Akbay & Nazli
[2025] FedCFamC2F 440
•4 April 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Akbay & Nazli [2025] FedCFamC2F 440
File number(s): MLC 4436 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 4 April 2025 Catchwords: FAMILY LAW – PARENTING – children now aged 11 and 9 have spent limited time with father – relationship is developing – father seeks joint decision-making responsibility and for children to spend time with him on alternate weekends and mid-week during school terms and for half of school holidays – father submits mother undermines his relationship and time with the children – finding father subjected mother and children to family violence – father assessed to have an authoritarian and mocking parenting approach – children fear father – father lacks insight into impact of his behaviour and lacks capacity to emotionally support the children – order for mother to have sole decision-making responsibility and for children to spend four hours with the father on alternate weekends, with professionally supported changeovers for one year – order permitting mother to travel overseas with children. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4AB, 43, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61CA, 61D, 61DAA, 64B, 65D, 65Y, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited: Amador & Amador (2009) 43 Fam LR 268; [2009] FamCAFC 196
Bielen & Kozma (2022) FLC 94–123; [2022] FedCFamC1A 221
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Keating & Keating (2019) FLC 93–894; [2019] FamCAFC 46
Kuebler v Kuebler (1978) FLC 90-434; [1978] FamCA 26
Lainhart & Ellinson (2023) FLC 94–166; [2023] FedCFamC1A 200
Line & Line (1997) FLC 92-729; [1996] FamCA 145
Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598; [2003] HCA 48
Division: Division 2 Family Law Number of paragraphs: 237 Date of last submission/s: 28 November 2024 Date of hearing: 18-20 November 2024 Place: Melbourne Counsel for the applicant Ms Vogel Solicitor for the applicant Cohen Lawyers Counsel for the respondent Mr Allen Solicitor for the respondent Bramham Lawyers ORDERS
MLC 4436 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR AKBAY
Applicant
AND: MS NAZLI
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
4 APRIL 2025
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Decision-making
2.The respondent (“mother”) have sole decision-making responsibility for decisions about major long-term issues relating to the children, X born in 2013 and Y born in 2015 (“the children”).
3.When making decisions about major long-term issues relating to the children, the mother:
(a)First write to the applicant (“father”) to invite his views regarding any decision she proposes to make in relation to those issues, save for when an urgent decision is required and this is not practicable;
(b)Consider any views expressed by the father in writing within seven days in response to her invitation; and
(c)Advise the father of her decision in writing, as soon as practicable.
Children’s living arrangements and time with the father
4.The children live with the mother.
5.The children spend time with the father as follows:
(a)Each alternate Saturday from 10.00 am until 2.00 pm; and
(b)At such other times or days as agreed between the parties in writing.
Special Occasions
6.Unless otherwise agreed in writing, if the children are not otherwise spending time with the father on the following special occasions, they spend time and communicate with him as follows:
(a)On each of the children’s birthdays and the father’s birthday,
(i)From 10:00 am until 2:00 pm if a non-school day; and
(ii)From 4:30 pm until 7:30 pm if a school day;
(b)On Father’s Day, from 10:00 am to 2:00 pm; and
(c)For Christmas:
(i)In 2025 and each alternate year thereafter, on 24 December, from 10:00 am until 2:00 pm; and
(ii)In 2026 and each alternate year thereafter, on 25 December, from 10:00 am until 2:00 pm.
Changeovers
7.Unless otherwise agreed between the parties in writing, they each do all things required to facilitate the children moving between their care pursuant to these orders (“changeover”) as follows:
(a)In the foyer of McDonalds at Suburb C; and
(b)Until the commencement of term 2 in 2026, changeover at the commencement of the children’s time with the father be facilitated and supported by B Family Services or another agreed professional supervisor, at the father’s expense.
8.To facilitate the supported changeovers provided by order 7(b), the parties forthwith do all things necessary to enrol with B Family Services or another agreed professional supervisor.
9.Unless otherwise agreed in writing, each of the father and the mother are restrained, including by their servants and agents, from having other family members in attendance at changeover and from recording changeover.
Children’s communication with the parties
10.In the event the children do not spend time with the father on any given occasion pursuant to these orders, including if the father or the children are overseas, the mother facilitate the children communicating with the father by phone or video at times to be agreed and failing agreement, at the time the children would ordinarily commence spending time with the father, for a period of up to 30 minutes.
11.Each of the parties facilitate the children communicating with the other parent by phone or video upon the reasonable request of the children at times the children are in their care.
Parties’ communication, access to and sharing of information and attendance at school and events
12.The parties communicate with each other in relation to the children using the AppClose application unless otherwise agreed in writing.
13.Communication or agreement that is to be in writing pursuant to these orders may be via AppClose.
14.Each of the parties be at liberty to obtain reports and information from the children’s school and to attend separate parent-teacher interviews, school activities and functions and the children’s extracurricular activities.
15.For the purpose of order 14, the parties each keep the other informed of extracurricular activities the children attend.
16.Each of the parties be authorised to obtain medical records, and details of the children’s medical practitioners that are either treating or consulting the children, and are required to advise the other party in relation to any medication prescribed for or administered to the children within 24 hours.
17.Each of the parties advise the other party of any medical emergency, illness or injury in relation to the children within 24 hours.
18.Each of the parties advise the other party of any change of residential address or mobile telephone number without 24 hours.
Travel and children’s passports
19.The mother be at liberty to travel interstate and internationally with the children for the purpose of a holiday provided she gives the father:
(a)At least 30 days written notice of her intention to travel with the children including an itinerary with proposed dates of travel and destination(s); and
(b)Contact numbers for the children for the duration of the holiday.
20.Each of the parties as soon as practicable do all things necessary to apply for and thereafter renew the children’s Australian passports from time to time.
21.The mother pay the cost associated with the issuing and renewal of the children’s passports.
Injunctions
22.Each of the parties are restrained by injunction from:
(a)Denigrating the other parent and/or the other parent's family while the children are in their presence or hearing, and/or allowing the children to remain in the presence or hearing of any third party who is denigrating the other parent or the other parent's family;
(b)Committing family violence towards the other parent and the children and permitting anyone else to do so;
(c)Discussing the family law proceedings with the children and/or in the presence or hearing of the children, and/or showing the children any documents relating to the family law proceedings, save that the mother may inform the children of these orders directly or with the assistance of the children’s psychologist; and
(d)Discussing parenting arrangements with the other parent in the presence or hearing of the children.
