Connelly & Wilshire - [2022] FedCFamC2F 928

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Connelly & Wilshire [2022] FedCFamC2F 928

File number(s): NCC 1252 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 18 July 2022

Catchwords: FAMILY LAW – parenting – whether to change existing ‘equal time’ for 7-year-old twins – escalating parental conflict – poor co-parenting – competing residence applications – mental health concerns – potential ongoing inability to support children’s emotional needs – sole parental responsibility appropriate – regular time rather than ‘equal time’ – best interests of children

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

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

Mazorski & Albright [2007] FamCA 520

MRR & GRR [2010] HCA 4

Division: Division 2 Family Law

Number of paragraphs: 234

Date of hearing: 8-9 June 2022

Place: Newcastle

Counsel for the Applicant: Ms L Ticehurst

Solicitor for the Applicant: Landmark Legal

Solicitor for the Respondent: self-represented litigant
ORDERS

NCC 1252 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CONNELLY

Applicant

AND:
MR WILSHIRE

Respondent

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

18 JULY 2022

THE COURT ORDERS THAT:
1.The applicant, MS CONNELLY (‘the mother’) shall have sole parental responsibility for X born in 2015 and Y born in 2015 (‘the children’).
2.The children shall live with the mother.
3.The respondent, MR WILSHIRE (‘the father’) shall spend time with the children during school terms as exercised by the children’s school (‘school term-time’) for three consecutive nights from the conclusion of school (or 3:00pm) on alternate Fridays until the commencement of school the following Monday (or if the Monday is a public holiday, until the time that school would normally conclude) commencing on Friday 5 August 2022.
4.The children shall spend time with the parties in school holiday periods as exercised by the children’s school as may be agreed in writing between the parties, but failing agreement as follows:
(a)During the Autumn, Winter and Spring school holidays
(i)In 2022 and each alternate year –
·With the mother from 12:00 noon on the first Sunday until 12:00 noon on the second Sunday;
·With the father from 12:00 noon on the second Sunday until 12:00 noon on the third Sunday;

(ii)In 2023 and each alternate year –
·With the father from 12:00 noon on the first Sunday until 12:00 noon on the second Sunday;
·With the mother from 12:00 noon on the second Sunday until 12:00 noon on the third Sunday.

(b)During the Summer school holidays:-
(i)In 2022 and each alternate year –
·With the mother commencing from the conclusion of the children’s school term and concluding at 12:00 noon eight (8) days later and alternating thereafter;
·With the father commencing from 12:00 noon on the eighth day after the children’s school term ceases and concluding eight (8) days later and alternating thereafter;

(ii)In 2023 and each alternate year –
·With the father commencing from the conclusion of the children’s school term and concluding at 12:00 noon eight (8) days later and alternating thereafter;
·With the mother commencing from 12:00 noon on the eighth day after the children’s school term ceases and concluding eight (8) days later and alternating thereafter;

NOTING THAT subject to the calculation of time pursuant to Order 5 below, the last period of time spent by the children with either party during the Summer school holidays may be shorter than seven (7) nights.

5.To ascertain the resumption of school term-time spent by the children with the father following any of the school holiday periods, the sequence of alternating weekends shall be maintained (although not taken during school holidays) and used in calculating time in these orders.
6.Notwithstanding any other order, the children shall spend time with the mother and the father on special occasions as may be agreed in writing between the parties, but failing agreement as follows:
(a)Christmas
(i)In 2022 and each alternate year –
·with the mother from 4:00pm Christmas Eve until 12:00 noon Boxing Day; and
·with the father from 12:00 noon Boxing Day until 4:00pm on 28 December;

(ii)In 2023 and each alternate year –
·with the father from 4:00pm Christmas Eve until 12:00 noon Boxing Day; and
·with the mother from 12:00 noon Boxing Day until 4:00pm on 28 December;

(b)Easter
(i)In 2023 and each alternate year –
·with the father from 5:00pm Easter Saturday to 5:00pm Easter Monday.

(ii)In 2024 and each alternate year –
·with the mother from 5.00pm Easter Saturday to 5.00pm Easter Monday.

(c)Father’s Day - The children spend time with the father from 9:00am to 5:00pm on Father’s Day;
(d)Mother’s Day - The children spend time with the mother from 9:00am to 5:00pm on Mother’s Day;
(e)The children’s birthday - The children shall spend time with the party in whose home they do not wake up in, from the conclusion of school (3:00pm if a non-school day) until 7:00pm;
(f)The mother’s birthday – In the event that the children do not wake up in the mother’s home on the mother’s birthday; THEN the children shall spend time with the mother from the conclusion of school (or 3:00pm if a non-school day) until 7:00pm;
(g)The father’s birthday - In the event that the children do not wake up in the father’s home on the father’s birthday; THEN the children shall spend time with the father from the conclusion of school (or 3:00pm if a non-school day) until 7.00pm;

7.To implement parenting arrangements for the children, and unless otherwise agreed in writing between the parties, the children will be delivered to each of them by the other or their nominee, as follows:-
(a)where time with the mother or father commences from the conclusion/commencement of school - the party with care will collect/deliver the children from/to school; and
(b)otherwise, in the carpark at Store C at Suburb D.

8.The father is restrained and an injunction shall issue prohibiting him from drinking alcohol in excess of the legal driving limit, being a blood alcohol limit of 0.05 (50 milligrams of alcohol in every 100 millilitres of blood) whilst the children are in his care or for the twelve (12) hours immediately prior.
9.Each party is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
10.The father and the children shall communicate with each other by telephone on Tuesdays between 6:00pm and 6:30pm commencing Tuesday 2 August 2022 and at such other times as may be agreed in writing between the parties.
11.The parties shall advise each other in writing of any change of telephone number or residential address within 24 hours of such change occurring.
12.The mother and the father are restrained and an injunction shall issue prohibiting them from denigrating each other or members of each other’s household or family in the presence or hearing of the children and shall immediately remove the children from the presence or hearing of any third party doing so.
13.In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment, the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days.
14.Within 14 days, the Court Child Expert shall meet with the children to explain the Orders to them.
15.The mother is permitted to provide a copy of this judgment and the family report dated 11 February 2022 to the children’s treating psychologist (as may be applicable).
16.All outstanding applications are withdrawn and dismissed.

THE COURT NOTES THAT:
A.Where possible, any time the children spend with the father should occur when X and Y are also living in his household.

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

Ever since they were three years of age the twins have lived week-about with each of their parents. The mother wants to change this arrangement, saying that it has been and is untenable. The father’s position is in the alternate, firstly the arrangement should change so the children live with him and spend time with the mother and then (subject to certain events occurring) the existing arrangement should re-commence. In short, should I allow the twins to continue in the current pattern or not?
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and where possible there will be an avoidance of the use of gendered pronouns.
As the father was unrepresented, the Court went to some lengths to explain the procedure to him.[1] The Court granted the father’s oral application for the paternal grandfather to be his McKenzie Friend[2], noting that the mother had no objection to the father’s application.
[1] Re: F (Litigants in Person Guidelines) [2001] FamCA 348
[2] McKenzie v McKenzie [1970] 3 All ER 1034
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth)[3] between the Applicant, MS CONNELLY (‘the mother’) and the Respondent MR WILSHIRE (‘the father’).
[3] Unless otherwise specified any reference to legislation shall be a reference to the Family Law Act 1975 (Cth)
There are twin girls the subject of the dispute namely, X (‘X’) and Y (‘Y’) who are seven (7) years of age, collectively described as ‘the children’.
The genesis for the proceedings was a growing disquiet that the mother had about the existing week-about regime of time causing the children to be exposed to parental conflict (which may or may not have been the result of the father’s mental health diagnosis) and the father’s abusive relationship with alcohol.
For the reasons that follow, orders will be made that accommodate:
(a)The children living with the mother and the mother having sole parental responsibility for them;
(b)The children spending three nights a fortnight with the father from after-school Friday to before-school Monday in each alternate week;
(c)The children spending time with each party during school holidays consisting of alternating seven-night periods;
(d)The children spending time with each party on various special occasions (as may be applicable); and
(e)Various orders that support the facilitation of these orders.
THE APPLICABLE LAW – Parenting Proceedings
In these proceedings, the parties invite me to make a “parenting order” (s 64B) which I can, provided I think it is “proper” (s 65D) to do so in light of the objects of the Family Law Act 1975 (Cth) and the underpinning principles of those objects (s 60B).
Any orders I make about a child must be orders determined by treating their best interests as the paramount consideration and ss 60CC (2) and (3) set out the matters to which I must have regard in doing so. This consideration of the child’s best interests is also mandated within s 65DAA, to which I shall return.
In Aldridge & Keaton [2009] FamCAFC 229 at [75], the Full Court said this –
75. While there can be no doubt that the amending Act has placed greater emphasis on the role of both parents in the upbringing of their children, as we are presently advised, all applications for parenting orders remain to be determined with the particular child's best interests as the paramount but not sole determinant. Our reasons for upholding this view include the following matters:
• the unaltered provision dealing with best interests (s 60CA) and the positioning of the section in the Act;
• the recognition in s 65D(1) that ultimately a court should make such parenting order as it thinks proper; and
• that no provision was included in the Act suggesting greater or lesser weight should be given to any particular applicant.
…
79. In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Part VII to determine whether making (or not making) a parenting order would be in the child's best interests.
The legislation makes clear that s 60CC(2)(a) is not intended to elevate the paramount consideration as to the benefit of a meaningful relationship for the benefit of the parent, but rather it is for the benefit of the child. For example, see the preamble within s 60B which specifies that the specified objects of Part VII are to ensure that the best interests of children are met.
In Mazorski & Albright [2007] FamCA 520, Brown J concluded that a meaningful relationship or meaningful involvement is one which is important, significant and valuable to the child with the word meaningful being a qualitative adjective and not a strictly quantitative one.
Put another way, s 60CC(2)(a) does not invite a Court to act on an artificial view that any circumstance which would increase a parent’s involvement with a child must be in that child’s best interests. It may be that to do so would simply increase the child’s potential (if not real) exposure to parental conflict between two people they may love and for whom the child would have adverse feelings including sadness, distress or anger by seeing one parent upset, angry or frustrated by actions or decisions taken by the other parent for whom they share similar feelings. Conversely, a reduction in time does not necessarily mean a reduction in the meaningful relationship between a child and a parent.
The other paramount consideration (which takes precedence over the benefit to the child arising from a meaningful relationship with parents) is the need to protect a child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b)). Relevant to the issues in dispute, the ambit of this paramount consideration is affected by the definitions of “abuse” and “family violence” (ss 4 and 4AB).
The s 4 definition of “abuse” in relation to a child includes causing a child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to or exposed to, family violence.
Section 4AB(1) says that “family violence” is behaviour that is violent, threatening or otherwise coerces or controls a member of the perpetrator’s family or causes a family member to be fearful. A non-exhaustive list of behaviours that may constitute family violence is set out at s 4AB(2). Section 4AB(3) extends the operation of the definition such that if a child sees or hears family violence or otherwise experiences the effects of family violence then the child is considered to have been “exposed” to it.
In closing submissions, no one pressed that either the mother or the father posed an unacceptable risk of harm and for this reason I shall not explore that legal construct further.
Whenever the Court is asked to make a parenting order (even in circumstances where there is no contest about the allocation of parental responsibility), the Court is required to apply a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA). Section 61B defines “parental responsibility” as encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Where certain circumstances are made out, the presumption of equal shared parental responsibility does not apply, including for example instances of child abuse and family violence (s 61DA(2)). If the Court finds that it is not in a child’s best interests for the parents to have equal shared parental responsibility then the presumption can be rebutted (s 61DA(4)). The presumption does not speak to the periods of time that a child should either live or spend with their parents, however, how parental responsibility for a child is allocated by the Court may have a bearing on these issues.
“Substantial and significant time” is defined to mean time spent between the child and the parent that includes days falling on weekends and holidays and days that fall outside these periods, and time that enables the parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child, as well as allowing the child to be involved in occasions and events that are of special significance to the parent (s 65DAA(3)).
When making determinations as to whether a child should spend equal time with their parents or substantial and significant time with a parent, s 65DAA (5) says this:-
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a)      how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d)      the impact that an arrangement of that kind would have on the child; and
(e)      such other matters as the court considers relevant.
Note:          Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
THE EVIDENCE
The mother read and/or relied upon the following documents:-
(a)Affidavit of Ms Connelly filed 12 May 2022;[4]
(b)Affidavit of Mr E filed 18 November 2021;
(c)The mother’s Outline of Case document filed on 7 June 2022 – marked Exhibit ‘M1’;
(d)Various other exhibits marked from ‘M2’ to ‘M4’ - with those that are relevant being referred to throughout my judgment.
[4] Referred to as ‘C’ with numbered paragraphs and annexures identified alphabetically identified in square brackets
The father read and/or relied upon the following documents:-
(a)Affidavit of Mr Wilshire filed 18 May 2022;[5]
(b)Affidavit of Ms F filed 6 May 2022;
(c)Affidavit of Ms K filed 10 May 2022;
(d)The father’s Outline of Case document filed 7 June 2022 – marked Exhibit ‘F1’;
(e)The father’s Minute of Orders – marked Exhibit ‘F2’.
[5] Referred to as ‘W’ with numbered paragraphs and annexures identified alphabetically identified in square brackets

