Dansey & Dansey (No 4)

Case [2023] FedCFamC1F 1068

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dansey & Dansey (No 4) [2023] FedCFamC1F 1068

File number(s): SYC 3614 of 2021
Judgment of: ALTOBELLI J
Date of judgment: 13 December 2023 
Catchwords: FAMILY LAW – PARENTING – Final – Where previous allegations of sexual abuse have been made against the father in relation to one of the children – Where the mother alleges she has been sexually abused by the father throughout a ten-year period – Where the single expert psychiatrist diagnoses the mother with a delusional disorder – Where the mother’s treating psychiatrist diagnoses her with post-traumatic stress disorder as a result of the sexual abuse in the marriage – Where the father alleges one of the children is enmeshed with the mother – Whether the mother can genuinely facilitate a meaningful relationship between the children and the father – Where both parties seek primary care of the children – Schooling issues – Family therapy – It is ordered the children live with the father and spend significant and substantial time with the mother.
Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 61DA, 65DAA, 60CC
Cases cited:

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Carter & Wilson [2023] FedCFamC1A 9

Dansey & Dansey (No 3) [2023] FedCFamC1F 592

F v M [2021] EWFC 4

Helbig & Rowe and Ors [2016] FamCAFC 117

Illgen & Yike [2018] FamCA 17

M v M (1988) 166 CLR 69; [1988] HCA 68

MRR v GR (2010) 240 CLR 461; [2010] HCA 4

Ramzi & Moussa [2022] FedCFamC2F 1473

WK v SR (1997) FLC 92-787; [1997] FamCA 57
Division: Division 1 First Instance
Number of paragraphs: 268
Date of last submission/s: 13 October 2023
Date of hearing: 14–16, 22–23, 26–27 June 2023, 3–5, 11–13 October 2023
Place: Sydney
Counsel for the Applicant: Mr Sansom SC
Solicitor for the Applicant: Pearson Emerson Family Lawyers
Counsel for the Respondent: Ms Lawson
Solicitor for the Respondent: Burgess Family Law
Counsel for the Independent Children's Lawyer: Mr Kelly
Solicitor for the Independent Children's Lawyer: G & D Lawyers

ORDERS

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR DANSEY

Applicant
AND:

MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 DECEMBER 2023

THE COURT ORDERS THAT:

Parental Responsibility

1.The Applicant father (“the father”) have sole parental responsibility for the children, X born 2012 and Y born 2013 (“the children”).

2.In exercising sole parental responsibility pursuant to the preceding paragraph, before making a decision concerning the long-term care, welfare and development of either or both of the children in respect of their education, or significant medical treatment, the father shall do as follows:

(a)Provide to the mother in writing his proposed decision, not less than 14 days in advance of implementing his decision; and

(b)If the father receives a written response from the mother to his proposed decision within seven days of notice being given to the mother,…

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Dansey & Dansey (No 4) [2023] FedCFamC1F 1068
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[2023] FedCFamC1F 1068
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CaseChat Overview and Summary

The case of Dansey & Dansey (No 4) involves complex parenting issues between the father, Mr Dansey, and the mother, Ms Dansey, concerning their children, X and Y. The father sought sole parental responsibility and primary residence for the children, while the mother sought sole parental responsibility and for the children to spend no time with the father. The court was required to consider various factors including the children's best interests, the capacity of each parent to provide for the children, and the potential for harm to the children.

The court found that while both parents had played significant roles in the children's lives, the father should be granted sole parental responsibility. The court determined that the children currently did not have a meaningful relationship with the father, but this could be facilitated with appropriate support and therapy. The court emphasised the importance of reducing conflict and improving communication between the parents to better protect the children's mental wellbeing.

The court ordered that the children live primarily with the father but spend significant and substantial time with the mother. Initially, the children would live with the father with no contact with the mother for a period of 30 days, followed by a 9/5 time-sharing arrangement until Y commences high school. Thereafter, an equal time arrangement would be implemented during school terms and holidays. The court also imposed various conditions to mitigate risks, including restrictions on communication between the parents and the children, and requirements for family and individual therapy.

The final orders reflect a balanced approach aimed at promoting the children's relationship with both parents while addressing the identified risks. The court emphasised the importance of the parents working together to support the children's needs and wellbeing.

