Bartlett & Denny - [2021] FedCFamC2F 443

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bartlett & Denny [2021] FedCFamC2F 443

File number(s): PAC 5587 of 2017

Judgment of: JUDGE NEWBRUN

Date of judgment: 25 November 2021

Catchwords: FAMILY LAW – Parenting – best interests of children – Orders made.

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

Cases cited: B & B (1986) FLC 91-758

Division: Division 2 Family Law

Number of paragraphs: 211

Date of last submission/s: 11 October 2021

Date of hearing: 12, 13, 14 July 2021 and 11 October 2021

Place: Parramatta

Counsel for the Applicant: Ms De Vere of Counsel

Counsel for the Respondent: Mr Heazlewood of Counsel

Counsel for the Independent Children’s Lawyer Ms Friedlander of Counsel
ORDERS

PAC 5587 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BARTLETT

Applicant

AND:
MS DENNY

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

25 NOVEMBER 2021

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.That the Mother and Father shall have equal shared parental responsibility for the children X born in 2010 and Y born in 2012.
3.That the children shall live with the Mother.
4.That the children shall spend time with the Father as follows:
(a)During school terms, from the conclusion of school or 6pm if a non-school day on Friday until the commencement of school or 8.30am of a non-school day the following Wednesday, and each alternate week thereafter.
(b)At all other times as agreed between the parties in writing.

School Holidays
5.That the Children shall spend time with the Parties during the Children's Term 1, 2 and 3 school holiday periods as follows:
(a)In odd-numbered years, with the Mother from the conclusion of the last day of the Children's school term for a period of seven consecutive nights thereafter, concluding with the Parties conducting changeover on the eighth day at 5pm where the Father shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term; and
(b)in even-numbered years, with the Father from the conclusion of the last day of the Children's school term for a period of seven consecutive nights thereafter, concluding with the Parties conducting changeover on the eighth day at 5pm where the Mother shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term.

6.That the Children shall spend time with the Parties during the Children's Term 4 school holiday periods in equal shares as agreed or failing agreement as follows:
(a)In odd-numbered years, with the Mother from the conclusion of the last day of the Children's school Term 4 for a period of nineteen consecutive nights thereafter and on the twentieth day the Parties shall conduct changeover at 6pm where the Father shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term; and
(b)in even-numbered years, with the Father from the conclusion of the last day of the Children's school Term 4 for a period of nineteen consecutive nights thereafter and on the twentieth day the Parties shall conduct changeover at 6pm where the Mother shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term.

7.That notwithstanding any other order to the contrary, the Children shall spend the following special occasions with each of the Parties respectively unless they are already doing so at the time:

Mother's Day
(a)With the Mother, from 9am until 8pm on Mother's Day.

Father's Day
(b)With the Father, from 9am until 8pm on Father's Day.

The Mother’s Birthday
(c)With the Mother on the Mother's birthday from the conclusion of school until 8pm or if on a non-school day then from 10am until 8pm.

The Father’s Birthday
(d)With the Father on the Father's birthday, from the conclusion of school until 8pm or if on a non-school day then from 10am until 8pm.

Children’s Birthday’s
(e)With the party not otherwise spending time with the Children on their respective birthdays where the Children shall move together between the Parties and not individually:
(i)if a school day, from the conclusion of school until 8pm; or
(ii)it a non-school day, from 5pm on the day before the Children's birthday until 12pm the next day.

Easter
(f)During Easter long weekend, in the event it does not coincide with the Children's Term 1 school holiday period:
(i)In odd-numbered years, with the Father from 10am on Good Friday until 5pm on Easter Saturday and with the Mother from 5pm on Easter Saturday until 5pm on Easter Monday;
(ii)in even-numbered years, with the Mother from 10am on Good Friday until 5pm on Easter Saturday and with the Father from 5pm on Easter Saturday until 5pm on Easter Monday.

Christmas
(g)During the Christmas period as follows:
(i)in odd-numbered years, with the Father from 5pm on Christmas Eve until5pm on Christmas Day and with the Mother from 5pm on Christmas Day until 5pm on Boxing Day;
(ii)In even-numbered years, with the Mother from 5pm on Christmas Eve until5pm on Christmas Day and with the Father from 5pm on Christmas Day until 5pm on Boxing Day,

8.That the Father be at liberty of communicating with the Children by phone and/or video conferencing (such as FaceTime) each alternate day between 6 - 6:30pm and the Mother shall facilitate such communications by ensuring the Children are available and her phone charged ready to accept same.
9.That further to the immediate preceding order, the Parties shall not hinder, prevent or discourage the Children from initiating or accepting communication from the other party at all reasonable times and, for the purposes of same, the Parties shall do all acts and things necessary to ensure their mobile telephones (until such time as the Children have their own mobile telephones) are able to accept communication from the other party.

Changeover
10.That for the purpose of facilitating changeover other than on those occasions when either party collects or returns the Children to or from school, the parties are to collect and deliver the Children to and from McDonald's Suburb K, unless otherwise agreed between the Parties in writing.

Miscellaneous
11.That in the event that either party is unable to spend time with the Children pursuant to any of the above Orders, that party shall notify the other by way of text message as soon as reasonably practicable, and the other party shall have the option of caring for the Children during the said period.
12.That the Parties shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.
13.That the Parties shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the Children.
14.That each party shall ensure the other is advised promptly of any medical emergency or significant illness suffered by, or relating to, the Children including sufficient details to enable both parties to be consulted and fully advised regarding such illness or condition and any treatment.
15.That the Mother shall notify the Father as soon as practicable of any significant events occurring in the Children's lives including but not limited to parent/teacher interviews, sporting events and invitations received by or on behalf of the Children.
16.That the Parties, as and when requested, shall forthwith do all acts and things and sign all documents necessary to ensure each of them receives a copy of the Children's school reports, newsletters and other relevant notices issued by their school.
17.That neither party shall denigrate the other party or anyone associated with that party in the presence or hearing of the Children, and shall forthwith remove them from any third party doing so.
18.That neither party shall interrogate the Children about events or conversations in the household of the other party or use corporal punishment to discipline the Children or allow a third party to do so.
19.That neither party shall harass the other about making changes to these Orders once made.
20.That neither party shall discuss with the Children these proceedings, or change to these orders, or permit any other person other than an Independent Children's Lawyer (if appointed) to do so.
21.That the Parties shall be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders or as required.

