Dalby & Jemmet (No 2) - [2023] FedCFamC2F 800

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dalby & Jemmet (No 2) [2023] FedCFamC2F 800

File number(s): ADC 2661 of 2021

Judgment of: JUDGE MCGINN

Date of judgment: 4 July 2023

Catchwords: FAMILY LAW – Parenting orders and injunctions – final consent orders but outstanding issues regarding parent’s presence during other parent’s time – injunctions – role of paramountcy of children’s interest – family violence – children’s welfare - s 68B considerations – orders made

Legislation: Family Law Act 1975 (Cth)

Cases cited: Hedlund & Hedlund [2021] FedCFamC1A 84

Division: Division 2 Family Law

Number of paragraphs: 332

Date of last submission/s: 7 November 2022

Date of hearing: 6-7 September 2022

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Carmen Wood & Associate

Counsel for the Respondent: Mr Anderson

Solicitor for the Respondent: Clelands Lawyers Adelaide Pty Ltd
ORDERS

ADC 2661 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS DALBY

Applicant

AND:
MR JEMMET

Respondent

order made by:

JUDGE MCGINN

DATE OF ORDER:

4 JULY 2023

IT IS ORDERED:
1.That the orders with injunction made 20 December 2021 be discharged.
2.That pursuant to s 68B of the Family Law Act 1975 (Cth) the father be restrained and an injunction is hereby granted restraining him from:
(a)attending upon the children X and Y’s (both born in 2012) school grounds at times the children are not in the father’s care pursuant to the terms of the order of 21 July 2021 SAVE AND EXCEPT for the specific purpose of attending:
(i)school functions in the nature of presentations, end of year assemblies, concerts, school excursions and parent/teacher interviews; and/or
(ii)for the purpose of fulfilling any role as class representative for either of the children’s classes.

(b)attending at any extracurricular activity the children are participating in at times when the children are not in the father’s care pursuant to the terms of the order of 21 July 2022 including but not limited to weekly tuition or training sessions and competitive events save and except for;
(i)end of year or season presentations; or
(ii)where the mother’s written consent has otherwise been first had and obtained.

3.That it be a condition of the father exercising an ability to attend at events as an exception to order 2(a) or 2(b)(i) that he provide 7 days written notice to the mother of his intention to so attend such an event.
4.That the mother’s Further Amended Initiating Application filed 15 August 2022 and the father’s Second Amended Response to Initiating Application filed on 12 August 2022 do otherwise stand dismissed.

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 Dalby & Jemmet has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE McGINN

Before me are the parties’ competing parenting applications in relation to the children X and Y both born in 2013.
For the reasons that follow I have determined that there should be orders in the best interests of X and Y as set out at the beginning of these reasons.
With respect to the parties I refer to the applicant as “the mother” and the respondent as “the father” in these reasons and the orders that make.
Final parenting orders were entered into with the consent of the parties on 21 July 2022. Those orders, amongst other things, provided for equal shared parental responsibility for the parties in respect of the children and that the children live with their father during school term from Monday to Wednesday in alternate weeks and from Friday to Wednesday in the intervening weeks with special arrangements for Christmas, the children’s birthdays, Father’s Day and Mother’s Day and for school holidays and other matters.
Amongst those other matters were orders with respect to injunctions and education which appeared at paragraph 7 and 10 of the orders of 21 July 2022 and which provided:
“ 7. Each party is restrained and an injunction is hereby granted restraining each of them from:
(a) Enrolling the children or either of them in any extracurricular activity that may occur in that period of time when the children are living with or spending time with the other parent pursuant to these orders without the other parent’s written consent first had and obtained;
(b) Attending at the residence of the other party without the written consent of the other party first had and obtained or to give effect to handovers for the purpose of these orders;
(c) Communicating with the other party other than by mobile telephone text message and/or email and in respect of issues solely concerning the children’s care, welfare and development;
(d) Abusing or denigrating the other party to or in the presence of or within the hearing of the children or allowing anyone else to do so;
(e) Discussing these proceedings or the allegations made in these proceedings with or in the presence of the children or allowing anyone else to do so;
(f) Booking any interstate or overseas travel for the children to occur in that period of time when the children are living with or spending time with the other parent pursuant to these orders.”
“10. Each party shall be at liberty and shall do all things necessary to authorise the other to obtain at their respective expenses copies of all school reports, photographs, newsletters and similar materials issued by any school or any club or other facilitator of extra-curricular activity of which the children participate.”
THE ORDERS SOUGHT
The mother by her Further Amended Initiating Application sealed 15 August 2022 sought orders restraining the father with injunction from attending upon the children’s school grounds at times the children were not in his care save and except for the purposes of specifically attending school functions, presentations and parent/teacher interviews and from attending any extracurricular activities the children are participating in whilst they were not in his care, including but not limited to weekly tuition, training sessions and competitive events.
The mother also sought orders for costs in her favour in relation to her Application on an indemnity basis and for certain hearings before the Court on 8 December 2021 and 20 December 2021.
The father opposed the making of such orders and, instead, by way of his Case Outline promoted that an order be made the following terms:
“That the parties be restrained and an injunction be granted restraining either party from approaching or communicating with the other at any events referred to in paragraphs 1 and 2 herein.”
In short, the effect of the father’s position, if successful, would mean that each of the children’s parents could attend at school events and extracurricular activities when the children were otherwise in the other parent’s care provided that the parents did not approach or communicate with each other at the event or activity.
DOCUMENTS RELIED UPON BY EACH PARTY
The mother relied upon a Further Amended Initiating Application filed 15 August 2022, her Outline of Case document of 5 September 2022, her trial Affidavit of 15 August 2022 and documents comprising a tender book as referred to in the trial affidavit affirmed 14 August 2022.
The father relied upon his Second Amended Response to Initiating Application sealed 12 August 2022 and his trial affidavit of 12 August 2022.
Each of the parties gave oral evidence and were cross-examined, as was Ms B.
THE EVIDENCE OF THE PARTIES AND THE FAMILY ASSESSMENT REPORT WRITER.
The mother gave her evidence in a straightforward manner and was candid in her complaints about the father’s conduct towards her and his communications with her from time to time.
In giving her evidence as to the effect of the father’s attendance at her home, the mother’s presentation was strongly suggestive of her having been distressed on that occasion and appeared genuine.
The father’s evidence on occasion was redolent of the need to justify and explain his actions rather than endeavour to truthfully and directly answer questions put to him. The father was generally a defensive witness given to discursive answers when he perceived that his actions might be the subject of challenge or adverse comment in due course.
This approach to the giving of evidence by the father included his looking to the back of the courtroom whilst giving his evidence, conveying an air of indifference or disdain about the necessity to answer questions and an unwilling resignation that he might have to account for past actions.
The Court has taken into account the father’s disposition in weighing the evidence presented at trial.
The Family Assessment Report writer Ms B, a clinical psychologist, gave her evidence in a careful and measured way and the Court finds her to be a considerate witness.
There was no challenge to Ms B’s expertise.
Ms B gave her evidence in a manner which was consistent with her being conscious of the limits of her role and that of her expertise in assisting the Court.
THE PARTIES’ CONTENTIONS
The mother advanced her case on the basis that:
(a)the father contravenes interim orders precluding his attendance at events;
(b)the father is incapable of controlling his behaviour directed towards the mother and members of her family;
(c)the father exposes the children to dysregulated behaviour;
(d)the mother is a victim of coercive controlling behaviour at the hands of the father;
(e)the father has an inability to communicate with the mother in a respectful fashion;
