Barlow & Sellers - [2021] FedCFamC1F 327

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Barlow & Sellers [2021] FedCFamC1F 327

File number(s): ADC 3611 of 2012

Judgment of: MEAD J

Date of judgment: 20 December 2021

Catchwords: FAMILY LAW – PARENTING – With whom the children live and spend time – Best interests of the children – Where both parents seek sole parental responsibility and that the children live with them – Where litigation commenced in 2012 – Where the children are now aged 11 and 9 – Where there was a previous trial in 2018 – Where the mother at that time was consistently not facilitating the children’s previously ordered time with their father – Where both children are diagnosed with Autism – Where the children remained in the primary care of the mother – Where the father was found to be lacking in knowledge of the children’s medical and therapeutic needs – Where the mother continued to frustrate orders for time spending – Where the children were moved to the care of the father by interim order – Where the children progressed well in the father’s care – Where the father is capable of providing for the children’s special needs – Where the mother’s opposition to the children having any relationship with the father is unabating – Where there is no evidence to support the mother’s long-held views of risk to the children from the father of physical and/or sexual abuse – Where allegations of abuse over several years were found unsubstantiated by the Department for Child Protection – Where the Department were concerned as to the children being coached by the mother – Where the children are at risk of psychological harm from exposure to abuse by the mother of the father – Where the mother lacks insight into her behaviour – Where the children are to live with the father – Where there is no order for the children to spend time with the mother – Where orders made for regular Skype communication.

Legislation: Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 65DAA, 91B

Cases cited: Barlow & Sellers [2018] FamCA 207

Division: Division 1 First Instance

Number of paragraphs: 456

Date of hearing: 21-24 September 2020, 9-12 November 2020 and 1, 3 and 4 March 2021

Place: Adelaide

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: Thomson and Associates

Solicitor for the Respondent: Litigant in Person

Solicitor for the Independent Children's Lawyer: Ms Olsson

Solicitor for the Independent Children's Lawyer: Silkwoods
ORDERS

ADC 3611 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SELLERS

Applicant

AND:
MS BARLOW

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MEAD J

DATE OF ORDER:

20 DECEMBER 2021

THE COURT ORDERS THAT:
1.That all previous parenting orders made herein be discharged.
2.That the father have sole parental responsibility for B born 2010 and C born 2012.
3.That the said children live with the father.
4.
That the said children communicate with the mother by way of Skype calls for

a period of up to 30 minutes at 5.30 pm on each alternate Thursday commencing on 23 December 2021, with each of the father and the mother to do all things necessary to facilitate such communication.
5.That the Skype communication be uninterrupted as far as possible taking into account issues of technology, and that both parties be at liberty to record such communication.
6.That in addition to the communication referred to in paragraph 4 hereof, the children communicate with the mother by way of Skype call in the same manner (save as to time) and on the same conditions as prescribed in paragraphs 4 and 5 hereof, as follows:
(a)for a period not exceeding 15 minutes at 7.30 pm on each of the children’s birthdays, the mother’s birthday and Christmas Day and Easter Sunday in each year; and
(b)for a period of 15 minutes at 5.30 pm on the birthdays of each of the maternal grandparents in each year.

7.That there be no order for the children to spend time with the mother.
8.That the parties be restrained and injunctions are hereby granted restraining them from:
(a)discussing any matters arising from or in relation to these proceedings with the children or in their presence, or permitting any other person to do so; and
(b)attending at or within 100 metres of the property in which the other of them is residing from time to time.

9.That the mother be restrained and injunctions are hereby granted restraining her from:
(a)attending at or within 100 metres of any school or schools attended by B and C from time to time SAVE AND EXCEPT at the express invitation of the School Principal or the Class Teacher of either child for the purpose of attending at a parent/teacher interview outside of school hours when the children will be at the school or at the express written invitation of the father;
(b)attending within 100 metres of the church attended by the father and the children for a period of 15 minutes prior to the commencement and a period of 15 minutes after the conclusion of any advertised church service time SAVE AND EXCEPT at the express written invitation of the father;

10.That the father keep the mother informed at all times in writing of the school or schools attended by B and C from time to time.
11.That the father provide to the mother within fourteen (14) days of receipt of same, copies of any semester or end of year school reports received by B and/or C.
12.That the father provide to the Principal of any school attended by B and C from time to time a copy of these reasons.
13.That the father forthwith advise the mother in writing (or in the case of an emergency by way of SMS text message) of any serious illness or accident suffered by B and/or C requiring hospital admission and that the mother be permitted to visit the child or children in hospital for such periods as authorised by the relevant hospital authority.
14.That in the event of the mother undertaking any form of therapy to assist her to address the issues raised in these reasons, she provide to the relevant therapist a copy of:
(a)the reasons of the Honourable Justice Berman delivered 5 April 2018;
(b)the Family Assessment Report of Ms R dated 16 April 2020; and
(c)these reasons.

15.That the order for the appointment of an Independent Children's Lawyer made herein be discharged.

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 pseudonyms Barlow & Sellers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION

