friscioni [2010] FamCAFC 108; Hall and Hall (1979) FLC 90-713 at 78,819; D & P [2006] FamCA 170; Andrew & Delaine [2009] FamCAFC 182, and Hannigan & Sorraw [2010] FamCAFC 257 at [136].
[39] Fairfield & Hoffman [2021] FamCAFC 151 at [75].
The Family Consultant could inform herself of factual matters as the Order of 30 June 2021 permitted and authorised her to do. In informing herself of such matters the Family Consultant can adopt such matters as facts upon which she bases her views, opinions and recommendations. It is for the Court to determine whether such adoptions are to be regarded as justifiable.
In the circumstances of this matter, I find that in putting forward Family Reports and their content, the Family Consultant was not seeking to usurp or displace the Court’s role nor seeking to do other than express views that were consistent with that Family Consultant’s expertise.
THE SIGNIFICANCE OF THE EARLIER PARENTING ORDERS
Whilst parenting orders are never final,[40] the fact that orders are made reflects that the disputation between parties to a parenting dispute have been brought to an end by curial order.[41] Also, the fact of the parties’ consent implies that the nature of the disputes between the parties are not inconsistent with the orders then made being in the best interests of the child or children concerned.
[40] Dodd & Dodd v Stuart (1976) 1 FamLR 111, 540 at [11,544].
[41] Carriel v Lendrum [2015] FamCAFC 43 at [56 – 57].
It is necessary to consider the facts as they might be best understood in relation to each of the earlier orders made with the consent of the parties then resolving parenting proceedings and the disputes in those proceedings on a final basis.
THE FIRST AND SECOND PROCEEDINGS AND ORDERS
It will be recalled that the first parenting order of a final nature made in this matter was made on 18 March 2013 (“the first final parenting order”) and the second parenting order was made on 18 October 2019 (“the second parenting order”).
The mother and father do not challenge that the making of each of those orders were appropriate in all the circumstances prevailing at each date.
EARLY 2011 TO EARLY 2013
In relation to the period between X’s birth in 2011 and the first final orders being made in 2013, the following matters of significance had occurred:
(a)at the time of X’s birth, the mother had been an allied health worker for a government organisation for a period of about seven (7) years;
(b)at the time of X’s birth, the mother had two children by previous relationships being Mr C who was then aged about 14 years and Mr D who was then aged about nine (9) years;
(c)in the mother’s view, her relationship with the father had been abusive and controlling constituted by verbal and emotional abuse and the punching of furniture but with the concession by her that there was no proof of such violence;[42]
[42] Mother’s trial affidavit sealed 7 June 2022 at [21].
(d)proceedings had been commenced by the father within about 2 months of X’s birth at a time when he did not even know X’s name. The mother filed a Response To Initiating Application on 25 July 2011 seeking final orders for:
(i)equal shared parental responsibility;
(ii)X to live with her and spent time with the father as follows:
(A)for two hours each Saturday or Sunday at such times and places as agreed between the parties until X turned three (3) years of age;
(B)then thereafter, overnight from 4:00pm to 10:00am the following morning for 12 months; and
(C)then on each alternate weekend from 5:00pm Friday to 4:00pm Sunday.
(iii)parties to refrain from taking X out of the State of South Australia without written consent of the other party or an order of this Court;
(iv)the father to be restrained from being under the influence of alcohol or illicit substances while the child is in his care and from denigrating the mother in the presence or hearing of the child; and
(v)the father to pay the mother’s costs of and incidental to that Response to Initiating Application.
(e)the interim orders that the mother then sought in her Response to Initiating Application were more restrictive.
(f)in the course of those proceedings the parties agreed that the father would have supervised time at a Contact Centre which was not successful in that X did not settle when brought in from her mother to spend time with the father;
(g)on at least one occasion the mother sought that Contact Centre workers return X to her father after X being unsettled in her father’s care and then presented to her;
(h)otherwise, the father spent time with X at her mother’s residence, and on one occasion, in the presence of the maternal grandmother when X was sleeping;
(i)the father asserted that the mother unreasonably maintained claims about fears for her safety so time was to be spent at a Contact Centre;
(j)the father adopted the view that the mother was antagonistic about him spending time with X and that he considered that the mother glared at him when he attended at the mother’s home to spend time with X;
(k)the one and only period of time that was attempted and/or undertaken at a Contact Centre saw the father adopt the view that X’s inability to settle and cease crying when she was handed to him at the Centre was, somehow or other, to be attributed to the distrust or disdain that he considered the mother then held for him;
(l)the father experienced a degree of uncertainty in how to manage and handle X as he was “a new father” and on account of what he understood was the way that the mother had managed Mr C and Mr D’s relationships with their respective fathers;
(m)the father’s parents had met the mother on one occasion in 2010 before the birth of X;
(n)the father often complained about the mother to his parents including that he thought the mother was “psychotic”;
(o)the father felt that in dealing with the mother he was dealing with a “psychopath”, that the mother had referred to him as a “sperm donor” and that he feared that he might be completely absent from X’s life as a result of him finding the mother’s comments to him hostile;
(p)the father used the terms “psychotic” and “psychopath” in arguments that he had with the mother at that time;
(q)the mother was then aware that the father had made remarks about her “mental fitness” to her children;
(r)the mother deposed on oath, in the course of the first proceedings, that the time during which the parties had lived together was not acrimonious and only had a low level of conflict. This appears to be the view that the mother held and made known until the parties attended interviews with the Family Consultant for the purpose of the preparation of a Family Report in late May 2012 and/or early June 2012;[43]
(s)the parties had participated in interviews with the Family Consultant in late May 2012 and early June 2012 (when X was about 12 months old) for the purposes of the preparation of a Family Assessment Report that came to be dated 7 June 2012. In that Report each of the parties ventilated criticisms of the other: amongst other things, the mother claimed the father was abusive and manipulative, harassing and abusive in communicating with the mother and uncooperative at the Contact Centre, the father was unnecessarily litigating parenting issues, called the mother mentally ill, was demanding, controlling and jealous, immature, an illicit drug user, financially incompetent, a malingerer, a person who made poor choices of friends in the form of her brother, that his parents were racist and emotional blackmailers and he was an inexperienced parent. The father claimed that the mother dictated the terms of his parental relationship, he had been threatened with not having any contact with X, that the relationship with the mother was confusing and toxic, that the mother disparaged his relationship with his family, he was patronised by the mother, the mother adopted patterns of limiting the children’s fathers’ roles in those children’s lives and the mother was generally hostile.