(f)the orders the mother sought were necessary to enable her to support the children in the activities they were to undertake during their time with her;
(g)the mother would need to “yield” to the father’s behaviour when he was attending events at the children’s school and where the children’s extracurricular activities were conducted; and
(h)the children should have the benefit of their mother attending events without her harbouring a fear or worry of the father behaving badly at such events and causing her to be upset.
The father advanced his case on the basis that:
(a)there was no separation of the parties in 2013 on account of family violence;
(b)at the time of the parties’ separation the children were a few months old;
(c)the relationship between the parties was unremarkable and not marked by dysfunction or the involvement of outside agencies;
(d)the only event of concern was that which took place between the father and the mother’s husband in 2014;
(e)between October 2013 and June 2021 the parties co-parented the children for almost 8 years;
(f)the mother despite commencing proceedings in June 2021 only instigated the issue of non-attendance at events following the Family Assessment Report (the “Report”) of Ms B of 15 December 2021;
(g)only X (not Y) was uncomfortable with the presence of both parents at the same event;
(h)the mother approached the father in mid-2022 at a sports match;
(i)on Father’s Day 2021 the father saw the mother at a child’s sports match without event; and
(j)the children’s interests would not be served by an interim injunction granted 20 December 2021 continuing.
DISCUSSIONS AND FINDINGS
The mother is now married to a Mr C. They commenced a relationship in or about late 2012 before the parties separated in October 2013. The mother’s relationship with Mr C was disclosed to the father prior to the parties’ separation in October 2013.
The mother and Mr C married in 2021.
The father has told the children he wishes to keep his distance from Mr C.
The mother’s parents live in Perth. They had not attended in South Australia for the last couple of years as at the date of trial. The mother did not respond to a question as to how often her parents otherwise attend sporting or extracurricular activities of the children, leaving me to find that the maternal grandparent’s attendance at such events was seldom, if ever.
The mother lives at Suburb E and the father at Suburb F in Adelaide, South Australia. The parties live about 20 minutes’ drive from each other and about the same amount of driving time from the children’s school.
The father’s parents live at Town G and Suburb H respectively and have attended a couple of the children’s sports matches when the children were playing at Suburb J and were then in the mother’s care.
In 2022 the paternal grandparents attended almost all of the children’s sporting events whilst the children were in the mother’s care.
The father has a poor relationship with his own father.
The father has a particular interest in sporting activities which he shares with the children.
The father has a clearance from the Department of Human Services (South Australia) which he obtained for the purposes of being able to assist with the children’s school excursions. The mother expressed surprise that the father was able to obtain such a clearance given that in 2014 the father assaulted the wife’s husband for which a conviction was recorded.
The children attend K School.
The children are progressing well at school and Y’s learning difficulties, where present, are being appropriately addressed.
The father meets the children’s schooling expenses and expenses associated with all but one of the children’s extracurricular activities.
The extracurricular activities in which the children have been or are involved comprise:
(a)A sport organised by their father;
(b)another sport organised by their father;
(c)an extracurricular class organised on one occasion by their father;
(d)other extracurricular classes organised by their father without the mother’s knowledge;
(e)a third sport;
(f)a fourth sport which the mother had organised in 2018 with the father going on “his day” and the mother going on “her day”;
(g)a fifth sport at clubs at Suburb J and Suburb L which the father organised;
(h)the same sport at K School which was the subject of agreement between the parties and arranged through email from the school; and
(i)a sixth sport, which the father organised and which the mother was happy for X to participate in as long as he wished to do so. X participated during the summer of 2021/22 for about five or six weeks over about two or three hours. The father assisted in the 2020/21 summer. The mother volunteered at this sport on one occasion when the father did not attend in 2022. The mother when dropping the children off for this sport kept herself away until the last session of activities when she joined with the children. The mother would never attend this sport when X was in his father’s care. The father however attended this sport when X was in his mother’s care. This occurred on about six or seven occasions across the summer of 2021/2022.
X enjoys this sporting activity.
The mother also thinks that X tires from it.
X expressed the view to Ms B in December 2021 that if he had three wishes he would not wish to exercise them as his life was perfect as it is.
Despite the views that X expressed to Ms B, the mother maintained the view at trial that X was extremely uncomfortable when his parents were both present at his extracurricular activities, including the events at which the mother took care to be at a distance from the father.
The parties stay away from each other at sporting events.
The parties generally do not speak to each other. They communicate by text messages and email.
The mother is “waiting for the day” that the father assaults her.
This anticipation is said by the mother to arise due to events from when the parties were married, when the parties “broke up” (which occurred finally in October 2013), when the father assaulted the mother’s present husband (which occurred in early 2014) and when the father said he would organise to have the mother killed in a court case in late 2014.
The father is an involved parent when it comes to the children’s schooling and extracurricular activities and this includes times when X played sports at Suburb M Sports Club in 2020 and Suburb J Sports Club in 2021.
Although the mother did not understand the father to be a coach at the Suburb M Sports Club in 2020, he was one of the parents assisting with the team doing the sorts of things that a coach might be doing.
In 2021 the father fulfilled a similar role at the Suburb J Sports Club.
The father attended the majority, if not all, of X’s sports games and trainings while X was both in his care and in the mother’s care.
The mother attended the sports games and training sessions which took place while X was in her care.
On 20 October 2013 the parties separated. At that time the children were only a few months old.
There was no involvement with the South Australian Police in the days leading up to the parties’ separation. There were no family violence orders as between the parties nor had there been any application for such an order.
The mother’s trial affidavit records that prior to the parties’ separation and on unspecified occasions the father would punch the wall or the couch in anger and frustration. This is understood to have been in the presence of the mother. The mother’s evidence was unchallenged in this respect. The father said he could not “really” recall such events. I find that the father was likely to have punched things in the way the mother described.
It was the uncontested evidence of the mother that on the date of the parties’ final separation being 20 October 2013, the father placed into a bag the wife’s keys, personal laptop and her purse and took her mobile phone from her pocket. When the mother tried to take the bag from the father he pushed her away forcefully and then smashed her mobile telephone on the driveway. The mother deposes that the father had previously “smashed” her mobile telephone but cannot recall the particulars of that first time. There is no other evidence recorded in the mother’s trial affidavit as to the nature of the father’s “violent” behaviour. In reaction to the father leaving the home in the manner that he did, the mother had prepared to remain at the parties’ home, locked herself inside the premises and organised for the children’s paternal grandparents to then stay with her.
The father’s evidence was that he could not recollect all of the events of that evening. Despite this, his answers leads me to the view that he did smash the mother’s phone on that occasion. His failure to recollect the incident was on account of him being intoxicated that evening.
I accept the mother’s evidence as to what occurred on that occasion and that the father’s behaviour would have been frightening for her and can be reasonably considered to be so.
In early 2014 the father assaulted the mother’s partner, now husband, Mr C.
The father when questioned about the events of this day was keen to explain that he was not the cause of what came to unfold that day between himself and the person who later became the wife’s partner (and some years later her husband). This recollection of detail was in contrast to his recollection of detail of the events at or after the parties’ final separation in October 2013.