Other
23.Each of the parties are authorised to provide to their own psychologist or counsellor, copies of the reports prepared by Ms D and Ms E for this proceeding, together with a copy of these orders and the reasons accompanying them.
24.The parties are authorised to provide a copy of these orders to the professional supervisor(s) engaged pursuant to order 7(b) and to any school, medical professional and provider of any extracurricular activity attended by the children.
Procedural
25.All extant applications be dismissed.
Obligations, consequences of contravention and assistance with orders
26.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS
INTRODUCTION
This proceeding concerns the children, X (a girl aged 11) and Y (a boy aged 9).
The parties are the children’s parents. I will refer to the applicant as the father and the respondent as the mother, reflecting their relationships with the children and without intending any disrespect to them.
The parties are both of Country F heritage. The father was born in Country H and the mother in Australia. They met online in early 2010, when the father was living in Country H and the mother was living in Australia. They commenced a long-distance relationship and married in 2010 in Australia. As described by the father, their relationship was for most of the time a long-distance relationship.
During their relationship, the parties lived together in Australia for a couple of months in 2011, in the home of the mother’s mother (the “maternal grandmother”). They then lived together in Country H from late 2012 or early 2013 until 2015. X was born in Country H in 2013. Y was born in Australia in 2015.
The father alleges the mother abducted the children when she decided to stay in Australia. However, he did not adduce any evidence in support of that assertion and he did not issue legal proceedings at the time, so I am not persuaded that is what occurred.
The father came to Australia and the parties again lived together, in Australia, from mid-2016 until December 2017, at which time they separated and the father returned to live in Country H. The children were then aged 2 and 4.
The parties each allege the other engaged in family violence towards them. The father describes that when the parties lived together, they lived in a tense and challenging atmosphere. It is not in dispute they argued with one another. Whilst in his case outline the father “vehemently” disputed he engaged in family violence towards the mother, he admitted conduct which I find constitutes family violence towards her. I am not persuaded the mother engaged in family violence towards the father.
The children have at all times lived with the mother, including since separation in 2017.
The father returned to live in Australia in mid-2019. The children were then aged 3 and 5. They have subsequently spent time with him, generally for short periods of time on a weekly basis, but with some interruptions. The children’s time with the father was initially supervised by the mother. Following the commencement of court proceedings, their time with him was again supervised, this time professionally. Since October 2022, interim orders have provided for the children to spend unsupervised weekly time with the father in a public place, initially for two hours. Interim parenting orders currently provide for the children to spend time with the father for four hours each Saturday, at set public locations at which they can engage in activities with him, or as agreed by the parties in writing. They also provide for the children to communicate with the father on Wednesdays at 5.00 pm, for up to 30 minutes.
The parties agree the children’s time and communications with the father has been problematic. The children have been spending shorter periods of time with him than provided by the interim orders and some occasions of time have not occurred at all. Each of the parties blame the other for this.
The father alleges the mother has exposed the children to adult conflict and that she constantly undermines arrangements for the children to spend time with him, resulting in them spending only minimal and restricted time with him over the last six years. He asserts the mother’s behaviour is “indicative of a broader pattern of parental alienation, where [she] seeks to marginalise [his] role as a father in [the] children’s lives and make the children more dependent on her.” He claims she has frequently been late for changeover, has taken control of the location of changeover, restricts the activities he can undertake with the children and at times does not bring the children to spend time with him at all. He says that spending time at a shopping centre and other local locations arranged with the mother has become monotonous, predictable and boring, and that this negatively impacts the children’s motivation to see and spend time with him. Whilst he acknowledges it is at least Y’s preference to have the mother present at changeover and during time the children spend with him, he submits this does not allow the children to properly engage with him. He asserts the children’s communication with him on Wednesdays does not go well because the mother does not afford them privacy and eavesdrops on their calls.
The father seeks orders providing for the children to spend gradually increasing time with him, beginning with time on Friday afternoons (from the conclusion of school until 7.30pm) and progressing at eight week intervals such that they ultimately spend time with him during school term periods on alternate weekends (from Friday to Monday) and mid-week (on Wednesdays, from the conclusion of school until 7.30pm). He also seeks the children spend half of all school holiday periods with him, including on a “week about” basis during the long summer school holidays, along with time for special occasions. He acknowledges such an arrangement is contrary to the children’s expressed preferences but argues, “it’s probably just a matter of ripping the band-aid off”. He proposes changeover take place to and from school, to avoid what he contends is the mother’s influence at changeover.
The mother submits the children’s exposure to family violence by the father, and his anger and coercive parenting style have resulted in the children being fearful of him. She submits that while there has been some improvement in the children’s relationship with the father, they remain fearful of him and reluctant to spend time with him. She says the father does not listen to the children, including about how and where they would like to spend time and that he often changes plans he has discussed with them and pressures them. She asserts the children do not feel safe getting into a car with the father, travelling with him, or spending time with him in unfamiliar locations. The mother says she encourages the father to spend time with the children in locations proposed by them and she accommodates their requests to stay nearby when they are spending time with the father, to support their time with him. She claims they would otherwise refuse to attend at all or run away to seek her out, as they have done now on a number of occasions.
The mother seeks orders providing for the children to spend time with the father on alternate Saturdays, from 10.00 am until 2.00 pm. She submits this arrangement is emotionally safe for the children, consistently with what they have said they can manage.
The father seeks an order providing for the parties to have joint decision-making responsibility for the children, submitting he wants to be involved in the children’s lives and the mother has excluded him when making decisions about the children. The mother seeks that she have sole decision-making responsibility for the children, asserting the deficiencies in the father’s parenting capacity and anger, family violence and coercive and controlling behaviour towards her mean it is not practicable or emotionally safe for her to share that responsibility with him and is also not in the children’s best interests.
As directed, the parties tendered a joint document setting out the parenting orders they agree upon and in respect of issues in dispute, the terms of orders sought by each of them, which was updated as the case progressed.[1] It is clear from that document there is little the parties agree on, save that the children will live with the mother. The scope of agreement is otherwise limited to matters relating to their communication, the provision of and access to information about the children and some injunctions.
[1] The final version of this document was tendered on the last day of the final hearing (Exhibit B).