All parties asked me to read the family report dated 11 February 2022 - marked Exhibit ‘A’[6]; which was prepared by Child Court Expert Mr H (whom I will refer to as ‘the child expert’). Arising as part of the cross-examination of the child expert, I also accepted copies of email communications between the father and Court Child Services (‘CCS’) – marked Exhibit ‘B’.
[6] Referred to as ‘FR’ with numbered paragraphs identified in square brackets
My observation of the parties was that they both did their best to give honest and accurate accounts when giving their evidence. Where I was not satisfied that their evidence was credible or otherwise should not be preferred over another version or document, I will do so and explain the reason why.
I found the child expert to give measured and thorough evidence with the basis of his opinion clearly expressed. On that basis, unless I make a finding or express a reservation to the contrary, wherever there were inconsistencies between the evidence of a party/witness and the child expert, I preferred the evidence of the child expert.
Statements of facts set out below shall constitute findings of fact unless otherwise expressed.
Before setting out a chronology of the parties’ circumstances I will canvass their proposals.
PARTIES’ PROPOSALS
Taking a broad brush approach, the mother’s proposal (as articulated at Exhibit ‘M4’) was that:
(a)The mother have sole parental responsibility for the children;
(b)The children live with her;
(c)The children spend time with the father for three nights each fortnight during school terms (Friday after-school to before-school Monday);
(d)The children spend time with the father during school holidays –
(i)for five (5) consecutive nights in the Terms 1, 2 and 3 school holiday; and
(ii)five (5) consecutive nights in each alternate week of the Term 4 school holidays.
(e)The children spend time with each party on various special occasions;
(f)The specification of where changeovers should occur either during school term time or on school holiday time;
(g)The imposition of various restraints to support the capacity of the party/ies to meet the needs of the children and otherwise avoid the children’s exposure to parental conflict;
(h)The parties be given access to various information about the children’s education;
(i)Ancillary orders to support the overall parenting orders.
The father’s proposal was unclear at the start of the trial. During cross-examination his proposal was explored and I invited the father to provide the Court with a document on the second day of the trial so the Court was aware of what orders he wanted the Court to make.
Exhibit ‘F2’ is the father’s handwritten explanation of his proposal which was in the form of a ‘Plan A’ and a ‘Plan B’ and doing my best I have encapsulated it below –
Plan A – to be implemented until the mother obtains satisfactory psychological support and engages in co-parenting counselling with the father
(a)The father have sole parental responsibility for the children.
(b)The children live with the father and spend time with the mother four nights a fortnight being Wednesday night in week one and Friday to Monday in week two;
(c)The children spend school holiday time with the mother in a manner that was (essentially) the mirror image of what the mother proposed for the children to spend time with the father;
Plan B – to be implemented once the mother obtains satisfactory psychological support and engages in co-parenting counselling with the father
(a)The parties to have equal shared parental responsibility for the children.
(b)The children spend equal time with the parties in the same pattern as now.
In closing submissions I explored with the father what his views were about other issues identified within Exhibit ‘M4’ and he submitted that for special occasions the children should spend equal time with both parties (a point I shall return to later). After making that point he agreed that the Court could make the following orders with the consent of both parties –
5(c) In all odd numbered years the children spend time with the Father from 5pm Easter Saturday to 5pm Easter Sunday.
6(c) In all even numbered years, the children spend time with the Mother from 5pm Easter Saturday to 5pm Easter Monday.
7. The children spend time with the Father from 9.00 am to 5.00 pm on Father’s Day and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
8. The children spend time with the Mother from 9.00 am to 5.00 pm on Mother’s Day and that any provision under this order that is inconsistent with this paragraph be suspended.
9. The children spend equal time with the Mother and the Father on:
(a) the childrens’ birthdays
(b) the Mother’s birthday, and
(c) the Father’s birthday,
at times to be agreed between the Mother and the Father, and failing agreement, the children shall spend time with the Father from 3.00 pm until 7.00 pm on those birthdays and the Mother at all other times on those days; and that any provision of time under this order that is inconsistent with this paragraph be suspended.
13. Each party is hereby authorised to obtain from the children’s school all notices, letters, school reports and invitations and to attend parent/teacher interviews or other activities to which parents are invited.
14. The father and children communicate with each other by telephone on Tuesdays between 6 pm and 6.30 pm and at such other times as may be agreed between the parties.
15. The parties advise the other of any change of telephone number or residential address within 24 hours of such change occurring.
16. Each party is restrained and an injunction is granted restraining them from denigrating the other party or members of the other party’s household or family in the presence or hearing of the children and shall immediately remove the children from the presence or hearing of any third party doing so.
17. The parties not criticise or denigrate the other party or the other party’s family in the presence of or within hearing of the children.
18. The parties encourage and not undermine each child’s relationship with the other party.
20. In the event of any dispute as to the interpretation, implementation or enforcement of this order (including any claim by a party that it should be varied) the parties shall first attend family dispute resolution (FDR) with an FDR practitioner appointed by the parties and make a genuine attempt to resolve the dispute. Failing agreement as to that appointment the party raising the dispute shall nominate three FDR practitioners, one of whom shall be chosen by the other party within 14 days
I have highlighted certain aspects of Exhibit ‘M4’ as they relate to Easter. This is because the mother’s proposal does not reflect an equalisation of time for the children between the parties. There was an inherent conflict in what the father initially submitted to me insofar as an equalisation of time; and then his agreement to the terms proposed by the mother as highlighted above. I have had regard to this inconsistency in the formulation of my orders.
Insofar as Christmas was concerned, the father said that in 2022, the children should spend time with the mother from 4.00pm Christmas Eve to 12.00 noon Boxing Day and then they should have time with him from 12.00 noon Boxing Day until 4.00pm 28 December 2022, with that arrangement alternating every year. Pleasingly, in response, the mother agreed with this Christmas proposal.
Insofar as changeovers were concerned, the father said that whenever this could not happen at school it should happen outside each party’s house.
CHRONOLOGY
In 1985 the father was born.
In 1985 the mother was born.
In 2011, the parties commenced cohabitation.
In 2015 the children were born.
The father was diagnosed with Panic Disorder and by April 2017 had found the prescribed medication had reduced his anxiety and his overall circumstances had improved. Five months later in September 2017 the father agreed that he was having panic attacks and anxiety attacks but said that for most of that time he had been sober. The father attributed his deteriorating health to the mother who was grieving the loss of loved ones and was also having migraines which forced her to have bedrest which caused him to not only work full-time but be primarily responsible for the care of the children.
It was common ground that one night in October 2017, the father went to stay the night in a hotel, called an ambulance after having suicidal ideations and then was admitted into B Hospital (‘B Hospital’) with what he called a “breakdown”. The father was admitted into B Hospital for about 20 days, discharging on 26 October 2017 and agreed that he had a follow‑up referral to see a psychologist. The father agreed that whilst he was under the care of B Hospital he had been treated by psychiatrist Dr J (‘DR J’).
The father was unsure if he had seen DR J as an outpatient but said he had attempted to secure a psychiatric appointment in the years that followed without success, citing the health pandemic as one of the reasons why it had been so difficult.
The father volunteered that when he discharged from B Hospital he knew he had to leave the relationship because he felt “suffocated, abused and trapped”.
In cross-examination the mother agreed that the father had never physically hit her during the relationship and that until the night of separation there had been no physical contact between them that could be categorised as family violence.
It was apparent from the father’s line of questioning of the mother, in tandem with his affidavit material, that he felt that he had been the victim of the mother’s verbal aggression, controlling behaviours and manipulation, which included her yelling at him.[7] In response to his questions about what a “Connelly Panic” was, the mother candidly reflected that this phrase had been coined about her mother’s tendency to become hyperactive about household chores which was triggered during periods of heightened anxiety or stress (such as being late). The manner in which the father asked his questions left me with the impression that he considered the mother’s reactions towards him (yelling and screaming) as being in-line with a “Connelly Panic” and unjustified. As part of her answers to his questions about why she would yell at him, she said that he would talk over the top of her and take control of conversations and that at times she would yell or scream back.