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

This final parenting hearing relates to the children X born in 2010, aged 11 years, and Y born in 2012, aged 9 years.
Pursuant to the Court’s interim parenting Orders of 29 May 2020, the children spent fortnightly time with the Father on a graduating basis, culminating in spending four nights each fortnight during school term times with the Father, from after school Friday until before school Tuesday, and spending half school holidays with him, as well as on special occasions.
PROPOSALS
The Father’s final parenting proposals were set out in his Amended Initiating Application filed 27 November 2020. Inter alia, he sought Orders that the parties have equal shared parental responsibility for the children; during school term times the children live with the parties in an equal time shared care arrangement; and that during school holidays and on special occasions the children spend time with both parents.
The Mother’s proposals were set out in her proposed Minute of Order emailed to the Court on 8 October 2021. Inter alia, she sought Orders that the parties have equal shared parental responsibility for the children; the children live with the Mother; during school term times the children spend time with the Father each alternate weekend from Friday 3 PM until before school Monday 8.30am; and that during school holidays and on special occasions the children spend time with both parents.
The ICL’s proposals were set out in his proposed Minute of Order sent to the Court on 10 October 2021. Inter alia, the ICL sought Orders that the parties have equal shared parental responsibility for the children; the children live with the Mother; during school term times the children spend time with the Father for 5 nights each fortnight; and that during school holidays and on special occasions the children spend time with both parents.
EVIDENCE
In the determination of this case the Court has had regard to all of the written evidence referred to below, together with the oral evidence given by each of the parties and Dr B, the family report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed. However, those that are important to the Court’s determination will be considered either in this section or whilst addressing the s.60CC factors (see below).
The Father relied upon the following documents in relation to his above proposed parenting Orders:
(a)Amended Initiating Application filed 27 November 2020;
(b)His Affidavit filed 9 March 2021;
(c)Child Inclusive Conference Memorandum dated 13 February 2018;
(d)Family Report dated 17 July 2019;
(e)His counsel’s Case Outline filed 5 July 2021.
The Mother relied upon the following documents:
(a)Amended Response filed 11 October 2019;
(b)Notice of Risk filed 25 January 2018;
(c)Affidavits of Mother filed 31 March 2021 and 4 July 2021.
In relation to the Mother’s Affidavit filed 31 March 2021, the Mother did not rely upon paragraphs 10 to 16, nor upon paragraph 17a), c), d), e), nor upon paragraphs 19 – 20. Paragraph 34 was allowed by the Court as a submission only. An objection was upheld to the last 2 sentences in paragraph 40.
In relation to the tabulated and paginated folder of documents referred to as Exhibit -1 in the Mother’s Affidavit filed 31 March 2021, the Mother did not rely upon pages 1-163, nor upon pages 266-270, 277-279. The Court upheld an objection by the Father to page 248.
In relation to the Mother’s Affidavit filed 4 July 2021, the Court upheld an objection by the Father to Exhibit -2 in paragraph 15.
(d)Her counsel’s Case Outline dated 10 July 2021.
The ICL relied upon the following documents:
(a)Child Inclusive Conference Memorandum dated 13 February 2018;
(b)Family Report dated 17 July 2019;
(c)Case Outline of ICL’s counsel dated 10 July 2021.
The following Exhibits became evidence in the proceedings:
(a)Exhibit A: Exhibits tendered by the Father’s Affidavit 29 March 2021;
(b)Exhibit B: Coloured photographs of alleged bruising of the Mother;
(c)Exhibit C: Transcript summaries from Kids Helpline Subpoena;
(d)Exhibit D: Tender Bundle of Father;
(e)Exhibit E: Exhibit 1 commencing page 164;
(f)Exhibit F: Family Report of Dr B dated 17 July 2019;
(g)Exhibit G: Tender Bundle of the ICL;
(h)Exhibit H: Child Inclusive Conference Memorandum dated 13 February 2018;
(i)Exhibit I: Usb Stick of Telephone Recording of Kids Helpline 24 September (48 minute duration)
(j)Exhibit J: Tender Bundle of Mother;
The Father
The Father was born in 1965 in Country D, and is currently 56 years. He works as an employed health professional in Suburb C. The Mother was born in Country D in 1976 and is now aged 45 years.
The parties commenced cohabitation when they married in 2001. They separated on a final basis under the one roof in about September 2016. The Father moved out of the former matrimonial home at Suburb L in about early December 2016.
Since about December 2020, the children have spent four nights each fortnight with the Father. Since about 29 May 2020, the Father has also spent about half the term 2 and 3 school holidays with the children, as well as time with them on special occasions, and has also communicated with them by telephone.
When the children were born in 2010 and 2012, the Mother took about 12 months maternity leave but otherwise returned to full-time employment. From the time that the Mother returned to work after the birth of each of the children, the children’s day-to-day care was undertaken equally by the parties, and when they were both working was supplemented by long day care. The Father also assisted in household chores.
During the parties relationship they argued. When the parties argued, the Mother often said to the Father words to the effect: “You are disrespecting me. I am calling the police to teach you a lesson. You are from the Country D and I am a woman. Whatever I say the police will believe me.”
One of the issues that the parties argued about regularly during their relationship was religion.
The Father did not spend time with the children from 13 December 2016 until 9 February 2018 as the Mother had refused to make the children available.
From 10 February 2018 until about mid-August 2018, the Father spent time with the children supervised.
The Father began to spend unsupervised time with the children from about mid-August 2018, on a graduating basis, and pursuant to interim parenting orders of the Court made on certain occasions.
On 11 May 2019, the children spent overnight time with the Father for the first time in 2.5 years.
Between separation under the one roof and December 2016, the parties continued to share care of the children.
On 1 December 2016, the Father relocated his place of employment to Suburb C. The Father has worked for the same company as a health professional for over 20 years. He finishes work at 5 PM every day, except in the days that he spends time with the children. He takes annual leave from 3 PM to 5 PM every Friday and Monday to spend time with the children after school.
The Mother works at Employer B, Suburb C.
In early December 2016, the parties attended the eldest child’s school graduation ceremony and sat next to each other.
On 22 January 2017 the parties exchanged text messages in relation to the Father seeing the children. In one text message from the Mother to the Father she told the Father that his messages put fear and stress in her and requested the Father not to message her.
In March 2017, the Father was charged with assault occasioning actual bodily harm and common assault upon the Mother. He pleaded not guilty. The charges related to an alleged incident on 5 March 2016 between the parties. On 6 February 2018 the assault charges were withdrawn by the police, with the consent of the Mother, and dismissed by the Local Court.
In relation to the alleged assault in March 2016, the Father asserted that Police statements tendered in the criminal proceedings raise concerns that the pictures of the bruises that the Mother showed the investigating police officer when she reported the alleged March 2016 assault, was date stamped 16 September 2016. He asserted that in about September 2016 the Mother had told him that she fell outside work just now, had fallen on the kerb and hurt her arm.
On or about 20 January 2017, the Mother had obtained an interim AVO from the Suburb C Local Court against the Father. A final AVO was made by the Local Court on 13 April 2018 without admissions by the Father. On 4 September 2019, the AVO was extended for 12 months, after a contested hearing, as the Father had attended a musical group choir performance believing that the Mother would not be taking part. On arrival in fact the Mother was present. He did not approach her or interact with her but did not immediately leave upon seeing her there and decided to stay. He watched the Mother perform for 2 hours sitting 3 or 4 seats from the front.
On 17 February 2020, in the District Court, at the instance of the Father, an order was made to revoke a prior extension to the AVO made by the Suburb C Local Court.
On about September 2016, the Mother told the Father that she had just fallen outside of work onto the curb and hurt her arm.
The Father completed three post separation parenting courses in May 2018, June 2018, and November 2018.

