Chapman & Chapman - [2023] FedCFamC1F 972

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Chapman & Chapman [2023] FedCFamC1F 972

File number: MLC 6201 of 2014

Judgment of: HARTNETT J

Date of judgment: 15 November 2023

Catchwords: FAMILY LAW – PARENTING – Best interests – Where final parenting orders were made by consent – Where both parties seek sole parental responsibility – Where the children currently live with the mother – Where one child has an estranged relationship with the father – Where the mother alleges serious family violence perpetrated by the father – Where the mother’s allegations of abuse and family violence by the father were unsubstantiated – Where the father and the Independent Children’s Lawyer allege the children are susceptible to emotional damage caused by the mother’s conduct – Where the Court is satisfied the children have sustained serious psychological harm by reason of their subjection and exposure to the mother’s emotionally abusive behaviour – Where the presumption of equal shared parental responsibility is rebutted – The father have sole parental responsibility and the children live with him – The mother be restrained from any contact with the children for three months – The children spend defined time with the mother thereafter.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII, ss 11F, 60CA, 60CC, 61C, 61DA, 65DAA, 67Q, 69ZW, 102NA

Federal Circuit Court of Australia Act 1999 (Cth) s 39

Cases cited:
Blinko & Blinko [2015] FamCAFC 146

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Goode & Goode (2006) FLC 93-286

Isles & Nelissen (2022) 65 Fam LR 288

M & M (1988) 166 CLR 69

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Mulvany & Lane (2009) FLC 93-404

Rice v Asplund (1979) FLC 90-725

Russell & Close [1993] FamCA 62

Division: Division 1 First Instance

Number of paragraphs: 205

Date of hearing: 3 - 5 April 2023; 2 - 4 August 2023 & 19 September 2023

Place: Melbourne

Counsel for the Applicant: Mr Jackson

Solicitor for the Applicant: Clark Family Lawyers

Counsel for the Respondent: Mr Hutchings

Solicitor for the Respondent (from 2 August – 19 September 2023): Trapski Family Law

Solicitor for the Respondent (from 3-5 April 2023): KHQ Lawyers

Counsel for the Independent Children's Lawyer: Ms Agresta

Solicitor for the Independent Children's Lawyer: Victoria Legal Aid
ORDERS

MLC 6201 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CHAPMAN

Applicant

AND:
MR CHAPMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

15 NOVEMBER 2023

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
2.The father have sole parental responsibility for the children X born 2010 and Y born 2011 (“the children”).
3.In exercising parental responsibility, the father keep the mother informed in writing in advance (where practicable) as to all decisions proposed to be made by him, and he consider the mother’s views as to any issue prior to making a decision where practicable.
4.The father as soon as practicable arrange for Y’s attendance upon a Paediatrician for assessment of any disorders that may exist and the father is to pay the costs of same.
5.The children live with the father.
6.For a period of 3 months (“contact moratorium period”) from the making of these orders, the mother, her servants and/or agents be and are hereby restrained from spending time or communicating with the children by any means, including mail, telephone, email, text message or social media.
7.During the contact moratorium period:
(a)in the event the children contact or communicate with the mother, the mother shall not respond to such contact or communication and shall report such contact or communication to the father via email within 12 hours of her receiving it;
(b)in the event the children attend upon the mother at her home or any other location save as explicitly outlined in these Orders, the mother shall report same to the father and shall do all things necessary to facilitate the children’s return to the father;
(c)the mother shall be at liberty to contact the children’s school in a manner approved by the school but not to include the mother’s personal attendance at the school to obtain updates in relation to their progress, and the mother shall be at liberty to provide a copy of these parenting orders to the children’s school as authority for same; and
(d)the mother shall otherwise be restrained from contacting or personally attending upon the children’s school.

8.The children spend time and communicate with the mother after the contact moratorium period as follows:
(a)for the remaining part of the first school term of 2024 and during all school terms thereafter:
(i)from the conclusion of school Friday, or at the prior written election of the mother, 10.00am Saturday until 5.00pm Sunday, recommencing on the first Friday or Saturday at the mother’s election after the commencement of each school term; and
(ii)each Wednesday, at the mother’s election, from the conclusion of school until 6.30pm with the mother to deliver the children to the father’s residence at the conclusion of time.

(b)for one half of all term school term holidays, commencing at the conclusion of Term 1 of 2024:
(i)the first half in even numbered years from the conclusion of school on the last day of term until 5.00pm on the middle Saturday (and with the father for the balance of the school holidays); and
(ii)the second half in odd numbered years, from 5.00pm on the middle Saturday until the commencement school (and with the father for the balance of the school holidays).

(c)for one half of all long summer holidays save when the children spend time with the mother in the second half:
(i)the first half in even numbered years, from the conclusion of school on the last day of term until 5.00pm on the middle day (and with the father for the balance of the school holidays); and
(ii)the second half less 48 hours in odd numbered years, from 5.00pm on the middle day until 48 hours prior to the commencement of school (and with the father for the balance of the school holidays).

(d)for Christmas, notwithstanding the arrangements for the long summer holidays in Order 7(c):
(i)in even numbered years, from 4.00pm Christmas Eve to 4.00pm Christmas Day (and with the father from 4.00pm Christmas Day until 4.00pm Boxing Day); and
(ii)in odd numbered years, from 4.00pm Christmas Day to 4.00 pm Boxing Day (and with the father from 4.00pm Christmas Eve until 4.00pm Christmas Day).

(e)on each of the children’s birthdays:
(i)if on a weekday, from the conclusion of school (or 3.30pm if a non-school day) to 7.00pm (and the father is to spend time with the children on the same terms if the children are otherwise in the mother’s care on the children’s birthday); and
(ii)if on a weekend, from 10.00am to 2.00pm (and the father is to spend time with the children on the same terms if the children are otherwise in the mother’s care on the children’s birthday).

(f)On the mother’s birthday:
(i)if on a weekday, from after school (or 3.30pm if a non-school day) until 7.00pm (and the father spend time with the children on the same terms if the children are otherwise in the mother’s care on her birthday); and
(ii)if on a weekend, from 10.00am until 2.00pm (and the father spend time with the children on the same terms if the children are otherwise in the mother’s care on her birthday).

(g)on the Mothers’ Day weekend from 5.30pm Friday until 5.00pm Sunday, or the commencement of school Monday upon the mothers’ prior written election and the mother’s time be suspended in like manner for the Fathers’ Day weekend.
(h)any such further or other times as agreed between the parties in writing (including via SMS text message).

9.The children spend time with the mother and otherwise live with the father each Easter period notwithstanding any other orders herein as follows:
(a)with the father for Catholic Easter from 5.30pm Easter Thursday until 5.30pm Easter Monday, except for the years where Orthodox Easter and Catholic Easter fall on the same weekend, when the children will live with the father from 5.30pm Easter Thursday until 5.30pm Easter Saturday and spend time with the mother from 5.30pm Easter Saturday until 5.30pm Easter Monday.
(b)in the event that Orthodox Easter and Catholic Easter do not fall on the same weekend, the children shall spend time with the mother for Orthodox Easter from 5.30pm Easter Thursday until 5.30pm Easter Monday.
(c)in the event that Catholic Easter falls during the Term 1 school holidays and Orthodox Easter does not fall during Term 1 school holidays, the children spend one half of such term holiday period with the mother to not include Catholic Easter.
(d)in the event that Catholic Easter and Orthodox Easter fall during Term 1 school holidays, the children shall be in the care of each of the father and mother for the relevant Easter and Orthodox periods applicable to each of the mother and the father and the balance of Term 1 school holidays are to be divided equally between the parties.

10.Changeovers not otherwise provided for herein shall take place at the children’s respective schools where appropriate, and otherwise in a supermarket carpark in Town B, save as otherwise agreed in writing.
11.The parties be at liberty to provide these Orders to any school attended by the children or either of them, together with any medical professional or extra-curricular provider for the children or either of them.
12.The parties be permitted to contact the children when not in their care by telephone, FaceTime, Zoom, WhatsApp, Microsoft Teams or any video call to the other’s mobile phone or the children’s mobile phone or Samsung Galaxy Tablet between 4.00pm and 8.00pm each Tuesday, Thursday and Sunday and on special occasions.
13.The children be reasonably permitted to contact their parents by telephone, SMS text message, FaceTime, Zoom, WhatsApp, Microsoft Teams or any video call at their request and the parent caring for them shall facilitate same.
14.The parties be permitted to liaise with the children’s school and to obtain documents ordinarily made available to parents, including but not limited to newsletters, reports, photos, photograph order forms and the like, and these Orders shall act as an authority for same save that this Order is subject to the operation of Orders 6 and 7 herein.
15.The parties do all acts and things required to ensure both have full and unrestricted access to any online or electronic communication platform used by any school attended by either of the children.
16.The mother be restrained from enrolling the children or either of them in any extracurricular activity without first obtaining the written consent of the father.
17.The parties be entitled to attend all extracurricular activities and school related events that parents are normally invited to attend regardless of who has the children in their care save that this Order is subject to the operation of Orders 6 and 7 herein.
18.The father shall keep the mother advised of any medical practitioners treating the children in a timely manner and the mother and father shall forthwith advise the other of any urgent medical treatment as needed by the children or either of them whilst in their respective care.
19.Each of the parties are permitted to liaise with any medical practitioners treating the children and obtain documents ordinarily available to parents, and these orders shall act as authority for same.
20.The parties are to notify the other 28 days prior to any proposed overseas travel with the children or either of them and provide the other parent with a full itinerary 28 days prior to travel including flight details, accommodation, and contact details.
21.The parties are to notify each other within 24 hours of any changes to their mobile or landline contact telephone numbers, their residential addresses, email addresses or the children’s mobile telephone numbers.
22.Each of the parties is to advise the other forthwith of any serious illness or injury, or any hospitalization, of the children, or either of them whilst in their care, along with the names, addresses and contact details of any hospital and/or treating medical, dental and/or allied health professional so that each parent may consult same and be permitted to attend upon the child or children.
23.The parties be restrained from:
(a)denigrating the other party or the other party’s family to or in the presence and/or hearing of the children or either of them;
(b)discussing court proceedings with or in the presence and/or hearing of the children or either of them;
(c)passing messages through the children or either of them; and
(d)involving the children in any form of dispute between the parents or otherwise.