[7] See for example W [7] and annex. ‘C’
On 6 March 2018 the parties separated following an altercation, the genesis of which appears to be in dispute. The mother asserted that the father was intoxicated, the father denied this but then agreed that he had drunk a bottle of wine in the backyard. It was common ground that during the argument the father had asked for the mother’s keycard (which she refused to give him). The father agreed that he had used to play the pokies but denied he had a problem with gambling. He denied that he had acted aggressively or in an intimidating manner towards the mother after she refused to give him the keycard but agreed he may have tried to take the card from her bag. At some point the father had thrown a square of chocolate towards the mother who had her back to him. The mother says that the chocolate square hit her in the back of the head but the father denied that was his intention at the time. The mother said that the father stood in front of the stairwell in an effort to stop her accessing the first floor of the home. Her evidence was to the effect that she had grown fearful of the father as a result of this action as well as his refusal to give her the car keys. On that last issue, it was common ground that in an attempt to leave the family home (in circumstances where she says the father would not give her the car keys), the mother first called and spoke to the maternal grandfather and then arranged for the paternal grandmother, Ms K (MS K) to come and collect her and the children (which MS K confirmed in cross-examination). MS K denied that the mother had complained to her about the chocolate and stood by her recollection of events of that evening (which she readily admitted came from both parties and was described by her as ‘the Great Pork Chop incident’).
The father denied that his actions during the evening would have caused the mother to become fearful and in cross-examination his responses had an overtone of dismissiveness and condescension which was reflected in paragraph 7 of his trial affidavit where he says the mother’s assertion that she left him after he was violent towards her was untrue.
At least once during her cross-examination by the father on this topic, the mother would pause and take a long breath before being able to re-gather her thoughts. It was apparent from the manner in which she then spoke, that it was distressing to her to have to recall the events of that evening. Where her affidavit evidence touched on the same events that were the subject of questions from the father, her answers were consistent. In contrast, the father’s evidence under cross-examination was argumentative and dismissive of what the mother’s experience looked like which may have reflected him having an impaired memory of the events because of his intoxication, but on my assessment of his presentation, were at least in part predicated on his perception that the mother was exaggerating what happened and her emotional responses to it.
For these reasons, as to the circumstances of the night the parties separated, I entirely accept the mother’s evidence and am satisfied that the father committed family violence both physically (by striking the back of her head with a square of chocolate), coercively (by refusing to hand over her car keys when she wished to leave with the children) and threateningly (by deliberately standing in front of the stairs in an attempt to block her from going upstairs to collect her mobile phone). When asked if the children were crying the father said he assumed that by this time they probably were crying and then said “they cried all the time when Ms Connelly was screaming”. Regardless of who was to blame, I am satisfied that the children had been exposed to at least part of the parental conflict.
Since separation it is common ground that the children have lived between the parties in a week-about regime (‘equal time’). In response to the mother’s general position that the father is difficult to deal with in terms of co-parenting and/or the maintenance of equal time, in cross‑examination the father asked the mother to tell the Court of “one decision that has gone in my favour?” The mother said she did not want 50/50 but felt like there was no way she could go any other way because of how the father made her feel. This was hotly contested by the father. The contested evidence does not permit me to make a finding one way or the other about whether the mother’s decision was as a result of coercion from the father or simply reflected what both parties thought was best for the children at that time.
It was common ground that post-separation, the mother would at times visit the father alone at his rental property at Suburb L albeit perhaps incongruously (as submitted by the father) she said that this did not mean she was not fearful of him. In summary, her oral evidence was to the effect that she agreed that at times their post-separation relationship had been amicable, but she was always on alert for changes in the father’s demeanour that in the past led to emotional dysregulation from him, and when those changes were apparent to her, she would simply withdraw and/or agree with him to avoid conflict.
In 2018, the mother commenced a relationship with Mr E (‘MR E’).
In mid-2019 the father commenced living with Ms F (‘MS F’) in her home at Suburb M. MS F has two children.
On 1 July 2019, the mother says that the father came around to her house and she tried to raise issues about the children’s hygiene.[8] In cross-examination, the father said that he left the house but denied getting angry, storming out or speeding up the street. He agreed that he did leave because he could feel himself getting frustrated.
[8] C [182]
The father was taken to a medical consultation note dated 24 September 2019 which recorded that the doctor needed a letter from a psychiatrist before he would issue a repeat of the father’s medication. He was asked to read the document and then volunteered (in a sarcastic tone) “Isn’t it called COVID-19 for a reason?” – which was apparently in reference to his inability to secure a psychiatric appointment later on after the pandemic was declared. In any event, counsel returned to the topic and asked about an appointment the father had secured with a psychiatrist, Dr P (‘DR P’) at Q Centre. The father conceded that he had managed to secure the appointment with but because he had a prior commitment with the children, he had to cancel the appointment.
Sometime in 2019, the parties started communicating about where the children should start school in 2020. Informing the mother’s view was that she and the children had remained living at the parties’ former family home at Suburb R and she wanted the children to attend R Public School (‘R School’). The father said that he had tried to negotiate with the mother to reach an agreement about the selection of a school that would either be located somewhere in the middle between Suburb R and where he lived at Suburb M and/or S School because that was where MS F’s children were enrolled (so the four children could attend school together). The negotiations broke down and the mother unilaterally enrolled the children at R SCHOOL. The father saw this decision as the start of the deterioration of the parties’ otherwise amicable co-parenting relationship.[9]
[9] W [13]
In October 2019, the parties attempted to organise a mutually convenient place for the children to regularly attend swimming lessons. It was common ground that the issue remains unresolved meaning that the mother can’t take them to a regular session each week (as for half of the weeks, the children are with the father) and so instead she has to wait for a cancellation in her week and take them then. In cross-examination the father said that he had taken the children to two swimming lessons at Suburb T but it is now a topic where he “can’t have any conversations with Ms Connelly” about this topic and his evidence was consistent with the text message exchange annexed to the mother’s affidavit where at one stage he wrote do your own thing and I’ll do mine then having realised the mother had agreed to Suburb U, he then responded to say he felt each of them could deal with it separately and that from his perspective he could make sure they were water ready.[10]
[10] C [149] & annex. ‘G’
In 2020, the children commenced kindergarten at R SCHOOL.
On 26 February 2020, the mother sustained a workplace psychological injury in her capacity as an educator at Employer V. At times the father appeared to suggest that either the mother acted fraudulently in making the claim and/or her lack of resilience to the circumstances surrounding the injury would give rise to a concern about her mental health. The evidence before the Court was insufficient for me to make any findings, even if the father had invited me to do so.
The father was taken to a surgery consultation note of a visit he had with his then treating doctor in March 2020 at which he presented with his two children and a bag holding three ‘tallies’ of beer. The father said that “maybe” he had the beers because the surgery was next to the shops and he would have walked home afterwards.
The father was taken to events that occurred at his then workplace, Employer W in April/May 2020. He agreed that it had been a difficult time for him because of the health pandemic and deflected his answer by spontaneously observing that the mother had also found it difficult.

