Alonso & Deen - [2021] FedCFamC1F 262

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Alonso & Deen [2021] FedCFamC1F 262

File number(s): SYC 9099 of 2020

Judgment of: MCCLELLAND DCJ

Date of judgment: 8 December 2021

Catchwords: FAMILY LAW – PARENTING – Review of Registrar’s decision granting interim parenting orders – Mother seeks sole parental responsibility for medical issues – Where child has diagnoses of attention deficit hyperactivity disorder and history of self-harm – Where there is high conflict and a lack of cooperation between the parents – Allegations of exclusion in the making of medical decisions – Allegations of physical and emotional harm made by both parents – Parents’ failure to consider best interests of the children – Limitations of interim proceedings – Application dismissed save for one order.

Legislation:
Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 100(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07

Cases cited:
Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Blinko & Blinko [2015] FamCAFC 146

Cowling & Cowling (1998) 143 FLR 400; [1998] FamCA 19

Feiteiro & Feiteiro [2019] FamCA 647

Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346

Henley & Henley [2019] FamCA 101

Marvel v Marvel (2010) 240 FLR 367; [2010] FamCAFC 101

Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21

McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92

Russell & Close [1993] FamCA 62

SS & AH [2010] FamCAFC 13

Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369

Division: Division 1 First Instance

Number of paragraphs: 147

Date of hearing: 29 October 2021

Place: Sydney

Counsel for the Applicant: Mr Othen

Solicitor for the Applicant: Newnhams Solicitors

The Respondent: Ms Deen in person

Counsel for the Independent Children's Lawyer: Ms Treherne

Solicitor for the Independent Children's Lawyer: Christina Lam & Associates
ORDERS

SYC 9099 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ALONSO

Applicant

AND:
MS DEEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

8 DECEMBER 2021

THE COURT ORDERS THAT:
1.Save in respect of Order (4) of the orders made by the senior judicial registrar on 6 September 2021, the mother’s Application for Review filed on 27 September 2021 is dismissed.
2.Order (4) of the orders made by the senior judicial registrar on 6 September 2021 is discharged and in the place of that order the following shall apply:
“4. The parents do all things reasonably necessary to attend upon Dr B of C Counselling with the child Z either together or individually at his direction, including frequency, and that the father be permitted to bring Z to such sessions providing that the costs of Dr B in the period subsequent to these orders will be met by the father.”

3.X, born … 2007 (“X”), and Y, born … 2011 (“Y”), shall spend time with the father in the 2021/2022 school holidays and each holiday period thereafter, in a ‘week about’ arrangement, such that the time that X and Y spend with the father commences on the Friday at the time the children are due to spend time with him under mid-term arrangements and extends to the following Friday at that same time with the result being that the children spend, in total, half of each school holidays with each parent.
4.Z, born … 2011 (“Z”), shall spend time with the father as agreed between the parties, acting reasonably and informed by the advice provided by Dr B, but in the absence of agreement, from the commencement of school in the 2022 school year; each alternate weekend from 9.00 am on Saturday to 5.00 pm on Sunday, with that weekend to coincide with the same weekend that X and Y spend with their father.
5.That X, Y and Z (“the children”) shall spend time with the father as follows:
(a)From 10.00 am on Father’s Day to the commencement of school on the Monday following Father’s Day;
(b)For no less than three (3) hours on the children’s birthdays and the father’s birthday at such times as agreed between the parties in writing, and in the event that agreement cannot be reached, from 5.00 pm until 7.30 pm if the children are living with the mother, or from 12.00 pm to 7.30 pm if a non-school day;
(c)From 2.00 pm on Christmas Day to 3.00 pm on Boxing Day in even numbered years, and from 1.00 pm on Christmas Eve to 2.00 pm on Christmas Day in odd numbered years;
(d)For the Easter period, when such period does not fall within the school holiday period, from 12.00 pm on Good Friday to 6.00 pm on Easter Monday in odd numbered years; and
(e)At all other times as agreed between the parties in writing.

6.That Z’s time with the father pursuant to Order (5) above shall not commence until the beginning of the 2022 school term unless otherwise agreed between the parties in writing.
7.That the children shall spend time with the mother on special occasions as follows:
(a)From 10.00 am on Mother’s Day to the commencement of school on the Monday following Mother’s Day if they are not in the Mother’s care;
(b)From the conclusion of school to the commencement of school the following day on the mother’s birthday when it falls on a school day, if they are not already in the mother’s care;
(c)From 2.00 pm on Christmas Day to 3.00 pm on Boxing Day in odd numbered years, and from 1.00 pm on Christmas Eve to 2.00 pm on Christmas Day in even numbered years;
(d)For the Easter period, when such period does not fall within school holiday period, from 12.00 pm on Good Friday to 6.00 pm on Easter Monday in even numbered years; and
(e)At all other times as agreed between the parties in writing.

Courses
8.Each parent shall forthwith and within seven (7) days enrol in and participate in the ‘1, 2, 3 Magic’ course and shall provide the Independent Children's Lawyer with a copy of both their registration for the program and evidence of completion.
9.Each parent shall forthwith and within seven (7) days enrol in and participate in the ‘Circle of Security’ or the ‘Triple P Parenting’ or the like), from an accredited provider, and shall provide the Independent Children's Lawyer with a copy of both their registration for the program and evidence of completion.
10.Each parent shall forthwith and within seven (7) days enrol in and participate in a registered ‘Tuning into Teens’ parenting program at Interrelate, and shall provide the Independent Children's Lawyer with a copy of both their registration for the program and evidence of completion.
11.Each parent shall continue to follow the advice of the treating professionals and shall:
(a)take all medication as prescribed;
(b)participate in any recommended therapies; and
(c)attend upon such other professionals as may be from time to time recommended.

Single Expert – Family Report
12.Pursuant to Chapter 7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, Dr E be appointed as a single expert prepare a report to assist the Court in relation to the proceedings relating to the welfare of the children.
13.The parties shall:
(a)attend all appointments with the Single Expert;
(b)ensure the attendance of the children at such times and dates as directed;
(c)comply with all reasonable directions and requests made by the Single Expert to assist him/her in the preparation of the report; and
(d)do all things to ensure the attendance of their current partner (if any) and any other person/s who live in the same household as the parents, should the Single Expert request to interview said persons.

14.In preparing the report, the Single Expert be requested to consider the following matters:
(a)The benefit of the children having a meaningful relationship with both of their parents;
(b)Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence;
(c)Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
(d)The relationship between the children and each other and with each of their parents and any other relevant person;
(e)The likely effect of any change in the children’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
(f)The capacity of each of the children’s parents and any other person, including a grandparent or relative to provide for the needs of the children including their emotional and intellectual needs;
(g)The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the children and either of their parents and any other characteristics of the children that the single expert thinks is relevant;
(h)The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents;
(i)The impact of any family violence involving the children or a member of the children’s family;
(j)The state of each parent’s mental health, and if any issue is identified:
(i)the nature, intensity and impact of the issue and the impact, if any, upon the parent’s parenting capacity;
(ii)what treatment or services are recommended to address any identified problem; and
(iii)the willingness of the parent to address any identified problem.

(k)Whether or not the children have any emotional, developmental, health or mental health issues or special needs that need to be addressed and if so, what treatment or therapy is recommended;
(l)Whether or not either parent has a current functionally significant substance abuse issue, and if any issue is identified:
(i)any current effects on their cognitive abilities and parenting capacity arising as a result of current or past substance abuse; and
(ii)what treatment or services are recommended to address any identified problem.

(m)Whether the children and/or parents require individual or family therapy, and if so:
(i)which type of therapy;
(ii)which type of mental health or other provider would be most suitable; and
(iii)what issues should such therapy target.

(n)The desirability and likely effect of each parent’s proposal for parenting arrangements;
(o)Any recommendation as to the live with and spend time with arrangements which may be appropriate;
(p)Any other matter the Single Expert considers relevant.

15.The Independent Children’s Lawyer prepare a joint letter of instruction to the Single Expert within seven (7) days and forward a draft to the solicitors for the father and the mother, and the solicitors for the father and the mother shall provide any proposed amendments to the draft letter within two (2) days of receipt.
16.The parties shall equally bear the cost of the preparation of the Single Expert Report, and the Single Expert shall not be required to release the report to the Court until payment for that report has been made.
17.In the event that the Single Expert is required for cross examination by any party, including the Independent Children’s Lawyer, at any hearing in these proceedings, any costs shall be equally paid by the parties within seven (7) days of receipt of a Tax Invoice from the Single Expert.
18.The father and the mother shall do all acts and things to authorise the Single Expert to speak with any mental health practitioner attended by the parents and/or children, at the sole discretion of the Single Expert.
19.In the course of preparation of their report, the Single Expert is authorised to speak to and obtain information from any school teacher, school Principal, school counsellor, or early childhood educator of the child.
20.Leave be granted to the Independent Children’s Lawyer to provide to the Single Expert the following documents:
(a)The Child Inclusive Conference memorandum dated 11 October 2021; and
(b)Copies of all documents produced under subpoena.