24.There is leave to the father to apply on short notice to the Chambers of Justice Hartnett with respect to the operation of these orders.
25.The Independent Children’s Lawyer be discharged six months after the making of these orders.
26.Otherwise, all extant applications be dismissed, and the matter removed from the list.

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 Chapman & Chapman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARTNETT J
PRELIMINARY

The proceeding involves competing applications for parenting orders as sought under Part VII of the Family Law Act1975 (Cth) (“the Act”). The applications before the Court are in respect of the two children of the parties marriage, X born 2010 and Y born 2011 (collectively “the children”). The parties are the applicant mother (“the mother”) and the respondent father (“the father”). An Independent Children’s Lawyer (“ICL”) was appointed in the proceeding. At the conclusion of the trial, the ICL sought orders in relation to the parties’ children which almost entirely aligned with the orders as sought by the father. Such orders, in particular, provided for the father to have sole parental responsibility of the children and for the children to live with him and spend time with the mother in a way that would ensure the success of the children’s transition from the primary care of the mother to that of the father.
The parties have an extensive litigation history, which commenced on 16 July 2014, and with each party having filed numerous applications sporadically since that time. The history of relevant proceedings and orders is discussed below.
On 16 July 2014, the father filed an Initiating Application in the Federal Circuit Court (as it then was) (now the Federal Circuit and Family Court of Australia Division 2) (“Division 2”) seeking, on an interim basis, a recovery order be issued pursuant to s 67Q of the Act. The mother at the time had unilaterally removed the residence of the children from Town B to Town C. The father sought to place the children in his care and for them to spend supervised time with the mother.
On 25 July 2014, the mother filed a Response to Initiating Application seeking interim orders for the children to live with her and spend alternate weekend time with the father.
On 29 July 2014, interim orders were made by consent for the children to live with the mother and spend time with the father for two periods of three consecutive nights. Orders were also made appointing an ICL.
On 11 August 2014, further interim orders were made by consent for the children to live with the mother. The children’s time spent with the father was increased by those orders to each weekend from Friday afternoon to Monday morning with provision for additional telephone time.
On 2 October 2014, further interim orders were made for the children to remain living with the mother, for them to spend time with the father for three weekends out of four, and for the children to spend time with the father in and around the Christmas period.
On 29 October 2014, final parenting orders were made by consent. The final parenting orders made provision for each of the following:
(1)The parties to have equal shared parental responsibility for the children.
(2)The children to live with the mother.
(3)The children to spend time with the father:
(a)for the first three weekends out of every four from Friday evening to Monday morning;
(b)one Thursday afternoon each month; and
(c)for half of each school holidays.
(4)The children to spend special occasion time with each parent to include birthdays, holidays, and Catholic and Orthodox Easter.
(5)The parties to keep a communication book, with both parties to limit entries to child‑focused issues only.
(6)The children to attend Town C kindergarten and D School in Town C unless otherwise agreed in writing.
(7)The mother to be restrained from moving more than 30 kilometres from D School in Town C.
(8)The parties to notify and keep each other informed in relation to various issues including but not limited to medical practitioners treating the children, any proposed travel, and changes to contact details.
(9)The parents to advise the other as soon as practicable of any serious illness or injury to the children or either of them and, immediately, in the case of any hospitalisation of the child or children.
I note the above is not an exhaustive list of the parenting orders made on 29 October 2014, but rather a summary of those orders relevant to the issues raised in the current proceeding, to provide a context for the current dispute.
Less than six months after the making of final parenting orders, the father filed an Initiating Application on 14 April 2015 seeking orders for the children to live with him. The father alleged the children were at risk of physical abuse in the mother’s care.
The parties’ competing applications were listed for hearing on 12 May 2015 and orders were made by consent for the mother to collect the children from the father’s residence the following day and for the parties to engage in family therapy. The father’s application filed 14 April 2015 was also listed for hearing in relation to the discrete issue of whether the test as set out in Rice v Asplund (1979) FLC 90-725 was satisfied, namely whether there were changed circumstances of such significance as to warrant a re-visiting of the earlier final parenting orders.
On 17 December 2015, orders were made dismissing the father’s application to re-visit the earlier final parenting orders. Consent orders were made in relation to the parties’ attendance at family therapy (as earlier ordered) such that the mother pay one third, and the father two thirds, of the cost of same. Some seven months had passed since the making of the relevant order, but family therapy had not then commenced.

