Bartram & Marsden - [2023] FedCFamC1F 644

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bartram & Marsden [2023] FedCFamC1F 644

File number(s): SYC 6927 of 2019

Judgment of: CURRAN J

Date of judgment: 14 August 2023

Catchwords: FAMILY LAW – PARENTING – whether an order should be made for equal shared parental responsibility – where the parents have no capacity to communicate – where the father has a history of poor mental health - whether the father’s mental health poses a risk to the children – where there are allegations of coercive and controlling family violence – whether the father’s conduct amounts to family violence under the Act – whether the father’s time with the children should occur each Saturday – whether orders should be made to permit overseas travel – whether overseas travel should be prohibited until the children attain an older age – whether the mother should be permitted to apply for passports for the children – where orders made for sole parental responsibility – where orders made permitting the children to travel overseas

Legislation:
Australian Passports Act 2005 (Cth) s 11

Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B 68B, 68C, 65DAA, 65DAC, 65Y

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:
Amador & Amador (2009) 43 Fam LR 268

Briginshaw v Briginshaw (1938) 60 CLR 336

Carter & Wilson [2023] FedCFamC1A 9

Eagleton & Eagleton [2019] FamCA 894

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Halifax & Fabian [2010] FamCA 1212

Illgen & Yike [2018] Fam CA 17

Isles & Nelissen (2022) 65 Fam LR 288

Jones v Dunkel (1959) 101 CLR 298

Keenan & Keenan [2023] FedCFamC1F 186

M v M (1988) 166 CLR 69

Marvel & Marvel (2010) 43 Fam LR 348

Olivier & Olivier [2020] FamCA 639

Ramzi & Moussa [2022] FedCFamC2F 1473

Division: Division 1 First Instance

Number of paragraphs: 279

Date of hearing: 11-14 April 2023

Place: Sydney

Counsel for the Applicant: Mr Richardson

Solicitor for the Applicant: Lander & Rogers

Counsel for the Respondent: Mr Reeves

Solicitor for the Respondent: Hillcrest Family Lawyers Pty Ltd

Solicitor Advocate for the Independent Children’s Lawyer: Ms Karagiannis

Solicitor for the Independent Children’s Lawyer: Legal Aid NSW
ORDERS

SYC 6927 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR BARTRAM

Applicant

AND:
MS MARSDEN

Respondent

INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

CURRAN J

DATE OF ORDER:

14 AUGUST 2023

THE COURT ORDERS BY CONSENT THAT:
1.The children live with the mother.
2.The children spend time with the father at any times not specified in orders of the court as agreed between the parties in writing.

School Holidays
3.Commencing from term 1 2024 the children shall spend time with their parents during school holidays as follows, provided the father has complied with Orders 12 to 14:
(a)In the school holiday period immediately following the father’s compliance with Orders 8 and 9, with the father from Friday after school (or 3pm on a non-school day) to Monday 9am, and the balance to be spent with the mother;
(b)In the next school holiday period following Order 3(a), from Friday after school (or 3pm on a non-school day) to Tuesday 9am, and the balance to be spent with the mother;
(c)In the next school holiday period following Order 3(b) from Friday after school (or 3pm on a non-school day) to Wednesday 9am, and the balance to be spent with the mother;

Special Occasions
4.Notwithstanding these Orders the children will spend time with father on the following special occasions:
(a)On Father’s Day from 9am Sunday to Monday before school or daycare (or 9am on a non-school day);
(b)In odd numbered years from 9am on Christmas Eve to 11am on Christmas Day; and
(c)In even numbered years from 11am on Christmas Day to 5pm on Boxing Day.

5.Notwithstanding these Orders the children will spend time with mother on the following special occasions:
(a)On Mother’s Day from 9am Sunday to Monday before school or daycare (or 9am on a non-school day);
(b)In even numbered years from 9am on Christmas Eve to 11am on Christmas Day; and
(c)In odd numbered years from 11am on Christmas Day to 5pm on Boxing Day.

Changeover
6.For the purposes of changeover, the father or his agent is to:
(a)Collect and return the children from their day-care or school on school days.

Communication
7.The parties shall communicate using the My Family Wizard Application except in the event of an emergency where the parties may contact each other by SMS/text messaging.

Courses
8.Within 7 days from the date of these Orders, the father shall do all acts and things necessary to enrol into a men’s behavioural change course (such as B Support Services’ ‘Taking Responsibility - Men’s Behaviour Change Program in NSW’) or C Support Services’ ‘Men’s Behaviour Change Program’) and thereafter do all acts and things necessary including payment of fees to complete intake assessment and complete the program.
9.Upon the father’s completion of the men’s behavioural change course as provided for in Order 8 herein, the father is to, as soon as practicable, provide to the mother a certificate of completion by email.
10.Within 7 days from the date of these Orders, the parties shall do all acts and things necessary to enrol into B Support Services’ ‘Parenting After Separation - Focus on Kids’ course and thereafter do all acts and things necessary including payment of fees to complete the program.
11.Upon the parties’ completion of the parenting after separation course as provided for in Order 10 herein, the mother is to, as soon as practicable, provide to the father a certificate of completion by email.

Father’s review
12.From the date of these Orders until X completes year 7 in 2030 the father will continue to attend on Dr E or another psychiatrist (‘the father’s psychiatrist’) for review every six (6) months and the father is to provide to the mother certification of attendance upon the father’s psychiatrist.
13.The father shall authorise the father’s psychiatrist to notify the mother and the paternal grandmother in the event that any of the following occur:
(a)The father shows symptoms of relapse and has no insight into those symptoms and their treatment.
(b)The father fails to attend upon any scheduled appointments for review or treatment as recommended by the father’s psychiatrist.

14.In the event the father’s psychiatrist provides information that suggests impairment of the father’s mental health in accordance with Order 13 herein, the father’s time with the children is suspended until such time as he provides medical evidence of having maintained stable mental health.

Restraints/Injunctions
15.The father is permitted to attend the children’s school events and extra-curricular activities and both parties are restrained from approaching the other if both parties are in attendance.
16.The father is restrained from requesting information relating to the mother’s residence from any person or organisation whom he knows holds the mother’s address.
17.Each party is restrained from denigrating the other parent or members of the other parent’s family to the children or in the presence or hearing of the children or permitting any other person to do so.
18.Each party is restrained from passing messages through the children to the other parent.
19.Each party is restrained from recording changeovers.
20.Each party is restrained from discussing the proceedings with the children, and each of them shall do all things necessary on his/her part to ensure that no other person discusses the proceedings with the children.
21.Each party is restrained from interrogating the children or either of them in relation to events and or conversations that have occurred in the home of the other parent.
22.Each party is restrained from enrolling the children in any extra-curricular activities that would interfere with the time the children are spending with the other parent pursuant to these Orders unless otherwise agreed in writing.
23.The parties are restrained from offering their respective homes for Airbnb or similar short-term homestay when the children are in their care and they are staying at the home.
24.Each party is restrained from moving with the children outside the greater Sydney metropolitan area.

THE COURT FURTHER ORDERS THAT:
Parental responsibility
25.The mother have sole parental responsibility for the children.
26.If the mother proposes a change in X or Y’s life which requires exercising parental responsibility as to a long-term issue, then except in the case of an emergency:
(a)The mother shall notify the father in writing of the proposed decision about the issue not less than 28 days before making the decision; and
(b)The father shall be at liberty to provide his views about the issue to the mother, such views to be provided in writing to the mother within 14 days of receiving the mother’s notification; and
(c)The mother shall consider the views of the father when making the decision about the issue, but shall not be required to act in accordance with those views; and
(d)The mother is to inform the father in writing of her final decision on the issue.

Authorisations
27.The mother will authorise for any medical practitioner, dentist, counsellor or other health professional who treats X and/or Y to provide information to the father upon request by the other parent, to the extent permitted by law.
28.The mother will authorise for the father to directly communicate with the children’s school, day-care, sporting bodies and/or extra-curricular organisation to obtain any necessary information about the children’s progress including obtaining a copy of school reports, newsletters, photograph order forms and invitations to attend any activities which parents are invited to attend.

Spend time orders - during school term
29.Subject to compliance with Orders 12 to 14, the children shall spend the following time with the father:
(a)From the date of these Orders until the father’s compliance with Orders 8 and 9 herein:
(i)Each Wednesday from after school or daycare (or 3pm on a non-school day) to Thursday before school or daycare (or 9am on a non-school day); and
(ii)Each Saturday from 9am to 5pm.

(b)From the date of compliance with Orders 8 and 9 herein until 31 December 2023:
(i)In week 1 each Wednesday from after school or daycare (or 3pm on a non-school day) to Thursday before school or daycare (or 9am on a non-school day).
(ii)In week 2 each Friday from after school or daycare (or 3pm on a non-school day) to Sunday at 5pm

(c)From 1 January 2024 and thereafter:
(i)In week 1 each Wednesday from after school or daycare (or 3pm on a non-school day) to Thursday before school or daycare (or 9am on a non-school day).
(ii)In week 2 each Friday from after school or daycare (or 3pm on a non-school day) to Monday before school or daycare (or 9am on a non-school day).

Spend time orders - during school holidays
30.The children shall spend time with their parents during term school holidays commencing in 2024, provided the father has complied with Orders 8 and 9 as follows:
(a)Following Order 3(c), for one half of the Term 1, 2 and 3 school holiday periods thereafter, the first half with the father and second half with the mother in even numbered years, and first half with the mother and second half with the father in odd numbered years;
(b)Following Order 30(a), for one half of the Term 4 Christmas school holiday periods thereafter, with each parent in alternate weeks:
(i)In odd numbered years, commencing with the mother in the first week.
(ii)In even numbered years, commencing with the father in the first week.

Special occasions
31.On each of the children’s birthdays, if the children have not spent time with one of the parents, the children will spend time with the parent whose care they are not otherwise in from the conclusion of school or day-care until 6pm, or from 12noon to 5pm on a non-school day.
32.The children will spend time with the father if not otherwise in the father’s care on the father’s birthday from the conclusion of school or day-care until the commencement of school the following day, or on a non-school day from 3pm until 9am the following day.
33.The children will spend time with the mother if not otherwise in the mother’s care on the mother’s birthday, as agreed between the parties.

Communication
34.The parties shall facilitate telephone communication between the children and the other parent at any reasonable time requested by the children.

Changeover
35.For the purposes of changeover that do not take place at school, the father or his agent is to collect and return the children from the mother or her agent on non-school days at the entrance of D Store at F Shopping Centre (in the event that the store is no longer known as “D Store”, then at the same historical geographical location of D Store at F Shopping Centre).