The applicant Mr Sellers aged 46 years (hereinafter referred to as “the father”) and the respondent Ms Barlow aged 42 years (“hereinafter referred to as “the mother”) are the parents of two children B born 2010 (now aged 11 years) and C born 2012 (now aged 9 years).
The parties cohabited between approximately April 2010 and September 2012 and commenced litigation on 19 September 2012. The first tranche of the litigation concluded with a consent order on 9 October 2013.
On 18 February 2014 the mother filed a further Initiating Application with respect to parenting issues. That Application together with the father’s Response was listed for trial before the Honourable Justice Berman. The trial took place over five days between October 2017 and March 2018 with his Honour making a final order on 5 April 2018.
On 15 February 2019 the father filed an Initiating Application with an Amended Initiating Application being filed by him on 27 February 2020.
On 25 March 2019 the mother filed a Response to the Initiating Application. The mother filed a further Application in a Case on 6 September 2020. On 21 September 2020 the Court ordered that document be deemed to be the mother’s Amended Response to the father’s Amended Initiating Application filed 27 February 2020.
These reasons relate to the father’s Amended Initiating Application filed 27 February 2020 and the mother’s Amended Response to that Application filed 6 September 2020.
The parties had to the time of trial been engaged in almost continuous litigation for a period of eight years.
Background
The matters canvassed at trial before me were, to a significant degree, the same as canvassed by the parties before Justice Berman in the earlier trial.
In [4] and [5] of his Honour’s Reasons for Judgment he said:
4.The history of the litigation would suggest that the mother considers that the father presents as a risk to the children by assertion that he has behaved in a sexually inappropriate manner to the children, that he presents as a physical risk and during the period of the relationship he was the perpetrator of family violence towards both the mother and the children.
5.The mother did not press that the father presented as an unacceptable risk at trial, but rather focussed on her assessment of the very detailed needs of the children and an assertion that the father was either not prepared or not able to provide for their necessary care.
He went on to say in [7] and [8]:
7.The mother contends that whilst she remains fiercely protective of the children, she recognises that it is important for them to maintain a meaningful relationship with the father. She acknowledges that the children have not spent time with him for now more than one year but that is not to be seen as an indication of her resistance but rather, a consequence of a breakdown in communication between the parties.
8.The father does not accept the mother’s proposition and her explanation for the non-compliance with the current interim order and argues that she has no intention of complying with any order that the children would spend time with him. He considers that the mother is set on fundamentally disrupting his relationship with the children.
These were the same issues that were at large at the trial before me which commenced on 21 September 2020. An essential difference however at the time of the trial before me was that the mother was pressing that the father presented as an unacceptable risk to the children and was unable to acknowledge any benefit to the children in having a meaningful relationship with their father.
At the time of Berman J’s judgment on 5 April 2018 B and C had not spent time with their father for over twelve months.
His Honour said in [268] to [271] inclusive:
268.The children have spent no time with the father for now more than a year. I do not accept the mother’s evidence that there has been a breakdown in communication and therefore a misunderstanding as to the time that the children should spend with the father and the necessary handover arrangements. The mother has been deliberately misleading in her evidence and disingenuous in respect of her assertion that she recognises the importance of the children’s relationship with their father.
269.An order should be made that whilst the children remain in her primary care, they spend significant and substantial time with the father. It is also necessary that the orders reflect the need for the children to forthwith re-establish a relationship with the father and I consider that can be achieved by any order made for the children to live with the mother to be suspended for a period of twenty eight days during which time the children will live with the father.
270.The suspension of the children’s time with the mother accords with the evidence of the family consultant. She considered that the children should reside with the father and spend limited time with the mother. There was obviously confidence in his ability to care for the children. A period of twenty eight days will also enable him to acquaint himself with the children’s needs and to contact various health professionals.
271.It should not be assumed that the mother will inevitably refuse or fail to comply with Court orders. She should be given the benefit of the doubt and the orders that I make are predicated upon the reasonable assumption that the children’s needs require support and involvement from each of the parties.
The orders made by Berman J on 5 April 2018 provided as follows:
(1)That the parties have equal shared parental responsibility for [B] born 2010 and [C] born 2012 (“the children”).
(2)That the children live with the father for a period of twenty eight (28) days from the date of this order.
(3)That as and from the conclusion of twenty eight (28) days from the date of this order the children live with the mother.
(4)      That the children spend time with the father as follows:-
(a)Each alternate weekend from the conclusion of school Thursday (or 3 pm if a non-school day) until the commencement of school Monday (or 9 am if a non-school day);
(b)For one half of the short term school holidays from the conclusion of school on the last day of term until 5 pm on the middle Sunday;
(c)For one half of the long Christmas school holidays from the conclusion of school on the last day of term until 5 pm on the following Friday and each alternate week thereafter;
(d)For Father’s Day from 9 am until 5 pm if not already in the father’s care PROVIDED that the children spend time with the mother from 9 am until 5 pm on Mother’s Day if not already in the mother’s care;
(e)From 3 pm Christmas Eve until 3 pm Christmas Day in 2018 and each alternate year thereafter PROVIDED that the children will spend time with the mother from 3 pm Christmas Day until 5 pm Boxing Day in each alternate year;
(f)From 3 pm Christmas Day until 5 pm Boxing Day in 2019 and each alternate year thereafter PROVIDED that the children will spend time with the mother from 3 pm Christmas Eve until 3 pm Christmas Day 2019 and each alternate year thereafter;
(g)For Easter 2019 from 5 pm Maundy Thursday until 5 pm Easter Saturday and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 5 pm Easter Saturday until 5 pm Easter Monday in 2019 and each alternate year thereafter;
(h)For Easter 2020 from 5 pm Easter Saturday until 5 pm Easter Monday and each alternate year thereafter PROVIDED that the said children will spend time with the mother from 5 pm Maundy Thursday until 5 pm Easter Saturday in 2020 and each alternate year thereafter;
(i)On each of the children’s birthdays for a period of at least three (3) hours at times to be agreed between the parties if the children are not already with the father PROVIDED that the children will spend time with the mother on each of their birthdays for a period of at least three (3) hours at times to be agreed between the parties if the children are not already with the mother;
(j)Such other times as may be agreed between the parties.
(5)That handovers that do not take place to and from the children’s school shall be at such other place as may be agreed between the parties but failing agreement THEN at the [Handover Location V at D Street, E Town] PROVIDED THAT with not less than 24 hours’ notice each party shall be able to nominate an adult to effect the handover if they are not able to attend.
(6)That communication between the parties be limited to email and text message communication except in the case of emergency.
(7)That the parties shall do all things necessary to ensure that the children are enrolled and remain so enrolled at [F School], located at [Suburb G], subject to any other agreement of the parties.
(8)That the mother will do all things necessary and provide all such authorisations to the school administration of [F School] to ensure that the father is entitled to receive all information pertaining to the children, is able to contact the school administration and teachers to discuss the educational requirements and progress of the children and to ensure that the children’s enrolment reflects the father as their parent and as an alternate contact in case of emergency.
(9)That the parties be at liberty to attend all school and extra-curricular activities that parents would ordinarily invited to attend including but not limited to sports days, concerts, parent-teacher interviews and the like PROVIDED that they shall each advise the other in writing of their intentions to attend.
(10)That both parties be at liberty to receive copies of all correspondence from the said children’s school and extra-curricular activities including but not limited to newsletters, bulletins, photographs and the like.
(11)     That injunctions be granted and each party be restrained from:-
(a)       Physically disciplining the children;
(b)Discussing these proceedings in the presence of the children or allowing anyone else to do so;
(c)Denigrating the other party, the other party’s family or the other party’s partner in the presence of the said children or from allowing anyone else to do so;
(d)Posting on social media about the other party, the other party’s family, the other party’s partner or these proceedings in any way whatsoever;
(e)Taking the children to any psychologist, counsellor, social worker or mental health practitioner without the consent of the other parent first being obtained in writing SAVE AND EXCEPT for the current health professionals involved in the children’s care and any psychologist, medical practitioner, counsellor, therapist or other health professional as may be recommended by any of them;
(f)Changing the children’s school without the prior consent of the other parent first having been obtained in writing.
(12)That the parties forthwith advise the other of the residential address of the children and shall provide to the other contact details including email address and mobile phone numbers.
(13)In the event of a medical emergency involving the said children the parent with whom the children are spending time with shall notify the other parent forthwith and allow the other parent to attend upon the said children.
(14)That the mother shall forthwith advise the father of the contact details of the children’s health professionals and care providers to the intent that the father shall forthwith make contact with those persons to enable him to better understand the needs of the children.
(15)That the appointment of the Independent Children’s Lawyer be discharged.
At trial his Honour:
·accepted the observations of the Family Consultant as to the open hostility of the mother towards the father;
·gave significant weight to the recommendations of the Family Consultant which were that the children’s best interests would be met by a change in primary caregiver to the father;[1]
·did not accept the mother’s explanation for non-compliance with the existing orders for time spending and found there was consistency in her presentation that “she has extreme reluctance in supporting the children’s relationship with the father”;[2]
·accepted that:
The issues raised by the family consultant raise the real prospect of the children being denied a relationship with their father in circumstances where the mother may have engendered in them an erroneous belief that their father is someone to be feared and that he has hurt them…[3]
·found that the mother “has demonstrated a level of volatility and aggression when dealing with those that she considers seek to challenge her proposed course of conduct”[4];
·found that:
If the focus is upon the emotional needs of the children, then the mother’s behaviour could be considered damaging. She has actively sought to alienate the children from the father and her evidence, with some support from the family consultant, does not invite a belief that the mother is in any way kindly disposed to the children having a relationship with the father.[5]
·noted that the mother specifically resiled from any allegation that the father presents as an unacceptable risk of either physical or sexual assault or abuse;[6] and
·found that there was no evidence that would support either a finding to the contrary or that would present the father as an unacceptable risk to the children.[7]
[1] Reasons for Judgment of Berman J dated 5 April 2018 at [189].
[2] Reasons for Judgment of Berman J dated 5 April 2018 at [191].
[3] Reasons for Judgment of Berman J dated 5 April 2018 at [190].
[4] Reasons for Judgment of Berman J dated 5 April 2018 at [228].
[5] Reasons for Judgment of Berman J dated 5 April 2018 at [237].
[6] Reasons for Judgment of Berman J dated 5 April 2018 at [253].
[7] Reasons for Judgment of Berman J dated 5 April 2018 at [254].