On 12 August 2016, the father filed a Contravention Application to compel the mother’s attendance at family therapy (the father withdrew this application on the making of substituted final orders on 29 September 2016).
On 25 August 2016, orders were made re-appointing an ICL in the matter.
On 29 September 2016, final parenting orders were again made by consent with the children to live with the mother and spend time with the father largely in the same terms as the final orders made on 24 October 2014, for three weekends out of four during school terms and from Friday to Monday; for half school holidays; and for special occasion time. Further orders made by consent included for the parties to undertake family therapy at an organisation nominated by the ICL. It is recorded in a notation to the orders that the ICL nominated Mr E to conduct the family therapy.
That family therapy with Mr E finally commenced in 2017. The mother attended only three sessions (the father went on to attend seven, and the children six sessions). The mother claimed she could not afford to pay half. The father offered to pay the full fee to continue. The mother declined, claiming that in one session attended by her, the father “was screaming in my face for 45 minutes”.[1] Her evidence at trial was that her participation in family therapy was the father “seeking to control” her as he was, in the Court process.[2] I find the family therapy at that time was not successful because of the mother’s failure to genuinely engage.
[1] Transcript 3 April 2023, p.61 line 13.
[2] Transcript 3 April 2023, p.63 line 38.
Between the making of the above orders, and subsequent 29 July 2019 orders, the father spent time with the children mostly in accordance with the 29 September 2016 orders.
In mid-2019, Y alleged that the father threatened her with a knife and threatened to kill her if she did not answer questions asked by him about the mother. X initially corroborated Y’s account, saying she heard what it was Y alleged, but from a different room. Such allegations were denied by the father. The mother attended upon the police, taking the children with her. Thereafter, she withheld the children from spending time with the father.
The allegations made by Y were reported (by the mother) to Victoria Police. The mother also reported those allegations to the Department of Families, Fairness and Housing (“DFFH”) (then the Department of Health and Human Services (“DHHS”)) in mid-2019. I note this was the fifteenth report to DHHS in relation to the family, with the previous fourteen being closed at intake and considered “malicious in nature”.[3] The report of mid-2019 proceeded to protective intervention due to concerns for the children's safety in the care of the father based on the allegations as made by Y, and as initially supported by X. DFFH substantiated emotional harm and found the father responsible for that harm as caused to Y.
[3] Department of Health and Human Services Report dated 21 January 2020, p.1.
A short time later, the mother obtained an interim intervention order (“IVO”) on behalf of the children. That order sought to preclude the father from spending time with or communicating with the children. That order was made final in early 2020 and lasted for a period of 12 months. The father consented to the order without admissions.
On 24 September 2019 the mother sought orders to suspend the operation of the 29 September 2016 orders. Such orders were suspended in operation until 16 January 2020.
In late 2019, the father was charged by Victoria Police.
In late 2019, DFFH provided a case plan to the parties and otherwise ceased its involvement with the family.
In late 2019, X told Ms F, the children’s counsellor, that “[Y] lies a lot”.[4]
[4] Transcript 3 August 2023, p.176 line 12.
In early 2020, the father’s charges by Victoria Police were withdrawn.
THIS APPLICATION
On 23 December 2019, the mother filed an Initiating Application seeking sole parental responsibility for the children and for the children to live with her on a final and interim basis. She sought the father’s time with the children be reserved as an interim measure with further orders sought to be particularised by her following the release of a Family Report. The mother also sought the application be heard urgently, an ICL be appointed, for DFFH to provide a response pursuant to s 69ZW of the Act and for the father to engage in a men’s behaviour change program and engage in counselling with a drug and alcohol counsellor.
On 30 January 2020, the father filed a Response to Initiating Application seeking interim orders for the children to live with the mother and for the children to spend time with him for two hours per week with such time to be professionally supervised, and for him to meet the costs associated with the supervision. Interim orders were also sought by him for the parties to attend Family Dispute Resolution pursuant to s 11F of the Act and/or for an ICL to be appointed. The father sought leave not to particularise final orders as sought by him at that time.
On 4 February 2020, orders were made pursuant to s 39 of the Federal Circuit Court of Australia Act 1999 (Cth) transferring the matter to the Family Court of Australia (as it was then known) (now the Federal Circuit and Family Court of Australia Division 1) (“the Court”). Additionally, an order was made for the appointment of an ICL; consent orders were made for the children to live with the mother and spend supervised time with the father under the supervision of G Family Services City H for not longer than two hours each week, and for the father to be responsible for the supervisor’s costs. City H was a location as chosen by the mother which was some distance from the father’s home in Suburb J.
On 27 March 2020, the father filed an Application in a Proceeding seeking interim orders for supervised time to commence under the supervision of Family Contact Services. Consent orders to that effect were made on 7 April 2020. This application was made due to COVID-19 lockdowns being introduced and supervised time no longer being face to face.
On 19 August 2020, orders were made for the parties to attend upon a Family Consultant in accordance with s 11F of the Act and for the children or one of them (X) to spend time with the father as follows:
(1)each Monday and Friday (both children) for a period of 30 minutes by Zoom (or telephone), to occur between 5:00pm and 7:00pm and to commence immediately;
(2)on 29 August 2020 and 12 September 2020 (X) in Town C with such time to be supervised by a professional supervisor nominated by the mother and paid for by the father;
(3)commencing on 26 September 2020, (X) in Suburb J, with such time to be unsupervised, from 10:00am until 2:30pm;
(4)on 10 October 2020, (X) in Town C, with such time to be unsupervised, between 10:00am until 2:30pm;
(5)on 24 October 2020, in Suburb J, (both children) with such time to be unsupervised, between 10:00am until 2:30pm; and
(6)on 7 November 2020 in Town C, (both children), with such time to be unsupervised, between 10:00am until 2:30pm.
Y did not spend time or communicate with the father in accordance with the orders made on 19 August 2020.
On 10 November 2020, the mother filed an Application in a Case seeking orders that Y’s communication and time spent with the father be in accordance with her wishes, and that X communicate with the father in accordance with her wishes and spend time with him when assessed suitable by the ICL and the psychologist upon whom the children were then attending, Ms F. Ms F was a psychologist in City H whom the mother had engaged without any consultation with the father. Ms F had commenced counselling with the children in December 2019, and between then and February 2022 had seen the children twenty three times. The children continued to attend upon her until September 2022.
On 19 November 2020, a Senior Judicial Registrar reserved judgment after a hearing as to further interim orders as proposed by the parties, and made orders for the children to spend unsupervised time with the father for a period of four and a half hours on the immediately following weekend.
On 30 November 2020, orders were made by the Senior Judicial Registrar that until further order, the children live with the mother; X spend time with the father each alternate Sunday for two hours, and via video communication each Wednesday for half an hour. Y’s time with the father was reserved. However, in the event Y wished to have time or communicate with the father, that time was to co-ordinate with the time spent by X pursuant to the orders. A further order provided for the mother to do all acts and things to encourage Y to spend time with the father. The mother was restrained from taking the children or either of them to any further treating medical health specialist without the written consent of the father and the ICL. The children were to continue their attendance upon Ms F.
Interim consent orders were made at a Family Dispute Resolution Conference on 25 March 2021. The orders provided for X to spend time with the father each alternate Sunday for three hours in the Town C environs and via video call each Wednesday. The orders also provided for the parties to complete the relevant enrolment to enable the children to spend supervised time with the father at G Family Services City H, face to face time between the father and children then being possible.
On 28 March 2022, the final hearing was to commence. By consent, the parties adjourned the proceeding to 10 October 2022. The purpose of the adjournment was to allow the parties to attend family therapy with Ms K. That therapy was due to commence in the following month. Relevant orders made that day were as follows:
(1)The parties attend and make the children available to attend upon Ms K for reportable family therapy;
(2)For the purposes of family therapy, the father be responsible for meeting Ms K’s costs and the purpose of family therapy be primarily directed at restoring the relationship with the father and the children with a view to Y being able to enjoy an ongoing relationship with the father.
(3)The parties be at liberty to provide Ms K copies of all Family Reports, copies of all counselling, supervised time and s 69Z (sic) reports and a copy of any professional assessments of the children or either child;
(4)Ms K be authorised to speak to Ms F about the progress of Ms F’s counselling and the parents shall follow all reasonable recommendations by Ms K as to whether the ongoing attendance upon Ms F over the course of the family therapy shall continue and if so, in what form.
(5)The parties do all things necessary to obtain referrals and facilitate each child having the following assessments (at the father’s cost):
(a)X to an Educational Psychologist for any learning difficulties if directed by either X’s school or Ms K; and
(b)Y to a Paediatrician for ASD, ADHD, ODD and any other assessments, if recommended by Ms K.
(6)X recommence weekly tutoring sessions at L Education Centre, with the costs to be shared by the parties equally and the father paying half the cost to the mother directly by bank transfer at least two days prior to each session.
On 18 August 2022, a further adjournment of the trial was sought and obtained by the parties in circumstances where the parties had not been able to continue their family therapy with Ms K (because of Ms K’s personal circumstances) beyond May 2022, but wished to continue such attendance upon Ms K. That had become possible from September 2022. That family therapy resumed and continued until January 2023.
Ultimately the matter did not resolve.
On 13 February 2023, an order was made pursuant to s 102NA(2) of the Act to provide legal representation to the mother for the final hearing.
The final hearing commenced on 3 April 2023. The mother was cross-examined by the father’s counsel and remained under cross-examination at the end of the hearing that day.
The matter did not proceed on 4 April 2023 due to the illness of counsel for the ICL. The ICL approached Chambers later that day seeking leave for counsel to appear via Microsoft Teams on 5 April 2023, with such leave being granted.
On 5 April 2023, interim orders were made for X to spend time with the father for one period of three consecutive nights and two periods of two consecutive nights during the forthcoming school term holiday, commencing 5 May 2023, and that otherwise she spend time with the father each alternate weekend from the conclusion of school on Friday until Sunday afternoon, commencing 2 May 2023, together with each alternate Tuesday for a period of two hours, and at other times as agreed in writing. Further orders made provided for Y to spend time and communicate with the father in accordance with her wishes. The matter was otherwise adjourned part heard.
The matter next proceeded on 2 August 2023 until 4 August 2023. Judgment was reserved. What occurred in that part of the trial is significant and I set it out below.
On 2 August 2023, the mother sought an adjournment of the proceeding. That application was opposed by the other parties and refused by the Court. There had already been two adjournments of the trial for the parties to try and reach a consensus in the process of family therapy. The mother was not supportive of that process and so the unsuccessful outcome was not unexpected. A byproduct of that approach was that Y’s estrangement from her father continued, which I find was an outcome sought by the mother.
On this occasion, the basis of the mother seeking an adjournment was that she had then the care of the children with no one to assist her. She had accordingly brought the children to Court and at the re-commencement of the trial was seated in the safe room with them. The children ought to have been attending their school in Town C. It was the mother’s intention, if the trial was proceeding, to have the children remain in the Court building for three days, being the remaining duration of the trial. She had booked hotel accommodation for herself and the children. The children had some homework that in her view they could complete in the safe room, or the public areas of the building.
The Court considered this arrangement did not promote the children’s best interests and put them squarely in the midst of their parents conflictual relationship. All counsel in the proceeding submitted that it was not a suitable arrangement for the children. The mother had ample time, being from 5 April 2023, to plan for the care of the children. Whilst the mother claimed to have an inability to place the children in afterschool care for the duration of the trial, claiming they would not be accepted into the program, I find she made no genuine attempt in that regard and nor did she receive a rejection of her proposal from the relevant caregivers as claimed by her. The mother also did not seek assistance from any friends in the local area. Indeed, she claimed that she and the children had no friends and were socially isolated in Town C. I find that the mother determined to bring the children to the Court, and in so doing make them aware of the proceeding and its impact, adverse, upon her. The children would conclude that the litigation was the father’s fault and feel protective of the mother and concerned for her health. That is exactly what happened.
When it was proposed by counsel for the father that the children go home with the father and be cared for by his parents, together with other members of the paternal family, for two nights and two days, the mother strongly objected to that proposal, stating his parents were too unwell and that Y “won’t go with him”,[5] and that “she doesn’t want to see him”.[6]
[5] Transcript 2 August 2023, p.122 line 18.
[6] Transcript 2 August 2023, p.122 lines 28-29.
After the Court indicated to the parties that it was considering making orders to secure the accommodation and care of the children with the extended paternal family for two days, there was a brief adjournment for any further instructions to be taken and submissions made. Upon resumption, counsel for the mother submitted to the Court that he could not persuade his client to re-enter the courtroom, nor could he obtain instructions from her. The mother was in a distressed and agitated state in a room with the children in the Court building. On her own evidence, she had said to the children that “she had failed them” and that they would be spending some time with the father.[7] The ICL submitted that it was “a really terrible and difficult situation” and supported the making of an order for the children to go home with the father.[8] Counsel for the father sought such order. Counsel for the mother submitted “I have no alternative other than to agree with my learned friends….my priority must be the children in the Court.”[9]
[7] Transcript 3 August 2023, p.213 lines 32-33.
[8] Transcript 2 August 2023, p.126 line 33.
[9] Transcript 2 August 2023, p.127 lines 30-32.
I indicated to counsel for the mother that he should tell the mother that she was required to appear in the courtroom. The mother appeared. Arrangements were made for a Court Child Expert to be present in the courtroom. In the presence of the parties and counsel I then requested that the Court Child Expert and counsel for the ICL speak with the children to explain the orders that would be made by the Court that day and to facilitate the transition of the children into the father’s care. The mother was directed to leave the Court building. The father was directed to remain and to collect the children after they had spoken to the ICL and the Court Child Expert. These things occurred. It was conveyed to the children that the mother was distressed and unwell and needed to have some time by herself. Further, that they would see the mother in two days and return with her to Town C. Counsel for the ICL submitted that Y was “very, very angry and quite distressed and tearful, whereas [X] was quite resigned to what was happening … and was very good about it”.[10] Ultimately the children left in a “settled state”.[11]
[10] Transcript 3 August 2023, p.212 lines 20-21.
[11] Transcript 3 August 2023, p.212 line 26.
On 3 August 2023, the father gave evidence as to what had occurred on the evening prior, after the children had spoken with the ICL and the Court Child Expert, and from the time when they were approaching his car. He described X as “fine”, Y as “emotional”,[12] and both children as getting into the rear of his car and putting their seatbelts on before they drove off to travel to his and his parents’ home in Suburb J. Y expressed concern that she did not have an opportunity to say goodbye to the mother, which the father understood, and thereafter a conversation occurred between the children and the father during which “[Y] started to cheer up a bit”.[13] On arrival inside the home, the paternal grandparents emerged, and Y gave each of her grandparents a “big hug”, there were a “few tears”,[14] and the children then went upstairs to their bedrooms. The children agreed to sleep together in X’s bedroom. They went with the father to a supermarket to shop and picked up a pizza to eat that night. Y told her father a joke about Cinderella. The children played with some kittens in the house, watched TV, played “Smiley Attack” with their father, and went to bed.[15] Next morning, Y expressed concern about her mother and wished to speak to her. The father was supportive of that and sought the Court make such order.
[12] Transcript 3 August 2023, p.207 lines 1-2.
[13] Transcript 3 August 2023, p.207 lines 16-17.
[14] Transcript 3 August 2023, p.207 line 36.
[15] Transcript 3 August 2023, p.208 line 31.
On 3 August 2023, the children were cared for during the final hearing by the father’s brothers and an aunt. They all had a happy time.