Orders

Orders of the court

SYC 3614 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR DANSEY

Applicant

AND:

MS DANSEY

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

13 DECEMBER 2023

THE COURT ORDERS THAT:

Parental Responsibility

1. The Applicant father (“the father”) have sole parental responsibility for the children, X born 2012 and Y born 2013 (“the children”).

2. In exercising sole parental responsibility pursuant to the preceding paragraph, before making a decision concerning the long-term care, welfare and development of either or both of the children in respect of their education, or significant medical treatment, the father shall do as follows:

(a) Provide to the mother in writing his proposed decision, not less than 14 days in advance of implementing his decision; and

(b) If the father receives a written response from the mother to his proposed decision within seven days of notice being given to the mother, he shall consider her response before exercising his sole parental responsibility in respect of the decision.

3. The father shall otherwise keep the Respondent mother (“the mother”) informed via the Our Family Wizard application about the children’s health, in particular the need for any operation, dental treatment, speech therapy, physiotherapy, occupational therapy, any specialist treatment, any alternative medical treatment or the need to medicate either of the children on a long-term basis, as well as attendance by the children for any reason upon a medical practitioner, other health care practitioner, psychologist, counsellor, family therapist or psychiatrist.

Live with/Time Arrangements

4. Within 72 hours of these orders, the mother is to do all acts and things necessary to cause the children, if not already in the father’s care, to commence living with the father until 2 February 2024, during which period of time the children shall spend no time with the mother and live with the father.

5. During the period of no time with the mother, the mother be restrained by injunction from:

(a) Allowing the children to have a key to her home;

(b) Approaching the children, and allowing the children or encouraging them to approach her;

(c) Communicating with the children by telephone call (other than as provided for Order 6 below), letter, text message, video call, email or any other messenger app or social media app, or gaming platform, including responding to any messages, emails or letters received by her from X and/or Y or any calls placed to her by X and/or Y, except as may be agreed between the parties in writing;

(d) Attending the premises of any school attended by X and/or Y; and

(e) Attending the venue or location of any extracurricular activity or social activity participated in by X and/or Y.

6. During the period of no time with the mother pursuant to Order 4, the father shall facilitate a five minute telephone or video call between the children and the mother once weekly on Sundays between 6.00 pm and 7.00 pm and on Christmas Day 2023 between 9.00 am and 10.00 am or at any other times as may be agreed between the parties.

7. From the conclusion of the period of no time with the mother pursuant to Order 4 and until Y commences Year 7 in 2026 and conditional on the mother continuing to engage in therapy pursuant to Orders 35 and 36 of these orders, the children will spend time with the mother from the conclusion of school or 3.30 pm on Friday to the commencement of school or 8.30 am on the following Wednesday in each alternate week.

8. From the date of Y commencing Year 7 in 2026 and thereafter, and conditional upon the mother continuing to engage in therapy pursuant to Orders 35 and 36 of these orders, the children live with the parents in an equal time arrangement during the school term as follows:

(a) With the father from the conclusion of school or 3.30 pm on Friday for one week until the conclusion of school or 3.30 pm the following Friday; and then

(b) With the mother from the conclusion of school or 3.30 pm on Friday for one week until the conclusion of school or 3.30 pm the following Friday.

9. From the date of Y commencing Year 7 in 2026 and thereafter and conditional upon the mother continuing to engage in therapy pursuant to Orders 35 and 36 of these orders, the children live with the parents during the school holidays as follows:

(a) With the father during the first half of the school holidays in odd numbered years and the second half of the school holidays in even numbered years; and

(b) With the mother during the second half of the school holidays in odd numbered years and the first half of the school holidays in even numbered years.

10. Within 48 hours of these orders, or as soon as reasonably practicable, the parents do all things necessary to facilitate and enable the Independent Children’s Lawyer and X’s counsellor, Ms DD to meet with the children to explain the effect of these orders.

Special Occasion Time

11. Notwithstanding any other order, from Christmas in 2024 and unless otherwise agreed between the parties in writing, the children shall spend time on Christmas Day with the parties as follows:

(a) From 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day with the father in even numbered years; and

(b) From 5.00 pm on Christmas Eve until 5.00 pm on Christmas Day with the mother in odd numbered years.

12. In respect of the weekend on which Father’s Day falls, the children live with the father from the conclusion of school on Friday until commencement of school on Monday (if they would not otherwise be living with the father at those times pursuant to these orders).

13. In respect of the weekend on which Mother’s Day falls, the children live with the mother from the conclusion of school on Friday until commencement of school on Monday (if they would not otherwise be living with the mother at those times pursuant to these orders).