[43] Exhibit 13 [40], pages 6 and 7.
I find that the parties behaviour towards each other at this time was verbally abusive and derogatory and a consequence of the breakdown in their relationship and was in this sense violent conduct.
THE MOTHER IS NOT “PSYCHOTIC”
The father’s use of the words “psychotic” and “psychopath” in giving his evidence to describe the mother and her behaviour were the descriptors that are used by the father to convey that he found the mother’s behaviour in this period “unusual” because in his view the mother had lied to the Contact Centre about fearing for her safety.
The father then later used those terms as his rationalisation of and way of explaining the reasons for the mother withholding X from him for 5 months from early January 2021 contrary to what was otherwise provided for in orders made with the consent of the parties on 18 October 2019 and for the mother making the suggestions to him at some time as to how to change X’s nappy.
In using this language, the father acknowledged in his evidence at trial that it was “strong”, possibly “overly strong” and perhaps “frivolous” and conceded it was not intended to be any sort of medical diagnosis on his behalf.
The father’s evidence in this regard made plain that the use of the term “psychotic” and derivatives of that term comprised nothing more than his assessment of the mother’s character.
The father has a long-held view that the mother is mentally unstable.
I find that in using the term “psychopath” to refer to the mother the father was intending to convey, out of frustration over what he perceives to be the mother’s hostile behaviour towards him, that he considered there was “something seriously wrong” with the mother. The father did not use the term “psychopath” in his evidence in any technical, medical sense of the word but rather, to convey what he perceived to be unnecessarily persistent and hostile behaviour on the mother’s behalf at various times which he considered defied explanation by reference to what he considered to be ordinary emotional responses to his behaviour (as he understood his behaviour to be).
Although the mother denied using the word “narcissistic”[44] to describe the father’s personality, I find that the mother was likely to have adopted that descriptor as a result of her counselling with Ms L.[45]
[44] Mother’s trial affidavit 07.06.2022.
[45] Exhibit 9, third Family Report, 1 October 2022, [39].
A similar view is to be taken of the mother’s regard of the father as “narcissistic” expressed to the Family Consultant during interview in September 2021.[46]
[46] Exhibit 9, third Family Report 1 October 2021, [30], [39].
There is no evidence that satisfies me that the mother or father used the terms “psychotic”, “psychopathic” or “narcissistic” in referring to the other parent in the presence of X and their regard for each other being expressed in such terms reflects an inability on their respective behalfs to comprehend from the other party’s perspective how their own parenting styles and behaviour in and around X might be properly understood.
THE FATHER’S ENCOUNTER WITH A PERSON CLAIMING TO BE A PSYCHIATRIST
In or about late 2012 or 2013, when X was two or three years of age, the father and mother purchased a piece of play equipment for X. Whilst removing that play equipment from the seller’s home property so it might be reassembled later at the mother’s property, the father had a casual conversation with the seller (who also provided cups of tea). In that conversation the father was told by the seller that the seller was a psychiatrist who had met the mother and expressed the view to the father that the mother had a severe personality disorder and that the father had been selected by a “predator” (understood to be a reference to the mother). The father, whilst finding the comments strange, took the comments seriously at the time.
This evidence does not operate to cause me to find that the father regarded the mother as “psychotic” or a “psychopath” in any clinical sense. Rather, this evidence discloses the father’s capacity to seize upon events and remarks that provide him with any capacity to rationalise and give a name to what he perceived to be the mother’s behaviour in inconsistently facilitating and supporting X’s relationship with him and – to borrow a word from the father’s evidence – to make sense of the “drama” that had taken place over time associated with the mother’s facilitation of X’s relationship with him.
It was unreasonable of the father to consider that a person, claiming to be a psychiatrist in the course of providing him drinks over a day and a half whilst removing a piece of play equipment, volunteering a view about the mother, should be regarded as providing a view that is in any way definitive or was a professional opinion of any substance. The father should have regarded the episode as nothing more that someone offering a sympathetic ear to his circumstances as he had made them known.
The father did not then and has not since pursued any expert assessment of the mother’s health or her psychological disposition.
The mother has not suffered from any mental health condition in the nature of a psychosis or with psychotic features and the mother has always known and discounted as inconsequential any remarks by the father in that regard.
The father’s retention of this incident and his bringing it forward in the course of the current proceedings only serves to show that he can be inflexible and rigid in his regard for and thinking of the mother.
THE ROLE OF THE PARTIES’ CASES AS TO FAMILY VIOLENCE
The Family Consultant adopted a view at the time of her first Family Report of June 2012 that some of the father’s behaviour towards the mother during and about the time of the parties’ cohabitation and separation comprising what she described as intimidation and harassment to be in the context of parental separation permitting it to be labelled “situational violence”.

The Family Consultant expressed in the first Report that she held the view that “relationship dynamics” were more consistent with coercive power and control being exerted by the mother.
The Family Consultant expressed these views noting that those views were “subject to evidence” and the parties having “highly divergent” accounts of past matters.
Findings about family violence should not be lightly made.