Passports
36.For the purposes of section 11 of the Australian Passports Act 2005:
(a)The children X born 2017 and Y born 2019 are each permitted to have an Australian passport or travel-related document provided the application for that document (or renewal) is made by the mother, Ms Marsden, who may sign any declaration on the application in the form approved by the relevant Minister, and the consent of the father, Mr Bartram, is not required; and
(b)The father is restrained from making an application for an Australian passport or other travel-related document for the children; and
(c)The mother is to pay the costs of the children’s passports; and
(d)The children’s respective passports are to be released to and held by the mother.

Overseas Travel
37.The names of the children, X born 2017 and Y born 2019 be removed from the Family Law Watchlist.
38.Pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth) the mother shall be entitled to take the children or cause for the children to be temporarily removed, to the United Kingdom, without obtaining the written consent of the father, during the long term 4 school holidays for 2023 to 2024 and each alternate year thereafter, provided that:
(a)The mother provides the father notice of intended travel in writing not less than 6 weeks prior to departure for the holiday period in 2023/2024, and at all other times not less than 6 months prior to intended departure, with written details of the information contained in Order 44 below;
(b)The travel does not exceed a maximum of 21 days in duration;
(c)The children will not be overseas on Christmas Eve, Christmas Day or Boxing Day;
(d)The children shall communicate with the father by telephone or video call not less than twice per week during the holiday at times agreed between the parties and failing agreement at 8.30am in London time (GMT)/ 7.30pm Sydney time (AEDT); and
(e)The father spends make up time with the children upon their return as agreed between the parties, and failing agreement, pursuant to order 43 below.

39.The father’s time with the children will be suspended for any period that the mother takes the children to the United Kingdom during the 2023 to 2024 school holidays.
40.After the term 4 school holidays for 2023 to 2024, pursuant to Section 65Y(2) of the Family Law Act 1975 (Cth) both parties shall be entitled to take the children or cause for the children to be temporarily removed, to a place outside of the Commonwealth of Australia, provided the parent that wishes to take or send the children to a place outside of the Commonwealth of Australia (“the travelling parent”) providing the information set out at Order 44 below to the other parent (“the non-travelling parent”), upon, and provided that such travel:
(a)Does not exceed a maximum of 21 days in duration;
(b)Only occurs once each alternate calendar year;
(c)Occurs when the children would otherwise be in the care of the travelling parent; and
(d)Occurs only during the children’s school holiday periods; unless otherwise agreed to by the parties in writing.

41.In the event that the travelling parent seeks to take or send the children to a place outside of the Commonwealth of Australia, then the travelling parent must first provide to non-travelling parent at least six (6) months’ written notice prior to the intended departure date for the travel, with written details of the following:
(a)The names of all places outside of the Commonwealth of Australia where it is proposed that the children are to travel (being countries, cities and towns);
(b)The proposed dates and itinerary of travel, including departure and arrival dates to and from each country to which it is intended travel occur; and
(c)The contact telephone numbers and addresses for all the places where it is proposed that children will be staying overnight when outside of the Commonwealth of Australia.

42.If the travelling parent is the father and he gives notice in accordance with these Orders, the mother shall release the children’s Australian passports to the father not less than fourteen (14) days before the date of intended departure, and the mother shall sign all documents necessary for the children to travel with the father, including any visa application. Within seven (7) days upon the children’s return to Australia following each overseas trip, the father shall return the children’s passports to the possession of the mother.
43.In the event that the travelling parent gives notice in accordance with these Orders, the non-travelling parent is at liberty to spend make up time with the children upon their return as agreed, if the non-travelling parent’s time is disrupted by the travel.
44.Not less than 3 months prior to the proposed date of the children’s departure from the Commonwealth of Australia, the travelling parent must provide to the non-travelling parent the following further documents and information in writing:
(a)Copies of all return airline and/or shipping tickets for the children which evidence the children’s return to Australia;
(b)A copy of the relevant travel insurance policy verifying that whilst the children are travelling outside of the Commonwealth of Australia they are listed and covered on valid travel insurance policy for the duration of the time they are overseas;
(c)Copies of all written itineraries for the actual overseas travel; and
(d)Details in writing confirming the contact telephone numbers upon which the children may be contacted whilst overseas and details in writing all addresses of the places where the children will be staying overnight when outside the Commonwealth of Australia.

45.Both parties by themselves, their servants and their agents shall be restrained from removing or attempting to remove the children from the Commonwealth of Australia to any country or countries which are not signatories to the Convention on the Civil Aspects of International Child Abduction signed at the Hague Convention on 26 October 1995 OR which fall within a region or regions for which a current ‘Level 3 - Exercise a high degree of caution’ equivalent or higher travel advisory warning against all travel and all nonessential travel to such region or regions has been issued by the Australian Government Department of Foreign Affairs and Trade from time to time.

Restraints
46.Pursuant to section 68B of the Family Law Act 1975 the father, Mr Bartram, born 1986, be and hereby is restrained by way of injunction from approaching or coming within 100 metres of the mother’s residence and place of work NOTING this is an Order to which the power of arrest without warrant attaches pursuant to section 68C of the Family Law Act 1975.
47.The parties are restrained by way of injunction from booking activities or medical appointments or otherwise making arrangements with the children during the other party’s time, except by prior written agreement.

Extra-curricular activities
48.As far as practicable, each party will use their best endeavours to ensure the children’s attendance at their summer and winter team sports, during the weekends that they are with each parent.

Independent Children’s Lawyer’s Costs
49.Within 28 days the father is to pay to Legal Aid NSW the sum of $8,856.76 for the Independent Children’s Lawyer’s costs. The Court notes that the mother is in receipt of a grant of Legal Aid in these proceedings.
50.The Independent Children’s Lawyer is hereby discharged.