21.The parties shall each be restrained from providing any material to the Single Expert without the written consent of the other party and the Independent Children’s Lawyer.
22.Leave be granted to the Independent Children’s Lawyer to relist the matter on seven (7) days’ notice before the Docket Registrar in the event either party fails to make payment of expert fees as required by these Orders, or in relation to settling the Letter of Instruction to the Single Expert.

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 the pseudonym Alonso & Deen has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCCLELLAND DCJ:
INTRODUCTION

This judgment concerns an Application for Review filed on 27 September 2021 by the Respondent Mother in the substantive proceedings (“the mother”), whereby she seeks a review of a decision by a senior judicial registrar dated 6 September 2021 making parenting orders for the parties’ three children, X, born in 2007 (“X”), Y, born in 2011 (“Y”), and Z born in 2011 (“Z”) (collectively: “the children”).
The senior judicial registrar’s orders arose from Applications filed by Mr Alonso (“the father”) on 17 December 2020 and 11 June 2021 seeking, in broad terms, interim parenting orders. Order (20) of the senior judicial registrar’s orders on 6 September 2021 provided that all extant applications would be adjourned to before him on 27 October 2021. On that date, the senior judicial registrar made orders to adjourn all extant applications in the proceedings to before me on 29 October 2021, the date upon which I had set down the mother’s Application for Review, for hearing. Consequently, prior to the hearing before me, each of the parties was invited to provide a consolidated Minute of Order of the interim parenting orders they sought, and the issues they contended required determination.
Save in respect to parental responsibility concerning medical treatment, the parties are in substantial agreement in respect to school term parenting arrangements for Y and X. However, the mother continues to oppose the children spending a mid-week night with the father during each alternative week. An unresolved issue is in respect to the amount of time that the children spend with each parent during the forthcoming school holidays at the end of Term 4 of 2021. The more complex issue concerns parenting arrangements for Z, who the parties acknowledge has challenges as a result of having attention deficit hyperactivity disorder (“ADHD”).
The orders made by the senior judicial registrar provided for the parents to have equal shared parental responsibility for the children, and for X and Y to spend time with the father during school terms from after school on Friday until the commencement of school on Monday in the first week, and then on Wednesday evenings during the second week.
The orders also provided for the parents to cooperate in facilitating Z’s attendance at family therapy, with a view to re-establishing the relationship between Z and his father. It was anticipated that Z will commence spending time with the father on a gradual basis, to the point where that time is for overnight periods. Pending that occurring, the orders provided for Z to spend time with the father each Saturday for a period of five hours.
Despite a recent history of little cooperation, the parents, to their credit, were able to reach agreement, during the course of these proceedings, that Z spend two days each alternative weekend with his father, between 9.00 am to 5 pm on both Saturday and Sunday, with that time to coincide with the time that his siblings also spend with the father.
In addition to that issue which has been resolved, the father proposes that the orders made by the senior judicial registrar continue, save to the extent that the senior judicial registrar left open the issue as to arrangements for the children to spend time with the parents in the forthcoming school holidays at the end of Term 4 of 2021, and thereafter. The father’s position is supported by the Independent Children’s Lawyer (“ICL”).
The father otherwise supports the orders proposed by the ICL. Those orders will be set out in detail below.
BACKGROUND
The mother is 54 years of age and the father is 51. They were married in 2006.
It did not appear to be disputed that the mother has been the children’s primary carer both during the parties’ marriage and subsequent to their separation. The father has been the primary income earner of the family, although the mother has also contributed to the earnings of the family. Equally, the father has played a role in respect to caring for the children. Clearly, the extent of each party’s respective roles will be considered in greater detail in the final hearing of this matter.
It is not disputed that the father has a history of depression, which can fluctuate as a result of life events, including periods of stress in his occupation as a barrister.
In 2017, the parties commenced seeing a paediatrician in respect to developmental issues confronting Z. The paediatrician, Dr F, diagnosed Z with ADHD and prescribed him Ritalin. The parties agree that Z’s medication has since changed.
It was also acknowledged that X has some mental health challenges and has also been diagnosed with ADHD. It did not appear to be disputed that X has engaged in concerning behaviour, including incidents of self-harm.[1]
[1] Mother's affidavit filed 27 July 2021, paragraph 46
It also did not appear to be disputed that Y is prone to suffering asthma and eczema, which the mother contends is exacerbated by periods of stress.[2] While not understating the potential significance of a child suffering those conditions, it has not been necessary for me to further consider that issue in this decision.
[2] Mother's affidavit filed 27 July 2021, paragraph 136
The parties separated in October 2020, and during the following month, engaged in a “nesting” arrangement whereby the mother and the father would each stay in the former matrimonial home with the children on an alternating basis.
Following their separation, the parties attempted to reach agreement in respect to ongoing parenting arrangements, including by attending mediation. They were unfortunately unsuccessful in that endeavour. The husband commenced these proceedings by way of an Initiating Application filed on 18 December 2020.
Despite the absence of orders, the parties were able to reach agreement in respect to interim parenting arrangements for the two eldest children. From February 2021, X and Y spent time with the father in a fortnightly cycle as follows:
(a)During Week 1, from after school on Friday to the commencement of school on the Monday; and
(b)During Week 2, X from after school on Tuesday to before school on Wednesday, and Y from after school on Wednesday to before school on Thursday.
These arrangements continued during Terms 1 and 2 of 2021.