THE ISSUES
Accordingly, the following issues require determination:
(a)How parental responsibility for decision-making for the children is to be allocated. This requires particular consideration of:
(i)The capacity of the parties to communicate safely and effectively, to the extent required to consult with one another and make joint decisions. This requires consideration of the parties’ allegations of family violence; and
(ii)The impact of parental conflict and disputes about decision-making on the children.
(b)What orders should be made for the children to spend time with the father? This requires particular consideration of the children’s developing relationship with the father, their views, needs and emotional safety, and the father’s capacity to meet those needs;
(c)How should changeover be affected?
(d)What orders should be made in relation to the children travelling domestically and internationally with the parties and in respect of the children’s passports?
(e)Are the agreed injunctions sought by the parties and the further injunctions sought by the father appropriate for the children’s welfare?
(f)Should an order be made for further family therapy as sought by the father? and
(g)Are all other parenting orders agreed by the parties in the children’s best interests?
THE FINAL HEARING
The matter was heard over three days, from 18 to 20 November 2024. Each of the parties were represented by counsel.
Documents relied upon
The documents relied upon by the father are as follows:
(a)Amended Initiating Application filed on 18 April 2024;
(b)His affidavit filed on 17 April 2024 (“trial affidavit”);
(c)His affidavit filed on 2 May 2024 (“affidavit in reply”);
(d)His affidavit filed on 13 November 2024 (“updating affidavit”);
(e)His outline of case (final hearing) (“case outline”) filed on 15 November 2024; and
(f)Proposed order and written submissions in relation to the matter of changeover, submitted by email on 21 November 2024.[2]
[2] Orders made at the conclusion of the final hearing on 20 November 2024 invited each party to file a proposed order and written submissions in respect of the possibility of supervised changeovers. I now mark these further submissions of the father Exhibit F-3.
The documents relied upon by the mother are as follows:
(a)Amended Response to Initiating Application filed on 27 April 2024;
(b)Her affidavit filed on 26 April 2024 (“trial affidavit”);
(c)Her affidavit filed on 11 November 2024 (“updating affidavit”);
(d)Affidavit of Ms J (children’s treating psychologist) filed on 2 May 2024;
(e)The family report prepared by regulation 7 family consultant, Ms D, dated 28 June 2023 (“first family report”);
(f)Her case outline filed on 11 November 2024; and
(g)Proposed order and written submissions in relation to the matter of changeover, submitted by email on 28 November 2024.[3]
[3] The mother’s submissions were to be emailed to chambers by no later than 25 November 2024. In the absence of any objection, I have considered the respondent’s submissions even though they were provided later than permitted and exceeded the specified length of one page. I now mark those submissions Exhibit M-2.
Both parties relied on:
(a)The child impact report prepared by court child expert, Ms K, dated 4 October 2022 (“child impact report”);
(b)Affidavit of Ms E (family therapist) filed on 1 May 2024; and
(c)The family report prepared by Ms D dated 11 September 2024 (“second family report”).
BACKGROUND
I have already outlined the timeline of the parties’ relationship and the time they lived together.
I accept the mother’s evidence she has been the primary carer for the children since they were each born, notwithstanding this is disputed by the father in respect of periods they lived together. I find it likely the mother cared predominantly for X in Country H, at which time she was an infant. It is clear the mother was solely responsible for the children’s care from 2015 until mid-2016 when she lived in Australia with the children and the father lived in Country H. The father’s own evidence is that he had limited interaction with the children when he moved to Australia in 2016, asserting the mother often took the children to be cared for by their maternal grandmother while she was working. The children have lived with the mother since the parties separated in 2017, at which time the father returned to Country H. It is not disputed they have spent limited time with the father since he came back to Australia in mid-2019. This background assists to explain the children’s developing relationship with the father and his developing parenting skills.
The father deposed the parties entered into a number of parenting plans between November 2018 and November 2020, although the details of those parenting plans are not before the court. He said those agreements provided for the children to work towards spending longer periods of time with him and ultimately overnight stays. He claimed that after each agreement, the children initially spent time with him on a relatively consistent basis but that time then decreased as time passed. The mother asserts the parenting arrangements were not followed by the father, who she alleges emotionally and verbally abused the children.
The children continued to spend time with the father by arrangement between the parties. The mother deposed the father continued to coerce the children during the time they spent with him, to behave as he required of them. For example:
(a)She alleged that in early 2021, the father threatened the children that if they did not eat a nut spread sent by his family that they would not see the mother. The children have a nut allergy and experienced a rash from eating the spread. When cross-examined, the mother elaborated that the children told her they saw a picture of nuts on the spread and said to the father, “[Dad] we can’t have this” but he still insisted they have it. The father responded by affidavit to accuse the mother of being responsible because she had not told him “on purpose” about the children’s medical needs and allergies. However, this was at odds with his own evidence on affidavit that both parties “know [X] is hypoallergic”, “have witnessed [her] go anaphylactic just by being in the vicinity of nuts” and have previously “rushed [her] to hospital”; and
(b)She alleged that in mid-2021, the father threatened the children by saying that he would not tell the mother where they were if they did not eat their food. The father did not deny this occurred when responding to the mother’s affidavit.
Family law proceedings
On 29 April 2022, the father commenced this proceeding. In his Initiating Application, he sought interim orders for the children to spend time with him for four nights overnight each fortnight, together with half of school term holiday periods and time on special occasions. The father also sought an interim order restraining the mother by injunction from taking the children to a psychologist or psychiatrist without his prior written consent. On a final basis, he sought orders providing for the children to spend equal time with both parents, and for the parties to have equal shared parental responsibility.
On 27 May 2022, the mother filed a Response to Initiating Application, in which she agreed to a final order for equal shared parental responsibility. She sought to be excused from particularising the final orders she sought pending the preparation of a child impact report. In the meantime, she sought interim orders providing for the children to continue living with her and to spend professionally supervised time with the father on one occasion each week for two hours. She also sought the father undertake a men’s behavioural change program.
In May 2022, the children began seeing a psychologist, Ms J, upon recommendation by their general practitioner. Ms J provided three reports in respect of the children’s therapy with her,[4] which were filed with an affidavit from Ms J. Ms J was not required for cross-examination, so her evidence is unchallenged.
[4] Dated 23 May 2022, 19 June 2023 and 15 February 2024.