The father’s parents, and his brothers, being previously close paternal grandparents and uncles to the children, had not seen Y overnight since July 2019. Y’s response to them was warm, as it was to her father. It was a far cry from the mother’s assertion that Y did not wish to see or speak with her father.
On 4 August 2023, at the conclusion of the hearing, the mother declined for the children to return to Town C to spend the weekend with her. She was aware that this was the children’s expectation and desire. She indicated that she did not wish for the children to see her in the mental state she was then in, and further, it was her position that if the children were going to live with the father on an interim basis, that they should remain ongoing in his care. The Court made, relevantly, the following interim orders which were consented to by the father and the ICL but not the mother:
(1)The father have sole parental responsibility for the children.
(2)The children live with the father.
(3)The children attend upon Ms K for therapeutic counselling and at the direction of Ms K (in conjunction with the ICL on such occasion or occasions as thought beneficial by Ms K) on such dates and at such times as directed by Ms K and that the costs of that counselling be borne by the father.
(4)For a period of three weeks from the date of the orders, the father facilitate the children communicating with the mother by telephone at all reasonable times.
(5)At the conclusion of the three-week period, the children spend time with the mother each alternate weekend from the conclusion of school on Friday or, at the mother’s election, Saturday morning until Sunday afternoon; and upon 24 hours written notice by the mother to the father each Wednesday or Thursday.
Further orders were made on 4 August 2023 for the ICL to explain the orders made that day to the children and that in the event the mother did not return the children to the father’s care as required by the orders, there was liberty to apply to Chambers on short notice.
On 19 September 2023, the matter came back before the Court for hearing following the mother’s failure to return the children to the father’s care in accordance with the operative interim orders. Orders were made granting the parties leave to make an oral application to re‑open the proceeding and for further evidence to be adduced; for each of the parties to rely upon further affidavit evidence, being the father’s affidavit filed 14 September 2023 and the mother’s affidavit filed 15 September 2023 with neither party nor the ICL seeking to cross‑examine the other as to that material. Leave was granted to the ICL and father to make an oral application for a suspension of time between the children and the mother. Orders by consent were made for the children to attend upon Ms K for therapeutic counselling the following day (an appointment that had been secured for some time) and for the mother to deliver the children to the appointment. Further relevant orders made by the Court were:
(1)The mother herself engage in such therapeutic counselling on 20 September 2023 if thought appropriate by Ms K. If the mother does so engage, she is to attend on her own and with no third party present.
(2)The father follow all reasonable directions of Ms K as to any involvement or non‑involvement by him in the therapeutic counselling of 20 September 2023.
(3)The father collect the children from the offices of Ms K at 11.00am on 20 September 2023.
(4)The father make an application with his employer for leave to be present with the children for the balance of the September 2023 school holidays.
(5)The children forthwith upon school recommencing after the September 2023 school holidays attend at their respective schools of M School for Y and N School for X.
(6)Orders 5 and 6 of the orders dated 4 August 2023 be suspended in their operation and in lieu thereof the children spend time with and communicate with the mother:
(a)for the balance of the duration of the school holidays there be no time spent with or communication had with the mother; and
(b)thereafter time spent between the mother and the children shall occur at G Family Services in City H on a fortnightly basis on such weekend dates and times as can be accommodated by G Family Services for a period of two hours and that the first weekend of time spent be the first weekend after the conclusion of the current school holidays subject to such availability; and
(c)the parties do all acts and things necessary to facilitate the provision of supervised time at G Family Services.
(7)That the mother is hereby restrained by herself, her servants and agents from communicating with the children; and in the event that the children communicate with the mother via their mobile phones and/or any computer devices and/or in any other way wherein they convey any suggestion of self-harm and/or running away from the father’s home to the mother’s home that the mother immediately contact the father and advise the father of such information as communicated by the children.
(8)Otherwise, the orders made on 4 August 2023 remain in full force and effect pending the delivery of judgment.
ORDERS SOUGHT
The mother initially sought a relocation of the children’s residence to City H but appeared to abandon that order sought in that she did not press it, nor provide the necessary evidence to support the making of such order, as conceded by her counsel.
Otherwise, and as particularised in the mother’s Further Amended Initiating Application filed 6 March 2023, the mother sought sole parental responsibility of the children; for the children to live with her; for X to spend time with the father each alternate Sunday for a period of seven hours with such further and other times, including overnight time, in accordance with X’s wishes in consultation with and by agreement between the parties; for Y to spend time and communicate with the father in accordance with her wishes, including being at liberty to join spend time arrangements between the father and X. Further ancillary orders in relation to communication, schooling, and international travel were also sought by the mother. None of these ancillary issues were particularly pressed by the mother.
The father sought, in 2020, that the parties have equal shared parental responsibility for the children; that the children live with the mother; and that there be a gradual increase in the communication had and time spent arrangements between himself and the children with such time to be initially supervised time, followed by weekly, daily unsupervised time, to overnight time with otherwise reasonable communication had. By February 2022, the father sought orders to reflect the previous final orders, being the children spending three out of four weekends with him, from Friday afternoon to Monday morning and half school holidays and special occasion time.
In the alternative, and from February 2022, as verbalized to Ms O, and later in orders sought by him at trial, the father proposed, amongst other orders, that he have sole parental responsibility for the children and that they live with him. This movement by him, away from an equal shared parental responsibility order with the children to live with the mother occurred in the context of the mother’s immutable position that his presence in the children’s lives did not advance their best interests; her refusal as a consequence to allow for and/or maintain his significant relationship with the children; and his belief that Y could not have a relationship with him unless she was removed from the mother’s primary care and decision making. The evidence supported that belief. The father also accepted that the totality of the evidence did not support the making of an order for equal shared parental responsibility as conceded by counsel for the ICL and counsel for the mother. Indeed, all parties sought that there be a sole parental responsibility order in favour of one parent. Otherwise, the orders sought by the father provided for time to be spent between the children and the mother, after a period of suspension of time between the mother and the children on an alternate fortnightly basis from Friday after school to Sunday evening and for half school holidays and special occasion days. Additionally, he sought general parenting orders not unlike those that had previously operated and to which the parties had consented.
The ICL, in their Outline of Case filed 28 March 2023, had not supported an order for equal shared parental responsibility. Subject to the testing of the evidence, it was the preliminary view of the ICL that it was in the children’s best interests for there to be an order for sole parental responsibility for the mother and that otherwise, the children live with the mother and spend increased periods of time with the father, whilst allowing for Y to spend such time, or not, depending on her wishes. Family therapy with Ms K was further recommended.
Having heard the evidence, in particular that of the mother, and that of Ms K, together with the concessions made by Ms O as to her opinions and recommendations, the ICL altered his view. Counsel for the ICL submitted in closing that the case was one about risk, but not a risk presented to the children by the father. Rather, the risk was that of psychological and emotional harm as caused to the children by the mother in her inability to allow Y a relationship with the father, and in her bare tolerance of X’s limited relationship with the father, that tolerance existing in the context of the mother having secured the alienation of Y from the father.
The ICL accordingly consented to the making of orders in the terms as sought by the father, save the ICL submitted to the Court that instead of alternate weekend time with the mother, the children spend Friday to Sunday for two consecutive weekends in three weekends during school terms to compensate for the children’s inability to spend Sunday overnight with the mother, as a consequence of the distance required to be travelled on a Monday morning to school. This proposal was put in the context of the children’s acknowledged need to maintain contact with their mother in their adolescent years.
MATERIAL RELIED UPON
The mother relied upon:
(1)Further Amended Initiating Application filed 6 March 2023;
(2)her affidavits filed 6 March 2023, 30 March 2023 and 15 September 2023;
(3)Department of Fairness, Families and Housing Section 67Z Response dated 21 January 2020; and
(4)affidavit of Ms F filed 14 February 2022.
The father relied upon:
(1)Further Amended Response filed 23 March 2023;
(2)his affidavits filed 23 March 2023 and 14 September 2023;
(3)affidavit of Ms P filed 12 August 2020; and
(4)affidavit of Ms Q filed 2 October 2020.
The ICL relied upon selected subpoena material as was tendered in evidence.
All parties relied upon the Family Report of Ms O dated 2 February 2022.
Both the ICL and the mother relied upon the Child Responsive Program Memorandum prepared by Ms R dated 26 October 2020.
Both the ICL and the father relied upon the affidavit of Ms K filed 22 March 2023.
LEGAL PRINCIPLES
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.[16]
[16] Goode & Goode (2006) FLC 93-286.
The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence.[17]
[17] Family Law Act 1975 (Cth) ss 61DA(1)-(2).
The presumption may also be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child.[18]
[18] Family Law Act 1975 (Cth) s 61DA(4).
When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents.[19]
[19] Family Law Act 1975 (Cth) ss 65DAA(1)-(2); Goode & Goode (2006) FLC 93-286.
The Act provides guidance as to the meaning of “substantial and significant time”,[20] and as to the meaning of “reasonable practicability”.[21]
[20] Family Law Act 1975 (Cth) ss 65DAA(3)-(4).
[21] Family Law Act 1975 (Cth) s 65DAA(5); Goode & Goode (2006) FLC 93-286.
The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends and holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
In the event the Court does not apply the presumption of equal shared parental responsibility it is open in its discretion to consider equal time (or significant and substantial time or any other appropriate arrangement) as being in the children’s best interests.
Pursuant to s 60CA of the Act:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
To determine the best interests of the child, “the Court must consider the matters set out in subsections (2) and (3)” of s 60CC of the Act.[22] Sections 60CC(2) and 60CC(2A) of the Act set out the primary considerations as follows:
[22] Family Law Act 1975 (Cth) s 60CC(1).
(2) The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A)In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In Mazorski & Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term ‘meaningful relationship’
What these definitions convey is that ‘meaningful’, when used in the context of ‘meaningful relationship’, is synonymous with ‘significant’ which, in turn, is generally used as a synonym for ‘important’ or ‘of consequence’… a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to a child. It is a qualitative adjective, not a strictly quantitative one. Quantitative concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In McCall & Clark [2009] FamCAFC 92 the Full Court at 83,476 accepted the above definition as the appropriate interpretation of ‘meaningful relationship’.
Section 60CC(2)(a) of the Act as set out above requires the Court to weigh up the benefit to the child of having a relationship with both parents. In doing so, the Court must give primary consideration as to whether there is an unacceptable risk of physical and/or psychological harm to the child in spending time with either parent.[23] Upon establishing the existence of an unacceptable risk, the Court must then determine whether that risk “is able to be sufficiently managed or ameliorated”.[24]
[23] M & M (1988) 166 CLR 69 at [25].
[24] Blinko & Blinko [2015] FamCAFC 146 at [83] referring to Russell & Close [1993] FamCA 62.
In Isles & Nelissen (2022) 65 Fam LR 288 the Full Court of the Federal Circuit and Family Court (Division 1) Appellate Jurisdiction relevantly observed:
50In Fitzwater, Austin J rejected the proposition that a finding of unacceptable risk needs to be made according to the civil standard of proof, saying:
…
134.It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135.The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136. In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137.The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138.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 (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139.Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.
…
142.As was recognised by Hale LJ (as her Ladyship then was) in Re C and B (Children) (Care Order: Future Harm) [2001] 1 F.L.R 611 at [28], in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not. It could hardly be otherwise, because no prudent adult would willingly expose a child to the risk of sexual abuse when there is an unacceptably high chance of its occurrence, even though the chance is not proven by the evidence to be probable. Requiring the proof of any possible future child abuse as a probability would pervert the law as settled by the High Court in M v M and Malec.
51We agree with and adopt that commentary as being a correct statement of the law.