In particular, the father was asked about whether he agreed that following some events involving him, the employer had told him that they couldn’t have him back on site unless he had a psychiatrist clearing him. Initially the father said that was not his recollection, but then recalled coming back into the workplace for a meeting with his employer where he disclosed his previous hospitalisation and feeling increasingly stressed because of the health pandemic, coupled with pressure from MS F to stay at home and not wanting to let her and his family down by leaving them at home. He then blithely slipped into his answer an irrelevant, unnecessary and deliberately hurtful comment – What I didn’t do was fabricate a worker’s compensation claim (being another negative comment about the mother’s workplace injury claim). In cross-examination, MS F agreed she had asked the father to stay at home but had little knowledge of any medical appointments around that time.
The issue was explored with the father by taking him to a document within exhibit MFI-1 where at page 59, the employer completed a form citing a breach of the Code of Conduct perpetrated by the father in relation to inappropriate social media communications. The father agreed that as part of an online forum with Governing Authority employees about COVID, he had described another employee as a ‘piece of shit’. He explained that this comment was made in the context of his view that to force workplaces to remain open was unsafe and dangerous. He agreed that after being approached he had apologised.
Further information from the employer (being a supporting document attached to the complaint form) was read out to the father. He was again asked about whether he understood that the employer needed some sort of evidence from a psychologist or psychiatrist to confirm he was fit to return to work. The father did not respond, and in an effort to assist him understand the question, I asked if he understood the employer wanted a clearance certificate to say he was fit to return to duties. The father agreed. I asked whether he understood that at the time, the employer had recommended he see a psychiatrist or psychologist? The father agreed but that he hadn’t seen either type of professional because of COVID-19 because initially everything had been shut down and it had been impossible now because of COVID, it remained impossible to do so “to this day”.
It was common ground that on 6 May 2020, the father’s general physician again recorded that the father needed to see a psychiatrist to secure ongoing access to his prescribed medication and had written a referral to psychiatrist, Dr Z. The father said he had tried to make an appointment without success. The father agreed that the general physician had given the father the contact phone numbers for two other psychiatrists, Dr AB and Dr AC and again after the father made attempts, he said he could not get in to see either of them. He agreed that the general physician had then given him a whole list of psychiatrists to ring, all of whom he had called and none of whom could offer him an appointment.
The father said that his general physician was making it very difficult for him to gain access to his prescribed medication and so ultimately he “got jack of having to deal with that guy and he went to a different GP”.
During cross-examination the issue of the father’s appointment with DR P from Q Centre was revisited and the father again said he had to cancel it because of a “family thing”. The father was asked to respond to a proposition that counsel for the mother intended to put to the Court in closing submissions, namely that he had plenty of opportunities to see a psychiatrist and that the reason he hadn’t gone was because he didn’t want to. In response the father denied this proposition.
The father told the Court that although he had been unable to get into three different psychiatrists earlier, when he then cancelled his appointment with DR P, he hadn’t realised that it would continue to be an ongoing difficulty for him to get an appointment saying “How could anyone have known that?” I put to the father that (in essence) I was finding it difficult to accept his evidence which was to the effect that for over two (2) years he had wanted to see a psychiatrist but that either, because of a family commitment or the health pandemic, he had not been able to do so. The father said that he understood my dilemma but that he had always taken his mental health seriously (including being the instigator of his hospitalisation in 2017) and that he was fine now and that it was only the mother that had cast his mental health into doubt.
In November 2020 the mother posted a photograph to Facebook of three children in the backseat of her car[11] which was suggestive of the middle child being improperly restrained (because of her stature). In cross-examination, (and to her discredit) the mother was argumentative and/or evasive when responding to questions about whether the child should have been restrained. It was apparent from the father’s affidavit that the only reason he brought up the topic was because of assertions the mother made against the father and/or MS F not properly restraining the children when in their care. Nowhere was there any evidence of the children having been injured in any car accident and despite their alleged concerns, neither party sought an injunction reflective of the concerns they expressed in their affidavits. In my view the manner in which the father asked his questions, and the way in which the mother answered, highlighted the complete breakdown in trust the parties have for each other’s ability to make informed decisions about their children.
[11] W [22] & annex. ‘L’
In March 2021, the mother took the children for a dental appointment during which the dentist raised concerns about X. The mother informed the father via text about the need for X to have various dental procedures and the dentist’s recommendations about dental hygiene.[12] The message is neutral in tone and provides a comprehensive summary of the current and future dental treatment plan for X. The father’s response is accusatory, dismissive and inflammatory, citing at the end of his message –
…Any further suggestions along this line I will find immediately offensive and I would prefer to be contacted by someone who is not you. Thank you.
[12] C [120] & annex. ‘F’
I accept that the father’s text message referenced legal correspondence which he found disturbing and hurtful, but taken on its own, the mother’s text message did not warrant his response. It was another example of the complete breakdown in the parties’ ability to co-parent and in this case, has the potential for a further deterioration of X’s dental health because the two households could not co-operatively adopt the same dental treatment plan.
On 20 April 2021, the mother commenced these proceedings.
For about the last year, the mother says that she has had concerns about Y’s weight and bowel issues. The mother says that Y started to complain of stomach pains which often coincided with her return from the father and on those occasions, the mother has noticed that Y’s stomach is bloated and distended. After one incident, the mother took Y to see her GP at AD Medical Centre (‘AD’) and afterwards Y was prescribed the laxative, ‘Parachoc’.[13] The mother agreed in cross-examination that Y had not been diagnosed with anything but that despite her (and her lawyer via letter) informing the father about the doctor’s recommendations to treat Y’s symptoms, the father refused to accept that the laxative was necessary and only did so after she had requested the doctor speak directly to the father about it. In cross-examination, the father said that “Parachoc was not a big issue” and suggested that the mother was overly paranoid about Y’s health.
[13] See C [83]-[87] about this paragraph
On 26 May 2021 orders were made (‘the May 2021 orders’) which included orders made by consent that (on an interlocutory basis) formalised the equal time the children had been experiencing since separation and for each of the parties to be restrained from drinking alcohol in excess of the legal driving limit whilst the children were in their care or for the twelve (12) hours immediately prior. In addition, prior to the child inclusive conference scheduled for 8 September 2021, the father was to submit to a hair alcohol test (‘the hair test’).
On 8 September 2021 the parties presented for interviews as part of the child inclusive conference process. The father agreed that he told the child expert that at that time he consumed no more than six (6) mid-strength beers two or three times a week. He told the Court that since then his alcohol intake had reduced.
It was common ground that the father did not comply with the order about the hair test before 8 September 2021. The father told the Court that he had relied on advice from his solicitor when failing to submit to the hair test on time, saying his solicitor said to him to “not pay much mind to it”. He denied that the reason he hadn’t done the hair test in time for the child expert’s interview was because he knew it would show an excessive reading for alcohol.
The father agreed that on 27 October 2021, he had sent two emails to the mother’s solicitor.[14] The father did not resile from the contents of the two emails which in tandem evidence that in his observation the children were horrified at spending less time with him (MS F and their siblings) and that he was not breaking orders and discussing it with my children. In the second email he described the children as knowing the situation and what is happening because they are astute little girls who have picked up on this. In cross-examination the father said that the children were “terrified” of spending less time with him and that “they feel unsafe” in the mother’s home. When directly asked about him discussing the proceedings with the children, the father said that he was doing his best and by asking for 50/50 he was “trying to keep it fair”.
[14] C [167] and annex. ‘H’
I pause here to note that at this time, the children had had very limited engagement with the Court because they were not formally interviewed for the child inclusive memorandum but had briefly met the child expert on line before their mother had been interviewed.
It was common ground that even after the father had done the hair test he failed to provide a copy of it to the mother’s solicitor (even though the May 2021 orders had stipulated he provide it within seven (7) days of receipt). Instead the mother had to issue a subpoena to AE Clinic which showed that in November 2021 (at least two months after he was supposed to do so) the father submitted to the hair test resulting in a positive result for excessive consumption.[15]
[15] FR[27]