The father initially gave detailed evidence as to what occurred in early 2014, how he arrived at what was the mother’s then place of residence following a road incident and found Mr C at the mother’s residence.
The father was asked in cross-examination if he had punched Mr C. The father would not concede that and was avoidant in his answer. He said he was defending himself. I took his answer to mean that he was in fact punching Mr C.
The father finally said 3 or 4 punches were exchanged.
The father said he could not recollect whether he pleaded guilty to the assault of Mr C on the basis of self-defence. I find that he did not so.
Whilst the father said that things got “heated” on that occasion, he would not concede that he got aggressive. I reject his evidence in that regard.
The father said in his evidence that both he and Mr C ended up with ripped shirts and blood on them.
The father gave evidence with some feeling that Mr C’s behaviour that afternoon was a planned, premeditated series of actions on his behalf from the time of the road incident and designed to cause the father to be put in the position to assault Mr C. This evidence only serves to lead me to the view that the father was looking for and was prepared for a confrontation that day and lost control leading to his subsequent assault of Mr C.
The father would not agree initially that his behaviour on that occasion was a result of him being out of control; rather it was out of character. He then subsequently changed his evidence and conceded he was out of control in those circumstances.
The father’s evidence on this topic and the manner in which he gave it leads me to the view that he was a witness who could be avoidant and capable of rationalising and minimising the effect of his own behaviour.
In 2014 the father was convicted for the assault of the mother’s husband Mr C upon the father’s plea of guilty.
The sentencing remarks of the learned Magistrate at the time of the father’s conviction for assaulting Mr C reveal that the assault was serious, that the victim was in many respects an innocent victim, that the husband’s behaviour was accepted as being totally inappropriate and significantly across any acceptable line and that the offending was very much out of character. The learned Magistrate was confident that the offending would not be repeated again.
Having listened to the father’s evidence, I find that he now accepts that his behaviour towards Mr C was totally inappropriate. However, the father’s evidence does not lead me to the view that he regards Mr C as an innocent victim. Such a disregard is inappropriate.
The mother now maintains an apprehension, if not a fear, of how the father may behave in the presence of her husband whether it be in public or in the relative privacy of their respective residences. I find that this apprehension is appropriate and realistic.
The father’s behaviour of early 2014 would have left in the minds of the mother, Mr C, others who witnessed the incident and others who learned of that incident a fear that the father could be violent. The father’s past behaviour gives cause to the mother and her husband to be on guard when the father’s emotions or anger are heightened.
With the conviction, an intervention order was put in place against the father in favour of the mother’s husband for a period of 12 months which appears to have ended in 2015. That order proscribed contact and communication between the father and Mr C.
In about 2017 or 2018 the children commenced school.
By early 2018, when the children were aged 5 years the parties had implemented an equal time spending arrangements with the children.
The parties were also attending together at sporting events, extracurricular activities and school assemblies. The mother under cross examination said whilst doing so, she did not feel comfortable. I accept her evidence in that respect.
Despite this a fair degree of cooperation existed between the parties so as to ensure that the children’s time spending arrangements work.
The mother was not prepared to adopt a description of the period since 2018 as “successful parenting” but rather that the parties were “able to co-parent”. The mother went on to explain in her evidence that by co-parenting she meant that both of the parties had an equal say and both made decisions that benefited the children.
In mid-2019 there was an incident at a café where the father abused the mother and was physically threatening. The father instigated the meeting and the mother was content to meet with the father at that time. The parties met at a café understood to be on or near N Shopping Centre. The mother after listening to complaints from the father then got up and left the café. The father followed the mother. He then grabbed her by the arm and pointed a finger at her. The mother began to tell the father to let her go. In doing so the mother yelled. The father said that the mother need not have done so and that the mother did so to draw “a massive amount of attention” to the situation.
The father’s evidence on this topic was redolent of an unjustifiable attitude that the unpleasantness caused by his grabbing of the mother by the arm was the mother’s responsibility rather than his own.
A passer-by told the father to leave the mother alone and stood between the parties and held his hands up. The father then pushed one of the passer-by’s hands away and began yelling and swearing at him. The mother said that she was frightened by the events of that day and came to form the belief that the father would have hurt her if they had not been in public. I accept that she was frightened by the father’s actions after she walked away from the café and it was reasonable that she was so frightened.
The mother in her affidavit did not describe any incident prior to this date of mid-2019 which caused her to feel frightened by the father although she said in her evidence under cross‑examination that the father had made her feel frightened for many years despite not seeking any type of family violence order. I accept her evidence in that regard as being consistent with the events prior to and at or about separation and history of the assault of Mr C.
In or about August 2019, the mother sent a text message to the father saying that if X wanted to have more time with his father the parties need to come up with an agreed arrangement as she had suggested before. There were some differences in views between the parents as to whether this was what X in fact wanted.
However, despite the differences in views, in 2019 and 2020 the weekly care arrangements for the children was varied in that the father retained X in his care and removed X from school when he was due to return to his mother’s care on some occasions.
The mother says that these changes in arrangements were “forced” although in what manner she was forced is not clear from her evidence. I find that the change in arrangements was likely to have come about through the father’s insistence and persistence and the mother’s acquiescence in respect of the changes.
By May 2020 the parties were conducting one handover between themselves being on Saturdays at the father’s house at 4pm. All other handovers were at school. This persisted until the Court made orders on 20 December 2021.
In 2021 the father was the children’s class representative at their school.
The mother maintains a complaint about the father’s class involvement in that he created an “online chat” group that excluded the mother. This was not part of the mother’s evidence in her trial affidavit. This is not a matter of any weight for the purposes of the present applications.
The mother conceded that it was not her intention by her present Application before the Court to preclude the father from attending at the children’s school in his capacity as class representative during the times the children are in her care.
In mid-2021 X was diagnosed with a medical condition.
The mother was initially unaware that the father had attended at X’s school to discuss that condition with the school staff. The mother could not recall being contacted by the father to make an appointment with a general practitioner to obtain or develop a medical management plan for X in respect of his medical condition.
In mid-2021, X experienced a medical episode at about 6:00 am. His father took X for tests at the O Hospital. The mother was not contacted and X’s admission to the hospital until about noon or 1:00 pm that day.
In or about April 2021, the father commenced retaining X in his care on a Thursday which the mother reluctantly accepted. The mother formed a view then that she did not wish to put X in the intolerable position of having to choose between his parents. I do not accept her evidence in that regard although it was not challenged under cross examination as it was open to the mother to commence proceedings for appropriate parenting orders or to otherwise act on her own behalf in the children’s interests as she then perceived them to be. In fact, it was just a matter of the mother in all the circumstances accepting a change in care arrangements.
In mid-2021, the father purchased a mattress and sensor to monitor X’s sleep in relation to his medical episodes and provided that to the mother.
In May 2021 there was an occasion when the mother arranged for the paternal grandfather to collect X and when doing so the father also attended at the school. The father was unaware that his father was also then attending at the school.
The mother was of the view that there was no reason for the father to be at the school that day.
What then unfolded at the school was a result of the parties being unable to calmly, patiently and courteously communicate with each other.
Whilst the father was in his car on the way to the school he was rudely asking the mother who was going to be picking up X from school.
The mother then told the father by electronic communication that the paternal grandfather had been arranged by her to pick up X.
However, the father appeared to be cross-examined on the basis that the father had assumed that no arrangement had been made by the mother for X to be collected from school as the mother had attended at the father’s home to collect Y and the children’s school was some distance away.
The mother said she arranged for the paternal grandfather to collect X from school as she was of the view that she had to collect Y from the father’s home at about 3:00 pm and anticipated that she was then obliged to go on to collect X from school at 3:30 pm, however, she felt that she may not be able to manage both collections in a timely way.
The father felt his understanding of the circumstances was that he should collect X from school. Once the father arrived at school he saw X with his paternal grandfather.
It is reasonable to infer that the grandfather’s appearance at the school was the result of some request to him from the mother to collect X and that the grandfather was not acting spontaneously or his own behalf in collecting X from school.
It does not appear that that thought then occurred to the father or was considered or explored in any way by him. The father took X from the paternal grandfather. At this time, the grandfather held up his fist and threatened to punch the father and would not let the father take X’s school bag. The paternal grandfather then stood aside after the father said he would call the police.
The father then went with X for a hot chocolate before returning him home to his mother.
The father when asked if X had been scared by the events of that afternoon acknowledged that that might have been so but said that X was more likely to have been “taken aback” by the events of that afternoon.
The father said in his evidence that he handled the events of that day “extremely well”.
I disagree.
With the benefit of the passage of time, the father should have been more circumspect at trial in his assessment of his behaviour on that day. His answer only goes to demonstrate an inability to be properly and constructively self-critical of his behaviour in relation to and around X.
It was put to the mother that this event did not rate a mention in her earlier affidavit of 3 June 2021. This question appeared to imply this event should be regarded as being of no consequence or weight.
I disagree.
Firstly, as noted, the events were of such consequence that the father reported the matter to the police.
Secondly, the mother said at paragraph 55 of her affidavit sealed 3 June 2021 (in support of her then Application) that the father would sometimes turn up at school to collect X on her days when she was due to pick X up which, the mother says, was a unilateral arrangement imposed upon her and constitutes a reference - albeit indirectly - to the events that occurred in May 2021.
In the context of the present Applications, the significance of this event goes no further than providing insight to the father’s inability to appropriately reflect upon events.
In mid-2020 there was an altercation between the father and another parent named “Mr P” at Q School (at which the children were then attending) in which the father threatened and physically intimidated the other parent. This incident did not involve the mother at all but she said, presumably upon learning of it, it made her feel uncomfortable. No detail was given in her trial affidavit about this event nor was this issue clarified upon the mother’s re-examination.
The father’s evidence on this topic revealed that he had been informed by X that he had been bullied, including physically, by Mr P’s son at school. The father was concerned that X might, in the future, be pushed over and be hurt in the course of being bullied.
The father properly and understandably did not like the possibility of X being bullied and/or being physically hurt.
The father then had meetings with both the teachers and the principal at X’s school about the issue. The father considered that as a result of those meetings, nothing was done.
The father then sent the other child’s father text messages inviting him to talk about the matter. There was no response from that parent.
The father came across that parent at school. The parent drove away after being located by the father.
The father followed that parent by motor vehicle.
The father pulled up by that parent’s vehicle at a traffic light, left his vehicle and approached the other parent’s vehicle and banged on the window of the other parent’s vehicle and the vehicle itself.
The father demanded to be told why he received no response to his text messages.
The father admitted that this was an occasion when his emotions got the better of him.
The police subsequently became involved.
The father regarded this as a good outcome as the police offered to speak to the school.
Despite that, the father under cross-examination ultimately accepted firstly, that his behaviour on this occasion constituted anti-social behaviour in public and secondly, and reluctantly, was inappropriate.
I find that the father’s behaviour on that occasion was both.
In May 2021 the father caused the children to make diaries as to what occurred in their mother’s household so as to be able report back to him regarding the same.
In June 2021 the mother commenced proceedings for final parenting orders in this Court.
As part of that Application for Final Orders, the mother sought an order that the father not attend at her residential property.
The mother also sought restraining orders on a final and interim basis that during her time with the children the father be excluded from attending the children’s sporting or extracurricular activities.
When filing that Application the mother did not put forward, by way of her affidavit of 3 June 2021 in support of the Application, specific material of any event at the children’s school or at any extracurricular activity to support the making of such restraining orders.
The mother said she could however identify events after that date of June 2021 which would justify the making of such restraining orders.
No such order as to non-attendance at the parent’s property was made until final orders were made on 21 July 2022 with the consent of the parties.
The mother in June 2021 described the arrangements between herself and the father as “unmanageable”. The mother said she was looking for “structure” in relation to the children’s time spending with each party.
The mother also said under cross-examination that she could see an “effect” on the children of what she then understood the father was saying to the children about her and their home with their mother.
The mother described that the children displayed “serious psychological behaviour” without detailing what it comprised. The mother went no further in her cross-examination, saying that she made the statement about “psychological behaviour” in her affidavit because of how the children behaved in her presence.
The mother’s plea for structure and the comment about “psychological behaviour” in that form are not matters of any great weight. However, they disclose that the mother experiences some unhappiness or anxiety about the children’s time spending arrangements.
Between 2013 and June 2021 the mother said she had no recollection that any attendance by either of the parties at extracurricular events had come up as an issue.
The mother was anxious, in my view, to ensure that the period between 2013 and June 2021 was not to be taken as trouble free in terms of the parties’ parenting relationship. That was made plain by her distinction between the parties not being “successful” but rather, only “co‑parenting” in that period.
At the same time, the mother said that at the “back end” of that period (explained by the mother to be the period 2017/18 to June 2021) the parties’ attendance at extracurricular activities had then become an “issue” for her. By that time, she explained, she felt intimidated by the father and she could then see the psychological effect (referred to above) that “that” (understood to be the mother’s experience of intimidation) was having on the children.
In June 2021, the mother came to understand that it was only then that the father became aware of her marriage to Mr C. The mother held that belief as she did not inform the father of her earlier marriage and believes that the children did not inform their father of the earlier marriage.
On 27 August 2021, the mother filed an affidavit for the purposes of interlocutory proceedings which were to be dealt with by her Honour Judge Kari (as her Honour then was). In that affidavit the mother raised all manner of complaints about the father’s behaviour. However, at that time the mother did not raise anything in that affidavit about the father’s behaviour at the children’s school or at extracurricular activities whilst she was present. The mother agreed under cross-examination that although the question of injunctions about school and extracurricular activities was then in her mind, that question found no expression in that affidavit as it was not of concern to her then.
A proper understanding of that 27 August 2021 affidavit is disclosed in the consideration of the passages in it which demonstrate that the affidavit was confined and directed to s 60I compliance issues on account of orders made 23 August 2021. As that affidavit states at paragraph 24, the mother then still pressed her Application for interim orders (which included the preclusion of the father from attending at the children’s school or extracurricular activities) but set forth no further factual material. That affidavit can be taken to show that the mother, having been fully advised, elected to file the affidavit in the form that she did and that the omission of material about the father’s preclusion was deliberate. This omission permits the inference that the matter of the injunctions regarding the father’s attendance at school and extracurricular activities during the mother’s time was only to be supplemented to the extent that relevant additional material was to be found in that affidavit of which there was next to nothing.