The interim parenting Orders of 3 August 2018 provided, inter alia, that changeover occur at a contact centre.
The Mother was admitted to hospital with breathing problems on 15 September 2018 (discharged on the same day) and she did not directly inform the Father of this hospital admission.
In March 2020, the Father moved into a two-bedroom apartment in Suburb C. The apartment is a seven minute drive from the children school and the changeover location.
Since 29 May 2020, changeovers occurred at McDonald’s Suburb K.
In the past the parties have had difficulties with their communication. The Father asserts that their communication and co-parenting has improved. When the children are in the Father’s care he asks the Mother what homework needs to be completed and she advises the Father. The Mother has asked the Father to put towels in the children’s school bags as they have swimming at school and the Father does so.
The children attend School M and are in years 6 (X) and 3 (Y).
The Father pays Child support as assessed, which is now $335 per week.
The Mother
The Mother asserts that throughout the parties’ marriage, the Father would be verbally and physically abusive towards her. She asserts that none of these incidents were reported to police. She asserts that on 5 March 2016, in a motor vehicle, the Father started to get angry and started yelling about a previous argument. The Mother asserts, inter alia, that the Father punched her numerous times in her right shoulder and right side and that she punched him back as she was scared that he would hurt her further.
The Mother asserts that she developed bruising as a result of the Father’s actions and annexes photographs bruising dated 6 March 2016, 8 March 2016, and 11 March 2016. The Mother asserts that the children have been present on occasions when the Father has yelled at her for extended periods, verbally abused her, hitting her, and using religious vilification against her. The Mother asserts that on 7 February 2017, she attended a police station to report these matters. She asserts that the reason she took so long to report these matters was because she was scared and did not want to lose her children and was scared of what the Father would do.
The Mother asserts that on one occasion the Father assisted X with her homework and became impatient and aggressive with her, which included yelling, and smashing a pencil on the ground. The Mother asserts that the child was found crying and shaking from this incident. The Mother asserts that the Father did not do homework with X ever again.
The Mother asserts that when the Father drinks alcohol he becomes very aggressive and violent.
Mother asserts that on an occasion when the family was out for dinner, and the Father was drinking, Y’s swinging legs bumped into the Father’s legs and the Father kicked Y on the leg from under the table resulting in Y bursting into tears.
The Mother asserts that the Father held a knife at her in the kitchen one Saturday morning and was arguing with the Mother.
The Mother asserts that for several years she has shared X’s homework routine. She asserts that she has also adopted a similar routine for Y.
The Mother asserts that she restricts the children’s electronics during the week and on weekends to some extent.
The school report of Y for Year 2, 2020, Semester 2, refers to his teacher’s comments that Y is a confident, enthusiastic member of class, who will happily voice his opinions, volunteer information and answer questions. It refers to Y having made sound progress across all subject areas this semester. He works collaboratively with others in group activities, actively promoting effective group interaction and expression of ideas. It states he is a friendly student.
The school report of X for Year 6, 2021, Semester 1, refers to her teacher’s comments, inter alia, that X is to be commended for being an attentive, motivated student who consistently makes an effort to improve her skills.
ORAL EVIDENCE
The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Father denied assaulting the Mother in early March 2016 whilst travelling in a car with the Mother. He referred to his Affidavit in which he had stated that the Mother had fallen over in September 2016, but that he did not know if the Mother had suffered bruises or not at that time.
The Father disputed the Mother’s allegations in relation to having kicked Y under the table when dining out for dinner. He stated that Y had kicked him and the Father pushed his leg aside. He had asked the child to put his leg down. The child had never cried and he was laughing all the time.
The Father denied hitting Y on the collarbone when walking down a ramp to a car park.
The Father stated that he helps X with her homework. He stated that the last time he helped her with homework was maybe two months ago. He agreed that it was only once this year that he helped X with her homework. He stated that he asked X if she has any homework and if she says no he doesn’t question that.
The Father stated that he had not said anything (to Y) about the Mother being the devil.
The children, when spending time with the Father, sleep in the same bedroom in separate beds. They do not change their clothes in front of each other. The children are content with this arrangement.
The Father denied the alleged homework incident with X; the Father denied losing his temper, he denied punching X on her back, and he did not break a pencil. He stated that he had softly tapped his hand on her back after she had thrown a piece of food on the floor.
The Father denied forcing the Mother to have sexual intercourse with him during their relationship.
During about the last 6 months, the parties have been communicating very positively with each other in relation to the children via SMS text messages. Prior to this time, the parties’ SMS communications were not positive.
The Father stated that there were text messages relating to communication between the parties in respect of the children in his Tender Bundle of documents (Exhibit D).
The Father denied that property issues (between the parties) were being used by him to control the family, as alleged by the Mother. He denied financially controlling the Mother, as alleged by her. He stated that during the marriage the parties were free to spend money on expenses without explanation. He stated that his wages and the Mother’s wages went into that account. He stated that both parties had full access to that account.
The Mother gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Mother stated that she would have spoken to X about these proceedings last year. She had spoken to her about the proceedings still being ongoing.
The Mother had initiated a call to the Kids Helpline. She had told X that she was trying to change Court Orders. She agreed that she had ignored a Court Order in that regard. She stated that she wanted evidence as to what the children were feeling.
The Mother was questioned in relation to a COPS entry for 2 January 2017 at page 35 of the ICL’s Tender Bundle (Exhibit G). The Mother agreed that this entry was a more accurate record than her memory today.
The Mother was questioned in relation to a COPS entry for 7 January 2017. It was put to the Mother that she had told the police at this time, “Well if he comes back on Monday he can just go to the children’s day care and out-of-school care and get them.” Initially the Mother denied making that statement to the police. She then stated that she did not recall whether she had made that statement to the police.
The Mother agreed that prior to the separation both parties engaged in verbal arguments with each other. The Mother agreed that any fear experienced by Y through the parties arguing would have been contributed to by the Mother equally (with the Father).
The Mother agreed that even if the children cry, that did not mean that they did not want to see the Father.
The Mother agreed that X takes on her emotional feelings.
The Mother stated that she had no issue or problem with the children spending block time with the Father in the short or long school holidays.
The Mother stated that the children tell her things about the Father which are true and not true.
The Mother agreed that she had not included the Father’s details in the application to enrol at School N in August 2017 relating to the children.
The Mother stated that her communication with the Father has improved a little bit this year.
The Mother stated that the Father’s text message response to her on 8 April 2021 relating to X’s periods was totally appropriate. It was a good example of improved communication between the parties. The Mother stated that communication between the parties has continued on a civilised, communicative level. The Mother agreed that the SMS messages passing between the parties was a good indication of the level of communication between them. The Mother stated that she wanted to communicate with the Father via SMS messages and not via telephone calls or face-to-face.
The Mother stated that there were 24 supervision reports. She had read them. The children had been excited and enjoyed spending supervised time with the Father.
The Mother stated that she always gives the children the message that she is happy for them to have time with the Father. She says to the children “we need to do this because it’s an Order and we will see how we go”.
The Mother stated that she only attended one consultation with Ms F, psychologist, pursuant to the Court’s interim parenting Orders of 29 May 2020 (Order 21). In this context, and explaining, the Mother stated that she is seeing a counsellor at her work and she was busy at work and she will book.
The Mother was asked to nominate 3 good things in relation to the children spending time with the Father. The Mother stated that they go out together, they play PlayStation and board games with the Father, and go to different places on holidays and have a good time with the Father.