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

These proceedings concern the time that the two children of the parties, X, born 2017 (almost 6 years of age) and Y, born 2019 (4 years of age) (“the children”) will spend with their father. The parties are also in dispute in relation to parental responsibility and several specific issues including changeover location and overseas travel.
The mother sought orders for sole parental responsibility and that the father spend time with the children three nights each fortnight in a block each alternate weekend from Friday to Monday, subject to regular psychiatric reviews and completion of a Men’s Behaviour Change course. The ICL essentially sought orders to the same effect as the mother’s application. The father consented to orders for regular psychiatric review and to undertake the course. The father sought orders for equal shared parental responsibility; to spend time for four nights each fortnight, but the time occur each weekend plus alternate Wednesday nights and increasing school holiday time.
BACKGROUND
X and Y are the children of the applicant father, Mr Bartram (“the father”) and the respondent mother, Ms Marsden (“the mother”). The parents commenced a relationship in mid-2016 and began cohabitation in early 2017. The parties separated on a final basis on 27 August 2019.
The children currently spend time with their father each Wednesday overnight and on Saturday for the full day, in accordance with current Orders of a Senior Judicial Registrar dated 7 April 2021. On Wednesdays, changeover occurs at the school and childcare centre. On Saturdays, the changeover occurs at a train station.
The mother left the former matrimonial home with the children on 27 August 2019. At the time of separation, the children were under three years of age.
There has been no family violence orders made in this matter and no casework involvement from the Department of Communities and Justice (“the Department”).
Proceedings were commenced by the father by way of filing an Initiating Application on 15 October 2019. Interim orders were made on the following dates as set out below, on each occasion increasing the time the father spends with the children.
On 13 November 2019, a Senior Registrar (as he then was) made interim orders for the children to spend time with the father each Saturday for two hours, supervised by the paternal grandmother.
On 17 December 2019, the Senior Registrar made interim orders for the children to live with the mother and spend time with the father three times per week for two hours on each occasion, to be supervised by the paternal grandmother. On this occasion an independent children’s lawyer (“ICL”) was also appointed.
On 7 October 2020, the Senior Registrar, in dealing with the father’s application in a proceeding filed on 7 September 2020 in which he sought orders for increasing time with the children, made interim orders that the children spend time with the father each Saturday and Sunday from 9am until 1pm, for two hours each Wednesday afternoon, and from 9 am until 2pm on Christmas day that year, supervised by the paternal grandmother.
On 7 April 2021, a Senior Registrar (as she then was) made interim orders that the children spend time with the father: for a period of six weeks from 9am until 2pm each Saturday and two hours each Wednesday afternoon; after that six week period from 9am until 5pm each Saturday and two hours each Wednesday afternoon; and from February 2022 from 9am until 5pm each Saturday and from 4pm each Wednesday until 10am each Thursday, with the paternal grandmother to attend on the first six occasions of overnight time. The Senior Registrar also made orders for the father to have time with the children on their birthdays and on Christmas day.
On 15 September 2022, a Judicial Registrar made orders by consent that the father shall spend time with the children from after school/day care on Wednesday until before school/day care on Thursday, commencing after the first Wednesday that the oldest child commences school in 2023.
On 4 November 2022, Altobelli J listed the matter for final hearing in April 2023.
The final hearing of this matter took place from 11 to 14 April 2023.
ISSUES
Matters resolved by consent
A number of issues that existed at the commencement of the trial were resolved by consent by the end of the trial. Those areas of agreement were:
(a)That the children will live with their mother;
(b)That the children will spend time with their father during school term (although no agreement reached as to whether it is 3 or 4 days a fortnight or the configuration of the weekend days);
(c)That there will be some progression of time spent with their father over the school holiday periods and on particular special days (although there was no agreement on that progressing past five nights in any block);
(d)That the father will undertake regular medical reviews with his treating psychiatrist;
(e)As to the means of communication between the parties; and
(f)Certain orders in respect of restraints, injunctions and courses to be undertaken.
The Father’s Mental Health
A significant matter in dispute that was able to be resolved between the parties was the issue of whether the father presents an unacceptable risk of harm to the children as a result of his mental health issues. It is not in contest that the father has had mental health issues prior to the parties’ relationship, that he received treatment at the time and that he did not inform the mother of those past issues.
The mother’s evidence was that she had been “walking on eggshells” prior to separation as she observed the father to become very rude, argumentative and authoritative. The mother’s evidence was that she believed he has personality disorders rather than mental illness, and she maintained these concerns despite the opinions she had received and read from the father’s treating psychiatrist Dr E and Dr G, the single expert (“the expert”). Ultimately with the father consenting to orders that he continue to be reviewed every six months, as recommended by the single expert, that issue was resolved prior to the conclusion of the trial. I make the orders as sought by consent as I was persuaded by the opinion of Dr G as referred to below that the orders are an appropriate way to manage the low but relevant risk presented by the father’s historical mental health issues.
Dr E’s evidence was that the father is not suffering from any current psychiatric condition. Dr E opined that the father is in good mental health and his opinion was not in contest. He was not required for cross examination. I accept his evidence and give it weight.
I find, and I note it is not in dispute, that the father’s mental health history presents a low but relevant unacceptable risk of harm to the children. Dr G undertook a full psychiatric assessment as the single expert and found that the father has good insight into his mental health. The father recently experienced significant stressors including these proceedings and the death of his father. Notwithstanding these matters he remains in a good mental state in the opinion of his treating psychiatrist and the single expert.
I note that despite the opinions of Dr E and Dr G that the mother raised her concern that the father may have an undiagnosed personality disorder or mental health issue. There was no evidence to support this contention and it was not put to the court child expert or single expert.
It is agreed between the parties and I find on the evidence that the low, but relevant risk, can be ameliorated by the regular attendance by the father upon his treating psychiatrist with the mother being advised of any symptoms of relapse and if the father fails to attend upon any scheduled appointments.
Issues in dispute
The issues that remained in dispute between the parties were as follows:
(a)Whether there should be equal shared parental responsibility or sole parental responsibility;
(b)What time the children should spend with the father, specifically whether the split weekend regime every weekend that occurs presently should continue;
(c)What the changeover location should be when not at school/daycare;
(d)Whether and when overseas travel should be permitted; and
(e)Whether certain restraints should be ordered.
MATERIAL RELIED UPON
Applicant Father
The father relied upon the following documents, as set out in his Case Outline Document:
(a)Amended Initiating Application filed 5 April 2023;
(b)Affidavit of Dr E filed 15 October 2019;
(c)Affidavit of the father regarding non-filing of FDR Certificate filed 15 October 2019;
(d)Notice of Child Abuse, Family Violence or Risk of Family Violence filed 15 October 2019;
(e)Affidavit of Dr E filed 12 December 2019;
(f)Affidavit of Dr E filed 26 August 2020;
(g)Report of Dr G filed 5 November 2020;
(h)Affidavit of the father filed 5 April 2023;
(i)Affidavit of the parental grandmother Ms H filed 5 April 2023;
(j)Affidavit of the paternal aunt Ms J filed 5 April 2023;
(k)Family Report of Court Child Expert Ms K dated 28 March 2023;
(l)Letter of Dr E dated 6 April 2023 (Exhibit 2); and
(m)Case Outline Document filed 6 April 2023.
Respondent Mother
The mother relied on the following documents, as set out in her Case Outline Document:
(a)Amended Response to Initiating Application filed 3 April 2023;
(b)Affidavit of the mother filed 5 April 2023;
(c)Affidavit of Ms L filed 5 April 2023;
(d)Affidavit of Ms M filed 5 April 2023;
(e)Affidavit of Ms N filed 28 September 2020;
(f)Notice of Child Abuse, Family Violence or Risk of Family Violence filed by the mother on 4 December 2019;
(g)Family Report of Court Child Expert Ms K dated 28 March 2023; and
(h)Case Outline Document filed 6 April 2023.
Independent Children’s Lawyer
The Independent Children’s Lawyer relied on the following documents, as set out in her Case Outline Document:
(a)Family Report of Court Child Expert Ms K dated 28 March 2023;
(b)Child Dispute Conference Memorandum of Ms O dated 23 October 2019;
(c)Report of Dr G filed 5 November 2020; and
(d)The Independent Children’s Lawyer’s tender bundle.
Expert Evidence
Evidence of the CDC Memorandum writer - Family Consultant Roberta Freedman
A Child Dispute Conference Memorandum, prepared by Family Consultant Ms O dated 23 October 2019, recorded the mother’s allegations that the father had perpetrated emotional and controlling family violence against her, and raised her concerns about the father’s mental health. An example provided by the mother to Ms O was her allegation that the father put tape on her car doors and boot to be able to detect if she had gone out.
The father was candid with Ms O and disclosed that he had experienced serious mental health episodes from late 2012 to mid-2013, which included admissions to a mental health unit, and that he did not tell the mother about this history. He advised Ms O that he had attended a psychiatrist after separation for assessment and was not diagnosed with any mental health problems. Ms O did not interview the children due to their young ages. Ms O recommended that, given the children’s extremely young ages, their safety should be prioritised and whilst it is concerning that their relationship with the father has been disrupted, it may be appropriate for time to occur at a contact centre. She also recommended that an ICL be appointed and that a comprehensive psychiatric assessment of the father be prepared.
Ms O was not called to give evidence at the final hearing.
Evidence of the single expert - Dr G
Dr G, psychiatrist prepared a psychiatric assessment of the father dated 5 November 2020. In preparation for the report he interviewed both the mother and the father in person on 21 October 2020, and again by phone on 30 October 2020.
His report records, and I note it was not in dispute, that the father displayed acute symptoms of a mental illness in late 2012 to mid-2013 and was hospitalised on two occasions during this period. The father described himself in relation to his latter admission to hospital in 2013 as “completely delusional”. He notes that the father ceased taking medication in mid-2014 and has not had any medication or treatment since, although he attended a psychiatrist for assessment after discovering that the mother had left as she suspected his mental health was declining. The expert reported that there is ample documentation that around that time in late 2012 to mid-2013 the father was experiencing typical symptoms of a mental illness and that his family accepted him to be ill.
His report records that the mother fears the father’s unpredictable reactions and what she alleged to be emotional and controlling family violence. She reported to Dr G that the father never divulged to her that he had prior mental health problems and “expressed confusion over what behaviours were due to poor mental health and what was due to family violence.” She reported that the father had a history of mental illness and throughout their relationship “was like a different person at times.”
Dr G opined that “there is a low but relevant risk that [the father] may suffer a relapse of the mental illness but that there is no indication that this is imminent at the moment”. The expert was of the view that it would be wise for the father to continue seeing a psychiatrist for early recognition and treatment of relapse and that orders for time with the children should contain a mechanism to “pause” time in the event that the father does not have insight that he is relapsing until he has recovered.
Dr G gave oral evidence at the hearing where he maintained that opinion.
By the conclusion of the hearing the father consented to orders, as recommended by the expert, that he be regularly reviewed by a treating psychiatrist. Noting that this accorded with the recommendations of Dr G and that such an order, in my view, ameliorates the risk identified by Dr G of a relapse, I find it is appropriate to make such orders.
Evidence of the Family Report writer - Court Child Expert Ms K
The Family Report dated 28 March 2023 was prepared by Ms K, the court child expert (“court child expert”), at a time when the father was spending time with the children on Wednesdays overnight and for the full day each Saturday. In preparation of the report the court child expert interviewed the mother, the father, the maternal grandmother, assessed both children in person, and observed the children with the father and with the mother.
The report records the mother’s reports of the father’s behaviour prior to separation, including that she felt “terrified” when she left the family home following the father’s drastic mood changes and erratic behaviour. The mother’s primary concern reported to the court child expert was the potential risk to the children should the father experience a decline in his mental health. The maternal grandmother echoed these concerns and reported her view that the father was controlling the mother.
The court child expert opined that, in light of the formal observations, the children have a positive relationship with each parent. She noted that the father presented as entertaining and caring, often joking with the children. She described the mother as a warm and gentle parent who engaged in imaginative play with both children.
The report recommends that, inter alia, consideration should be given to the mother holding sole parental responsibility, if the court determines that the risk to the children posed by the father’s mental health is low, the children should gradually move to spending block time over an alternate weekend with the father, if the court determines that the father has perpetrated coercive and controlling violence, the children’s time with him should be carefully reconsidered. The court child expert also recommends that the father complete a men’s behaviour change course prior to any increase in the children’s time with him.
The mother was seeking the children spend block time of alternate weekends with the father and was not contending that the father posed an unacceptable risk of harm to the children (given the father’s consent to orders for psychiatric review and completion of the proposed course). The mother however contended that the father’s behaviour was coercive and controlling and as such posed a risk to the children if they spent longer periods of time with him.
The court child expert gave oral evidence at the hearing and identified the main concern she had in relation to the coercive and controlling behaviour alleged, was that the children not be “used as messengers” as this could cause stress for the mother that might impact on her parenting capacity and it could be confusing for the children. The consultant opined that communication can be used as a tool of coercion and control. She agreed with the proposition that if the court finds the father was using childcare and speech therapy to denigrate the mother and criticize her parenting she would consider that to be coercive or controlling behaviour.
Evidence of the father’s treating psychiatrist - Dr E
Dr E is a psychiatrist of many years’ experience in private practice who provided three reports in this matter dated 30 September 2019, 8 December 2019, and 20 July 2020.
Dr E’s report of 30 September 2019 recounts the father’s mental health history including his admissions to hospital in 2012 and 2013. The report records that the father attended Dr Q, psychiatrist following separation on account of the mother’s concerns for his mental health on 25 August 2019. He notes that on this occasion the father was prescribed medication for anxiety, which he took for 8 days only. Dr E saw the father on 18 September and reported him as being “anxious, missing his children terribly, but not psychotic.” Dr E opined that the father “is not currently impaired. He is not suffering from a mental illness…. He requires no psychiatric treatment currently.” He also noted that it appeared the father probably suffered from a mental illness in 2013. The report concludes with the sentence “I am happy to treat [Mr Bartram] if necessary, but at this stage he is not ill and needs no treatment.”