The inference of the father’s case is not to be understood to be that these matters emphasised by the mother in the June 2021 Application and affidavit are of recent invention. Rather, the inference to be drawn is that the matters should not be regarded as being of such significance in the mother’s mind as to form a reasonable basis for the fears and concerns that she claims to now hold about the father or that she claims the children hold about their parents’ relationship.
I would not in the circumstances draw such an inference.
On 26 August 2021, Y informed her mother that her father had told her about the Court proceedings. The mother’s unchallenged evidence in that regard was that the father told Y the he had “won and you had lost”. That evidence is accepted.
The father said he could not recall making remarks of that type to Y but he was not prepared to deny that he had made such remarks. However, he then went on to say that there was not even the possibility that he might have made such remarks to the children. I reject that evidence that it was not even a possibility and, for reasons that follow, I find it likely more than not that he made reference to the children in respect of Court proceedings.
On the 13 September 2021 the Court, with the consent of the parties, made an order restraining the parties from discussing with the children these proceedings and the allegations in them. That order was of indefinite duration. It was replicated in the final orders made 21 July 2022 at order 7(e).
In September 2021 on Father’s Day, a dispute arose between the parties as to when the father’s time with the children was to conclude. The mother expressed a wish for handover to occur at a sports presentation as it was “convenient”.
However, the mother did not see her wish fulfilled and on 2 September 2021 the mother collected the children from the father at the conclusion of Father’s Day from his residence.
In late 2021 the father enrolled the children into extracurricular classes without consulting the mother. After learning about the enrolment and making some enquiries the mother was not overly concerned about the children’s attendance at this activity and this involvement in the activities proceeded.
From 30 November 2021 through to 9 December 2021, the parties, the mother’s husband and the children attended upon Ms B, for the preparation of what was to become a Family Assessment Report published on 12 December 2021.
The children were interviewed by Ms B on 2 December 2021 and 7 December 2021.
In the course of interviews with Ms B, X was noted to say words to the effect that it would be hard for him to say anything nice about the mother’s husband because to do so would upset his father. X also said it was hard for him when his parents were at events together and that he feels scared to go to his mother at such events because his father would be annoyed with him if he did so.
Ms B clarified in her evidence at trial that the “events” in respect of which X found things “hard” were school events such as concerts, an assembly he presented at and sports days being events of large gatherings at which the parents would be present.
X also informed Ms B that his father had spoken about the importance of “winning” in relation to the Court proceedings.
Ms B reported that Y is aware that their father hates their mother. Y was also recorded to be presenting as frustrated when talking about how her brother felt like he was caught in the middle between his parents.
The father was interviewed by Ms B on 1 and 9 December 2021. The father was reported to have expressed views which described the mother as lazy, disinterested in supporting the children and not being able to encourage the children’s overall development. In particular, the father reported that the mother was unable to encourage the children’s emotional development, that the mother’s parenting was superficial and that the mother’s home was toxic and emotionally dead.
If there was to be any doubt as to the strength with which the father expressed these views, a number of tests were administered by Ms B which included a test known as the “Parenting Alliance Measure”. The father’s result in that test was the lowest possible result at the bottom of the dysfunctional scale with the father strongly disagreeing with any statement supportive of the mother’s parenting of the children.
Both children are aware that their parents have a poor relationship.
On 9 December 2021, the father abused the mother at a handover.
On 20 December 2021, injunctive orders were granted following a contested hearing precluding the parties from attending each other’s property without the written consent of the other party first had and obtained for the purposes of handover (with such handovers otherwise being unable to be conducted at the children’s school and in default of school, at the Suburb R Children’s Contact Service).
Those orders also provided, in respect to extracurricular activities, that each parent was precluded from attending such activities that fell in the other parent’s time as well as precluding either party from enrolling the children into any sporting or extracurricular activity that took place in the other parent’s time without first obtaining the other party’s express written consent.
Following the hearing on 20 December 2021 in this Court, the father telephoned the mother asking her to collect the children immediately from him. The mother collected the children from the father’s home that day. The father denied that he was very angry following the hearing but was calm enough to call the mother and ask her to pick up the children. I find that the father was angry and annoyed with the Court’s ruling that day and that his anger and annoyance was made apparent to at least Y who, even before she and her brother had returned home with their father, was making calls to their mother for the mother to collect them from their father and care for them.
From December 2021 to the date of the trial, the mother’s husband Mr C has not attended any of the children’s sporting or school events as he has had other commitments to attend to, save and except in relation to a school concert.
In or about December 2021, the children had a school concert. On the occasion of the school concert, the mother asked the children if her husband Mr C could come and they said that they would prefer for him not to attend because they would be scared as their father was going to be there.
Between 27 December 2021 and 3 January 2022 the father did not exercise his Court ordered time with the children.
On 10 January 2022, the mother received a series of telephone calls from X made at the behest of his father enquiring about the mother varying injunctions that the Court had made in December 2021 which precluded the father from attending X’s sporting activities. X subsequently explained to his mother that his father had “made” him say what he did.
At or about sometime in early January 2022, being a couple of weeks after X was interviewed by Ms B, the father explored with X his views about Mr C. The father did so because of what appeared in Ms B’s Report to test what was contained in the Report.
The father said that X told him that Mr C never does anything with him, that X doesn’t like Mr C and doesn’t have much to do with him at all and that Mr C watches television for most of the time that X is there. The father said he accepted these statements of X in preference to what X had said to Ms B.
That the father should receive those answers from X in response to his questions was to be expected. Ms B had noted that X had indicated that it was hard for X to say anything nice about Mr C because to do so would upset his father.
The father, in testing X’s comments about Mr C as set in the Report of Ms B, was the wrong person to do that testing. It should have been apparent to the father that X’s responses to his father would have been what X would have understood, his father wanted to hear.
The father’s questioning of X on this occasion indicates that the father has a view about how X’s relationships with the adults in his life, including Mr C, should be rather than allowing those relationships to naturally and properly unfold and develop. The father’s questioning of X also further indicates that the father has an expectation that his children’s views should align with his own and will act to best facilitate that.
The father’s resentment about the mother’s early relationship with Mr C and the role it played in the breakdown of his relationship with the mother can still come to the surface from time to time and did so as recently as February 2022 as evidenced by his email to the mother of 8 February 2022.
Ms B expressed the view that the email of 8 February 2022 of the father to the mother was appalling.
The father’s email of 8 February 2022 deserves that categorisation.
Ms B opined that the email was abusive and “not safe”. The email was abusive. This email is referred to in greater detail below.
The fact that the father could send such an email in light of the content of the December 2021 Report being known to the father and with the benefit of advice (even if it only be legal advice) in the light of that Report, permits the inference that the father’s belief in the appropriateness of his approach to parenting the children is deeply and earnestly held.
Hence, any critical self-review of the father’s behaviour and change in his conduct is not going to come about readily. I consider that a change in approach and attitude on behalf of the father is presently to be regarded as unlikely.
The father also asked X when attending extracurricular activities at which both of his parents attended if X wanted to go and speak to his mother. When X said that he did not wish to do so, his father regarded that response as being genuine. The father did not have any perception that X, under such circumstances, would be likely to tell his father what X understood his father would want to hear.