During the April 2021 school holidays, X and Y spent time with the father on three occasions.
It is acknowledged that Z has a difficult relationship with his father, and it did not appear to be disputed that on 16 January 2021 and 14 February 2021, Z left the care of his father to return to his mother.
Further, it did not appear to be disputed that, rather than spending the same amount of time that Y and X spend with the father, Z stayed with the father on one Thursday night per fortnight in the period from February 2021 until 18 March 2021.[3] Z did not spend time the father from March 2021 until June 2021, at which time Z commenced spending day time only with the father.
[3] Mother's affidavit filed 27 July 2021, paragraph 21
While there is some dispute between the parties, it appears that, in May 2021, the parties agreed that Z would attend family therapy with Dr B (“Dr B”), however that had not commenced prior to the decision of the senior judicial registrar. The father contends that this resulted from lack of commitment on the part of the mother. The mother states that she wished to obtain advice from Z’s treating therapists as to the best means by which the family therapy could occur, without causing further distress to Z. It is not necessary to resolve that issue in these interim proceedings.
In June 2021, there was a disagreement between the parties regarding Z spending time with the maternal uncle and grandparents in Queensland, and on 11 June 2021, the father filed an Application in a Case in which he sought parenting orders in respect to time during the forthcoming school holidays. That application was amended on 7 July 2021, with the father also seeking orders for the children to spend time with him during the school terms and school holidays.
That matter was adjudicated, with the senior judicial registrar making the following orders on 6 September 2021:
1. The parties have equal shared parental responsibility for making decision for the long term care, welfare and development of the children Y born … 2007 (“Y”), X born … 2007 (“X”) and Z born … 2011 (“Z”) (collectively: “the children”).
2. The father shall have responsibility for making decision for the day-to-day care, welfare and development of the children during the periods in which the children are living with him, and the mother have responsibility for making decisions for the day-to-day care, welfare and development of the children during the periods in which the children are living with her.
3. X and Y shall live with the father during each school term at such times as the parents agree upon in writing, and failing agreement, as follows:
a. In week one – with the father from the conclusion of school Friday until the commencement of school Monday, or 5 pm is a non-school day, to commence on the first weekend following the date of these Orders, and each alternate weekend thereafter; and
b. In week two – with the father from the conclusion of school Wednesday until the commencement of school Thursday, or 5pm if a non-school day, and each alternate week thereafter.
4. The parents do all things reasonably necessary to attend upon Dr B of C Counselling with the child Z either together or individually at his direction, including frequency and that the father be permitted to bring Z to such sessions and spend time with the father as follows:
a. Each Wednesday from the conclusion of school until the commencement of school Thursday, with such time to commence on a date specified by Dr B.
b. Each alternate weekend from the conclusion of school Friday until the commencement of school Monday, or 5pm is a non-school day to coincide with Order 3a of these Orders, such time to commence on a date specified by Dr B.
c. From the commencement of these Orders, each Saturday for a period of up to 5 hours as agreed between the parties in writing unless otherwise specified by Dr B.
d. At all other times as agreed between the parties in writing.
5. The children X and Y spend time with the father during the September 2021 school holiday period from the conclusion of school on the last day of term for a period of 7 days.
6. The child Z spend time with the father during the September 2021 school holiday periods as follows:
a. From the conclusion of school until 5:00pm;
b. From 12pm to 5pm on the following Saturday and Sunday;
c. From 12pm to 5pm on the last two days of the holidays
7. Unless otherwise agreed by the parties in writing, the father shall collect or arrange for the children to be collected at the commencement of each period in which the children are to live with him, and if the children are not at school, the father shall collect or arrange for the children to be collected from the mother’s home at the commencement of each period in which the children are to live with the father.
8. Unless otherwise agreed by the parties in writing, the mother shall collect or arrange for the children to be collected at the commencement of each period in which the children are to live with her, and if the children are not at school, the mother shall collect or arrange for the children to be collected from the father’s home at the commencement of each period in which the children are to live with the mother.
9. Each parent be permitted to speak with the children on their mobile phones at all reasonable times that they are with the other parent and the parent with whom the children are living at the time is to ensure that if any of the children wish to speak with the other parent, they will do all things reasonable to ensure that the children have spoken to the other parent by 7pm.
10. Each parent shall notify the other parent as soon as reasonably possible in the event of any serious injury or illness suffered by the children whilst with that parent and/or in the event of any medical emergency at a minimum within 2 hours of the event.
11. Each of the parents shall ensure the children attend any sporting or school activity and any extracurricular activities agreed on between the parties in writing and neither party is permitted to enrol the child, or children, in any extracurricular activities during the other parent’s time without prior written consent of the other parent.
12. Each parent shall provide to the other parent within 48 hours in writing of their change of place of residence, mobile and email address.
13. Each of the parents shall use their best endeavours to ensure that no third party does or says anything to the children in their presence or hearing that is derogatory of the other party or detrimental to the relationship each party has with the children.
14. Each of the parents be restrained from discussing these proceedings with the children or in their presence or hearing of the children or allowing any third party to discuss the proceedings with the children or in the presence or hearing of the children.
15. Each of the parents be restrained from using physical discipline on the children or allowing any other person to administer physical discipline on the children.
16. Each parent shall ensure that the children shall take all medication in the dosage as prescribed for the child by the children’s doctor, psychiatrist or medical specialist who treats the children when the children are in the care of the parent, including prescribed medications in the dosages for ADHD, asthma, eczema and gastrointestinal issues.
17. The mother advise the father within 24 hours of any appointments for the child or the children, to attend upon their treating psychologist/psychiatrist or medical specialist.
18. Without admissions, the mother have exclusive occupation of the Rozelle property.
19. The parents continue to communicate with each other with respect to the children, or any child as the case may be, via the Telegram app.
20. All extant applications be adjourned to the Senior Judicial Registrar’s Duty List on 27 October 2021 at 10:00am.
During the September school holidays, both X and Y spent seven consecutive days with the father.[4]
[4] Father’s affidavit filed 26 October 2021, paragraph 16
EVIDENCE
The mother relies upon the following:
(c)Her Application for Review filed on 27 September 2021;
(d)Her Affidavit filed 27 July 2021;
(e)Child Inclusive Conference memorandum dated 26 October 2021;
(f)Her diary entries from July–August 2021, marked as Exhibit “C”;
(g)Her diary entries from September–October 2021, marked as Exhibit “D”;
(h)Miscellaneous tender bundle of 24 pages, excluding pages 1–4 and page 16, marked as Exhibit “E”; and
(i)Additional tender bundle of the mother entitled “S5”, “S10”, and “S11”, marked as Exhibit “F”.
The father relied upon the following:
(a)His Affidavit filed 26 October 2021; and
(b)Court Book consisting of evidence submitted to the senior judicial registrar.
The ICL relied upon a tender bundle of 95 pages, which was marked as Exhibit “B”.
NATURE OF A REVIEW OF A REGISTRAR’S DECISION
Section 100(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) provides for judicial supervision of orders made by registrars under delegated authority by enabling a party to seek a review of a power exercised by a delegate of Division 1 of the Court (being a judicial registrar).
Rule 14.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the 2021 Rules”) sets out when a party may apply for a review:
14.05 Application for review of order or decision
(1)A party may apply for a review of an exercise of a power referred to in the table in clause 2 of Schedule 4 by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
(2)A party may apply for a review of any other exercise of a power under these Rules by a Senior Judicial Registrar or Judicial Registrar by filing an Application for Review and a copy of the order or decision sought to be reviewed in the filing registry within 21 days after the order or decision is made.
…
Further, r 14.07 of the same rules provides:
14.07 Procedure for review
(1)A court must hear an application for review of an exercise of power by a Senior Judicial Registrar or Judicial Registrar as an original hearing.
Note: In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2)      The court may receive as evidence:
(a)       any affidavit or exhibit tendered in the first hearing; or
(b)       any further affidavit or exhibit; or
(c)       the transcript (if any) of the first hearing; or
(d)if a transcript is not available—an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
…
A review of a judicial registrar’s determination is an original hearing, in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 71. Accordingly, this matter is considered as a hearing afresh in which each party is seeking interim parenting orders.
APPROACH OF THE COURT IN INTERIM PARENTING PROCEEDINGS
This Court has, on a number of occasions, described the difficulties of determining cases which concern a child in interim proceedings, which are necessarily an abridged process wherein evidence cannot be tested.
In Goode & Goode (2006) 206 FLR 212 (“Goode”), the Full Court set out guidance for considering an application for parenting orders on an interim basis. In applying that guidance as set out by the Full Court in Goode at [81]–[82], I will approach consideration of the parties’ respective contentions by:
(a) identifying the competing proposals of the parties;
(b) identifying the issues in dispute in the interim hearing;
(c) identifying any agreed or uncontested relevant facts;
(d) considering the matters in s 60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place)”
(e) deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f) if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g) if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h) if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s 65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i) if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
The relevance of facts are to be considered in the context of focussing upon the issues joined in the proceedings: see Banks & Banks (2015) FLC 93-637 (“Banks”) at [48]–[50]. I will subsequently identify those issues.
COMPETING PROPOSALS OF THE PARTIES
In her Application for Review filed on 27 September 2021, the mother sought discharge of Orders 1–6 of the orders made by the senior judicial registrar on 6 September 2021. By way of summary, Orders 1 and 2 related to parental responsibility. Order 3 related to the time that X and Y spend with the father. Order 4 set out a mechanism whereby Z would spend increasing time of the father on a graduated basis, in accordance with advice provided by a family therapist, Dr B. Finally, Orders 5 and 6 related to the time that the children were to spend with the father during the September 2021 school holidays, and are no longer relevant.
During the course of the proceedings, the mother indicated that she only sought review of Order 4 by the senior judicial registrar.[5] However, she subsequently indicated that she also sought to review Order 3(b) and Order 17. While no notice was given to the challenge to Order 17, all other parties consented to the mother proceeding with an oral application to that effect.