The Court must also consider the additional considerations under s 60CC(3) of the Act.
In Mulvany & Lane (2009) FLC 93-404 it was observed by Finn, May and Thackray JJ that:
76. It is important to recognise that the miscellany of "considerations" contained in ss 60CC(2) and (3) is no more than a means to an end. Self-evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child's best interests.
77. It needs also to be remembered that the importance of each s 60CC factor will vary from case to case…
(Emphasis added)
Whilst the additional considerations as set out in s 60CC(3) of the Act must be considered by the Court, specific reference to each and every of those considerations is unnecessary in these reasons.[25]
[25] Mulvany & Lane (2009) FLC 93-404 at [77].
EVIDENCE
Statements of fact in these reasons are findings of fact on the balance of probabilities.[26] It is not necessary in these reasons for judgment to comment upon the entirety of the evidence including the evidence of each witness, nor to comment on every exhibit tendered. Nor have I done so where I have considered such evidence not particularly relevant and/or helpful in determining the matters that I must.
[26] Evidence Act 1995 (Cth) s 140
Counsel for the mother indicated to the Court that he had “clear and unequivocal instructions not to cross-examine the father”.[27] He did not do so. Nor did counsel for the ICL. The affidavit evidence of the father was thus unchallenged in its totality. The father gave some limited oral evidence without objection. I accept his evidence. It was honest, measured evidence. He desperately wanted both he and the mother to be involved in their daughters’ lives. He and the children have suffered due to the mother’s inability to support his relationship with the children.
[27] Transcript 4 August 2023, p.260 line 20.
The mother was cross-examined by both counsel for the father and for the ICL. I found the mother to be an unimpressive witness who failed to provide reliable and truthful evidence in many instances. Some of it was implausible, some inconsistent. Where it differed from that of the father, I prefer the father’s unchallenged evidence. The mother could see little benefit to the children having a relationship with their father. She claimed, extraordinarily, that the father did not love the children and that they did not love him. That was entirely untrue. On the mother’s evidence, there was no redeeming quality possessed by the father. She was unrelenting in her inability to make a concession and in her negativity toward the father and any benefit he may provide to the children.
Background
The mother was born in 1977 and was 45 years of age at the time of trial. She is of Country S background. The mother works casually and is in receipt of income from this employment. She also receives Centrelink and child support payments. The mother is in good physical health.
The father was born in 1972 and was 50 years of age at the time of trial. He is of Country T background. The father works full time as a coordinator and is in receipt of income from that employment, a part of which is paid to the mother in respect of his child support, as assessed, obligations. The father is in good physical health.
The parties commenced their relationship in 2007 and were married in 2009. The parties separated in July 2014 after five years and five months of cohabitation. They obtained a Divorce Order in 2016.
Shortly after separation, the mother, without the father's consent, moved the children’s place of residence from Town B to Town C. The mother and children remain living in Department of Housing accommodation secured by the mother at that time. It is appropriate accommodation for the children in a physical sense although the mother claims her housing to be in an unsafe area. The father has lived for some considerable time in the home of his parents in Suburb J. He has access to the entire second floor. It is a large house on acreage. The children are appropriately accommodated there. There are no safety issues.
In 2015, there was a brief period when the children lived with the father due to allegations of physical harm perpetrated upon them by the mother, based on the child X’s account. The allegations were investigated by Victoria Police. There were no charges arising from that investigation. The children returned to living primarily with the mother and spending unsupervised time with the father as had been provided for in orders made in October 2014.
The events of 2015 resulted in the mother not having the primary care of the children for approximately eight weeks. This is a matter about which the mother remains very bitter, and in relation to which she carries a grudge against the father. It was clearly a difficult time for her. The mother had the support of her psychologist, Dr U, during that time, she having commenced to attend upon him in 2012. She was suffering from depression. She has taken antidepressant medication at varying times. Her attendance on Dr U is regular and continued to the time of trial.
At trial, X was in Year 7 and aged 13 years of age, Y was in Grade 6 and became 12 years of age during the trial. Both children attended D School in Town C. X experienced learning difficulties and was assessed in March 2022 pursuant to Court order. She has a diagnosed learning disorder with impairments in reading, writing and mathematics. Y experiences social interaction issues for which the parents have not been able to move forward together and arrange her attendance on a Paediatrician. Both children have complained they have no friends at school or in the local community, although for X that changed over time such that she now has some friends. Y claims to have been bullied and has herself bullied other children and behaved poorly in the school environment. She was suspended in early 2023 for three weeks due her angry and aberrant behaviour.
The children’s counsellor, Ms F, who treated the children over a three-year period ending in late 2022, initially described X as a “friendly but withdrawn child”.[28] She had low self-esteem and confidence and was sad. She described Y as “bright”, “confident”, and “inquisitive”.[29] She noted the mother’s comment that Y “would lie at times”.[30] Ms F considered that Y may have underlying disorders not then explored.
[28] Affidavit of Ms F filed 14 February 2022, Annexure A, p.5.
[29] Affidavit of Ms F filed 14 February 2022, Annexure A, p.5.
[30] Affidavit of Ms F filed 14 February 2022, Annexure A, p.5.
The children’s social isolation was explained by the mother as being consequent upon the children, after school each night of the week, having to accompany her to her job in Town V. Town V is some distance from Town C. The mother and children commence the drive approximately 5.00pm each night. The children complete their homework whilst the mother works, and otherwise amuse themselves. They return home at approximately 8.00pm. The mother continues with this job despite its adverse impact on the children’s development. The mother notably could work during the school day, providing care to the children after school hours. Her evidence was that her current job is secure employment. She provided no evidence as to other jobs applied for by her. Her employment situation is a constructed situation (by her) wherein the children observe the mother working at night. They are concerned about her health and about her having no, or insufficient monies.
Evidence of Ms R
Ms R, Family Consultant, prepared a Child Responsive Programme Memorandum dated 26 October 2020. Ms R had interviewed both the parents and children in October 2020 via Microsoft Teams. Y was spending no time with the father. X was spending time with the father although she was ambivalent about it, stating to Ms R “I’m not sure if it’s good,” and “I don't really want to go”.[31] X reported being happier if Y was spending time with her, however that she did not want Y to be with her at that time because she feared for Y’s safety whilst with her father.
[31] Child Responsive Programme Memorandum dated 26 October 2020, paragraph 15.
X presented as a quiet and polite child. She stated that she had always had difficulty with learning, that she did not like school, and that she had no friends at school.
Y presented very differently to X, in that she was forthright and definite in her position of not wanting to spend time or communicate with her father. Her relationship with her father prior to July 2019, was impacted by her feeling that the father favoured X. She said of her father that, “she didn't know he was “mean” before, and listed him “smoking”, “drinking” and “yelling” as indicating he is a bad person”.[32] She did not want to spend time or speak with her father, and she did not want him to know anything about her. Y presented with an obvious strong alignment to her mother, which appeared to have developed prior to, and being exacerbated since, the incident of mid-2019. Ms R considered her expression of that alignment as age and developmentally appropriate in the circumstances.
[32] Child Responsive Programme Memorandum dated 26 October 2020, paragraph 20.
Y also did not like school and claimed that she had been “bullied” since preparatory class.[33]
[33] Child Responsive Programme Memorandum dated 26 October 2020, paragraph 21.
At interview the mother made various allegations about the father, being that he was controlling, threatening and abusive throughout their relationship and that he drank to excess, consuming up to twelve bottles of wine per week, and hiding the empty bottles throughout the house. The father denied these allegations, describing them as “rubbish”.[34] He denied threatening Y in any way and claimed that he suspected the mother to have influenced the child in that regard. He reported the mother having significant mental health issues in the past, which were exacerbated at the time of her brother's death, which coincided with the parent’s separation. The father further reported that he believed the mother was attempting to “cut him out” of the children's life, and that her allegations were part of that process.[35]
[34] Child Responsive Programme Memorandum dated 26 October 2020, paragraph 32.
[35] Child Responsive Programme Memorandum dated 26 October 2020, paragraph 33.
Ms R considered the father appeared to lack insight into the children’s experience of trauma, in his completely dismissing X’s expression of distress, and his maintaining that the situation between himself and the children had been fabricated by the mother alone.
At this early stage, being October 2020, Ms R was concerned that X was likely to be struggling with her position of trying to please each parent, as well as taking responsibility for her own and Y’s safety while in their father’s care. A further concern expressed by Ms R was whether Y’s strong alignment with her mother was due to the dynamics within Y’s relationship with her father, or due to Y being unduly influenced by her mother.
Ms R recommended the children continue to live with their mother and time with their father be reserved, with X to communicate with her father according to her wishes.
This evidence was not challenged by the parties and is accepted by the Court.
Evidence of Ms O
Ms O, Court Child Expert, prepared a Family Report dated 2 February 2022. She also interviewed the parties and children via Microsoft Teams. This was an acknowledged (by her) limitation to her Report, in her being unable to observe the children interacting with the father. In my view, in this case, that was indeed a serious limitation. Her interviews were conducted in January 2022, being one year and three months after the interviews conducted by Ms R.
The mother described the parental relationship in terms of generic allegations against the father of the type she raised with Ms R, expanding upon them to include implied threats of physical harm, financial abuse, non-consensual sexual relations and an incident of harm to an animal. The father described the parental relationship as being one in which he actively participated in the household by way of financial contribution, involvement in household responsibilities and care tasks with the children. He denied any family violence and indicated that the mother and father did not argue during their marriage. He described the up and down nature of their relationship and eventual separation as being impacted by the mother’s poor mental health, specifically depression.
The father made allegations against the mother of manipulation of the children to deny them a relationship with the father and his extended family which he claimed negatively impacted their emotional and psychological well-being.
Ms O at interview, found the mother to be child focused and concerned to ensure the safety of the children. She found her also concerned to encourage the relationship of the children with their father. The evidence does not support that the mother was in fact so concerned. I note the mother’s encouragement at that time, or really lack thereof as I find it, had resulted in Y spending no time with her father since July 2020 and X spending incredibly limited and controlled (by the mother) time.
The mother rationalised her proposal for sole parental responsibility to Ms O by stating that X was unable to access assessment for suspected learning disabilities because the father was not accepting of this possibility. Subsequently, the mother advised Ms O that X had been unable to receive additional funded classroom support and was reading at a Grade 2 level whilst in Grade 6. Additionally, the mother stated that Y had to wait two years to have treatment because the father opposed the surgery occurring at the W Hospital. She claimed the children’s access to therapy was delayed in the aftermath of separation due to opposition from the father. She claimed her ability to make decisions to meet the children’s needs was controlled by the father. I find that all this history as provided to Ms O by the mother was untruthful as discussed hereafter.
The mother claimed that she had engaged with Y to encourage her to have a relationship with her father but claimed it was difficult to do so when Y was so “adamant” and became defensive.[36] She stated that should no time be enforced, this would be a relief for Y who frequently felt her father did not accept her and favoured X. She also considered that X should see her father in accordance with her wishes.
[36] Family Report of Ms O dated 2 February 2022, paragraph 42.
Ms O described the father as articulate, and noted he impressed as a “proud parent” seeking a relationship with the children.[37] In Ms O’s opinion, the father tended to intertwine the children’s needs with his own and appeared preoccupied with the notion of control as it related to parental decision making, and his concerns for the children’s welfare.
[37] Family Report of Ms O dated 2 February 2022, paragraph 46.
The father expressed to Ms O strong opposition to the mother having sole parental responsibility. He stated that she lacked the capacity to make decisions that benefitted the children, both parents and the wider family and gave various examples of her inability to also share decision making.
The father discussed his alternate (at the time) proposal that the children should live with him and spend two or three out of four weekends with the mother during school terms. He explained that he worked from home and that there were local schools close to his home. The father acknowledged that this would involve a change of school for the children and would be difficult given X’s limited time spent with him at that stage, and Y’s refusal to see him. [38] The father considered his agreement to not enforcing time with Y was one which he regretted as he feared Y felt abandoned by him.
[38] Family Report of Ms O dated 2 February 2022, paragraph 52.
At interview, X engaged meaningfully. Her speech was clear and her responses appeared considered. She was described as providing animated accounts of her interests and various enjoyable activities and became distressed and sobbed when discussing experiences and prospects that made her sad. X described being bullied at school in the past, however felt optimistic that she had a better teacher and more friends in Y’s grade in the year of her interview. She confirmed that she loved living with her mother, that they had fun and adventures together. She also spoke fondly of her maternal grandmother and other members of the maternal family.
X described that her sister could be annoying but that she loved her and that when she and Y used to spend time with their father those arrangements used to be “normal”.[39] When explaining the cessation of the earlier arrangement, X became distressed.
[39] Family Report of Ms O dated 2 February 2022, paragraph 70.
X disclosed to Ms O that she was not in the kitchen with Y and her father when the alleged knife incident and threat to kill occurred, retracting her earlier account of this to DHHS. Her initial corroboration of Y’s account, including that which she claimed to hear, was driven by her belief that Y was being truthful, and also, in the opinion of the Ms O, because of X’s need, emotionally, to maintain some consistency in the story during the subsequent flurry of changes. X was in fact in the lounge room. She did not witness the incident. When Y recounted to her what she alleged had occurred, when the children were in the cubby house, X felt shocked. When Y later relayed events to the mother X played along. X confirmed her belief of Y's account and articulated that had caused her to feel scared.
X became increasingly distressed during the Family Report interview, stating that changes keep happening “like that” as she gesticulated the click of her fingers.[40] She worried that her parents could not make decisions for her future because they did not get along. She reflected that she had not shared these feelings, before describing herself like an “unopened bottle” holding these emotions.[41] She confirmed she had harboured secrets from her parents including her fear about Court and her future. The impact of the parties protracted conflict into repeated involvement in litigation was evident when Ms O observed X in interview. At the age of 11 she did not have the emotional skills to regulate and manage feelings of the magnitude she felt.
[40] Family Report of Ms O dated 2 February 2022, paragraph 71.
[41] Family Report of Ms O dated 2 February 2022, paragraph 71.
X reported at the time of the interview, that she “black[s] out of it”.[42] She explained that she sometimes stops blinking and becomes quiet, feeling a “breaking down in her heart”; her heart rate accelerates and her body slows.[43] In Ms O’s view there was a risk to X that she would become increasingly reliant on maladaptive coping mechanisms if she continued to be placed under such emotional pressure. In Ms O’s view, her participation in regular therapy was imperative to build her resilience and ability to regulate emotional responses.
[42] Family Report of Ms O dated 2 February 2022, paragraph 73.
[43] Family Report of Ms O dated 2 February 2022, paragraph 73.
X said she felt better seeing her father at his home (rather than in a supervised or unsupervised setting in Town C) but did not wish to progress to that immediately, essentially as her ability to tolerate additional change was compromised. Ms O opined that enforcement of additional changes may jeopardise X’s ability to manage a relationship with her father, with that requiring separation from her mother and sister, and the risk of rejection by them. She further stated that should X remain entrenched in the parties’ conflict and continue to exist in a state of fluctuating changes, her relationships with both parents were at risk.