Following upon the delivering of his Honour’s reasons and making of the order on 5 April 2018, the mother filed a further Initiating Application some six months later on 23 October 2018 wherein she sought:
·a dismissal of the order of 5 April 2018;
·an order that the children live with her;
·an order that she be granted sole responsibility for the children;
·an order that the father has no further time with the children; and
·an order that she be granted permission to obtain passports and be able to take the children out of the Commonwealth of Australia should the opportunity arise “(this order is sort (sic) to prevent future litigation)”.
On 16 January 2019 the mother filed a Notice of Discontinuance with respect to that Application.
On 15 February 2019 the father filed an Initiating Application. In that Application he sought:
·a dismissal of the orders of 5 April 2018;
·an order that B and C live with him and that he have sole parental responsibility for the children;
·an order prescribing the children’s time with the mother:
·in alternate weeks from after school Thursday to the start of school Monday;
·for half of the school holiday periods;
·for half of the Christmas school holiday periods on a week-about basis;
·on special occasions including Mother’s Day, Christmas Day, Easter and the children’s birthdays; and
·specific issues orders in relation to handovers, communication between the parties and the like.
The mother had also filed a Contravention Application with her Initiating Application on 23 October 2018.
Both Applications were listed before Justice Berman on 20 February 2019.
At a further hearing on 22 February 2019 the mother’s Contravention Application was dismissed.
In the mother’s Response to the father’s Initiating Application filed by her on 25 March 2019 she sought that the parties have:
·equal shared parental responsibility for B and C;
·that the children live with her; and
·that the father spend time with the children as recommended by the Department for Child Protection (“the Department”).
On 27 March 2019 Berman J ordered inter alia that the Minister for the Department be invited to intervene in the proceedings pursuant to s 91B of the Family Law Act 1975 (Cth) (“the Act”) and adjourned the matter to 18 April 2019.
In reasons delivered by Berman J on 27 March 2019 he referred to the children being the subject of a Safety Plan which the Department had required both parties to sign.
On 16 March 2019 the children had been removed by the Department from the care of the father, where they had been spending time pursuant to the existing orders of Berman J, and returned to the care of the mother. Both parents and the children were subject to the following conditions of a Safety Plan:
·that the children were to remain in the mother’s care until advised by the Department;
·that the children were to have no contact with the father until advised by the Department;
·that the mother was not to talk to the children about any concerns of the Department; and
·that the parents were to comply with requests from the Department or other agencies.
The mother professed to have no knowledge of how those circumstances had arisen. The father was sceptical in that regard.
These matters were all referred to in the reasons of Berman J of 27 March 2019.
By correspondence dated 5 July 2019 the Department reported to the Court as to the issues leading to the Safety Plan.
At a hearing before Berman J on 9 July 2019, in circumstances where the Court was advised in the penultimate paragraph on page 2 of the report that “the Department does not object to the children being cared for by the father in accordance with paragraphs (4) and (9) of his Honour’s orders of 5 April 2018”, his Honour noted that the provisions for the children to spend time with the father, which he had previously suspended, were no longer suspended as of 9 July 2019 and ordered that B and C spend the second half of the July 2019 school holidays with the father.
At a further hearing on 17 July 2019 Berman J noted:
…that the parties have agreed the children [B] born […] 2010 and [C] born […] 2012 will be handed over to the father at 12.00 noon today and will remain in his care until 5.00 pm on the following Sunday with handover to occur at the [Handover Location W]
before adjourning the matter to 2.15 pm that same day to ensure a successful handover of the children.
The matter next came before the Court on 31 July 2019 when his Honour restrained the mother or any agent or person nominated by her from attending at F School at times coinciding with the transition of B and C into the care of the father pursuant to orders of 5 April 2018. He also varied the alternate handover order to provide that handovers of the children that were not to take place at school should take place at Handover Location W between the maternal grandmother and Ms J.
His Honour otherwise dismissed all current interim matters and referred the matter to the trial list.
B and C lived with their father for a continuous period of twenty-eight days following Justice Berman pronouncing parenting orders on 5 April 2018.
Between the expiration of that twenty-eight days and the filing of the father’s Initiating Application on 15 February 2019 the children had spent little time with him pursuant to the final parenting orders. They were removed from his care by the Department some four weeks after the filing of his Application and were unable to spend further time with him until July 2019 as a result of that process.
At a hearing on 15 October 2019 the Registrar noted that both parties were seeking a listing before Berman J to address recusal. At a hearing on 22 October 2019 dealing primarily with subpoena issues, Berman J noted the proceedings were not to be further listed before him.
On 20 November 2019 the Registrar ordered that the children B and C be independently represented.
On 6 December 2019 the mother filed an Application in a Case seeking that orders providing for the children’s time with their father be suspended immediately.
The matter first came before me on 10 December 2019. Procedural orders were made that day with the matter being adjourned to 14 February 2020.
In view of the complexity of the matter and the numerous documents filed by each party I ordered that neither party file and serve any further Applications or affidavits during the period of the adjournment.
On 20 February 2020 at a directions hearing I listed the mother’s Application for hearing on 27 February 2020, together with the father’s Response thereto tendered to the Court that day and marked as Exhibit “1” pending the same being filed.
The father also sought orders to significantly change the children’s parenting arrangements such that he have sole parental responsibility for them, they live with him, and spend no time with their mother for a period of twenty-eight days. He proposed that thereafter the children spend time with their mother at a children’s contact centre and that the mother be restrained from removing the children from the Commonwealth of Australia.
After hearing submissions, including from the Independent Children's Lawyer, on 27 February 2020 I delivered Ex Tempore Reasons prior to making my order. In those reasons I expressed my intention to vary the final orders of Berman J on an interim basis such that the children spent time with the father on two consecutive weekends leading up to the adjourned hearing on 13 March 2020, rather than on the one alternate weekend as provided for in his Honour’s orders. I declined to accede to the orders sought by the father.
The following matters were referred to in the Ex Tempore Reasons for Judgment delivered that day, namely:
·the headnotes to the judgment of Berman J of 5 April 2018 in the context of the dispute before the Court on 27 February 2020 being almost identical in nature to the dispute between the parties at the time his Honour heard the trial and in respect of which he delivered judgment;
·the mother’s opposition to the children having a relationship with the father;
·the father not having taken up the opportunity to acquaint himself to the level he might with the children’s particular physical and emotional health needs;
·that in a period of nearly two years following upon the twenty-eight days immediately after his Honour’s judgment when B and C spent uninterrupted time with their father, they had otherwise only done so on about six or eight occasions;
·the lack of any evidence before the Court suggestive of the Department for Child Protection considering B or C to be at risk in the father’s care, or as to any ongoing police investigation in relation to the father’s conduct, or that new allegations raised against the father in 2019 were considered substantiated allegations by the Department;
·the risk to the children’s emotional health and safety if they were unable to spend time with their father;
·positive observations of interaction between the children and their father in the original Family Report dated 24 October 2014 and the Family Report of 26 February 2018;
·concerns expressed in the Family Report of 26 February 2018 as to the ability of the mother to respond appropriately to the children, to reassure them after their time with their father, and that she “provoked” the children into becoming dysregulated and was not able to manage their responses;
·concerns expressed in the 2018 Family Report as to the mother appearing to be hostile towards the Family Consultant, the Court process and the children, and the observation therein as to the limited emotional warmth and connection between the mother and the children and little ease of communication;
·a pastoral care incident at the children’s school on 15 March 2019 brought to the Court’s attention by the Independent Children's Lawyer, Ms Olsson, indicating:
·the children arriving at school with the father and B being calm and starting the morning routine compliant and happy to please;
·the mother and maternal grandmother entering the school area at 9.20 am, standing outside of B’s classroom and beckoning for B to come out to them;
·B leaving the room and spending about five minutes hugging his mother before returning to the classroom; and
·B thereafter becoming aggressive, losing any ability to focus and refusing to engage in any learning, such that the rest of the school day was wasted for B;
·there appearing to be no merit in the mother’s expressed concern that the father was not showing any genuine effort in maintaining a relationship with the children in circumstances where that seemed to be the sole reason the matter was back before the Court;
·that Berman J had found B and C to have a solid meaningful relationship with their father;
·the mother’s submissions about matters raised by B and C in various child protection interviews and reports, the extensive interviews of the children by the Department for Child Protection and Child Protection Services, and neither Service considering the children to be at risk in the father’s care;
·the issues in dispute before the Court in March 2020 mirrored those before Berman J in 2018, there was no evidence to substantiate the mother’s claim that the children were at risk, but the father had seemingly not taken his Honour’s advice as to acquainting himself with the children’s special needs; and
·his Honour’s findings at the 2018 trial that the mother:
·had been deliberately misleading in her evidence with respect to misunderstanding the time the children should spend with their father; and
·disingenuous in respect of her assertion that she recognised the importance of the children’s relationship with the father,
were relevant in circumstances where similar submissions were made by the mother in support of her current application to prevent the children spending time with the father.
Part way through the pronouncing of the orders, the following exchange took place with the mother:
Ms Barlow: Your Honour, the two days that the children are home with me are going to cause the children such distress, the change in circumstances, that I would beg you to consider the two weeks in full, because the children will not cope…I can’t do that to my kids, from the 3rd to the 5th my kids will be too distraught and I can’t do that to them, I can’t disrupt their schooling.
Justice Mead: So you want them to go for the fortnight?
Ms Barlow: Well, they can’t have the two days at home with me, it’ll be too disruptive to them.
Justice Mead: Alright, the mother has just suggested that the children go for the block period of time and I’m prepared to vary my order.
The end result of that exchange was an order that B and C spend uninterrupted time with the father from the conclusion of school on a date in early 2020 until the adjourned hearing on 13 March 2020.
I otherwise ordered that the substantive orders of Berman J remain in full force and effect save and except for paragraphs 3 and 4(a). In addition it was a condition of the order that the father personally collect B and C from and return them to school each day. This involved significant travel for the father and the children.
The order further provided for the mother and her servants and agents to be restrained from attending at the children’s school during the period that they were to spend uninterrupted time with their father, noting however that the maternal grandfather worked at the children’s school and may be called on for temporary relief teaching from time to time.
The order addressed certain health issues relating to B and further restrained both parties from removing the children from the Commonwealth of Australia. During the period of the adjournment the order provided that any therapy session to which B would be entitled pursuant to his Insurance Scheme UU funding be suspended.
The order made on 27 February 2020 ultimately remained in place as at the date of trial some seven months later, save as to some minor adjustments.
On 13 March 2020, after enquiries had been made by the Independent Children's Lawyer as to urgent availability, the Court was able to make an order for a Family Report to be provided by Ms R, Clinical Psychologist, with appointments commencing on 16 March 2020.
An order was also made for each party to obtain a report as to the current state of their mental health, with the Independent Children's Lawyer to provide the psychiatrist preparing the reports with copies of the Reasons for Judgment of Berman J dated 5 April 2018, the two previous Family Reports prepared for the trial before him dated 22 October 2014 and 26 February 2018 and all Applications and affidavits filed by each party subsequent to 5 April 2018. The Court further ordered that the same documents be provided by the Independent Children's Lawyer to Ms R.
Ms R’s report was dated 16 April 2020 and filed by the Independent Children's Lawyer on 17 April 2020.
At the next hearing on 24 April 2020, by which stage the Family Assessment Report of Ms R was available to the Court, the order of 27 February 2020 was continued but provision was made for B and C to communicate with the mother by way of Skype at 5.30 pm on Thursday of each week for a period not exceeding thirty minutes, with each of the parties to do all things necessary to facilitate the communication.
Trial directions were made at a further hearing on 10 July 2020. At the time the trial commenced B and C were living with the father and communicating with the mother by Skype on Thursday each week for a period not exceeding thirty minutes. The children had not spent time with the mother since early 2020.
The trial commenced on 21 September 2020 and continued on each of 22, 23 and 24 September 2020, 9, 10, 11 and 12 November 2020, and 1, 3 and 4 March 2021.
The mother represented herself at trial. The father was represented by Mr Roberts of Counsel and the Independent Children's Lawyer, Ms Olsson, appeared for B and C.
The Father’s case
The father’s evidence was contained in affidavits filed on 7 September 2020 and 17 September 2020 supplemented by a Book of Documents. He further relied on the evidence of Ms Z contained in her affidavit filed 7 September 2020 and that of Ms J contained in her affidavit filed on the same date. The father and his witnesses were each cross-examined by the mother and the Independent Children's Lawyer.
In the father’s trial affidavit filed 7 September 2020 he set out in detail the physical care that he had been providing to the children since early 2020, including their living arrangements with him in a house owned by his mother and the arrangements he had in place to take the children to and from school, which sometimes involved up to one and a half hours travel time each way. He described the helpful understanding extended to he and the children by their school arising from their changed circumstances, and expressed a clear understanding of the children’s progress at school and to his ease of communication with the children’s teachers.
He set out in detail the various agencies involved with B’s Insurance Scheme UU funded therapy as well as the treating doctors for the children, and expressed concern as to what he perceived to be the roadblocks put in place by the mother to frustrate his ability to facilitate B’s ongoing therapeutic needs. The evidence was detailed and clearly indicated both an understanding of the assistance required by B and significant efforts made to ensure B had the therapy he needed.
He deposed to significant concern as to the conduct of the mother during Skype calls with the children, in particular his concern as to what he considered to be her efforts to undermine his relationship with the children and instil in them a belief that they were not safe in his care and that he could not adequately care for them.
He deposed to ongoing attendances at his home by police to conduct welfare checks on the children, which he considered were instigated either directly or indirectly by the mother.
He set out in detail his future plans for the children including the necessity to move the children’s school to one closer to his residence and to his intention to obtain assistance as to a suitable school from Organisation VV.
He deposed to concern as to the children spending any unsupervised time with the mother, arising from his belief that she was attempting to alienate the children from him and would continue to do so.
He specifically denied all allegations of sexual abuse by him towards the children reported consistently over the years, and deposed in particular to correspondence received by him from the Department for Child Protection dated 14 August 2020,[8] which was in the following terms:
Dear [Mr Sellers],
I am writing in regards to the Department for Child Protection’s involvement with your family commencing March 2019 regarding child protection concerns that were reported to the Department regarding your children; [B] and [C].
As you are aware, the Department received notifications containing concerns of a sexual nature. The investigation is now complete. The Department is NOT SUBSTANTIATING the allegations of “sexual act or exploitation” or “suspicious indicators consistent with sexual harm”. Child Protection Services are unable to confirm if an incident did or did not occur, as it is of a professional opinion that the children may have been coached throughout the interview process.
The Department has been made aware that you are seeking full custody of the children through the Family Law Court. Consequently, the Department do not believe there is a role for ongoing Departmental involvement and is closing the case for [B] and [C]. Any newly revived legitimate child protection concerns raised in relation to the above children will be assessed and responded to accordingly.
…
[8] The father’s Book of Documents - Document 10.