[5] Transcript 29 October 2021, page 11 line 18–22
The orders sought by the mother in these proceedings are set out in her Application for Review, and, relevantly, are as follows:
4. That the children X born … 2007, Y born … 2011 and Z born … 2011 live with the mother.
5. That the children X and Y spend time with the father during the school term as agreed between the mother and the father and failing agreement each alternate week from the conclusion of school Friday until the commencement of School on Monday or 5.00pm if not a school day or public holiday.
6. That the child Z spend time with the father during the school term as agreed between the mother and the father and failing agreement each alternate Saturday and Sunday from 9.00am to 5.00pm to coincide with the time that the father shall spend with the children X and Y.
7. That the children, X and Y spend time with the father for one half of each school holiday period as agreed and failing agreement, with the father for 3 nights commencing 5.00pm on the last day of school which X attends, and alternating between the father and the mother for 3 nights until the children commence school in the following school term.
8. That the child Z spend time with the father during the school holidays on each day that children X and Y spend with the father pursuant to Order 7 between the hours of 9am and 5.00pm to coincide with the time that X and Y spend time with the father.
9. That the parties shall attend upon Dr B of C Counselling for the purposes of family therapy for a further 6 sessions NOTING THAT the parties have attended 7 sessions this year with Dr B and the parties shall do all acts to encourage the children, or child as the case may be, to attend all appointments with the therapist and:
a. Be responsible for one half of the costs connected with joint therapy sessions with the nominated practitioner;
b. Be responsible for all costs connected with any session with the nominated practitioner that only involves that party;
c. Do all acts and things and sign all documents necessary to authorise Dr B to communicate with and obtain information from the childrens’ paediatricians, childrens’ psychologists, children’s psychiatrists, father’s psychiatrist and the mother’s psychologist.
10. That the parties be granted leave to provide Dr B with copies of their affidavits filed in these proceedings, orders, copies of documents produced under subpoena and any s.11F memorandum.
During the course of the proceedings, the mother further amended her proposal in respect to Z, such that in place of Order 4(c) of the orders made by the senior judicial registrar, the mother proposed he should spend five hours each alternative Saturday and Sunday, with that weekend being the same weekend that X and Y spend with the father. That modified proposal by the mother was agreed to by both the father and the ICL during the course of the proceedings. That will therefore be the spend time arrangement with Z, pending any increase in time. He will spend time with the father every alternate weekend for two days, rather than each weekend for one day.
In respect of family therapy, the mother proposed that Z continue to see Dr B for a period of 15 sessions, being another five or six sessions after the date of the hearing.
The orders sought by the father are essentially for the orders made by the senior judicial registrar to continue, together with additional orders as proposed by the ICL, save in respect to the forthcoming Term 4 2021 school holidays. Here, the father’s formal application is that the time be equally divided between each parent. During the course of the proceedings, however, this position moderated such that counsel for the father indicated that the father would also accept a week about arrangement.
The orders proposed by the ICL are attachment “A” to the ICL’s Case Outline, and subsequently amended to include a proposal for the children to spend time with each parent on special occasions. These are, in addition to the orders made by the senior judicial registrar, as follows:
Spend time with orders
1.That the children X and Y shall spend time with the father in the 2021/2022 school holidays as follows:
a.Monday to Thursday with the father in week one;
b.Friday to Monday in week two; and
c.each holiday period thereafter, in a week about arrangement, such that each parent spend time with the children for half of school holidays.
2.The child Z shall join his siblings in the time specified in order 1 in accordance with the recommendations of Dr B.
3.That the children spend time with the father as follows:
a.With the father from 10:00am on Father’s Day to the commencement of school on the Monday following Father’s Day.
b.For no less than 3 hours on the children’s birthdays and the father’s birthday at such times as agreed between the parties in writing and in the event that agreement cannot be reached from 5:00pm until 7:30pm if the children are living with the mother, or from 12:00pm to 7:30pm if a non-school day.
c.From the conclusion of school to the commencement of school the following day on the father’s birthday when it falls on a school day.
d.From 2:00pm on Christmas Day to 3:00pm Boxing Day in even years and from 1:00pm Christmas Eve to 2:00pm Christmas Day in odd years.
e.For the Easter period, when such period does not fall within school holiday period, from 12:00pm Good Friday to 6:00pm Easter Monday in odd numbered years, and
f.At all other times as agreed between the parties in writing.
4.That the children spend time with the Mother on special occasions as follows:
a.With the mother from 10:00am on Mother’s Day to the commencement of school on the Monday following Mother’s Day it not in the Mother’s care.
b.From the conclusion of school to the commencement of school the following day on the mother’s birthday when it falls on a school day, if not already in the mother’s care.
c.From 2:00pm on Christmas Day to 3:00pm Boxing Day in odd years and from 1:00pm Christmas Eve to 2:00pm Christmas Day in even years.
d.For the Easter period, when such period does not fall within school holiday period, from 12:00pm Good Friday to 6:00pm Easter Monday in even numbered years, and
e.At all other times as agreed between the parties in writing.
Courses
5.That the parents and each of them shall forthwith and within seven (7) days enrol in and participate in the ‘1, 2, 3 Magic’ course and shall provide the Independent Children's Lawyer with a copy of both their registration for the program and evidence of completion.
6.That the parents and each of them shall forthwith and within seven (7) days enrol in and participate in the ‘Circle of Security’ or the ‘Triple P Parenting’ or the like), from an accredited provider and shall provide the Independent Children's Lawyer with a copy of both their registration for the program and evidence of completion.
7.The Father and the Mother shall within 7 days do all things necessary to enrol and participate in a registered ‘Tuning into Teens’ parenting program at Interrelate and shall provide the Independent Children's Lawyer with a copy of both their registration for the program and evidence of completion.
8.That each parent shall continue to follow the advice of the treating professionals and shall:
a.take all medication as prescribed;
b.participate in any recommended therapies; and
c.attend upon such other professionals as may be from time to time recommended.
Single expert – family report
9.That pursuant to Part 15 of the Family Law Rules, Dr E be appointed as a single expert prepare a report to assist the Court in relation to the proceedings relating to the welfare of the children, X, born … 2007, Z born … 2011 and Y born … 2011.
10.That the parties shall:
a.attend all appointments with the Single Expert;
b.ensure the attendance of the children at such times and dates as directed; and
c.comply with all reasonable directions and requests made by the Single Expert to assist him/her in the preparation of the Report.
d.do all things to ensure the attendance of their current partner (if any) and any other person/s who live in the same household as the parents, should the Single Expert request to interview said persons.
11.That in preparing the Report the Single Expert be requested to consider the following matters:
a.The benefit of the children having a meaningful relationship with both of their parents;
b.Whether the children are at risk of being exposed to any physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
c.Any views expressed by the children and any factors (such as maturity and level of understanding) that may affect the weight to be accorded to those views;
d.The relationship between the children and each other and with each of their parents and any other relevant person;
e.The likely effect of any change in the child/ren’s circumstances, including the likely effect on the children of any separation from either of the parents or any other person with whom the children have been living;
f.The capacity of each of the children’s parents and any other person, including a grandparent or relative to provide for the needs of the child/ren including their emotional and intellectual needs;
g.The maturity, sex, lifestyle and background, including lifestyle, culture and traditions of the children and either of their parents and any other characteristics of the children that the single expert thinks is relevant.
h.The attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents;
i.The impact of any family violence involving the children or a member of the children’s family; and
j.The state of each parent’s mental health and if any issue is identified:
i.the nature, intensity and impact of the issue and the impact, if any, upon the parent’s parenting capacity;
ii.what treatment or services are recommended to address any identified problem; and
iii.the willingness of the parent to address any identified problem.
k.Whether or not the children have any emotional, developmental, health or mental health issues or special needs that need to be addressed and if so, what treatment or therapy is recommended.
l.Whether or not either parent has a current functionally significant substance abuse issue and if any issue is identified:
i.any current effects on their cognitive abilities and parenting capacity arising as a result of current or past substance abuse; and
ii.what treatment or services are recommended to address any identified problem.
m.Whether the children and/or parents require individual or family therapy, and if so:
i.which type of therapy,
ii.which type of mental health or other provider would be most suitable; and
iii.what issues should such therapy target.
n.The desirability and likely effect of each parent’s proposal for parenting arrangements.
o.Any recommendation as to the live with and spend time with arrangements which may be appropriate.
p.Any other matter the Court / Single Expert considers relevant.
12.That the Independent Children’s Lawyer prepare a joint letter of instruction to the Single Expert within 7 days and forward a draft to the solicitors for the father and the mother, and the solicitors for the father and the mother shall provide any proposed amendments to the draft letter within 2 days of receipt.
13.The parties shall equally bear the cost of the preparation of the Single Expert Report and the Single Expert shall not be required to release the report to the Court until payment for that report has been made.
14.In the event that the Single Expert is required for cross examination by any party, including the Independent Children’s Lawyer, at any hearing in these proceedings, any costs shall be equally paid by the parties within 7 days of receipt of a Tax Invoice from the Single Expert.
15.That leave be granted to the Independent Children’s Lawyer to provide to the Single Expert the Child Inclusive Conference memorandum dated 11 October 2021.
16.The father and the mother shall do all acts and things to authorise the Single Expert to speak with any mental health practitioner attended by the parents and/or children, at the sole discretion of the Single Expert.
17.In the course of preparation of their report, the Single expert is authorised to speak to and obtain information from any school teacher, or school Principal, or school counsellor or early childhood educator of the child.
18.That leave be granted to the Independent Children’s Lawyer to provide to the Single Expert with copies of all documents produced under subpoena.
19.The parties shall each be restrained from providing any material to the Single Expert without the written consent of the other party and the Independent Children’s Lawyer.
20.That the Independent Children’s Lawyer has leave to relist the matter on 7 days’ notice before the Docket Registrar in the event either party fails to make payment of expert fees as required by these Orders or in relation to settling the Letter of Instruction to the Single Expert.
IDENTIFYING THE ISSUES IN DISPUTE IN THE INTERIM HEARING