In a report dated 23 May 2022 in respect of Y, Ms J reported:
(a)She had assessed and observed Y and was providing psychological therapy in the context of anxiety related to the father;
(b)Y had provided accounts of being exposed to “various forms of abuse” perpetrated by the father towards himself, his “brother”[5] and mother. She said those accounts were consistent with accounts provided by X and the mother when they were assessed separately; and
(c)She was concerned for Y’s emotional, mental and physical welfare in the presence of the father.
[5] Presumably intended to be referring to X.
Ms J recommended the father undergo psycho-education in positive parenting, anger management and in relation to domestic violence, and that neither child (or the mother) spend time with the father unsupervised until he satisfactorily undertook the education and intervention she recommended and until Y felt safe to do so.
On 30 May 2022, interim orders were made by consent (“May 2022 orders”) providing for the children to spend supervised time with the father on one occasion a week for a period of up to two hours with a professional supervisor from B Family Services, as had been proposed by the mother. The children thereafter spent supervised time with the father for a total of eight weekly sessions. An observation report was prepared by Ms L of B Family Services on 15 September 2022 in relation to the supervised visits, which was not relied upon by either party at the final hearing. The May 2022 orders also provided for the father to enrol in and complete a men’s behavioural change program.
Child impact report
A child impact report was prepared, dated 4 October 2022. In that report, the court child expert identified significant differences in the parties’ parenting styles.
In relation to the children’s interactions with the father, the court child expert observed X’s anxiety was particularly evident when the father attempted to engage with the children in the waiting room. She observed the father interacted affectionately with the children, but reported he appeared to be frustrated by Y not wanting to engage in an activity chosen by him and that this resulted in Y stating to her, “I feel scared” and asking “when is Mum coming back?”. The court child expert observed the father talking to X in a low tone and pointing his finger in her face. She also observed the mother to be fearful of the father’s communication and reported that the mother detailed being anxious about seeing the father and about the children spending unsupervised time with him.
She observed the father denigrating the mother, recording that he referred to her as a “disgusting pig” in relation to her domestic style. The child impact report reported the father displayed hostility towards the court child expert and court child services staff.
The court child expert made a number of preliminary recommendations including (in summary and among others):
(a)The father complete a men’s behavioural change program and then engage with a psychologist, both parents engage in a Tuning into Kids program, and the mother engage with a psychologist;
(b)The children continue to engage in non-reportable therapy;
(c)The children remain in the mother’s primary care and transition towards spending increased, unsupervised time with the father, aligning with treatment engagement and completion. She recommended the children spend at least four hours with the father on a weekend day, in a public location, to safeguard the children should the father engage in verbal violence, and for this time to be fixed and repetitive. She recommended the length of time increase beyond four hours after the father has completed his treatment; and
(d)The children spend activity-based time with the father, to support him to develop a qualitative connection and parenting style, such as bowling, movies, swimming, play centres, art classes and the zoo.
Interim parenting orders were made on 18 October 2022 (“October 2022 orders”) with the benefit of the child impact report, providing for the children to spend unsupervised time with the father on one occasion a week, for a period of up to two hours. That time was to occur in a public place, with changeovers at McDonalds. The October 2022 orders also provided for the father to attend upon a psychologist and to complete a men’s behavioural change program, given he had not done so following the May 2022 orders. The father enrolled in this program in December 2022 and began engaging with a therapist in February 2023. He deposed he decided to continue attending individual therapy voluntarily after the ordered sessions had concluded.
The father deposed that the commencement of unsupervised time went well. In his trial affidavit, he described that “[Y] was understandably anxious but with [the mother’s] help, it went well.”
On 23 February 2023, further interim orders were made by consent (“February 2023 orders”) which increased the unsupervised time the children spent with the father, from 10.00 am until 2.00 pm each Saturday (so, for four hours). The orders also provided for the children to communicate with the father by telephone every Wednesday for no longer than 30 minutes. A notation to those orders provided that the father was to inform the children of the plans and activities that were to take place on each Saturday on the preceding Wednesday phone call. The father was also restrained from recording changeovers which were to continue occurring at one of two McDonald’s restaurants.
The mother says the children found the transition from supervised to unsupervised time difficult and that after the February 2023 orders they were frequently anxious about the prospect of spending four hours of unsupervised time with the father. She said Y complained his “tummy hurt” when he felt anxious. The father also deposed he observed the children’s anxiety and persistent stomach aches, and that he saw them suffering.
In respect of this period, the mother reported frequent disagreements between the father and herself and the children, in respect of the activities that the father planned for the children and the father changing plans which had been discussed with the children in preparation for their time with him. She claims the father did not take into account the children’s wishes or interests in his decisions. She described numerous incidents of conflict at changeover, including with the children, as a result of these disagreements. By way of example, she deposed:
(a)On 4 March 2023, the father informed Y they would not be attending the movies as previously discussed and Y got back into the mother’s car. X then said she would not go with the father if Y was not. A disagreement ensued. The mother described the father tried to get into her car;
(b)On 5 March 2023, the mother left the children to walk towards the father at changeover. Y returned, approaching her car crying hysterically, with X chasing after him. After the father interceded physically, the mother left the children with the father and drove away. The children later reported to her an incident that occurred during their drive with the father to a venue, in which the father pulled over and attempted to slap Y across the face, after Y almost said the word “shit”. To the family report writer, Y said the father stopped the car to smack him but he dodged him. The family report writer reported X’s account was consistent with that described by Y. When asked about this by the family report writer, the father advised he had not been about to slap Y, rather to “swipe” at him. In court the father gestured to demonstrate, first shaking his fist back and forth beside his head and then holding his hands up in the air out wide. Both gestures I accept would have been frightening to the children (noting they were then aged 9 and 7). Whether an attempt to slap, smack or a swipe, I find the father’s action constituted family violence which caused the children fear; and
(c)On 25 March 2023, the mother was accompanied by her cousin, Ms M, at changeover. The children became distressed and their time with the father did not proceed. The father admitted recording the mother’s cousin at changeover, claiming she was bringing conflict to the children’s changeover. He acknowledged approaching the mother’s cousin while filming and that he continued to film after she asked him to stop. The father’s conduct on this occasion was contrary to the February 2023 orders which restrained him from recording changeover. The mother’s cousin phoned the police. In his trial affidavit, the father provided only a partial account of what occurred, as follows:
[…] during another changeover, [the mother’s cousin] escalated tensions by involving the police. Due to [the mother’s cousin], the children missed to see their father that day.