The father invited the mother to participate in mediation with him in order to address their conflictual relationship and lessen the impact upon the children. The mother did not wish to do so.
In the above context of disputation, with the mother describing the father’s behaviour as controlling, the children spent time with the father on a mid-2019 weekend. The children had a very happy time. The children went to sport for Y; to the market with the father; and the father cooked them a spaghetti dinner. They spent time with the paternal grandparents, and on the Sunday enjoyed a party with Y as arranged by the father. Other family members were present. The children were excited. The next morning the father dropped the children off at the mother’s home. He was to see the children again, after school that day. The father returned shortly after 3.00pm to the mother’s home to collect the children. The children had lice treatment in their hair. The mother was angry with the father who was apologetic that he had not noticed over the week-end prior, that the children had lice in their hair. The father took the children in his car for takeaway food, gave Y some roses, and returned the children to the mother after about 40 minutes. The children told the father they loved him, and kissed and hugged him goodbye. That same night, Y told her mother that the father had threatened her with a knife and threatened to kill her. X concurred with this account in front of the mother saying to Ms O that she had “played along” and had in fact not seen nor heard the incident as she was in a different room.[72] Y’s account “shocked” her.[73]
[72] Family Report of Ms O dated 2 February 2022, paragraph 70.
[73] Family Report of Ms O dated 2 February 2022, paragraph 70.
The mother ceased all time between the children and the father.
A few weeks after this alleged incident, which the mother described as a trauma for the children, the mother, as reported in the notes of Ms F of 26 August 2019, “told the girls that she had [an illness] and may die. She believes the kids are old enough and doesn’t want to lie to them”.[74]
[74] Transcript 3 April 2023, p.78 lines 20-21.
On 5 September2019, it was Father’s Day. The children sent cards in the mail to the father. X wrote to the father that “I’ll see you soon” and “I love you”.[75] Y wrote “We will be back” and signed “Love [Y]”.[76]
[75] Father’s affidavit filed 23 March 2023, paragraph 48.
[76] Father’s affidavit filed 23 March 2023, paragraph 48.
Although the children did not then spend time with the father nor communicate with him until 8 March 2020 (approximately eight months later), the supervised time spent by the children with the father in March 2020 was generally a happy time. The children hugged the father and they played games together. There was, as described by the supervisor “chatting”, “smiling” and “much laughter”.[77] Toward the end of the time Y appeared a little distressed. She stated that “mum hasn’t got enough money and she can’t get money because she has a sore back”.[78] When subsequently taken by the supervisor, out of the presence of the father, she described her then tearful state as being the result of being told that as time with her father had recommenced, both children would live with the father and not see their mother. The children were to spend further ordered supervised time with the father on 20 March 2020, but the mother cancelled that visit. COVID-19 then intervened and supervised Zoom calls became the means of spending time. In late May 2020, the children were again happy to speak with and see the father. Throughout June 2020, the children told the father they loved him and both were variously described as ‘chatty’, ‘smiling’ or ‘laughing’.
[77] Affidavit of Ms P filed 12 August 2020, Annexure KE-2, p.3.
[78] Affidavit of Ms P filed 12 August 2020, Annexure KE-2, p.4.
By 4 July 2020 however, Y had ceased to engage with the father. Her opposition appeared not genuine. X stated to her father in a supervised visit with him in mid-September 2020, that Y missed her father. Her opposition, I find, on the totality of the evidence, was founded in the mother’s inability to accept that Y might spend time with the father.
X proceeded to spend supervised time with the father in September 2020. She was described by the supervisor as ‘chatty’, wanting to tell the father of her life. She exuded a longing for her father. She has been able to withstand her mother’s opposition and progress her time spent with the father to unsupervised and overnight.
It was the mother’s expressed belief that there was “some risk” to X spending time with the father although she acknowledged they have a relationship.[79] She could not describe it as meaningful. Nor beneficial. The need to protect X from a risk of harm as posed to her by the father and alleged by the mother, is a matter which should take priority if true. It did not have such priority for the mother on her own evidence.
[79] Transcript 3 April 2023, p.6 line 19.
I find there is a benefit to the children in having meaningful relationships with both their parents. Such relationship is not possible between the father and the children while the children remain in the primary care of the mother.
Section 60CC(2)(b) the need to protect the child from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence.
The mother alleged in her affidavit material and during the trial that whilst the parties resided together the father had an alcohol problem, being excessive daily drinking, and otherwise engaged in family violence. She claimed that he frequently yelled at her, raised his hands close to her face, physically intimidated her, and called her names. She claimed these behaviours occurred in front of the children and the children needed protection from such exposure. The father denied each of the allegations of the mother which I note were not particularised such that factual probative findings could be made.
None of the allegations above were made by the mother in her affidavit evidence in earlier proceedings which occurred closer in time to the parties cohabitation. When interviewed by Dr Z, Psychiatrist, in 2014, when he was undertaking psychiatric assessments of each of the parties, the mother made no mention of these allegations, nor those allegations as raised by her with Ms O. Rather, she said that the father “could be readily angered and needed advice to pull his head in, but she did not think he really needed anger management”.[80] Nor did she make such allegations about the father to the Family Consultant preparing a Family Report at that time. Nor did she complain of family violence and drinking to excess by the father to her treating psychologist Dr U in the years around this time. What the mother did say to Dr U between 2013 and 2015, was that the father did not listen nor help; that he worked too much; and that he was often away from the home for long hours working. She further claimed that she was frustrated with the relationship and the father’s limited role within the family as she perceived it. She also acknowledged, in 2015, that “her recent behaviour has not always been exemplary, particularly when she felt that she was being driven close to the edge.”[81] It is probable that these descriptions were more reflective of the parties’ relationship around that time. Otherwise, there was no corroboration of the mother’s allegations across these more contemporaneous reports.
[80] Transcript 3 April 2023, p.21 lines 11-14.
[81] Exhibit RF-11, paragraph 13.
Additionally, the father denied all such allegations and has been consistent in his denials. His evidence in this regard was unchallenged and I accept it. The mother’s allegations of family violence on the evidence are not established.
The mother’s allegation of the father’s excessive alcohol intake is not established. I find the mother grossly distorted the father’s alcohol consumption and had clearly told the children that the father had a drinking problem in circumstances where he did not. Y then parroted this unfounded allegation.
The mother also alleged that the children were at risk of physical abuse by the father from which they needed protection. That allegation she claimed was based upon her belief that Y had been threatened by the father in the manner as described by Y. The mother has however, allowed X to spend unsupervised and overnight time with the father since that incident. She cannot be truthful when now claiming that the father poses a risk of harm to X on this basis, or on any basis.
I do not find the father poses any future risk of harm to the children on account of his past behaviours or at all. I do not find that the incident as described by Y in 2019 occurred. That day was Y’s birthday. She had exhibited no fear of the father on that day, nor on the three days which preceded that day. In fact, she and X had spent a busy and exciting time with the father over that weekend, including celebrating with extended family, Y’s birthday. Following the birthday celebrations, Y had made up a story to tell X, perhaps to put a wedge between X and her father. Whatever the reason, and however innocent the disclosure at that time, it became much bigger. The girls returned home to the mother on Monday morning. Later that day, Y and X spent further time with the father, happily. On return to the mother, who had made her anger with the father apparent to the children earlier in the day, Y said something to her mother which saw the mother responding by immediately attending at the Town C Police Station that night. The mother took the children with her. In front of the children, and over the counter, she detailed her version of Y’s story to the police in attendance. Y is reported to have repeated her mother’s words throughout. When the mother was taken into a private room and the children remained in the foyer, Y told a Police officer that “Dad wants me to tell him stuff about Mum, and if I didn’t, he would kill me.”[82] There was no mention of a knife. There were also two descriptions of where the alleged threat occurred - one, in the kitchen and another in the foyer near the staircase.
[82] Transcript 3 August 2023, p.159 lines 5-8.
Y further alleged to the Sexual Offences and Child Abuse Team (“SOCIT”), that the same threat to kill also occurred on 27 July 2019, at a store, when the father and children were shopping for a present for Y. When put to the mother in cross-examination by counsel for the father that Y’s account was a complete fiction, the mother responded, no. The mother was not prepared to consider that the alleged incident, with its various versions, did not occur.
I accept the father’s evidence that he has never threatened Y with a weapon or threatened to kill her. I am supported in that finding by the withdrawal of the Police charges; the retraction of her earlier account by X, that earlier account being a part of the finding of DHHS that the father was responsible for emotional harm; the evidence which I accept of a very happy weekend of 27 and 28 July 2019 for the father, the children and extended paternal family as followed by a visit by the father to Y in mid-2019; and Y’s pleasure in seeing her father again after a period of eight months of absence. I am also supported in that finding by Y’s alignment with her mother and increased alienation from her father by the mother from about late 2018 onward.
Both X and Y have been made to feel that they must choose between their parents with X gaining, over the course of this litigation, some emotional resources to enable her a relationship with the father despite the mother’s active disapproval and discouragement.
Turning to the father’s case. The father alleged that there was a need to protect the children from psychological harm from being subjected to emotional abuse as perpetrated upon them by the mother. The ICL at trial concurred in that view.
The father’s evidence supports the Court making such finding. I accept his evidence. The evidence of Ms K as detailed above also supports the father’s position and I accept it. Her evidence at [148], [149] and [152] above set out the degree of emotional harm as caused to the children by the mother.
I find on the evidence that the mother poses a future risk of harm to the children, being serious psychological harm on account of her past and ongoing emotional “abuse” as defined in s 4(1) of the Act, of the children. The children need protection from such harm.
Additional Considerations
Section 60CC(3)(a) any views expressed by the child
Whilst a child’s views are a relevant consideration, they are not to be determinative in lieu of an assessment of a child’s best interests.[83]
[83] Bondelmonte v Bondelmonte (2017) 259 CLR 662.
That authority clearly applies on the facts of this case and the children’s wishes are not determinative. They live with the mother who appears utterly committed to engaging in high parental conflict with the father. Many of her actions in the presence of the children are directed to undermining their relationship with the father. The outcome for the children is well set out in the evidence of Ms K above. The children have expressed their views which are that they wish to continue to reside with the mother. They love their mother and understand her dependence on them. X wishes to spend time and communicate with the father on a regular basis, and not unlike that which occurred before July 2019. She has been able to gradually gather, since 2020 when she was overwhelmed, the necessary emotional resources to ensure she has a relationship with the father. That has been very psychologically scarring for her as detailed in the expert witnesses’ evidence which I accept. Y has expressed a wish to have nothing to do with her father, whom she cannot even refer to as her father on occasion, and otherwise to spend no time nor communicate with him.
On the evidence, and in particular the evidence of the expert witness Ms K, the expression of Y’s wish to have no relationship with the father is not genuine. Rather, the evidence supports a finding that she would like to join her sister in spending time with the father, being substantial and significant time. Prior to the further breakdown in the parental relationship around and prior to June 2019, Y enjoyed a happy and significant relationship with the father during those times that she was in his and X’s company. She also enjoyed a close relationship with her paternal grandparents, and uncles and aunt. Her already existing alignment with the mother did not, at that stage, impinge upon her ability to have a meaningful relationship with the father. In August 2023, when the children spent two nights residing in the care of the father and his parents, Y was finally able to express her affection for the father and paternal family being momentarily removed from her dysfunctional relationship with the mother. Likewise, in May 2023, when the father was, unusually, invited by the mother into her home to have a cup of tea, Y was able to engage with the father because the mother allowed it. The children were happy, their parents communicating in a civil and co-operative manner. Most probably, that behaviour was of great relief to the children. But these have been rare opportunities. For nearly four years, Y has been unable to defy the mother, which is necessary, to spend time and communicate with the father. The mother has impressed upon Y that any relationship had with the father will sever her relationship with her. Accordingly, I can give no weight to the views expressed by Y in respect of the father.
I give little weight to X’s desire to live with the mother. X has had a tortured time since 2019 as set out in the expert evidence before the Court. She has sustained considerable emotional abuse by the mother in the constraints placed upon her time spent with the father.
Section 60CC(3)(b) the nature of the relationship of the child with each of the child’s parents and other persons
The children have a close relationship with the mother and maternal family - for so long as the mother has a close relationship with her extended family. When that did not occur with respect to some members for a time, the consequence was that the children’s relationship was also disrupted. The children love their mother but are overly concerned about, and involved in, her welfare. Y’s relationship with the mother is dysfunctional on the evidence of Ms K. The mother loves the children but has engaged in emotional abuse towards them.
Around the time of the parties’ separation, the children had a close and loving relationship with the father as was his evidence and the evidence of the Family Consultant Mr CC who observed the interaction between the father and the children around September 2014. The mother’s evidence, that the children did not have a close and loving relationship with their father at separation, and that a relationship only developed after separation, is not accepted on the evidence.
Further, the mother’s evidence that the children and father do not love each other is completely without foundation and quite malicious. She cannot tolerate that the children would have affection for the father and his extended family. In like manner, she has conveyed to the children that she wishes to know nothing about their time spent with the father. In evidence she was unable to comment on any activities engaged in by them when with the father for three weekends out of four pursuant to earlier orders of the Court. She had no interest, indeed was dismissive. It is clear on the evidence that X has a good relationship with her father, despite the mother’s inability to encourage that relationship. Y currently needs to repair her relationship with the father, as referred to by Ms K, which can clearly be achieved if the mother can support that process of repair.
Section 60CC(3)(c)-(ca) the parents opportunity to participate in decision making, spend time and communicate with the child and the fulfilment of the parent’s obligations to maintain the children
Aspects of decision-making and spending time and communicating with are discussed elsewhere in these reasons save for:
(1)the parties’ inability to agree on Y attending upon a Paediatrician for assessment of ASD, ADHD, and ODD. There is an Order to this effect made in March 2022, however it was expressed to be “if recommended by [Ms K]”. That recommendation was not made but nor were the precise issues addressed. The parents have an obvious ability to attend to this medical need of Y, and I shall order that such assessment occur. Y’s best interests cannot be advanced in the absence of this vital information.
(2)The parties have on the evidence, and there is no challenge to it, a complete inability to cooperate in the sense required for an equal shared parental responsibility order. The mother has denied the father input in respect of significant decisions of health and education concerning the children in circumstances where the parties had equal shared parental responsibility. She repeatedly acted in breach of this Order. Contrary to her assertions to Ms O, I find the father has acted to advance the educational and health needs of the children at every opportunity. Some examples of the mother’s disregard of her obligations are as follows:
(a)Around late 2015, Y needed an operation. In June 2017, she was due to attend an appointment at the BB Hospital and the father was very active in seeking that she attend that appointment. He had been very concerned at the mother cancelling an earlier appointment date which occurred in her time with the children, and otherwise at the delay in obtaining an operation date. The mother would not confirm that she would take the child to the second appointment when she again had the child in her care. The father had offered to take a day off work to do so. The mother was simply failing to cooperate in a reasonable way with the father. She did in fact take the child to the appointment. She had however, wanted the operation to proceed at DD Health Service in City H. She claimed (to Ms O and in her evidence) that the father had cancelled the operation booked at DD Health Service because City H was too far from his home. This was patently untrue. Y was in fact on the hospital waitlist at the BB Hospital, as known to both parties from 2015. The mother later proceeded to place Y on the waitlist at DD Health Service without consulting with or informing the father. The BB Hospital was able to complete the procedure before DD Health Service and accordingly, Y’s name was removed from the elective surgery waiting list of DD Health Service following her completed operation at the BB Hospital.
(b)In late 2021, Y broke her arm in Town B. The mother took her to hospital. It took the mother a further 48 hours to advise the father that Y had broken her arm. The mother described that as the “earliest convenient time” that she could contact the father.[84] This was a nonsense. It was another example, as was her unilateral engagement of the children’s counsellor, Ms F, of the mother seeking to exclude the father from important decision making and information sharing.
[84] Transcript 3 April 2023, p.75 line 33.

