Eastling & Pariser - [2024] FedCFamC2F 815

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Eastling & Pariser [2024] FedCFamC2F 815

File number(s): DGC 2043 of 2022

Judgment of: JUDGE BURT

Date of judgment: 27 June 2024

Catchwords: FAMILY LAW – Parenting – three children, aged 14 and twins aged ten – mother’s application to relocate the children from Melbourne to regional Queensland – father’s primary application for the children to remain living in Melbourne and gradually transition to a week about arrangement – children currently spending time with father three nights per fortnight – allegations of multiple instances of family violence perpetrated against the mother and the children – blanket denials made by father – findings made – mother diagnosed with PTSD – expert evidence given by each party’s psychologist and the mother’s psychiatrist – mother experiencing emotional and physical dysregulation when required to communicate with the father – father lacking insight and minimising the impact of his behaviours – one child experiencing behavioural problems – one child experiencing learning difficulties – children having a loving relationship with both parents – mother having purchased property in Queensland to establish a business with her new partner – mother’s proposal for children to spend time with the father almost monthly in Melbourne, at her cost – significant delays in neuropsychological assessment of a child due to parental disagreement – held – relocation permitted – spend time with the father in accordance with his proposed secondary position – the mother make sole decisions with respect medical assessment and treatment – the parties to otherwise make joint decisions.

Legislation:
Family Law Act 1975, ss 4AB(1), 60B, 60CA, 60CC, 61B, 61C, 61CA, 61DAA, 65D

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.11

Explanatory Memorandum, Family Law Amendment Bill 2023

Cases cited:
Adamson & Adamson (2014) FLC 93-622

AMS v AIF [1999] HCA 26

Andrew & Delaine [2009] FamCAFC 182

Asher & Wilkinson [2020] FamCAFC 44

Carlson & Fluvium [2012] FamCA 32

Franklyn & Franklyn [2019] FamCAFC 256

Grella & Jamieson [2017] FamCAFC 21

In the Marriage of Hall [1979] FamCA 73

Jefford & Jefford [2022] FedCFamC1F 539

Malcolm & Monroe and Anor [2011] FamCAFC 16

Timms & Payton [2015] FCCA 3324

U v U [2002] HCA 36

Division: Division 2 Family Law

Number of paragraphs: 235

Date of hearing: 8, 9, 10 May 2024, 7 June 2024

Place: Dandenong

Counsel for the Applicant: Mr Smith

Solicitor for the Applicant: TFA Legal

Counsel for the Respondent: Ms Paterson

Solicitor for the Respondent: Clancy and Triado
ORDERS

DGC 2043 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR EASTLING

Applicant

AND:
MS PARISER

Respondent

ORDER MADE BY:

JUDGE BURT

DATE OF ORDER:

27 JUNE 2024

Amended pursuant to r.10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 on 29 July 2024
THE COURT ORDERS THAT:
1.All previous orders be discharged.

Decision making
2.The mother make sole decisions relating to major long-term issues concerning medical, psychological or allied health assessment and treatment for the children X born in 2010, Y born in 2013 and Z born in 2013 (collectively “the children”) or any of them (“the treatment”), provided that:
(a)the mother provide the father with not less than 28 days’ notice of the proposed treatment, including provision of the name and contact details of the proposed treater and copies of any reports or referrals in support of such proposed treatment;
(b)the father, within 14 days of receipt of such a proposal, provide any response or comments he may have; and
(c)in the event the parties cannot agree as to the treatment, the mother make the final decision and forthwith inform the father of same.

3.The parties make joint decisions in relation to all major long-term issues for the children save for those relating to medical, psychological or allied health assessment and treatment.

Live with
4.The children live with the ~~,other~~ *mother* in Town B, Queensland.

Education
5.The children be enrolled at C School (for the remainder of primary school for Y and Z) and E School in Town D, Queensland (for X, and subsequently for Y and Z from year 7) and continue to be enrolled at such schools until further order of the Court or the written agreement of both parties.