I find his account was misleading by omitting his own contribution to the conflict that occurred on that day. Had the father not approached the mother’s cousin’s car, filming, changeover may have proceeded smoothly and the children would not have been exposed to what he acknowledged was an occasion of conflict. When asked about this incident by the family report writer, the father advised it has been very difficult for six years and he needs his kids. When asked by counsel for the mother if he would do anything differently if the same situation occurred, the father answered, “To be honest, if it’s the same person we’re talking about, no.” The father’s evidence and response to the family report writer displayed a lack of insight into his own contribution to the conflict that occurred on this occasion and the impact of that conflict on the children and an unwillingness to change his approach.
The mother deposed the father repeatedly suggested outings with the children they did not feel comfortable with, because they were unfamiliar or far from home. It is apparent the father continued to challenge the children’s suggestions for activities they felt comfortable with, proposing activities he thought would be more adventurous and fun. As one example, the mother gave the following unchallenged evidence:
On 24 February 2023, [the father] messaged me requesting the children be dressed in tracksuits and sporting shoes. The children wanted to know where [the father] was going to take them. At 5.56 pm, [the father] told me that the children will go for a "swim and gym". When I queried the location, he said [Town N]. I suggested [the father] take them to a familiar location. [The father] asked me for a recommendation for a swimming centre and I told him that the children enjoy attending the [O Sports Centre]. [The father] responded that because [O Sports Centre] is an indoor swimming pool, that was an activity for a rainy day. He advised that he preferred to go to an outdoor pool either on [Q Street] or in [Suburb P]. I replied that the focus should be on what would make the children comfortable, especially given this was the first time they were to spend 4 hours in [the father]'s care.
On 19 June 2023, Ms J prepared another report in relation to Y, in which she expressed concern for his emotional wellbeing in relation to the time he spends with the father. She reported Y provided an account of a physical incident during a changeover and assessed his fear, worry and anxiety had further heightened. She described that during a recent therapy session, Y became emotionally distressed and spent most of the session crying when the incident arose in discussion. She said Y insisted on not seeing the father.
First family report
On 21 June 2023, the family was interviewed for the first family report. X was then aged 9 and Y aged 7. In respect of the father’s parenting at that time, the family report writer reported:
[The father] presents with limited understanding of the children’s needs in terms of emotional and psychological stability, and little insight into changing his parenting according to his children’s needs, as opposed to expecting the children to accept his parenting, despite it being vastly different from [the mother]’s style of parenting.
[The father] has a reported history of enforcing what appears to be an authoritarian expectation of children and parenting style, often at a higher age and stage of development than the children can sustain. For example, whilst it is expected that parents can, and should, make decisions regarding outings, [the father] had been expressly asked to take the children to places that they wished to attend, to support bonding, and he has not adhered to this agreement. [The father] appears to believe that he is able to decide where the family attend during time spend, without considering the children’s views or the positive relationships he could build if he allowed the children autonomy over outings. It is acknowledged, however, that [the father] does choose age-appropriate activities.
[The father] was unable to take responsibility for the issues during changeover, instead, blaming [the mother] for making the children anxious and, therefore, deflecting responsibility for his part in the process. [The father] did not have insight into the children becoming distressed during changeover, which presented as not understanding the children’s needs to feel safe, regardless as to whether [the father] believes they should feel safe.
The children informed the family report writer they did not want to see the father at the family report interviews. The family report writer said she had to reassure them she would be present, for them to agree to take part. She requested support from a court staff member for her observations of the children with the father, which she described as follows:
When [the mother] and her mother had to leave the room, both children began crying extremely loudly, often turning into a wail, and both clung to [the mother] in a bid to prevent her from leaving. [Y], in particular, found this separation very difficult and assistance was required to prevent him running after [the mother]. The Court staff sat with [Y] on one sofa while the Family Consultant went to get [the father].
Upon entering the room with [the father], both children began to cry again and [Y] began to wail, backing away into the corner of the sofa. [The father] sat very closely next to [X] and she immediately looked at the writer, appearing scared. The writer asked if she would like her to sit with her and [X] nodded. [The father] asked how [X] was feeling, knowing she was feeling unwell, but also persisted with asking regarding her injured foot. [X] did not want to talk about this and remained crying softly. [The father] frequently asked regarding her foot, wiping her tears from her face, and when [X] mentioned her mother had said something, [the father] leaned closer, more persistently asking what her mother had said.
[The father] continued persisting with asking [Y] why he was crying, which made [Y] cry more. There appeared to be an element of mocking in the questions, especially to [Y], with an inference that there was nothing to be upset about. When [the father] asked [Y] about his foot, which also appears to have been injured, [Y] was able to advise which foot it was but outrightly refused to show [the father] or let him come closer to him. Both children were able to be slightly assertive regarding their feet, albeit it with short answers, with two supervisors present.
[...]
After 20 minutes, and repeated queries from [Y] regarding how long was left, The Family Consultant ended the observation, given the children’s distress was not declining.
Among other things, the family report writer recommended the children continue to reside with the mother and return to spending supervised or monitored time with the father while undertaking therapy to assist with rebuilding their relationship and to enhance the father’s understanding of child development and needs.
Family therapy
Orders were made on 19 July 2023 (“July 2023 orders”) that suspended the children’s time with the father until 2 October 2023, to allow the parties to attend family therapy as recommended by the family report writer, and mediation.
In August 2023, the parties and children attended upon Ms E, psychologist, for the purposes of therapeutic family therapy. Ms E prepared a report on 13 November 2023, followed by an addendum report on 27 November 2023. Those reports were based on eight sessions the family attended with her. The mother was present for three of those sessions and otherwise waited in the waiting room. In her first report, Ms E described the presentation of the children and the father and their interactions in the following terms:
[The children] are frightened, distressed and anxious about seeing [the father]. They approach and retreat, approach and retreat, in a repeated and classic display of wary, fearful anxiety.
[The father] is angry and coercive in session, even though he tries to hide it. […] [The father] actively exposes the children to conflict, he aggressively parents even when he is attempting to be calm.
[…]
[The father] moderates the expression of some of his aggression, because he is seeing his children and so he will "play the game", but his aggression is very apparent in the room.