The father deposed to the earlier allegations having been dealt with during the trial before Berman J to which I have referred in paragraph 15 hereof.
In paragraphs 76 to 92 of the father’s trial affidavit filed 7 September 2020 he deposed to issues arising from the Skype communication between the mother and the children. He deposed to technical problems arising from time to time which he did not experience when using that technology at his home at other times, and to the children becoming “ratty” and starting to misbehave in the periods leading up to the calls. It was his evidence that the children had become more reluctant to participate in the calls and less engaged in the time with their mother.
In paragraphs 80 to 90 of his trial affidavit the father set out specific examples of what he considered to be the mother’s inappropriate behaviour and conduct during the Skype calls. His concerns related to:
·the mother frequently directing loud and abusive comments towards him;
·the mother undermining his care of the children to the children by telling them for example that they looked sick, that they weren’t eating the right food and were not receiving appropriate medical attention;
·the mother referring to him during conversations with the children as a “dickhead”, “douchebag”, “arsehole dad”, “fucking dickhead” and “scumbag”;
·the mother telling the children to go to a neighbours if they were feeling unsafe, to find a safe place in his home, and to stay away from his room;
·the mother telling the children the father was recording the Skype calls illegally;
·that the “SAPOL chopper is out looking for Dad” and that “SAPOL will arrest his butt as he’s not supposed to be recording the call”;
·the mother telling B to stand up and remove his shirt so that she could check him for marks and asking C if she was sore between her legs;
·the mother telling the children to go and sit in C’s wardrobe for the call;
·the mother telling the father to “piss off” and that it was her time and her right to speak to the children without him monitoring the call;
·the mother telling the children it was child abuse that she could not be with B for his medical imaging;
·the mother telling the children to ignore “the scumbag” referring to the father; and
·when C bit the father on one occasion the mother immediately saying to her “glad you bit Dad”.
In addition he deposed to the mother telling the children that the Court is “stupid”, that she was going to “sue the arse of the Court” and that they should not worry because “God would strike Dad dead”.
In his affidavit in reply filed 17 September 2020 he denied the mother’s allegations contained in her trial affidavit filed 14 September 2019 that he had strangled her, that he had attempted to murder her, or that he had ever been connected with “an as-yet unsolved murder”.[9] He denied any level of domestic violence during his relationship with the mother and to have had a good cooperative working relationship for some eighteen years with the mother of his eldest son Mr M.
[9] The mother’s trial affidavit filed 14 September 2020 – paragraph 6.
He conceded that he suffers from Condition FF which he deposed to being effectively managed by his General Practitioner.
The nub of the father’s case was that so long as the children remained living with the mother there was no prospect of them being able to maintain a relationship with him. It was his case that:
·he had not inflicted domestic violence on the mother at any time nor been sexually abusive nor abusive in any other manner to either B or C;
·he could appropriately care for the children;
·he had taken on-board the concerns of Berman J as to his knowledge of and involvement in the medical and therapeutic care necessary for B in particular, and become well acquainted with those issues;
·he had the proper and appropriate parenting skills to provide for the children in an environment where they were not constantly subjected to, what he perceived to be, the mother’s extreme views not only about him but about their level of disability and safety generally; and
·the children were at risk of psychological abuse if they remained in the care of the mother.
Mr Sellers was cross-examined by the mother and by the Independent Children's Lawyer.
He responded to the mother’s questions in cross-examination in a respectful manner. He exhibited a clear understanding of B’s therapeutic needs but also a frustration with what he considered to be the mother’s interference in him being able to obtain the help needed for B under Insurance Scheme UU.
He was able to describe in detail the special arrangements that he made for B at meal time to ensure he didn’t choke, the games that he and B enjoyed together, his understanding of B’s fatigue and the need to be alert to that, and his understanding of B’s Care Plan.
Notwithstanding the primary focus of the questions and answers being on B, he expressed a clear understanding of C’s likes and dislikes, strengths and weaknesses and clearly had investigated activities that may be of interest and benefit to her.
His answers indicated a high level of investment in providing the best level of care he was able to both of the children and having benefitted from the judgment of Berman J of 5 April 2018 in being able to acknowledge and embrace the importance of understanding the children’s health and therapeutic needs.
He was measured in his responses notwithstanding the mother’s “badgering” tone and dismissive attitude to the quality of care she considered him capable of providing to B and C, evident in the tone and content of her questions.
The mother did not challenge the father’s evidence regarding the Skype calls in cross‑examination.
Ms Olsson, the Independent Children's Lawyer, specifically cross-examined the father with regard to his evidence about the Skype calls contained in his trial affidavit filed 7 September 2020.
She asked the father whether his evidence was an accurate reflection of what was said by the mother during the Skype calls, to which he relied “yes”. He confirmed that what he said she put to the children included running away from home, running away from school, damaging his property and hurting him. He said examples were her telling the children to throw his phone across the room and telling B to punch him in the head if he went through B’s browser history again.
He was asked whether her tone and effect of voice was loud and abusive. He replied that the nature of the calls were that if the mother thought anyone was listening or recording or saying something that she did not like she would raise her voice and use language that was not good for the children including that he was a “dickhead”, a “fuckwit”, that the police would “arrest his arse”, that he was breaking the law and that God would “strike him dead”.
When he was asked whether the calls also included chats about how the children were going or other issues, he replied that the discussions mainly centred on what was happening in the mother’s extended family life and the children’s school, and that overall they consisted very much of what the mother wanted to tell the children.
When asked whether he was saying the mother had told the children to turn the laptop around so that she could see inside his house when she was speaking to them, he replied that she had done so on several occasions. When asked where he sat during the calls he replied that the house had an open living plan, the children were at the dining table and that he sat behind a half-wall just outside the children’s view.
The father confirmed that the mother commonly referred to how the children were looking.
When asked whether it was his evidence that she referred to the children living with her, he replied that she was constantly saying words to the effect of “when you come home” and giving the children a clear indication that she meant that they would be going back to her home to live.
When asked how he observed the children’s behaviour at and around the time of the Skype calls over time he repeated what he had said in his trial affidavit, namely that in the lead up to and after the calls the children frequently became “ratty” and unsettled which had also been noticed at the school. He said he noticed that as time progressed the children became disconnected, an example being B getting up and walking away from the screen.
It was put to him that B did so because he wanted to go to the toilet. The father replied that he did recall that on one occasion B had asked to leave the call because of a headache but that mostly he asked to leave as he had had enough of the call.
The father confirmed that the mother had asked the children during a call how often Mr M had gone into their rooms at night, and that she had told B to take off his shirt so she could check for marks on a couple of occasions. He confirmed that he specifically recalled the mother asking if C was sore between her legs and that it was not in the context of any other malady.
Mr Sellers confirmed that on 2 July 2020 C had bitten him during a Skype call. When asked what had happened immediately prior to that behaviour he replied that he did not recall anything specific had been said, and that it was out of character for C.
He agreed when it was put to him by the Independent Children's Lawyer that the Skype calls had not gone well.
The father responded to questions from the Independent Children's Lawyer in a measured and thoughtful manner.
He was not shaken in any of his evidence in cross-examination by the mother or the Independent Children's Lawyer.
It was clear from his evidence that in terms of the children’s medical, therapeutic and educational needs he was well acquainted with all and amenable to advice from relevant experts in that regard.
I found Mr Sellers overall to be a reliable and honest witness who was not exaggerating the difficulties he had experienced in being able to maintain any level of relationship with the children for at least three to four years prior to the trial commencing. I am satisfied that he answered questions both from the mother and from the Independent Children's Lawyer to the best of his ability and in a thoughtful and considered manner.
Where his evidence diverged from that of the mother, I preferred his evidence.
Ms Z
In her affidavit filed 7 September 2020 Ms Z deposed to:
·having known the father for thirty years and the children since they were born;
·having assisted the father’s friend Ms J with handovers on occasion;
·having assisted the father on occasions after the children came into his care in February 2020 such as when he attended appointments;
·observing the children having been happy, cooperative and well-behaved whilst in her care or whilst she visited them; and to
·being a personal care professional.
In oral evidence-in-chief she expanded as to her experience in working with people with disabilities by saying she had been working for many years with children and adults with disabilities.
She described B as being very vocal, good at explaining himself and loving to have a chat, to having a physical impairment and to not being very strong in his body.
In being cross-examined by Ms Barlow she impressed as being a caring family friend who assisted the father in the care of the children from time to time but to her primary role being that of a friend to the father, his mother and to B and C.
In cross-examination by the Independent Children's Lawyer she confirmed evidence contained in paragraphs 9 and 10 of her affidavit, namely that at a time the children were still living with the mother and she was assisting with handovers, B had responded to a question from her as to whether the children had enjoyed themselves at their father’s by being enthusiastic and listing various things they had been doing. He had then been stopped from continuing by C who expressed to B that they were not allowed to say that they had “a good time at Dad’s”.
Ms Z impressed as an honest witness who was genuinely trying to assist the Court.
Ms J
Ms J also filed an affidavit on 7 September 2020. She deposed to:
·being a family friend of the father and having known him since he was three years old;
·assisting the father with handovers between 5 April 2018 and 17 July 2019;
·many of the handovers being rescheduled to Handover Locations rather than at the children’s school because of the mother having removed the children from the school early on handover days;
·the mother and the maternal grandmother physically blocking the children from being able to get to the father at the Handover Locations and on some occasions other members of the mother’s family also attending at the handovers;
·being ordered by the Court to be an agent to facilitate handovers on non-school days;
·the mother sending an SMS to her on 21 July 2019 saying she believed the handover location was at Handover Location V and not Handover Location W;
·the intention of the order being that on non-school days she would attend handovers, namely meaning during school holidays and pupil-free days and not days on which the mother withdrew the children from school early;
·nevertheless attending at the alternative handover place of Handover Location W on some school days in the hope that the children would be handed over to her by the mother;
·three scheduled non-school day handovers on 25 December 2018, 10 January 2020 and 24 January 2020 when the mother did not attend at Handover Locations to handover the children;
·the children visiting her home on multiple occasions since a date in early 2020;
·the children being happy and excited to renew their friendships, and to them eating well, enjoying trying new foods and having good appetites;
·B interacting well with small groups of children and being able to quietly retreat to spend time with her dogs when feeling overwhelmed;
·B having a sleepover at her home with her grandson AA on 4 July 2020 and staying on the following day to participate in AA’s activities;
·the children needing to conduct their Skype call with their mother from her kitchen on at least two occasions;
·having grave concerns for the children’s long-term emotional wellbeing due to the content of the calls with their mother;
·observing the children to have settled well when she and her family attended the father’s home for family dinners, birthdays and babysitting;
·the children enjoying spending time with the father’s older child Mr M when he stays at the home; and to
·observing the children becoming more relaxed and enjoying their interactions with other people over the months since early 2020 and to being happy in their father’s presence.
During cross-examination by the mother she expanded on her evidence as to assistance given by her to the father from time to time with respect to providing clothing for the children on occasion, attending at the park with the father and the children, and to her friendship with the father’s mother for over forty years.
She denied that she had a significant level of care responsibility for the father’s mother but said she tried to catch up with her most weeks, that she had recently been unwell and in hospital for three days, and that she was aware that the father assisted in caring for his mother. She said however that the father’s mother has her own life. In answer to a question from the Court, she said that the father’s mother is not bedridden.
She said B had stayed overnight at her home on one occasion and that the reason that it was only B and not both children was that her grandson AA had invited B. She said AA was 11 years old.
Ms J was also cross-examined by Ms Olsson, the Independent Children's Lawyer.
She confirmed the friendship and support provided by her to not only the father but also his mother and the children, that the children are comfortable with her and that she has had a long association with the family.
She was questioned about her observations of the Skype calls between the mother and the children and said they had taken place on two occasions at her kitchen table and no concern had been shown as to her presence. She said there had been frustrating problems with the connection whereas she had not previously had problems in her area in that regard.
She said sometimes the father stopped at her place with the children when bringing them home from school for a “toilet stop”, but that otherwise she had babysat the children at the father’s request on a couple of occasions when they first came to live with the father as he had no time to reorganise some commitments. She said the babysitting had been done at the father’s home.
I find that Ms J gave her evidence in a truthful manner and that she presented as a reliable support for the father and B and C.
The Mother’s Case
The mother’s evidence was contained in her trial affidavit filed 14 September 2020. She also relied on the evidence of her mother Mrs Barlow contained in her affidavit filed 15 September 2020 and that of Ms CC contained in her affidavit filed 15 September 2020. The mother and her witnesses were cross-examined by counsel for the father and the Independent Children's Lawyer.
The mother’s affidavit consisted mostly of her opinions and submissions. She referred to many issues that were before the Court at the time Berman J made the findings after the 2018 trial to which I have referred in these reasons. The affidavit was of limited evidentiary assistance to the Court but the issues of importance to the mother were clear.
The mother deposed inter alia to:
·the father strangling the mother for the second time when the parties’ relationship broke down on 12 September 2012;
·the children’s Autism diagnosis;
·more attempts by the father to murder her post-separation consisting of multiple attempts to run her down whilst the children were in the father’s car and a direct “hit” being placed on the mother by the father in September 2016 to have unknown persons kill or seriously injure her;
·the 2016 allegation believed by South Australia Police to be connected to “an as-yet unsolved murder”;
·the mother enduring significant personal property damage to her house and property usually the night before a family court hearing;
·the mother and her family enduring ongoing stalking and harassment, continual defamation and deliberate character assassination at the father’s instigation;
·the father being charged with stalking her in 2017, the charges being dropped and Mr Sellers still being the subject of investigation;
·obtaining an interim Restraining Order against the father but the order not being confirmed to be final;
·the children having been exposed to family violence perpetrated by the father;
·she and the children suffering from trauma and B being diagnosed with Condition DD;
·the father posing an unacceptable risk to the children in an ongoing manner;
·a six year old male child reporting that he had been sexually abused by the father;
·subsequent to the children spending twenty-eight days with the father after the judgment of Berman J in 2018, C disclosing physical abuse to her (the mother) by the father, including a small burn to her right buttock as a result of being lifted up near the gas fire, three rounded bruises to her thigh appearing like finger marks and to B having bruises to his lower back, as well as other instances of physical injury to the children whilst in the father’s care including a non‑accidental black eye, cigarette burns to B’s abdomen, a boot-shaped bruise to the lower back and rope burns under C’s arms from being tied up, as well as other genital area bruises;
·the father being guilty of perpetrating extensive elder abuse towards his mother;
·the father alienating the children against her;
·that she is a capable parent and well able to support the children with regards to their Autism;
·that on 9 July 2019 the Department noted no plans to make a Youth Court application to remove the children from her care and that the children were safe with her;
·B being prevented from returning to state school education in South Australia because of “putting a chair through a state school window”;
·the father continues to refuse to engage with the children’s therapists;
·the father lies to the Court particularly with respect to the mother not presenting the children for time with him pursuant to existing orders;
·the father has lied to the Court regarding not being interviewed by South Australia Police or any other authority;
·the father refuses to participate in the Insurance Scheme UU Plan extension process stopping all B’s therapies, and Insurance Scheme UU requiring the mother to step in and giving her authority to override the father’s refusal of services and the planning process;
·the father lying in his affidavit filed 7 July 2020 about not interfering with the Skype calls and his conduct during the calls;
·the father lied to Dr EE with respect to:
·denying attempting to strangle the mother;
·his involvement with the CEO of Organisation VV;
·whether or not he had a swing at home for B;
·whether or not he has Medical Condition TT; and with respect to
·denying that he drinks alcohol or uses illegal drugs;
·Mr Sellers’ presence during Skype calls being a form of stalking;
·the father having either terminated or interfered with Skype calls on numerous occasions;
·Mr Sellers’ Condition FF disorder “supports the stereotypical presentation and behaviour of an abuser”;
·the father having fixed false beliefs about the mother;
·there have been nineteen reports of abuse perpetrated by Mr Sellers from multiple agencies and the mother is not among those reporters; and
·the father having a false belief that the mother is the person who makes the reports to the various agencies.