Spend time with
6.Unless otherwise agreed between the parties in writing, the children spend time and communicate with the father in Melbourne as follows:
(a)from Thursday to 3.30pm on Sunday during the fifth week of each Queensland gazetted school term (“school term”);
(b)for a period of eight consecutive nights during each Queensland gazetted school term holiday period, from 5pm on the second last Friday of the term holidays until 3.30pm on the last Saturday of the school term holidays; and
(c)for a period of three and a half weeks during the Queensland gazetted long summer school holidays as follows:
(i)on the second weekend in December from Friday until on Monday;
(ii)in odd numbered years, from 5pm on 24 December until 5pm on 14 January; and
(iii)in even numbered years, from 9am on 26 December until 9am on 16 January.

7.Unless otherwise agreed between the parties in writing, the children spend time with the father in Melbourne (if not already in his care):
(a)on the weekend of or immediately following the father’s birthday from Friday to Sunday;
(b)for a period of five nights at Easter, commencing on the Thursday before Good Friday and concluding on Easter Monday; and
(c)from Friday to Sunday on Father’s Day weekend.

8.At the father’s election and upon the provision of not less than three weeks’ written notice to the mother, the children spend one additional weekend per school term with the father in Queensland during Terms 1, 2 and 4, with such time to commence at the conclusion of school or 3.30pm if a non-school day on Friday and conclude at 4pm on Sunday.
9.For the purpose of the children’s time with the father in accordance with orders 6 and 7 herein:
(a)unless specified in order 7 herein, such time commence and conclude at such times as are reasonable to facilitate the children’s travel between Town B and Melbourne; and
(b)for all times when there is a time-difference between Victoria and Queensland, Queensland time shall apply.

10.Irrespective of any other order, the children shall spend time with the mother on the Mother’s Day weekend from the conclusion of school on Friday or 3.30pm if a non‑school day until the start of school on Monday.
11.If for any reason, the children (or any of them) do not board a flight on which they are booked to depart (from Melbourne to return to Town B), at the conclusion of time with the father, the father shall be responsible for:
(a)re-booking the child or children on the next available flight to City F/City H;
(b)the cost of rebooking flights to return the child or the children to City F/City H; and
(c)the care of the child or children until they have departed on the next available flight from Melbourne to City F/City H.

12.Save for circumstances which fall within order 11 herein, the mother shall bear all costs of travel for the children and any accompanying adult arising out of time pursuant to orders 6 and 7 herein.

Changeover
13.Changeover occur as follows:
(a)if the mother is in Melbourne with the children on the changeover days, the mother shall deliver the children to the father’s home at the commencement of time and collect the children from the father’s home at the conclusion of time, with the mother to text the father upon her arrival and the changeover to be facilitated outside the father’s home;
(b)if the mother is not in Melbourne with the children on the changeover days, changeover shall occur at Melbourne airport, the father will collect the children from the airport through which they are transiting at the commencement of time and return the children to Melbourne airport at the conclusion of time;
(c)for the purposes of orders 11(a) and (b) herein, the mother shall provide the father with not less than 28 days written notice of whether she will be in Melbourne or not, on the changeover days; and
(d)in the event that the father travels to Queensland to see the children, the mother shall deliver the children to the school car park in Town D at the commencement of time, or at a destination agreed between the parents in writing.

Communication
14.Until such time that Y and Z have their own personal mobile phones, the father be at liberty to contact the children via X’s mobile telephone for a telephone or FaceTime call each Tuesday and Thursday from 6.30pm to 7pm, with the father to initiate such calls.
15.Upon all three children having their own personal mobile phones, the father be at liberty to communicate via phone or text message with the children at all reasonable times.
16.The parties keep each other informed of their respective residential addresses, contact telephone numbers and email addresses.
17.The parties keep each other informed of issues relating to the children’s health, including:
(a)advising the other parent of any specialist medical appointments along with the names and contact details of same including but not limited to via telephone or video conference; and
(b)forthwith advising the other of any illness or injury sustained by the children or any of them whilst in their care and further provide the other with full particulars of the name, address and contact telephone number of any medical or other health professional or hospital from whom or at which the children have received or are to receive treatment so that each parent may liaise with same.

18.Both parties shall follow all recommendations made by any general practitioner or other healthcare treatment provider that may treat the children or any of them from time to time.