[…]
During the sessions, it is clear that [the father] has a transactional style of looking at the world, and wants advice and help from others to guide his parenting, yet he also resents that he needs this advice and guidance. [The father] is not adept at showing his children that he loves them, he does not say "thank you for coming today", he does not tell his children he is pleased to see them directly, and in the sessions he has not apologised for being away from them. [The father] sees himself as a victim and has maligned [the mother] and blamed court processes in front of the children in session. [The father] is often silent for long periods during sessions, and relies entirely on the writer to lead and create convivial, child centred, attuned conversation. Many times both children would simply leave in tears, feeling unheard and misunderstood were it not for the active efforts of the writer to repair and create a sense of safety and care. [The father] makes himself comfortable on the couch and does not move at all, or speak for a great deal of the sessions.
[…]
The children express alternating high anxiety to leave the room, or acquiesce if they have [the father]'s undivided attention, so one child at a time will talk to [the father], while the other child withdraws in anxiety and fear. [The father] cannot seem to talk to both children at once.
[…]
The children alternate between wanting their mother in the room, expressing fear, wanting to leave, and arguing with their father, or short bursts of chatting about their day, heavily encouraged by the writer. If the writer were not present, it is likely no conversation would occur that didn't result in the children wanting to leave within 2 to 5 minutes.
In relation to the education undertaken by the father, she reported:
It is evident that [the father] has learnt something and has superficially modified some of his aggressions towards others, but aggression and anger are his primary expressed emotions, although now including both passive and active aggression with insecure bragging, as well as a rigidity around food and gifts that [the father] has not yet developed insight around. [The father] claims to be a victim, but cannot see how he is aggressive most, if not all, of the time.
In relation to the father’s parenting attitudes, Ms E reported [with her emphasis]:
[The father] aggressively and overtly blames [the mother] for his situation. This means [the father] does not develop greater insight into the reason his children are afraid of him. [The father] is responsible for his blame of [the mother], and his anger toward his children. [The father] is responsible for holding and acting on his negative beliefs, and for aggressively stating his "right" to see the children, rather than their right to feel safe, and his obligation to parent without exposing them to conflict. [X] and [Y] have a right to see both their parents and feel safe when they do, currently they do not feel safe, and [the father] is primarily responsible for their felt sense of fear and anxiety. [The father] needs individual guidance to stop his behaviour interfering with his relationship with his children.
[…]
[The father] lacks insight into his aggression and need for control of his children. It is also evident he is anxious and trying very hard, but continually relies on and expects someone else to fix the problem. Initially [the father] told the writer "it's your job to make sure I see my children" without any hesitation, he needed to have a sense of control over defining the role of the therapist to the therapist. Although [the father] apologised for this almost immediately, his sense of entitlement to define and tell a professional their job, was an immediate act of aggression and control. [The father] does not see this behaviour in himself as inappropriate or aggressive, [the father] sees this as normal.
Children’s time with the father after family therapy
The children’s time with the father recommenced on 9 December 2023.[6]
[6] As recorded in a notation to orders made on 4 December 2023.
The father deposed he discussed potential activities with the children for the following week, including a play venue as a potential activity. He asserted the children did not attend to spend time with him the next week because the mother did not support those plans. The mother said the reason the children did not attend was because they were anxious about spending four hours in the city with the father. I accept this is likely, given what the children had articulated to the family report writer and Ms E and particularly given the children’s time with the father was resuming after a period of suspension.
The children spent time with the father inconsistently from this point. The father deposed that the children spent 22 hours with him between December 2023 and April 2024, despite court orders providing for 72 hours of scheduled time to have occurred in this period. In respect of occasions the children did not attend, the mother said the children were at times too anxious and complaining of stomach aches, amongst other issues, and on another occasion they refused to attend because they were “fearful of the unpredictability of the outings.”
On 15 February 2024, Ms J issued a further brief report. She reported both children had continued to engage in psychological therapy with her and she had not observed any changes in their thoughts, attitudes and emotions about spending time with the father. She emphasised that Y in particular, remained fearful of and became distressed about spending time with the father.
Problems continued to occur in respect of the children’s time spent with the father. The mother proposed further family therapy to address these difficulties. In his affidavit in reply, the father described this proposal as “disingenuous at best” and said:
It is evident that [the mother’s] current request for family therapy is nothing more than delay tactics rather than a genuine effort to address the issues at hand. [The mother’s] request for additional family therapy is not only unnecessary but also contradictory considering her own reservations about its efficiency Instead of prolonging this already drawn-out process, it would be more prudent for [the mother] to focus on implementing the recommendations already provided and working towards a resolution that prioritises the children's well-being above all else.
On 6 May 2024, the matter was listed before me for a final hearing of two days. The matter was stood down for negotiations but did not resolve. On 7 May 2024, I adjourned the final hearing to 18 November 2024, with an estimate of three days. I made further orders by consent (“May 2024 orders”) which provided for the children to continue spending time with the father pursuant to the February 2023 orders. The orders also provided for the father and the children (and the mother if required) to continue to attend reportable family therapy with Ms E for the purpose of the children continuing to rebuild their relationship with the father and to enhance the father’s understanding of the children’s developmental needs. An order was made for an updated family report to be prepared ahead of the adjourned final hearing, with the benefit of a further report from Ms E.
The father continued attending with Ms E in accordance with those orders, sometimes with the children (facilitated by the mother) and sometimes independently.
The children’s time and communication with the father has continued to be problematic. By way of example, on 18 May 2024, the mother and children met with the father at the amusement park identified in the May 2024 orders, for the children to spend time with the father. The mother deposed that approximately two hours into the visit, the children phoned her. Y was crying and X wanted to leave. The mother said she encouraged them to stay and heard the father yell out, “they are having a great time, and they still have time mummy!” The mother said she then received a phone call approximately five minutes later from a manager at the park. The mother was informed Y had presented to a manager on duty saying he had a tummy ache, the father wasn’t listening to him and he wanted the mother to pick him up because the father wasn’t calling her to do so. The manager asked the mother to come to the centre as Y was very upset. The mother deposed that when she arrived, Y was sitting in the cafeteria by himself, and that both children then told her they wanted to leave. She said the father told her he had the situation under control. The father agreed Y phoned the mother and was crying. He said he was confused because he did not understand why Y was crying when they were having fun together. He said he ended Y’s call and provided emotional support but did not say what that entailed. The father did not appear to be aware that Y had then approached the manager for assistance, indicating he was not sufficiently aware of Y’s emotional needs and had not sufficiently reassured or monitored him.