As noted above, Ms B said that X had said it was hard for him when his parents were at events together and that he feels scared to go to his mother because his father would be annoyed with him if he did so.
The father was not prepared to accept that X’s description recorded in Ms B’s Report of Mr C as “funny” nor was the father prepared to accept that Mr C would be rated by X along with his parents, all three siblings, his friends and wider family members on a diagram.
The father explained his lack of acceptance of these expressions by X to Ms B as being the product of his understanding that X was an empathetic and caring child and would have felt obliged to make the remarks that he did in relation to Mr C. If that were truly so, it would lend even more weight to the view that X would tell of his father what he would understand his father would want to hear when he is questioned by his father.
It was recorded in Ms B’s Report that X said that his father had spoken about the importance of “them winning so that they do not have to change to a week-about arrangement”.
The father accepted that the statement had been made by X to Ms B but said that it was “out of context”. The father explained that this was X’s assessment of what had been explained to X.
Y was also recorded by Ms B as describing her father as telling her “to win”.
However imperfectly expressed, the children are being encouraged and facilitated to categorise and rank the relative positions of their parents and those associated with the parents.
The father said that he and the children spoke all the time about “things”.
I find that the father spoke to the children about the notion of “winning” but I do not find that he did so in the context of expressly discussing Court proceedings as such, although discussions might have included the types of outcomes of these proceedings that the father would consider best, preferable or successful.
I would accept X’s and Y’s views as expressed to Ms B in relation to these matters rather than those as described by the father in his evidence.
On Tuesday 8 February 2022, the father told the mother in an email that X wants to play for the Suburb L Sports Club which was about a six minute drive from the father’s home and about a 40 minute drive from the mother’s home. In that email father asserted that the mother had told X that the Suburb L Sports Club was too far away. The father also referred to the mother as “your lazy self” in that email and offered to take X to all trainings and games himself.
The father sent a further email to the mother that in part said:
“You are so stupid insinuating such a thing. Who doesn’t like children [Ms Dalby]! I’d say it was you who has sex with other married men while she’s pregnant with her own children. Now that’s not giving a shit about children and YOUR OWN!…
Did you volunteer to be [involved with classes] last year? NO because you’re a selfish and self-absorbed person who doesn’t get along with other people’s children. You also OBVIOUSLY lack confidence and MAJORLY struggle to articulate ANYTHING to people directly without crying to make people feel sorry for you. SEOUSLY pathetic.
You are such a waste of space. You project your ugliness and immatureness onto [X] and [Y] because you are so insecure and pathetic. Those poor children. I don’t know how you live with yourself, but you live a constant lie.…
you idiot.…
The people at [Suburb D sports] were feral’s [sic] like you.…
You’ve never been involved in decisions for the children in the past. You’ve always been self-absorbed and shown a real lack interest [sic] probably because it involved you missing your favourite TV shows with your fat lazy husband.…
Leave all your immigrant, underdeveloped brain crap off and focus on the task at hand.
[X] wants to play for [Suburb L]. Do not bully him anymore.”
The father sent this email in response to the mother informing him by email at 9:00am that X had let the mother know that he did not want to play for the Suburb S Sports Club. The mother through this email also informed the father that X expressed that view because the father had said he did not like a particular child by the name of “T” and that this placed pressure on X and his friendships. That email from the mother concluded with the mother saying that she is open to different sports clubs but she would just prefer somewhere mutually convenient.
The sending of the email by the father and the expressions used in it reveal that the father still harbours resentment towards the mother for the circumstances under which the parties’ relationship came to fail on account of the mother then maintaining a relationship with a married person in the form of Mr C.
Secondly, the email reveals that the father experienced and expressed high dudgeon in response to the mother’s email which was disproportionate to the extent of the possible offence that may have been conveyed by the mother’s email.
Thirdly, the father sent this email when there had been the promulgation of Ms B’s Report about which the father had taken, or least had had the opportunity to take, legal advice. This Report did indicate that the father should be cautious about the effect that his disdain and/or disregard of the children’s relationship with their mother and her husband was having upon the children.
The email demonstrated that the father lacked the capacity and/or indicated that he was not able to have sufficient insight or ability to take into account the views expressed by Ms B.
In the circumstances of this matter, the father should have taken Ms B’s views into account and given effect to them. His email of 8 February 2022 demonstrates he was not capable of doing so at the time. His evidence at trial which indicated a possibility that he might now do so only emerged in the atmosphere of the courtroom under questioning. I attach no weight to that evidence.
The father at trial otherwise acknowledged that he was angry and unhelpful in sending the email. I find that without having had to appear in a court it would have been unlikely to have occurred to the father that his conduct towards the mother in sending an email of that type was insulting, unhelpful and upsetting.
The father’s email was intended to cause upset beyond mere disagreement. The email was sent by the father with the intent to cause offence and distress.
Ms B’s opinion that the email was “abusive” is to be adopted.
The father, when asked to acknowledge that he was incapable of restraining himself in sending the email of 8 February 2022 having read the Family Assessment Report, did so. However, the father then needlessly sought to discount the benefit that might be regarded to have been had from the Report in that respect by making remarks to the effect that, to the date of Court hearing of December 2021 (and so following the release of the Report), he had been attending at and been involved in the children’s activities which had been incident free because he had too much respect for the children to embarrass them in front of other people and would never put himself in a position where he would not do so in his capacity as a representative of community clubs or schools.
The father also said in another part of his evidence that he felt he was effectively provoked by the mother’s email to him of 9:00am, 8 February 2022 referred to above. In my view, he dissembled in giving this particular evidence.
The father in giving evidence said that he would never do anything to the mother in general public because he does not want to embarrass his children and was at pains to make plain his position in this regard.
His position amounts to nothing more than the father claiming he could act and express himself in whatever way he saw fit, as long as it was not a source of embarrassment to the children on account of conduct in front of the general public.
This explanation of his position discloses that the father failed and continues to fail to understand that what is done towards the mother away from the public view (such as his email of 8 February 2022) impacts or is likely to impact upon the mother, Mr C and the children.
I find that the email of 8 February 2022 would have had an impact on the mother and has had the effect of unnecessarily putting her on edge and being extra vigilant in dealing with the father and as to how she might conduct herself in the father’s presence.
In this sense and to that extent, I would adopt Ms B’s opinion that the email was “unsafe”.
The father’s evidence on the topic of the February 2022 email was consistent with his case that was presented to the Court. I consider that position to be misconceived. Rude and insulting behaviour whether it takes place in public so as to cause embarrassment before others or in relative privacy away from the public is still rude, insulting and hurtful. Such behaviour is also damaging to relationships and can foster mistrust and fear and induce apprehension.
The father unilaterally enrolled X in the Suburb L Sports Club. The mother acquiesced in that enrolment.
On 15 February 2022, the mother by her Outline of Case provided to the Court sets out the orders she sought that indicated that the handovers that did not occur at school occur at the parent’s respective homes.
Also in that outline the mother did not identify as an issue the father’s attendance at extracurricular activities.
The mother gave evidence that she adopted that position because a contact service was not available which she otherwise wished to use in preference to each other’s home.
On the 24th of February 2022 the father attended at the mother’s home to provide the children’s school uniform that had been overlooked to be returned with the children.
The father was attending at about 7:50 am being a time he nominated and of which he gave the mother notice the previous evening after the parties could not agree for the father to deliver the uniforms to the mother’s letter box on the evening of 23 February 2022 (as the mother had requested) without the father seeing the children.

