Cote & Cote - [2022] FedCFamC2F 145

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Cote & Cote [2022] FedCFamC2F 145

File number(s): PAC 3180 of 2015

Judgment of: JUDGE NEWBRUN

Date of judgment: 16 February 2022

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

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

Cases cited: Knight & Knight [2016] FamCA 1085

Division: Division 2 Family Law

Number of paragraphs: 347

Date of last submission/s: 14 February 2022

Date of hearing: 6, 7, 8 and 10 December 2021

Place: Parramatta

Counsel for the Applicant: Ms Kaiti

Counsel for the Respondent: Ms Treherne

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

PAC 3180 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS COTE

Applicant

AND:
MR COTE

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

16 FEBRUARY 2022

THE COURT ORDERS THAT:
1.All previous Orders and respective Applications be discharged.

Parental responsibility
2.That the Mother have sole parental responsibility for the children X born in 2010 and Y born in 2012 (together, the children) provided that:
2.1.The Mother contacts the Father in writing and provides her views about any such issue;
2.2.The Mother consults with the Father in regard to any such issue;
2.3.The Mother and Father will make a genuine effort to come to a joint decision about any such issue; and
2.4.If no agreement is reached between the parties, then within 14 days the Mother shall make the final decision and advise the Father in writing of the decision about any such issue, excluding any change of name for the child.

Live-with arrangements
3.The children will live with the Mother.

Spend time with arrangements
4.Except as otherwise provided for in these Orders, the Father shall spend time with X and Y as agreed between the parties in writing and, failing agreement:
4.1.From the date of these Orders, each alternate weekend from Saturday 9am until Sunday 6pm, but only for 2 such weekends;
4.2.Then each alternate weekend, during school term time, from after school Friday (or 3pm on a non-school day) until Sunday 6pm.

School holidays
5.During the NSW school holiday period for terms 1, 2, 3 and 4, Order 4 shall be suspended and X and Y shall spend that holiday time with each parent for one half of all school holiday periods as agreed between the parties in writing, and failing agreement as follows:
5.1.In even numbered years, with the Mother for the first half and the Father for the second half; and
5.2.In odd numbered years, with the Father for the first half and the Mother for the second half.
5.3.AND for the purpose of the implementation of Orders 5.1 and 5.2, the NSW school holiday period shall commence at the conclusion of school on the last day that the children attends at school for the term and the NSW school holiday period shall conclude at the commencement of school on the first day of term that the children attends school and any pupil free days shall be included in the holiday time. In the event that there are an odd number of days the parent who has the children for the first half of the holidays shall have the benefit of the extra day with changeover taking place at 5pm on that day.

Special occasions
6.Notwithstanding any other Order herein, X and Y will spend time with each of the parties as follows, unless otherwise agreed in writing:
6.1. For Christmas:

6.1.1.With the Mother from 12:00pm 25 December to 12:00pm 26 December in odd numbered years and each year thereafter and in even numbered years, from 12:00pm on 24 December to 12:00pm 25 December and each year thereafter.
6.1.2.With the Father from 12:00pm 25 December to 12:00pm 26 December in even numbered years and each year thereafter and in odd numbered years from 24 December to 12:00pm 25 December and each year thereafter.

6.2. For Easter
6.2.1.with the Mother from 5 pm on Good Friday to 9 am on Easter Sunday in even numbered years, and from 9 am on Easter Sunday to 5 pm on Easter Monday in odd numbered years; and
6.2.2.with the Father from 9 am on Easter Sunday to 5 pm on Easter Monday in even numbered years, and from 5 pm on Good Friday to 9 am on Easter Sunday in odd numbered years.

6.3.On Father’s Day, if the children are not otherwise spending time with the Father, then the Mother’s time is suspended and the Father shall spend time with the children from after school the Friday before Father’s Day until before school Monday, with the Mother’s time to be made up the following weekend.
6.4.On Mother’s Day, if the children are not otherwise spending time with the Mother, then the Father’s time is suspended and the Mother shall spend time with the children from after school the Friday before Mother’s Day until before school Monday, with the Father’s time to be made up the following weekend.
6.5.On X or Y’s birthdays, as agreed between the parties and failing agreement, the parent with whom the child is not spending time with as follows:
6.5.1.if a school day, for a period of not less than three (3) hours as agreed or failing agreement from 4 pm until 7 pm; and
6.5.2.if a non-school day (weekend day, public holiday, pupil free day or school holiday), for a period of no less than five (5) hours as agreed or failing agreement, from 12 pm until 5 pm.

Changeovers
7.Unless otherwise specified in these Orders or agreed in writing between the parties:
7.1.Where the Father’s time with X and Y commences or concludes after school or before school, the Father shall deliver or collect the children from their school as the case may be.
7.2.Where changeovers are not effected at the children’s school, changeover shall occur at the B Café located at C Street, Suburb D. The Mother or her agent shall deliver the children at the commencement of the Father’s time, and the Father shall return the children to B Café, at the conclusion of his time.

Family Therapy
8.Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall within seven (7) days contact Dr E for the purpose of arranging and attending Family Therapy and each party shall then:
8.1. Attend at such times, dates and places as may be advised;
8.2. Equally been borne to pay fees as may be charged;
8.3.Participate in and complete such sessions of Family Therapy as are assessed as suitable and offered by Dr E.

During such family therapy, the Mother shall not be required to be present in the same room as the Father. Should Dr E be unable to facilitate this occurring, then the parties shall endeavour to reach agreement on an alternative family therapist within 2 weeks, and in the absence of agreement, the ICL shall, with the input of the parties, select a suitable family therapist. The parties shall be permitted to provide a copy of this Court’s Reasons for Judgment to Dr E or other family therapist engaged by the parties.

Communication
9.That the parents each have telephone communication with X and Y when they are not in their respective care, as agreed between the parties and failing agreement on Mondays and Wednesdays between 6:00pm and 7:00pm and the parent with the care of the children shall ensure privacy during such calls.

General
10.The parties communicate all non - urgent matters regarding the child to each other via text message or email, and the parties agree to be polite and courteous in their text message or email communications.
11.In the event of communication requiring the other party to have less than 24 hours’ notice, the parties communicate via text message and/or phone call and the parties agree to be polite and courteous in their communications and shall limit the discussion to parenting of the children.
12.The parties shall keep each other informed of their residential address and mobile telephone numbers and will notify the other party of any changes in those details within 7 days of any such change.
13.The parties shall:
13.1.notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the children or any of them whilst in their care;
13.2.provide full particulars of any medical practitioner, health service provider or institution attended by the children; and
13.3.provide any such authority and direction necessary to enable the other party to obtain all necessary information concerning the children from such medical practitioner, health service provider or institution.

14.Each party be at liberty to attend:
14.1. school functions to which parents are invited, and
14.2. sporting, school or extra-curricular events that the children participate in.

15.That each party is hereby authorised to obtain from each of the children’s schools copies of all notices, letters, school reports, school photographs, newsletters and announcements of school activities or otherwise pertaining to the education of the children.
16.That the Mother and Father be at liberty to receive from any school or extra-curricular organisation that the child attends, at their own cost, any documents, information or correspondence ordinarily provided to parents, and be at liberty to attend any school or extra-curricular organisation the child attends for the purpose of any function or event ordinarily attended by parents.
17.That the Mother and Father shall be at liberty to receive from any health professional, who at any time treats one or more of the children, all documents, reports, correspondence and information ordinarily provided to parents, and attend any medical appointment ordinarily attended by parents.

Restraints
18.Each parent is restrained from:
18.1.Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so;
18.2.Discussing the family law dispute and showing any of the children any court documents, correspondence between their solicitors, and other documents relating to or associated with these proceedings;
18.3.Conveying messages through the children and or using the children as a go-between to convey messages to each other;
18.4.Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Mother, the Father or any other member of either party’s household;
18.5.Physically disciplining or manhandling the children;
18.6.Yelling at the children, other than in an emergency.

19.The Father shall within 7 days of the date of these Orders do all acts and things necessary to phone F Counsellors (or such other authorised provider) to engage and complete within a reasonable time the Men’s Behaviour Change Program Taking Responsibility course.
20.The Mother shall within 7 days do all things necessary to attend her general practitioner and obtain a mental health assessment and arrange to attend on an appropriately qualified psychologist or psychiatrist AND IT IS NOTED that the primary purpose of this therapeutic intervention is to assist the Mother in managing her anxiety in relation to the children spending time with the Father.
21.That the Mother is granted leave to and shall provide to her selected psychologist or psychiatrist a copy of the Family Report dated 23 September 2020 and a copy of the Court’s Reasons for Judgment.
22.That unless otherwise agreed, the parents may travel with the children interstate or overseas provided that:
22.1. The travel occurs within the time that the parent otherwise has care or the children unless otherwise agreed in writing;
22.2. The parent intending to travel with the children provides at least seven (7) days’ notice for interstate travel and six (6) weeks’ notice of international travel to the other parent;
22.3. The parent intending to travel with the children provides an itinerary of travel including the contact information and address of each place at which the children will be staying;
22.4. A parent shall not, without the written consent of the other parent, take the children to any country which is not a signatory to the Hague Convention, or to any country, region or city for which the Australian Department of Foreign Affairs or Trade has issued the following official advice: “Do not travel” or “Reconsider your need to travel”;
22.5. Such interstate or overseas travel not occur until the Father has completed the Men’s Behaviour Change Program Taking Responsibility.

23.That upon the request of either Party, the other Party will do all things necessary and sign all documents necessary to obtain or renew a Passport for the Child to enable the Child to travel overseas in accordance with Order 22.
24.That the Independent Children’s Lawyer be discharged after (if necessary) assisting the parties in relation to the selection of a family therapist, pursuant to Order 8.
25.The process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders is as follows:

25.1.the Mother and the Father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General or
25.2.the Mother and the Father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.