In his oral evidence, the father repeatedly emphasised that Y’s behaviour had changed a lot after the May 2024 orders, for the worse. He attributed this to the mother’s family bringing conflict and to the mother not supporting the children spending time with him. However, I note the children’s time had been problematic well before the May 2024 orders, even on the father’s evidence. Again, the father’s evidence demonstrated an apparent inability to reflect that the children’s responses may relate to their experience of time and interactions with him and a failure to consider how he might be contributing to that experience.
Second family report
The family were interviewed on 28 August and 5 September 2024, for the second family report.
The mother deposed she stayed next to X during her call with the father the evening before the first of those interviews, on 27 August 2024, at X’s request. In respect of that call, the mother deposed:
The father started the chat by asking [X], does she know what is happening tomorrow? He said: “Has your mum told you? I’m sure she has”. He said: “So remember you spoke to a lady last year, she’s exactly like [Ms E] he said. Tomorrow is ridiculous but it is like the airport that you have to go through security. You don’t have to talk to her.” [X] responded saying: “I remember her being nice so I can talk to her”. [The father] responded to her by saying the lady at Coles is nice too, but I don’t speak to her, so you don’t need to talk to [the family report writer] and even answer her questions. […] The father also told [X]: “No crying tomorrow and if you give me a hug, I’ll buy you something”.
The mother was cross-examined in respect of that call, which she confirmed she listened to, and I accept her evidence about it. The father pressuring the children in this way, seeking to influence the family report process, was manipulative, coercive and controlling behaviour. It is a stark example of the deficiencies in his capacity to appropriately parent and emotionally support the children.
In the second family report, the family report writer reported positive developments in the father’s approach to the children’s relationship with him, including:
(a)That he had allowed the mother to remain close to the venue during time the children spend with him, recognising they require additional support in building up the relationship; and
(b)That he had attended all family therapy appointments and was committed to attending sessions independently with Ms E to expand his parenting knowledge.
However, she again observed the father to show little understanding of the children’s emotional needs.
I will refer to the family report writer’s observations, assessment and recommendations in more detail throughout my reasons. Her ultimate recommendation in the second family report was for the mother to have sole parental responsibility and for the children to live with her and spend four hours with the father each alternate weekend. She recommended the ultimate aim should be to progress the children’s time with the father, when they are ready and when the father has further addressed his parenting issues and developed appropriate parenting skills.
Children’s time and communication with the father prior to final hearing
The father deposed in his updating affidavit that between 6 May 2024 and November 2024, the children spent a total of 15 hours with him, despite these orders providing for four hours of spend time to occur every Saturday. When cross-examined, he acknowledged the children have themselves expressed to him that they do not want to see him on upcoming weekends. Whilst he has asserted the mother has influenced the children not to attend, he agreed he does not know for sure that is the case, rather it is an “educated guess” on his part. He stated it is a relatively recent occurrence, for the children to ring him directly to say they do not wish to spend upcoming time with him and that both children had done so individually. He agreed it is possible the children were taking this approach because they are getting older and more confident in sharing their views with him.
The father reports he has only had 10 phone calls with the children since 7 May 2024, deposing that his calls and messages often go unanswered. He asserts the mother’s “eavesdropping” on the calls he does have with the children impedes their ability to have a meaningful and quality conversation. The mother’s evidence makes clear that she has listened in on at least some of the children’s phone calls with the father. I find she has acted protectively in doing so, given the father’s call with the children the evening before the interviews for the second family report.
The father deposed he has continued to attend upon Ms E and to develop his parenting knowledge and skills but a further report was not adduced from Ms E as anticipated by the May 2024 orders. I therefore do not have evidence from Ms E as to the progress of family therapy or of her work with the father beyond November 2023.
The mother asserts the children continue to experience anxiety, distress and fear about spending time with the father. In her updating affidavit she described the children’s ongoing reluctance to spend time with the father. She deposed the children report to her that the father shouts at them, including when Y cries for her. I accept this evidence which his consistent with the father challenging Y when he cried during the family report interviews. The mother described that she has on occasions stayed nearby when the children are spending time with the father, at their request and to provide them with reassurance. She described that on other occasions she has left the area where the children are spending time with the father, to go to the bathroom or to leave, and the children have then sought her out, such as Y seeking her out in the bathroom on 4 May 2024. The mother asserts the father has continued to ignore her advice regarding how to put the children at ease during changeover, and his actions have caused the children to spend significantly shorter periods of time with him than the orders provide for. Having considered all of the evidence, I accept this is likely the case.
The children’s current circumstances
The children continue to live with the mother in Suburb R.
They attend S School in Suburb R, near the mother’s home. Y was in grade 5 at the time of the hearing and will now be in grade 6. X was in grade 3 and will now be in grade 4. Y has experienced some academic challenges. In May 2023, the Head of Student Services referred him to the school psychologist for a cognitive assessment but the father did not consent to the assessment. The July 2023 orders provided for the cognitive assessment to be undertaken but the mother deposed he has subsequently coped well with his studies and the assessment has not proceeded. His need for academic support is clearly being monitored by Y’s school and the mother.
The mother reports that both children are in good physical health, although both suffer from a nut allergy. She says they both suffer from anxiety and the father agrees Y experiences anxiety. The children continue to attend therapeutic counselling with Ms J.
The parties’ current circumstances
I do find it is in the children’s best interests for an order to be made, as ultimately proposed by the mother, requiring her to inform the father of decisions she proposes to make in respect of the children and to consider his views before making a decision. I find it likely she would do so even if I did not make an order to that effect, but an order will assist to reassure the father and to set clear parameters around the consultation required by the mother. I find this will assist to ameliorate the risk of her being subjected to further family violence by the father, to protect her emotional safety, and to reduce the risk of the children being impacted by conflict between their parents. I make it clear that such an order does not impose any requirement upon the mother to negotiate with the father, only to keep him informed and to consider views he provides in accordance with the order.
The orders I make will include agreed orders providing for the parties to share particular medical information with one another and for both parties to access information and records directly from the children’s school, providers of extracurricular activities and medical practitioners. This will assist to address the father’s concern that the mother does not keep him informed in respect of the children and support the children’s relationship with the father by keeping him up to date in respect of matters of their health and education.
Family therapy
The father seeks an order that “both parties engage with a family therapist to understand and change his parenting style and learn appropriate co-parenting”. This seems to be based on the family report writer’s recommendation that “[the father] engage with a clinician to understand and change his parenting style and learn appropriate co-parenting.”