14. On each of the children’s birthdays each year, if the children would not spend time with a parent at all on that day pursuant to other provisions in these orders, the children spend time with that parent on the birthday as follows:

(a) If the birthday falls on a school day, from conclusion of school until 6:00 pm; and

(b) If the birthday falls on a non-school day, from 3:00 pm until 6:00 pm if the children are not outside a 100 km radius of PP Post Office on holiday.

Changeover

15. The arrangements for the children to live respectively with the parents pursuant to these orders shall be implemented by the party or their nominee arranging the collection/return of the children to/from their school(s) (where their time commences or concludes on a school day) or by the party arranging for either or both of the children to travel to/from their home to/from school by public transport.

16. During school holiday periods or a non-school day, the party whose time with the children concludes shall deliver the children to the home of the other party on the following basis:

(a) The relevant party shall send the children unaccompanied inside the home of the parent who is to commence time; and

(b) The changeover time shall be 3.00 pm.

17. The parties shall respectively return to the other party the children’s clothing, school supplies and belongings that the children each possessed when they came into their care, when the children return to the other party’s care.

Schooling

18. Within seven days of the date of these orders, the parties are to do all acts and sign all documents to enrol X at QQ School to commence Term 1, 2024.

19. Y is to attend the school the school determined by the father, in consultation with the mother in accordance with these orders, noting that the parents are agreed that he will remain at RR School for his primary school years.

Communication

20. Unless otherwise agreed in writing between the parties, they shall communicate with each other about the children using the Our Family Wizard application or an agreed equivalent.

21. During school terms when the children are living with the father, for a period of 12 months following the date of these orders, the mother shall:

(a) Not communicate, or attempt to communicate with the children (except whilst she and either of the children are at a school function); and

(b) Block the children’s mobile phone numbers on her mobile phone so that she cannot receive calls or messages from the children.

22. Notwithstanding the preceding paragraph, during the children’s school holiday periods for the period of 12 months following the date of these orders, the father shall facilitate an audio-visual call (FaceTime or similar) between the children and the mother each Wednesday between 4.00 pm and 5.00 pm and on Christmas Day between 9.00 am and 10.00 am by arranging for the children to call the mother from his mobile phone.

Exchange of Information

23. Each parent is to immediately notify the other if X or Y is seriously ill or is admitted to hospital during such time as the child is living or spending time with that parent and to advise the other parent of the names and contact details and addresses of the treating medical practitioners, health care providers and allied health professionals.

24. The father shall keep the mother informed of his residential address, email address and telephone contact number(s) and the mother shall keep the father informed of her residential address, email address and telephone contact number(s).

25. Each of the parties forthwith authorise any school(s) the children attend to provide to each of the mother and the father photocopies of reports, school photographs, newsletters and announcements of school activities, or other notices pertaining to the education of the children.

26. Each party is at liberty to provide a copy of these orders to the child’s school and any treating medical practitioners, health care providers and allied health professionals.

27. Each parent shall notify the other by Our Family Wizard application not more than 28 days before any proposed change to their address and provide to the other parent at that time details of their proposed new address.

28. Each parent shall notify the other by Our Family Wizard application not more than 24 hours after any change to their address, landline telephone number, mobile telephone number and/or email address.

Restraints and Injunctions

29. Each of the parties be restrained by injunction from:

(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and/or the children;

(b) Using physical discipline on the children or either of them; and

(c) Discussing these proceedings or any allegations raised in such proceedings or discussing the contents of any documents filed in or used in these proceedings to, with, or in the presence or hearing of, the children (or any of them) and from permitting any other person to do so.

30. Each of the parties shall respect the privacy of the other parent, not question the children about the personal life of the other parent, and speak of the other parent respectfully.

31. In the event that X or Y return to the mother during any period in which they are otherwise to be in the care of the father pursuant to these orders, the mother shall immediately:

(a) Contact the father to confirm the location of X and/or Y; and

(b) Deliver X and/or Y to the home of the father.

32. In the event that X or Y return to the father during any period in which they are otherwise to be in the care of the mother pursuant to these orders, the father shall immediately:

(a) Contact the father to confirm the location of X and/or Y; and

(b) Deliver X and/or Y to the home of the mother.

Children’s Therapy

33. The father shall do acts and things to facilitate X’s attendance upon a female clinical psychologist, whether that be Ms DD or otherwise.