The short report of Dr E dated 8 December 2019 reports that, after seeing the father on 6 December 2019, there had been no change and that “He is not at risk of deliberate self-harm or harm to others, including his children.”
The report of Dr E dated 20 July 2020 states that there is “nothing significant to add” to the previous reports provided. The report records that the “prognosis is uncertain. He has not had a recurrence of his illness since 2013” and that the father “would be at some risk of relapse in the long term, a risk that is higher than that of the general population, though that risk could still be low.” Dr E recommended that the father sees him for a review every three months and at any stage if he were to relapse.
Given the Dr E’s evidence and opinion of Dr G referred to above, the orders sought by consent about the father’s ongoing attendance upon his treating psychiatrist ameliorate the risk identified and are in the children’s best interest.
ORDERS SOUGHT BY THE PARTIES
Other than the orders made by consent contained at the forefront of these reasons, the parties sought orders as described below.
Applicant Father
The father sought orders for the parties to share equal shared parental responsibility, for the children spend time with him from after school on Friday until 10am on Sunday in Week 1 and from after school Wednesday until before school on Thursday and from after school Friday until 5pm on Saturday in week 2. The time he sought is four nights per fortnight occurring alternate Wednesdays and every weekend. He sought that changeovers not occurring at school or day care take place at P Shopping Centre, that the maternal grandmother not attend changeover, certain communication and special occasion orders, and there be restraints on the children’s travel overseas, including that the parties cannot apply for a passport for the children until Y turns 10 years old.
Independent Children’s Lawyer
The ICL sought orders that the mother have sole parental responsibility for the children. In respect of time she sought that, subject to the father’s completion of parenting courses, the children spend time with him in increasing amounts beginning with an overnight on each alternate Wednesday and progressing to each alternate weekend, commencing afterschool on Friday and concluding before school on Monday. The ICL supported the mother’s position that the children are permitted to have an Australian passport to be held by the mother and that the father be restrained pursuant to s 68B of the Family Law Act 1975 (Cth)(“the Act”) from approaching or coming within 100 metres of the mother’s residence and place of work.
Respondent Mother
The mother sought orders for time alternate weekends in a block and increasing time over school holidays up to 5 night blocks. The orders that she pressed from her application at the conclusion of the final hearing were that the father be restrained by injunction from booking medical appointments or activities with the children during the mother’s time except by written agreement, and orders to allow her to travel overseas to a country that is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”), with the children without the consent of the father.
APPLICABLE LEGAL PRINCIPLES
Parenting Orders
Orders in respect of children are informed under Part VII of the Act. The meaning of a parenting order is defined at s 64B.
Section 60CA of the Act provides that the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of a child.
Parental responsibility is defined at s 61B. According to s 65DAC(3) parents sharing parental responsibility to make decisions about major long-term issues in relation to a child are required to:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)make a genuine effort to come to a joint decision about that issue.
The term "major long-term issues" is defined at s 4(1) of the Act as:
in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a)the child's education (both current and future); and
(b)the child's religious and cultural upbringing; and
(c)the child's health; and
(d)the child's name; and
(e)changes to the child's living arrangements that make it significantly more difficult for the child to spend time with a parent.
The Act applies a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents pursuant to s 61DA. The presumption does not apply in certain circumstances if there are reasonable grounds to believe that a parent has engaged in abuse of a child or family violence according to s 61DA(2). Pursuant to s 61DA(4), the presumption may be rebutted if the Court is satisfied that it would not be in the child’s best interests for the parents to have equal shared parental responsibility.
In the event an order is made allocating equal shared parental responsibility, the Court must consider whether it is in the best interests of, and practicable for, the children to live in an equal time arrangement, or alternatively consider substantial and significant time with the other parent pursuant to s 65DAA.
If the presumption does not apply or is rebutted, the manner and allocation of parental responsibility is determined by consideration of the child’s best interests.
The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in family violence in accordance with s 61DA(2)(b) of the Act.
Family violence
As referred to above, pursuant to s 61DA(2), the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent has engaged in family violence.
Family violence is defined in the Act at s 4AB(1) as:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.
(emphasis added).
A positive finding that family violence has occurred cannot be made unless the Court is satisfied that the allegation can be proven on the Briginshaw standard of the balance of probabilities,[1] based not on “inexact proofs, indefinite testimony or indirect inferences”,[2] and having regard to “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”.[3]
[1] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2; see M v M (1988) 166 CLR 69 at page 76 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).
[2] M v M (1988)166 CLR 69 at page 77, citing Briginshaw v Briginshaw (1938) 60 CLR 336 at page 362 (Dixon J).
[3] Ibid.
Although s4AB(1) refers to behaviour that is “violent” or “threatening” the categories of behaviour also includes “or other behaviour.” As identified by Gill J in Outhred & Outhred “the essential aspect of the definition is the effect of the behaviour, being that it is behaviour that is controlling, coercive or engenders fear.”
The general approach in dealing with allegations is that set out by the Full Court in Sahrawi & Hadrami where at [39] Ryan and Aldridge JJ stated as follows:
It is a fundamental principle that a party who asserts facts bears the evidentiary onus or burden of proving them to the requisite standard. It is apparent that the mother failed to do so to the satisfaction of the primary judge. As the evidence adduced in support of the allegations was not accepted, it could not, therefore continue to have a role to play in the fact-finding process.[4]
[4] Sahrwai & Hadrami (2019) FLC 93-857.
Assessing allegations of family violence is a difficult task, particularly in circumstances where the parties are often the only two witnesses. As observed by Carew J:
To be clear, corroboration of family violence is not a prerequisite for finding allegations proved. Most often, there will not be corroboration of family violence. It often depends upon ‘he said/she said’ but there may be evidence that tends to indirectly corroborate an allegation e.g. police records, medical records, contemporaneous complaint, photographs of injuries etc. Such evidence may rationally affect the assessment of the probability of the existence of the fact alleged. If such evidence contradicts or is inconsistent with the allegation, or if the evidence is not called or produced (without satisfactory explanation), it is perhaps unlikely that the existence of the fact will be found to be proved.
…
Unfortunately, it is too often the case, that persons alleging family violence make factual assertions in very general terms without supporting those assertions with any or any sufficient evidentiary basis. This is not to be confused with an inability to produce corroboration. (Amador & Amador (2009) 43 Fam LR 268 at [78] -[86]) Family violence most often occurs in circumstances where there are no witnesses and depends upon findings made on the basis of competing evidence from the two people involved. It is trite to say that evidence from a victim alone is evidence upon which a finding of family violence may be made. The importance of providing an evidentiary basis not only enables a court to more readily make findings of fact, where required, but also gives the alleged perpetrator a proper opportunity to respond with particularity to the allegations, including calling witnesses who may contradict evidence given by the alleged victim.[5]
(citation added)
[5] Keenan & Keenan [2023] FedCFamC1F 186 at [40] and [45].
In the decision of Isles & Nelissen, the Full Bench of the Full Court analysed the assessment of unacceptable risk, stating:
Though both are evidence-based, the primary judge correctly approached the two separate questions without conflation: on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.
In this instance, the primary judge inferred the existence of an unacceptable risk of harm to the children from a combination of facts and circumstances, including: the elder child’s plausible but unproven allegations of sexual abuse by the father; the evidence of the father’s sexual interest in other adolescents; and evidence of the father’s interest in child exploitation material.
The assessment of risk is an evidence-based conclusion and is not discretionary. The statement to the contrary by the Full Court in Bant v Clayton is rejected as being incorrect. Sometimes it can be difficult to discern the difference between the exercise of discretion and an evaluative judgment though a discretionary decision is one in which no single factor or combination of considerations will necessarily dictate the result. The finding about whether an unacceptable risk exists, based on known facts and circumstances, is either open on the evidence or it is not. It is only the overall judgment, expressed in the form of orders made in the children’s best interests, which entails an exercise of discretion. That discretionary judgment is influenced by the various material considerations enumerated within s 60CC of the Act, of which the evidence-based finding made about the existence of any unacceptable risk of harm is but one.[6]
(citations omitted)
[6] Isles & Nelissen (2022) 65 Fam LR 288 at [83] – [85].
The Full Court also cited the dissenting judgment of Austin J in Fitzwater & Fitzwater,[7] on the assessment of unacceptable risk being an exercise where the contemplation of risk entails the assessment of future possibilities, with approval:
The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before. Risks of harm must be heeded even if they are improbable eventualities.[8]
(emphasis added)
[7] Fitzwater v Fitzwater (2019) 60 Fam LR 212.
[8] Isles & Nelissen (2022) 65 Fam LR 288 at [50] citing Fitzwater v Fitzwater (2019) 60 Fam LR 212 at [138] (Austin J).
Coercive or controlling behaviour has been examined by this Court. The majority of the Full Court in the matter of Carter & Wilson [2023] FedCFamC1A 9, being McClelland DCJ and Campton J, cited Gill J’s definition contained in the decision of Illgen & Yike [2018] Fam CA 17 at [123]-[125] with approval:
123.Coerce is defined in the 7th Edition of the Macquarie Dictionary relevantly as
1. To restrain or constrain by force, law or authority; force or compel, as to do something.
2. To compel by forcible action
124. Control is defined in the 7th Edition of the Macquarie Dictionary relevantly as:
1. To exercise restraint or direction over; dominate; command
125. The phrase “coerces or controls” is expressed disjunctively. However it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command.
The majority also cited with approval Judge Beckhouse’s observation that:
generally, coercive control is understood as a course of conduct aimed at dominating and controlling another person, including a family member”[9] where it was emphasised that “in order to assess whether the father engaged in coercive and controlling behaviour, it is necessary to view his behaviour towards the mother over the course of the entire relationship (as well as post-separation), and to consider the cultural context in which it arose [10]
[9] Ramzi & Moussa [2022] FedCFamC2F 1473 at [45].
[10] Ibid at [148].
Justice Gill succinctly set out factors relevant to considering whether conduct that coerces and controls amounts to family violence
The phrase "coerces or controls" is expressed disjunctively. However, it may be seen that the two concepts are closely related. Together they form an expanded concept of the exercise of power, to restrain another or to cause another to act, by force, domination or command. The examples given at s 4AB(2) illustrate the potential modes of force, domination or command as incorporating both physical and non-physical means. For example, control through the unreasonable withholding of financial support constitutes a non-physical means of domination of another.
It should be noted that the definition contained at s 4AB does not encompass all occasions where one family member causes another to act other than in accordance with his or her inclinations. The nature of interactions within a family often involves the various members of the family preferring the interests of other members of the family ahead of their own.
However, where this is the result of the exercise of power, by force or domination or command, that is, it is the product of coercion or control, it then constitutes family violence and falls within the definition at s 4AB.
It should be accepted that the definition of family violence goes well beyond physical assaults to encompass behaviours that, absent context may appear innocuous, but in context may be examples of coercion or control. However, the mere assertion that the conduct has the quality of being coercive or controlling does not make it so. It is necessary that the evidence, particularly where the behaviour is ambiguous and may bear an innocuous explanation, be sufficient to allow a characterisation of coercion or control.
By way of example, a pattern of disagreements and criticism can form controlling or coercive behaviour. Whether they do or not must be derived from consideration of their form, intensity, context and the impact upon a person. The mere fact of disagreement or criticism does not automatically equate to family violence.[11]
[11] Outhred & Outhred [2020] FamCA 639 at [48] – [52].
Accordingly in considering whether to make a finding of family violence including in respect of behaviour that coerces or controls, or engenders fear, contextualising the behaviour is key, including considering the circumstances in which the behaviour occurred.
Should the Presumption of Parental Responsibility be rebutted (s61DA(4))?
As referred to above, pursuant to s 61DA(4), the presumption of equal shared parental responsibility may be rebutted if the Court is satisfied that it would not be in the children’s best interests for the parents to have equal shared parental responsibility.
In this case, for the reasons that follow, I find that the presumption of equal shared parental responsibility is rebutted and determine that it is in the children’s best interests for the mother to have sole parental responsibility.
I accept the submission that the boys are entitled to a meaningful relationship with both parents. It is not in contest and I find that the boys have a close, loving, and meaningful relationship with their father, and that this exists despite my findings about the difficulties in communication between the parents. I carefully considered the submissions and authorities,[12] relied upon by the father’s counsel with particular attention to the practical necessity of consultation and logistics in dealing with young children that he contended supported an order for equal shared parental responsibility. For the reasons that follow I do not accept that issues of practical necessity and logistics outweigh the other factors identified in this judgement that favour an order for sole parental responsibility. I accept that the father has a genuine desire to hold parental responsibility for the boys and will feel a sense of injustice that it has not been ordered, however for the reasons articulated herein I make the order for the mother to hold sole parental responsibility with the notice requirements (as were proposed by the ICL). I have no doubt Mr Bartram will continue to develop and improve the meaningful relationship he has with his sons and will be actively involved in the boys lives during the increasing time he spends with them, and by his involvement with their education and extracurricular activities.
[12] Halifax & Fabian [2010] FamCA 1212; Eagleton & Eagleton [2019] FamCA 894.
The parents have such a fraught co-parenting relationship, and one that has become increasingly more difficult post separation, that it would not be in the children’s best interests for the parents to have equal shared parental responsibility.
There are several categories of matters that satisfy me that the presumption should be rebutted including the parties inability to communicate; the lack of trust between them; the father’s communications toward the mother perceived by her as aggressive and harassing and its impact on her; and the father’s ongoing criticisms of the mother made to her and to third parties.
Throughout the evidence there are multiple examples of conflict, tension, poor communication, mistrust and inflexibility including; a number of incidents that have occurred at handover at Central Station; conflict over requests by the father for information and more time; an inability to communicate about health issues including the speech therapy for X; a complaint about information about toilet training; numerous complaints made by the father about the mother to educational and health providers for the children; and the communication style of the father.