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 Cote & Cote has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This final parenting hearing relates to the children X born in 2010, aged 11 years, and Y born in 2012, aged 9 years. The parties had another child to their relationship, Z born in 2003.
On 4 August 2015, interim parenting Orders by the Court were made, inter alia, for the children to spend time with the Father for 4 hours each Saturday, with such time to be supervised by the paternal grandparents.
On 21 October 2015, interim parenting Orders were made by consent providing, inter alia, that the children spend 5 nights per fortnight with the Father, being each alternate weekend and each Wednesday evening.
Pursuant to the Court’s consent final parenting Orders of 31 March 2017, inter alia, the children and Z were Ordered to live with the Mother, and spend time with the Father for five nights each fortnight during school terms, and half school holidays. A telephone contact Order was made for the children to speak with the Father. An Order had been made for equal shared parental responsibility.
Between July 2018 and 4 August 2019, the children spend time with the Father 4 nights per fortnight during the school term, as well as half school holidays.
From 4 August 2019 until 19 April 2020, the children spend time with the Father each alternative weekend, and half school holidays.
Between 26 April 2020 and 29 November 2020, the children did not spend any time with the Father.
The family report of Ms G, family consultant, dated 23 September 2020 was released by the Court on 8 October 2020.
On 13 November 2020, consent interim parenting Orders were made, inter alia, suspending until 5 March 2021 the above Orders of 31 March 2017 relating to time with the Father, an Order was made that Z spend time with the Father in accordance with her wishes, an Order was made that the children spend time with the Father for four visits supervised by H Contact Centre for a period of four hours per week and thereafter, for a period of 12 weeks, they spend time with the Father each Sunday between 9 AM and 5 PM commencing 20 December 2020, and thereafter spend time with the Father from after school Friday to before school Monday of each alternative weekend commencing 5 March 2021. An Order had been made for the parents to engage with and consult with the family therapist, Dr E.
On 25 October 2021, a consent interim Order was made that the above Order of 13 November 2020, relating to the children spending time with the Father from after school on Friday to before school Monday each alternative weekend, be suspended. An Order was made that the children spend day-time time with the Father each Sunday between 10 AM and 6 PM. An Order was also made that the children spend telephone time with the Father each Saturday at 5PM. A notation was made that the Father had agreed to these Orders on a without admissions basis noting that he wishes, prospectively, to resume spending overnight time with the children pursuant to the Court’s previous interim Orders.
Proposals
The Father’s final parenting proposals were set out in his Amended Response filed 24 November 2021 and Case Outline filed 28 November 2021. Inter alia, he sought Orders that he have sole parental responsibility for the children; the children live with the Father; the children’s face-to-face time with the Mother be suspended for one calendar month; during school term times the children spend time with the Mother each alternate weekend from after school Friday until after school the next following Monday; and that during school holidays and on special occasions the children spend time with both parents.
The Mother’s proposals were set out in her proposed Minute of Order being Exhibit F. Inter alia, she sought Orders that the Mother have sole parental responsibility for the children; the children live with the Mother; and the children spend time with the Father:
(a)each alternate Saturday from 10 AM to 6 PM commencing the first Saturday after the making of these Orders; and
(b)each alternate Sunday from 10 AM to 6 PM commencing the second Sunday after the making of these Orders,
(c)each alternate weekend from after school on Friday to 5 PM on Sunday,
(d)for half of each school holiday period on a week about basis, and in odd years for the first week of the school holidays and even years the second week of the school holidays.
The Mother sought an Order that the children’s proposed time with the Father on alternate weekends from after school on Friday to 5 PM on Sunday and school holiday time not commence until the completion by the Father of a Men’s Behaviour Change course.
The ICL’s proposals were set out in her proposed Minute of Order containing 25 proposed Orders. Inter alia, the ICL sought Orders that the Mother have sole parental responsibility for the children; the children live with the Mother; during school term times the children spend time with the Father, in week one, each alternate weekend from after school Friday until before school Monday, and in week two from after school Tuesday and Thursday until 7 PM. In the event that the Father relocated within a 30 km radius from the children’s school, the Tuesday and Thursday time with the Father be vacated and the Father spend time with the children in week 2 on Wednesday from after school until before school Thursday. An Order was sought relating to an equal sharing of school holiday time. An Order was sought that the parties arrange and attend family therapy with Dr E. An Order was sought that the Father engage in and complete within a reasonable time the Men’s Behavioural Change Taking Responsibility course. A further Order was sought that the Mother attend her GP and obtain a mental health assessment and arrange to attend on a psychologist or psychiatrist noting that the purpose of this therapeutic intervention was to assist the Mother in managing her feelings towards the Father and develop her ability to co-parent effectively.
EVIDENCE