At one level it is not necessary for findings about family violence as between the parties to be made as firstly, on the mother’s case in respect of the orders sought by her the evidence of family violence towards her, such as she now understands it to be, relates to the period of cohabitation and thereabouts and is not to impact a upon present and ongoing arrangement where, generally speaking, X is to spend 6 nights a fortnight and half of the school holidays with her father. Secondly, the father does not say in respect of the orders sought by him that the mother’s time with X is to come to live with him is to be subject to any qualification on account of past family violence as he says was demonstrated by the mother.
The father’s submissions did not seek that there be a finding of family violence but rather “abuse” constituted by an obligation or expectation promoted by the mother to X to adhere to a narrative that the father was not suitable to have time with X leading to X ultimately rejecting her father.
Despite the fact that the types of orders sought by each party were to be regarded as not directly shaped by family violence, family violence was a focus of the evidence.
The mother’s submission was that there existed family violence at the time of the parties’ relationship and also following their separation (although she did not realise it at that time)[47] and the father had been aggressive in conversations with her despite minimal communications.[48]
[47] Mother’s trial affidavit of 7 June 2022, [21].
[48] Mother’s trial affidavit of 7 June 2022, [22] – [24].
The mother’s argument in relation to family violence was that the Family Consultant unjustifiably determined in her first Report that the family violence, such as it came to be described to and understood by the Family Consultant at the time of her first Report, was more likely to be the responsibility of the mother which determination was inappropriately carried through as a basis for the recommendations found in the Family Consultant’s second and third Reports. In short, the first Report laid an inappropriate foundation for the recommendations contained in the Family Consultant’s last Report of October 2021.
I disagree with this analysis of the Family Consultant’s third Report.
The third Report must be understood in the context of the other information that was to hand to the Family Consultant at the time of the preparation of that Report in October 2021.
The Family Consultant, both in her third Report and her oral evidence, emphasised that her recommendations and opinions then expressed were based principally on the notions that X had adopted a dynamic of a “narrative” which the mother should be understood to have fostered within her household so as to see X placed in the position of emotional harm resulting in her losing her relationship with her father. In so doing, the mother sought to remove responsibility from herself for what she saw as X’s difficulties in relationship with her father.
The allegations by the Family Consultant of family violence as between the parties was not a principal part of this analysis nor should it have been, but it remains a matter of significance as the presence of such violence although dated affects the manner in which I am to go about determining the parenting orders to be made in the matter.
X’s negative reports about her father in relation to his conduct towards her in terms of swearing at her or in her presence and denigrating her or her mother by calling her or her mother “stupid”,[49] “fat”,[50] naughty”,[51] and a “bad girl”[52] and other names primarily at handovers[53] and telling X to “shut up”[54] as to be considered in the context in which they were made.
[49] Exhibit 9, Third family Report, [41], [100].
[50] Exhibit 9, Third family Report, [49].
[51] Exhibit 9, Third family Report, [41], [100].
[52] Exhibit 9, Third family Report, [100].
[53] Exhibit 9, Third family Report, [100].
[54] Exhibit 9, Third family Report, [41].
Given the lack of context for these comments, I do not find that the comments in themselves are “family violence” within the meaning of s 4AB of the Act.
For reasons that appear below I have determined that “situational” family violence (as the Family Consultant termed it) has existed between the parties.
DESPITE ALLEGATIONS OF ABUSE AND DISTRUST THE PARTIES OBTAINED ORDERS BY CONSENT IN MARCH 2013
Despite this background, and with the benefit of legal advice the parties entered into consent orders on 18 March 2013. It is important to note that those orders provided:
(a)a notation that the mother and father would attend mediation when X attained five (5) years of age to increase the father’s time with X;
(b)for equal shared parental responsibility in relation to X;
(c)for X to live with her mother; and
(d)for the father to spend increasing time with X as she turned three years of age (2014), then four years of age (2015) and then five years of age (2016). It is clear that those orders were predicated upon an understanding that the father’s time was to increase as X was to age.
Further, the orders required the mother to deliver X to the father’s residence at the commencement of time and for the father to return X to the mother’s residence at the conclusion of time unless the mother’s work roster required the father to collect X from day care. The handover aspect of the orders also provided that upon X commencing kindergarten that handover was to be at kindergarten or school wherever practicable.
The father’s evidence in relation to this period leading up to the making of the first parenting order in March 2013 simply confirmed that he had, from the moment that he became aware of the mother being pregnant with X, a deep and abiding distrust of the mother as to whether she would support his relationship with X. This distrust was formed on account of, amongst other things:
(a)the inability of the parties to conduct a relationship and to communicate with any degree of effectiveness in relation to the onset of parenthood;
(b)the father being an “inexperienced parent” who struggled to come to terms with the need to care for an infant for the first time; and
(c)the father’s inability to deal with X’s mother with whom he only had a relationship of suspicion and distrust.
These attitudes and worries of the father persisted despite the fact that the mother adopted formal positions in Court proceedings that offered the father equal shared parental responsibility and, by the time that X was three years of age, overnight time with X. In this context, I find that the father’s fears and worries as to how his relationship with X would unfold at that time to be unnecessarily pessimistic.
THE SECOND SET OF PROCEEDINGS, REPORT AND CONSENT ORDERS
In April 2018 a second set of proceedings were commenced by the father after the parties had attended mediation in March 2017.
This resulted in the second Family Report dated 17 September 2018 being prepared by the Family Consultant.
Interviews for the purposes of the compilation of that Report took place in August 2018. Whilst that Report is criticised by the mother as to the method and opinions contained in it, the Report is not criticised for its endeavour to summarise and note the various criticisms that each of the parties then raised of the other.
The Family Consultant noted that the parties were still in dispute about the cause of their separation which had occurred about 8 years prior to interviews for the purposes of the Family Consultant’s Report.