The examples set out below support the conclusion that an order for equal shared parental responsibility is not in the best interests of the boys.
The parties fraught communication
The communication between the parents is fraught. The parties both acknowledge it both in their sworn evidence and in their oral evidence before me. In cross examination the father agreed that the parties’ communication is “pretty poor” and he said that “it could be improved.” In questions from the ICL the father’s evidence was that he was of the view that even if the mother does a parenting course that he “would be sceptical that it would create much impact.”
The poor communication was observed by the court child expert who reported that “current communication is strained.” The single expert Dr G, who interviewed both parents to provide opinion as to the father’s mental health described the matter as “high-conflict”. It has been over three and a half years since separation with no improvement in communication.
The father complains that the mother would not share information, has been unwilling to communicate with him and is, in effect, controlling all the decisions about time in a way that minimises his time and any opportunity for him to be meaningfully involved in decision making. The father’s contention is that it does not reflect well on the mother that she has, at times, not responded to the father’s requests for information, appears rigid in requests for additional time and has an unwillingness to communicate. He gives examples of this including the mother’s alleged failure to respond when he asked about school for X as referred to below.
Another example the father cited as the mother controlling decisions and being inflexible was his contention that despite knowing how important special days are to the father, her refusal to allow the boys to spend time on his birthday. When questioned by the father’s counsel the mother’s evidence was that she did not facilitate time for the father’s birthday as “their routine is important…as a parent, we can celebrate when we have the children.”
The fact that the mother failed to include orders for special occasions in her final orders sought against that background of her rigid approach to extra time, is contended by the father as a further example of her controlling attitude to the father’s time. I note however the evidence that the mother has offered special time in the past including for Y’s birthday which was declined and time over Easter 2023, also declined. I note the parties consented to final orders for special time which does not support such a contention.
I accept on the evidence the mother has on occasion been non-responsive in her dealings with the father and this is supported by the communication annexed to both parties’ evidence.
The mother agreed she did not respond to the query about X’s school initially as it was so far in the future. However as referred to below, the mother did provide information at a later stage about X’s schooling which was ignored by the father.
In response to question about information sharing the mother said when it came time to enrol X in school:
The easiest option was to choose the local primary school which I informed [Mr Bartram] about. And there was also communications with the ICL at the time and [Mr Bartram] didn’t object. From what I remember, he didn’t respond about [X’s] school. But I also invited him to attend the open days…..
I have spoken to the father about [X’s] schooling and my intention of enrolling [X] into the local public primary school.
The mother’s failure to respond or respond with the level of detail the father was seeking was a source of frustration for the father.
The mother felt the father harassed her, often sending numerous messages on the same issue. The father’s evidence was that “I feel I would not need to send numerous messages on the same issue if [Ms Marsden] provided me with the requested information in the first place.”
The mother explained in cross-examination that she finds her communication with the father difficult as it is “his way or no way.” The mother gave several examples of what she said was the father’s “his way or no way” attitude.
The first example was the criticism of the mother by the father when he was seeking extra time over Christmas 2020. On 2 December 2020 the father requested additional time with the boys on Christmas Eve in the morning. The mother responded that the father had the boys on Christmas Day, Boxing Day and the following day, and that she had made Christmas plans to spend time with the children on Christmas Eve. The mother’s response was received poorly by the father and he said he was “concerned about [her] inflated sense of entitlement and distorted view of reality.”
The mother also gave an example where she offered time on the Easter Monday 2023 (from 9am to 2pm) which was refused by the father as it was not as long as the time he usually spent with the boys.
The communication via My Wizard App,[13] from 30 December, 31 December 2022 and 1 January 2023 supports the finding that the trust, communication and relationship remains poor despite the years since separation.
[13] Annexed at page 377-379 of the Mother’s Affidavit.
These examples show that both parties have had inflexible approaches at times and have ongoing difficulties with communication. The evidence of events from separation and increasing from late 2022 and early 2023 set out in both parties’ evidence, supports the finding that I make that there has been a decline in the capacity and willingness of the parties to communicate. The evidence supports the finding that the parent’s communication is poor and unlikely to improve.
Inability of parties to consult or come to joint decisions
There was no evidence of the parties having the ability to consult or come to a joint decision. In fact the overwhelming evidence supports a finding of an ongoing inability of the parents to consult or come to joint decisions. The most compelling example was the way the parents dealt with X’s speech therapy. The evidence is not in contest that X required speech therapy and the parties’ communication about the issue was so conflictual that each parent ultimately engaged a separate speech therapist to work with X. This led to X having two therapists at once for a period of time until it was ceased for a period. Unsurprisingly there developed confusion over the appropriate treatment for X.
This situation highlights the extent of the inability to consult or arrive at joint decisions between the parents and that their inflexibility when it came to compromise led to X not receiving consistent and focussed speech therapy but therapy from two different therapists. This cannot have been in his best interests.
The mother’s evidence was that she found communication with the father difficult and stressful and they did not have an ability to reach decisions jointly.
When pressed to provide an example of an ability to reach decisions jointly the only example the father was able to give in cross-examination was ironically, the decision was that each would engage their own speech therapist for X resulting in X having multiple speech therapists. This is an example of inability to consult and reach a joint decision.
The mother’s fear of the father
The mother reported to the court child expert, and maintained in her evidence, that the father’s conduct had in the past, and continued to, cause her fear. The father did not accept that she was fearful. The father’s view was that the mother was disingenuous in her claim of alleged fear. When specifically asked in cross examination whether he accepted the mother was fearful he did not. The father additionally complained that the mother had been opportunistic in relation to his mental health record, it was submitted on his behalf that “his mental health has been weaponised” by the mother in order for her to achieve an outcome that she seeks from these proceedings. For the reasons that follow I find that the mother’s evidence about her fear both at the time of separation and ongoing is genuine. I find the mother’s concerns about the father’s mental health posing a risk to the children were also genuine and I note the orders made by consent for psychiatric review were supported by the opinion of the single expert and provides a strong foundation that the mother’s concerns given his mental health history, had a reasonable basis.
The mother reported to the child nurse as recorded in the clinical notes in mid- 2019 that she was “walking on eggshells” and was concerned about the possibility that the father may have depression. The nurse discussed with the mother attending upon a GP for a mental health plan and encouraged her to ask the father to attend as well.
It was contended for the father that the lack of the notes from a GP of any subsequent attendance call into question her evidence about whether the mother genuinely held concerns about the father’s behaviour. I do not accept that submission. The records confirm the mother reported at that time concern about the father possibly being depressed and that she was “walking on egg shells” to the child health nurse. This was before she had any knowledge of the father’s mental health history. It is not to be ignored that at the time the mother was post caesarean and was seeking advice about a suspected blood clot from medical professionals. It is not in contest that the mother only discovered the truth about the father’s mental health history on 23 August 2019 as supported by her evidence and that of the former partner of the paternal uncle, Ms R.
I accept the mother held the concerns about the father’s conduct and suspected depression. I also accept the mother’s evidence as to the timing of her knowledge of the father’s mental health history and that she was shocked to discover the father and his family had not disclosed to her his previous mental health history. This breach of trust, as she saw it, has undoubtedly impacted the very poor level of trust between the parents and their families, that continues.
The father contended that the fact that the mother and the maternal grandmother did not report the concerns of his alleged conduct to the police should be seen as significant. I do not accept that submission for two reasons. The first is the mother’s evidence is that she had seen the separation initially as temporary, and secondly there are various and complex reasons why people may not report behaviour which they find frightening and intimidating to the police.
Additionally the mother’s evidence was supported by that of the maternal grandmother who gave evidence of her observations of the father’s conduct on a number of occasions including his driving and hearing him yelling at the mother after the cake incident and the mother’s response to that incident. The mother’s evidence was also corroborated by the ex-partner of the paternal uncle, Ms R, who gave evidence that the mother had complained to her and the paternal uncle about the father’s behaviour being “awful and erratic.” Ms R’s evidence included that she had had conversations with the paternal uncle about the paternal family’s concerns about the father’s behaviour. I accept her evidence.
I accept the mother’s evidence that she had spoken to the paternal uncle of her concerns about the father’s behaviour. The paternal uncle was not called by the father to give evidence with no explanation as to why. I infer that the paternal uncle’s evidence would not have assisted the father’s case.
I am satisfied on the balance of probabilities that the mother was concerned and frightened by the father’s behaviour, she had discussed her concern with her mother, Ms R, the paternal uncle and the child health nurse which is corroborated by the clinical notes.
The Separation- the father’s assertion the mother weaponised his mental health history
I accept the mother’s evidence that she was genuine in her fear and concerns at the time she left the home, and that she was not concocting or exaggerating fear so as to keep the boys from their father or to achieve an end in this litigation as suggested by the father in his evidence.
The mother left the home on 29 August 2019 with two very young children, and sought refuge and assistance from a women’s refuge, where she resided until she obtained a private rental in late 2019. The fact that the mother left the father covertly was considered to be significant by the family consultant, and suggested to her that the mother was fearful.
The father could not accept the mother was fearful even when put to him that her actions in leaving in the circumstances she did would suggest that she was frightened.
The mother reported to the court child expert that she had contacted mental health services towards the end of the relationship prior to her discovery of the father’s history of mental health issues. As referred to above I accept that evidence. I accept the mother’s evidence that she held genuine concerns about his behaviour which she found frightening and concerning and that she was not “weaponising” his mental health history to gain some advantage in this litigation.
The mother deposed that she raised her concerns about the father’s behaviour and mental health with his mother and his brother who brushed off her concerns by saying words to the effect of “just stay in your room when he gets this way” and “he gets this way - he’s got mood issues”. A document purported by the mother’s counsel to be authored by the paternal grandfather following a family meeting to discuss the father’s health is dated 29 August 2019 and records that “[Ms H] advised from time to time in the last 12 months, [Ms Marsden] had stated that she was sometimes brought to tears with [Mr Bartram’s] behaviour.” When this was put to the paternal grandmother in cross-examination she said she could only recall one occasion where the mother was crying but that she didn’t know what she was crying about. The paternal grandfather had died before the trial and could not be called as a witness.
The objective circumstances support the mother’s contention that she was genuinely fearful. I place weight on the circumstances at the time of the mother’s decision to leave the home. I find that she was fearful and concerned by the father’s behaviour which she subjectively found to be frightening. I accept the maternal grandmother’s evidence of the father that she also experienced as frightening. I find that the father was aware that the mother would likely find aggressive conduct distressing and intimidating, as he knew from the time of her panic attack following the cake incident in 2017(referred to below) that as he put it, “she couldn’t handle it.” I find that the mother did not at that time “weaponise” his mental health history or exaggerate or make up fear as suggested, but was genuine in her subjective experience as she reported it.
I also accept the mother’s evidence that she has found her ongoing interactions with the father directly at handovers stressful and difficult and I accept she has attempted to shield the boys from her response as she deposed. What the father described as recently as December 2022 as a “direct and clear voice” telling the mother to “read your messages” the mother experienced as “yelling” and intimidating.
The father’s criticism of the mother’s parenting
On many occasions the father expressed disquiet with the mother’s parenting to her. For example on 30 December 2022 he wrote to the mother:
I noticed you picked up [X] from day care after he spent three hours there on Thursday. I don’t understand the logic you have applied to him attending for such a small time period. It is clear that you have no intention of sharing this logic with me either.
In the same message the father also said:
It is evident that you would like the kids and I to have no contact with each other and you don’t support any relationship with their Australian family. I think it would be misleading to everyone including the court if your final orders didn’t request that the kids have no contact with anyone in their Australian family considering that it is clearly what you want and you have requested previously.
The father messaged the mother on 14 January 2023 and said:
You and your mum don’t work, yet you want all the public holidays. It is a concern that [X] and [Y] are growing up in a household of caregivers that are not employed.
This criticism of a single mother with two young children was maintained by the father in cross examination where in his response to questions from counsel for the ICL, he showed no insight into the impact of such comments on his co-parenting relationship or on the mother. I note the opinion of the family consultant that communication can be used as a tool of coercion and control.
The evidence was littered with examples of the father’s criticism of the mother expressed to her in text messages and emails. I will not repeat them in detail but note the very many emails and text messages in which the father sent to the mother in which he is critical of her parenting, her decisions and her communication with him.
The father’s communication with third parties
There were many examples of the father communicating with third parties being education or health providers of the children, where he was expressly critical of the mother. What follows are some examples:
In late 2022, the father communicated with S Centre, Suburb T, the children’s preschool, about time away and included the criticism of the mother that she “has not made any reasonable offer for the kids and I to spend additional time together despite me requesting it […].” The father acknowledged in cross-examination that he was “venting some frustration with [Ms Marsden]” and acknowledged he did so with the preschool who were uninvolved in the matter.
Similarly the father wrote messages to U Centre (the previous childcare centre) that were critical of the mother. An example is from early 2022 where the father emailed them saying:
Just to let you know, [Ms Marsden] has messaged me separately and decided not to facilitate time between [X], [Y] and myself for tonight. This will mean that I will be unable to drop them at day care tomorrow and also have the obvious devastating effect on myself and the rest of my family and the kids, we all had dinner planned tonight.
[Ms Marsden] has used your organisation as the reason she has made this decision, this is a common strategy she employs. [Ms Marsden] has made the claim privately to me that she has correspondence from [U Centre], I am unsure what correspondence she is referring to.
I am concerned the impact [Ms Marsden’s] decision will have on [X] and [Y], I would ask that you speak with them tomorrow to ask them what reason [Ms Marsden] has given them as to why we couldn’t spend time together tonight.
The parties used a communication scrapbook for the purposes of X’s speech therapy. The father included on at least 8, 9, 10, 12 and 13 August 2022 entries that said “I didn’t spend any time with [X]” in the scrapbook. In oral evidence he explained he was “venting frustration.”
On 7 November 2022 the father was in communication with Ms V, a speech therapist involved in X’s treatment. On this date the father wrote to her:
Hi [Ms V]. There is no order in place that prevents me from attending at a healthcare appointment for [X]. Are you seeking an order for this? There is a presumption that [Ms Marsden] and I have equal shared parental responsibility.
He later wrote:
It is a concern for me that you have difficulty understanding English and the rights of a child to receive support from their parents based on the law in this country.
The father agreed that he was being critical of the speech therapist and that was his intention.
The father wrote to the W Therapy in late 2022:
[Ms Marsden] has the option to obtain private speech therapy sessions for [X]. Perhaps you can discuss these options with her as I have suggested. Given she is able to spend three weeks twice a year in England, it amazes me that she qualifies for legal aid and publicly funded speech appointments.