On 2 December 2021, the two-day trial listed to commence that day was vacated and adjourned for hearing before me on 8 June 2022. A family report was also ordered.
In cross-examination the father denied that he had repeatedly sent emails to Child Court Services and complained that he had been misquoted and/or may have sent the same email multiple times out of a misapprehension it had not previously been transmitted/received. The child expert was cross-examined by the father about these emails which ultimately became exhibit ‘B’ and had been referred to at paragraph 64 of the family report.
At paragraph 64, the child expert wrote that the initial queries were reasonable and justified but that a subsequent email received by CCS without having yet receiving a further response from CCS could be perceived as demanding or threatening. Of concern to the child expert was that the father’s reactive and emotive manner of corresponding may be reflective of a pattern of communication he engages with others when feeling anxious, pressured or under stress. Under cross-examination the child expert agreed that the emails were demanding (rather than threatening). At this point I expressed my concern that at least at one point in the communications, the father appeared to be contemplating not complying with a Court order which required (at least) that he participate in the family report interview process.
I have read the emails between CCS and the father between 10 December 2021 and 19 January 2022 with the relevant information summarised below –
·On 10 December 2021 at 3.25pm, CCS attached an appointment letter for family report interviews on 8 February 2022.
·On 17 January 2022 at 2.47pm CCS advised that due to the current COVID restrictions, the interviews would occur audio-visually over MS Teams and nominated a date for the father, MS F and MS F’s children to participate.
·On 17 January 2022 at 3.59pm the father replied that all four children would not be available on the nominated date and asked about the following week.
·On 18 January 2022 at 8.47am CCS wrote to advise the father that MS F’s children would no longer be interviewed and confirming his and MS F’s appointments.
·On 18 January 2022 at 9.06am the father expressed his desire for all the children to be interviewed as stated previously so that a snapshot could be gathered of the amazing childhood they all share together and that all parties should be interviewed so as to maintain the validity of the case and its accurate judgment;
·On 19 January at 11.46am, CCS replied that when the interviews occurred, the father could raise any concerns or questions he may have with the child expert. The email also sought confirmation of the father and MS F’s attendance.
·On 19 January 2022 at 12.01pm, the father responded and expressed his concern that on the last occasion (presumably the child inclusive conference interviews) he had been told about taking an alcohol test without further instructions given and then being cautioned by the judge and on that experience, he would only confirm his attendance (and that of MS F) once there was confirmation that the children would be interviewed;
·On 19 January 2022 at 12.26pm, the father wrote a second email (for the day) addressed to the child expert starting with the sentence Sorry to persist. The father asked why his children were not being interviewed but MS F’s were (an apparent misunderstanding) and requested that his appointment be changed to the following week when all four children would be in his care. He explained that on the last occasion the children had been interviewed in the mother’s household (which, from the face of the child inclusive conference memorandum, was not factually correct) and it was in the interest of being fair that the children should be interviewed at his home on this occasion. In expressing this view, the father indicated that he had no intention of coaching but was worried about what the mother might do given her “mistruths” to‑date.
The emails speak for themselves.
In cross-examination, the father said that by February 2022 he had cut back on his alcohol intake.
On 8 February 2022 the family participated in family report interviews, culminating in the child expert producing a family report on 11 February 2022. The children were not observed with either parent (the interviews were conducted audio-visually) but this did not appear to be a limitation given both parties agreed that the children have a generally positive relationship with both of them.
X was interviewed first and she was recorded as expressing positive sentiments about her parents and her extended family members. X expressed a desire to retain the existing “50‑50” regime of time, for her to always be able to see her family and that they get along. X’s view about “50-50” was explored and she said she just wanted it to be “even”. The child expert gave three possible explanations for X’s expressed wish regarding her future living arrangements which included her wish not to upset either parent.
When Y was interviewed she was reluctant to express a view about her living arrangements. When asked how she would feel if she saw one parent more than the other, Y said “not good…because I like seeing them both a lot”.[16]
[16] FR [100]
The family report traversed the impacts on children from ongoing exposure to parental conflict (through a prism of the parties having agreed [at that time] to the mother holding sole parental responsibility). At paragraph 114, the child expert explored this issue for the children and identified that the children may or may not have been shielded from the escalating parental conflict that has occurred (particularly in the last two years) but that in any event, it is imperative that any exposure stop or at least be minimised. It was apparent from the family report that the child expert considered that it was at least possible that the children may be experiencing or are at risk of experiencing loyalty demands if the parental conflict continued. It appeared that the child expert held a view that the children were capable of withholding their experiences of parental conflict in order to avoid upsetting significant adults in their lives.
Given the history of the family, the child expert was not convinced that the allocation of sole parental responsibility would be enough to eliminate the parental conflict and the children being directly or indirectly exposed to parental conflict in the future. The child expert described this “history” as being the parties’ entrenched parental conflict and their fixed perceptions of each other’s control, manner of communicating and intentions relating to these proceedings.[17]
[17] FR [113]
The child expert gave compelling evidence about the benefit of the children spending quality time with each parent as opposed to a fixation on the quantity of such nights; focusing on the importance of each parent having significant involvement in important aspects of the children’s lives and routines to help ensure that both parents play an important psychological role in the children’s lives.[18]
[18] FR [116]
The child expert traversed the father’s then-proposal for retention of equal time and I have had regard to and accept the child expert’s views[19], particularly in circumstances where by the time of trial, both parties were no longer seeking this as their primary position and for reasons that follow, my view was that the father’s alternate proposal for a return to equal time was inherently impractical.
[19] FR [117]
At paragraph 118 the child expert explored the prospect of changing equal time to something else more akin to the mother’s proposal of the children living with her and spending (at that time) five (5) nights a fortnight with the father during term time (Week 1: four (4) nights from Thursday to Monday and Week 2: one (1) night from Wednesday to Thursday) and for five (5) consecutive nights in alternating weeks of the school holidays. Rather than trying to summarise the child expert’s view I have transcribed paragraph 118 below –
With all of the above issues and considerations in mind, it is the view of this writer that the mother’s proposal, or something akin to this, may be most consistent with the children’s needs. This view gives consideration to some of the mother’s reported concerns in relation to the father, some of which appear supported by independent material as discussed in this report, and some of the perceived medium and longer term benefits for the children. Some of the likely benefits of the mother’s proposal for the children to live primarily with her and to slightly reduce the children’s time living with the father during the school term follows:
(a)slightly reducing the opportunity of exposing the children to any harm relating to any future escalations in the father’s alcohol use or deteriorations of his mental health;
(b)continuing to provide the children with quality time with the father and their important relationships in his household through regular school term time and significant and substantial school holiday time, thus providing the children with an ongoing opportunity to create positive memories with the father, Ms F and the step-siblings;
(c)the promotion of greater stability and routine for the children during a greater proportion of their school weeks, including reducing the need for earlier starts and greater travel to/from school from the father’s residence (which also takes away some of this burden from the father and Ms F);
(d)reducing opportunities for the children to attend school unnecessarily late (which appears to have occurred at times when living with the father); and (e) increasing opportunities for the children to more regularly attend their various midweek extracurricular activities (which the mother appears to more actively facilitate and promote).
There are some possible cons to the mother’s proposal which need to be acknowledged, these being:
(a)the children needing to adjust to a different living arrangement after 4 years living in the current arrangement (noting that they would likely be able to adjust with appropriate support from the parents and the step-parents);
(b)the children spending less time with the step-siblings with whom they appear to have a significant relationship;
(c)the children obviously spending less time with the father and Ms F who are both important people to the children; and
(d)that it goes against the stated views of at least one of the children.
Giving consideration to the pros and cons of the mother’s proposal, and keeping in mind the children’s significant relationships with both parents and members of both parents’ households, it is the view of this writer that the benefits would outweigh and potentially neutralise any perceived cons, and that the children may ultimately benefit in the long term from a slight adjustment to the current arrangement.