The essential issues for determination in these interim proceedings are as follows:
(a)Whether either parent poses a risk of significant harm to the children (or any one of them), and specifically;
(i)Whether the children are at risk of physical harm in the care of the father;
(ii)Whether there is a risk posed to the children as a result of the potential for the father to engage in angry and dysregulated behaviour; and
(iii)Whether the mother presents a psychological risk to the children in terms of involving them in the parenting dispute.
(b)If there is a risk, what orders are most likely to manage that risk;
(c)What spend time with orders are appropriate in the circumstances; and
(d)Whether there should be any orders made in respect to parental responsibility.
IDENTIFYING ANY AGREED OR UNCONTESTED RELEVANT FACTS
Helpfully, the ICL identified at [9]–[19] of her case outline what I agree appears to be uncontentious facts as follows:
9. X has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and associated anxiety. She was diagnosed with depression in August 2020 and is currently seeing a psychiatrist, Dr G: M1 [65]. X is currently in Year 8 at H School.
10. Y has no current diagnoses but is currently seeing the school counsellor for ongoing therapeutic support due to thoughts of suicide and self-harm. He is a sensitive soul: F3 [14]. Y has critical asthma and allergy medications: M1 [44]. Y has reportedly had “bad thoughts, sometimes about killing myself” and was tearful or cried through most of his interview with the family consultant: CIC p 4. Y attends J School and is in Year 5.
11. Z has been diagnosed with high inattention, impulsiveness and ADHD. Z has demonstrated very difficult behaviours for the parents to manage. Z is currently seeing Dr B at C Counselling. Z is currently in Year 5 at M School.
12. The father (51 years old) is a professional and the mother (54 years old) is a health professional. Both parents work full-time.
13. The parties were married for over 14 years. Their relationship irretrievably broke down in September 2020: F1 [8], M1 [7].
14. For the period between September 2020 and October 2020, the parties were separated under the same roof: F1 [8], M1 [61]. Perhaps unsurprisingly, there was a high level of conflict between the parents and the father subsequently moved out of the matrimonial home and into a rented unit. The children struggled emotionally and psychologically during this period: CIC p 2.
15. The father has been diagnosed with anxiety and depression and is receiving weekly ongoing therapeutic support from his psychiatrist, Dr K. He has been on medication since 2015.
16. The mother has no current mental health diagnoses, but does attend on a psychologist, Ms N, on a weekly basis.
17. In 2020, the mother’s niece (her sister’s child) passed away from a rare type of cancer. Y was badly affected by his cousin’s passing: M1 [51], [57].
18. There was an incident on 24 December 2020, where the father lost his temper at Z and was physically aggressive toward Z: ICL TB p 88.
19. The children have experienced a great deal of disruption to their lives in the past two years as a result of the COVID-19 pandemic and changes to their school routine, a change of household arrangements and the separation of their parents, not to mention the very difficult passing of their cousin who was a similar age to them.
ADDRESSING THE SECTION 60CC CONSIDERATIONS
The Law – Concepts and Principles
The consideration as to what orders are in the best interests of children is informed by the relevant objects set out in the Family Law Act 1975 (Cth) (“the Act”).
Section 61DA of the Act relevantly provides that
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
…
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
…
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Relevantly, in Masson v Parsons (2019) 266 CLR 554 at [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that;
Subdivision B of Div 1 of Pt VII [of the Act], which is headed "[o]bject, principles and outline", provides, inter alia, in s 60B(1) that the objects of Pt VII include "ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child"
[Emphasis in original]
Section 60CA of the Act provides that, in deciding whether to make a parenting order, the Court “must regard the best interests of the child as the paramount consideration”. This obligation is also reinforced in s 65DAA of the Act.
Section 60CC sets out a list of matters that the Court must have regard to in determining what is in the child’s best interests. Whilst the Act requires the Court to consider all of the s 60CC factors, the central issue in these proceedings is balancing the primary considerations set out in s 60CC(2) against one another and, additionally, the wishes of the children.
Section 60CC(2)(a) of the Act requires the Court to consider the “the benefit of the child having a meaningful relationship” with each of the parties. On the other hand, under s 60CC(2)(b), I must consider the issue of the risk associated with the children possibly being subject to physical or psychological harm, neglect or abuse in the care of either of the parties. In McCall & Clark (2009) 41 Fam LR 483 (“McCall”), the Full Court noted that, absent issues such as an unacceptable risk of harm, “in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents.”
The Court’s enquiry should primarily be “prospective”, that is, considering the prospect of the child having a meaningful relationship with the parent in the future. However, at the same time, the Full Court in McCall recognised the reality that evidence concerning the current nature of a child’s relationship with a parent may have a significant bearing on the Court’s assessment as to the prospect of the child having a meaningful relationship with that parent into the future. This is relevant in the context of these proceedings where the children currently have a strained relationship with the father.
The second primary consideration in determining the child’s best interests, as set out in s 60CC(2)(b) of the Act, is the need to protect the child from physical or psychological harm and from being subjected or exposed to abuse or violence. The relevant question is whether there is an unacceptable risk of physical and/or psychological harm in the child spending time with either of the parties.
Despite the Court’s limited ability to make findings in respect of controversial facts in interim proceedings, the Court is not relieved of that responsibility. In that respect, in SS & AH [2010] FamCAFC 13 (“SS & AH”) at [100], the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that the reference in SS & AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
Where risk is alleged in interim parenting proceedings, a conservative approach is warranted that is “likely to avoid harm to a child”: see Marvel v Marvel (2010) 240 FLR 367 at [375].
Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
Section 60CC(3) sets out additional considerations in determining what is in the child’s best interests. To assist analysis, those considerations can conveniently be grouped under the following headings:
(1)Issues relating to the children – their views, level of maturity, culture and relationships:
(a)Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
(b)Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
(c)Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; and
(d)Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander.
(2)Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility:
(a)Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
(b)Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
(c)Sub-section (3)(f) – the capacity of each of the child’s parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs; and
(d)Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents.
(3)Issues of family violence:
(a)Sub-section (3)(j) – any family violence involving a child or a member of the child’s family; and
(b)Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters.
(4)Effect of change:
(a)Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
(5)Practical difficulty of implementation:
(a)Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
(6)Avoiding further proceedings:
(a)Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
(7)Other relevant matters:
(a)Sub-section (3)(m) – any other facts or circumstances the Court considers relevant.
CONSIDERATION
Presumption of equal shared parental responsibility
The mother proposes that she be granted sole parental responsibility for the children in respect to medical treatment. Otherwise, she proposes that there be an order for equal shared parental responsibility.
An issue of concern in considering the mother’s proposal is the content of an email dated 27 August 2021, sent by the mother to X’s therapist, Dr G. This is located at page 43 of Exhibit “F,” where the mother provides a summary of her understanding of the court proceedings to Dr G. I respectfully agree with the submission of counsel for the father and the ICL that this was an attempt, on the part of the mother, to involve the therapist in her litigation goals.
Further, at [52]–[56] of his affidavit sworn on 26 October 2021, the father sets out an occasion in which the mother attended a “team meeting” with Z’s treating specialists, however she did not advise the father that the meeting would occur. While the circumstances in which the meeting occurred will need to be further explored during the final hearing of this matter, the disagreement between the parties in respect to consulting the children’s treating specialists is of particular concern. This is in circumstances where the parties are in disagreement as to the extent to which Z should be medicated in respect to ADHD, including, most relevantly, on weekends.
In that respect, by email dated 15 October 2021 addressed to the father, the mother stated that an objective of the team meeting included “working for Z to identify his emotions and his behaviours rather than medicalising the issues.”[6] (emphasis added)
[6] Father's affidavit filed 26 October 2021, annexure “C”
The issue of a child taking stimulant medication is, understandably, one that parents would treat as challenging, and could reasonably be expected to give rise to differences of opinion in any household irrespective of other related or unrelated issues of marital discord. It is important, however, that whatever decisions are made in respect to Z’s treatment, that both parties have confidence in the advice they have received and are at one in acting upon that advice.
In circumstances where there has been such disagreement between the parties concerning those medical and therapeutic issues, I have considerable concern in allocating sole parental responsibility in respect to medical issues to the mother.
Such an order would impede the father’s ability to obtain information concerning medical treatment being provided to the children, and also, potentially, the mothers adherence to such advice. This is significant in the context of where I have earlier described the quite complex mental health, and indeed, physical issues, impacting upon the children. As I have noted, the administration of medication impacting upon the cognitive functioning of the children, and specifically Z and X, is an understandably sensitive issue between the parties. But, it is conducive to the effective administration of such medication that both parents are fully aware of why it has been prescribed and how it should be administered. An order providing for the mother to have sole parental responsibility in respect to significant health decisions impacting upon the children is, in those circumstances, likely to result in additional conflict between the parties with a consequent negative impact on the children.
Accordingly, the presumption set out in s 61DA of the Act has not been displaced and I make an order for the parties to have equal shared parental responsibility.
Meaningful relationship
It is not disputed, by either party, that the children should have the benefit of a meaningful relationship with both parents. The need for the children to have a relationship with the father was specifically acknowledged by the mother in her email to X’s treating therapist dated 27 August 2021, to which I have earlier referred.
Issue of risk
The mother contends that the children are at risk of physical and emotional harm in the care of the father because he has a volatile temper, and that, in the past, he has acted in a physically aggressive manner towards the children.
To his credit, the father has acknowledged occasions where his conduct in physically disciplining the children, specifically Z, has been unacceptable.
Comparatively, the father contends that the mother presents a risk to the children’s emotional and psychological well-being because she is engaging in conduct to alienate them from him.
In Cowling & Cowling (1998) 143 FLR 400 at [18], the Full Court said:
The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter. Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
In these interim proceedings, it is not possible to make a determination in respect to the parties’ untested allegations that they make against each other.
Nonetheless, on the basis of information presented to the Court, it does not appear to be disputed that the parties had a volatile relationship and frequently engaged in arguments including in front of the children.
In the Child Inclusive Conference Memorandum, the Family Consultant recorded that:
The father described incidents of him physically harming Z, such as hitting him, throwing him on the bed and treating him roughly and he reported that he has been addressing this in therapy which, he said, is helping with alternate parenting strategies. He acknowledged that this reactive behaviour has had a difficult impact on the children.
The mother contends that, as a consequence of the father engaging in conduct of that nature, the children are “all fearful and hesitant about confrontation with the father,” which, in turn, she contends, has resulted in their reluctance to spend time with the father. This, she states, is most evident in respect to Z.
The mother’s account of the children being hesitant in spending more time with the father is consistent with the observations of the Family Consultant, who noted that the children all said that they are comfortable in their relationship with the father’s new partner, Ms O, and observing that “things are easier when she is present.” The fact that each of the children stated that they are more comfortable when at third party is present when they are in the care of the father is, in the context of these proceedings, quite telling. That evidence confirms the validity of the ICL’s submission that the father has much work to do in supporting the children to re-establish a meaningful relationship with him. At the end of the day, even in a final hearing, the Court can only make findings on the basis of evidence presented in those proceedings. The person who is possessed of the knowledge as to how he has interacted with the children is the father himself. Irrespective of what orders are made in this litigation, it is only the father who can, by modifying his behaviour, remedy that situation.
The mother also tendered clinical notes made by the father’s treating therapists. In light of the concession made by the father to the Family Consultant that he has acted in an appropriately aggressive manner in his discipline of the children, I have not found it necessary to consider the contents of those clinical notes which, of course, involve the father relating the most private of circumstances to his therapist.