The Family Consultant noted that the father criticised the mother claiming that:
(a)the mother was controlling, verbally abusive and denigrating;
(b)X did not attend Court ordered time with the father during school holidays on account of having social engagements;
(c)the mother spoke to the father in a condescending manner;
(d)the mother did not reassure, support and encourage X to go with her father at handovers;
(e)handover on Christmas Day 2016 was required by the mother to be conducted at a police station;[55]
(f)X was being exposed to derogatory and rude comments; and
(g)the mother failed to record the father’s name on X’s enrolment at kindergarten or as an emergency contact at X’s school; and
(h)the father missed Court ordered time when informed X was unwell or on account of his work.
[55] Family Assessment Report 17 September 2018, [26].
At the same time the Family Consultant noted the mother claimed that:
(a)the father was financially irresponsible;
(b)the father was an illicit drug user;
(c)the father sought the termination of the mother’s pregnancy with X;
(d)the father lacked insight and parenting capacity and failed to consider X’s developmental needs;
(e)the father made rude and derogatory remarks about X’s mother in her presence;
(f)she was the victim of historical and current coercive controlling relationship dynamics including bullying and intimidation;
(g)X was experiencing severe anxiety as a result of having a relationship with her father;
(h)X spending time with the father caused X to be extremely unhappy and distressed;
(i)the father disregarded X’s nutritional needs;
(j)the father did not pay sufficient attention to X’s dental hygiene;
(k)the father had missed Court ordered time confusing X;
(l)the father failed to consult with the mother in having X’s haircut;
(m)the father did not agree to X meeting with a psychologist;
(n)the father had traumatised X in spending time with her;
(o)the father was aggressive and swore at handovers; and
(p)X was being re-traumatized from visits that had previously occurred at the children’s Contact Centre.
Despite the extent and nature of the complaints which each of the parties made about the other, the second tranche of proceedings were concluded by orders being made with the consent of the parties (who were then legally represented) on 18 October 2019.[56]
[56] The mother’s solicitors having filed a Notice of Address for Service on 3 September 2019 and appearing as the solicitors for the mother on the consent order.
Those orders provided that:
(a)the parties have equal shared parental responsibility for X;
(b)X live with her mother; and
(c)X spend time with her father during school terms on an increasing basis starting with time from the conclusion of school Thursday to the commencement of school Monday on alternate weekends and culminating as and from term one 2021 each alternate week from after school Thursday to the commencement of school Wednesday.
In addition to those school term time orders, there was provision for the father to spend time with X during short school and long school holiday periods for one half of those holidays. Provision was also made for the occasions of Christmas, Easter, Father’s/Mother’s Day, and birthdays.
Those orders provided that handovers that did not occur at X’s school would occur by the father (or his parents) collecting X from and returning her to the mother’s residence.
There were other orders made as well regulating the parties’ involvement in X’s schooling and extracurricular activities, the manner in which the parties were to communicate and orders with injunction regarding abuse, denigration, discussion of Court proceedings and attendances at each other’s property.
THE BREAKDOWN IN PARENTING ARRANGEMENTS IN JANUARY 2021
The regime for X to spend time with her father provided for under the orders of 18 October 2019 persisted and was largely adhered to until January 2021 when X ceased to spend time with her father. This state of affairs persisted until 10 June 2021.[57]
[57] Father’s trial affidavit, 6 May 2022, [16]; Father’s submission sealed 1 February 2023 [69]; Mother’s submission sealed 18 January 2023 [93]; Ms J’s affidavit sealed 9 May 2022, [28].
At that time in January 2021, X’s time with her father under the October 2019 orders was to increase during school terms to six (6) nights a fortnight from five (5) nights a fortnight.
The resumption of time in June 2021 took place shortly after which Her Honour Judge Kari (as Her Honour then was) had heard an argument on 2 June 2021 in this Court on the father’s then application for parenting orders. During that hearing the mother promoted a return with immediate effect, the father spending time with X under the terms of the orders made 18 October 2019.[58] X’s time with her father resumed after Her Honour heard argument but before Her Honour delivered judgment on 30 June 2021.
[58] Judgment of 30 June 2021, [9], [55], [90].
I reject the mother’s submission that there was no evidence before the Court at trial that the mother did not promote a resumption of time as provided for in the orders of October 2019 when the matter was before the Court on 2 June 2021.
The father’s application before her Honour on 2 June 2021 was for X to live with him and spend time with her mother on alternate weekends. It was noted in the Court’s judgment of 30 June 2021 at paragraphs [9], [55] and [90] that during the hearing on 2 June 2021, when faced with the father’s application, the mother promoted that there be an immediate change in the then circumstances with X to return to spending time with the father in accordance with the orders of 18 October 2019.
From the evidence of Ms J the resumption of time on that June date proceeded successfully and happily.[59]
[59] Affidavit Ms J, sealed 9 May 2022, [22] – [57].
Considering all of the evidence in this matter, I find that the holiday was a happy episode in X’s life.
Since that time, there has been compliance with the orders of 18 October 2019.
The issues raised by the fact of that resumption of time as to why that resumption occurred and why the resumption has persisted and whether the compliance with the orders of October 2018 should now be reasonably anticipated to continue and, if they were to continue, whether those arrangements would best serve X’s interests, are at the heart of the present applications before the Court.
THE JANUARY 2021 HOLIDAY IN QUEENSLAND
The events of 15 January 2021 and following require special consideration in the circumstances of this case. The events of this day constituted the fulcrum for the present tranche of proceedings commenced by the father.
In early 2021, X returned with her father from a holiday in Queensland which had lasted for one week.
The father had advised the mother in late 2020 that he intended to go with X to Queensland for a holiday. He did not otherwise give the mother written notice of his intention to do so until early in the morning, when he and X were to be at the Airport.[60]
[60] Exhibit 5, page 1; mother’s trial affidavit [69].
The father was obliged to give the mother written notice of interstate travel[61] and had not done so which was a matter not lost on the mother.