The father sought the children continue in the current regime where he sees them each Saturday, in effect that the split weekend each weekend continues. The father was firm in him seeking a continuation of this order as he believes this is in the best interests of the children. For the reasons set out herein I do not agree that the split weekend continuing is in the children’s best interests and I order block time each alternate weekends together with the continued alternate Wednesday overnight.
I accept, as put by the father’s counsel and as set out in his evidence, that attendance at Saturday sport was one benefit, but not the only benefit to the boys in the Saturday regime continuing as the father proposed. I accept the boys know and are familiar with the current routine and there is also benefit in not having longer periods of time when they do not see their father. These are all important matters that I have carefully considered. On balance however I am not satisfied that the ongoing split weekend is in the best interests of the boys for the reasons that follow.
There are a number of significant factors that weigh against the split weekend proposal as sought by the father. The first is that there are significant benefits to the boys of spending block time with the father and mother each alternate weekend as identified by the court child expert. The opinion of the court child expert was that there are advantages to longer block time including that the boys could engage in a range of different activities with the father, that they could have their day-to-day needs met and routine implemented by the father, and that it could assist with easing X’s distress when it comes to saying goodbye to the father. I accept and give significant weight to her opinion.
The boys spending a block period of time with their parents during the weekends removes the necessity to travel and undertake the changeover in the middle of the weekend, and has the benefit of the boys spending uninterrupted longer periods with, in particular, their father.
One of the concerns the father expressed was that the boys would not have the continuity of sports each week, as he did not believe the mother would take the boys. The mother’s evidence was that she would facilitate the boys’ attendance at their weekly extra-curricular sports and gave by way of example her own happy childhood experience of commitment to dance. I accept the mother is genuine in her commitment to facilitation of team sports on a weekly basis as she indicated, and that this is not something that outweighs the benefits to the boys of the experience of the block time.
I canvassed in submissions making an order as to the sports to be attended by the boys, and note both parents indicated that if the boys played sport, it would be supported by them both by ensuring their attendance. However, given the young ages of the boys, and that neither party sought such an order, I will not make an order to that effect, but note the intention indicated that the parents, as far as practicable, use their best endeavours to ensure the boys attendance at their summer and winter team sports, during the weekends that they are with each parent.
The second is that there is obvious benefit to the boys in the shielding them from the high conflict that has existed to date at change over (that has been occurring at the station referred to in these reasons). Reducing the frequency of changeovers limits the opportunity for conflict between the parents (and other people attending changeover), reduces the opportunity for the boys to be exposed, even inadvertently, to any tensions, and removes the instances of the boys becoming upset and emotional at the time of leaving one parent to go to the care of the other.
I note that there was virtually no issue at the changeovers that were occurring at school each alternate Wednesday with a return to school the following morning, by contrast to the significant evidence about the conflict at the Station handovers. The Wednesday nights are working well and give the boys the opportunity of being cared for mid school week and give the father the opportunity to be involved with school, homework and the mid-week routine.
There is undisputed evidence from the parties, the maternal grandmother, the paternal grandmother and the paternal aunt of incidents of conflict and tension between the parties at handover including:
(a)the incident of the father wearing a body camera;
(b)of the father saying to the mother “read your messages” in a firm voice in the presence of the boys;
(c)of the boys having been upset and clinging to the mother while being delivered to the paternal aunt;
(d)of an incident with the prams and the maternal and paternal family and
(e)of X being upset when the maternal grandmother did not say goodbye at the time of handover.
I find that there has been a regular, and increasing amount of tension and incidents that have occurred at handover over time. The conflict has included a desire expressed by the mother for the father not to attend at the station which was not adopted by the father, and a desire by the father for the maternal grandmother not to attend at handover which was not adopted by the mother. In this case the conflict has been and remains high. Removing the frequency of direct changeover will also reduce the opportunity for conflict.
The changeovers have been a source of great tension and disagreement between the parties. The evidence before the court was that the changeover involved tensions that included each of the parties, the maternal grandmother, the paternal grandmother and paternal aunt, allegations of recordings being made of each party by the other, the mother on her phone and the father by body camera in response to reports of concerns allegedly being made to the police. The mother’s evidence is she finds the changeovers cause anxiety and tension. It is a matter of logic that with this issue not abating as the time has passed, that it is only a matter of time before these young boys pick up on the tensions that exist. That, in my view, should be avoided.
The father seeks that the maternal grandmother, the mother’s only support and family who visits from time to time, use her best endeavours to not attend. The mother seeks the handover be facilitated by the father’s family. The fact that parties are both seeking these types of orders some three and a half years post-separation, also supports an order being made that minimises frequency of handovers directly to reduce the interaction and conflict between the parents and their families.
The best way to achieve this is by maximising the number of changeovers occurring at the school of the boys where only one of the parents is required to attend. There will be times where direct changeover will be necessary, such as at the mid-point during school holidays and on special occasions. The frequency of those times will be vastly reduced pursuant to these orders which will reduce the opportunity and frequency of conflict between these parties.
The third reason is that the boys, now being 4 years old and almost 6 years old, are of an age where they should be increasingly able to tolerate longer periods away from each parent. This evidence was given by the court child expert in the family report and supported by her recommendation during cross-examination for the children to spend alternate weekends with each parent as developmentally appropriate:
Developmentally speaking, children [X] and [Y’s] age, they benefit from that block of time. It means it gives them the opportunity for the father to implement routines, demonstrate further good parenting capacity. It allows them an opportunity to settle in his care with that block of time.
School Holiday time
The mother consented to the ICL’s proposed orders for the father to have block time during the school holidays but only up to five nights per holiday.
There was no evidence that supported restricting increasing time for the boys to spend with their father during school holidays. The boys have a loving relationship with their father and enjoy time with him.
The court child expert supported equal time and it was not suggested to her, nor was any submission made as to why these boys would not benefit from a gradual increase of time resulting in equal time, albeit week about during the longer school holidays.
I find that it is in the best interest of the boys that they spend incremental increases of one extra day each set of holidays, such that by 2025 they are spending one half of school holidays with each parent.
Special Occasions
The father sought that he spend time with the boys on his birthday and on each of the boys’ birthdays. These days are of special importance to the father. His evidence was that “it is very special and important to me to share these occasions with [X] and [Y]” and I accept that evidence. It is also important to him that the boys are able to spend special time with the paternal family who are also close to the boys. I accept this evidence also. I give weight to the family consultant’s opinion that it is important for the children to be able to spend as much special occasion time with the father as possible.
Pursuant to the orders, other than during the school holidays, the father will have longer periods where he does not see the boys. For these reasons, I am satisfied that it is in the best interests of the boys to see both of their parents on the day of their birthdays and their father’s birthday and I make the orders that the children will spend time with both parents on each of the boy’s birthdays and with the father on his birthday. It was submitted on the mother’s behalf, in relation to birthdays, that the she is “prepared to take it a day late if she has to” in order to reduce the changeovers. Given that the mother’s position is to reduce changeovers as much as possible, I will make no order for the children to spend time with the mother on her birthday if they are not otherwise in her care.
Changeover location
Even with alternate weekend time being ordered there will be times where changeover does not occur at school. The parents could not reach agreement as to the location of the changeover. The ICL supported changeover being at F Shopping Centre due to its proximity to the station for ease of transport. I accept that submission and accordingly order that when not being collected from child care, preschool or school that the changeover occur by the parent or agent of the parent collecting and returning the children from the entrance of D Store at F Shopping Centre (in the event that the D Store is no longer known as “D Store”, then at the same historical geographical location of D Store at F Shopping Centre).
Communication
In addition to the communication orders made by consent the father sought orders that:
(a)If either parent becomes unavailable to care for the children for a period of longer than 24 hours during their times, they will give the other parent first option to care for the child;
(b)Each parent can communicate with the children at any reasonable time while in the care of the other parent;
(c)Each parent be permitted to liaise with any doctor, hospital or other medical practitioner treating the children to obtain information about their health or treatment they may be receiving;
(d)Each parent must notify the other parent as soon as practicable of any serious medical problems or illnesses suffered by the children whilst in their care;
(e)In the event there is disagreement as to the children’s attendance on any medical or allied health practitioner, the parties are to take into account the reasonable recommendations of the treater and discuss them with the other parent, and that both parties will take the children to any health appointments scheduled in their time;
(f)Each parent is to respond to the other parent as to any reasonable question relating to the children’s wellbeing in a direct, clear fashion and without delay.
Given the poor communication and difficulty between the parents at changeovers I am not satisfied that the order sought for first option to care for period longer than 24 hours is necessary. Counsel for the father submitted that the parties’ communication and co-parenting relationship “may improve”, however in the years since separation there has not been any improvement in their communication to date and as referred to above in this judgment, and tension has remained high between the parties. For these reasons I am not satisfied that a first option to care order is in the children’s best interests. While the boys are in their respective care each parent should be free to call on extended family or other child care arrangements in the event they are unable to spend time with the boys.
There was no evidence or submissions made about the parents communicating with the children by any means while in the care of the other parent. Given the high conflict between the parties I do not propose to make communication orders other than that the parents shall facilitate telephone communication at any reasonable time requested by the boys and during school holiday periods.
The mother’s evidence is that she currently shares information with the father in relation to the children’s medical needs and treatment and schooling, and that she has told the father that he can contact the children’s treatment providers and schools. It is appropriate, especially given the poor communication between the parties, that each of them has liberty to obtain from the children’s medical treatment providers information about the children’s health and I make that order as sought by the father. For the same reasons, I make the order as set out by the father that each party should authorise the children’s day care/school to provide copies of all documents to each parent.
It is appropriate that the parents notify each other of any serious medical problems or illness suffered by the children during their time.
The mother is to have sole parental responsibility for the children, accordingly I do not make the balance of the communication orders sought by the father.
As referred to herein, the father has been critical of the mother and has also expressed this criticism to third-parties. It is not appropriate to make an order requiring “direct” and “clear” responses “without delay”, if such an order were to be made there is a risk that it could be used by the father as another avenue by which to criticise the mother, which would only go to increase the conflict between the parties which is not in the children’s best interests and would likely lead to further proceedings. There is a mechanism for communication in the orders.
Father’s alleged conduct toward the mother
When considering the parent’s dispute, it is not necessary to make findings of fact on every factual dispute raised by the parties.[15] I do not address every allegation made by the parties in this matter however a number of allegations were made that the father’s conduct amounted to family violence which I have not found to be established on the balance of probabilities as follows.
[15] Baghti & Baghti and Ors [2015] FamCAFC 71 at [63].
Allegations were made that the father’s conduct amounted to family violence as follows:
(a)That the father took the car key to restrict the mother on 10 occasions;
(b)That the father put tape on the boot to restrict and monitor her movement;
(c)That the father interrogated the mother;
(d)That the father was actively seeking the mother’s address;
(e)That the father added himself as a nominee to the mother’s Centrelink account;
(f)That the father was stalking the mother as her evidence was she saw him at a petrol station in Suburb DD on or about 26 October 2022 at 5.15pm,
The car key allegation
In respect of the allegation of restriction by hiding car keys the father’s evidence, which I accept, is that there was one occasion where he inadvertently took the car keys to work when the paternal grandmother had left them in his vehicle. The text exchanges between the parties supports this was an inadvertent accident and not an incident of control. The mother gave no other specifics of the allegations of the other nine occasions she alleged. There is no evidence on which I can find, on the balance of probabilities, the events of taking her car keys to control her occurred.
The tape allegation
The mother alleged that a friend told her “that there was tape on the car boot and not to open it” and on another occasion, another friend told her that her husband and his friends were “aware of [Mr Bartram] using tape and that they had also seen tape “on doors in the house”“. The father denied the allegations. It is inexplicable that the friends who warned the mother of the tape being on the boot were not called to give evidence in the circumstances of the allegations made.
I cannot be satisfied on the balance of probabilities that the alleged incidents involving the tape occurred.
The interrogation questions
The mother alleged that on 7 April 2018 father was interrogating her by texting “where are you now what are you doing the rest of the day and how long will you be” and that he would often question her in this way face to face, which made her feel suffocated. The father did not deny the allegation but said he was “taking the piss out of her in terms of the way she was talking to me that day or the day before”, and when asked to elaborate on what he meant, he said “yes being sarcastic.” I find that the communication as alleged by the mother did occur and she found it to be “suffocating” as deposed. I do not find in respect of the conduct, however misconceived by the father as humorous or sarcastic, at that time or in context, amounted to family violence.
The Father’s communication style - “the authoritarian voice”
The father’s conduct leading to the mother’s decision to leave was, according to the mother increasingly strange and frightening to her. The mother expressed that she had been fearful of the conduct of the father during the relationship and more acutely in the period leading to separation, due to what she deposed were periods where he had outbursts, ranted and behaved differently, including using an authoritarian “voice”. He denied this conduct. The maternal grandmother gave evidence also of the father speaking in a different voice. I do not find on the evidence and in context, that this conduct amounted to family violence.
The mother alleges that in March 2019, the father was bathing X whilst his family was present. Whilst bathing him, the paternal grandmother said “you need to watch him, his head nearly went under” which the mother asserts triggered an angry outburst from the father where he said “get out of my house you are not to come back in again.” This allegation was put to the father in cross-examination and his evidence was that he probably said something to the effect of “you can go now” but that he couldn’t recall exactly what was said and that he couldn’t recall whether he had raised his voice or not. This incident was also put to the paternal grandmother who said that she did not recall any such incident. The incident was heard by the maternal grandmother. The mere fact of disagreement does not amount to family violence. I am not satisfied on the balance of probabilities that this conduct amounts to family violence as contended.
The mother’s allegations that the father added himself as the mother’s nominee to Centrelink.
The mother alleged that in September 2019 her Centrelink account had been amended to include the father as her contact nominee. It was alleged as part of her claim that he was harassing her. There was no evidence from Centrelink or another source to support the assertion. When put to the father he denied it.