In assessing risk as a result of the father repeating that conduct, I note that the Family Consultant recorded the mother’s advice to her that there has been no reported physical harm perpetrated by the father against Z since interim orders were made in September 2021. It was not disputed that the father is receiving therapy in respect to his depression and unsatisfactory aspects of his behaviour. In circumstances where the mother agrees that it is appropriate for X and Y to spend overnight time with the father, and for Z to progress to spending overnight time with his father, I am not satisfied, on the evidence presented in these interim proceedings, that the children would be at risk of being subject to physical harm in the care of the father.
Clearly, however, if the father were to engage in angry and dysregulated behaviour in front of the children, it would be extremely distressing for them. This is in circumstances where the children each display emotional distress as a result of not only their parent’s separation, but also the death of a close cousin, and more recently, the unfortunate passing of the paternal grandfather.
The greatest risk to the children is, however, even in the context of these interim proceedings, the emotional distress of being caught in the middle of this intense and uncompromising ongoing parental conflict. The evidence establishes that both parents are highly intelligent, determined, and uncompromising. I note and agree with the opinion of the ICL that if the parents are “not able to see the significant impact that their conflict is having on their children, then that’s a very grave concern.”[7] This point, made by counsel for the ICL, cannot be overstated. It is a clear and pressing danger for the children which can only be addressed by the parents modifying their own conduct.
[7] Transcript 29 October 2021, page 4 lines 43–45
In presenting her case, the mother referred to a number of other incidents where she contends the father has acted inappropriately in his interactions with the children. For instance, she asserts that X advised her that the father had given her permission to “hit back” if Z and Y attempted to hurt her.[8] It has not been possible, in the context of these interim proceedings, to make any findings in respect to the mother’s assertions in that respect.
[8] Transcript 29 October 2021, page 61 lines 20–21
Issues relating to the child – their views, level of maturity, culture and relationships
X is aged 14 and is the parties’ eldest child. She has been diagnosed with ADHD with associated anxiety. She was also diagnosed with depression in August 2020.
It was not disputed that Y, who Z’s twin, is a sensitive boy and is experiencing some emotion symptomology, including expressing thoughts of suicide and self-harm. While I am unable to resolve the issue, it is also plausible that Y’s asthma and eczema is exacerbated by exposure to the parental conflict.
As previously indicated, Z has been diagnosed with ADHD and it is not in dispute that he exhibits some challenging behaviours.
It was agreed by all parties including the ICL that the children are highly intelligent. X is 14 years of age. Both Z and Y are now 11 years of age. In those circumstances, the views of the children are a relevant consideration in these proceedings.
The Family Consultant recorded that the children each “expressed significant concerns about their father becoming angry with them if they do not do as their father wanted.”
The Family Consultant noted that “the children expressed similar views about their family and their time with the father. Each of the children described reluctance to spend more time with their father and described a close relationship with the mother.”
The Family Consultant also noted that X said she wanted to spend each alternative weekend from after school on Friday until Monday morning with her father, and would be agreeable to spending three days with her father and four days with her mother each week during school holidays. While not specifically the subject of comment by the Family Consultant, that notation of X’s wishes is consistent with the mother stating that the children do not wish to spend the single night with the father on the alternative week when they are not due to spend the weekend with him.
The Family Consultant recorded that Y expressed concerns that the father “can be edgy and twitchy” and that “he wants to spend a maximum, three nights with his father during the holidays rather than a whole week.”
The Family Consultant also referred to an incident which occurred earlier this year when Z “ran away from his father’s home to his mother”, and since that incident, he has not spent overnight time with the father. The Family Consultant recorded that Z “said that he is now happy to go to his father’s home, but does not think he and his father would “go well with more time” than currently.
The mother contended that there was a reference in the Child Inclusive Conference memorandum prepared by the Family Consultant to the effect that the children find spending one night with the father mid-week on each alternative week to be disruptive.[9] However, with respect to the mother, I was unable to find where the Family Consultant had recorded that feedback, although I acknowledge that both X and Y said they would prefer to spend just the three nights with their father on every second weekend.
Issues relating to the parents – decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility
[9] Transcript 29 October 2021, page 31 line 44–page 32 line 2
Both parents clearly love and care for their children. Both have taken every reasonable opportunity to spend time with their children and to be engaged in making decisions regarding long-term issues regarding the children’s care and welfare. Indeed, their intense desire to be involved in the decision-making has, itself, been a source of conflict between them.
There is no question that both parents have also provided for the physical needs of the children.
It is not in dispute that the father has some mental health challenges and he has an ongoing relationship with his psychiatrist. There is an element of uncompromising intensity in the mother’s presentation that is disconcerting.
The mother has subpoenaed clinical notes from the father’s psychiatrist. Again, I respectfully agree with the submission by the ICL that it is important that the father is not dissuaded from continuing to obtain that ongoing therapeutic support. I would not like to see the conduct of the mother in subpoenaing those notes of the father’s private discussions with his therapist interfering with the relationship that they have.
Even at this interim stage of the proceedings, having regard to the history of the father’s conduct and the presentation of the mother in these proceedings, I respectfully agree with the submissions of the ICL that both parents require assistance in developing their co-parenting skills to address the following:
(a)an inability to communicate with each other;
(b)a propensity to blame the other parent for the children being aware of the proceedings;
(c)an inability to focus on the children, rather than the conflict between them; and
(d)a marked difference in parenting and discipline styles, such that the children feel there is an inequity between how they are each treated and no clear understanding of what consequences will flow from an action.
The mother contends, in that respect, that the father acted irresponsibly in terms of attempting to resolve this issue by failing to attend a court arranged mediation.[10] Comparatively, the father contends that he was unable to attend the mediation as a result of a crucial stage of proceedings that he was engaged in in his profession as a barrister. It is not possible to determine, in these interim proceedings, the extent to which the father was capable of freeing his diary from such a court commitment. It would be regrettable if considerable public resources are being engaged as a result of the extent of litigation engaged in by these parties and both parties are not making a genuine attempt to resolve matters in dispute. Aside from the public interest in this matter being resolved, the unequivocal evidence of all therapists involved in the treatment of the children is that this ongoing disputation between the parents presents the greatest risk to the emotional and psychological well-being of the children. For that reason alone, the parents would be acting in what I regard as a grossly irresponsible manner if they do not take every opportunity to make a genuine attempt to resolve the matters in dispute between them. That will not occur if both parties continue on the uncompromising path of that they have been traversing.
[10] Transcript 29 October 2021, page 36 lines 2–6
An example of the parties focusing upon their conflict ahead of the interests of the children is what I found to be an inappropriate focus by the mother upon evidence which was obtained from the father’s treating psychiatrists. She sought to present that evidence despite an indication from the Court that the evidence was of little assistance to the issues to be determined in the proceedings. I respectfully agree with counsel for the father that, in so doing, “the mother has deliberately pointed out the darkest of thoughts that the father has expressed to his psychiatrist”[11] and failed to present the totality of the material in context. The actions of the mother, who I acknowledge was self-represented, were contrary to paragraph 1.1(a) of the Central Practice Direction which requires parties to conduct litigation “with the least possible acrimony in order to minimise harm to children and families.”
[11] Transcript 29 October 2021, page 43 lines 43–44
Also of relevance in respect to the issue of parental responsibility, included in the evidence in this matter, is an email exchange consisting of 10 emails between the parties. These emails related to whether the father would consent to Z undergoing surgery to address an arthritic condition affecting his second toe.[12] That surgery had been recommended by a specialist orthopaedic surgeon from P Hospital in late 2020. The father’s response links his consent to the surgery taking place to the mother agreeing that, in the event that she was unable to care for Z in the period subsequent to the surgery, he would be called upon to provide that care. I respectfully agree with the submission of the ICL that the father’s response to the mother’s request is “sadly indicative of the self-focus rather than a child focus. It does speak to and support the mother’s position, that there might be some element of coercive control here.” The father’s response to a request concerning a matter that clearly needed to be determined in Z’s interests was, with respect, a response that was other than one which would be provided by a parent acting responsibly and in the interests of the child.
[12] Exhibit “E”
The father contends that the mother has acted irresponsibly in making statements to the children that have contributed to the children having a difficult relationship the father. Examples of those statements are set out at [51] of the father’s affidavit filed on 26 October 2021. In the context of these interim proceedings, it is not possible to determine whether statements of the nature alleged by the father have been made by the mother to the children. That remains a live issue to be further explored in the event of the matter proceeding to final hearing.
The mother contends that, in October and November 2020, the father made appointments for both X and Z to attend upon Dr F without consulting her and in circumstances where the children did not want to see Dr F.[13] Comparatively, the father contends that the mother, without consulting the father, determined that neither X nor Z would continue attending upon Dr F as from October/November 2020. It is not possible to resolve this controversy in the context of these interim proceedings
[13] Mother's affidavit filed 27 July 2021, paragraph 64(g)
As best as can be determined at this interim stage of the proceedings, there regrettably appears to be some substance in each of the allegations and imputations each parent makes against the other, in respect to their assertions that the other has acted in an irresponsible manner in fulfilling their roles as a parent of these children, who, as discussed, each have their own challenges. The parties respective contentions will need to be evaluated in the context of a final hearing should the matter proceed that far.
As I have emphasised at several points in this judgement, the most irresponsible thing that the parents can do in terms of adverse impact upon their children is to continue their disputation with the same level of uncompromising determination that they have in the past.
Issues of family violence
The mother contends that the father “could be very punitive and nasty” when she did not comply with his decisions.[14] In that context, the mother contends that the father has a history of being easy to anger and engaging in coercive and controlling conduct towards herself and the children.
[14] Mother's affidavit filed 27 July 2021, paragraph 61
It is not possible, in the context of these interim proceedings, to make findings in respect to each of the parties’ allegations against the other that they have both engaged in conduct that would constitute coercive and controlling conduct within the definition under s 4AB of the Act. I respectfully agree, however, with the submission of the ICL that the father’s response to the mother’s request for him to agree for Z to undergo surgery to his toe is corroborative of her assertions that the father has a history of engaging in coercive and controlling conduct towards her and the children.
Similarly, if it is accepted, as contended by the mother, that on 12 March 2021 the father sent the mother a text message saying “agree to 50:50 care, financial arrangements will magically become easier for you”[15], such communication could also be indicative of the father engaging in a pattern of coercive and controlling behaviour.
[15] Mother's affidavit filed 27 July 2021, paragraph 73
In those circumstances, while it is possible that the children’s attitude towards their father has been influenced by the mother’s poor attitude towards him, it is equally possible that the children’s attitude toward spending time with their father has been influenced by his conduct towards them and the mother. Clearly, this is a matter that requires further consideration with the benefit of a report from the single expert, and, potentially, with the evidence of each of the parties being tested at final hearing if they are unable to resolve their disputation at an earlier point in time.
Effect of change
The orders that I make in these proceedings are essentially a continuation of the orders made by the senior judicial registrar, with a determination also being made respect to the children spending ongoing school holiday time. I note that issue had been reserved by the senior judicial registrar for further consideration upon receipt of the Child Inclusive Conference memorandum from the Family Consultant which has been available in these proceedings.
Practical difficulty of implementation
Both parents live in close proximity and there was no suggestion that there were any practical difficulties in the implementation of these orders.
Avoidance of further proceedings
Regrettably, the history of litigation between these parties has, in a relatively short period of time, absorbed not only the financial and emotional resources of the parties, but also demanded the allocation of significant public resources. Most relevantly, however, the parties who would benefit most from a resolution of these proceedings would be the children.
The presentation of the parties, is, however, such that it can be anticipated that they will continue to pursue this litigation with the same determination that they have in the past. That is most unfortunate. But aside from accepting the recommendations of the ICL that the parties attend educational courses to advise them of the impact of their conduct, there is little else that the Court can, in a practical sense, do to quell this ongoing confrontation between the parties.
Other relevant matters
A substantial issue in these proceedings is the means by which the amount of time that Z spends with his father, also in the company of X and Y, increases on a graduated basis such that he feels comfortable and to which he is able to adjust.
As previously noted, the orders made by the senior judicial registrar provide for that time to increase in accordance with the recommendations of the family therapist, Dr B.
In this matter, the mother proposed that the family therapy continue for only six visits after the date of the hearing. Her reasoning for making that submission was the fact that Z is already seeing a number of other therapists.
Comparatively, counsel for the father and the ICL contended that family therapy is important to assist in the repair of the relationship between Z and the father and that, accordingly, the therapy should continue for such period as recommended by the therapist. This was in circumstances where the father indicated that he was prepared to meet the cost of that therapy.
Taking a cautious approach in the context of these interim proceedings, I respectfully accept the argument presented by counsel for the father and the ICL that therapy is of benefit to Z, specifically to assist in repairing his relationship with his father. I agree that such therapy should continue for the period of time as recommended by the therapist himself.
The question becomes how Z’s time with the father should increase on an incremental basis. I will set out my reasoning in respect to that issue in addressing the considerations set out in s 65DAA of the Act.
During the course of the proceedings, the mother also sought a review of Order 17 of the orders made by the senior judicial registrar, which, as noted, provides that;
The mother advise the father within 24 hours of any appointments for the child or the children, to attend upon their treating psychologist/psychiatrist or medical specialist.
In circumstances where lack of communication concerning medical appointments has been an issue of significance between the parties and which has given rise to conflict between them, I am satisfied that it is appropriate that the mother shows appropriate courtesy to the father in advising him in respect to the children receiving therapy and/or medical treatment as referred to in that order. This is in circumstances where, as I’ve previously noted, there is an ongoing dispute between the parties as to whether Z should receive medication on weekends, including during those times that he is in the care of the father. In that respect, for instance, the father contends that Z was engaging in dysregulated behaviour at a very emotional time when they were travelling to his mother’s house for the purpose of attending a ceremony to bury some of the paternal grandfather’s ashes in the garden of his home. The father expresses suspicion that the mother did not provide Z with his medication on that day, which he suspects may have given rise to Z’s unfortunate behaviour on that day.[16] Comparatively, the father acknowledges that the mother stated that she did provide Z with his medication. Again, it is not possible to resolve the difference in the parties account as to whether they did or did not provide Z with his medication. The fact that each party is suspicious of whether the other parent has acted appropriately presents as a problem in terms of the management of the challenges associated with Z having ADHD.
[16] Father's affidavit filed 26 October 2021, paragraphs 41–44.