In the determination of this case the Court has had regard to all of the written evidence referred to below, together with the oral evidence given by each of the parties and the Father’s partner, and Ms G, the family report writer. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. However, those that are important to the Court’s determination will be considered either in this section or whilst addressing the s.60CC factors (see below).
The Mother relied upon the documents set out in her counsel’s Case outline dated 4 December 2021 being:
(a)Affidavit of Ms Cote filed on 8 March 2021;
(b)Affidavit of Ms Cote filed on 22 November 2021;
(c)Affidavit of Ms J filed on 7 July 2020;
(d)Her Amended Initiating Application filed on 23 December 2020;
(e)Her Notice of Risk filed on 15 July 2021;
(f)Her Notice of Risk filed on 13 November 2017;
(g)Child Inclusive Conference Memorandum of Ms G dated 6 March 2018;
(h)Family Report of Ms G dated 23 September 2020.
The Father relied upon the following documents set out in his Case outline filed 28 November 2021 in relation to his above proposed parenting Orders:
(a)Amended Response filed 24 November 2021;
(b)Affidavit of Mr Cote filed 24 November 2021;
(c)Family Report prepared by Ms G dated 23 September 2020;
(d)H Contact Centre reports dated 29 November – 20 December 2020.
(e)Interim Parenting Orders made 25 October 2021;
(f)Interim Parenting Orders, settled by consent on 13 November 2020;
(g)Final Parenting Orders, settled by consent on 31 March 2017;
(h)Affidavits of his partner Ms K filed 12 November 2020 and 6 December 2021.
The ICL relied upon the following documents set out in her counsel’s Case Outline filed 19 November 2021 being:
(a)Child Inclusive Conference Memorandum dated 6 March 2018;
(b)Family Report dated 23 September 2020;
(c)ICL Tender Bundle (pages 31-36 only);
(d)Case outline.
The following Exhibits became evidence in the proceedings:
(a)Exhibit A: Email of Dr E dated 23 September 2021, titled ‘Family Therapy Appointment’;
(b)Exhibit B: Child Support Statements (dated 23 July 2021) and Mother’s Bank Statements;
(c)Exhibit C: Mother’s Case Outline;
(d)Exhibit D: Page 31-36 of the ICL Tender Bundle;
(e)Exhibit E: Tender Bundle of Mother (29 pages plus index);
(f)Exhibit F: Mother’s Amended Minute of Order with 25 Orders.
The Mother
The Father was born in 1979 and is currently 42 years. He works as an engineer. The Mother was born in 1981 and is now aged 40 years. She works as an educator.
The parties married in 2003. They separated in about April 2015.
The Mother lives in Suburb L with the children and the Father lives in Suburb M with his partner and recently born child.
During the parties’ relationship the Mother was the primary carer for the children.
In about April 2015 when the Father was driving in a car with the Mother and children, he became annoyed with a car following behind and slammed the brakes and repeatedly swerved towards the other car.
In about April 2015 the Father became upset with the Mother when in the front garden with the three children. He dropped the point of garden shears into the ground in front of his own feet. He yelled at the Mother to go inside the house and when the Mother refused he came towards her, grabbed her, pushed her and herded her towards the house. This occurred in the presence of the child Y.
In early May 2015 the Father came to see the children and say good night. The Father told the Mother with a raised voice that she was hurting the children with the separation. The Father finally calmed down and told the Mother that he was not sure if he could fix his behaviour.
In early May 2015 the Father told the Mother that she had been sharing stuff about him. He came to her home and insisted, in front of the children, that the Mother needed to log in and open her emails whilst the Father stood there. The Mother refused. The Father started yelling that he needed to see what the Mother had said about him. After the Mother had locked the front door the Father began yelling and sought to have the children open the front door for him. The Father said to the Mother that she could not stop him getting in and he started rattling the window to try and open it. By this time the Mother had phoned the police who later attended and spoke to the Father and Mother separately. The Father then left.
On about 19 May 2015 the Father arrived at the Mother’s parent’s residence where the Mother was staying with the children. The Father grabbed the Mother’s phone and headed towards the front door. The Mother insisted that the phone be handed back to her. The police were called by the maternal grandmother. The police attended and eventually returned the telephone to the Mother. The Father was arrested and the police applied for a provisional ADVO against the Father for the Mother’s protection. The Father had participated in an ERISP on 19 May 2015. During the interview he agreed that his actions and behaviour during the incident would have caused fear and have been intimidatory to the Mother. The Father defended the ADVO and it was dismissed on about 8 October 2015.
In about early December 2015, a dance concert for the child X was held and the Father unexpectedly arrived and sat behind the Mother. The Father kept asking to speak with the Mother with the Mother asking the Father to just watch the concert. The Father continued to try to speak with the Mother and he verbally abused her. The child Z told the Mother that she was scared. People sitting near the Mother and children started to move away.
In December 2015 at about 7 AM the Mother was standing at her kitchen in her pyjamas when the Father appeared at her window and said to the Mother that he wanted to talk to her. The Mother asked the Father to leave but he refused. The Mother talked to the Father for a while and then told the Father that he needed to leave or she would call the police. The Father then left.
In March 2016 the Mother drove the Father’s house to collect the children. The Father tried to talk to the Mother and blocked her with his body from going to get the children. The Father was being aggressive to the Mother. The Mother was holding her phone in her hand. The Father grabbed the Mother’s wrist and pulled her phone out of her hand. He then verbally abused the Mother. The Mother requested the Father to give her phone back to her but the Father refused. The police were called and they took out a provisional ADVO against the Father on the Mother’s behalf.
On several occasions between March and November 2016 the Father stood over the Mother and demanded that the Mother talked to him during the changeover of the children. The Mother reported these instances to the police.
On 8 August 2016, whilst the Mother was walking back to the Court house after lunch with her domestic violence support worker, the Father appeared from behind a building and approached the Mother and her support worker and demanded that the Mother drop the charges against him regarding the provisional ADVO. The Father stood over the Mother and pointed his finger at her. The Mother’s support worker stepped in front of her and shielded her face asking the Father step away from the Mother. The police charged the Father with a breach of the ADVO that day.
The Father defended the provisional ADVO and the matter proceed to a final hearing on 30 November 2016. At the hearing, a final ADVO was made against the Father for the Mother’s protection for 12 months.
In February 2017 the children began seeing a psychologist Ms N in Town O to assist with their anxiety and their behavioural outbursts.
In early March 2017, the Mother drove the youngest child to the eldest child’s school to meet the Father. The Father approached the Mother. He appeared angry and began to yell at the Mother. The Father was angry because the Mother had purchased riding boots for Z. The parties argued. The Father verbally abused the Mother and blocked her path so it was difficult for the Mother to move. The Mother went to the Suburb L police station to make a statement.
In August 2017 Z told the Mother that she and the Father had got into an argument while the children were staying with the Father. Z told the Mother that the eldest child was sitting on the Father’s lap and he was yelling and swearing using the F word.
In 2017 the Father moved from Suburb P to a home in Suburb Q.
On 7 November 2017, the Father was arrested for an alleged breach of ADVO in relation to text messages sent by the Father to the Mother on about 6 November 2017. The police applied for a variation to the 2016 ADVO on the Mother’s behalf, seeking the inclusion of condition 9 that the Father not go within 100 m of where the Mother lived or worked and that the ADVO be extended for five years. On 14 November 2017, an interim variation of a final ADVO was made.
On about 7 March 2018, the Father arrived at Z’s school in the afternoon to pick her up. Z told the Father that she didn’t want to go. The Father became angry and began yelling at her out of the window of the car telling Z to get in the car. Z became scared and ran to the school office for help. The principal of the school went outside and said to the Father that he could not behave like that here. The school called the police and called the Mother to collect Z.
In about 2018 the Father took the children on a holiday. When they returned Z told the Mother that the Father became angry and yelled at her in the public foyer of the resort, verbally abusing her. Z told the Mother that on other occasions the Father had called her derogatory names.