The Mother agreed that she had arranged for X to attend upon the school counsellor in June 2020. She did not seek the consent of the Father to do this. She did not tell the Father that X had attended upon the counsellor.
In March 2021 the Mother arranged for Y to see the school counsellor and did not discuss this with the Father or advise the Father.
Child Inclusive Conference held on 13 February 2018
This conference was conducted by a Family Consultant, Ms O, and her Memorandum is dated 14 February 2018.
The Court does not propose to set out the entirety of the Family Consultant’s Memorandum. The Court has considered the contents of the Memorandum.
The Mother told the Family Consultant that she was seeking that the children live with her, and that they spend alternate weekends from Saturday morning to Sunday evening with the Father. She proposed that the children spend half of the school holidays with the Father.
X told the Family Consultant that sometimes the Mother says, “Do you remember when Dad punched me?” X stated that she did not recall this event, and thought that she may have been asleep.
X stated that she likes living with the Mother, and would like to spend time with the Father on weekends. She said that she would not like to sleep at the Father’s house because she would be worried that he would yell. X explained that the Father only yells because, “he drinks the bad drink that makes him active.”
Y told the Family Consultant that both parents yell at him if he is in trouble, stating that the Father yells louder. He expressed a strong desire to spend more time with the Father, stating that he wants to have sleepovers at the Father’s home.
Family Report
The Family Report of Dr B is dated 5 November 2019. The Court does not propose to set out the entirety of such report. The Court has considered the Family Report.
The Family Report writer interviewed the parties and children on 25 July 2019.
The Father stated to the Family Report writer that he has participated in the Anchor Program and has completed the Parenting after Separation – Focus on Kids, Keeping Contact and Talking with Your Kids programs. Mother stated that she had completed the Keeping Contact program.
The Mother stated that she and the Father argued repeatedly over trivial things. The Father stated that the parties argued from the time of their honeymoon. He stated that throughout the relationship the parties spoke loudly and did not listen to each other.
The Mother told the Family Report writer that she was happy that the children spend time with the Father. However, she stated that she continues to fear for her own safety, that of her parents and children, if the Father was to have an argument with someone and become angry.
The Father told the Family Report writer that his communication with the Mother is very poor.
The Mother asserted to the Family Report writer that the children have never enjoyed a good relationship with the Father both prior to the separation and since. She commented that she could not recall the Father ever doing anything of merit with the children. She stated that X does not report anything positive and only negative about the time she spends with the Father and Y says he has only played on technologies.
The Mother stated that her communication with the Father is fraught and she is afraid of him.
The children were interviewed by the Family Report writer.
X, aged 9 years and 5 months, was in Year 4, and presented as a cooperative and articulate child.
Y, aged 7, is in Year 1, and presented as a friendly and talkative child.
X, when asked to recall happy memories of being with the Father, replied that he made good deserts.
X stated that, after the separation, she felt sad that the Father could not come back, but also happy because there was no longer any fighting.
X stated that when she is with the Father she likes playing tag and I Spy and going to the city. She recounted that she used to feel afraid of the Father when she was smaller but not so now. She described the Father as nice and patient and referred to how he teaches her to share. She added that he checks to see that they are having fun. X stated that the only part of being with the Father that she dislikes is that she fears the Mother might not be there when she returns home. She stated that when she misbehaves which is not often, the Father calmly tells her and her brother not to act that way.
X spoke positively of the Mother.
X listed the Mother, the Father, friends, brother, maternal uncle, cousins and teachers as the people she loves.
X stated that if she could wave a magic wand, she would want her parents to be together. She said that she would like to stay with the Father for one evening per fortnight only as she misses the Mother too much.
Y stated that when he is with the Father, he likes the nights because he dreams about good things. He stated that he would like to stay with the Father for a longer period of time.
Y listed Jesus, the Mother, the Father and sister as the people he loves. He stated that nothing makes him scared.
The Family Report writer made observations of interactions between the children and each parent.
The children’s interactions with the Mother were positive.
When the Father entered the room, the children were excited to see him and were openly affectionate towards him. At various points in the observation, the Father was observed taking a teaching role with the children.
The Family Report writer provided her Evaluation.
The Family Report writer stated that each of the children was of an age and level of maturity where their views should be given minimal weight. She stated that both in the interviews for the CIC and in those conducted for the Family Report, the children, especially X, expressed views about her living arrangements that echoed those of her Mother.
The Family Report writer stated that there were indicators that the Mother, at least, has had conversations about the alleged family violence with X which have now become part of X’s narrative of her family trajectory.
The Family Report writer stated that it was not uncommon for children who have sensitive and empathic temperaments such as X to identify with their parent’s anxieties and adopt them as their own at peril to their psychosocial adjustment. She stated that it was imperative that X not feel she needs to continue to take a position on the family dispute. Such children may find themselves confused and bewildered when they have to advance a position that supports one parent but does not concur with their lived experience of the other parent.
The Family Report writer stated that, on the other hand, at both interviews, Y expressed a desire to spend more time with the Father and did not seem as aligned with the Mother as X.
The Family Report writer stated that the children disclosed that both parents have raised their voices and used physical chastisement. The Family Report writer stated that there was no reason, based on the Family Report assessment, for the children to feel any more afraid of one parent than the other.
The Family Report writer stated that it was concerning that the Mother reported that she cannot appreciate that there is anything positive that the children experience when in the Father’s care and that the children are afraid of him. The Mother’s reports did not concur with the disclosures of the children who disclosed that they loved both parents. The children had also spoken favourably about the time spent with each parent. They did not express to the Family Consultant or to the Family Report writer that they were afraid of the Father. The supervised contact reports also consistently indicated a warm, affectionate and spontaneous interaction between the children and the Father who frequently impressed on them his feelings of loss at not seeing them. Similar observations were made of the children’s interactions with the parents for the purposes of the Family Report.
The Family Report writer stated that X’s fears that the Mother may not be there on her return to the Mother seemed to reflect those of the Mother that the Father may be a flight risk and tend to be irrational as there has not been any attempt on the Father’s part to withhold the children. It was concerning that X’s reasons for not wanting to extend the time she spends with the Father appear to meet more of the Mother’s needs than her own.
The Family Report writer stated that it was concerning that the Mother considers Y’s oppositional behaviour to be a reflection of the dark side of the Father’s personality and the labelling this might incur for Y.
The Family Report writer stated that the parties need to appreciate there is a strong body of literature which attests to the benefits that accrue for children who maintain good relationships with both parents and significant others ideally with minimal exposure to interparental conflict following a separation. Any actions which sever a child’s contact with the parent or interrupt the continuity of care provided by a parent are unwise and stand to have a detrimental effect on the child. It was concerning that the children’s time with the Father was suspended for 15 months as unexplained interruptions of that nature leave children with feelings of grief and uncertain that their parents are a reliable and consistent presence in their lives. X had expressed how she felt sad at the prospect of the Father not returning after the separation in the interview for the preparation of the family report.
The Family Report writer stated that since the separation the Mother has almost exclusively attended to meeting the children’s needs to a reasonably satisfactory level. She stated that it would be advisable that the Mother consider separating her needs from those of the children, for example, by discouraging co-sleeping. She stated that the Mother has performed the caring role with negligible support from the Father who seemingly wanted to assist with the children’s care but has been thwarted.