There is a contest as to the nature of the father’s behaviour when he attended that morning. He says he simply dropped the uniforms off and went straight back to his car. The mother says the father’s behaviour was more much more boisterous and intrusive culminating in a report to the police by the mother about the father’s behaviour. The children were present. Whatever precisely occurred, the children were exposed to a tense and unfriendly exchange between their parents.
In early 2022, the father made a booking to take the children to Country U for what appears to amount to be the school holidays. He made those arrangements without consulting the mother or seeking her agreement that he do so. The mother did not prevent the arrangements from proceeding.
In early 2022 X refused to acknowledge or speak to his mother in the presence of his father at sports day.
On 1 April 2022 X reported to the mother that an (unspecified) altercation between his father and his father’s parents had occurred and that his father told his father (that is, the paternal grandfather) and his partner that the father hoped they both died in a car accident.
From 8 April 2022 to 4 May 2022 the father then retained the children in his care for nearly a month.
On 8 May 2022 (Mother’s Day) the father attended X’s sports game at Suburb L and the mother says this was in breach of orders of the Court. That is so.
On this occasion the mother walked towards the father who was in his vehicle to make sure it was him. Upon approaching the father’s motor vehicle the father left his vehicle and got out of it to speak to the mother.
The father knowingly breached orders of the Court of 21 December 2021 on that occasion by being present.
The mother gave evidence that she found the father’s mere presence on that occasion to be intimidating and his merely being in his car on that occasion was intimidating.
Despite finding herself in those intimidating circumstances the mother spoke to the father and told the father that X found his parents being at the same place at the same time to be scary. The mother also stated that on that day her husband was actually going to come (but did not) and if her husband had attended then, in the mother’s view X would have been “riddled with fear” because he would have seen that his mother’s husband and his father were there at the same time and X would not have performed as he would have been so scared.
The father contends in turn that on that day in May 2022 the mother breached order 12.3 of the orders of 12 December 2022 which precluded the parties from communicating with each other party other than by email except in case of emergency. The father’s contention is correct but also applies to his partaking in conversation on occasion. That both parties in that particular way failed to comply with orders speaks rather of their preparedness to dispense with compliance with Court orders rather than the proper need for such orders.
The father subsequently corresponded by way of email with the mother in which amongst other things he acknowledged that it was “awkward” for the parties to be near each other.
The father then sent a later email apologising again for breaching Court orders and saying that he is happy to keep his distance and that the mother then wouldn’t have any interaction from him.
I find that on this day the mother was initially intimidated by the father’s attendance but any sense of that intimidation was able to be overcome by the mother. That the mother should have come to be intimidated at all was unnecessary as it could have been avoided by the father complying with ordered arrangements.
On a weekend in mid-2022 the mother had a wedding to attend. The mother arranged for the children to spend time with their paternal grandparents. X attended sports at his school that weekend but did not attend sports at Suburb L. X had told his mother a week earlier that he did not wish to continue at Suburb L and so arrangements were made for the children to spend the weekend at Town G with their grandparents.
In mid-2022, X refused to acknowledge or speak to his mother in the presence of his father at Y’s concert at the children’s school.
At that concert the father spoke to X and as a consequence X sat with his father. The mother invited the father to sit with herself and the father’s parents who had also attended the concert so that X could be with all of his family but the father declined.
In mid-2022, the father took the children on the holiday to Country U.
In July 2022, the mother learned that the father had enrolled X into extracurricular classes without the mother’s consent or knowledge. This appears to be the second time that this has occurred.
On 21 July 2022, final parenting orders were made with the consent of the parties. Amongst other things those orders provided for handovers on non-school days at the other parent’s residence. This was the first time orders were made in the proceedings for the parties to attend at each other’s residence.
On 25 July 2022, the mother declined the father’s request that handover arrangements be changed. The father then told the mother that if she made things inconvenient for him he would do the same for her.
At 5:00 pm that day the father attended at the mother’s home for collection of the children in accordance with the parenting orders of 21 July 2022. In the course of this handover one of the father’s dogs that were travelling with him were left behind. The mother then contacted the father to return and collect that dog.
Upon her return the father verbally abused the mother at handover calling her a “fucking ugly bitch” and “pathetic” in the children’s presence. The father did not deny under cross‑examination that he referred to the mother in those terms. He said that the mother was referring to him in similar terms. The mother was not cross-examined as to her recollection of events on that day. I find that the father would have used abusive language towards the mother and it is possible although not likely she responded with similar comments towards the father.
On 4 September 2022 being Father’s Day, the children spent time with their father.
On Monday 5 September 2022, the father attended at the mother’s home at about 3:30pm (as was to be the case on a school day under parenting orders) instead of 5:00pm (as was to be the case on a non-school day) as it was a pupil-free day at school. Upon arrival at the mother’s home, the father texted the mother to advise that he was out the front of her home. The mother responded by telephoning the father twice. The father did not answer those calls. The mother then sent a text message saying how the father was not due to collect the children until 5:00pm as it was a non-school day. The father responded by saying it was a school day. The mother then replied saying it was not because it was a “pupil free day” but that she would send the children out anyway. Whilst texting, the children told their mother that they had expected to be picked up from their extracurricular class at 5:00pm. Y said to her mother that the father had previously told her he would be picking her up at 5:00pm. At the end of this confession the mother let the children go at 3.30pm because she did not know what would happen next.
CONSIDERATION OF THE PARTIES’ POSITIONS
Although the mother filed an affidavit of some 267 paragraphs (of which a substantial proportion were determined to be inadmissible), the gist of her seeking the injunctive relief that she did was she was scared of the father because of:
(a)the abuse that she had to put up with during the course of her marriage to the father;
(b)the abuse she experienced after the marriage ended;
(c)the assault she witnessed on her husband;
(d)what happened at N Shopping Centre;
(e)insults received from time to time; and
(f)what the mother regarded as an interrogation she had endured for many years.
The mother said that she wanted “peace” in her life and always sought to keep the peace.
The mother was keen to impress upon the Court that she found the father unnecessarily rude, demanding and intrusive and on occasions in giving evidence was not responsive to questions asked of her.
The mother did not want the father to be given first option to care for the children in the event of her unavailability to do so as she would wish to have the ability to determine who the children would be cared for by in lieu of herself ranging from grandparents to friends.
The mother says she would find doing handovers directly with the father under his proposal of him being a first option for care stressful and a cause of anxiety for herself.
The mother is of the view that the father “imposes himself” on the children.
In December 2021 the mother informed Ms B that the mother found the father’s attendance at school to be “awkward and intimidating”.
The injunction which the mother seeks is not intended on her evidence to preclude the father from being able to participate in school excursions.
This was consistent with the evidence Ms B gave on this topic.
The mother accepts that X has a good relationship with his father.
The mother is of the view that the father has expressed how much he hates her and how much he hates her husband such that the children are very aware of his hate for the mother and her husband and that this causes X’s fear expressed to Ms B.
The mother is of the view that the father still informs the children of his hate for the mother and her husband.
The mother agreed that handovers would now be confined to occur 6 to 10 times per year between the parties and otherwise they would be at the children’s school.
The father could not think of why the mother, her husband, his parents or the children X or Y should have had since the date of separation, any reason to feel scared or awkward in his presence and certainly not at his instigation.
The father thought that the mother could do more for the children and that the mother had made his life and the organisations for which he volunteered more difficult in seeking and obtaining interim orders that precluded him from being present at school and extracurricular activities when the children were to spend time with her under orders.