On 7 November 2018 the children and the Mother attended a local school short film festival. The Father arrived and told the Mother that he was here to see the children. At one point in the evening, when the Mother was standing on a balcony, the Father walked up to the Mother, with his face very close to hers, gritted his teeth and said to her loudly “you’re fucking crazy” and which occurred in front of Z. Later the Mother reported the incident to police. The Father was charged with breach of ADVO and the police made an application on the Mother’s behalf to vary the previous ADVO.
In late 2018 the youngest child Y became more anxious at changeovers, often clinging to the Mother telling her that he wanted to stay with her. This child would become distressed and the Mother tried to encourage him to go with the Father. On two occasions the Father physically pulled this child off the Mother and took him. On a third occasion, this child was refusing to get out of the Mother’s car. The Mother crouched near the door trying to get him out. The Father became angry and told the Mother to move out of the way and that he would get him out of the car. The Mother asked the Father to get away from the car. The Father left and this child remained with the Mother until the Mother could calmly persuade him to go to the Father.
On 10 April 2019, an Order varying an ADVO was made which was due to expire on 10 April 2021.
On 3 June 2019, the children came to the Mother’s home after spending the weekend with the Father. The eldest child told the Mother that the Father had called them “shit-heads” on the weekend.
On 28 February 2020 the youngest child Y told the Mother that he did not want to go to the Father’s house, stating that the Father gets angry with him all the time. He told the Mother that the Father grabs his shirt collar with both fists tight. The eldest child told the Mother that the Father pushed Y to the floor hard. She also told the Mother that the Father picks up Y by the arms and holds him in the air. She told the Mother that the Father pushes Y into his room hard.
On 28 April 2020 the eldest child (X) told the Mother that one night when she was having a shower at the Father’s residence, the Father came in to wash her. The Father rubbed soap around the child’s breasts which made her feel very embarrassed. The next day the Mother telephoned the child protection helpline. On 1 May 2020, the eldest child was interviewed by FACS and the JIRT team.
From about May 2020, the children began to be reluctant to speak with the Father.
In early January 2021 the Mother had her first meeting with the appointed family therapist, Dr E.
On 7 February 2021 the children told the Mother they went to the park to play basketball with the Father and his partner. When they arrived there was another man playing basketball with a child. The children told the Mother that the Father had an argument with the other man. The Father was right up in his face and said a swearword. The other man left.
The children are settled and happy in their school and have established close friendships. They attend Suburb L Public School. The children are progressing well in their studies. In 2022 the eldest child will be in year 6 and the youngest child will be in year 4.
The children have regular play dates and participate in regular activities with their friends from school and in the local area. They enjoy extracurricular activities.
The children had a break from seeing the psychologist in late 2020 but in about early 2021 they recommenced visits to assist with their anxiety and sleep disturbances, particular whilst reintroducing time with the Father.
The eldest child continues to receive treatment for nocturnal enuresis. The youngest child has a current asthma action plan which is updated by his GP annually.
The Mother receives child support payments through the Child Support Agency (CSA) from the Father at $96 per month.
The Mother has mild diagnosed anxiety. She regularly monitors her anxiety through her GP and counselling when necessary. She does not require medication for anxiety.
On about 5 June 2021, during the children’s usual time with the Father, the Mother received a series of text messages from the eldest child disclosing that the Father’s partner had yelled at the children for being inside the house.
On about 21 June 2021 the youngest child told the Mother that the Father had grabbed his arm so hard and had pulled him around that it really hurt. He also told the Mother that the Father had clasped his hand around the front of the child’s throat. Later that evening, the eldest child told the Mother that she had seen the Father push the youngest child into his bed really hard and that the Father was swearing. The next day the Mother sent an email to the Father relating these disclosures to which the Father denied. On Saturday, 26 June 2021 the children told the Mother that they did not wish to spend time with the Father. The Mother decided not to facilitate the children spending time with the Father at this time.
On 23 July 2021 the youngest child told the Mother that the Father hurts him and that the Father gets so angry.
On 9 and 10 September 2021 each child exhibited distress and hyperventilation in the Mother’s presence telling her that they did not wish to spend time with the Father. In the second half of September 2021 the eldest child spent time with the Father in the school holidays but the youngest child refused to go.
On 22 September 2021 the eldest child telephoned the Mother and told her that the Father had got really angry because she had told the Father she did not want to attend a family therapy visit. The following day this child was resistant to spending time with the Father and the Mother did not facilitate the time.
On 1, 8, and 23 October 2021 the children were again resistant to spending time with the Father and this time was not facilitated by the Mother.
On 28 October 2021, the youngest child had a significant panic attack, the Mother could not calm him down, and he was lying on the floor struggling to breathe. The Mother followed his asthma action plan but his symptoms did not improve and the Mother had an ambulance attend the home. The next day this child had another bad panic episode so the Mother took him to R Hospital and the child was prescribed medication to ease anxiety symptoms and to help with sleep/settling.
On 31 October 2021 the youngest child told the Mother he could not have his visit with the Father and he started hyperventilating. On this day the eldest child spent time with the Father.
On 4 November 2021, the youngest child had significant panic attacks and the Mother called an ambulance.
On 7 November 2021 the youngest child told the Mother that he felt unable to attend a visit with the Father and only the eldest child attended the visit. This again occurred on 14 November 2021.
The Father’s current child support payment is now about $97 per month for the children.
The children attend before school care 5 days per week, fully funded by the Mother, due to her full-time work commitments. The maternal grandmother picks the children up from school and drives to the Mother’s residence five days a week.
The children’s local catchment area high school is S School. The children achieve well and are settled in their current primary school, and they have established close and lasting friendships with many children in their local catchment area.
In the report of clinical psychologist Ms T dated 9 October 2021 in relation to the youngest child, she states that the youngest child told her on 5 February 2021 that he was now getting on very well with the Father during visits. She stated that on 10 March 2021 Y had stated that he felt sad on the previous weekend spending time with his father because the Father had cracked a raw egg on his head. He told her that he had been then allowed to crack an egg on the Father’s head. On 28 April 2021 Y stated that when he recently stayed with the Father for a week, the Father had only let him phone the Mother once despite him crying and missing the Mother.
The psychologist states that the child told her on 23 June 2021 that on a recent visit to the Father, the Father had, inter alia, pulled his left arm because the child had done something naughty. He stated that he wanted the Father stop yelling at him so that they could have fun together. The child said that he wanted to go back to seeing the Father for 8 daytime hours instead of overnight, because the Father was less likely to get angry at him during the daytime visit.
On 6 August 2021, Y had told the psychologist that the Father was being a bit nicer and not hurting him anymore.
The psychologist states her opinion that over the time she has worked with the youngest child, he and the Mother had reported a pattern of criticism and punishment towards the youngest child by the Father during overnight contact visits. She stated that the youngest child’s aggressive and anxious behaviours were consistent with exposure to such a pattern of behaviour. The psychologist stated her opinion that it would be detrimental to the youngest child’s mental health to require him to attend overnight contact visits with the Father against his will.
On 15 September 2021, the Mother had stated that when Y returned from his most recent overnight stay with the Father, the child had told her that the Father had held his arms and left red marks. She reported that this child was willing to visit the Father during the day but had told her that he did not want to stay overnight.
The Father
The Father and his partner have a child, U, born in 2021.
In the first few years after the parties’ separation, the Father was disappointed and upset about the breakdown of the family and how difficult the Mother had made it for him to spend time with the children. He concedes that he allowed his frustration to manifest in poor behaviour on several occasions.