34. The parties are to do all things to facilitate Y continuing to attend upon his counsellor, Ms FF, for such duration and such frequencies as recommended by Ms FF from time to time, with the costs of this therapy to be shared equally by the parties.

Family Therapy

35. The parties shall do all things necessary to commence family therapy with either Ms SS, Ms TT or such other family therapist as may be agreed between the parties subject to the following conditions:

(a) If logistically possible, the family therapist see the mother during her period of no contact with the children;

(b) The family therapist commence seeing the rest of the family after the period of no contact with the mother;

(c) The family therapy be non-reportable;

(d) The family therapist be provided with a copy of the reasons for judgment and these orders;

(e) Leave be granted to each of the parties to provide to the family therapist copies of any documents filed in or produced for the purposes of these proceedings, including any single expert reports, if and only if requested by the family therapist;

(f) In addition to any matters considered to be relevant by the family therapist, the parties each instruct the family therapist to direct his/her therapy to the following matters:

(i) Assisting each parent and the children to regularise their living arrangements, reduce conflict and improve communication;

(ii) Providing a forum for X and Y to express and have addressed any concerns or worries about their living arrangements and wellbeing; and

(iii) Assisting the parents in making decisions about the children and with how they might otherwise best address the needs of the children.

(g) In addition to the above, the therapist be instructed by each of the parties to specifically address X’s refuse/resist dynamic with the father and his family and her aversive attitude generally;

(h) Each parent participate in any post-separation parenting course as may be recommended by the therapist;

(i) The family therapy continue for at least six months, at a frequency recommended by the family therapist; and

(j) The costs of the family therapy be shared equally by the parties.

Mother’s Therapy

36. The mother be and is hereby required to attend or continue attending on her treating practitioners, Ms S and Dr T, for a duration and frequency as recommended by her treaters.

Passports and Overseas Travel

37. The children are permitted to travel internationally as provided by s 11(1)(b) of the Australian Passports Act 2005 (Cth) and for this purpose the father is permitted to apply for the issue of Australian passports for the children.

38. The father shall retain custody of the children’s passports at all times.

39. Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth), it is hereby ordered that X born 2012 and Y born 2013 are to be issued with an Australian travel document.

40. Pursuant to s 11(1)(b)(ii) of the Australian Passports Act 2005 (Cth) and these orders, X born 2012 and Y born 2013 are permitted to travel outside the Commonwealth of Australia using an Australian travel document.

41. The parties will do all acts and things and sign all documents necessary, including providing the original birth certificates of the children, within seven days of being requested to do so, to make application to the Australian Passport Office (or such other department or instrumentality administering the Australian Passports Act 2005 (Cth)) to enable X born 2012 and Y born 2013 to be issued with an Australian travel document.

42. In the event that a party refuses or neglects to sign any document necessary to issue X born 2012 and Y born 2013 with an Australian travel document, such refusal will constitute sufficient special circumstances for a party to seek that the Minister administering the Australian Passports Act 2005 (Cth) give consideration to issuing an Australian travel document pursuant to s 11(2)(a) of the Australian Passports Act 2005 (Cth).

43. Commencing 2026, in the event either parent wishes to travel overseas with the children pursuant to these orders, the travelling parent shall be at liberty to facilitate overseas travel on the following basis:

(a) The travelling parent must give to the other parent not less than 90 days’ notice in writing of the dates of the proposed travel;

(b) The children shall live with the other parent during the relevant school holiday at all other times during that school holiday period, except during that travel period; and

(c) Not less than 28 days immediately prior to the departure date, the travelling party shall provide to the other party:

(i) An accurate, written itinerary for the trip, including, but not limited to, departure and return times and dates, the place(s) and country/countries the children will be travelling to and the dates on which the children will arrive and depart each destination;

(ii) A mobile phone number/numbers and address/addresses at which the children and the travelling party can be contacted during the duration of the children’s holiday; and

(iii) Copies of the children’s forward journey and return journey tickets or electronic tickets (including air tickets).

44. In order to give effect to the provisions of the preceding paragraph of these orders, the mother and the father shall each do all acts and things and sign all deeds, documents, instruments and writings as may be necessary so as to facilitate the travelling party travelling overseas and returning to the Commonwealth of Australia with the children, including, but not limited to, signing Australian passport applications and/or Australian passport renewal/extension applications and any other necessary visa/other travel documentation for the children.