The father is in no doubt that the children love him and are close to him. As such he is confident that X will eventually make the decision to come and live with him. The father did not regard expressions to that effect by X as being the product simply of X’s love for him but rather considered such expressions to be indicative of who X is and how strong X’s relationship with his father is.
The father said Y is the same.
The father did not consider that the children may have expressed similar views to their mother when living with her.
When challenged about his understanding of what the children had said to him in this regard, the father acknowledged that the children’s views were but from 8 year olds.
The father whilst willing and even eager to apply such qualification and circumspection to the children’s views recorded as being expressed by them to Ms B was reluctant to apply a similar critical filter and qualification to the remarks that he claims the children made to him.
However, in the atmosphere of the Courtroom the father was prepared to accept that the children’s expressions to Ms B were in fact the product of expressions and expectations of their parents. The father in making that concession was not however prepared to accept that the children would say things being under a greater sense of obligation from him than their mother.
The children’s perceptions and feelings about their parents being at events together were disclosed in the course of the Family Assessment Report interviews to Ms B. X is recorded as having said “it is hard for him when his parents are at events together, and that he feel scared to go to his mother because his father would be annoyed with him if he did so.” And Y said that when both of her parents are at events it “is not bad, but they sit a long way from each other.” Y went on to tell Ms B that it is fine for her (that is Y) to go say “hi” to her father when with her mother and is “sort of okay in reverse” and went on to comment that it was “not okay” for X to say “hi” to their mother when he is with their father and this does not feel okay.
I accept Ms B’s evidence that the children were generally concerned with not disappointing their father.
Ms B said that such concerns held by the children were something that did not appear all that often and that it was an emotional weight upon them. Ms B said these matters presented very much as a presence for both of the children and that they knew what their father wanted and how he felt. Ms B went so far as to say that she considered that the children presented as feeling “keenly” that they did not want to disappoint their father.
The father accepted that the children made these remarks that they did to Ms B.
I accept the evidence of Ms B that the children when speaking to her of these matters were speaking honestly from their own experience in discussing these matters with Ms B.
The father said that he got a different story from the children when he spoke to them.
Different views have been expressed to the father and to Ms B. Ms B in her evidence said that such a disparity would be expected in the circumstances to exist. I accept that is the case.
I also find in the circumstances of this case where the children’s relationship is conducted under the burden of their father’s expectations and attitudes about their mother and her husband and that a difference in the expression of views should be expected.
The questions are: why this is so and is father is not readily able to perceive why this is so? The father’s evidence in this regard left me with the view that he would only reluctantly accept that the children would express different views to him and Ms B but that he lacked insight as to why this may be so.
I find that when the children are with their father there is a continuous process of inculcating in them views and attitudes displayed and practiced by the father. I also find that some of these views and attitudes are antithetical in respect of the mother and Mr C giving rise to the views that the children have genuinely expressed to Ms B about their father’s attendance and what the children experience at events.
This enables the children to form the view that their father “hates” and is “annoyed” by their mother and Mr C and to express themselves in that way to Ms B.
I find that the children’s views as expressed to Ms B and their description of the emotions that they experience when their parents are at events together and their understanding of the other sibling’s emotions and behaviours in and around their parents when their parents are together at events are authentic.
The father’s evidence does not permit me to find that he accepts this to be so.
The father has a view firmly held by him that his parenting of the children and, in particular, his attendance at extracurricular events serves the children’s interests and there is no price paid in terms of the children’s emotional well-being as a result of his attendance.
The evidence considered as a whole indicates otherwise.
The father said that all of his friends considered him to be a “brilliant father”. If that indeed be the views of his friends, it would appear that the father is in need of an opportunity to be challenged critically and constructively to reflect on his role as a parent and his obligation to fully support the mother’s role in the children’s lives.
Ms B said in her evidence that the parties are in chronic conflict in terms of their relationship as parents. In her oral evidence, Ms B went so far as to say that the father’s email communications to the mother of 8 February 2022 caused her to fear that her recommendation in her Report as to equal time arrangements between the parties was a mistake. This evidence is understood to indicate that the description of the co-parenting relationship as depicted in her Report, as poor as it was, would be an understatement.
The father’s expressions of disdain for the mother, her parenting capacities and her household were in Ms B’s view extraordinary in their firmness and intensity. Ms B’s opinion in this regard is a matter of some weight.
The father in completing testing with Ms B was not able to offer one positive attribute to the way in which the mother parented the children or conducted her relationship with them. This was consistent with comments made by the father to Ms B in the interview.
Ms B’s opinions in this regard are consistent with the evidence presented on behalf of each of the parties and I accept Ms B’s opinions on these topics.
I find that the children’s fear and concern that they experience when their parents are present together at events is not only the product of the parties’ poor parental relationship but also the father’s views and attitudes about the mother and her husband. These play a separate, distinctive and singular role in the children’s disquiet and discomfort which they experience when both of their parents are present at events.
Notwithstanding the terms of the consent orders entered into in July 2022 with respect to parental responsibility and time spending arrangements, the parties’ co-parenting relationship is appropriately categorised as dysfunctional. Whilst many aspects of the children’s welfare are managed between the parties for the children’s benefit there exists at the same time a basic mistrust and disrespect for the mother.
Ms B went further in her oral evidence and said that the father in interview with her appeared to loathe the mother.
Ms B’s unexceptional evidence that children should be able to attend extracurricular and school activities without having to worry about their parents is to be accepted. Ms B pointed out, correctly in my view, that X and Y firstly, have a need (which I regard is the responsibility of their parents to provide) to be able to undertake their activities in an atmosphere of safety and respect. Secondly, the children should be able to have an equivalent relationship with each of their parents whereby the children are able to spend time with their father without interference from their mother and vice versa. In the former case Ms B was of the view that the children would at least feel the presence of the father if he were to be present during the mother’s time with the children and that that presence would impact on the mother’s relationship with the children. In ensuring equivalent circumstances of the children spending time with each party, Ms B opined that the children would be happier in each of their parent’s households. There is no cause not to accept any of that evidence and I do so.
The evidence considered as a whole demonstrates that any awkwardness that the children are said to experience at events at which both their parents attend is not a mere or transitionary aspect of their wellbeing but part of their emotional landscape that makes up their lives. I consider that it is not in their interests that this should regularly be so.
I have no confidence that the parties’ communication will improve in the future. The evidence before me does not tell me how the relationship will improve in the future and, in particular, what the father will do to improve the circumstances of the parties’ co-parenting relationship.
STATUTORY CONSIDERATIONS
These are proceedings pursuant to part VII the Family Law Act 1975 (the ‘Act’).
As the applications now agitated before the Court are for injunctive relief, the power to be exercised by the Court is that located in either section 68B or section 114 of the Act.
Each party's Outline of Case makes it clear that the orders to be sought by the mother were to be in the nature of injunctive relief.
The injunctions sought by the mother (and which the father by his outline rejected should be made) were in the context of the parties’ competing applications for parenting orders sought by the mother in her Further Amended Initiating Application and by the father in his Second Amended Response to Initiating Application.