At paragraph 39 of the family report, the child expert recorded the father as saying that he would have to live with the Court’s decision if the mother’s proposal was successful that he would not be the person to explain such a decision to the children as it will “break their heart”. The mother appeared not to have considered the possibility of the father’s equal time proposal being accepted by the Court, saying that she would be very disappointed. No adverse commentary was made about the ability of either parties’ partners to support the opposing party’s proposal if that was the order of the Court.
The father was taken to paragraph 80 of the family report which contained excerpts from a referral letter from Dr AF of the AG Hospital who opined that the father had a lifelong pattern of being anxious and hypervigilant in order to achieve some stability and coherence (on a background of his childhood). The father was asked whether he agreed that he had lifelong issues and in response, said that the line of questioning was a shameful weaponising of his mental health and that he had never raised his voice or laid a hand on the children.
He then said “Listen, I want to see a psychiatrist. I’ve wanted to see one for years. I would welcome anybody to find me one”. At paragraph 108, the child expert noted that it appeared that since September 2019 the father’s general physician had been asking him to submit to a psychiatric review and in circumstances where that still hadn’t occurred, the child expert questioned the father’s commitment and sincerity regarding this issue.
The father acknowledged that he had read the family report recommendations about the benefit of obtaining updated information regarding his alcohol consumption and the steps he had taken to engage in a psychiatric review about his mental health. On the latter point he described this recommendation as “completely trivial” but that in any event he had made “hundreds” of attempts to seek mental health assistance but all the psychiatrists’ books were closed and he could no longer access Dr J from B Hospital because he was no longer a patient.
The father was taken to paragraph 62 of the family report which set out the child expert’s observations arising from documents produced under subpoena from the Governing Authority which identified a series of complaints about the father’s conduct. The father agreed he did not like his former manager and that the manager had made use of material he had co-authored without his permission. The father then deflected away from the topic volunteering that “Ms Connelly has many problems with bosses.”
As part of that exploration of the family report, the father was taken to a letter addressed to him from the Governing Authority, Director of child protection investigations. The letter informed the father that he had been the subject of allegations about misconduct at Employer AH. The father said he had apologised to the employer “to help him (the manager) with his ego” but that he was not genuinely sorry.
The child expert confirmed the contents of paragraph 107 of the family report which in summary expressed –
·     his concern about why the hair test had been late and yet had still shown an excessive reading;
·     his concern that the father’s motivation to reduce his alcohol consumption since the hair test was superficial rather than as a result of gaining an understanding that his consumption was problematic;
·     his view that the father should undertake another hair test in the next month (March 2022) and then again three (3) months later (June 2022) and provide those results so as to demonstrate his commitment to a reduction in consumption.
When informed that the father had completed a second hair test but had refused to provide the results, the child expert expressed concern about why not? When his concerns about excessive alcohol consumption were explored, the child expert’s evidence could be summarised as being based on two reasons –
(a)that when under the influence of that amount of alcohol, a parent’s capacity can be impaired such that they no longer are able to respond appropriately to a day-to-day incident involving their children; and
(b)particularly in the father’s case, the consumption is a form of self-medication for the management of stress or anxiety (something which the father had vigorously denied he had done at least since separation).
The child expert was taken to his recommendation that updated information be obtained about the father’s attempts to engage in a psychiatric review of his mental health and related medication[20]. On a background of the material read by him for the family report as well as his interviews with the parties, the child expert said that it was reasonable that by now, the father should have been able to see a psychiatrist.
[20] FR [125]
The child expert was asked if X’s reporting of wanting “50-50” was age-appropriate and in response said, from his experience and observation of X, it was language that had come from someone else. I was somewhat troubled by this concluded view given the alternatives explored by the child expert at paragraph 92 of the family report and his lack of exposure to any compelling evidence post-dating the family report interviews that would warrant him moving away from the various alternatives explored within the family report.
The child expert confirmed that the father had not raised any risk issues in the mother’s home and he could not recall having formally asked MS F that question directly. The child expert said that on his observations, neither child exhibited any reserve in answering questions and that they appeared willing and able to say what they wished to say. The child expert said that neither child expressed any hesitation about the mother’s household.
The child expert was informed of each party’s proposals. On the background of his observations about the parties’ poor co-parenting relationship, the child expert would not support a “50-50” arrangement. Rather than the children seeing each parent each week, the child expert supported block time with the father over the fortnight so that any possibility of direct contact between the parties was reduced to no more than twice a fortnight. This recommendation was canvassed at paragraph 126 of the family report as being a block of time of between four and five nights during term time and alternating one week blocks of time during school holidays. The recommendation was prefaced by a finding having been made that the father did not pose a risk of harm to the children.
The child expert considered that either party’s proposal reflected a significant change to the children’s circumstances and reiterated his view that if orders were made (either way), the children would benefit from him providing an explanation to them.
The father asked the child expert about paragraph 45 of the family report which related to the mother’s workplace injury in early 2020. The child expert agreed that he had not seen two subpoenae; some if not all of which the father had been given access to during the trial (once the issue had been raised). The father did not put any new documents to the child expert and the child expert confirmed his reported view that the material he had read was consistent with the mother’s psychological injury (and subsequent unfitness for work) being specific to the workplace where the injury was sustained. The child expert rejected any notion of bias in his treatment of each party’s mental health difficulties and in my view, there was no evidence before the Court to suggest otherwise.
In 2022 the father and MS F gave birth to AJ (‘AJ’). MS F identifies as aboriginal and with that cultural aspect in mind, she wishes the children to develop a strong relationship with AJ which she says is supported by the equal time currently in place.[21]
[21] Affidavit of Ms F at [6]
On 16 March 2022, the family report was released to the parties in person in Court.
It is common ground that the day after, the father contacted the mother asking her to organise counselling for the children. The message does not include any reference to the mother posing a safety risk to the children but rather asserts that the mother’s decision to change equal time is the complete opposite of what the children want and any changes will be traumatic for them. In closing the father says –
…They (the children) simply can’t make sense of your actions and need help through this time of potential upheaval.[22]
[22] C [220] & annex. ‘R’
In cross-examination, the father said that at the time the children had been “incredibly distressed” and “fearful”. When it was put to him that none of these emotions were evident when the children met with the child expert for the family report, in summary my impression was that the father’s response largely discounted their lack of emotion because of the children being aware that the mother would have found out. Despite what he says were his growing concerns about the mother’s household the father agreed that he did not disclose these concerns to the child expert at the family report interview.[23]
[23] FR [36]
The father agreed that he wrote the messages or received messages from the mother set out within annexures ‘M’ to ‘Q’ of her affidavit. Annexure ‘M’ sets out the parties being in dispute about what time the children should spend with the mother during Easter 2022 with the mother relying on an informal agreement reached last year whereby she permitted the children spend time with the father over Easter when it was her week because the father said he would offer her the same flexibility in 2022. The father denied that was the agreement and asked the mother to point me to where that deal was made and in an earlier message he wrote that given the mother’s legal activity it (may) be our last Easter even having them. The father offered some time on Easter Sunday after observing that the mother had refused his request for the children to wake up in his household for one of their birthdays in the previous three years (instead of offering a window of time). He then says –
…Perhaps it’s time you reconsidered your obsessions with trying to minimise our time with them, I fear that it’s based on your jealousy of how happy they are whilst in our care and of the amazing relationship that they have with their sisters and step-mother. The girls have mentioned that they are unable to talk to you about anything because you yell and scream at them, this aligns with my experience of you as well. I worry about the long term impact that will have on their relationship with you…
On 26 April 2022 the father sent two messages to the mother[24] which start out as being critical of the mother for paying an overdue library book fees (for books lost by the children whilst in his care) in circumstances where he did not agree in the first place to them borrowing books each fortnight. The messages then turn back to the children making disclosures about the mother’s home being scary…because of your (the mother’s) angry outbursts. The father then said that he planned to keep the mother accountable for her behaviours because –
…They are children, I do not want them treated like a punching bag for your Connellys panics, you used to call them when trying to justify your behaviour toward me.
I am writing the following paragraphs as a co-parent who doesn’t want to embarrass you, but whose hands are tied. Originally, I tried to keep your past actions regarding drug and alcohol use, promiscuouty (sic) and violence out of the conversation. The burrito thrown, the punches in Suburb AK and the incessant emotional abuse has been sparsely documented but I will have to fix that now. Why I did this I’m unsure, as your lies towards me lacked the same compassion.
[24] C [215] and annex. ‘N’
On 9 May 2022, as part of a communication[25] about the children being permitted to once again borrow library books, the father observed to the mother how left out the children felt about being banned from borrowing books and feeling awkward about them having to tell the father (and MS F) about it rather than the mother. He accused the mother of being passive aggressive and asked the mother to take the burden off the children and be adult in their interactions.
[25] C[217] and annex. ‘P’
The following day (10 May 2022), in quick succession, the father sent four messages[26] to the mother between 10:55 am and 11:16 am which included –
·Y making adverse disclosures to him about the mother screaming at her;
·The mother sending the children to school without enough food to eat;
·The children often expressing to the father that they would prefer to spend more than 50/50 time with him;
·The mother needing to snap out of it so that the future for her and the children will be brighter;
·The girls suffering and that it is up to the mother to fix it (as in her behaviours);
·The mother using the tens of thousands of dollars she is spending on the litigation for a trip to a private health retreat instead because in his view she needed help and he found it beneficial to be open and honest with people when he recognised he had been struggling.
[26] C [218] and annex. ‘Q’
In unchallenged evidence, the mother said that she had to stop working that day as a result of becoming upset over the messages.[27]
[27] C [218] and annex. ‘Q’
The father agreed that within annexures ‘M’ to ‘Q’ of the mother’s affidavit, he had been critical of the mother but justified his behaviour by saying that she had been critical of him within her affidavit and through her counsel’s cross-examination of him.
I pause here to observe that the pattern of communication between the father and CCS and then again between the father and the mother later in the year were consistent in so far as containing unnecessary and/or inappropriate threats, sent impulsively without leaving an opportunity to respond before the next message and/or being inappropriately emotive.
As recounted above and in other evidence, for the last six to eight weeks leading up to the trial the father said he had growing concerns about the mother’s behaviour towards the children which he says was causing them fear.[28] In cross-examination the father’s evidence was consistent with what he disclosed Y had told him (as set out in annexure ‘Q’ of the mother’s affidavit) and the contents of his written evidence and documents sent to others. At one point the father said that he heard things like “Mum is really mean to us all the time”.
[28] See for example C [214], [215] and annex. ‘M’ & ‘N’
When another question was asked, the father interrupted the mother’s counsel with “Listen!” This comment was made despite discourse between the mother’s counsel and the father some 20 minutes earlier which was to the effect that he knew that when he was in Court he should be on his best behaviour, including being respectful to those involved in the proceedings.
When MS F was cross-examined about her written evidence of the children’s complaints to her, she agreed that the children made disclosures to her when she drove them to or from school. When asked about when in March, the events described at paragraph 7 of her affidavit occurred, MS F could not say. MS F gave evidence about the children’s disclosures which were consistent with her affidavit evidence. She denied that she had contributed to the children making the disclosures or had acted in a way to undermine the mother’s relationship with the children. She said that even as late as in the last week, X had told her that the mother had told her “never act like me”. MS F agreed that it was possible that the children could be telling her something she wanted to hear.
When asked if she knew whether the father had spoken to the children about the family report, MS F said she was unsure.
The father’s concerns were reflected in an email he sent to a staff member employed by the mother’s solicitor in which he asserted that he would be booking the children in to see a psychologist.[29] On 2 May 2022, following an appointment made by MS F, the father took the children to see Dr AL who prepared (for each child), a mental health assessment and plan.[30] The children each received a provisional diagnosis of having an anxiety disorder and stress and a referral was made for them to attend six (6) psychological sessions with an unidentified psychologist. Although the mother says that the children told her they had seen a psychologist, there was no evidence of this before the Court.
[29] C [221] & annex. ‘C’
[30] Affidavit of Ms F at [14] and annex. ‘E’
When cross-examination turned to the contents of exhibit ‘M2’, the father’s interaction with the mother’s counsel started to become argumentative. The mother’s evidence was to the effect that she had recently permitted the children access to Kids Messenger via their iPads, in circumstances where for a longer period of time the father had permitted them access to the platform when they stayed at his house. The mother said that MS F’s daughter Y was added as a profile on 30 May 2022 (‘the Y profile’). The mother then recounts conversations allegedly between her daughter Y and the Y profile when Y was with her (‘the iPad incident’).
The communications of concern started on 4 June 2022 as follows –
The Y profile - love heart emoji
Y - Hi, Mum is going good. No Yelling
The Y profile - that’s good.
The mother says that she realised the messages could not be from Y because when her children were with her, Y (and her sister) were also (at times) at the father’s home and that when this occurred, they left their iPads (which they used to communicate on the platform with her children) at their biological father’s home. The father denied any knowledge of being the person communicating under the Y profile. He described the line of questioning about the iPad incident as “Our home is under attack!”
Exhibit ‘M2’ records the mother speaking with Y and X after reading the above messages. In summary, Y denied feeling like the mother yelled at her and when she was asked by her mother to explain why she used the word ‘yell’ both children started crying. X apologised and Y said she didn’t want to be taken away from her father. Y said she just wants 50/50. The mother then wrote that she asked Y if she had had been asked to say that the mother yells and Y allegedly replied yes, because if I don’t, I’ll be taken away from Daddy and I still want to be able to see Daddy. The conversation goes on with the mother regrettably exploring at least Y’s views about where she wanted to live.
The mother says that in an effort to look at the parental control settings, she had inadvertently started a video call with the Y profile but ended it quickly.
On 5 June 2022, messages started to come from the Y profile which are transcribed below from the attachment to exhibit ‘M2’ (and excluding any electronic markers such as a “sticker” because I cannot see nor is it explained what the typed punctuation means when converted to a sticker)–
The Y profile – Hey Ys ipad a missed call from you at 9:30 last night. Is everything ok?
Y – I didn call I don’t think
The Y profile – It says there is a missed video chat from Y just above the picture you sent
Y – Mum might of bumped my iPad last night
The Y profile – Cute picture. Did you just change it?
Y - yes
The Y profile – I hope you have a good day. I was worried that you were feeling unsafe there again.
Y – I never feel unsafe.
Y – Where (sic) having a play date with our friend N
The Y profile – That what X said, I thought that you both said it. That good then.
Y – No that ok
Y – Love you
Y – I have a birthday party in three weeks at Location O
The Y profile – Do you remember that’s what X said to me?
Y – No not really
The Y profile – What do you remember her saying?
Y – The party starts at 11 am to 9 30 pm
Y – Never fell unsafe
Y - I excited for the party