In paragraphs 72 to 76 inclusive of her trial affidavit the mother specifically referred to the issue of the Skype communication with the children. In those paragraphs she said:
72)[Mr Sellers] boasts of his illegal recording and monitoring of the calls which breaches the Data Surveillance Act. Under the Data and Surveillance Act, only parties involved on a phone call can record / monitor that phone call. Any other person who is recording or monitoring phone calls, but is not directly involved in that call is considered to be stalking.
73)[Mr Sellers’] version of the Skype calls is substantive evidence of the projection of his abusive behaviour onto the Mother. (Projection is a form of emotional abuse and this is therefore a direct admission of the Emotional Abuse [Mr Sellers] perpetrates on the Children.
74)Having established that [Mr Sellers’] version of events cannot be relied upon, the Skype calls the Mother has with the Children Do Not occur in the manner [Mr Sellers] claims. There has not been Skype call that has lasted the full allocated 30 min. Every single call has been terminated or interfered with multiple times by [Mr Sellers]. For example, on the 7 September 2020, the Mother enjoyed approximately 9 minutes of time with the Children. [see Skype screen shot attached Ms Barlow-08] [Mr Sellers] is determined to completely sever the relationship the Children have with the Mother.
75)If the problem was the Mother's connection, why are the calls interrupted or terminated whenever the Children discuss School, or friends or anything else that [Mr Sellers] doesn't like discussed.? When [Mr Sellers] is in the vicinity of the calls, both Children display fearful behaviour such as slinking down in their seats, not speaking, and constantly checking [Mr Sellers] for signs he might hurt them or get angry. On camera [Mr Sellers] has been heard threatening the Children. He has been seen to punch the computer screen; and to yell violently at both the Mother and the Children.
76)When [Mr Sellers] is not in the immediate vicinity of the calls, the Mother is able to facilitate and actively engage the Children to sing, play games and laugh, in an effort to ensure the calls are an comforting experience.
(as per the original)
The mother’s trial affidavit consisted of 105 paragraphs and some 37 pages of attachments.
The nub of the mother’s case was that the father is violent and dangerous, that he had attempted to kill her or have her killed on numerous occasions, had sexually abused the children, has no capacity to provide appropriate care for them, is alienating the children from her and that the children should not have contact with him or a relationship with him.
As I have said earlier in these reasons, the basis of the mother’s case is almost identical to that put before the Court by her at the trial in 2018, save that her opposition to the children having a relationship with the father had become more entrenched.
The mother was cross-examined by both the father’s counsel and the Independent Children's Lawyer.
In answer to numerous questions from Mr Roberts about time the children spent with the father subsequent to the twenty-eight continuous days with him following upon orders of 5 April 2018, the mother’s answers were vague and unhelpful.
The mother conceded however that when the children did spend time with the father she could not recall a time that she had to pursue the father to ensure the children were either returned to her care or to school. She did however complain that they were often up to an hour late.
The mother denied that she was the person who had made complaints to the Department in March 2019 that had resulted in the children being removed from the father’s care. It was her position that the removal had occurred as a result of complaints from nineteen different agencies, none of which emanated from her.
She denied that she was the only person who benefitted from the children being removed from the father’s care on 16 March 2019, in that it resulted in the frustration of the order providing for the children to spend time with their father. She denied that she had coached the children in any way with respect to allegations as suggested in correspondence to the father from the Department dated 14 August 2020.
The mother confirmed that issues had arisen with respect to B attending upon Ms UU at GG Psychologists for therapy in circumstances where the mother was concerned about the direction of the therapy provided. She said she understood therapy was to be addressed on the basis of trauma.
She confirmed that she wanted a therapist other than Ms UU to work with B, and that her objections to Ms UU continuing as therapist and the subsequent withdrawal of the therapy service from B by GG Psychologists, all occurred at a time when he transitioned into the father’s care.
It was the mother’s evidence that she formed the belief B had suffered trauma after he allegedly disclosed to his therapist on 28 September 2019 that the father had tried to kill him, and that she sought assistance with respect to specialised therapy from Ms HH.
She confirmed that when B attended upon Ms HH she did not draw to Ms HH’s attention the correspondence to she and the father dated 14 August 2019 wherein concerns of the Department that the children may have coached were raised.
Her responses to questions regarding the provision of information to the father about C’s dental appointments, the children’s vaccination arrangements, and B’s therapies and therapists generally suggested an obstructive and unhelpful approach designed to thwart the father’s access to relevant information and therapists.
In answer to questions from Mr Roberts regarding participation in Skype calls with the children, she confirmed that she had called the children in accordance with the order. She said none of the calls had continued for thirty minutes and that there were connection problems on the father’s end which ended the calls but no problems with technology on her end. She confirmed that the children were presented by the father on each occasion “if you can call it that”.
The mother confirmed that she had read the father’s description of the calls contained in paragraphs 76 to 92 of his trial affidavit.
It was put to her by the father’s counsel that it was a consistent theme of the father’s evidence contained in paragraphs 76 to 92 of his trial affidavit that she belittled him, used abusive names for him and told the children that they could run away from their father. She replied “he says so”.
When it was put to her that on 21 May 2020 she had told B to throw the father’s phone across the room, she replied “utter fabrication”. The mother agreed that she had told the children to rotate the computer on two occasions.
It was then put to the mother that she had told B that Dr JJ and Dr KK were wrong (apparently with respect to issues of food tolerance). The mother’s response was words to the effect of “No – [B] said he was getting a bit upset and feeling a bit sick – I have recordings of these calls – I am allowed to because of the Data and Communications Act”.
This was the first time that the Court, the father’s counsel and the Independent Children's Lawyer became aware that the mother had some recordings relating to the Skype calls.
The mother agreed that on or about 2 July 2020 during a Skype call she had expressed concern about B having a black eye but denied the father’s allegation that she had told C that she had not got presents from her father for her birthday.
She agreed that she had reported her concerns about the black eye to the police resulting in them undertaking a welfare check on B on 3 July 2020. She conceded the police had not removed B from the father’s care as a result of that check.
She agreed that sometimes her mother was present during the Skype calls as was her father and other family members but agreed that no one else participated with the children from the children’s end of the calls.
The mother denied making any comments to the children about a lack of fresh fruit in the father’s home but agreed that she had told the children that no one else was to be present during the calls.
In response to being asked whether she had told the children no one should be recording the calls, she denied the proposition and said that she hadn’t told the children that but rather had told the father that he was not to record the calls which ultimately did not mean that he did not record the calls.
When asked if she had said something to the children like it was “wicked” that the children were away from her she replied that she was unable to confirm or deny whether she had said that, but denied that she had ever said to B that his Medical Condition QQ was coming back.
She denied that she had called the father a “dickhead” to the children during a Skype call and agreed she had spoken to them about not being able to access Educational Site TT. She said she was unable to recall telling them that was because of their father.
When asked if she had told the children that they could go to the neighbours if they felt unsafe in the father’s household she said she recalled a discussion with the children about what they would do if they felt unsafe but couldn’t recall exactly the terms of the discussion. When asked who raised the issue during the call she replied that the children said something, that she replied by asking what they could do if they felt unsafe and then added by way of question to the father’s counsel “How is that undermining the father – why is that a problem?”
When asked if she had told the children that life would be back to normal when they were back living with her, she said the children had asked whether they could do various things when they came home, and then again asked the father’s counsel why it was a problem for her to say they could do the various things that they were asking.
When asked whether she had told the children to speak to Mr LL at the school and not other teachers if they felt unsafe, she replied that the children had asked what they would do if they felt unsafe, that she asked them in reply what they could do, and that she was simply offering support. She denied she had said that they should not speak with Ms MM or Ms NN.
During this line of questioning the mother’s presentation in the witness box was of rising anger, aggression and dysregulation.
When asked if she had told C that she looked pale or unhealthy she said that she probably did if C looked pale, that the comments would have been made in the conversation somewhere, and again asked, “What was wrong with that?”.
The mother denied calling the father a “douchebag” and when asked if she had told the children that she wanted them back home she replied that they said that and what was wrong with her telling them that she wanted them back home.
The mother denied that she had encouraged B to run away but agreed she had told the children that they could have a party when they came home to her house. She denied she had told the children to have the courage to come home, that their father was a “dickhead” or that their father was recording calls illegally. She further denied she had told B that when he came home he could do what he liked, that the Court was stupid, or that she was going to “sue the arse off the Court”.
When asked if she had told the children that God would “strike Dad dead” she said that she was talking to them of Bible verses and that there was nothing derogatory in the comment.
She agreed that she had told the children to ignore the father but said it was in circumstances where they were acting fearful and afraid. In answer to a question from the Court as to what they were doing to lead her to that conclusion she replied that she was not able to remember as she had “gone blank” but that she had told the children to “focus on Mummy and not to worry about anything else”.
The mother denied that she had told the children that South Australia Police would arrest the father. When asked by the Court whether she considered that accusation had been made up by the father, she replied she did because “he takes a little bit of truth and uses it to destroy [her]”.
When asked by the Court whether she considered her responses to the children when she talked about them coming home and the things that they could do with her and as a family when they came home were raising the children’s expectations, she did not seem to understand the concept.
The mother denied again that she had referred to the father as in “idiot”, a “fucking dickhead”, or an “arsehole” to the children.
The mother agreed with the proposition of the father’s counsel that B and C had spent no time with the father between December 2019 and February 2020.
She also agreed that at a time that she had arranged to get a medical plan for C in 2019 she had not consulted the father in any way or sought his input in relation to any therapy to be provided to C.
In answer to a question as to whether the obtaining of a medical plan and facilitating C’s attendance on Dr KK was an effort on her part to try and suspend the children’s time with their father following upon the orders of Berman J of 5 April 2018, she replied that such a suggestion was “utter fabrication”.
She denied she had coached the children to facilitate their removal from their father and said that it came about because of four Safety Plans prepared by the Department. When it was put to her that the Department were not prepared to follow through with the matter because of concerns that she had coached the children, she denied the proposition.
The general gist of her responses in cross-examination to questioning about the obtaining of a medical plan, the attendance of C upon Dr OO and then Dr KK, and the children being removed from the care of the father by the Department and the police was that it was nothing to do with her and had all happened around her.
I find that her evidence was at best ingenious, and at worst, fabricated in an attempt to convince the Court that she had no part to play in the children being removed from the father’s care.
In answer to a question from the Court as to why she applied to vary Justice Berman’s orders with respect to the children spending time with their father, she replied that it was because of the impact on the children of the travel distance and so that the children could play sport.
When asked why, in the Application made to the Court in October 2018 but withdrawn by her in January 2019, she had sought that the children not spend time with the father until C was aged 18 years, she replied that she could not remember but that it was on advice. When it was put to her that she was not looking to vary the order of Berman J but to suspend it, she replied it was not her recollection.
I am satisfied that as and from 5 April 2018 the mother determined to take whatever steps were necessary to ensure that the children did not spend time with the father, and ideally, to have any orders requiring them to do so to be discharged.
It was put to the mother by the father’s counsel that the father had not been charged with stalking her in 2017 and that it was not true that he was being investigated in that regard. She replied that she did not know if he was still the subject of investigation but that both the father and his son Mr M had been cautioned by South Australia Police in that regard around 25 January 2018.
When asked if she had obtained interim Restraining Orders, she said she had done so and that she could produce transcripts. When asked if she could produce a copy of the interim Restraining Order, she said it had been destroyed. When it was put to her that there were no police proceedings generating an interim Intervention Order against the father, she replied that there were “through domestic violence”.
The mother agreed in cross-examination that the father’s solicitor had informed her how Skype calls could automatically be recorded but said she did not agree with that being done. She agreed that she understood if that had happened both parties could have had a copy, but said she had not given any thought to copies of the recordings protecting everyone.
The father’s counsel then called for the production of the recordings of the Skype calls made by the mother.
Mr Roberts asked the mother if she would have trouble with both parties being restrained by injunction from talking with the children in relation to court matters, or in terms of denigrating the other of them, or from physically disciplining the children, or attending within 100 metres of the residence of the other one. She replied that she agreed to all of those matters.
Mr Roberts then concluded cross-examination subject to the production of the Skype call recordings which were anticipated to be produced the following morning.
The following morning the Independent Children's Lawyer and the father’s counsel listened to all of the tapes and the mother confirmed in cross-examination that she had been present with them for most of the time listening to the tapes.
She said she had not recorded all of the calls in circumstances where it appeared eight out of a total of over twenty sessions had been recorded.
The mother denied having edited any of the tapes when she obtained them from “the cloud” and said no one else had edited the tapes.
The tapes were tendered to the Court and marked Exhibit “F3”.
At the conclusion of that day’s hearing the trial was adjourned part-heard to 9 November 2020 with an order being made that the Skype communication referred to in paragraphs 8 and 9 of the order of 24 April 2020 continue until further order. The parties were each to be at liberty to engage the Skype recording facility for the duration of that communication and obtain copies of same.
When the trial resumed on 9 November 2020 the mother raised an objection to the Court viewing the tapes she had made of the calls. It was her position that the Court had illegally acquired evidence from the father’s case after it was closed, and that the Skype calls could not be viewed or listened to without her permission with only her being able to record her own calls.
She repeated that the evidence had been unlawfully obtained and could not be relied on as it was inadmissible. It was the mother’s position that under the Act if a family law judge wanted calls to be recorded he or she would have to apply to a civil judge to get that permission.
It was her further submission that she was no kind of risk to the father but that the father was an unacceptable risk to the children as he was known by the police to be a paedophile and rapist, that he had been stalking her, and had perpetrated emotional abuse against the children.
After submissions the Court admitted the recordings into evidence together with a USB tape of recorded conversations between the mother and the children between 24 September 2020 to 5 November 2020 (Exhibit “F4”) and the USB tape being the mother’s copy of conversations between the mother and the children between the same dates (Exhibit “M4”). The Court then listened to the tapes in the presence of the parties and their counsel.
The overall tenor of the mother’s comments to the children throughout the various recordings was critical of the father and undermining of his parenting role. There was frequent reference during almost every call to the children “going home” initiated by the mother on occasions and on occasions by the children.
At times when the topic was initiated by the children the mother made no attempt to downplay the issue or change the topic but rather, embarked on discussions as to how to best celebrate that event. I am satisfied this would have had the effect of the children understanding they were temporarily staying with their father.
There was frequent reference to the children missing or wanting to see their mother, the mother wanting to hug and kiss the children and repetitively repeating how much she loved them. In the circumstances I do not consider this to be unreasonable on the part of the mother, but she frequently became dysregulated and made no effort to distract or settle the children.