The mother’s submissions stated that the orders sought were pursuant to section 68B of the Act and, in the alternative, section 114.
The submissions of each party whilst appearing to accept that there are distinctions between section 68B and section 114 did not articulate what those distinctions were and, in the mother’s case, when the alternative of section 114 would come into play.
Section 114 sets out the types of injunctions that can be granted between parties in circumstances arising out of the marital relationship which can include injunctions for the personal protection of the parties to the marriage.
I consider that section 68B can be utilised in the circumstances of this matter as the applications before the Court are for injunctive relief in relation to X and Y.
Section 68B is located within Division 9 (“Injunctions”) of Part VII (“Children”) of the Act.
Section 60B of the Act sets out the objects of Part VII and the principles underlying those objects. Section 60B in its current form was introduced by amendments to the Act in 2006.[1] That section states that the objects of Part VII of the Act are to ensure the best interests of children are met in particular ways.
[1] Act 46 of 2006, section 3, Schedule one, item 8, operation 1 July 2006
Section 68B in its current form was introduced into the Act the same time as section 60B in its current form was introduced.
Authorities at the appellate level in considering this legislation as it was prior to its amendment in 2006 determined that not all orders made in proceedings concerning children are subject to the paramountcy of children's interests. Those decisions have permitted it to be recently confirmed that "it should be accepted that an injunction made under section 68B of the Act is not a "parenting order" as defined in section 64B of the Act”.[2]
[2] Hedlund & Hedlund [2021] FedCFamC1A 84 at [118].
This means that in giving consideration to the making of an injunction under s 68B the requirement to regard the best interests of the children as the paramount consideration in making orders now sought does not apply.
In determining what is in a child’s best interests section 60CC of the Act sets out what is to be considered.
Although not a paramount consideration, the children's best interests remain a matter of careful consideration and of significant weight particularly where the injunctions are sought as between parties for the welfare of the children. The submissions of the parties urge that the issues raised in this case should be considered principally from a perspective of the children's best interests. Although the consideration of matters identified in section 60CC of the Act is not obligatory I consider it appropriate in the circumstances of this case that regard should be had to those matters where relevant.
In addition to a consideration of X and Y’s best interests the Court must also bring to account the principles that injunctions should not be granted lightly, the parties’ entitlements to participate in their children's lives that is consistent with the children's welfare and that the orders to be made in this matter are to be in relation to the children’s welfare.
As the requirement under section 68B is for any injunction granted to be considered appropriate for the welfare of the child, the matters that are relevant in determining whether or not to grant the injunctive relief sought must be found to be matters that indicate that the orders to be made are appropriate for the welfare of X and Y.
The mother did not appear to agitate for a restraining order to be made on any basis of such an order being just or convenient as set out in section 68B(2) of the Act.
In the mother’s submissions, but not in her Outline of Case, there was also an application that if the injunction sought by the mother in her Application was to be granted then such order should be expressed to be made for the purposes of section 68C of the Act.
Whatever may be determined in respect of the competing applications about injunctions before the Court in this matter, an order pursuant to section 68C will not be made as that was not an order which was sought by the mother in her Further Amended Initiating Application nor by the terms of the orders sought by reference to the mother’s Outline of Case nor in the orders that she sought to have made as referred to at the beginning of her submissions.
In the circumstances of this matter, the Court must have regard to X and Y’s best interests.
The applications now pending before the Court are not for orders about the quantity or timing of the children living with or spending time with their parents. Rather, the applications are to be characterised as about the conditions under which such time is to take place and, in particular, the manner and extent to which the father can be present during the time that the children are otherwise to be in their mother’s care.
By the references to the first of the primary considerations set out in section 60CC(2)(a) both Y and X have the benefit of and are entitled to have the benefit of a meaningful relationship with each of their parents. The evidence of the parties and Ms B of the parties’ relationship with the children and the fact of the consent order of July 2022 disclose that this is the case.
There is a need in this case to protect the children from being exposed to physical or psychological harm and from being exposed to family violence as identified in section 60CC(2)(b).
"Family violence" for the purposes of this case as defined by section 4AB of the Act can be taken to mean threatening or other behaviour that causes a family member to be fearful. There is no definition of "family member" in the Act but I take it to be applicable to the mother, her husband and the children who have been part of the mother’s household. The mother’s husband appears to be to have been a member of that household from no earlier than about mid-2015.
I hold that family violence as defined occurred:
(a)before the parties’ separation of October 2013 by the punching of walls and the father's conduct towards the mother;
(b)at the time of separation on 20 October 2013;
(c)in late 2019 at and after the mother left the café in Adelaide where the parties had met; and
(d)in mid-2021 when the paternal grandfather raised his fist towards the father.
The date of those events and the frequency with which they have occurred over a long period of time indicate that the risk of repetition of family violence is to be regarded as relatively low. This assessment of risk is fortified in my view by the making of the orders in July 2022 that provided for each party to be precluded from acting in ways towards each other that are abusive or denigratory and that handovers of the children are to occur at each parent’s place of residence when not taking place at the children’s school.
Despite the risk of repetition being low, the effect of incidents of family violence although seldom or infrequent or dated can be a source of ongoing apprehension and fear. I find the circumstances of this case to be such an example.
In relation to the additional considerations that are to be brought to account pursuant to section 60CC(3) I find (using the subsection nominals):
(a)that the children's views as expressed to Ms B are to be given greater weight than those which have been made known to the father in their discussions with him;
(b)X and Y have a close and loving relationship with each of their parents. The children are fortunate that each of them have a meaningful relationship with their parents. The children also have meaningful but less substantial relationships with their mother's husband, the paternal grandparents and the wife’s family members. The children's relationship with their mother's husband and the paternal grandparents is only meaningfully supported and facilitated by the mother;
(c)each of the parents have participated in the fullest reasonable extent possible in making decisions about X and Y's long-term care, welfare and development and each of the parents have spent time with and communicated with the children. The manner in which that has come about has not always been cordial or respectful as might otherwise have been or should have been the case;
(ca)there is no issue in this case with respect to the parents’ obligations to maintain X and Y;
(d)the orders sought by each party do not involve separation of the children from either of the parents. The father proposes no change in the parties’ circumstances other than that the parties not approach each other when they are both present at school and extracurricular activities which both parents should be able to attend. Such an order would have little or no effect upon the children as it would see circumstances that are not too far removed, if at all, from that which presently takes place. On the mother’s application the children would lose the benefit of seeing the father as often as they currently do and in particular at extracurricular and school events. However, such a preclusion as the mother seeks would not diminish in any meaningful way the father's relationship with each of the children and would relieve the children of the undue anxiety and worry that they experience when both the parents are present at functions and activities. There is no evidence before me which causes me to find that either of the children's participation in activities or their development of skills or socialisation or their general welfare through involvement in extracurricular or school activities will be adversely affected on account of their father's absence from such activities whilst the children are in their mother’s care;
(e)the respective applications of the parties do not raise issues of practical difficulty and expense of X and Y spending time or communicating with the parents;
(f)each of the parents have the capacity to provide for the children's needs including emotional and intellectual needs other than in respect of the parties’ regard of the father failing to recognise and appreciate the significance of his attitudes and the effect of them upon the children's views and welfare;
(g)the children are of an age where their views need to be understood in the context of the respective care provided by their parents and the effect of the children's exposure to the parents’ attitudes particularly in respect of each other and of the father in respect of the mother’s husband;
(h)this subsection is not relevant to these proceedings;
(i)the father's attitude to the children and the responsibilities of parenthood are such that X and Y bear an unnecessary burden in respect of the father's views about their mother and her husband;
(j)I have set out the circumstances of family violence in this matter. Family violence in this matter is dated but I accept the mother’s submission that in the context the history of this matter the family violence perpetrated by the father against the mother causes her to be fearful. This subsection also speaks of family violence "involving" "a member of the child's family". This subsection permits by its language for account be taken of the father's assault of Mr C who is now a member of X and Y's family constituted by their mother's marriage to him;
(k)there are no current family violence orders in this matter;
(l & m) proceedings in this matter have been on foot since June 2021. The parties have managed to parent X and Y despite the antagonism that constitutes part of their parenting relationship. Whilst the children have the benefit of meaningful relationships with each of their parents, their welfare is diminished on account of the anxiety and worry that arises when the children and their parents are both present during the time the children would otherwise spend with their mother. Parents when separated should conduct themselves in the presence of each other and the children in a way so as to enable the children to understand and know that the parents maintain a respectful relationship so the children’s sense of well-being extends to their understanding of and experience of their respective relationships with their parents.
I bring to account all of the findings of fact that I have made and the considerations that I have found to arise under section 60CC of the Act.
THE ORDERS TO BE MADE
I now turn to the orders that should be made in this matter.
The father by his submissions seeks orders in terms of his Second Amended Response to Initiating Application which would permit each party to attend functions that take place in the other parent's time which occur on school grounds and at weekly tuition or training session and competitive events subject to the condition that the parties not approach or communicate with the other when attending at such events.
The orders proposed by the father do not address the awkwardness, anxiety or fear that the children perceive exists at such events and which the mother experiences.
Ms B’s Report states that each party not attend such activities during the time the children spend with the other parent for a period of about 12 months and that thereafter a parent be able to attend games but not training on the understanding that the children are expressly allowed to go and say hello briefly to the non-residential parent. Ms B in her oral evidence expanded upon this to indicate that the parent should be able to attend those events that occur at school and at extracurricular activities which are exceptional such as the presentations and end of year assemblies or concerts or things of that nature.
It is to be borne in mind that Ms B’s opinion expressed in her report was expressed at a time that she was not aware of the terms of the email correspondence of the father to the mother of 8 February 2022 which properly gave her cause to express the view that her recommendation as to equal time contained in her report was a “mistake".
Ms B at trial, in light of the consideration of the trial affidavit material and that which was put to her during the course the cross examination, remained firmed in her position that rather than there being a period of time at which there would be non-attendance by one parent at events which took place in the other parent's time with the children, there be a final order precluding one parent from attending events that take place in the other parent's time.
Contrary to the submissions of the father I find that there is a proper basis in the evidence at trial for Ms B to express the view that the children's well-being would be served by there being a final order that the father not attend at training and events that take place in the mother’s time.
The evidence discloses that the mother has not been as involved in extracurricular activities as the father insofar as she has not undertaken the role of coaching or training whereas the father has. However, I do not consider that if the father's ability to undertake such roles were to be confined to that time when the children were in his care that either of the children's participation in such events or their relationship with either of their parents would be detrimentally affected by their father only being able to undertake such roles on those occasions when the children would be in his care.
As stated above, the father has a close and loving relationship with the children. He is a parent who to his credit is actively, enthusiastically and passionately interested in his children's growth, development, welfare and, in particular, the activities that they undertake and their schooling. His concern for his children’s welfare has in the past caused him to act in an anti‑social manner. He is supportive of those activities and the children’s schooling to the fullest extent he is able to do so and that extends to not only financial support but his participation at extracurricular and school activities whenever practicable. However, his involvement and his continuing involvement in those activities must make a proper accommodation for the children's relationship with their mother and for their mother’s parenting of them. It may well be the case that the father adopts the view that the mother is something less of a parent than him as she may not participate or support the children's involvement in schooling or extracurricular activities to the extent that he does so and has done so in the past; however, he must respect the fact that the mother’s differing parenting style in that regard nonetheless serves the children's interests and that the mother’s preferred level and manner of involvement in the children’s schooling and extracurricular activities must be respected for the children’s sake. The father must also understand that the children should be permitted to value their mother’s parenting of them no less than they value their father's involvement in their schooling and extracurricular activities whatever the form that takes.
I reject the submissions made on behalf the father that the children's "awkwardness" (as the father’s submission characterises the children's manner and feelings at extracurricular activities and school events at which both of their parents are present) does not impact upon the children. I find that the impact is both significant and unnecessary.
It is important in my view that the children be able to (to borrow a phrase from Ms B’s oral evidence) experience their mother as being their “mum” in the same way that the children can experience their father as being their “dad”. That can be best facilitated by the father not being engaged and involved in everything that the children do which might otherwise take place in the time that the children are to be in the mother’s care and for them to spend time with her.
The mother has set out the terms in which she seeks orders be made. I shall reference those terms in the orders I have made. There does need to be clarity about the type of school functions at which the father can attend in the light of the evidence that the mother and Ms B had given in relation to school excursions and annual events.
I also consider in the light of the difficulties occasioned by the timing of communications between the parties that the father give 7 days’ notice to the mother of when he shall attend permitted events in the mother’s time so as to enable the mother not to be taken unaware of the father’s attendance.
Although injunctions are not to be granted lightly, I consider that the circumstances considered as a whole and the children’s welfare and interests justify the making of orders pursuant to s 68B of the Act as set out at the beginning of the reasons. This would enable Y’s and X’s parents to participate in the children’s lives in a way that is consistent with their best interests.

I certify that the preceding three hundred and thirty-two (332) numbered paragraphs are a true copy of the Reasons for Judgment of Judge McGinn.
Associate:
Dated: 4 July 2023

File number(s):	ADC 2661 of 2021
Judgment of:	JUDGE MCGINN
Date of judgment:	4 July 2023
Catchwords:	FAMILY LAW – Parenting orders and injunctions – final consent orders but outstanding issues regarding parent’s presence during other parent’s time – injunctions – role of paramountcy of children’s interest – family violence – children’s welfare - s 68B considerations – orders made
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Hedlund & Hedlund [2021] FedCFamC1A 84
Division:	Division 2 Family Law
Number of paragraphs:	332
Date of last submission/s:	7 November 2022
Date of hearing:	6-7 September 2022
Place:	Adelaide
Counsel for the Applicant:	Ms Lewis
Solicitor for the Applicant:	Carmen Wood & Associate
Counsel for the Respondent:	Mr Anderson
Solicitor for the Respondent:	Clelands Lawyers Adelaide Pty Ltd

ADC 2661 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS DALBY Applicant
AND:	MR JEMMET Respondent

order made by:	JUDGE MCGINN
DATE OF ORDER:	4 JULY 2023