The Family Report writer stated that one of the important dimensions of meeting emotional children’s needs is the capacity of the parties to facilitate the relationship with the other parent. She stated that the Mother’s ambivalence and her actions post separation demonstrate limited insight into the emotional needs of the children.
The Family Report writer stated that it was imperative that children are relieved from any pressure they feel to be participants in the adult dispute and align themselves with one or the other of their parents.
The Family Report writer stated that there appear to be no contra-indicators to the time the children spend with the Father progressively increasing in terms of his capacity to care for the children and provide for their needs. Both parties presented as having the capacity to respond to the children’s physical, educational and medical needs.
The Family Report writer stated that it was very likely that the children will be able to tolerate longer periods with the Father if the message they receive from the Mother is that she is amenable to this occurring. She stated that the children would be expected to identify with any resistance they perceive the Mother is expressing and will look to her for permission that being with the Father for longer periods is a safe option for them.
The Family Report writer stated that the communication between the parties is fraught and their mistrust so high that it was difficult to envisage how, without significant changes, they can move forward and implement Orders for shared parental responsibility with a spirit of collaboration.
The Family Report writer provided her recommendations.
A recommendation was made that the parties work on developing a more collaborative relationship so that they can more effectively exercise shared parental responsibility. It was recommended that the children live with the Mother.
It was recommended that the time the children spend with the Father be incrementally increased by one evening every 3 months so that they eventually spend 4 to 5 evenings per fortnight with the Father. It was recommended that school holidays and special occasions be shared between the parties. It was recommended that changeovers occur in a neutral venue unless the parties choose otherwise, and that, as far as practicable, they occur at school.
It was recommended that both parents attend school functions and extracurricular activities for the children. It was recommended that there be no denigration of the parents or significant others or any discussions pertaining to the adult dispute with the children.
The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Family Report writer stated that she was a psychologist and has a doctorate in education.
The Family Report writer gave this evidence in relation to her recommendations:
Dr B, did you – at paragraph 130, you gave a recommendation that the children eventually spend four or five evenings per fortnight with their Father. My first question is with regard to the ICL’s minute of orders number 3, with – where it suggests five nights a fortnight, can you tell his Honour if that is congruent with your recommendation?   Well, yes, I think, from what I heard you say previously, the children are already spending four consecutive nights a fortnight with their Father and this would mean it increased by one evening. Bearing in mind that the children are now 11 and nine and that recommendation was made when the children were two years younger, I think, certainly, now, if there is to be an extension of time to add it to a block that’s already in place, I think, is age appropriate for the children.
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So it comes down to, basically, that the children are going to be spending five nights with the Father, half holidays and special days with both of the parents. Doctor, do you feel that those orders fulfil your – the recommendations that you made within the family report?   Well, they are congruent, yes, yes, with the recommendations I made.
Is there anything in those orders that you would change?   No, I don’t – I don’t think so. I think that they are age appropriate orders for children now, at the developmental stages of X and Y.
The Family Report writer was questioned her in relation to the child X carrying the emotional responsibility of the Mother and this evidence was given:
Those triggers as to being anxious and nervous, by stating that it’s because “Mum cries” and because “Mum misses me”, in fact, is a confirmation of the concerns you raised about X carrying the emotional responsibility of the Mother? Well, that was very clear in my assessment, that X’s apprehensions about being away from her Mother was very much because she feared how her Mother would manage without her and that, you know, more than one night was too hard to be away from mum, when really, that – that really needed to be addressed by the Mother, maybe, in counselling for herself that, you know, any anxiety that she maybe felt about X being away from her may have been projected onto X, who had internalised it. And so, you know, it’s certainly not a reason for a child not to be spending a block period with the other parent.
In relation to the Mother’s proposal that the children’s present fortnightly time with the Father be reduced by one night, the Family Report writer gave this evidence:
And in relation to that, the children currently are spending four nights a fortnight with their Father in accordance with some interim orders made by his Honour. If what the Mother seeks to do – or the orders that she is seeking from the court is to reduce that down by a night. In the circumstances of this matter, where the Mother projects her own emotional burden on the children, that would be the wrong message to send to these children, wouldn’t it, being a reduction in the current time they spend with their Father? Well, I guess yes, it would be confirming to X, at least, that mum does need her – and it may not even be conscious, but it would be confirming that the right way to go is to spend more time with mum, because mum needs me. And certainly from the notes that were sent to me in the bundle, that’s certainly not what might work for Y either, because he spoke very positively in the counselling notes of the time he was spending with his Father and looking forward to it. So I would see that it would not be in the children’s emotional interests to be reducing time, no.
The Family Report writer was asked to comment upon the child X’s presentation to a counsellor with anxiety prior to spending block time with the Father, and her later presentation to the counsellor, having spent time with the Father, reporting that her actual experience of time with the Father was better than she expected and this evidence was given by the Family Report writer:
And look, you know, I think that that’s really the art of dealing with anxiety, that you – anxiety is not about avoidance. Dealing with anxiety is about living through the experience and then, perhaps, rewriting the script of the fears that you may have had. And I think that’s a really nice example of where anxiety was confronted, experienced and then, “Hey, it was not what I thought it would be. In fact, it was much better.” And that is the way that we all learn to deal with anxiety, by going to the hard places, getting out of our comfort zones, experiencing what we fear and then relishing in the fact that we survived.
It was suggested to the Family Report writer, by counsel for the Father, that a week about regime would give the children an opportunity to settle and to spend proper and appropriate time with each of the parents. The Family Report writer stated that a week about regime was a huge leap from where the children are now.
The Family Report writer was further questioned in relation to the Father’s proposal for a week about regime and this evidence was given:
And so if we’re currently at four nights and his Honour were to consider a staged, incremental increase of not just the one night recommended by the independent children’s lawyer, that he could, over a staged period, incrementally increase up to the week about arrangement? Well, I guess that would be for his Honour to decide. I guess for me – and I don’t have the benefit of recent interviews with the parties – but equal shared care arrangements, while I hear what you say about the Father’s concerns, usually do require, to be optimum, a better level of communication and working relationship with the parties than when – certainly when I saw them. And now, you know, while I would agree that yes, they – there has been a marked improvement in many areas, they are still a long way from having that communication that would – excuse me – sustain an equal shared care arrangement. And my concern would be that it may elevate the anxiety level of the Mother even more and then that becomes projected onto X in particular. So – hang on. I guess that – obviously, that there would be some, yes, risks associated with increasing the time to an equal shared care.
The Family Report writer gave this evidence in relation to equal time parenting regimes:
Dr B, could you just – unless you’ve already stated it clearly in your earlier family report, what are the sort of conditions that would be expected to apply to the parties for an equal time parenting relationship to work successfully, such as in the areas of communication, trust, the co-parenting – the nature of the co-parenting relationship and so on? What are the optimal conditions that you would expect to see for an equal time arrangement to work successfully?   Well, it comes – well, there are several matters that I would consider. One is the logistics of children not having to travel long distances between households to attend school etcetera. But the crucial one to me is around communication and that involves – that involves parties being able to make decisions jointly, share information in respect of the children, not – being able to – for example, around quite telling issues, such as counselling, being able to discuss with each other that children may be having some adjustment issues or anxieties, fears. So that’s – you know, I think being able to be transparent with each other in the interests of the children would be what I would think is salient. I think too one of the factors I would consider is where children are at now and where – what the history has been of their care and, you know, to me, it would be quite a jump to go from four nights a fortnight to seven when the children have been in the primary care of their Mother, really, for – you know, for the post-separation journey. And, I mean, I guess particularly with the children’s ages, they are maybe still on the shy side of their views carrying a lot of weight, but I guess in the not too distant future, the children’s views would also carry some considerable weight. And I suppose I would be mindful about – you know, with the narratives that the children – you know, particularly X, has had. I would feel concerned that as her voice became stronger and maybe she received the message that her voice was what crossed the finishing line, that if there is too big a leap from where the children are now, there may be some pressure that comes to bear. So they would be the factors I would consider.
What about the issue of the parties’ trust of each other?   Well, I guess that’s, you know, crucial to the communication. Trust, transparency is of the essence. I – certainly, the trust level was quite poor when I saw them, but you know, parents who don’t trust each other will focus in on the negative of the other parent and look for attributions and information that confirms their bias. And so – yes, and I don’t know where the parties are at now with the trust, but if there is not a high level of trust, it’s problematic and it could also mean that the children become increasingly co-implicated in the adult issues.
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But similarly, if, in fact, there is a lack of trust and if one parent continues to place on the children their emotional burdens, then it is crucial that children have the opportunity of being able to independently develop a relationship with the other parent so that their views and perception are not tainted, but are the actual lived experiences of those relationships?   Well, yes, although my view on that would be that I – I think – or with a substantial care arrangement, that can be done satisfactorily, I am not sure that it would take an extra two nights a fortnight for that to occur. I’m – I do believe that the Father would be able to do that with an arrangement of substantial care.
Counsel for the Mother questioned the Family Report writer in relation to her recommendation in the Family Report in relation to the children spending 4 to 5 nights each fortnight with the Father and this evidence was given:
So is it the case that when you offered the opinion four or five nights, that you had some reservations about the length of time the children should spend with their Father; is that correct?   Well, I didn’t have reservations that they had a relationship with their Father. I guess my – the starting point was, really, a long ways from a substantial care arrangement, so I could see that it needed to be built up incrementally and for the block that was occurring around the children moving from supervised time to overnight time really needed to be broken.
But – and I – you obviously suggested that four – you’ve suggested four or five nights. So at that time, your thinking must have included that four nights was appropriate?   Well, as a minimum, as a minimum, but I would have preferred five. Absolutely.
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All right. So substantial time is not necessarily – it could be four nights a fortnight, rather than five. That would still be appropriate, would it not?   Well, look, I think the children are doing four nights now and I’m thrilled to hear that. The reports from the counsellors would suggest to me that they are managing that well. And so to me, I don’t see a difficulty, if children are managing four nights a fortnight, to progress to five, particularly given their ages.
Counsel for the Mother questioned the family report writer in relation to X and the potential for anxiety in relation to spending increased time with the father and this evidence was given:
And so isn’t it likely that if the time is increased – the time X is to spend with his father – with her father is increased from four to five nights a fortnight, that her anxiety will increase? Well, I think there are several things that I might say to that. It may, it may not. I would say that anxiety – managing anxiety is not by giving into anxiety or capitulating. Managing anxiety is about leaning into your anxieties and I would say that, you know, for children, often the way they manage changes is very much correlated to the way their parents communicate the changes to them. And if the court makes orders for five evenings a fortnight or leaves it at four or takes it to three, raises it to seven, you know, children, in my experience, usually – if that’s the
orders that are made and the children – parents communicate that to the children, that’s of the essence, rather than, you know, where your proposal that we shouldn’t make changes because of a child’s anxiety. And also, the fact that there are two children in this family and, you know, my thoughts around that is that it’s not about the number of nights, it’s about the parties being able to say to the children, “This is what we have. This is what is the roadmap for our family.”
Counsel for the Mother questioned the family report writer in relation to the potential for emotional abuse and the amount of time that the children should spend with the father in this evidence was given:
Well, that hasn’t occurred. So having regard to the statements that you have made in paragraph 126, isn’t that more likely to suggest, therefore, that you wouldn’t increase it beyond four nights a fortnight? Well, I don’t know. Some of those exchanges that I saw of the parents earlier this year was, really, a marked improvement on where they had been at the time I saw the parties, so I would be thinking that there is some improvement. It may not be to the level where the parties have a high level of trust and have the exemplary co-parenting relationship, but I would say that they have made some progress.
Counsel for the Mother questioned the family report writer in relation to a report by the child X to the Kids Helpline on 24 November 2020, at a time when the child was in the care of the mother and this evidence was given:
Now, again, Doctor, you’ve made some comments about circumstances relating to how it came about that she made this report to Kids Helpline. But if it’s a genuine report by X, then it’s a troubling report, is it not? Well, yes, I – and I guess if it was made to the Kids Helpline, the mandatory reporting would have been followed up on. That would have investigated whether there were risks for X. So I guess – you know, I don’t know whether that has led anywhere and I guess – you know, I am aware, though, that when disclosures of that nature are made, they need to certainly be looked at in the context and there are agencies – DCJ – to follow up on those disclosures.
Yes. But relevantly, wouldn’t that suggest to you that it might not be in X’s best interests to increase the time she spends with her father? Well, look, I would say that, you know, if there are risks, even one day a fortnight for a child is a danger, so I guess, you know, I don’t know that I would say that to increase by an additional day is going to – no, I don’t see the two as necessarily being related. You know, if there are risks for five days, surely there would be risks for four days.
Counsel for the Mother questioned the family report writer in relation to X and the carrying out of her school homework is spending time with the father and this evidence was given:
So I want you to assume these facts: firstly, X is frightened to work with her father doing homework; secondly, she – X doesn’t want her father to assist her with her schoolwork; and thirdly, that the father said in evidence that he does not do homework with her. Now, given those matters, do you agree it would not be helpful if that situation were to continue?---Well, look, it’s unfortunate that if that – if those – if that is the situation. You know, my sense, though, too is that children often are expected to do homework independently, so I guess I – you know, I’m not quite sure of the details of the homework, but it could be that X can do her homework independently of the father and may not need his assistance. So, you know, homework is for children to do, not necessarily for their parents to do.
The Court accepts the evidence of the Family Report writer.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Family Law Act 1975 (Cth) (“the Act”) sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
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: section 61DA of the Act. When the Court is making an interim Order, the presumption applies unless the Court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that Order: section 61DA (3).