The Father is frustrated by the litigation in relation to the children instituted by the Mother and by the uncertainty that comes with it.
In relation to the incident in about April 2020 relating to the Father and the eldest child in the shower, the JIRT investigation was completed and closed without further action on about 20 May 2020. The Mother did not facilitate the children spending time with the Father between 1 May 2020 and 29 November 2020. The Father has not seen Z since April 2020.
The Father spent positive supervised time with the children on 4 occasions in November and December 2020.
The children spent time with the Father each alternative weekend from after school Friday until before school Monday from 5 March 2021 until 14 June 2021. The children spent time with the Father during the school holidays in the first half of April 2021.
On 23 September 2021 the family therapist emailed the parties and ICL, stating that she was unclear at this point how much more she could be of help to the parents and family.
On 31 October 2021, the eldest child told the Father, inter alia, that the youngest child’s behaviour in the Mother’s home included yelling, screaming, throwing objects and making threats. She told the Father that the youngest child had had panic attacks at night recently where he would be waking at night and screaming uncontrollably and stating that he could not breathe.
On 1 November 2021 the Mother emailed the Father and ICL stating, inter alia, that, “the main context of Y’s escalating anxiety appears to be that he becomes very anxious when I encourage the children regarding visits with you, he holds fears that you will be “angry” with him…Y becomes very anxious when the topic of visits with you arise.”
The eldest child stayed with the Father from 4 PM Saturday, 20 November 2021 to 4PM the next day.
The Father states that on the occasions when the youngest child has started lashing out physically, he has restrained him by holding his arm or shoulder. The Father believes he has a much firmer parenting style than the Mother.
The Father states that he is glad that the Mother has sought psychological therapy for the children, however he is concerned that he was not made aware of this or given the opportunity to be involved in this therapy.
The Father states that he knows that the Mother is a very committed and competent mother.
The Father states that the Mother still does not engage with him or look at him during changeovers.
The Father states that it was his idea and he requested that the parties do family therapy.
The Father states that during the parties’ 11 year marriage he always thought that the Mother was a good mother and he rarely if ever criticised the Mother or her parenting skills.
The Father agrees that since the parties’ separation his behaviour has at times been intimidating and an inappropriate expression of his frustration at the Mother’s refusal to communicate with him and her (alleged) ongoing obstruction of the Father’s relationship with the children.
The Father’s partner, Ms K
The Father’s partner is aged 34 years. She hails from Country V and came to Australia in 2010. She was a qualified allied health worker in Country V. Her qualifications were not recognised in Australia so she works in allied health.
She met the Father in 2019 and has been in a relationship since then with him. She began cohabiting with the Father in 2020.
In her Affidavit filed 12 November 2020, she states that she has been present whenever the children have spent time with the Father since about December 2019.
She refers to the children’s misbehaviour and fighting and in this context states that on occasion Y would refuse to go to his room so the Father would take his arm and lead him away.
She states that she does not get involved in parenting the children as they already have their mother and father to do that.
In her Affidavit filed 6 December 2021, she states that between about April 2020 and January 2021 she did not see the children.
She states that the child Y has become very defiant and very sensitive since he resumed spending time with herself and the Father in January 2021.
She states that she and the Father generally allow the children to watch one movie per weekend and limited time on their electronic devices as they try to make the time to do family activities together. She states that the child Y particularly started being difficult in that area.
Oral evidence
The Mother gave oral evidence. The Court does not propose to set out the entirety of that evidence.
The Mother was cross-examined by the Father.
The Mother stated that the child Y had just been through the difficulty of anxiety and panic attacks. The child had been working with the paediatrician and psychologist and he had improved over the last few months. The Mother had encouraged the child to spend time with the Father and he had said that he had felt confident to go.
The child Y had had a video call about a week ago with the psychologist Ms T.
The child X had seen the psychologist Ms W since early 2020. Initially, the children had seen Ms N.
The child Y had been prescribed Catapres by R Hospital and the paediatrician due to his anxiety and he was now improving on the lowest dose.
The Mother had ingested antidepressants for eight months post separation. She had last taken medicine for depression five and half years ago.
It was suggested to the Mother that it was possible that her mild anxiety could be picked up by the children. The Mother stated that she does her best and she is good at not allowing that to transfer to the children. In this context she stated that she works full-time.
The child Y interacts with the maternal grandfather regularly. He texts the Father often on his iPod. The children have regular contact with the Father and the Mother encourages that to occur.
It was suggested to the Mother that the Father should be involved in the children’s therapy and psychologists. The Mother stated she was happy for the Father to have a separate appointment if he wishes to do so.
In relation to the shower event, relating to the Father and the eldest child, the Mother stated that she did not believe the Father had sexually interfered with this child based upon the investigation that had occurred. The Mother agreed it was a one-off incident.
The Mother stated she had never met the Father’s partner.
The Mother stated she was not presently seeing a psychologist. Her last consultation regarding her mild anxiety was about six months ago.
The Mother stated, in relation to the family therapist, Dr E, that she was not comfortable with a joint conference.
The Mother acknowledged that on 5 June 2021, when the children were spending time with the Father, that the Father’s new baby was only about one month of age. On reflection, it may have been reasonable for the Father’s partner to not want the children in the house while the baby was settling.
The Mother was asked whether she accepted that it was appropriate for the Father, if the child Y was lashing out physically, to restrain him. The Mother stated that it would be appropriate provided it was not done roughly. The Mother stated that such behaviour by the child occurred when the child’s anxiety was escalating and he was struggling to go for a visit with the Father. Presently this child was not acting in that manner as he was more settled.
The Mother denied that for the most part until about April 2020, the parties had been able to communicate and cooperate effectively in writing in relation to the children.
The Mother was asked why she has no eye contact with the Father at changeovers. She stated that she does this to avoid conflict with him, and to avoid the Father standing over her and abusing her.
In relation to the Father’s allegation that the Mother has a very negative attitude towards him, and that she is failing to comply with Court Orders that the children spend time with him, the Mother stated that personally she feels nervous and threatened about the Father given the trauma that she has experienced in relation to the Father.
The Mother was asked whether she accepted the Father’s assertions that he had regretted that his post separation behaviour towards the Mother had at times been intimidating and an inappropriate expression of his frustration. The Mother stated, inter alia, that she did not accept these assertions because that behaviour of the Father had been repeated so many times by him.
In relation to prospective family therapy, the Mother stated that if all members of the family were required to be in the same room, it would be tense and stressful for the children. The Mother confirmed that she would prefer that the Father be interviewed separately from herself. The Mother stated that she did not wish to be in the same room as the Father.
The Mother agreed that presently the children were not spending time with the paternal extended family because they all live in Melbourne.
The Mother stated that she would agree to use a communication tool with the Father. The Mother stated that she uses text messages to communicate with the Father. She stated that her last face-to-face conversation with the Father was about two years ago. She stated that her last mobile telephone conversation with the Father was about 5 ½ years ago.
The Mother stated that the child Y spends set time each day in relation to videogames if he has done his homework.
In relation to the email sent by the Mother to the Father on 16 February 2021 relating to a possible discontinuance of the proceedings, the Mother stated that she did not believe the children were at risk with the Father when she sent that email to him.
The ICL cross-examined the Mother.
The Mother disagreed that to Z’s opinions had had a big impact on the children. The Mother had told Z not to speak to the children regarding their time with the Father.
The Mother described the eldest child X as extroverted and perceptive. The Mother sometimes worried that she was easily influenced. She was eager to please and was intelligent. She stated that both children are very honest. In relation to the child Y, he was perceptive and was doing well at school. He is quite intelligent. He was eager to be a good person and do things right. If he does something wrong he can be quite hard on himself.
Z had done quite well at school. The Mother had instilled a love of learning. She was an educator.
The Mother had attended post separation courses including a Parenting After Separation course through Z Counsellors in 2017.
The Mother confirmed that there had been no further ADVOs since the one that expired in April 2021. She stated that over the last six months text messages between the parties have been okay. She stated that she still feels nervous and threatened by the Father.
The Mother was asked about eye contact with the Father at changeovers. The Mother stated that she did not want to provoke the Father by making eye contact with him. She keeps her distance from him at changeovers, about 5 m.
The Mother disputed that she could not separate her own experience of the Father from the children’s experience with him. She stated that she encourages the children to spend time with him. She tells the children that they need to go, and that the rules need to be followed. She stated that the reason the children go to spend time with the Father is that she encourages them to go and she had engaged psychologists to help them to go.
In relation to the Mother contacting the police in relation to an incident between the youngest child and the Father, the Mother stated that if she did not act on information that she had received she would be negligent. She stated that the children’s safety was number one.
The Mother stated it was important for the children have a relationship with the Father. The Mother has respect for the Father as the Father of the children.
The Mother had withheld the children from the Father after the shower incident because she wanted to ensure that they were safe.
The Mother confirmed that she did not obtain the Father’s consent to engage the children with psychologists. She stated that she had no intention to cut the Father out of the children’s lives.
In relation to the Father’s proposed Order that the children live with him, the Mother stated that it would be highly detrimental to take them away from their sister and their community. It would be taking them off their mother for no good reason.
The Mother was asked to state positive things about the Father. The Mother stated that the Father takes the children on walks. The children read books at his home. The Father takes the children on fun activities. When the children’s time with the Father is positive, they enjoy it.
By reference to the incident involving the child X, the Mother was asked what she would do if something happened in the future. The Mother stated that she hopes nothing happens. She stated that she would do her upmost to encourage the children to spend time with the Father. She agreed with the family consultant that the children’s relationship with the Father is important.
The Father gave oral evidence. The Court does not propose to set out the entirety of such evidence.
The Mother’s counsel cross-examined the Father.
The Father stated that he had been living in in an apartment in Suburb M for about five months. The children had stayed overnight there about three or four times. They had been there about eight times.
The Father stated the children had been raised in the Suburb D area. Up until separation the parents raised the children in Suburb P. Presently the Father has no intention to move back there.
The Father was questioned as to the effect upon the children of an Order that the children live with him. Whilst the Father accepted that it would be traumatic emotionally and socially for the children to be removed from an area in which they had lived all their lives, he stated that it was most important that the children maintain their relationships with their parents. He stated that it would be more traumatic for the children if they did not have a relationship with him.
The Father was questioned in relation to an incident involving some toast at a recent lunch when the children were spending time with him. The Father stated he had asked the child Y to butter some toast and the child was resistant to doing that. The child argued with the Father. The Father was taken aback and he said he told the child, “By the time you have finished arguing, you could have done it. This is ridiculous.”
The Father was asked how he would manage the youngest child’s behaviours if he was living with the Father. The Father stated that he would spend a good deal of time with him, and he would facilitate a good deal of time with the Mother. He said he would be able to get that child to behave.
The Father was asked whether he had anything positive to say about the Mother. He stated that the Mother was caring and an interested mother. He stated that the Mother takes good care of the children physically. She provides a home and the Mother’s extended family.
The Father was asked whether the Mother provides emotional or other support to the children. The Father stated that the Mother was there for the children. He was not sure whether her emotional support was helpful especially recently.
The Father stated he spends a great deal more on the children than just child support. For example he paid for a horse riding camp and purchased clothes. He said he would be happy to assist in paying for the children’s medical expenses.
The Father confirmed that his last contact with Z was in April 2020. Presently he does not have a relationship with her. He would love to have a relationship with her.
The Father was questioned as to an incident with Z in 2014. He recalled the incident. He denied grabbing her by the shirt. He stated that he may have called her a brat and disrespectful and said to Z that she had made him so angry. It was put to the Father that he had held her for about 20 seconds and was yelling in her face. The Father responded that he did not think so and in this context he stated that he was angry and Z was crying.
It was suggested to the Father that Z’s relationship with the children would be disrupted if the children lived with the Father because she would not be living with the children. The Father stated that it could be and it could be difficult.
The Father was asked what time he would seek to spend with the children if the Court ordered that the children live with the Mother. He responded by stating that he would seek substantial and significant time; at least a full weekend each fortnight and school holiday time.
The Father was asked whether he would have done anything differently in relation to his relationship with Z. The Father answered in the affirmative, stating, inter alia, that he could have had more understanding that Z was older, and that he could have done more things that Z wanted to do and have had more consideration for her.
The Father stated that he attended 14 sessions of a Managing Anger course with F Counsellors in 2015. After separation, he also did a Parenting After Separation course attending 2 to 4 sessions.
The Father was questioned as to how he disciplines Y. He stated that he does not believe in physical punishment. He stated that he separates the children. The Father stated that it was permissible to get angry when disciplining the children. He referred to taking Y to his room. He would go into this child’s room and talk to him after about five minutes. His discipline with the eldest child was exactly the same.
The Father was questioned again in relation to an incident with Z where he allegedly pushed her against a wall, yelled at her and called her a brat. The Father stated he didn’t push her.
The Father was questioned as to an incident in April 2015 when the Father was driving in a car with the Mother and children. The Father agreed that his behaviour was road rage and that the children and the Mother were scared.
In relation to the incident in about April 2015 in the garden with a pair of garden shears, the Father stated that he had become angry and dropped the shears to the ground with the Mother standing behind him. He stated that he had deliberately tossed them into the ground.
In relation to the incident on about 19 May 2015 relating to the Mother’s phone, the Father stated, inter alia, that he had taken the Mother’s phone from her bed. He stated that he wanted to know about the separation. He stated that he had helped himself to the Mother’s phone. He had been standing at the front of the house trying to read her messages. He had returned the phone to the Mother in about an hour. He stated that that was the wrong thing to do. The police had come and asked him to return it to the Mother.
In relation to the incident in about early December 2015 at the eldest child’s dance concert, the Father did not dispute verbally abusing the Mother. He stated he was angry and emotional and he regrets that. He accepts that the Mother might have been scared.
In relation to the incident in December 2015 when the Mother was standing in her kitchen in her pyjamas, the Father agreed that the Mother had asked him to leave and he refused. He stated the Mother had told him that she would call the police and he then left.
In relation to the incident in March 2016 when the Mother drove to the Father’s house to collect the children, the Father agreed that he had taken the Mother’s phone out of her hand. The Father stated that he did not recall and it was possible that he had called the Mother a malicious bitch. The Father had defended Court proceedings in relation to the incident and had been found guilty of assault but no conviction was recorded.
The Father was questioned in relation to an incident on 8 August 2016 whilst the Mother was walking back to the Courthouse. The Father stated that he was found guilty of approaching the Mother under the AVO and speaking to the Mother, and he was fined. He believes he had defended proceedings in relation to that incident.