At the time of trial B was aged 10 years and C was 8 years of age. They are young but their wishes must be taken into account, although the weight to be given to those wishes is a matter for the Court.
Both children are on the Autism Spectrum, although C is able to function at a much higher level than B and does not require anywhere near as much additional assistance at school. This was clear from the evidence of Mr T and the children’s school reports.
I am not satisfied that either child has the level of maturity necessary to enable the Court to rely on their expressed wishes as a strong determinater of the outcome of these proceedings. I am satisfied that unfortunately they have a knowledge of court proceedings well beyond what would normally be expected of children their age. I find the complexity of the issues before the Court are well beyond the capacity of either child to understand.
(b)       the nature of the relationship of the child with:
(i)        each of the child’s parents; and
(ii)       other persons (including any grandparent or other relative of the child).
I find that B and C have a close and loving relationship with each of their parents.
There is no doubt that from the time of their birth until early 2020 the primary caregiver for the children was the mother. She had provided their primary physical care throughout their lives and in addition had been almost solely responsible for the additional care required by both of the children, but B in particular, arising from their special Autism needs.
There is no doubt that the mother carried out that role admirably although the evidence before the Court with respect to the mother’s lack of cooperation with the father about him becoming involved in the children’s therapeutic care and particularly her insistence that the children were in need of trauma counselling was concerning.
There was no firm evidence before the Court that the children were suffering trauma other than comments made by the children, frequently in the presence of their mother, to various therapists and medical practitioners from time to time.
Ms R did not observe the children to be traumatised at any level, and Mr T’s evidence to the Court was that the children’s behaviour and demeanour did not regress upon the children going into the care of the father in February 2020.
I find that the mother’s determination to have the children, particularly B, undergo therapy with respect to trauma issues was a course of action designed by the mother to engender support for her firmly held view that the father was the perpetrator of domestic violence and sexual abuse, so as to justify the efforts she had made over a considerable period of time to ensure the children had no contact with the father.
The evidence before the Court from Ms R in particular, and to a lesser extent from Mr T, is indicative of a close, warm and loving relationship being shared by the children with each of their parents.
In addition, it was clear from the Skype calls participated in by the maternal grandparents and other members of the maternal family from time to time, as well as from the evidence of the maternal grandmother, that B and C are loved members of the extended Barlow family. The children’s responses to their grandparents’ communication with them over the Skype calls indicated a close and loving relationship.
I am satisfied, based on the observations of Ms Z and Ms J that B and C not only have a relaxed, loving relationship with their father but also with their paternal grandmother and long-term supportive family friends.
(c)       the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)       to spend time with the child; and
(iii)      to communicate with the child.
I am satisfied that the mother made the major decisions not only about long-term issues but also with respect to day-to-day issues for the children for all of their lives until they went into the care of their father in early 2020. I find that she did so without any consultation with the father but that likewise he did not take or seek opportunities to be involved in those decisions.
I am satisfied that he was content to leave those issues to the mother, until such time as he formed the view that the mother was deliberately withholding the children from spending time with him.
I am satisfied that the mother did so deliberately withhold the children from spending time with the father.
I find that Mr Sellers has taken every opportunity to spend time with the children since the parties separated.
I find that the trial before Berman J in 2018 and that before me in 2020/2021 both occurred primarily because the father genuinely wished to spend time with and communicate with B and C, a course of action not supported at any level by the mother.
(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.
Neither party adduced any evidence with respect to that issue and I am not satisfied in the circumstances of this case that it would have any bearing on the outcome.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The children had lived with the mother from the time of birth until early 2020.
There is no doubt that the change in their parenting arrangements was a dramatic change for them, particularly taking into account their special needs and the impact of change on persons on the Autism Spectrum.
The change came about without notice to the children. I find however that the children coped well with the change in their circumstances, as evidenced by information provided to the Court by Mr T, the father, his witnesses, and Ms R.
I have no doubt at all that the children missed and still miss their mother dearly. I have already referred to their strongly expressed wish to live with their mother.
By March 2021 the children had been in the care of their father for slightly over twelve months. There was no evidence before the Court that they had suffered any deleterious effect as a result of the change in their circumstances, although I have little doubt that both children continued to be sad at times as a result of missing living with their mother.
I find however, taking into account in particular the evidence of the Skype communication, that the mother’s distress in being separated from her children was significantly greater than the children’s distress in being separated from her. I find that evidence was supported by the observations of Ms R as set out in her report dated 16 April 2020.
By the time of trial not only had the children lived with their father for a period of twelve months, but they had spent no physical time with their mother.
There was no evidence to suggest that, other than the expected level of sadness shown by the children, that the change in circumstance had resulted in them suffering any greater level of trauma or any unreasonable distress.
It is unlikely that either B or C actually understood at the time of trial the reason they had not been able to see their mother for some time.
It was the mother’s clear position that the Court was biased in favour of the father and had determined that she should be punished. It is unfortunate that was the mother’s perception.
The reality of the matter was that the Court had refused Applications of the mother for the children to physically spend time with her in circumstances where there was little to no doubt that facilitating such time would have resulted in the matter being back before the Court as a result of the mother either refusing or not facilitating the return of the children to the care of the father.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This factor is not relevant in the circumstances of this case.
(f)        the capacity of:
(i)        each of the child’s parents; and
(ii)       any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs.
I find that both parents have the capacity to provide for the physical needs of B and C.
There was no complaint made by the father of the level of care provided by the mother to the children during the years that they lived with her. Indeed, it was the level of care provided by the mother to the children, particularly with respect to their special needs, and her detailed knowledge of those issues that was relevant to the decision of Berman J to leave the children in her care at the conclusion of the trial in 2018. He made that decision notwithstanding his expressed concerns as to the mother’s attitude to the concept of the children being able to enjoy a relationship with their father. His Honour found that B’s needs were overwhelming in their importance and that their best interests would be met remaining in the care of their mother.
Nevertheless, in reference to the mother’s lack of support with respect to the children enjoying a relationship with their father, and after determining that the children should remain in the mother’s care he said at [267] of his Reasons:
… providing the mother is now able to support that relationship, then the risk that she could perpetrate emotional harm to the children also dissipates.
By the time the trial before me concluded the children had been living with the father for some twelve months.
The father had developed a closer relationship with the children’s school, had facilitated their attendance at school notwithstanding the extraordinary amount of travel involved and he was welcome at the school.
In contrast, the mother’s relationship with the children’s educators had fractured such that it was difficult for them to communicate with her at any respectful level.
I find that although the mother had clearly facilitated the children’s therapy over a considerable period of time, at the time the children went into the father’s care she was deliberately obstructive with respect to providing any information or guidance to the father to enable him to ensure that level of therapy and care was uninterrupted. Nevertheless he persisted in that regard and by the time of trial had a clear understanding of B’s needs and how to promote them.
It was the father’s case that if the children remained living with him they would have to change school because of the impracticality of travel between his place of residence and F School. He was also unable to afford the private school fees.
Of particular concern with respect to parental capacity however was the mother’s vehement opposition to the children having a relationship with their father, which she had either convinced herself or genuinely believed was not in their best interests and was a relationship that neither B nor C wanted.
I find that in the event the children remained in the primary care of the mother they would have no capacity to enjoy any level of relationship with their father.
I find such a situation would not be in the best interests of the children’s emotional needs, taking into account the close and loving relationship they have with him to which I have already referred.
At the time of trial the mother had shown no signs of ameliorating her views towards the father nor did she exhibit any insight into how her behaviour had contributed to the changed circumstances of B and C. Sadly for the children her evidence and presentation indicated very limited ability on her part to acquire such insight without intensive therapy. At the time of trial she had not undertaken any therapy that may have been of assistance in that regard.
The mother’s evidence and presentation indicated a serious lack of capacity to provide for the children’s emotional needs, to the extent that I find that returning the children to her primary care would put B and C at genuine risk of significant psychological harm.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
Both B and C are young and have much to gain from having their parents participate in their lives and being able to participate in the lives of their parents, both of whom are very different in nature and no doubt have different skills and qualities to impart.
It must be taken into account however that any order made by the Court must be in the best interests of the children and I am not satisfied that this factor would play a significant role in that determination taking into account the concerns I have expressed.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right;
This factor is not relevant in the circumstances of this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Both parents love B and C.
In many respects the mother took seriously the responsibilities of parenthood from the time of the children’s births until the Court removed the children from her care in early 2020. The mother physically cared for the children, she engaged the children in appropriate education and she engaged both children, but B in particular, in appropriate therapies arising from their Autism diagnosis.
The mother facilitated the children’s engagement with her extended family, in social outings and activities with friends and through the church. At many levels the children thrived.
I find however that notwithstanding the father’s persistent efforts to maintain the children’s relationship with him he was blocked from doing so by the mother, who was determined that such relationship not be maintained.
Provided such a relationship is not contrary to the best interests of the children it is their fundamental right.
It is an important responsibility of parenthood that parents ensure that children have an ability to maintain a guilt-free relationship with the other parent.
I find that the father understood and accepted the primary parenting role of the mother, supported that role and simply sought to maintain his relationship with the children.
I am satisfied that, as I have said previously herein, the only reason the father took the action resulting in this trial was his concern that so long as the children remained in the primary care of the mother they would have no relationship with him, a position I accept.
I find that if the children remain in the care of their mother they will not, at least until such time as the mother’s attitude to the father changes, have any ability to maintain a meaningful relationship with their father.
I find the father has the will and the capacity to carry out the responsibilities of parenthood in a diligent, loving and competent manner. This will include if the mother is able to ameliorate her attitude to him, supporting the children’s relationship with her.
(j) any family violence involving the child or a member of the child’s family.
This factor is not relevant in the circumstances of this case.
(k)       if a family violence order applies, or has applied, to the child or a member of the child’s family ‑ any relevant inferences that can be drawn from the order, taking into account the following:
(i)        the nature of the order;
(ii)       the circumstances in which the order was made;
(iii)      any evidence admitted in proceedings for the order;
(iv)      any findings made by the court in, or in proceedings for, the order;
(v)       any other relevant matter.
This factor is not relevant in the circumstances of this case for the reasons previously given herein.
(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.
This is a matter of significant concern in these proceedings.
The parents commenced engaging in litigation in 2012.
I have outlined the history of the litigation earlier in these proceedings.
The matter has occupied a large amount of court time, significant expense, and stress and distress for both parents and for the children. Ms R referred to the children’s knowledge of court matters in her Family Assessment Report.
The ongoing proceedings have caused the children to be the subject of ongoing litigation, as well as investigations external to this Court that have resulted in numerous interviews, assessments and changes in their living circumstances.
Parental Responsibility
Parental responsibility is defined in section 61B of the Act as follows:
In this part, parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children."
Section 65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility. The section is in the following terms:
(1)      This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)the exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2)      The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long-term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)      The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)       to make a genuine effort to come to a joint decision about that issue.
(4)To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 65DAE makes it clear that there is no need for parents to consult on issues that are not major long-term issues. That section is in the following terms:
(1)If a child is spending time with a person at a particular time under a parenting order, the order is taken not to require the person to consult a person who:
(a) has parental responsibility for the child; or
(b) shares parental responsibility for the child with another person;
about decisions that are made in relation to the child during that time on issues that are not major-long term issues.
Note: This will mean that the person with whom the child is spending time will usually not need to consult on decisions about such things as what the child eats or wears because these are usually not major long-term issues.
Section 61DA of the Act is in the following terms:
(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 a 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.