[61] Order 12 of 18 October 2019; Father’s affidavit 06 May 2022, [20].
I find that the mother was very displeased about the father having travelled to Queensland with X.[62] Upon learning of the father’s and X’s holiday travel to Queensland, the mother requested the father and X’s immediate return and in doing so expressed the view that she was “shocked” that the father was placing X’s health at risk.
[62] Exhibit 5.
The mother’s conduct at this time is inconsistent with the description given by X to the Family Consultant later in September 2021 that her mother was fine and supportive of X then travelling to Queensland.[63]
[63] Family Consultant Report, 1 October 2021, [107].
X’s specific perception of her mother’s attitude about travel to Queensland[64] could not have arisen until early 2021 as no specific notice was given of such travel by the father to the mother until the morning of departure for Queensland by message early that day.[65]
[64] Exhibit 5.
[65] Exhibit 5.
The mother endeavoured to reply to the father’s message by 7:39am[66] and later at 10:27am the mother sent a message to the father which, amongst other things, noted X was very concerned about the possibility of travel interstate and unwell at handover and that the mother was “shocked” and highly concerned about how X felt about the trip to Queensland.
[66] Exhibit 5.
The inference that I draw from that contemporaneous evidence is that the mother was neither fine nor supportive of X’s travel to Queensland and I would reject the suggestion that X’s comments to the Family Consultant in September 2021 should persuade me to the contrary.
The father had collected X on 8 January 2021[67] to spend time with him. I find that upon the father collecting X, X informed him that her mother had asked X to promise her that she would not get on an aeroplane with her father during the forthcoming visit as X had had prior conversations with her mother about the possibility of interstate travel and that such conversations were in the context of possibly going interstate with her father.
[67] Father’s trial affidavit, 6 May 2022, [23].
The mother’s view that persisted at that time was that the father and his family provided a toxic environment for X and that X’s time with her father had seen X be traumatised.
The mother had been caused to be displeased and wary about the father taking X interstate as he had previously so travelled despite the mother providing a sick certificate.[68]
[68] Mother’s trial affidavit of 7 June 2021, [187].
In this context, X’s comments to the Family Consultant in September 2021[69] about what she could recall of her conversations with her mother on this topic in early 2021 does not dissuade me from the findings I have made above.
[69] Exhibit 9, Family Report, 1 October 2021, [107].
The Queensland holiday, despite this, proceeded and was spent residing with the father’s sister (and X’s aunt) Ms J.
As indicated above, the holiday time in Queensland was a relaxed, enjoyable and wholesome experience for both X and her father and the holiday in and of itself would not constitute a cause for concern or worry for X.
However, in September 2021, X said in interview with the Family Consultant that the holiday in Queensland was not enjoyed by her. X said that she did not wish to go away with her father in early 2021 but she had no choice in the matter. X informed the Family Consultant that she told her father that she felt unwell with “gastro “on the day that she and her father were flying to Queensland but her father ignored her. X also remarked to the Family Consultant that when X and her father swam in her aunt’s pool in Queensland her father grabbed her by the foot and made her feel very unsafe which she told the father about but he ignored her.[70]
[70] Exhibit 9, Family Report, 1 October 2021, [102].
The character of this report by X is in direct contrast to that shown by the unchallenged evidence of the paternal aunt.[71]
[71] Affidavit of Ms J sealed 9 May 2022, [7 – 16], esp. at [11].
Considering all of the evidence, I find that the holiday time in Queensland was both an enjoyable and beneficial experience for X.
I also find that the Queensland holiday in and of itself was regarded by each of her parents to have been an enjoyable and beneficial experience for X.
X’s later recollection of an event during that holiday time of having her foot grabbed in her aunt’s pool and feeling unsafe seems to be a disproportionate reflection upon what otherwise appears to be a happy and beneficial experience. Why in September 2021 X’s reminiscence of her time in Queensland with the Family Consultant did not have any reference to happier events associated with the holiday is something to which further consideration is given below.
EVENTS OF JANUARY 2021

Further, I find that there was a need to place X’s criticisms of her father into context and that the Family Consultant appropriately did so.
X was supported and enabled to maintain a critical and derisive view of her father and his household through her being permitted to express and record unhappiness and complaint about her father and members of his family.
The mother now realises this and this has led to the change in her approach.
The father is a person who has keenly felt the absence of X particularly in January 2021. He was described in interview with the Family Consultant as being “devastated” and “highly distressed” when his time X ceased in January 2021.[192] I accept the father’s submission that he “wears his heart on his sleeve”.
[192] Exhibit 9, Third Family Report, [53].
The father seeks an easy relationship with X whereby her relationship with either of her parents is not questioned and is not questionable. In that regard, given the history of the parties’ relationship and the level of distrust and conflict that has existed between them, I find that the father is somewhat naïve.
From the outset, the relationship between the parties was far from cordial and the breakdown of their relationship only served to heighten their mistrust of each other and it would appear that differing views as to the role X would play in determining how her relationship with each of her parents would unfold was the subject of different assumptions.
The father holds a view that X’s time with him is largely fixed and given and, subject to his agreement, is not negotiable with either the mother or X.
The mother, at least in the past, has held the view that X should have a significant say in how her relationship with her father is conducted and how the father and others in his household should conduct themselves. X has even gone to the extent of expressing to her father that at 12 years of age she can make her own decisions including whether she sees her father again.[193]
[193] Exhibit 9, Third Family Report, [56].
That view that a child of 12 years can make her own decision as to whether to see a parent is, of course, not a principle of law and certainly not a principle of any type that would in the circumstances of this case be appropriate to apply where X’s views have been formed in an environment that is unsupportive of her right to know and to be cared for by each of her parents.[194]
[194] Family Law Act 1975, s60B(2)(a).