In that respect, it would be unfortunate if either party’s confidence in the medical advice being provided in respect to the children’s health issues was diminished as a result of distrust in the motivation of the other parent in taking the children to such medical treatment and/or therapy.
Furthermore, no evidence was presented as to why, in this day of electronic communication, the provision of 24 hours’ notice is impracticable or inappropriate. Accordingly, the mother’s oral application for a review of Order 17 of the senior judicial registrar’s orders is also dismissed.
The ICL proposes in Orders 5, 6, and 7 of their minute of order that the parents both enrol in parenting courses. Those orders were supported by the father. The mother was given an opportunity to respond to the submissions of the ICL. I respectfully agree that those orders are important in the circumstances of this case. In particular, as I have noted on several occasions, the greatest risk to the children in this case is the ongoing parental conflict. It is important that both of the parties fully appreciate the consequence of their continuing to engage in their intractable disputation that has unfortunately occurred to date.
The ICL also proposes, in Order 8 of her minute of order, that each parent be required to continue to follow the advice of their treating professionals in respect to any recommended therapies, including taking medication. The father had no opposition to that recommendation save to the extent that counsel for the father appropriately, in my view, suggested a minor change in wording. Once again, the mother had the opportunity of responding to the submissions of the ICL and the father, and despite that opportunity, voiced no opposition to that order being made. In circumstances where there are aspects of the presentation of both parties that give rise to concern and which may be contributing to the nature and intensity of their ongoing disputation, I respectfully agree that it is important that each of the parties continues to engage in appropriate therapy to address those issues, which include mental health issues, and I will make that order as proposed by the ICL.
The parties are in agreement that it is appropriate for a single expert family report to be obtained. Proposed Orders 9–20 of the ICL’s minute of order sets out a comprehensive and appropriate framework for the obtaining of that report from Dr E, who is a respected expert in this jurisdiction. I will accordingly, make orders in those terms.
SPEND TIME ARRANGEMENTS
Having made an order for the parents to exercise joint parental responsibility, it is necessary for me to consider whether orders should be made to the children to spend equal or substantial and significant time with each parent (s 65DAA of the Act). In applying that section, the legislature has directed the court, in subsection (5), to have regard to:
(a)how far apart the parents live from each other;
(b)the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents;
(c)the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind;
(d)the impact that an arrangement of that kind would have on the child; and
(e)such other matters as the court considers relevant.
The nature of the relationship between the parties was, in my view, appropriately described by the mother during the course of the proceedings as being “toxic”[17]. In circumstances of such poor communication between the parents, it would not be viable to make an order for the children to spend equal time with both parents (s 65DAA(5)(c)).
[17] Transcript 29 October 2021, page 26 lines 24–25
I am nonetheless required to give consideration as to whether the children should spend substantial and significant time with both parents, which, as noted in s 65DAA(3)(a)(i), would include the children spending days that do not fall on weekends. This consideration is relevant because the mother proposes discharge of Order 3(b) of the orders made by the senior judicial registrar, which provides for the children to spend overnight time with the father on Wednesday evenings.
As previously noted, the mother, at the hearing of this matter, withdrew her objection to Order 3(a) as made by the senior judicial registrar. Accordingly, I propose making an order that both X and Y spend time with the father from the conclusion of school on Friday until the commencement of school on Monday, or 5.00pm on a non-school day, to commence on the first weekend following the date of these orders, and each alternative weekend thereafter.
The mother, however, pressed her application for review of Order 3(b) made by the senior judicial registrar on the basis that it was disruptive to the children.
I have not determined that the children are at risk of physical harm in the care of either parent.
I have, however, determined that the children are at a potential risk of emotional harm in the care of the father if it is the case that he engages in angry and dysregulated conduct. I am satisfied that the risk of that occurring increases with the amount of time the children spend with the father. Accordingly, the amount of time should be constrained to that which was determined to be appropriate by the senior judicial registrar.
At the same time, I am also satisfied that there is a risk that the mother has involved the children in the parental dispute. In so deciding, I am not determining that such conduct has occurred as a matter of probability. It is, as I have stated, however, at the level of a risk that such conduct has occurred on the part of the mother. In forming that view, I have had regard to the fact that the wishes of the children expressed to the Family Consultant effectively replicate those of the mother. This may, of course, be a result of the mother’s contentions reflecting the wishes that the children have expressed to her. However, in determining the risk I have also had regard to the mother’s email to X’s treating therapist wherein the mother, in my view, unacceptably attempted to involve the therapist in achieving her goals in these proceedings, including in respect to her proposed spend time with arrangements.
As a result of finding that risk on the part of the mother, I respectfully agree with the submission by both counsel for the father and the ICL that, while the wishes of the children are a significant consideration, it is not as determinative of the orders that I make in these proceedings.
Even having regard to the wishes of the children, while both X and Y expressed a preference for only spending three nights per fortnight with their father, they did not, in their interview with the Family Consultant, express substantial concern about spending a mid-week night with their father on each alternative week. In that respect, the mother asserted, from the virtual bar table, that the children find that additional night disruptive. However, there was, as I have noted, no mention by the children of that concern to the Family Consultant. I respectfully agree with the submission by counsel for the father that no evidence has been presented to the court that the mid-week time that X and Y spend with the father is actually a problem for the children in the way that has been stated by the mother.
I further agree with the submissions of both counsel for the father and the ICL that the children in this matter are all highly intelligent, and could potentially interpret any signals communicated by way of reducing the amount of time that they currently spend with their father as a vindication of their mother’s position. While again, at this stage of the proceedings the Court can only assess issues of risk rather than matters of probability, the risk of that occurring is such that it would further impede, in my view, the re-establishment of the children’s relationship with their father. The provision for that to occur is also consistent with the children spending substantial time with the father.
Accordingly, I will dismiss that part of the mother’s application seeking a review of Order 3(b) made by the senior judicial registrar on 6 September 2021.
Further, as I have previously indicated, the parties to their credit, reached agreement that Z is to spend an increased amount of time with his father from 9.00am–5.00pm each alternative Saturday and Sunday at the same time that X and Y spend with their father.
In terms of holiday time, the mother initially proposed that the children spend time with the father three days per fortnight. During the course of the proceedings, the mother indicated that, provided there could be “some parameters around safety,” she would accept that X and Y could manage spending time with the father for three days every week during the school holidays. The mother contends that such orders are appropriate because the Family Consultant, in the Child Inclusive Conference memorandum, advised that the children should not be pushed spend time with the father beyond that which they feel comfortable. The mother further contended that, as a result of past experience, issues tend to arise in respect of the children becoming unsettled after spending three days with the father. In that respect, she referred to the fact that during the September school holidays, after a period of three nights with the father, Y left the father’s care and returned to the mother.
The father, on the other hand, explains, in his affidavit, that the circumstances in which Y returned to his mother were that the father was attending family therapy with Z and he had left Y in X’s care. It does not appear to be disputed that Y and X had a dispute, as a result of which Y left the father’s home and went back to his mother’s. The father opined that in so doing, Y was following the example set by his brother earlier in the year. It is not possible to resolve whether that was or was not Y’s motivation in the context of these interim proceedings.[18]
[18] Father's affidavit filed 26 October 2021, paragraphs 17–19
In his affidavit, the father contends that both X and Y coped extremely well in being in his care for a seven-day period during the last September school holidays, which was for approximately half of the school holidays. The father also contends that there is no reason to assume that the children would not benefit from spending half of the forthcoming Christmas/ New Year holiday period with him, and that an order should be made for X and Y effectively spending approximately three weeks in the care of each parent.
The ICL, on the other hand, contends, in her proposed minute of order, that X and Y spend time with each parent during the forthcoming school holiday period on blocks of 4 days and 3 nights and for future holiday periods on a week about basis, such that in total, they spend approximately half of the school holidays with each parent.
Having regard to what appears to have been a relatively minor incident regarding a dispute between Y and X during the last September school holidays, no additional evidence has been presented that satisfies me that either X or Y were distressed about spending a period of seven days with their father during that time. Again, in circumstances where I do not consider it would be in the interests of the children re-establishing their relationship with the father for the time they spend with the father to be reduced from that which they experienced in the September school holidays, I propose making orders for the children X and Y to spend alternative weeks with each parent during school holidays. That proposed order strikes the right balance, in my view, between the ongoing process whereby the children are re-establishing their relationship with the father, and, at the same time, not pushing them beyond that which they have previously been shown to have managed without any reported distress.
Such an arrangement, during the holidays, would also facilitate both parents taking the children on a brief holiday in circumstances where the children, together with the parents, have had substantial periods of being confined during the period of the COVID-19 pandemic.
In respect to Z, the mother submitted that it is her desire that Z’s relationship with the father will repair to the extent that Z also spends overnight time with the father. The real question in these proceedings is how that should occur.
Both the father and the ICL contended that the time Z spends with the father should increase in accordance with Order 4 of the orders made by the senior judicial registrar. That is, for Z to spend overnight time with the father “on a date specified by Dr B.”
As discussed with the parties during the course of the hearing, I have concern, however, that such an order may amount to an impermissible delegation of Commonwealth judicial power. Nonetheless, I agree that it is important for the parties to receive advice from Dr B as to the appropriate time for Z to commence spending overnight time with his father. I therefore propose to make orders which are a modification of the proposal by the ICL as set out in proposed Order 2 of the ICL’s minute of order, and which will provide that the child Z shall join his siblings in the time specified in Order 1 as agreed between the parties, acting reasonably, and informed by the recommendations of Dr B.
The order will further provide that, in the event that the parties have not been able to reach such an agreement, that as and from the commencement of Term 1 of the 2022 school year, Z shall spend time with the father on each alternate weekend from 9.00am on Saturday to 5.00pm on Sunday, with such time to coincide with X and Y’s time with the father. In making that order, I note that it was not one sought by any of the parties. However, during the course of the proceedings, I specifically raised that as a potential order that the Court may make. Having considered the issue, I have accepted the merit of the submission by the ICL that in the event of the Court making such an order, it should commence at the time which I have specified. The reason I have specified the commencement of overnight time, at that point in time, is to avoid a situation where the ongoing disputation between the parties prevents them reaching an agreement despite advice which they may receive from Dr B.
There did not appear to be substantial disagreement between the parties in respect to the children spending time with both parents on special occasions.[19] I am satisfied that the orders proposed by the ICL for time during special occasions impacting upon the father as well as the mother are appropriate. I will therefore make orders in broad accordance with Orders 3 and 4 of the ICL’s minute of order, modified to the extent that Z’s overnight time with the father, including on special occasions, shall commence from the start of the 2022 school term.
[19] see paragraph 17 of the mother's affidavit filed on 27 July 2021
CONCLUSION.
For all of these reasons, I make the orders as set out in the commencement of these reasons for judgment.