Parenting Courses

45. Forthwith upon the making of these orders the father and mother shall, if they have not already done so, enrol in and participate in:

(a) The Tuning into Teens course; and

(b) The Circle of Security course,

for the next available session for those courses.

Miscellaneous

46. Each school holiday period pursuant to these orders is deemed to commence on the first day of conclusion of the NSW gazetted school term and conclude at 3.00 pm the day prior to the first day of the new next NSW gazetted school term.

47. The parties shall use their best endeavours to ensure that the children attend their sporting, educational and creative activities (“extra-curricular activities”) which occur during times that the children are in their respective care.

48. Each party shall do all acts and things reasonably required of the other including the signing or execution of all necessary documents to give effect to the provision of these orders within seven days (or otherwise specified in these orders) of being requested to do so. In the event a party refuses or neglects to sign or execute and return a document within seven days (or otherwise specified in these orders) of presentation to them or a solicitor representing them then pursuant to s 106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit and Family Court of Australia is empowered and appointed and directed to hereby sign or execute the same in the name of the defaulting party upon presentation of such document and an Affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal.

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.

Background

Background to the litigation

These reasons for judgment explain the orders that the Court has made in relation to the children, X aged 11 (“X”) and Y aged 10 (“Y”) (“the children”), in this difficult and complex parenting matter. BACKGROUND The father is the applicant (“the father”). He is 44 years old and describes himself as a public servant. He currently lives in a suburban home in Suburb GG with his parents, but the Court is advised he is likely to move into the former matrimonial home (“the Suburb B property”) if orders are made that the children primarily live with him. The mother is the respondent (“the mother”). She is 45 years old and describes herself as a full-time mother. She previously resided in the Suburb B property but has recently moved into a rental property in Suburb UU. The parties commenced cohabitation in 2007 and married in 2018. They separated on a final basis on 10 May 2021 and were divorced in 2023. On 10 May 2021, the mother unilaterally relocated with the children from the Suburb B property to Town G. On 17 May 2021, the father commenced these proceedings seeking urgent interim orders for the mother to return the children to Sydney. The mother filed a Response on 3 June 2021 seeking final orders that she have sole parental responsibility for the children, and they spend no time with the father. Following a contested interim hearing before Berman J on 4 June 2021, his Honour made orders for the mother to return to the Suburb B property in Sydney with the children and for the father to vacate the premises. Further interim parenting orders were made for equal shared parental responsibility, for the children to live with the mother and spend time with the father supervised by the paternal grandparents from 12 July 2021 for a period of four hours each Wednesday and for a period of eight hours each Sunday. On 8 July 2021, the mother filed a Notice of Appeal against the decision of Berman J and an Application in a Case on 7 July 2021 seeking a stay of the interim orders. Berman J dismissed the mother’s application for stay on 27 August 2021 and the Full Court dismissed the mother’s appeal on 19 November 2021. On 9 September 2021, the father spent time with the children for the first time in four months since separation. Following the mother’s allegation that X had reported she gave her father a “massage”, the father’s time was professionally supervised, on a without admissions basis, from 17 October 2021 to 17 November 2021. After 17 November 2021, the paternal grandparents resumed supervising the father’s time with the children. The contact arrangement provided by the 4 June 2021 orders remained in place until the interim hearing before Curran J outlined at [7]. Dr U, clinical psychologist, was appointed as single expert psychologist pursuant to orders made on 16 September 2021 and prepared a single joint expert report dated 16 August 2022 (“Dr U’s first report”) (Exhibit A2). This report was released to the Independent Children’s Lawyer in the first instance, then released to the parties and Dr V following their interviews with him on 21 December 2022. Dr V was appointed single expert psychiatrist on 22 June 2022 and prepared a report containing psychiatric assessments of both parents on 12 February 2023 (“Dr V’s report”) (Exhibit A4).