In respect of the parents’ fulfilment of their obligation to maintain the children, I am satisfied that both parents meet this obligation. The mother’s evidence that the father paid approximately $5 or $6 a month in total child support payments to her following separation (around July 2014) and up to 2019 was not truthful evidence. I accept the evidence of the father that he meets and has met his child support obligations as assessed, and that those assessments were considerably more than what the mother described. His current payment is $2,067.50 per month. In addition, the father pays, and not as an offset amount, the children’s school tuition fees in the current sum of approximately $6,160. He has paid for glasses ($500) and an eye specialist attendance for X; a tablet and internet plan for X; a laptop computer ($1,100) for X; one half of L Education Centre tutoring fees for X; and has paid and offered to pay other sundry expenses for the children. The mother pays for the excursion and camp fees at the children’s school and for the daily expenses of the children as assisted by the payments of child support made by the father and some Centrelink benefits. Both parents maintain the children to the best of their ability and work hard to do so.
Section 60CC(3)(d) the likely effect of any changes in the child’s circumstances
At trial, the children were living with the mother in housing commission accommodation in the regional town of Town C. They had lived there since the mother unilaterally removed them from Melbourne. The mother had sought to further relocate the children to City H, which was not significantly pressed by her at trial, and indeed her counsel conceded there was no evidence to support that relocation. The children had been at the school they attended for many years. They had learning and social difficulties with few or no friends. They lived approximately 50 minutes’ drive from the father’s home.
The children’s residence in Town C with the mother has been at times problematic. On the mother’s evidence, she and the children are isolated, a vulnerability I find; have no friends who can help the family as was evident when the mother brought the children to Court; and reside in an area with significant criminal activity. The children are significantly deprived of their father and his family; they are required to attend at their mother’s workplace after school each night of the week; and they are very financially constrained in the mother’s household.
A change from the above circumstances to reside with the father and the paternal grandparents in a location approximately 50 minutes away, in a home they are well familiar with and in an environment where the children will not be so isolated and attend a different school is in all probability likely to be highly beneficial to them. However, as against these external factors is the effect upon the children of the change in their primary carer. Y will be highly worried about her mother’s welfare. X will also be worried. They will blame themselves for the mother’s despair. The children will also worry about whether the mother will thereafter reject them. That will be a dominant thought.
The mother cannot countenance such a move for the children. She is extreme in her responses when challenged. But the mother has already imposed much change on the children and required them to be adaptive. She has used them as an emotional crutch.
The father and his family have the capacity, with the assistance of therapeutic counselling for the children, to help the children navigate this change in their lives. Whilst the outcome and means by which this transition of the children to the father’s care is not certain, in particular for Y, if she cannot end her alignment with the mother and over-involvement in the mother’s welfare, the transition must be attempted and on the expert evidence of Ms K it can be achieved. It may require the children to spend no time with the mother for a longer period than envisaged, but their best interests are only promoted by this outcome.
That need for the children to have a period in which they spend no time with the mother became further apparent in the mother’s overholding of the children in September 2023. The children had commenced at new schools located near the father’s home. They were, on an interim basis, residing with him. On the father’s evidence, the children were just settling in and positive about the new schools.
In mid-2023, the father was subjected to a welfare check by the Police at the request of the mother. There was no need for the Police attendance.
Later that same day Y ran away from school. The father was notified by the school and attended at the school. He arranged for the Police to be called and he called the mother. He searched for Y. She was found and returned home with the father. She shortly after, left the home. The father called the Police and the mother, and again searched for Y. Subsequently, the mother informed the father that Y was in her care in Town C. The mother had failed to provide information in a timely way to the father as to where Y might be that day. She had also been told by Y that she would run away on that day. The mother did not provide that necessary information to the father. I find the mother compromised Y’s safety in failing to communicate with the father about that matter. Further, I find the mother encouraged the child to run away.
In mid-2023, the Police again attended upon the home of the father. Again, the mother had requested the welfare check. This time, the mother reported that Y had texted her about self‑harming. The mother could not have genuinely thought that might occur. If she had, the way to immediately deal with it would have been to contact the father, the care giver of the child at the time. She did not contact the father. This was simply extraordinary behaviour on the part of the mother, with no regard for the child’s welfare.
In late 2023, the mother failed to facilitate the children’s return to the father’s care. With a complete disregard for the children’s welfare, she argued with the father about the return of the children to his care, whilst in their presence. She described the court orders “as a piece of paper” and restated that the children did not want to go with the father.[85] The exchange between the parents resulted in the children becoming highly emotional and distressed. The mother was the sole cause of that. She has absolutely no insight into the children’s needs, and no intention of advancing their best interests.
Section 60CC(3)(f) the capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
[85] Father’s affidavit filed 14 September 2023, paragraph 28.
On the evidence and as described above, the mother has little capacity to provide for the children’s emotional needs. Indeed, the mother’s actions have resulted in the alienation of Y from her father. This is an outcome that runs contrary to providing for the child’s emotional and intellectual needs. I have considered it emotionally abusive. The father on the other hand has significant capacity to provide for the intellectual and emotional needs of the children.
Section 60CC(3)(i) the attitude to the child and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother’s attitude to the responsibilities of parenthood also is to be criticised because of those matters as canvassed in s 60CC(2)(b) and s 60CC(3)(f) of the Act above. The expert evidence of Ms K supports that view. The mother’s relentless negativity toward and about the father has no basis in the evidence, and it is directed by the mother to her end aim, that is, to eradicate the father from Y’s life, and to the extent she can, interfere with a healthy and loving relationship between X and the father. X may not have the emotional resources to continue that relationship, as opined by the experts.
The father, on the evidence, has a mature understanding of the responsibilities of parenthood and undertakes those tasks necessary with competence. He is reliable. He promotes the children’s relationship with the mother despite her actions.
Section 60CC(3)(j) and (k) family violence
This consideration is referred to elsewhere in these reasons. There are no family violence orders operative between the parties.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to further litigation in relation to the child
The mother may well initiate further litigation in respect of the orders that shall be made by the Court. The father may initiate enforcement in the form of a Recovery Order, or variation litigation. These things cannot be avoided, and it is not preferable, on the facts of this case, to make orders that attempt to avoid further litigation. The children’s best interests are promoted only by the orders that shall be made. There is no real capacity, on the evidence, to change those orders in any material way.
CONCLUSION
The parties and the ICL all submit that equal shared parental responsibility is not an option for the Court. No party seeks that order. The evidence provides the necessary rebuttal (s 61DA(4) of the Act). The father, as the parent with whom the children shall live, shall have sole parental responsibility. It is the father alone who can ensure the children have that which is necessary for their psychological wellbeing, namely a meaningful relationship with both of their parents.
The father poses no risk to the children. The mother does.
The mother’s influence over the children needs to be curtailed for a period to enable the transfer of the children from the primary care of the mother to the father. There then shall be a gradual increase in time spent between the children and the mother, a concept as proposed by the father and the ICL and as supported by the evidence. The orders shall provide for ultimately substantial and significant time, special occasion days and holiday time to be spent by the children with the mother. The suggestion of the ICL, that perhaps the children would benefit from spending two out of three weekends during school terms with the mother because of the need for such time to conclude on a Sunday night, was not particularly opposed by the father and is an order I shall make given the ages and sex of the children as submitted by counsel for the ICL. The father is reasonable about telephone communication having significant insight into the children’s needs. Changeover shall be dealt with in a way that is not inconsistent with the way the parties have operated in the past. The orders as otherwise proposed by the ICL and the father are generic in nature and not a subject of objection by submission or evidence by the mother.