In relation to an incident on 7 November 2018 when the children and the Mother attended a local school short film festival, the Father agreed that he approached the Mother when the youngest child was holding the Mother’s leg. The Mother reacted. The Father became angry and told the Mother that she was fucking crazy. The Father was found guilty of contravening an AVO and he received a section 10A conviction with no other penalty.
The Father was asked whether he agreed that completing a Men’s Behaviour Change program would address his previous behaviours. The Father stated that he learnt his lesson and he did not believe that he would benefit from doing such a course. He said it may give the Mother some comfort for him to do it but he did not need to do the program. He later stated that he would do the course to maintain his relationship with the children.
The Father stated that he was happy to work with the family therapist to improve his relationship with the children. He stated that joint therapy (with the Mother) would be more effective. He stated that they could do it safely by Zoom.
The Father agreed that he called the police on one occasion for a welfare check after he was charged with breaching an AVO.
The Father agreed that the Mother’s calls to the police which led to convictions against him were justified.
In relation to the incident relating to the child Y and the Father on 21 June 2021, the Father stated that he had to remove this child from a room because he had been fighting with the eldest child over his computer. The Father stated that he stepped between the children, gently nudging Y, and took him under the arm, leading him out of the room, again quite gently. He said Y did not like it.
The Father was asked whether it was appropriate conduct to crack an egg on Y’s head. The Father replied that his parents did that to him and the children later did it to himself.
The Father stated that he has a much firmer parenting style than the Mother. He stated that he is able to say no to the children and be confident with saying that.
The Father agreed that on about 22 September 2021 he had told the eldest child that her birthday would be cancelled if she didn’t go to see the family therapist. In this context the Father stated he was angry with this child.
The ICL cross-examined the Father.
The Father confirmed that his mother and brother live in Melbourne.
The Father confirmed that in the short term he would not move back to his property at Suburb P. He stated that possibly in the future when the airport opens he might move there.
The Father stated he has no objection with the children continuing to see their current psychologist.
The Father stated it was permissible to raise his voice when disciplining the children.
In relation to an incident with Z in about 2014, it was put to the Father that he had grabbed her by the shirt. The Father stated that it was a tight room and that he was cornering her.
The Father agreed that the children were more used to the Mother’s parenting style.
The Father stated that he expected the children to abide by the rules in his house.
The Father was questioned in relation to a home visit interview that he had had with an officer from FACS on about 11 May 2020. It was put to the Father that the Father had agreed with the officer that he was grumpy the last time the children came and that he would work on this. Further in this context, it was put to the Father that sometimes he does get grumpy when the children spend time with him. The Father responded in the affirmative stating, inter alia, that he was getting grumpy at how the children were behaving towards him.
It was put to the Father that the police had recorded on an occasion that the Father was aggressive towards them. The Father disputed this saying that he had been frustrated. He agreed that someone else may perceive his frustration as aggression and that he needs to work on that issue.
The Father agreed that when he gets frustrated or grumpy that that might be something that the children interpret as being angry. In this context, he stated that he had been deeply frustrated regarding the Mother’s numerous reports (to the police).
The Father was questioned in relation to the family report.
The Father agreed that he appeared defensive at times during his interview with the family report writer.
The Father was questioned in relation to paragraph 136 of the family report. He stated that he had work to do in respect to the way the children perceive his grumpiness.
Ms K gave oral evidence.
The Court does not propose to set out the entirety of her oral evidence.
She confirmed there had been an incident with Y when the children were spending time with the Father the previous Sunday, relating to the buttering of bread. She stated that Y had had a tantrum. She stated that it was mostly the Father that had reacted to his tantrum. She stated that Y had had the tantrum because he feels forced to do things. She stated in this context that she does not tell the children what to do. The Father is the parent of the children. She is there as an adult. It is the Father’s job. She stated that she would help the children if they needed her.
As to the Mother, she had never had a telephone conversation with her, nor had she sent her a text message or an email. She had never had a face-to-face chat with the Mother.
She stated that since January 2021 she had seen the children about 10 times but not on many overnights.
She stated that she finds Y’s defiance frustrating as she finds it an overreaction (to events).
She was asked whether she has a loving relationship with Y presently. She responded that it was hard to say that it’s a loving relationship when they have hardly seen the children. She referred to having had a baby in 2021. She stated that she had had a good relationship with the children before the incident (in April 2020).
She confirmed that the Father tries to separate the children when they are arguing. She confirmed that the Father had grabbed Y by the arm, above the elbow, and taken him to his room. She was asked whether the Father used excessive force with Y and she responded that he would do it firmly.
Child Inclusive Conference held on 19 February 2018
This conference was conducted by a Family Consultant, Ms G, and her Memorandum is dated 6 March 2018.
The Court does not propose to set out the entirety of the Family Consultant’s Memorandum.
The Mother made family violence allegations against the Father, consistent with her Affidavit evidence, and to which the Father denied.
The Mother stated to the family consultant that the Father “flies off the handle” very easily and becomes very scary.
The Father stated to the family consultant that the Mother was hospitalised when she was 18 years old, due to depression and anxiety, and that these problems increased after Y was born.
The family consultant stated that both parties stated that the Mother has minimal communication with the Father.
The family consultant stated that the children were seen to interact comfortably with both parents.
Z told the family consultant that the Father does fun stuff with them, but she worries about the Father when he gets angry though she said she is not very scared of him.
The family consultant stated that given the high level of conflict between the parties, it was suggested that transitions between them occur, where possible, at school or in a neutral location. It was recommended that the parties communicate via text, strictly as necessary for the care of the children, to avoid the need for messages to be passed through the children.
Family Report
The Family Report of Ms G is dated 23 September 2020. The Court does not propose to set out the entirety of such report.
The Family Report writer interviewed the parties on 18 August 2020 and interviewed the children and Z on 20 August 2020.
In relation to the JIRT investigation in about May 2020, both parties reported that the allegations were not substantiated.
Both parents reported that there had been two AVOs made, noting the Father as the defendant and the Mother as the person in need of protection, since their separation. A current AVO that was in place expires in 2021.
The family report writer referred to the parties’ respective proposals; the Mother’s Amended Initiating Application and the Father’s Response.She noted that the Response filed 11 June 2020 proposed that the children live with the Mother and spend time with him alternative weekends and Wednesday evenings, as well as extended time during the school holidays. In interview, the Father proposed, inter alia, that parenting arrangements revert to the arrangements reached by consent in March 2017.
The family report writer described the issues in dispute as including whether or not the children are at risk of harm in the Father’s care; arrangements for the children to spend time with the Father; and parental responsibility. The issues identified by the parties included whether or not the Father had perpetrated family violence against the Mother and the ongoing impacts of any such violence; and the ability and willingness of the Mother to support the children’s relationships with the Father. The family report writer identified issues as including the ability and willingness of each parent to identify and prioritise the children’s needs, and the impact on children of potentially losing a relationship with the Father.
The Mother was interviewed.
The Mother appeared anxious throughout the interview.
The Mother equivocated over her proposal for the children to spend time with the Father, and said that if they do not feel safe to spend time, she does not feel it is safe to send them.
The Mother stated that X has told her that there are good times with the Father but that these are ruined because he gets mean.
The Mother stated that the children avoid making the Father angry, because he becomes scary and yells at them. She said that the Father can be rough with Y, picking him up by his arms, or dragging him to his bedroom.
The Mother reported that since the children have ceased spending time with the Father, their behaviour and mental health has improved markedly.
The Mother explained that she does not believe family therapy would be helpful in improving the relationship between the Father and the children.
The Father was interviewed.
The Father appeared defensive at times during the interview.
The Father stated that whilst having the children on Wednesday nights may not be practical at present due to the distance between his house (in Suburb Q) and the children’s primary residence, they should spend time with him in the middle of the week again if he moves to the Suburb AA area.
The Father stated that since the parties’ relationship ended there had been 5 applications made for AVOs naming him as defendant and the Mother as the person in need of protection, with two of these applications being granted.
The Father stated that on one occasion in about 2016, when the Mother arrived to pick up the children, he approached her to speak with her. He said that she took out her phone to call the police so he took the phone off her. He said that this incident led to an AVO being granted. The Mother stated that when the parties attended Court for this matter, the AVO was granted, and the Father breached it immediately by running at her and screaming outside of the Courthouse.
The Mother said that the Father had breached the second AVO by messaging her repeatedly about X’s shoes, and then requesting a welfare check for her and the children, even after she had replied. The Father said that this charge was dismissed in Court, but there had since been another AVO made, because he approached Y, who was holding onto the Mother, at a school event. He said that this AVO expires early in 2021.
The Mother stated that she felt scared of the Father throughout their relationship and that she felt the need to shelter the children from his anger. She referred to the Father driving erratically when angry and described the Father as verbally abusive. She said that the Father did not physically hurt her, but had stood over her and grabbed her. She said that he had forced her against the wall and stood right up in her face.
The Mother stated that she continues to feel fearful for her safety.
The Father acknowledged that there have been times when his behaviour may have been intimidating to the Mother, since separation, due to his frustration. He said that this had occurred twice, when he took the Mother’s phone and when he approached her at a school event.
The Mother said that there was very little communication between herself and the Father and that she attempts to respond to the Father in a brief, businesslike manner. The Father stated that he is able to share decision-making with the Mother but that the Mother refuses to. He said it may assist if the parties had an agreed communication tool that they would use. He said that the Mother does not communicate with him and has not asked him about important decisions in relation to the children.
The Mother said that she currently makes all the decisions for the children and informs the Father.
The Father said he would like the family to participate in family therapy. The Mother said that she does not believe family therapy would assist the coparenting relationship, or the relationship between the Father and the children. She said that she is unable to be in the same room as the Father, because he is intimidating and controlling, and the children are unlikely to speak honestly due to their fear of his reactions.
Z was interviewed.
She stated that there was an occasion when the Father full-on yelled at her and told her that he was able to manage Y’s behaviour.
Z acknowledged that the other children sometimes enjoy the activities that they do when with the Father, but said that this was outweighed by the feeling that they are always walking on eggshells to avoid the Father’s bad mood.
The Father stated that Z is not afraid if he is a bit grumpy.
X was interviewed.
X said that she does not see Mr Cote and that she is happy about this. She said that she does not like going to spend time with Mr Cote because “he is really rude”, and once told her to stand on the edge of a cliff, which made her feel unsafe and scared. She said that she refused to do this, and that eventually Mr Cote gave in, and did not make her do it. She also described an occasion when Y had not wished to attend a visit with Mr Cote “a few years ago”, so Mr Cote picked Y up and carried Y over his shoulder. She later described Mr Cote driving in a dangerous manner.
X said that sometimes she “gets happy” when doing something fun with Mr Cote, but then quickly “gets this really bad feeling” again. She contrasted this with “a really happy feeling” that she has when she is with Ms Cote, who makes her feel safe.
X said that she feels anxious when Ms Cote is really anxious and rushes to them, when something has happened. She said that this does not happen often and did not give specific examples of this.
In regards to her parenting arrangements, X said that she never wants to spend time with Mr Cote again, even for a few hours, and that she wants to be with Ms Cote forever, because Ms Cote keeps her safe and will not allow them to watch M-rated movies with frightening parts. X said that even if she was to spend just a few hours with Mr Cote, she would still have “bad feelings”.
Mr Cote said that he is worried for X at present, because he has not spoken to her since April (2020).
Y was interviewed.
Y said that he does not miss his father, because Mr Cote is rough with him, and pulls him into his room by his arm. He said that this feels horrible and hurts, but that Mr Cote does not stop when Y asks him to. He said that this happens when he does something wrong accidently. He said that he does talk on the phone to Mr Cote and that he “kind of” likes talking about Minecraft and the fact that he gets to talk about it to Mr Cote.
Y said that his preference in regards to his parenting arrangements was not to see Mr Cote at all. He said that he would not miss Mr Cote at all, but acknowledged that Mr Cote would miss him, and that Mr Cote likes it when he visits. He said that he might like to spend a few hours with Mr Cote, but “not really”.
The family report writer stated that due to COVID-19 restrictions that were in place at the time of the assessment, all interviews were carried out by video conference, and observations of the children’s interactions with their parents were not carried out.
Under the heading Evaluation, the family report writer provided certain commentary and opinions.
The family report writer stated that X presented as quiet, but expressive, and somewhat younger than her stated age. She clearly stated the view that she does not want to spend any time with Mr Cote, and this view appeared to be primarily related to her “bad feelings” when with Mr Cote, and sense of not being safe in his care. She also related feelings of security when with Ms Cote, but appeared to have a heightened awareness of Ms Cote’s anxiety. It is noted that X had not had the opportunity to spend time with Mr Cote for some time prior to the interview, and has been interviewed by police and JIRT in relation to the time she had spent with Mr Cote. These factors were likely to exaggerate any feelings of anxiety that X experiences in relation to spending time with Mr Cote, and it is highly likely that X has been influenced by Ms Cote’s feelings in regards to this. As such, it is recommended that X’s views be considered with caution.
The family report writer stated that Y presented as bright and articulate. He stated that he does not wish to spend time with Mr Cote, but considered that he might enjoy spending time with Mr Cote for short periods of time. Y’s primary stated reason for not wishing to spend time with Mr Cote appeared to relate to Mr Cote’s methods of disciplining him. Given Y’s young age it is recommended that his views be given little weight.
The family report writer stated that whilst all of the children spoke negatively about their relationships with Mr Cote, there are some indications that the children’s relationships with Mr Cote are not entirely negative.
The family report writer stated that whilst Ms Cote did not directly allege that Mr Cote had sexually harmed X, she expressed strong suspicion of his behaviours towards the children and expressed that she does not trust him, due to her own experiences of him.
The family report writer stated that Mr Cote’s account of the incident which led to Ms Cote making child protection reports appears to indicate that Mr Cote’s actions in washing X were not sexual in intent. If this is the case, then it would appear that X has been needlessly exposed to child protection investigations, which are likely to have been confusing and distressing for her, and likely to have contributed in part to X’s apparent fear of having contact with Mr Cote. It appears that this situation has partially arisen due to an inability on Mr Cote’s part to communicate successfully with the children in regards to their boundaries, with X apparently not able to make Mr Cote aware that she was uncomfortable with his actions. It is likely that Ms Cote’s high level of anxiety and mistrust of Mr Cote has also contributed. It appears that Ms Cote has encouraged the children, either explicitly or implicitly, to report any discomfort they experience in Mr Cote’s care and that she has not been able to support them to distinguish between feelings of discomfort and risk of danger.
The family report writer stated that it appears that the pattern of relating between the parents, as described in the above paragraph, has been an ongoing feature of their co-parenting since their separation. Mr Cote reported only positive aspects of his relationships with the children and appeared to dismiss the impact that his moods and behaviours may have on the children, such as his comment that Z is able to cope with his grumpiness, which was in stark contrast to Z’s assertion that she feels that she is constantly vigilant of his reactions. It appears that Mr Cote lacks the capacity to consider the children’s needs, in relation to his responses to them.