Evidence

Evidence Before The Court

The litigation between the parties about alteration of property interests remains pending.THE EVIDENCE In support of his case, the father relies on the following documents:(a)Further Amended Initiating Application filed 28 September 2023;(b)His affidavit filed 22 May 2023;(c)Affidavit of Mr Q filed 22 May 2023;(d)Affidavit of Ms R filed 22 May 2023; (e)Outline of Case Document filed 8 June 2023;(f)His updating affidavit filed 29 September 2023; and(g)Various documents tendered during the proceedings, marked as Exhibits A1–A15. In support of her case, the mother relies on the following documents:(a)Amended Response to Final Orders filed 11 May 2022;(b)Her affidavit filed 26 May 2023;(c)Affidavit of Dr T filed 22 May 2023;(d)Affidavit of Ms S filed 22 May 2023;(e)Affidavit of Ms AK filed 22 May 2023;(f)Affidavit of Ms O filed 22 May 2023;(g)Affidavit of Dr HH filed 22 May 2023;(h)Affidavit of Ms JJ filed 22 May 2023;(i)Affidavit of Ms J filed 22 May 2023;(j)Affidavit of Ms KK filed 22 May 2023;(k)Affidavit of Mr CC filed 22 May 2023;(l)Affidavit of Mr D filed 22 May 2023;(m)Affidavit of Ms LL filed 22 May 2023; (n)Outline of Case Document filed 9 June 2023; (o)Affidavit of Ms EE filed 28 September 2023;(p)Updating affidavit of Ms O filed 28 September 2023; (q)Updating affidavit of Ms J filed 28 September 2023; (r)Her updating affidavit filed 28 September 2023; and(s)Various documents tendered during the proceedings, marked as Exhibits R1–R59. In support of his case, the Independent Children’s Lawyer relies on the following documents:(a)Outline of Case Document filed 9 June 2023; and(b)Various documents tendered during the proceedings, marked as Exhibits ICL1–ICL3. The witnesses who were called to give evidence include:(a)The father;(b)The mother;(c)The mother’s treating psychiatrist, Dr T;(d)Dr V;(e)Dr U;(f)Mr Q (the paternal grandfather);(g)Mr CC (the maternal grandfather);(h)Ms S;(i)Ms J;(j)Ms R (the paternal grandmother);(k)Dr HH;(l)Ms O;(m)Mr D;(n)Dr LL;(o)Ms AK;(p)Ms KK; and (q)Ms EE. The Court has received two updating emails from the parties dated 8 November 2023 and 6 December 2023 respectively. These have been marked Exhibit CA and Exhibit CB. THE COMPETING PROPOSALS All parties handed up a final Minute of Order by the time of closing submissions on 13 October 2023. The father’s proposal is contained in his Final Minute of Order (Exhibit A15). He seeks orders that he have sole parental responsibility for the children and the children commence living with him within 72 hours of the orders being made for a period of 30 days. During this time, the children are to spend no time and have no contact with the mother save for a five minute phone call facilitated by the father twice per week. Following the no contact period and until Y commences high school the children are to live with him and spend time with the mother from the conclusion of school on Friday until the commencement of school on the following Wednesday each alternate week (9/5 arrangement). When Y commences high school, the father proposes that the children live in an equal time arrangement with changeover to occur on Friday after school and spend half of each school holiday period with each parent. The father also seeks specific orders for time during Christmas from 2024 on an alternating basis. He proposes that the Independent Children’s Lawyer and Ms DD explain the effect of the orders to the children and X continue to attend upon Ms DD and Y continue to attend upon Ms FF. The parties are to commence non-reportable family therapy with Ms SS, Ms TT or another family therapist. The father seeks to always retain the children’s passports. In relation to schooling, the father proposes that if he is residing within the catchment area for QQ School, X be enrolled at QQ School commencing Term 1 2024. If the father is not residing in the said catchment area, X be enrolled at WW School commencing Term 1 2024. If neither of the parties are residing within the catchment area of WW School, X be enrolled at XX School. For the purposes of secondary schooling, if Y gains admission to YY School, he is to be enrolled there and if not, he is to attend whichever school X is attending from Year 7 in 2026. Finally, he seeks that both parties be enrolled in and participate in the Tuning in Teens and the Circle of Security courses.