It cannot be ignored that X’s parent’s households are different in terms of their membership and their outlooks on life and of parenting. They differ in views on the level of disagreement that might be tolerated between members of the respective households and the manner in which disagreement might be expressed. However, those differences should not in my view have led to the breakdown in X’s time with her father that occurred in January 2021.
Out of the father’s dismay of the happenings of January 2021, he has stood back and taken stock of what is occurring between himself and the mother in relation to his parenting of and his conduct of his relationship with X. The result of that process has been the present application. It was initiated in my view on the basis that he did not know how else to confront what was happening with the X ceasing spending time with him other than changing the place of handover from X’s school.
When this did not occur the father filed the present application on 5 March 2021 for X to live with him and spend time with her mother on alternate weekends.[195] His view that it was appropriate for that to occur was fortified through the Family Consultant’s recommendations expressed in the third Family Assessment Report of October 2021.
[195] Judgment 30.06.2021 [8].
The father’s oral evidence was that he wished to avoid having X go through the “turmoil” of being absent from time with her father.
His evidence that he “almost lost” his daughter after January 2021 speaks of his deep love and regard for his daughter and his own fear that his relationship with her might be lost and that in his view that that relationship is subject to the mother’s lack of support.
Despite this reasoning on the father’s behalf and his fears, it has turned out that his relationship with X and other members of his household has been more robust and resilient than he feared it might not be.
The relationship has resumed with little difficulty speaking of the relationship being meaningful and loving.
His discipline and management of X’s challenging behaviours and comments does not warrant him “walking on eggshells”. The history of his relationship with X from June 2021 should inform him that he has managed matters of X’s behaviour and attitudes, generally speaking, appropriately and without damaging his relationship with X.
The question then becomes whether the “window of opportunity” identified by the Family Consultant said to exist prior to adolescence to change X’s place of primary residence from her mother to her father should now be changed.[196] The Family Consultant expressed that view on the basis that the current dynamics would be unlikely to change and this would be to X’s detriment.
[196] Exhibit 9, Third Family Report, [142].
I do not agree. The evidence is that the dynamics have changed in terms of the mother’s approach in addressing X being given to discussion and recitation of complaints about the father and members of his household and that household of the type about which she previously complained.
Although a relatively long time coming and initially motivated by a fear of a legal result rather than born of insight to promote X’s interests, I consider on balance that the mother is now motivated to ensure that X attends time with her father as provided in the orders of October 2019.
The mother has pulled back from the brink of the development of a set of circumstances that might well have seen X relationships with her parents and extended family members disrupted and, however resolved, would have caused a real likelihood of significant unhappiness for X.
Should time prove that I am mistaken in forming this view then it is difficult to envisage the circumstances under which X’s present living arrangements with her mother would continue undisturbed.
I am of the view that the mother has changed her approach with X and that that change was made in combination with the nature of X’s relationship with her father.
A CONSIDERATION OF LEGISLATIVE PROVISIONS
The submissions of the parties did not address the legislative provisions that must be considered in determining the present dispute between the parties. I reject insofar as it might be implied by the parties’ respective submissions that a resolution of factual matters and the implications that might be drawn from those resolutions of fact enables the necessary consideration of legislative requirements to be regarded as self-evident. I must in any event consider the necessary legislative requirements of the Family Law Act 1975.
The present proceedings fall to be determined pursuant to Part VII of that Act.
In determining what parenting orders to make a Court must regard X’s best interests as the paramount consideration.[197]
[197] Family Law Act 1975, ss60CA and 65DAA.
Section 60B of that Act sets out that the objects of Part VII are met with an emphasis on the children having the benefit of both parents having a meaningful involvement in their children’s lives to the maximum extent consistent with children’s best interests and that children have a right to know and to be cared for both of their parents regardless of whether the parents have never lived together or married and children have a right to spend time and communicate on a regular basis with both of their parents and other people significant to their care subject to children being protected from being subjected to or exposed to abuse, neglect or family violence.
Section 60CC of the Act sets out those matters that must be considered in determining what is in a child’s best interests. Those mandatory requirements are set out in ss 60CC(2) and (3).
Section 60CC(2) sets out the primary considerations as follows:
(a)the benefit to the child having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing those primary considerations, a Court must give greater weight to the matters set out in ss60CC(2)(b).
Section 60CC(3) sets out fourteen additional considerations which must be brought to account. These additional considerations can be conveniently grouped:[198]
(a)issues relating to a child or children being their views, level of maturity, culture and relationships;
(b)issues relating to the parents being decision making, time spent with a child or children, fulfilled obligations, attitude, capacity and exercise of responsibility;
(c)issues of family violence;
(d)effect of change;
(e)practical difficulty of implementation;
(f)avoiding further proceedings; and
(g)other relevant matters.
[198] Bielen v Kozma [2022] FedCFamC1A 221; 6 Fam LR 59.
In the circumstances of this case, I find that X has and should have the benefit of a meaningful relationship with each of her parents. Each of her parents gave evidence that X is loved by the other parent and the observed interaction of X with each of her parents over the course of the three family Reports prepared by the Family Consultant makes that plain.
I find that there is a need for X to be protected from being exposed to abuse in the form of psychological harm arising from her being facilitated and fostered in maintaining and focussing upon what X perceives as negative complaints about aspects of her father’s care whilst she is with him to the discounting of those benefits that flow to her from spending time in her father’s care and as a member of his household. This exposure has in the past arisen within the mother’s household and on account of her discussions and actions with X. The effect of that conduct on behalf of the mother could have been not only jeopardised X’s relationship with her father and his extended family but her own longer term welfare and in this sense cannot be regarded as other than as serious.
That need for protection is now addressed through the mother’s change in approach and in ensuring that X attends upon her father and that the time is regarded by her and so related at least indirectly to X as relatively happy.