I am not satisfied on the evidence that the father did add himself to Centrelink as the mother’s contact nominee as alleged.
The father’s message about removing all the mother’s remaining belongings
The father agreed that he sent a message to the mother that said “I will be removing all your remaining belongings in coming days that you left behind” in December 2019. She attended with the police the next day. The context of this text message is a discussion between the mother and the father in relation to whether the items for the children such as nappy bags or small soccer goal posts would be shared between the parties.
I accept the mother believed she had to act quickly in response to the message and did so. In the context of the recent separation I accept the mother was stressed by the circumstances but the mere assertion that conduct has the quality of being coercive or controlling is not necessarily sufficient, it must be considered in the context of the entire circumstances and context. I am not satisfied that the behaviour of parties being in conflict about division of property and chattels is sufficient to allow a characterisation of coercion or control in the context in which it occurred.
The allegation the father was stalking the mother
The mother’s evidence was she had seen the father in Suburb DD at around 5.15pm, close to the refuge where she lived and she felt “alarmed”. The father’s evidence, supported by an Uber receipt, showed his location as being in Suburb EE at 5.23pm on the same date.
I do not find on the balance of probabilities that the father was stalking the mother as she believed.
Maternal Grandmother’s evidence
The maternal grandmother gave evidence of her observations of the father’s behaviour and conduct on the night of the dinner in mid-2019. She observed the mother was crying and the father indicated that he was going to take X for dinner at his mother’s house, to which the maternal grandmother said words to the effect of “forget about your wife again.” She gave evidence of other observations of her daughter at the time of separation including that she was experiencing chest pains, continued to worry about the father’s behaviour and spent hours on the phone seeking advice from helplines. She gave evidence of her own experience of being fearful of the father’s conduct. I accept her evidence and I give weight to the evidence of the maternal grandmother in relation to her observations of the father’s conduct.
The father’s deposed that the maternal grandmother intimidated him during the parties’ relationship and that this intimidation has continued post-separation. The father also expressed to the mother that the maternal grandmother was a perpetrator of family violence. There is no evidence to support such an allegation.
During cross-examination the father described the dinner incident, wherein the maternal grandmother said words to the effect of “forget about your wife again”, as a significant outburst where he felt intimidated. By text message the following day, the mother described her mother’s conduct as it as “minimal” and that “she was just defending her daughter”. The father described it as “the largest example I have” of intimidation by the maternal grandmother. There is no doubt the relationship between the father and the maternal grandmother was not a close one, but I am not satisfied on the evidence that the maternal grandmother intimidated the father perpetrated family violence.
PARENTING COURSES TO BE UNDERTAKEN – BY CONSENT
Despite the recommendation of the court child expert, the father had not undertaken any parenting course but had “a quick look on google” about what the Men’s Behaviour Change program was. To his credit he was willing to attend the course as a precondition to the time orders increasing. I find that it is necessary and make the order, noting it is with his consent.
The mother’s lack of communication has led to frustration and distrust from the father. There are many examples of the communication difficulties in both parties evidence. To the mother’s credit she has now completed the Circle of Security parenting course and in evidence stated she is also willing to undertake a further course in an effort to improve communication. The court child expert recommended Parenting After Separation Focus on Kids at B Support Services. I order that the parties attend this course, as any improvement in communication is in the best interest of the boys and I note this is also with their consent.
RESTRAINTS
The mother will also be restrained from unilaterally changing the children’s residence from the Sydney area, an order that she readily conceded she would consent to as she has no intention to relocate to reside in the UK as suspected by the father, arising from the comments she made at the airport in 2018.
The mother has expressed fear and anxiety about communication with the father. She seeks a restraint on him attending her home and her place of work. As detailed above I find that the father’s communication and behaviour has at times amounted to family violence. The examples include the threat to report her for extreme neglect, the repeated text messages about the same issue as harassing and the filming of her at handover at the station. The mother is the primary carer of the children and has always been so. It must be in the best interests of the children for her to feel safe and protected. The family consultant raised the risk that stress arising from coercive and controlling behaviour can impact her parenting capacity. This should be avoided.
Additionally, the father attended the station after not having done so, as he said to the mother he was not restrained from doing so. He did this knowing it would increase the stress of the mother, which it did. In these circumstances a restraint on the father attending the work or home of the mother is appropriate.
INTERNATIONAL TRAVEL AND PASSPORTS
It is in the best interests of the boys that the mother be permitted to take the boys to the UK for no more than 3 weeks every two years. I have ordered that the mother may take the boys to the UK for no more than 21 days in 2023/2024 Christmas holidays and each alternate year thereafter for the reasons that follow.
The father opposed the mother being able to undertake such travel because of his concern that she might remain in the UK and not return with the boys. The father maintained this objection despite the mother’s consent to an order that she live and remain living in Australia and in the greater Sydney metropolitan area, and despite the UK being a signatory to the Hague Convention.
The father said in cross examination in respect of his opposition that “it’s also based on that she forced me to go to court to spend any time with the kids.”
In cross-examination the court child expert supported the proposition that it would be important for the children to benefit from spending time overseas with the maternal family:
In my view, I would say that it - it would be important for the children to benefit from spending overseas time with maternal members of the family. I think there would be an absolute benefit for the children to have some time with extended maternal family. It also provides the real opportunity to be immersed in their - in their mother’s cultural background as well. Whilst I understand that that would be a concern for Dad, I think there are certainly some benefits for the children to be allowed to - to travel overseas to the United Kingdom with their mother.
The father sought that, should orders be made permitting oversea travel, it be prohibited until Y attains the age of 10. The court child expert indicated no concern about the children being ‘too young’ to benefit from the experience of travel overseas:
And so it might be that the court could consider orders being made to the effect that at least until the children are of an age where they can give some sort of view about whether they might like to go overseas or not, this could be the sort of case where it is appropriate for travel to be limited until that time. Do you accept that?---Not exactly, simply because parents make decisions for children all the time about overseas travel, especially if - if that’s where they’re from or if they’ve got members - members of family that they wish to see. Simply because a child isn’t - is too young doesn’t necessarily mean that they wouldn’t benefit from - from that experience. .
I accept the evidence of the court child expert that it would be an “absolute benefit” for the children to have time with the extended maternal family and be provided with a real opportunity to be immersed in the mother’s cultural background. I find that the children would benefit from being permitted to travel overseas, particularly with the mother in circumstances where the extended maternal family resides in the UK. The maternal grandfather cannot travel and the maternal great grandmother is 91 years of age and is cared for by the maternal grandmother. It is important that the children know and have a relationship with the maternal family as well as the paternal family.
I order that the children’s names be removed from the Family Law Watchlist. I also order that the children are permitted to travel internationally pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth).
I make orders in relation to international travel as proposed by the father, with the exception that the mother may travel overseas with the boys provided that the travel not exceed a maximum of 21 days in duration, only occurs once every second year and occur as far as practicable during the children’s school holiday periods and as far as practicable during the mother’s time, with appropriate telephone/video calls with their father to take place while they are away
INJUNCTIONS
The parties are restrained from booking medical appointments or other activities with the children during the other parent’s time, except by prior written agreement. The father raised concerns about the children engaging in sport, his evidence that their engagement in sport is important to him and he was concerned that the mother would not facilitate their attendance at sport during her time. The mother denied that this was the case. Whilst I do not propose to make any specific orders about the children’s attendance on sport, I have noted the parents’ evidence that they use their best endeavours to facilitate the children’s attendance on winter and summer team sports during their time.
The mother proposed an order that the father be restrained from offering his home to be rented by another person whilst the children are in his care. The parties agreed to a mutual restraint on each of them offering their homes for any short-term rental when the children are in their care and they are staying at the home. I find that an order of this nature is in the children’s best interests and I so order.
BEST INTERESTS – PRIMARY CONSIDERATIONS
Meaningful relationship with each parent: s 60CC(1) of the Act
I find that the children have a meaningful relationship with each of their parents. It is clear from the evidence of the court child expert and from each of the parents that both the mother and the father love their children and that the children enjoy spending time with each them and derive benefit from having a relationship with each of them.
I accept the mother’s evidence that she has and will continue to foster and encourage the boys’ relationship with their father. Her case is that the boys enjoy a meaningful relationship with him and derive benefit from the time they spend with their father (and paternal family). The court child expert opined that the children have positive relationships with the mother and the father, and I find that the children do have a close relationship with the father.
The need to protect the child from harm: s 60CC(2) of the Act
The mother did not submit that the father’s mental health issues pose an unacceptable risk to the children, though she submitted that it did pose a risk. I find that any risk to the children posed by the father’s historical mental health issues and low risk of future relapse is ameliorated by the father’s regular attendance on Dr E, his treating psychiatrist, ordered by consent.
The mother alleged that the father had engaged in family violence during the relationship and after separation. The mother also submitted in her case outline that the father’s engagement in coercive and controlling behaviour during the relationship and after separation poses a “significant” risk to the children both indirectly, by impairing the mother’s parenting capacity, and directly by virtue of the coercive and controlling behaviour. The mother called no evidence in relation to the impact of the father’s behaviour on her parenting capacity. The court child expert gave some evidence of if the children were exposed to coercive or controlling behaviour by being used as messengers this could cause the mother stress. There is no evidence that the conduct complained of, and which I find has occurred on the balance of probabilities set out herein, has or is likely to impair the mother’s parenting capacity. Importantly, the mother did not seek a finding that the father poses an unacceptable risk to the children and sought orders that the children spend time with the father on alternate weekends and during school holidays. The risk identified by the family consultant of the children being used as messengers is addressed through the restraint on such conduct. Accordingly, I do not find that the father poses a risk the children, indirectly or directly, as a result of coercive or controlling behaviour.
I find that any of risk of harm that does arise from the father engaging in behaviour that coerces or controls the mother is ameliorated by the orders made, namely those for sole parental responsibility, for the majority of changeovers to occur at school/daycare (therefore minimising the parties’ contact), for the father to complete a men’s behaviour change course to address his behaviour; and the various restraints including that the children not be used as messengers.
The mother also seeks an order by way of injunction preventing the father from approaching her place of residence or workplace. It was submitted on the mother’s behalf in her case outline that she finds communication with the father problematic, “describing ‘interrogation’ and feeling “intimidated” and that she seeks certain restraints. As detailed above I accept the mother’s fear is genuine. There is no reason for the father to approach the mother’s workplace or home and accordingly I make the restraint as sought.
The father did not submit that the children are at risk of harm in the care of the mother.
BEST INTERESTS – ADDITIONAL CONSIDERATIONS
I must now address any of the additional considerations outlined in s 60CC(3) that apply in this case or have not otherwise been addressed in the body of this judgment.
In relation to the extent that each parent has taken the opportunity to engage with the children and their parental responsibilities, the mother has been and remains the children’s primary carer, by consent pursuant to these orders. The parties have a difficult and strained co-parenting relationship. The father reports the mother has excluded him from decisions and the mother finds the communication with the father to be demanding and interrogating. Notwithstanding this, each parent however wishes to be involved in making decision and spending time. Each has taken the opportunity to participate in decision making and spending time with their sons.
The proposed orders will not significantly change the children’s circumstances, however the change sought will be to reduce the number of times the parties undertake changeover and reduce conflict.
It is my view that the orders I make are least likely to lead to the institution of further proceedings and I note the commitment each party has made to improve their communication through the courses each consented to attending.
ICL COSTS AND DISCHARGE
That within 28 days the father is to pay to Legal Aid NSW the sum of $8,856.76 for the Independent Children’s Lawyer’s costs. The Court notes that the mother is in receipt of a grant of Legal Aid in these proceedings.
The Independent Children’s Lawyer is hereby discharged.