I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.
Associate:
Dated: 15 November 2023

File number:	MLC 6201 of 2014
Judgment of:	HARTNETT J
Date of judgment:	15 November 2023
Catchwords:	FAMILY LAW – PARENTING – Best interests – Where final parenting orders were made by consent – Where both parties seek sole parental responsibility – Where the children currently live with the mother – Where one child has an estranged relationship with the father – Where the mother alleges serious family violence perpetrated by the father – Where the mother’s allegations of abuse and family violence by the father were unsubstantiated – Where the father and the Independent Children’s Lawyer allege the children are susceptible to emotional damage caused by the mother’s conduct – Where the Court is satisfied the children have sustained serious psychological harm by reason of their subjection and exposure to the mother’s emotionally abusive behaviour – Where the presumption of equal shared parental responsibility is rebutted – The father have sole parental responsibility and the children live with him – The mother be restrained from any contact with the children for three months – The children spend defined time with the mother thereafter.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Part VII, ss 11F, 60CA, 60CC, 61C, 61DA, 65DAA, 67Q, 69ZW, 102NA Federal Circuit Court of Australia Act 1999 (Cth) s 39
Cases cited:	Blinko & Blinko [2015] FamCAFC 146 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Goode & Goode (2006) FLC 93-286 Isles & Nelissen (2022) 65 Fam LR 288 M & M (1988) 166 CLR 69 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Mulvany & Lane (2009) FLC 93-404 Rice v Asplund (1979) FLC 90-725 Russell & Close [1993] FamCA 62
Division:	Division 1 First Instance
Number of paragraphs:	205
Date of hearing:	3 - 5 April 2023; 2 - 4 August 2023 & 19 September 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Jackson
Solicitor for the Applicant:	Clark Family Lawyers
Counsel for the Respondent:	Mr Hutchings
Solicitor for the Respondent (from 2 August – 19 September 2023):	Trapski Family Law
Solicitor for the Respondent (from 3-5 April 2023):	KHQ Lawyers
Counsel for the Independent Children's Lawyer:	Ms Agresta
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 6201 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS CHAPMAN Applicant
AND:	MR CHAPMAN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	15 NOVEMBER 2023