X’s views at the time of interview with the Family Consultant in September 2021 were that she wished to remain in her mother’s primary care and living with her youngest brother and seeing her eldest brother frequently. That she should express such view is to be expected as she has grown up with her brothers in her mother’s care and that has been the place where she has sent the majority of her time since her birth.
X’s views that were expressed then to the Family Consultant about spending time with her father must be regarded of little weight given that were formed under the expectations and feelings of her mother about how X’s relationship with her father should be conducted and the role that X’s views were to play in that conduct of that relationship.
X is 12 years of age. I accept the Family Consultant’s view that X is at the point of adolescence and that she has or is about commence on important part of her life where she will further develop and consolidate important relationships in her life and gain experiences which will equip her to negotiate her future adult world. I am of the view that X will need and is entitled to receive support from each of her parents to achieve that including a proper outlook on the importance of time spent with each of her parents.
Between January and June 2021 that did not occur and X was allowed by her mother to develop a distorted view of her time and her relationship with her father and members of his household and her role in structuring that time and those relationships to the point that it disrupted not only X’s time with her father but with her schooling.
To the extent that X’s views about not wishing to spend time with her father were made known to the Family Consultant, general practitioners, her brothers and through her diary, I would consider those not to be matters of decisive weight in the circumstances of this case.
The mother has made a number of decisions following X’s January 2021 holiday that in retrospect reflects adversely upon her capacity to meet X’s needs as to her relationship with her father and his family and her schooling.
Those actions have fortunately have not adversely affected the father’s relationship with X as the resilience and strength of that relationship has seen a resumption of the father’s relationship and time with X. This does not mean however that the failure of X to attend upon her father for five months was not without consequence for X’s welfare. Any absence of a parent from a child’s life that is not otherwise unavoidable affects the parent/child relationship and persistence of any sort of absence increases the risk of estrangement and can exacerbate an inability to accommodate differences in approach and routine between parent’s households.
X has a right to be able to transition freely between her parent’s households and that has not been respected by the mother in the period January to June 2021.
The father failed to exercise time with X as offered in March 2021 seeking, as he then saw it, to forgo his time with X to enable X to then resume school attendance. In all the circumstances, I do not think that the force of the father’s case for a change in X’s living arrangements can be overly diminished on account of that decision.
Family violence in this matter is a matter of history between the parties in the sense that it has not proved an impediment to the parties now promoting positions that see X spending (eventually) at least significant time with each of her parents. The existence of family violence was largely confined at the time of the breakdown in the parties’ relationship and in the aftermath that took place shortly thereafter. As each of the parties was then argumentative and hostile and verbally aggressive towards the other.
In this sense I find that the characterisation of the family violence as she view it as “situational’ by the Family Consultant to be an appropriate way to describe and give context to the parties conduct towards and in respect of each other at that time.
I do not agree that the mother’s conduct in allowing X to develop what the Family Consultant referred to as a “narrative” about her father as constituting “family violence” of a controlling type. Such conduct was but a demonstration on behalf of the mother of a poor attitude to the responsibilities of parenthood to ensure that X enjoys the right to have the benefit of a relationship with both of her parents.
Since that time the parties have been mistrustful of each other to the extent that they feel they can each rely upon the other to value and respect X’s relationship with the other parent and their manner of her upbringing with each of them.
The parties each have the practical ability to give effect to orders in respect of parental responsibility and to facilitate X spending time with each of her parents in terms of logistics. The mother has as of June 2021 demonstrated that she has the practical ability to ensure that X attend time with her father as provided in the October 2019 orders.
Although at the time of trial there had not been agreement reached between X’s parents as to X’s high school attendance I formed the view on the father’s evidence at trial that that was a matter that was likely to be resolved by agreement as it would have to be under the existing orders for equal shared parental responsibility and that the parties were aware of and capable of weighing the relevant issues in that regard.
The substantial considerations and the matters which attract greatest weight in this matter are the effect upon X’s interests of a change in X’s circumstances that would now be brought about if her living arrangements were to be varied in accordance with the orders proposed by the father and those proposed by the mother the preference to be given to making orders that would be most least likely to lead to further institution of further proceedings in relation to X.
The father’s proposed change in X’s living circumstances would be without doubt substantial.
X has grown up as a member of her mother’s household with her brothers to whom she is very close and loves. Although the eldest of the brothers have left home, X retains a close bond with him and it would appear that her younger brother is likely to be at home for some time yet.
In this context X has developed as a child who has had to be a member of two households which each offer different benefits to X and contain different potential risks to her welfare.
I reject the submission that a change in X’s “primary care” (taken to mean that X spends most of a school fortnight with her mother) to her father would be “catastrophic” for X. As an alternative to her mother’s “primary care”, X’s father would be the logical and ready choice.
I consider on the evidence on the whole that the preferable course would be X’s living arrangements to remain largely unaltered as the impact of any change is, at best, uncertain and, at worst, damaging to X’s welfare. I am not satisfied that X would adapt to such a change without resentment and profound unhappiness or that such resentment or unhappiness could be successfully redressed through counselling.
Such difficulties may well give rise to further litigation.
There is a risk in the circumstances of this matter that this third round of litigation may not be the last concerning X if the mother fails to adhere to and ensures adherence to the terms of Court orders.
I accept the evidence that everything under the October 2019 orders and the June 2021 orders by the time of trial were working for X’s benefit.
The mother seems to have arrived at the acquisition of and understanding of the necessary “tools” to ensure that X spends time with her father was provided under the orders despite that her insight and understanding in having done so was less than complete and ideal. That arrival appears on the evidence to have come about on account of the presence of the father’s application to this Court rather than insight as to how X’s interests might be better served.
Be that as it may, I am of the view that the provision of this judgment determining that the mother’s approach in dealing with X’s complaints about various aspects of her father’s care has in very many respects been misguided should see the end of litigation in relation to X’s spending time with her father and the notion that X’s “voice” should be utilised by the mother as simply determinative of when and how her relationship with her father is to be conducted.