I certify that the preceding two hundred and seventy-nine (279) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran.
Associate:
Dated: 14 August 2023

File number(s):	SYC 6927 of 2019
Judgment of:	CURRAN J
Date of judgment:	14 August 2023
Catchwords:	FAMILY LAW – PARENTING – whether an order should be made for equal shared parental responsibility – where the parents have no capacity to communicate – where the father has a history of poor mental health - whether the father’s mental health poses a risk to the children – where there are allegations of coercive and controlling family violence – whether the father’s conduct amounts to family violence under the Act – whether the father’s time with the children should occur each Saturday – whether orders should be made to permit overseas travel – whether overseas travel should be prohibited until the children attain an older age – whether the mother should be permitted to apply for passports for the children – where orders made for sole parental responsibility – where orders made permitting the children to travel overseas
Legislation:	Australian Passports Act 2005 (Cth) s 11 Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B 68B, 68C, 65DAA, 65DAC, 65Y Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:	Amador & Amador (2009) 43 Fam LR 268 Briginshaw v Briginshaw (1938) 60 CLR 336 Carter & Wilson [2023] FedCFamC1A 9 Eagleton & Eagleton [2019] FamCA 894 Fitzwater v Fitzwater (2019) 60 Fam LR 212 Halifax & Fabian [2010] FamCA 1212 Illgen & Yike [2018] Fam CA 17 Isles & Nelissen (2022) 65 Fam LR 288 Jones v Dunkel (1959) 101 CLR 298 Keenan & Keenan [2023] FedCFamC1F 186 M v M (1988) 166 CLR 69 Marvel & Marvel (2010) 43 Fam LR 348 Olivier & Olivier [2020] FamCA 639 Ramzi & Moussa [2022] FedCFamC2F 1473
Division:	Division 1 First Instance
Number of paragraphs:	279
Date of hearing:	11-14 April 2023
Place:	Sydney
Counsel for the Applicant:	Mr Richardson
Solicitor for the Applicant:	Lander & Rogers
Counsel for the Respondent:	Mr Reeves
Solicitor for the Respondent:	Hillcrest Family Lawyers Pty Ltd
Solicitor Advocate for the Independent Children’s Lawyer:	Ms Karagiannis
Solicitor for the Independent Children’s Lawyer:	Legal Aid NSW

SYC 6927 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR BARTRAM Applicant
AND:	MS MARSDEN Respondent
INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	CURRAN J
DATE OF ORDER:	14 AUGUST 2023