I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 8 December 2021

File number(s):	SYC 9099 of 2020
Judgment of:	MCCLELLAND DCJ
Date of judgment:	8 December 2021
Catchwords:	FAMILY LAW – PARENTING – Review of Registrar’s decision granting interim parenting orders – Mother seeks sole parental responsibility for medical issues – Where child has diagnoses of attention deficit hyperactivity disorder and history of self-harm – Where there is high conflict and a lack of cooperation between the parents – Allegations of exclusion in the making of medical decisions – Allegations of physical and emotional harm made by both parents – Parents’ failure to consider best interests of the children – Limitations of interim proceedings – Application dismissed save for one order.
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA Federal Circuit and Family Court of Australia Act 2021 (Cth) s 100(1) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 14.05, 14.07
Cases cited:	Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Blinko & Blinko [2015] FamCAFC 146 Cowling & Cowling (1998) 143 FLR 400; [1998] FamCA 19 Feiteiro & Feiteiro [2019] FamCA 647 Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346 Henley & Henley [2019] FamCA 101 Marvel v Marvel (2010) 240 FLR 367; [2010] FamCAFC 101 Masson v Parsons (2019) 266 CLR 554; [2019] HCA 21 McCall & Clark (2009) 41 Fam LR 483; [2009] FamCAFC 92 Russell & Close [1993] FamCA 62 SS & AH [2010] FamCAFC 13 Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369
Division:	Division 1 First Instance
Number of paragraphs:	147
Date of hearing:	29 October 2021
Place:	Sydney
Counsel for the Applicant:	Mr Othen
Solicitor for the Applicant:	Newnhams Solicitors
The Respondent:	Ms Deen in person
Counsel for the Independent Children's Lawyer:	Ms Treherne
Solicitor for the Independent Children's Lawyer:	Christina Lam & Associates

SYC 9099 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ALONSO Applicant
AND:	MS DEEN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	8 DECEMBER 2021