The Court does not accept, to the extent that certain of the Mother’s reports to the police and welfare authorities did not result in any action being taken against the Father, that such reports by the Mother were unreasonable or vexatious on her part, or that she unreasonably sought by making such reports, or otherwise, to alienate the children from the Father. Again, it is likely that the Father’s family violence, as discussed above, contributed to anxiety (including mistrust of the Father) being experienced by the Mother, particularly anxiety experienced by her in relation to the children spending time with the Father, and which likely contributed to the Mother’s decisions to report to the authorities what she perceived the Father’s adverse behaviour to be, in relation to herself and the children. The Court does not accept the Father’s contentions that the Mother deliberately sought to alienate the children from the Father. The Court finds that the Mother’s actions in reporting the Father’s behaviour to the authorities was undertaken by her seeking to act protectively towards herself and the children.
The Court gives significant weight to this need to protect primary consideration.
Section 60CC(3) - Additional Considerations
(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The Court does not place significant weight on the children’s views in relation to the amount of time they wish to spend with the Father. The Court accepts the evidence of the Family Report writer in this context.
(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussion above under the meaningful relationship primary consideration in relation to the parents.
The children enjoy positive relationships with the maternal extended family.
At least prior to about April 2020, the children appear to have enjoyed a positive relationship with the Father’s partner. The children’s relationship with her post January 2021 appears to have been generally positive but probably of a lesser quality than their relationship with her prior to about April 2020.
(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The parties would appear to have each taken such opportunities.
(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Both parties maintained the children whilst they were in each parties’ respective care. The Father pays regular child support.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations.
There should be no detrimental impact upon the children’s meaningful relationship with the Mother should the children spend time with the Father as discussed above under the primary considerations.
(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The Father lives with his partner and new child in Suburb M, whilst the Mother and children live in Suburb L. The Father stated the drive time from Suburb Q (when he lived there) to Suburb L Public School was an hour. S High School starts at 8.30am. That school is within the Mother’s catchment. Whereas Suburb L Public School starts at 9.30am. The Father stated that it was difficult (in the past) getting Z to S High School on time. He stated that S High School was difficult for him. He stated that he could get X to S High School on time (X will begin high school in 2023). However, he stated that the problem was that if X was attending S High School and Y was attending Suburb L Public School, he would have a wait time (between drop offs at these 2 schools). He agreed that if both children were attending high school it was more convenient to have the children returned to the Mother’s care on the Sunday night if the children were living with the Mother. The Mother’s wish is to send the children to S High School in due course (and see below where the Court finds that it will be in the children’s best interests that the Mother have sole parental responsibility for the children).
In the view of the Court, should the children live with the Mother and spend time with the Father, it is impractical for the Father to return the children to the start of school on a Monday morning, especially when both children are attending high school. Mid-week time would be impractical in the circumstances as well.
(f) The capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
Each of the parties has the capacity to provide for the children’s intellectual needs.
The Mother has capacity to provide for the emotional needs of the children subject to the Court’s discussions under the primary considerations.
The Father has limitations in relation to his capacity to provide for the emotional needs of the children as discussed above under the primary considerations.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The Court refers to its discussions above under the primary considerations and additional considerations.
(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above, in particular under the primary considerations.
The Mother, post separation, did not facilitate the children spending time with the Father for certain periods. In particular, after the shower incident in April 2020, the Mother did not facilitate such time for a significant period. Again, it is likely that the Mother’s significant anxiety and mistrust of the Father, causally related to her experience of family violence, contributed to her not facilitating such time for this period, and she was likely seeking to act protectively towards the children. The Mother, as a further example, had also not facilitated time in 2021, in particular between Y and the Father, by reason of Y’s own anxiety; in this regard, the Mother was likely acting protectively towards Y, and again, her own anxiety and mistrust of the Father likely contributed to such time not being facilitated. Her enmeshed relationship with the children likely also contributed to her not facilitating time.
The Mother did not obtain the Father’s consent to engage the children with psychologists. She did not invite the Father to speak to these psychologists and share information with them. The Court accepts that she had no intention to cut the Father out of the children’s lives by not so doing.
(j) Any family violence involving the child or a member of the child's family
The Court refers to its discussions above under the primary considerations, and refers to the Court’s recitation of the evidence relating to family violence in its above Reasons.
(k) If a family violence Order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the Order, taking into account the following: the nature of the Order; the circumstances in which the Order was made; any findings made by the Court in, or in proceedings for, the Order; any other relevant matter
The Court refers to its recitation of the evidence relating to AVO and criminal proceedings involving the Father in its above Reasons. It also refers to its discussion of criminal proceedings and related Orders in respect to the Father in its discussions above under the need to protect primary consideration.
(l) Whether it would be preferable to make the Order that would be least likely to lead to the institution of further proceedings in relation to the child
The Court is of the view that Orders providing, inter alia, for the children to live with the Mother, and spend regular fortnightly weekend time with the Father during school terms, and during school holidays, in contradistinction to the Father’s proposed final parenting Orders, would be least likely to lead to the institution of further proceedings in relation to the children. In this regard, the Court refers to its discussions above under the primary considerations. As to the Mother’s proposed Orders, the Court refers to its discussions above under the meaningful relationship primary consideration.
m) Any other fact or circumstance that the Court thinks is relevant
The Father had sought Orders relating to travelling with the children including travelling interstate or overseas. Such proposed travel Orders were opposed by the Mother who sought an Order that the Father be restrained from removing the children from the Commonwealth of Australia.
In the view of the Court, it will be in the best interests of the children to make the Father’s proposed travel Orders subject to an Order that any interstate or overseas travel proposed by the Father to the Mother not occur until the Father has completed the Men’s Behaviour Change course. Such Order, in conjunction with the Court’s proposed protective Orders referred to above under the need to protect primary consideration, will minimise the risk of the Father acting adversely towards the children when they are away on travel with him and also assist the Mother in managing any anxiety experienced in relation to such travel.
As to changeover, the Mother and ICL’s proposed Orders should be made, being in the best interests of the children. In this regard, the Court observes that the Mother will have the primary burden of caring for the children, with the children living with her at Suburb L, and a reduction in her drive time to changeovers will assist her in this respect.
It will not be in the best interests of the children, nor in the interests of justice, for the Court to make the Father’s proposed vexatious proceedings Order and in this regard, the Court refers, in particular, to its discussions above under the primary considerations.
PARENTAL RESPONSIBILITY
The ICL and Mother seek an Order for sole parental responsibility in relation to the children. The Father, for his part, seeks such an Order in his favour. Such an Order would entitle the party having the benefit of such Order to solely make major decisions relating to the child’s care, welfare and development.
The Mother has been the children’s primary carer from birth to date. The Mother remains mistrustful of the Father having been subjected to family violence both during and after the relationship. She experiences anxiety and fear in relation to the Father. The parties’ communication with each other is only through electronic means. They have not had a telephone conversation or a face-to-face conversation, in relation to the children, for a considerable period of time. The prospect of the parties prospectively reaching agreement in relation to major decisions affecting the children, in a timely fashion and without conflict, is unsatisfactory. It will be in the best interests of the children that the Mother have sole parental responsibility for them, and be required to consult with the Father beforehand, prior to making any final decision.
SUMMARY
Evaluating the above discussed considerations under section 60CC of the Act, it will be in the best interests of the children to make the following Orders:
1.All previous Orders and respective Applications be discharged.
Parental responsibility
2.That the Mother have sole parental responsibility for the children X born in 2010 and Y born in 2012 (together, the children) provided that:
2.1.The Mother contacts the Father in writing and provides her views about any such issue;
2.2.The Mother consults with the Father in regard to any such issue;
2.3.The Mother and Father will make a genuine effort to come to a joint decision about any such issue; and
2.4.If no agreement is reached between the parties, then within 14 days the Mother shall make the final decision and advise the Father in writing of the decision about any such issue, excluding any change of name for the child.
Live-with arrangements
3.The children will live with the Mother.
Spend time with arrangements
4.Except as otherwise provided for in these Orders, the Father shall spend time with X and Y as agreed between the parties in writing and, failing agreement:
4.1.From the date of these Orders, each alternate weekend from Saturday 9am until Sunday 6pm, but only for 2 such weekends;
4.2.Then each alternate weekend, during school term time, from after school Friday (or 3pm on a non-school day) until Sunday 6pm.
School holidays