Accordingly I have given limited weight to their views.
There is no doubt that the children have close and connected relationships with members of both parties’ households. It is important to preserve the relationships they have with MS F’s children and AJ. I accept the children have a close relationship with MS K. I find accordingly.
Both parties have continued to attempt to make decisions about the children’s major long-term issues, but this co-parenting relationship has become fractious, particularly after the mother unilaterally enrolled the children in R SCHOOL. Self-evidently, both parties have taken every opportunity to spend time and communicate with the children, which, particularly insofar as Easter 2022 was concerned, has led to disputation. Other than to record the breakdown in their co-parenting relationship about such decisions, I make no adverse finding about the parties’ willingness to be involved in every aspect of the children’s lives.
One of the more significant additional considerations was the likely effect of any changes in the children’s circumstances including the effect upon the children of being separated from a parent or any other person with whom they have been living. As one of the many identified positives and negatives to a change in circumstances, I accept the child expert’s view that the children will be able to adjust to a different living arrangement after four (4) years of equal time provided that appropriate support is provided by the parents and their partners. By the nature of their competing proposals to change equal time, both parties must have considered the children would be able to adjust and I accept that to be the case.
At the same time, I also acknowledge that if I find that the children should live primarily with the mother, there will be a reduction in the time the children spend in the father’s household and consequently a reduction in the time they spend with him, MS F, AJ and MS F’s children.
Through the prism of the child expert’s ultimate recommendation that (subject to there being no risk) the children spend time with the father for four to five nights a fortnight during school terms and alternate weeks of the school holidays - the child expert considered that the benefits to the children of changing the existing regime would outweigh the negatives. Both parties proposed something different to this ultimate recommendation.
Each party’s proposal was premised on me making a finding that the other party’s household posed a risk of harm to the children which could only be ameliorated by a diminution in the time the children spent there (noting that this was only Plan A for the father).
Both proposals meant significant changes for the children with the mother’s being more drastic insofar as she proposed the children’s time with the father be reduced to three nights a fortnight during school terms and five consecutive nights during alternate weeks of the school holidays whereas the father proposed (in the first instance) that the children spend time with the mother for four (4) nights a fortnight and the same pattern of school holiday time as sought by the mother.
The father’s secondary proposal was a reversion to equal time once the mother had met certain pre-conditions. For him to propose another change in the future must have been predicated on his view that the children could adjust to more change - being a return to equal time.
No matter which proposal I ultimately prefer, I am satisfied that the children will be affected (at least in the short term) by the change in their circumstances and the consequent separation from either of their parents and those members of that household.
However, based on their presentation during the hearing and/or the contents of the family report (see for example FR [38]), I am satisfied that all four adults within the parties’ households have the capacity to support the children as they adjust to the change in their circumstances, and in that regard I accept the child expert’s assessment (see FR [118]). This finding is also supported by each parties’ proposals given they both support a change away from equal time.
In addition, I am satisfied that the children inherently have the ability to adjust because either way they will still be spending regular time in each household (rather than a complete separation) and the child expert has left open the option of him being able to explain the orders to them. Finally, both parties are supportive of the children receiving psychological assistance in the future and the children are already eligible for six psychological sessions so this is another way the children’s adjustment could be supported.
Although there are practical considerations in this matter, I will address all those issues at a later stage of my analysis.
The next consideration that was of significance was each party’s assertion that the other lacked the capacity to provide for the needs of children.
I have already made a finding that the father is not capable of meeting the children’s emotional needs by, at the very least, the children astutely picking up on the mother’s proposal to reduce his time despite them not having met with the child expert in October 2021, their reaction the day after the family report release in March 2022 and him influencing their alleged disclosures of fearfulness in the mother’s household which has caused them to feel distressed.
In addition, the mother alleged that in the absence of any current expert evidence about the father’s current mental health situation (including the appropriateness of his existing medical treatment plan/prescribed medication regime), the Court could not be satisfied that the father had the capacity to appropriately regulate the symptoms of his anxiety disorder in a way that ensured the children did not become anxious or frightened when circumstances arose that caused the father stress or anxiety and/or otherwise exposed the children to inappropriate commentary about, for example the mother. In other words, the mother submitted that the father’s mental health posed a risk of harm to the children’s emotional wellbeing.
To support this contention, the mother invited the Court to make a finding that the father’s attitude towards the maintenance of his own mental health was cause for concern given that for about three (3) years he was aware of requests for him to obtain a psychiatric review/assessment from either his medical treator and/or colleagues within the Governing Authority which appeared to be based on either their medical expertise (the need for his current medication [and its effectiveness in managing his diagnosis] to be regularly reviewed) or their professional observations (of his dysregulated behaviours towards fellow colleagues during the COVID lockdown period). In addition, I note that the child expert recommended the same course of action and about this recommendation, the father prevaricated saying in cross-examination that this was “completely trivial”.
In my view, his above quoted phrase summed up his attitude over the last three (3) years and I do not accept that he has or had a serious intention to seek out a psychiatric review after it was recommended to him back in 2019. In support of this finding I need only reflect on him prioritising a “family commitment” over an appointment with DR P from Q Centre in circumstances where post-discharge from B Hospital in 2017, he had been unable to secure a psychiatric appointment either with Dr J (his then treating psychiatrist) or anyone else.
Essentially, the father submitted that if he didn’t see his behaviours or circumstances as a problem, then despite what other professionals might say, it wasn’t. Clearly his behaviours and circumstances were of concern - given the medical need in 2019 to have his medication regularly reviewed and the various infringements of the Code of Conduct that led to a meeting with the employer which caused her to suggest he get a clearance certificate in 2020. In addition, I have his dismissive attitude towards the excessive reading results of two hair tests, being another example of the father’s attitude to information he does not accept and it causes me concern about how he will react in the future should he again receive information about his behaviours that he does not accept as being accurate.
On top of those independent records, I found it difficult to discount the mother’s submission (as urged by the father) given my reported observations of his demeanour towards the mother during the trial. He was overbearing, condescending and argumentative and in doing so, at times he admitted that he was anxious. Whilst his anxiety was to be expected given the trial is an unfamiliar and confronting setting, his inability to reign in his emotions, scorn and disrespect for the mother was not. Even when informed by the Court on numerous occasions to stop interrupting the mother and after agreeing with the mother’s counsel about what the Court should expect from litigants, he could not restrain himself.
When making parenting orders predicated on the children’s best interests, I am asked to look not only at past events but also into the future at what orders will best meet the children’s interests.
In those circumstances I find that the father does pose a risk of harm to the children in being unable to meet their emotional needs. This is because –
(a)he has not appropriately addressed his mental health (including his failure to undertake a psychiatric review since 2019);
(b)he has displayed emotional dysregulation and disrespect to the mother both before and during the trial and also in prior written communications with the mother and about her (to CCS) culminating in him either directly or indirectly causing the children to make unfounded disclosures about their mother;
(c)his refusal to accept the excessive readings of the two hair tests which may warrant him taking further steps to address his relationship with alcohol.
In my view these two instances together with other examples of the poor choices the father has made at times of anxiety or stress (like bringing “tallies” to a medical appointment) cause me to find that the father has been incapable of meeting the children’s emotional needs and is likely to be unable to meet their emotional needs in the future should a situation arise which triggers his anxiety or otherwise means he cannot support a meaningful relationship between the mother and the children.
In doing so, I reject the father’s assertion that he has genuinely and persistently tried to seek a psychiatric review given that he also openly trivialised the child expert’s recommendation about this issue and to this day it has not happened.
In addition, it may well be that his failure to seek psychiatric assistance may have led to his behaviour in Court which understandably would cause anxiety but not to the extent of justifying his repeated interrupting of the mother’s evidence and/or her counsel’s questions, the condescending manner in which he gave his answers or asked his questions and his spontaneous deflection of his answers to cast the mother in a poor light.
Outside of the trial itself, the father’s electronic communications with the mother were at times unnecessarily emotive, condescending and hurtful (see for example the string of messages on 10 May 2022). This also extended to the manner in which he corresponded with CCS by making inappropriate threats of non-participation or emotive submissions about where the children were interviewed or the absence of MS F’s children in the same process.
The father’s inability to control himself means that should the children do or say something that causes him anxiety, the Court cannot be confident that he will be able to deal with it in an emotionally appropriate manner nor that he is able to promote a meaningful relationship between the mother and the children.
The father invited me to make a finding that because of the mother’s behaviours towards him and the children, she did not have the capacity to meet the children’s emotional needs until such time as she obtained professional assistance. Given the father did not consider the mother had suffered a psychological workplace injury in early 2020 it was unclear what the basis of his concern was other than his past lived experience when they were together and more recently as a result of the children’s alleged disclosures. Notably, in the context of the family report, the child expert did not report any concerns about the mother’s capacity and neither did the father when the issue of risk was raised with him.
So in summary, the father’s evidence was that –
(a)as at the family report interviews, the father saw no risk issues in the mother’s household that would preclude the maintenance of equal time;
(b)the father did not consider the mother suffered from a psychological workplace injury in 2020;
(c)in the weeks following the release of the family report the children made what was alleged to be spontaneous disclosures of the mother yelling and screaming at the children, causing them to be scared - but did not make such disclosures to MS K despite her regularly seeing them and having a close relationship with them.
For the same reasons as set out above regarding whether the mother posed a risk of harm as regards “family violence” or “abuse”, the nature of the evidence and the mother’s disputation of it, means that I am unable to make the finding sought by the father.
Both parties made cross-allegations about each other having an abusive relationship towards alcohol.
It was common ground that whilst the parties were together, the father had at times self‑medicated with alcohol to deal with his underlying mental health conditions.
Post-separation the evidence allows me to find that –
(a)in 2020 the father had turned up to a doctor’s appointment with the children and three “tallies” of alcohol and had abruptly left the appointment;
(b)despite an order of the Court requiring the hair test to be done in time for the child inclusive conference interviews on 8 September 2021, the father submitted to the test late and recorded an ‘excessive’ reading which only got discovered by the mother issuing a subpoena in circumstances where the father refused to co-operate and provide her with the results (as ordered by the Court);
(c)sometime before the trial the father submitted to a second hair test which I will infer recorded an ‘excessive’ reading because (despite being warned) the father refused to produce the results and out-rightly rejected whatever the result was in the absence of any expert evidence to support his view.
Otherwise the evidence was conflictual insofar as the father and MS F did not consider the father’s alcohol intake to be problematic (and neither did MS K although she spends much less time in his presence); versus the mother who relied on anecdotal and independent records to suggest otherwise.
I have made an adverse finding about the second hair test reading being ‘excessive’. This finding contradicts the father’s assertion that he has been abstinent for months and for that reason, I reject his evidence on that issue. However despite these findings, given the conflictual state of the evidence of what occurs in the father’s household and particularly the lack of any actual examples of the father’s parenting capacity being impinged by his drinking - I am unwilling to find that his current capacity to parent is impaired. What I can do is build into my orders a restraint about the consumption of alcohol to ensure that at least the children will not be exposed to any possible diminution in his capacity.
As for the mother, there was simply no credible evidence to support a finding that her alcohol consumption impinges on her capacity - see for example the family report where the father makes no allegations of this nature and there are no recommendations addressing any concerns the child expert may have formed from his consideration of the family’s circumstances.
For that reason, despite what the father submitted should be essentially a “tit for tat” restraint on the consumption of alcohol, I am not going to indulge in an order that is not founded on evidence.
At times post-separation, the parties’ poor attitude towards parenting was profound.
Despite knowing the father would be upset at her decision and in the absence of an order for sole parental responsibility, the mother unilaterally enrolled the children at R SCHOOL instead of, for example, commencing Court proceedings to resolve the issue once and for all. In addition, as late as June 2022, she decided it was appropriate to asks question of at least Y such as –
·Was Y being asked to say if the mother yells?
·How Y felt being at her house and whether she wanted to be there?
·Does Y get lots of hugs if she tells the father and MS F that the mother yells?
Whilst to an extent I can understand and empathise that the mother must have been distressed about the iPad incident and the manipulation she says was occurring - she failed to quarantine the children from the parental conflict, with the inevitable outcome being the children became distressed and felt the pull of loyalty demands (exactly as predicted by the child expert at paragraph 114 of the family report). By recording my observations, I expect the mother to reflect on her spontaneous reaction so as to avoid a repeat of it in the future (if something similarly distressing should occur).
Turning then to the father. Whilst I can understand his frustration at the mother’s unilateral decision to enrol the children at R SCHOOL, this happened over two years ago. It is of significant concern to me that his dismay about the decision remains (in his view) the start of the decline in the parents’ ability to co-parent. The father’s questioning of the mother and his case overall, conveyed how unfair he considered the mother’s decision was and that any move to reduce his time with the children would be viewed through that same prism of ‘fairness’ rather than what was in the best interests of the children.
In addition, the father said that ever since the mother commenced these proceedings in April 2021, his regard for the mother as a parent had deteriorated. In his submissions, the father told the Court that he would only support a return to equal time if the mother’s “neurotic behaviour” stopped. He did not explain what he meant by that phrase but it was evident from the way in which it was said that it was not meant to be complimentary.
In my view the father’s attitude towards the children and to the responsibilities of parenthood has diminished over the course of these proceedings. By way of example –
(a)He was unable to find a way to support the children being taken to the same swimming lesson each week, despite the mother agreeing with his proposed venue;
(b)He criticised the mother for not telling him about paying for overdue library fees, blaming her for lost library books and then demanding that she liaise with the school to lift the library book ban without ever acknowledging any responsibility for the children being distressed about being singled out and not allowed to borrow books when their peers could;
(c)Criticising the mother for seeking advice about the use of a laxative for Y and apparently only commencing to use it when contacted directly by Y’s doctor which meant that Y continued to experience discomfort longer than was necessary;
(d)Criticising the mother for accusing him of exposing X and/or the children to poor dental hygiene when initially her communication did not make such an accusation but rather was a neutral attempted to keep him informed him of the professional advice she had received;
(e)Making unfounded accusations to the mother including her being promiscuous and having some sort of adverse drug history in circumstances where the only possible aim was to cause her distress and pain;
(f)Claiming that she should spend her money on attending a private health retreat because she needed help, rather than continuing with paying for the litigation;
(g)Engaging in a pattern of communication which was confronting and overwhelming, allowing little to no chance for a response - the basis of which can be found in the father’s emails with CCS, the manner in which he cross-examined the mother despite repeated warnings to allow her to finish her answers, the manner in which he interjected into his answers either the word “Listen!” or to deflect towards the mother’s alleged poor behaviour and in how he communicated electronically with the mother which, as recent as 10 May 2022 (on her evidence) caused her to stop working from home for the day to recover.