I would not apply the presumption of equal shared parental responsibility identified in s61DA of the Act in the circumstances of this matter as there is, albeit somewhat dated, family violence of a “situational type” present in this matter.
However, I determine that it is in X’s best interests that the parties continue to have equal shared parental responsibility for X despite the level of mistrust and disregard that persists between the parents. Such an order will require the parties to consult and make a genuine effort to agree about long terms issues in relation to X’s welfare in arriving at a joint decision in respect of those matters.[199] Such a provision will continue to see the parties each keep the other informed of any developments in X’s long term welfare.
[199] Goode & Goode 92006) FLC 93-286 at [38] – [39]; s65DAC.
I do not consider that orders made for X to spend equal time with each of her parents would be in her best interests. Taking in to account the matters I referred to above, I consider that it is in X’s best interests that the living arrangements provided for in the orders of October 2019 should be followed as closely as practicable. I also find for the reasons given above that such arrangements are reasonably practicable.

For these reasons, and despite the mother’s case in many respects not being made out, I have concluded that X’s best interests are served by there being orders in terms of those appearing at the beginning of this judgment. They are orders which largely follow the time structure provided in the orders of 18 October 2019 and 30 June 2021.
As to the terms of the orders, I consider that the orders are best expressed in terms of X living with each of her parents at various times rather than as live with/spend time orders so as to emphasise that X’s life is to be lived with each of her parents in their respective households. Also the orders to now be made should reflect current dates that would otherwise be applicable as if existing orders would be continued given that orders are now made at this time.
I do not consider that it is in X’s best interests that orders again be made that X be at liberty to contact the other parent whilst she is in the care of the other as such occasions could see such conversation become difficult to control and manage. In the absence of orders it will be for each parent to determine as part of their respective household routine what rules and protocols are to apply in relation to X’s phones both generally and to the other parent.
I consider that it would be in X’s best interests that each parent not attend school and sporting functions and events that parents would normally be able to attend that occur in the other parent’s time unless written consent has been first had and obtained and the parties not approach each other so as to avoid X being placed in any position of having to unnecessarily display loyalty to one or other parent on such occasions.
Handovers that do not occur at school should occur unless the parties otherwise agree in writing by the father delivering X to the mother’s residence at the commencement of X’s time to live with her mother and for the mother to deliver X to her father’s residence at the commencement of her living with her father. I also consider that there is merit and in X’s best interests that the parties remain in their respective vehicles at handovers as stipulated in the orders of 30 June 2021 so as to lessen the occasion for remarks to be made. Provision should continue for X’s paternal grandparents to undertake handovers in the absence of the father.
COSTS OF THE FAMILY CONSULTANT’S REPORT
In addition to parenting orders the father sought orders with respect to the costs of the preparation of the Family Consultant’s Report within 14 days by way of payment to the father’s solicitor’s trust account.
In that regard I note that order 7 of 30 June 2021 makes provision for the payment of the Family Consultant’s Report. Having not received any further submission in respect of the order now sought for payment within 14 days, I do not intend make an order to that effect. The order of 30 June 2021 for payment otherwise remains to be enforced.

I certify that the preceding six hundred and forty-three (643) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn.
Associate:
Dated: 16 November 2023

File number(s):	ADC 1613 of 2011
Judgment of:	JUDGE McGINN
Date of judgment:	16 November 2023
Catchwords:	FAMILY LAW - CHILDREN – Previous orders made – Third application – Child 11 years at trial – Child withheld then compliance with order – Parents not lived together since child’s birth – Co-parenting relationship – Support for other parent’s relationship – Lack of support in the past – Lack of support affecting school attendance – Risk of repetition – Sibling relationships – Risk of future disruption of parental relationship
Legislation:	Evidence Act 1995 (Cth) s140 Family Law Act 1975 (Cth) ss60B, 60CA, 60CC, 65DAA Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021
Cases cited:	Andrew & Delaine [2009] FamCA FC 182 Australian Securities and Investments Commission (ASIC) v Hellicar; ASIC v Brown; ASIC v Gillfillan; ASIC v Koffel; ASIC v Terry; ASIC v O’Brien; ASIC v Willcox; ASIC v Shafron [2012] HCA 17; 247 CLR 345 Bielen v Kozma [2022] FedCFamC1A 221; 6 Fam LR 59. Carriel v Lendrum [2015] FamCAFC 43 D & P [2006] FamCA 170 DL & W [2012] FamCAFC 5; (2012) FLC 93–496 Dodd & Dodd v Stuart (1976) 1 FamLR 111, 540 Fairfield & Hoffman [2021] FamCAFC 151 Friscioni & Friscioni [2010] FamCAFC 108 Goode & Goode 92006) FLC 93-286 Hall and Hall [1979] FamCA 73; (1979) FLC 90 – 713 Hannigan & Sorraw [2010] FamCAFC 257 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Muldoon & Carlyle [2012] FamCAFC 135; (2012] FLC 93 – 513 Oakley & Cooper [2009] FamCAFC 133 Rader & Haines [2022] FedCFamC1A 156 Rice v Asplund ([1978] FamCA 87; (1979) FLC 90 – 725; 6 FamLR 570
Division:	Division 2 Family Law
Number of paragraphs:	643
Date of last submission/s:	12 February 2023
Date of hearing:	11 – 15 July 2022; 29 August 2022; 21 November 2022
Place:	Adelaide
Counsel for the Applicant:	Ms Lewis
Solicitor for the Applicant:	Douglas Hoskins Legal
Counsel for the Respondent:	Mr McQuade
Solicitor for the Respondent:	Ryder Family Law

ADC 1613 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR AITCHISON Applicant
AND:	MS ELKERS Respondent

ORDER MADE BY:	JUDGE McGINN
DATE OF ORDER:	16 NOVEMBER 2023