5.During the NSW school holiday period for terms 1, 2, 3 and 4, Order 4 shall be suspended and X and Y shall spend that holiday time with each parent for one half of all school holiday periods as agreed between the parties in writing, and failing agreement as follows:
5.1.In even numbered years, with the Mother for the first half and the Father for the second half; and
5.2.In odd numbered years, with the Father for the first half and the Mother for the second half.
5.3.AND for the purpose of the implementation of Orders 5.1 and 5.2, the NSW school holiday period shall commence at the conclusion of school on the last day that the children attends at school for the term and the NSW school holiday period shall conclude at the commencement of school on the first day of term that the children attends school and any pupil free days shall be included in the holiday time. In the event that there are an odd number of days the parent who has the children for the first half of the holidays shall have the benefit of the extra day with changeover taking place at 5pm on that day.
Special occasions
6.Notwithstanding any other Order herein, X and Y will spend time with each of the parties as follows, unless otherwise agreed in writing:
6.1.     For Christmas:
6.1.1.With the Mother from 12:00pm 25 December to 12:00pm 26 December in odd numbered years and each year thereafter and in even numbered years, from 12:00pm on 24 December to 12:00pm 25 December and each year thereafter.
6.1.2.With the Father from 12:00pm 25 December to 12:00pm 26 December in even numbered years and each year thereafter and in odd numbered years from 24 December to 12:00pm 25 December and each year thereafter.
6.2.     For Easter:
6.2.1.with the Mother from 5 pm on Good Friday to 9 am on Easter Sunday in even numbered years, and from 9 am on Easter Sunday to 5 pm on Easter Monday in odd numbered years; and
6.2.2.with the Father from 9 am on Easter Sunday to 5 pm on Easter Monday in even numbered years, and from 5 pm on Good Friday to 9 am on Easter Sunday in odd numbered years.
6.3.On Father’s Day, if the children are not otherwise spending time with the Father, then the Mother’s time is suspended and the Father shall spend time with the children from after school the Friday before Father’s Day until before school Monday, with the Mother’s time to be made up the following weekend.
6.4.On Mother’s Day, if the children are not otherwise spending time with the Mother, then the Father’s time is suspended and the Mother shall spend time with the children from after school the Friday before Mother’s Day until before school Monday, with the Father’s time to be made up the following weekend.
6.5.On X or Y’s birthdays, as agreed between the parties and failing agreement, the parent with whom the child is not spending time with as follows:
6.5.1.if a school day, for a period of not less than three (3) hours as agreed or failing agreement from 4 pm until 7 pm; and
6.5.2.if a non-school day (weekend day, public holiday, pupil free day or school holiday), for a period of no less than five (5) hours as agreed or failing agreement, from 12 pm until 5 pm.
Changeovers
7.Unless otherwise specified in these Orders or agreed in writing between the parties:
7.1.Where the Father’s time with X and Y commences or concludes after school or before school, the Father shall deliver or collect the children from their school as the case may be.
7.2.Where changeovers are not effected at the children’s school, changeover shall occur at the B Café located at C Street, Suburb D. The Mother or her agent shall deliver the children at the commencement of the Father’s time, and the Father shall return the children to B Café, at the conclusion of his time.
Family Therapy
8.Pursuant to section 13C of the Family Law Act 1975, the parties and each of them shall within seven (7) days contact Dr E for the purpose of arranging and attending Family Therapy and each party shall then:
8.1.     Attend at such times, dates and places as may be advised;
8.2.     Equally been borne to pay fees as may be charged;
8.3.Participate in and complete such sessions of Family Therapy as are assessed as suitable and offered by Dr E.
During such family therapy, the Mother shall not be required to be present in the same room as the Father. Should Dr E be unable to facilitate this occurring, then the parties shall endeavour to reach agreement on an alternative family therapist within 2 weeks, and in the absence of agreement, the ICL shall, with the input of the parties, select a suitable family therapist.
The parties shall be permitted to provide a copy of this Court’s Reasons for Judgment to Dr E or other family therapist engaged by the parties.
Communication
9.That the parents each have telephone communication with X and Y when they are not in their respective care, as agreed between the parties and failing agreement on Mondays and Wednesdays between 6:00pm and 7:00pm and the parent with the care of the children shall ensure privacy during such calls.
General
10.The parties communicate all non - urgent matters regarding the child to each other via text message or email, and the parties agree to be polite and courteous in their text message or email communications.
11.In the event of communication requiring the other party to have less than 24 hours’ notice, the parties communicate via text message and/or phone call and the parties agree to be polite and courteous in their communications and shall limit the discussion to parenting of the children.
12.The parties shall keep each other informed of their residential address and mobile telephone numbers and will notify the other party of any changes in those details within 7 days of any such change.
13.The parties shall:
13.1.notify each other as soon as practicable in the event of any serious illness or injury that requires medical intervention by a doctor or hospital concerning the children or any of them whilst in their care;
13.2.provide full particulars of any medical practitioner, health service provider or institution attended by the children; and
13.3.provide any such authority and direction necessary to enable the other party to obtain all necessary information concerning the children from such medical practitioner, health service provider or institution.
14.Each party be at liberty to attend:
14.1.    school functions to which parents are invited, and
14.2.    sporting, school or extra-curricular events that the children participate in.
15.That each party is hereby authorised to obtain from each of the children’s schools copies of all notices, letters, school reports, school photographs, newsletters and announcements of school activities or otherwise pertaining to the education of the children.
16.That the Mother and Father be at liberty to receive from any school or extra-curricular organisation that the child attends, at their own cost, any documents, information or correspondence ordinarily provided to parents, and be at liberty to attend any school or extra-curricular organisation the child attends for the purpose of any function or event ordinarily attended by parents.
17.That the Mother and Father shall be at liberty to receive from any health professional, who at any time treats one or more of the children, all documents, reports, correspondence and information ordinarily provided to parents, and attend any medical appointment ordinarily attended by parents.
Restraints
18.Each parent is restrained from:
18.1.Denigrating the other or members of the other party’s family in the presence or hearing of the children and each party shall do all acts and things reasonably necessary to prevent any other person doing so;
18.2.Discussing the family law dispute and showing any of the children any court documents, correspondence between their solicitors, and other documents relating to or associated with these proceedings;
18.3.Conveying messages through the children and or using the children as a go-between to convey messages to each other;
18.4.Exposing the children to violence including physical or verbal threats or intimidation, whether such threats or intimidation or violence be directed at the children, the Mother, the Father or any other member of either party’s household;
18.5.Physically disciplining or manhandling the children;
18.6.Yelling at the children, other than in an emergency.
19.The Father shall within 7 days of the date of these Orders do all acts and things necessary to phone F Counsellors (or such other authorised provider) to engage and complete within a reasonable time the Men’s Behaviour Change Program Taking Responsibility course.
20.The Mother shall within 7 days do all things necessary to attend her general practitioner and obtain a mental health assessment and arrange to attend on an appropriately qualified psychologist or psychiatrist AND IT IS NOTED that the primary purpose of this therapeutic intervention is to assist the Mother in managing her anxiety in relation to the children spending time with the Father.
21.That the Mother is granted leave to and shall provide to her selected psychologist or psychiatrist a copy of the Family Report dated 23 September 2020 and a copy of the Court’s Reasons for Judgment.
22.That unless otherwise agreed, the parents may travel with the children interstate or overseas provided that:
22.1. The travel occurs within the time that the parent otherwise has care or the children unless otherwise agreed in writing;
22.2. The parent intending to travel with the children provides at least seven (7) days’ notice for interstate travel and six (6) weeks’ notice of international travel to the other parent;
22.3. The parent intending to travel with the children provides an itinerary of travel including the contact information and address of each place at which the children will be staying;
22.4. A parent shall not, without the written consent of the other parent, take the children to any country which is not a signatory to the Hague Convention, or to any country, region or city for which the Australian Department of Foreign Affairs or Trade has issued the following official advice: “Do not travel” or “Reconsider your need to travel”;
22.5. Such interstate or overseas travel not occur until the Father has completed the Men’s Behaviour Change Program Taking Responsibility.
23.That upon the request of either Party, the other Party will do all things necessary and sign all documents necessary to obtain or renew a Passport for the Child to enable the Child to travel overseas in accordance with Order 22.
24.That the Independent Children’s Lawyer be discharged after (if necessary) assisting the parties in relation to the selection of a family therapist, pursuant to Order 8.
25.The process to be used for resolving disputes about the interpretation, implementation or enforcement of these Orders is as follows:
25.1.the Mother and the Father shall do all things necessary to attend counselling or mediation with an organisation recognised under the Family Law Act or by the Commonwealth Attorney General or
25.2.the Mother and the Father shall participate in family dispute resolution with a person authorised under section 10G of the Family Law Act.

I certify that the preceding three hundred and forty-seven (347) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 16 February 2022

File number(s):	PAC 3180 of 2015
Judgment of:	JUDGE NEWBRUN
Date of judgment:	16 February 2022
Catchwords:	FAMILY LAW – Parenting - best interests of children - Orders made
Legislation:	Family Law Act 1975 (Cth), ss. 60B, 60CA, 60CC, 61DA, 65DAA, 65D
Cases cited:	Knight & Knight [2016] FamCA 1085
Division:	Division 2 Family Law
Number of paragraphs:	347
Date of last submission/s:	14 February 2022
Date of hearing:	6, 7, 8 and 10 December 2021
Place:	Parramatta
Counsel for the Applicant:	Ms Kaiti
Counsel for the Respondent:	Ms Treherne
Counsel for the Independent Children’s Lawyer	Mr Friedlander of Counsel

PAC 3180 of 2015
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS COTE Applicant
AND:	MR COTE Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	16 FEBRUARY 2022