There are and have not been any family violence orders involving the children or members of their family. I have already reflected on the cross-allegations of family violence.
In summary, the mother says that her proposal will reduce the risk of institution of further proceedings because –
(a)the parents’ contact with each other will be minimised because she will have sole parental responsibility for the children;
(b)changeovers will be reduced to only two a fortnight and then on school holidays;
(c)the reduction in time will limit the potential exposure by the children to the father’s impaired parenting capacity and poor attitude towards her.
In addition to these submissions, I am satisfied that the mother has complied with orders of the Court whereas the father has demonstrated a distinct lack of disregard for orders such as his failure to comply with the hair test order and his threat of not participating in a court-ordered family report interview (if his demands were not met).
By reference to his evidence, I apprehend the father’s view was that in having a Plan A and a Plan B, there was less risk of re-litigation because ultimately the children would return to equal time (being their lived experience for the past four (4) years). The inherent difficulty with the father’s two plans was the unspecified nature by which the mother was meant to satisfy the father in order to transition to equal time. How the mother was to engage in satisfactory psychological support and engage in co-parenting counselling was patently unclear, particularly given that at no time did I hear evidence that she would agree to either.
In addition, I accept the child expert’s view (see FR [118]) that the circumstances of this family do not support the children continuing in an equal time arrangement. There is no trust between the parties, no communication between the parties and neither of them see equal time as being appropriate now. Examples of how the children have been impacted by this complete breakdown in the co-parenting relationship whilst living in equal time can be seen in the following examples –
(a)the children having no set day and time each week for swimming lessons because the parents could not agree on a venue and/or a convenient day and time;
(b)the children being distressed about having to pass on a message to the father about the mother paying late fees for library books and then feeling left out when they were banned from borrowing books;
(c)the children becoming distressed after being exposed to inappropriate questions in both households during the iPad incident as evidenced in either the electronic messages between MS F and Y and then the mother’s subsequent questioning.
There are other facts or circumstances relevant to my consideration.
Firstly, the distance the children currently travel to and from the father’s household to the mother’s household is about 30 minutes and given the mother says her home is close to R SCHOOL it is fair to say the father’s house must be a similar distance to the school. I rely on the father’s evidence that he has accepted the children will continue to attend R SCHOOL and certainly his proposal does not suggest otherwise. On that basis, if I adopted the father’s proposal, the children would be travelling in a car between his household and R SCHOOL for about an extra six (6) one-way trips per fortnight. I heard no submissions about the sustainability of this course of action and so I make no finding one way or the other.
Secondly, MS K’s evidence warrants me commenting on the potential loss of time she will spend with the children if the mother’s proposal was accepted. I found MS K to be quite child-focused about the current circumstances of her grandchildren. This was because despite being a witness for the father at trial, I found that she had deliberately chosen not to embroil herself in the dispute until she absolutely had to and certainly at the point of separation, the mother saw her as a genuine support in enabling her to leave the family home with the children. I have taken into account the loss she perceives will come if I reduce the time the children spend with the father but take heart from the child expert’s views that it is the quality (and not the quantity) of the time that supports strong relationships. I anticipate that whatever the final outcome may be, given his reliance on her as a witness, the father will ensure that the children maintain a strong relationship with their grandmother.
CONCLUSION – PARENTING PROCEEDINGS
I have made a finding that the father has perpetrated family violence upon the mother. The presumption of equal shared parental responsibility is rebutted (see s 61DA(2)).
In my view, the party with whom the children shall live should exercise sole parental responsibility given all the practical considerations that flow from that responsibility, including, for example who, where and when the children may be available to attend appointments related to their health.
I have carefully considered each party’s proposal through the prism of the evidence and the ‘best interests’ principles and find that the children should live with the mother. The reasons why include –
(a)I have not found that her household poses any risk of harm to the children;
(b)Her capacity to support the children’s meaningful relationship with the father was not impinged by the same condescending and hurtful expressions displayed by the father towards her;
(c)My confidence that whilst the children have expressed views different to my orders (which were given limited weight by me as previously explained), with the support of the mother, MR E and any outside psychological assistance the mother may seek, the children will be able to adjust to the change in their circumstances and continue to maintain strong and loving relationships with the father and members of his household including AJ.
The allocation of sole parental responsibility leaves open my discretion about what time the children should spend with the father provided that I am satisfied it is in their best interests to do so. The mother’s proposal was for the children to spend three (3) nights per fortnight with the father during school terms and five consecutive nights with the father each alternate week of the school holidays. The father had no alternate proposal in the event that I ordered the children live with the mother. I am satisfied that the mother’s school term-time proposal is in the children’s best interests for reasons including -
(a)My previous finding that the father poses a risk of harm to the children in being unable to meet their emotional needs.
(b)The father’s poor attitude towards the children and the responsibilities of parenthood demonstrated by a pattern of disregard for their emotional needs not evident from the mother’s more recent transgression in June 2022 (when she asked Y for her views following the iPad incident). By way of some examples only, I note –
·his refusal to accept the need for Y to use a laxative until he heard it from the doctor (which meant that she experienced adverse symptoms when she returned to her mother’s home after a week at the father’s home);
·his refusal to accept dental advice (via the mother but coming from the children’s dentist);
·the children being adversely affected by his inability to co-operate with the mother to resolve the school library issue but rather to solely seek to blame her, in circumstances where it was apparent that to try and resolve some of the issues she had paid fines for library books apparently lost at his home;
·the children not being able to have regularised professional swimming lessons each week despite the mother being willing to negotiate with him;
·his overwhelmingly toxic view of the mother as a parent which included her being neurotic, having a past coloured by unsubstantiated allegations of drug and alcohol abuse and promiscuity; and that she was the one who should go to a private health retreat because she needed help; and
·his behaviour towards the mother (and her counsel) during the trial which was condescending, dismissive and/or at times, inappropriately argumentative and interventionist.
(c)Despite the orders not being in line with their reported views (to which I have given limited weight), the children will be able to adjust to the change in circumstances with the support of the adults in their lives (and other professionals as may be required). They will continue to have a meaningful relationship with the father in circumstances where there is no doubt that they already have a strong and loving relationship with him but the risk of harm posed by him needs to be ameliorated by a reduction in overall time spent in his presence including the complete removal of time during the school week so that the children’s exposure to parental conflict is significantly reduced and their routines can be regularised so that, for example they no longer risk feeling distressed or left out because their parents simply cannot co-operate on the simplest of schooling issues such as happened with the school library;
(d)The children’s strong and loving relationships with MS F, AJ and other members of the father’s household and his extended family will endure given the regular time and communication the children will continue to have with the father (and members of his household) on a background of the children already having strong and loving relationships with them.
I have delayed the start of the children’s time and communication with the father so as to enable sufficient time for the child expert to meet with the children and explain the orders and otherwise to ensure the father has had the opportunity to reflect on this decision (and any stress and anxiety that it causes) in an effort to ensure that he is able to seek support to ensure that he can properly regulate his emotions when he next has contact with the children. I say this on a background of –
·the father choosing not to engage with a psychiatrist/psychologist for some years despite requests from various professionals, sometimes on a background of his fluctuating ability to regulate his emotions at times of stress and anxiety;
·the father telling the child expert that he would not be able to explain to the children orders that gave effect to the mother’s then proposal as it would break his children’s hearts and the final orders seeing an even further reduction in the children’s time with him;
·the father’s heightened concerns for the children’s emotional safety in the mother’s care following the release of the family report - which I have found were triggered not by any real risk in her household but rather his inability to manage his anxiety about the adverse recommendations contained within the family report; and
·my observations of the father’s inability to regulate his behaviours and attitudes towards the mother during the trial (as well as within the written evidence before the court) which will only be exacerbated by the final orders which are (to a degree) in line with the mother’s proposal.
The school holiday orders are in line with the father’s Plan B. In my view, without the demands of the school week and extra-curricular routines, there will be a very limited need for the parties to communicate which will dramatically reduce the risk of the children being exposed to the father’s negative views about the mother and/or parental conflict more generally. The other factor that weighed in favour of the father’s proposal was the need to try and ensure that the children can spend quality time with the father and members of his household and extended family that is not fettered by the demands of school-life and ensure that they continue to have happy memories of holiday-time spent together.
I have included a notation to the effect that wherever possible the children’s time with the father should coincide with when MS F’s children live with her and the dates I have adopted hopefully do that insofar as term time is concerned. In that regard, the specified holiday time with the father was made in a vacuum but I would expect that the parties can move the holiday time around to ensure the four children are all together.
The child expert recommended a reduction in changeovers and the opportunities by which the parties come into contact with each other. I note that the father saw no reason to change the existing regime which required non-school day time to occur at the parties’ homes. However given the overwhelming evidence of mistrust between the parties and the father’s disdain for the mother (at least since these proceedings were commenced) I am of the view that all changeovers either avoid the two parties coming into contact or if necessary that it should occur in a public open space. Accordingly, the orders will reduce the changeovers during school terms to twice per fortnight with the location to be at the children’s school and at the carpark at Store C Suburb D for any other times such as school holidays or special occasions.
There was agreement about the allocation of time during the Christmas period and I will adopt the father’s proposal accordingly.
There was agreement more generally about the mother’s proposals for special occasions and communication (as between the children) and in the main I have adopted her proposals save that for Easter, to ensure that the children spend the same time with the father as they do with the mother, I have extended the father’s time in odd-numbered years (as proposed by the mother) by an extra night, meaning that from Easter Saturday to Easter Monday the children spend time with each party in alternating years.
As identified earlier, I will restrain the father from consuming alcohol so as to ensure the children are not exposed to any inappropriate parenting as a result of him being under the influence.
Both parties agreed to a restraint reducing or eliminating the children’s exposure to parental conflict from denigration and I have made that order.
Both parties agreed to orders supportive of each of them having access to information about the children and each other’s contact information. I have made those orders as well as adopting their consensus view about accessing family dispute resolution before initiating further proceedings.
Both parties agreed that the children would benefit from outside intervention and so (noting the consent of the child expert to do so) I will order that the child expert meet with the children to explain these orders. In addition, and to support their adjustment to the changed circumstances; should the mother decide to go ahead with the psychological sessions she will be permitted to provide a copy of the family report and this judgment to the children’s psychologist. In doing so I would expect that the psychologist at least consider inviting input from the father whilst acknowledging that he has no decision-making role to play in the children’s therapy. This input may be important because the children will still be spending time in his household and it is important that any strategies to assist the children to adjust should be consistently adopted in both households to reduce anxiety and distress from the children receiving inconsistent messaging from those they love.
For these reasons I am satisfied the orders I make are in the best interests of the children.

I certify that the preceding two hundred and thirty-four (234) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 18 July 2022

File number(s):	NCC 1252 of 2021
Judgment of:	JUDGE KEARNEY
Date of judgment:	18 July 2022
Catchwords:	FAMILY LAW – parenting – whether to change existing ‘equal time’ for 7-year-old twins – escalating parental conflict – poor co-parenting – competing residence applications – mental health concerns – potential ongoing inability to support children’s emotional needs – sole parental responsibility appropriate – regular time rather than ‘equal time’ – best interests of children
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 61DA, 65DAA
Cases cited:	Aldridge & Keaton [2009] FamCAFC 229 Mazorski & Albright [2007] FamCA 520 MRR & GRR [2010] HCA 4
Division:	Division 2 Family Law
Number of paragraphs:	234
Date of hearing:	8-9 June 2022
Place:	Newcastle
Counsel for the Applicant:	Ms L Ticehurst
Solicitor for the Applicant:	Landmark Legal
Solicitor for the Respondent:	self-represented litigant

NCC 1252 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS CONNELLY Applicant
AND:	MR WILSHIRE Respondent

ORDER MADE BY:	JUDGE KEARNEY
DATE OF ORDER:	18 JULY 2022