If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65 DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the Court may make such orders in the discretion of the Court that it thinks proper, being Orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
THE BEST INTERESTS OF THE CHILDREN
Section 60CC considerations
Subsection (2a): the benefit to the child of having a meaningful relationship with both of the child’s parents: a primary consideration
The children have meaningful relationships with both parents and will benefit from a continuance of those relationships.
Should the children spend time with the Father in accordance with the ICL’s proposed Minute of Orders, there is a significant prospect that the children’s meaningful relationship with the Father can be maintained, and, in particular, enhanced.
The Court finds that the Mother has unreasonably projected her own anxieties in relation to the children spending time with the Father onto at least X such that X, a sensitive and empathic child, has at times aligned with the Mother, has taken on the emotional burden of the Mother’s anxieties, and has previously expressed a reluctance to spend time with the Father.
The Court is concerned that should it make the Mother’s proposed parenting orders providing, inter alia, for a reduction in the children’s time with the Father during school term times, there is a significant risk that the children’s meaningful relationship with the Father will be detrimentally affected. A reduction in the children’s time with the Father, during school term times will tend to confirm to the children, in particular X, that an increase in the time they spend with the Mother will meet the emotional needs of the Mother rather than their own. Such an increase in the children’s time with the Mother, as opposed to spending increased time with the Father, will not meet their own emotional interests in having an increased opportunity to experience a positive lived experience with the Father, as they have in the past, and thus enabling them to enhance their meaningful relationship with him.
The evidence of the family report writer is consistent with the above views.
The Court gives significant weight to this meaningful relationship primary consideration.
Subsection (2b): the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Mother makes significant family violence allegations against the Father together with allegations against the Father of antisocial behaviour, on occasion in the presence of the children. In the context of these allegations, it is relevant to refer to the Mother’s parenting proposals in these proceedings, including her proposals at the final parenting hearing. There is an element of inconsistency between those proposals of the Mother and her family violence and allegations of anti-social behaviour. This will now be discussed briefly by the Court.
The Court observes that the Mother told the Family Consultant at the Child Inclusive Conference held on 13 February 2018 that she was seeking that the children live with her, that they spend alternate weekends from Saturday morning to Sunday evening with the Father, and proposed that the children spend half the school holidays with the Father (albeit that she stated that she would be seeking further legal instruction and may amend her proposals, as she stated that she had safety concerns about the children spending unsupervised time with the Father).
The Court observes that the Family Report writer referred to the Mother’s Response filed 25 January 2018 in which the Mother sought final parenting orders that the children spend time with the Father, inter alia, from Friday 3 PM to 5 PM on Sunday during term time, for one half of the school holidays, and for Easter and Christmas periods to be shared between the parties.
The Mother’s proposals, at the final hearing, were set out in her proposed Minute of Order emailed to the Court on 8 October 2021. Inter alia, she sought Orders that the parties have equal shared parental responsibility for the children; the children live with the Mother; during school term times the children spend time with the Father each alternate weekend from Friday 3 PM until before school Monday 8.30am; and that during school holidays and on special occasions the children spend significant time with both parents.
The Court refers to its discussion above under the meaningful relationship primary consideration in relation to the mother’s unreasonable projection of her own anxieties onto at least the child X. The child X’s reported anxieties to, inter alia, school counsellors and to Kids Helpline in relation to spending time with the Father were likely significantly contributed to by the Mother’s conduct. This conduct included the Mother’s discussion with X relating to seeking to change the Court’s parenting Orders, her involvement with X in speaking to the Kids Helpline, and the Mother’s discussions with X relating to an alleged assault upon the Mother when the Father allegedly punched the Mother (see the CIC Memorandum, and the Court’s discussion below under the need to protect primary consideration in relation to an alleged assault in March 2016). The children’s lived experience, including over about the last year, relating to their time spent with the Father post separation, has been positive and is incongruent with X’s concerns expressed to school counsellors and to Kid’s Helpline in 2020.
The objective evidence before the Court indicates X (as well as Y) is enjoying spending significant time with the Father and enjoys her meaningful relationship with him. Such evidence includes the previous supervision reports, statements made by X to school counsellors that she had enjoyed spending time with the Father, her other positive statements in relation to the Father, the observed relationship between X and the Father by the Family Report writer, and the children having spent four nights each fortnight during school term times with the Father since about December 2020 together with block time during school holidays. The Court further observes that the school counselling with X ceased in November 2020 having previously commenced in about late June 2020, and the last Kid’s Helpline consultation occurred in November 2020. The Court observes that there is no health professional evidence before the Court indicating that X, or indeed Y, are likely to experience significant anxiety if spending increased time with the Father.
The evidence of the family report writer is consistent with the above views.
The Mother referred to the decision of B & B (1986) FLC 91-758. Contrary to the submission of the Mother, this is not a case where the children are completely emotionally dependent upon the Mother; the children have a close emotional attachment to both parents albeit the children’s primary attachment is probably to the Mother. Further, unlike the findings in B & B, should the children spend time with the Father pursuant to the ICL’s proposed Orders, effectively involving the children spending, during school term times, five nights each fortnight, being an additional overnight compared to the current interim parenting orders of four nights each fortnight during school term times, such time will not be highly destructive of the children because it would be highly destructive of the Mother.
The Mother has emotionally coped with the children spending , during school term times, four nights each fortnight with the Father, and she has adduced no health professional evidence relating to the Mother likely experiencing significant anxiety such as to impair her parenting capacity should the children spend increased time with the Father. She has not been receiving regular psychological treatment in relation to any contended anxiety in respect to the children spend time with the Father. The Mother continues to hold down full-time employment in a significant capacity with Employer B. In view of the Court, should the Court make the ICL’s proposed Orders, and the children spend increased time with the Father accordingly, the Mother should not experience such anxiety such as would adversely impact upon her parenting capacity for the children. There is a real prospect, with the passage of time and the children spending positive time with the Father pursuant to the ICL’s proposed orders, that the Mother will appreciate that her concerns in relation to the Father are without foundation.
The Court is not satisfied, on the balance of probabilities, that the Father assaulted the Mother on about 5 March 2016 as alleged by her. There are significant inconsistencies between the Mother’s version of events, including the photographs of her alleged right arm bruising relating to this alleged assault in Exhibit B, and the police narrative records in relation to the Mother’s reporting of this alleged assault in early January 2017. Those police narrative records are revealed, in particular, at pages 35, 36 and 37 in the ICL’s Tender Bundle, Exhibit G. For example, the photographs in Exhibit B are date stamped with separate dates in the first half of March 2016, whereas the police narrative indicates the Mother provided police with photographs of the alleged injuries being time stamped as 16 September 2016. Further, the police narrative refers to the Mother providing hard copy photographs of the alleged injuries which are not time stamped with there being no indications as to when those photographs were taken. The Court also takes into account that the alleged assault occurred on 5 March 2016 whereas the Mother first reported the alleged assault to the police on 2 January 2017. And finally the Father had denied perpetrating such assault.
The Court is not satisfied, on the balance of probabilities, that the Father, on other occasions, assaulted or threatened to assault the Mother as alleged by her. The Court does not accept, on the balance of probabilities, that the Father told the children that the Mother was the devil in about early July 2018 during supervised time.
The Court accepts the Father’s evidence relating to his alcohol consumption. The Court is not satisfied, on the balance of probabilities, that the Father is likely to drink alcohol excessively, or be adversely affected by alcohol, when the children are spending time with him. The Court refers to the police material evidence relating to the husband’s drink-driving on 17 December 2017. The Court observes in relation to that incident the Father was remorseful for committing the drink-driving offence and was cooperative with police.
The Court finds that the Father has not used property issues between the parties to control the family and nor has he sought to financially control the Mother, as alleged by her. The Court accepts the Father’s evidence in relation to these allegations.
The Court observes that the Family Report writer stated that there appeared to be no contra-indicators to the time the children spend with the Father progressively increasing in terms of his capacity to care for the children and provide for their needs. Again, the Court accepts the evidence of the Family Report writer.
In the view of the Court, taking the above discussed matters into account in particular, there will be no unacceptable or significant risk of harm posed to the children in spending time with the Father in accordance with the ICL’s proposed final Orders.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Mother alleges various statements made by X to the Mother, to the effect that X has experienced emotional unwellness having spent time with the Father, that she does not want to sleep at the Father’s house, that she becomes scared in relation to spending increased time with the Father, including increased overnight time. Again, the Court finds that the Mother has unreasonably projected her own anxieties in relation to the children spending time with the Father onto at least X such that X, a sensitive child, has at times aligned with the Mother, has taken on the emotional burden of the Mother’s anxieties, and expressed a reluctance to spend time with the Father.
The Court refers to the X’s statements to the Family Consultant at the CIC on 13 February 2018. There is a suggestion that the Mother was inappropriately involving this child in the parties’ dispute; for example, the CIC Memorandum records that X told the family consultant, “that sometimes Ms Denny says, “Do you remember when Dad punched me?” The Family Consultant then states that X stated, “that she did not recall this event, and thought that she may have been asleep.”
X told the Family Report writer that she used to feel afraid of her Father when she was smaller, but not so much now. She spoke positively of the Father to the Family Report writer. For example, she stated that when she misbehaves, which is not often, the Father calmly tells her and her brother not to act that way. This child stated that she loves her parents. She stated she would want her parents to be together. She stated she would like to stay with the Father for one evening per fortnight only as she misses the Mother too much.
Y told the Family Report writer that he would like to stay with the Father for a longer period of time. He stated that he loves his parents. He stated that nothing makes him scared.
The children were observed interacting with each parent during the Family Report observations. When the Father, for example, entered the room, the children were excited to see him and were openly affectionate towards him.
The Family Report writer stated that each of the children is of an age and level of maturity where their views should be given minimal weight. The Family Report writer stated in this context, inter alia, that both in the interviews for the CIC and in those conducted for the preparation of the Family Report, the children, especially X, expressed views about her living arrangements that echoed those of the Mother.
Further, the Family Report writer stated that, in relation to the child X’s disclosures about alleged family violence, there are indicators that the Mother, at least, has had conversations about the family violence with X which have now become part of X’s narrative of her family trajectory.
The Family Report writer observed that, in contradistinction to the views of X, the child Y expressed a desire to spend more time with the Father and did not seem as aligned with the Mother as X.
The Family Report writer stated that the child X’s statements to her about not wanting to extend the time she spends away from the Mother because she misses the Mother and is afraid the Mother may not be there on her return, seem to reflect those of the Mother that the Father may be a flight risk, and tend to be irrational as there has not been any attempt on the Father’s part to withhold the children. The Family Report writer expressed her concern that X’s reasons for not wanting to extend the time she spends with the Father appear to meet more of the Mother’s needs than her own.
The Court, again, accepts the evidence of the Family Report writer. The Court does not place significant weight on the children’s views in relation to the amount of time they wish to spend with the Father.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration.
The children enjoy positive relationships with their grandparents.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties would appear to have each taken such opportunities.
(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
Both parties appear to have maintained the children whilst they were in each parties’ respective care post separation. It appears the Father pays regular child support. The Family Report writer stated in the Family Report that the Mother currently receives $2,000 per month child support from the Father.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations. There should be no detrimental impact upon the children’s meaningful relationship with the Mother should the children spend time with the Father as discussed above under the meaningful relationship primary consideration. This will particularly be the case should the Mother positively support the children spending such time with the Father.
(e) The practical difficulty and expense of a child spending time with and communicating with the 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
Not applicable
(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
The Mother, post separation, and up to about February 2018, failed to facilitate the children spending regular time with the Father; this indicated limited insight into the emotional needs of the children, particularly bearing in mind the children’s love and affection towards the Father.
The Court refers to its discussions above under the primary considerations in relation to the Mother’s unreasonable projection of her own anxieties onto at least X such that X, a sensitive child, has at times aligned with the Mother, has taken on the emotional burden of the Mother’s anxieties, and expressed a reluctance to spend time with the Father.
The Mother contends that the children, in particular X, will not be able to complete their school homework if they continue to spend time with the Father during school term times as is occurring now, or indeed if they spend increased time during school term times as proposed by the Father and the ICL. The Court does not accept these contentions. The Court accepts the Father’s evidence and submissions in relation to this issue. The Court also accepts the ICL’s submissions and the evidence of the Family Report writer in this context.
The Court does not accept, on the balance of probabilities, the Mother’s evidence in relation to a homework incident between X and the Father relating to, inter alia, the breaking of a pencil; in any event, this was an incident that allegedly occurred some years ago. The Court finds that the Father has been and is willing and able to assist the children with their homework. In any event, it is to be expected that the children, in particular, the older child X, should be able to carry out their school homework independently, albeit with encouragement from the parent carer, and not require regular parental involvement in its completion. The evidence of the Family Report writer is consistent with this view.