I find that it is not in B and C’s best interests for the Court to make an order for shared parental responsibility.
There is no level of communication whatsoever between either of the children’s parents.
I find the father would have a capacity for communication with the mother but the same could not be said in reverse.
In the circumstances of this case, this is another factor that could potentially lead to further and ongoing litigation.
It is to be noted in addition, that neither parent seeks an order for shared parental responsibility.
I am satisfied for these reasons the presumption is rebutted.
CONCLUSION
I find for the reasons set out herein that it is not in the best interests of the children for an order to be made providing for them to live with the mother.
It is unfortunate and with great regret from the point of view of the children that I also find any order for the children to spend time with their mother, either supervised or unsupervised, would cause unmanageable distress for the mother. This would inevitably be reflected in distress on the part of the children and almost certainly result, in the case of unsupervised time, the mother failing to return the children to the care of the father thereby necessitating further proceedings. Such an order is not in the best interests of the children.
In those circumstances and with significant reluctance I find that the children’s best interests are met not only by remaining in the care of the father but also, and more concerningly there should be no order for the children to spend time with their mother.
The mother did not take the opportunity given to her by Berman J when he ordered the children remain in her primary care following upon his judgment of 5 April 2018.
She did not promote the children’s relationship with the father thereafter at any level, and to the contrary determined by her actions that there would be no such relationship.
His Honour was clearly of the view that it was best for B and C to have the involvement of both parents in their lives. He was concerned about the attitude of the mother. The expert at that time recommended that the children go into the care of the father.
His Honour was mindful of all those attitudes and views but carefully considered the children’s needs and the mother’s expertise in that regard. His Honour said at [271] of his judgment:
271.It should not be assumed that the mother will inevitably refuse or fail to comply with Court orders. She should be given the benefit of the doubt and the orders that I make are predicated upon the reasonable assumption that the children’s needs require support and involvement from each of the parties.
It is to be hoped that upon receiving this judgment and carefully considering the reasons, the mother will take the opportunity to seek therapeutic assistance to assist her to approach the issue of the children’s relationship with their father from their perspective rather than hers, and thereby facilitate the children having the opportunity of a close, loving and meaningful relationship with both parents.
I find that the father is not opposed to the children having a loving relationship with their mother save for what I find to be his genuine and well-held concern that facilitating physical time spending between the children and their mother will inevitably result in the children yet again being the subject of ongoing litigation due to the mother’s inability to comply with orders of the Court.
I am satisfied that the father also has genuine concerns about the conduct of the mother and the tenor of her conversations with the children during Skype communication.
Nevertheless, I find the children need to have regular communication with their mother in a manner that is as emotionally safe for them as possible.
I find this can only be achieved through Skype communication which I am aware brings with it the risk of the children being exposed to further abuse of their father by their mother.
I find however that the children’s best interests would be met by reducing that communication so that it occurs on every second Thursday as well as on special occasions such as each of the children’s birthdays, the mother’s birthday, the birthdays of the maternal grandparents (who were clearly a very important part of the children’s lives when they lived with the mother), and on occasions such as Christmas and Easter.
The parties will continue to be at liberty to record those Skype calls, although I am hopeful that for the sake of the children the need to keep a record of the contents of the calls does not continue indefinitely.
I find that the orders that I intend to make will be those that are least likely to lead to further proceedings in this matter.
I make that comment in the knowledge that in the event the mother seeks to re-litigate parenting issues, it will be necessary for her to satisfy the Court at a “threshold” stage that the likely change in the children’s circumstances if the proceedings continue is of such significance that it outweighs the benefit to the children of the proceedings remaining finalised.
In the circumstances of this particular case there is little doubt the Court would need to be satisfied at a threshold level that the mother’s ability to ameliorate her views and her conduct in the presence of the children, such that they are protected from any psychological harm that may come to them as a result of those views and conduct, has significantly improved.
I find that this will increasingly be the case from the perspective of the children as they grow older in an environment where they are not exposed to conduct such as that exhibited by the mother and therefore be likely to find it evermore confronting, confusing and distressing.
It is unlikely, particularly taking into account the evidence of Dr EE and Ms R that such a position can be achieved by the mother without the assistance of highly specialised psychological or psychiatric therapy.
For those reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding four hundred and fifty-six (456) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead.
Associate:
Dated: 20 December 2021