The parties have attended family therapy with Ms E. As already indicated, an updated report was not provided by Ms E. In relation to the children’s experience of family therapy, the family report writer reported in the second family report:
[X] advised that a few weeks ago, [Y] was crying at family therapy, and [Ms E] was laughing at him and he said “Stop laughing” at dad. [X] advised that she did not like [Ms E], and that [Ms E] had said her mother could stay but then said she had to go. [X] advised that she did not feel safe without her mother there.
Among the issues identified by the family report writer during the assessment for the second family report was, “whether there should be further family therapy”. After identifying this issue, she did not make a recommendation for ongoing family therapy, only for the father to engage with a clinician.
In these circumstances, I am not persuaded it is in the children’s best interests for family therapy to continue. It will be a matter for the father as to whether he chooses to accept the recommendation of the family report writer that he engage with a clinician to support his parenting capacity.
Injunctions
To make an injunction pursuant to section 68B of the Act in relation to the children, I am required to be satisfied that it is appropriate for their welfare. Section 68B is informed by the best interests of the child but not governed by the paramountcy principle.[26] The Full Court in Bielen & Kozma[27] observed there is no definition of the “welfare” of the child in the Act and expressed the view that consideration of matters impacting upon the welfare of a child “necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.”
[26] Hedlund & Hedlund (2021) FLC 94-065 citing previous authorities with approval.
[27] (2022) FLC 94–123 at [30].
I find the injunctions agreed upon by the parties reflect the children’s best interests, to safeguard them from denigration of the other parent, exposure to family violence and discussions about these proceedings. I will make an exception to the order restraining the parties from discussing these proceedings with the children, to enable the mother to inform the children of the orders I make, either directly or with the support of the children’s psychologist.
The father seeks an injunction restraining the parties from taking the children to a psychologist or psychiatrist without the written consent of the other party. The children have so far been supported by Ms J. I have determined that I will make an order providing the mother with sole decision-making responsibility in relation to major long-term issues for the children, which includes decisions of a major long-term issue about their health. For the reasons I have determined to make that order, I find it is in the best interests of the children for the mother to have the ability to make decisions about the children’s mental health care after consulting with the father, without having to first obtain his written consent. This includes decisions in respect of the children’s ongoing attendance upon Ms J and/or in respect of any other psychological or psychiatric support the children may require.
The father also seeks an injunction restraining the parties from permitting the children to have smart phones or handheld electronic devices without the prior consent of the other party. His proposed order also requires the parties to consult with one another about the apps and software the children may be permitted to use and provides that either party may revoke their consent at any time. The children’s use of smart phones and electronic devices is a matter relating to the day-to-day care of the children and therefore a matter for each parent when the children are in their care. This proposal suggests a desire on the part of the father to exert control over the mother’s day-to-day decision making while the children are in her care. I am not persuaded such an injunction is appropriate for the children’s welfare or in their best interests.
I will make an injunction restraining the parties from discussing parenting arrangements in the presence or hearing of the children. This will address both parties’ concerns, including the father’s allegation the mother often says to him in the presence of the children that they do not want to see him, or are refusing to see him.
Travel with the children
The father does not oppose the children travelling with the mother, interstate or internationally. The parties disagree on the terms of orders for travel. The orders sought by the father are more prescriptive than those sought by the mother, requiring the travelling party to provide copies of travel tickets, accommodation details and the names of all people who will spend overnight time with the children during their travel. I am not persuaded that level of detail is necessary or in the children’s best interests.
The order sought by the mother refers to domestic travel. I will make the order referring to interstate travel, finding the children’s interests do not require the father to be informed if the mother is travelling within Victoria with the children.
The father also seeks to be able to travel with the children. That the father sought orders to travel overseas with the children in circumstances where they have difficulty spending only a few hours with him at present, is another example of the father’s lack of insight into the children’s needs and interests.
Interstate and international travel will not be possible within the scope of time they will be spending with the father pursuant to the orders I make.
Applying the principles set out by the Full Court in Kuebler v Kuebler[28] and Line & Line,[29] I also find there is an unacceptable risk that, if the father was permitted to travel with the children overseas, he would take the children to Country H and not return to Australia. Key factors that lead me to make that finding include:
(a)The father’s sense of entitlement as described in my reasons;
(b)The father’s negative attitude towards the mother and his feeling that she has obstructed his relationship with the children;
(c)The father’s expressed dissatisfaction with the Australian court system; and
(d)The father’s limited ties to Australia. He deposes to not knowing anyone in Australia and not having any support here. The mother gave evidence Child Support informed her the father was bankrupt.
[28] (1978) FLC 90-434 at [15] per Asche SJ with Gun and Yuill JJ concurring.
[29] (1997) FLC 92-729 at [4.49]-[4.51].
The mother informed the family report writer the father has previously told the children he will take them to Country H and Y is afraid he will take them away. I find orders which do not permit the father to take the children overseas[30] may reassure the children this will not occur, benefitting their relationship with the father.
[30] Without the mother’s authenticated consent and subject to the obligations and offence set out in section 65Y of the Act.
Accordingly, I make orders providing only for the mother to travel interstate and overseas with the children.
The parties each sought orders requiring them to do all things required to obtain passports for the children and I will make an order to that effect, at the mother’s expense as proposed by her. I make an order in the terms proposed by the mother. I will not make an order requiring the parties not to unreasonably withhold consent for such renewal, given the proposed order requires the parties to do all things necessary to apply for and renew the passports.
Other orders
The family report writer recommended the court consider releasing the two family reports and Ms E’s report to the father’s treating clinician if the parties are no longer engaged with Ms E. I find it is in the children’s best interests for both parties to be permitted to provide a copy of those reports and these reasons for judgment to their treating psychologist or counsellor, for the purposes of their individual counselling and support and, in particular, for support to comply with and adjust to the final orders I make.
Discharge of previous orders
Rule 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) provides that upon the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect. I will nevertheless make an order confirming this is the case, so it is clear for the parties and to any third party who may have been provided with copies of interim orders made in the proceeding.
CONCLUSION
For all of the above reasons, I am satisfied the orders set out at the commencement of these reasons are in the best interests of the children and make orders in those terms.
I certify that the preceding two hundred and thirty-seven (237) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 4 April 2025
0
7
3