Otherwise, the parties would appear to have such capacities.
(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
The Court refers to its discussions above under the primary considerations and additional considerations.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: 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 the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the primary considerations.
Again, the Mother, post separation, and up to about February 2018, failed to facilitate the children spending regular time with the Father.
The Mother failed to include the Father’s details on the children’s school enrolment forms, as previously referred to in the evidence.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the need to protect primary consideration.
(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: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter
There was a previous AVO in place against the Father for the protection of the Mother. The Court refers to its discussion of the evidence in relation to AVO proceedings.
(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
The Court is of the view that the ICL’s proposed final parenting Orders, in contradistinction to the Mother’s proposed final parenting Orders, would be least likely to lead to the institution of further proceedings in relation to the children. In this regard, the Court refers to its discussions above under the primary considerations; in particular, and again, if there is a reduction in the children’s time spent with the Father there is a significant risk that the children’s meaningful relationship with the Father will be detrimentally affected.
m) Any other fact or circumstance that the Court thinks is relevant
Not applicable.
PARENTAL RESPONSIBILITY
The parties both seek an Order for equal shared parental responsibility in relation to the children.
The Mother has been the children’s primary carer from birth to date. The parties’ communication in the past has been unsatisfactory however since about December 2020 and to date the parties’ communication through SMS messages to each other has been improving and has been quite satisfactory. Historically, the parties’ level of trust between each other has been quite unsatisfactory, albeit that the parties have been facilitating the children spending time with the Father pursuant to the Court’s previous interim orders 29 May 2020.
It will not be in the best interests of the children to be subject to an equal time parenting arrangement; whilst the parties’ communication with each other in relation to the children, as referred to above, has improved, their co-parenting relationship and level of trust between each other is probably insufficient to permit an equal time relationship to work successfully. The evidence of the family report writer is consistent with this view.
The ICL’s proposed time-with orders will probably constitute substantial and significant time with the children, and will be in the best interests of the children. In passing, it will probably be reasonably practicable for equal time or substantial and significant time-with orders to be made.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
1.All previous parenting Orders be discharged.
2.That the Mother and Father shall have equal shared parental responsibility for the children X born in 2010 and Y born in 2012.
3.That the children shall live with the Mother.
4.That the children shall spend time with the Father as follows:
(a)During school terms, from the conclusion of school or 6pm if a non-school day on Friday until the commencement of school or 8.30am of a non-school day the following Wednesday, and each alternate week thereafter.
(b)At all other times as agreed between the parties in writing.
School Holidays
5.That the Children shall spend time with the Parties during the Children's Term 1, 2 and 3 school holiday periods as follows:
(a)In odd-numbered years, with the Mother from the conclusion of the last day of the Children's school term for a period of seven consecutive nights thereafter, concluding with the Parties conducting changeover on the eighth day at 5pm where the Father shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term; and
(b)in even-numbered years, with the Father from the conclusion of the last day of the Children's school term for a period of seven consecutive nights thereafter, concluding with the Parties conducting changeover on the eighth day at 5pm where the Mother shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term.
6.That the Children shall spend time with the Parties during the Children's Term 4 school holiday periods in equal shares as agreed or failing agreement as follows:
(a)In odd-numbered years, with the Mother from the conclusion of the last day of the Children's school Term 4 for a period of nineteen consecutive nights thereafter and on the twentieth day the Parties shall conduct changeover at 6pm where the Father shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term; and
(b)in even-numbered years, with the Father from the conclusion of the last day of the Children's school Term 4 for a period of nineteen consecutive nights thereafter and on the twentieth day the Parties shall conduct changeover at 6pm where the Mother shall then spend time with the Children until 7pm on the day immediately prior to the Children's first day at school the following school term.
7.That notwithstanding any other order to the contrary, the Children shall spend the following special occasions with each of the Parties respectively unless they are already doing so at the time:
Mother's Day
(a)With the Mother, from 9am until 8pm on Mother's Day.
Father's Day
(b)With the Father, from 9am until 8pm on Father's Day.
The Mother’s Birthday
(c)With the Mother on the Mother's birthday from the conclusion of school until 8pm or if on a non-school day then from 10am until 8pm.
The Father’s Birthday
(d)With the Father on the Father's birthday, from the conclusion of school until 8pm or if on a non-school day then from 10am until 8pm.
Children’s Birthday’s
(e)With the party not otherwise spending time with the Children on their respective birthdays where the Children shall move together between the Parties and not individually:
(i)if a school day, from the conclusion of school until 8pm; or
(ii)it a non-school day, from 5pm on the day before the Children's birthday until 12pm the next day.
Easter
(f)During Easter long weekend, in the event it does not coincide with the Children's Term 1 school holiday period:
(i)In odd-numbered years, with the Father from 10am on Good Friday until 5pm on Easter Saturday and with the Mother from 5pm on Easter Saturday until 5pm on Easter Monday;
(ii)in even-numbered years, with the Mother from 10am on Good Friday until 5pm on Easter Saturday and with the Father from 5pm on Easter Saturday until 5pm on Easter Monday.
Christmas
(g)During the Christmas period as follows:
(i)in odd-numbered years, with the Father from 5pm on Christmas Eve until5pm on Christmas Day and with the Mother from 5pm on Christmas Day until 5pm on Boxing Day;
(ii)In even-numbered years, with the Mother from 5pm on Christmas Eve until5pm on Christmas Day and with the Father from 5pm on Christmas Day until 5pm on Boxing Day,
8.That the Father be at liberty of communicating with the Children by phone and/or video conferencing (such as FaceTime) each alternate day between 6 - 6:30pm and the Mother shall facilitate such communications by ensuring the Children are available and her phone charged ready to accept same.
9.That further to the immediate preceding order, the Parties shall not hinder, prevent or discourage the Children from initiating or accepting communication from the other party at all reasonable times and, for the purposes of same, the Parties shall do all acts and things necessary to ensure their mobile telephones (until such time as the Children have their own mobile telephones) are able to accept communication from the other party.
Changeover
10.That for the purpose of facilitating changeover other than on those occasions when either party collects or returns the Children to or from school, the parties are to collect and deliver the Children to and from McDonald's Suburb K, unless otherwise agreed between the Parties in writing.
Miscellaneous
11.That in the event that either party is unable to spend time with the Children pursuant to any of the above Orders, that party shall notify the other by way of text message as soon as reasonably practicable, and the other party shall have the option of caring for the Children during the said period.
12.That the Parties shall keep each other informed of any change to their residential addresses, landline numbers, mobile telephone numbers and personal email addresses within 24 hours of such change taking place.
13.That the Parties shall communicate and promptly respond to each other by phone, email or text message in a respectful and conciliatory manner as and when reasonably practicable or necessary and limit such communication to issues concerning the Children.
14.That each party shall ensure the other is advised promptly of any medical emergency or significant illness suffered by, or relating to, the Children including sufficient details to enable both parties to be consulted and fully advised regarding such illness or condition and any treatment.
15.That the Mother shall notify the Father as soon as practicable of any significant events occurring in the Children's lives including but not limited to parent/teacher interviews, sporting events and invitations received by or on behalf of the Children.
16.That the Parties, as and when requested, shall forthwith do all acts and things and sign all documents necessary to ensure each of them receives a copy of the Children's school reports, newsletters and other relevant notices issued by their school.
17.That neither party shall denigrate the other party or anyone associated with that party in the presence or hearing of the Children, and shall forthwith remove them from any third party doing so.
18.That neither party shall interrogate the Children about events or conversations in the household of the other party or use corporal punishment to discipline the Children or allow a third party to do so.
19.That neither party shall harass the other about making changes to these Orders once made.
20.That neither party shall discuss with the Children these proceedings, or change to these orders, or permit any other person other than an Independent Children's Lawyer (if appointed) to do so.
21.That the Parties shall be at liberty to provide a copy of these Orders to any third party necessary to ensure compliance with these Orders or as required.

I certify that the preceding two hundred and eleven (211) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 25 November 2021

File number(s):	PAC 5587 of 2017
Judgment of:	JUDGE NEWBRUN
Date of judgment:	25 November 2021
Catchwords:	FAMILY LAW – Parenting – best interests of children – Orders made.
Legislation:	Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65D, 65DAA
Cases cited:	B & B (1986) FLC 91-758
Division:	Division 2 Family Law
Number of paragraphs:	211
Date of last submission/s:	11 October 2021
Date of hearing:	12, 13, 14 July 2021 and 11 October 2021
Place:	Parramatta
Counsel for the Applicant:	Ms De Vere of Counsel
Counsel for the Respondent:	Mr Heazlewood of Counsel
Counsel for the Independent Children’s Lawyer	Ms Friedlander of Counsel

PAC 5587 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR BARTLETT Applicant
AND:	MS DENNY Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	25 NOVEMBER 2021