Decision

Reasons for decision

As aforementioned, the children previously had a good relationship with the paternal grandparents. It is hoped that with the resolution of these proceedings, this relationship will be restored. Opportunity To Participate In Making Decisions The mother has made allegations that the father was not involved in caring for the children or making decisions about their major issues and the father alleges he was heavily involved in the children’s care (page 63 of Dr U’s first report). However, both parents conceded that the paternal grandparents have played a significant caring role in the children’s lives. Dr U concludes that the children’s close and loving relationship with the father (at the time of the first report) suggests the father has played an important parenting role in their lives and the children suffered an attachment loss when they were withheld. Further, when the children were withheld from the father, he took significant steps to communicate with them, agree to supervision on a without admissions basis when false allegations were made against him and pay for formal supervision when it was requested. The father has taken all opportunities to participate in making decisions in relation to the children. Parental trust is low and there is very little communication between the parties. All parties agree that sole parental responsibility should be given to one parent in this case. Once orders are made, and this litigation is finalised, the Court does not see this issue being relevant.Likely Effect Of Change The Court accepts that if an order is made for the children to live primarily with the father, it will be a very substantial change in their lives. For the children, the mother’s household is the known. The children have been living in the primary care of the mother their whole life. Prior to separation, the division of roles were such that the father worked full-time, and the mother was responsible for the children and maintaining the home. After separation, the children lived in the mother’s primary care in Town G and the Suburb B property, then under supervision in the Suburb B property. The father’s household is the unknown. He has never taken care of the children overnight on his own, by virtue of orders being in place that any overnight time needs to be in the paternal grandparents’ home. There is limited evidence before the Court about how he will cope with the practicalities of being a primary carer, and especially the issue of X running away. However, if the father takes the children away on holidays during the no contact period, this might mitigate the risk of X running away. If the effect of orders for the children to live with the father is that they remain in the family home, and he moves back in, this is a mitigating factor as regards change for the children.Practical Difficulty and Expense The mother now lives in Suburb UU and the father is either residing in Suburb GG or in Suburb B. There does not appear to be any practical difficulty and/or expense to be considered in relation to the mother’s home. If the father resides in the Suburb B property, X will either need to be driven to QQ School (25–30 minutes) or take public transport (45–60 minutes) or a mixture of both. Parental Capacity

Ratio Decidendi

Legal Principle Established

It is clear Y has been exposed to parental conflict during these proceedings. However, both the mother and the father appear to be reacting appropriately and protectively in instances of Y’s self-harm. The parents would do well to better protect Y from their conflict in order for his mental wellbeing to improve.SECTION 60CC PRIMARY AND ADDITIONAL CONSIDERATIONSMeaningful Relationship The mother has always been the primary carer for the children, and it is clear they have a meaningful relationship with her. The Court has unfortunately determined that the children do not currently have a meaningful relationship with the father. However, the mother’s proposal for time implies she is supportive of a meaningful relationship being recreated between the children and the father. Risk Of Harm In relation to the mother, the Court has found that the nuances of her behaviour and belief that the father remains a risk of harm negatively affects the children’s views of the father and there is a risk that the children will permanently lose the opportunity to have a meaningful relationship with him. Further, the Court has found that X is likely enmeshed with the mother. Despite the Court making findings that it is not likely the mother suffers from a delusional disorder, there are still ongoing concerns about the mother’s mental health and her understanding of appropriate parenting. In relation to the father, the Court has found that he has likely engaged in verbal abuse and denigration throughout the relationship and lacks insight in respect of this. This is further exacerbated by the fact that he is seeking primary care of the children, something he has never had prior experience in, and has chosen not to complete any parenting courses or further his education. It is noted that the father now seeks orders that the parties be enrolled in and participate in Tuning in Teens and Circle of Security courses. However, implicit in the final proposals of all parties is that there is no ongoing risk to the children of harm due to abuse, neglect, alienation or family violence. They both seek that the children spend significant and substantial time (whether or not it is graduated) with the other parent. The Independent Children’s Lawyer seeks that the children spend significant and substantial time with both parents. Implicit in the proposals of the parties is that there is not currently operative risk of harm to the children. In reality, and as discussed in these reasons, the risk profile is more subtle, but real, especially as regards X running away from her father.The Children’s Views The children’s views have been extensively traversed. X has been overly empowered throughout these proceedings. Limited weight will be placed on the children’s views. Nature Of The Relationships Of The Children The children enjoy a close relationship with each other. There can be no suggestion about separating these children. Both parents are aware of the closeness and the issues of X playing a parentified role for Y. In Exhibit ICL2, X told Ms DD that she feels “9/10 responsible for [Y]” because he feels “very bad about the separation” in early 2023. In late 2023, X is recorded as saying that when her parents were arguing, she felt “like the only responsible one there” and “she had to look after [Y]”. Further, Dr U interviewed Ms DD for the purposes of her second report. At paragraph 43, the report states X disclosed she feels she has a “full time job parenting [Y]” and they have spoken about reducing this to a part time job. This is very concerning. Both parties are aware of this issue. They need to work together to prevent further parentification of X.