File number(s):	ADC 3611 of 2012
Judgment of:	MEAD J
Date of judgment:	20 December 2021
Catchwords:	FAMILY LAW – PARENTING – With whom the children live and spend time – Best interests of the children – Where both parents seek sole parental responsibility and that the children live with them – Where litigation commenced in 2012 – Where the children are now aged 11 and 9 – Where there was a previous trial in 2018 – Where the mother at that time was consistently not facilitating the children’s previously ordered time with their father – Where both children are diagnosed with Autism – Where the children remained in the primary care of the mother – Where the father was found to be lacking in knowledge of the children’s medical and therapeutic needs – Where the mother continued to frustrate orders for time spending – Where the children were moved to the care of the father by interim order – Where the children progressed well in the father’s care – Where the father is capable of providing for the children’s special needs – Where the mother’s opposition to the children having any relationship with the father is unabating – Where there is no evidence to support the mother’s long-held views of risk to the children from the father of physical and/or sexual abuse – Where allegations of abuse over several years were found unsubstantiated by the Department for Child Protection – Where the Department were concerned as to the children being coached by the mother – Where the children are at risk of psychological harm from exposure to abuse by the mother of the father – Where the mother lacks insight into her behaviour – Where the children are to live with the father – Where there is no order for the children to spend time with the mother – Where orders made for regular Skype communication.
Legislation:	Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC, 60CC(2), 60CC(3), 61DA, 65DAA, 91B
Cases cited:	Barlow & Sellers [2018] FamCA 207
Division:	Division 1 First Instance
Number of paragraphs:	456
Date of hearing:	21-24 September 2020, 9-12 November 2020 and 1, 3 and 4 March 2021
Place:	Adelaide
Counsel for the Applicant:	Mr Roberts
Solicitor for the Applicant:	Thomson and Associates
Solicitor for the Respondent:	Litigant in Person
Solicitor for the Independent Children's Lawyer:	Ms Olsson
Solicitor for the Independent Children's Lawyer:	Silkwoods

ADC 3611 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SELLERS Applicant
AND:	MS BARLOW Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	MEAD J
DATE OF ORDER:	20 DECEMBER 2021