Travel
19.The parties do all acts and things necessary and sign all such documents as may be required to make an application for an Australian Passport for each of the children within seven days of a request from the other party.
20.The children’s passports be held by the mother when not in use and be returned to the mother within seven days of the children’s return to Australia.
21.The mother release the children’s passports to the father no less than 30 days before proposed international travel for which he has given notice pursuant to order 22 herein.
22.The parties may travel with the children outside of the Commonwealth of Australia provided that the parent intending to travel (“the travelling parent”) provides to the other parent, no later than 60 days prior to the intended international departure date, written confirmation of the following:
(a)the places and/or countries, and intended itineraries, addresses and accommodation bookings as far as practicable, to which the children will travel;
(b)confirmation the children are covered by a travel insurance policy;
(c)the intended airlines and flight bookings upon which the children will travel;
(d)the date upon which the children will depart from and return to the Commonwealth of Australia; and
(e)a telephone and/or WhatsApp contact number on which the non-travelling parent can communicate with the children during the travel period.

23.The travelling parent facilitate telephone and/or WhatsApp contact between the non-travelling parent and the children at all reasonable times.
24.In the event the travel is to take place at a time when the children would normally be with the other parent, unless otherwise agreed between the parents, the other parent be afforded makeup time equal to the time lost with such to occur at times as agreed between the parties in writing.
25.The travelling parent be responsible for all airfares and associated costs of travel for each of the children.

Restraints
26.The parties are hereby restrained from:
(a)communicating with each other via the children; and
(b)denigrating the other party or their family, including their partner, in the presence and/or hearing of the children or permitting a third party to do so; and
(c)discussing any Court proceedings in the presence and/or hearing of the children or permitting a third party to do so.

Costs
27.The father pay the mother’s costs fixed in the sum of $3,500 arising from the interim hearing on 30 April 2024.

Other
28.All extant applications be otherwise dismissed.
29.Pursuant to s.65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.

AND THE COURT NOTES THAT:
A.Pursuant to s.62B of the Family Law Act 1975, information about courses, programs and services to help with adjusting to the consequences of these orders are set out in Attachment A.
B.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court.

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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BURT:

These proceedings concern a dispute about the parenting arrangements for X who is almost 14, and Y and Z, twins who are aged ten. At the moment, the children live with the mother in Melbourne and spend three nights per fortnight with the father.
Ms Pariser, the children’s mother, seeks orders for the children to live with her in Town B, Queensland, where she wishes to relocate. She proposes that the children spend time with the father in Melbourne on one weekend during each school term, for nine nights during each term holiday and for three and a half weeks during each summer holiday, as well as on various special days. She agrees to pay the costs of the children’s travel to spend time with the father in Melbourne.
If the children continue to live in Melbourne, the mother proposes that they live with her and spend time with the father on alternate weekends from Friday to Monday, for the first week of term holidays and for three weeks in the summer holidays as well as on special days.
Mr Eastling, the children’s father, opposes the proposed relocation of the children. He seeks orders for the children to spend equal time with both parents on a week about basis if they and the mother remain in Melbourne. He proposes that those arrangements be introduced on a gradual basis, starting with five nights with the father each fortnight. He proposes that the children spend the second week of the school term holidays with him and, in a rather complex configuration varying between odd and even-numbered years, between 25 and 27 nights in the long summer holidays as well as on various special days.
If the children relocate to Queensland, the father proposes that they spend time with him in Melbourne for one weekend during each school term and, upon 14 days’ notice in writing from the father, during terms 1, 2 and 4 for one additional weekend in Queensland. During term holidays he proposes that the children spend time with him in Melbourne for approximately eight nights. He proposes they spend about three weeks of the summer holidays in Melbourne as well as various special days, also in Melbourne.
The father proposes that the parties have “equal shared parental responsibility” which his Counsel confirmed indicates orders for joint decision making in respect of major long-term issues affecting the children. The mother proposes that the parties make joint decisions for the children save in relation to medical, psychological or other allied health decisions in respect of which she seeks orders providing for consultation between the parties but for her to be able to make decisions without the father’s consent if agreement cannot be reached.
Both parties seek other orders in relation to the exchange of information, international travel and restraints. The entirety of the orders sought by each party appear at appendix A to these reasons.
BACKGROUND AND PROCEDURAL HISTORY
The father is aged 49. He works as a professional. He re-partnered with Ms G over four years ago. He and Ms G do not live together. Ms G has children who live with her and their father in a shared care arrangement. The father lives in the former family home in Suburb J.
The mother is aged 46. She works on a part-time basis as a health care worker. She lives in Suburb K.
The mother re-partnered in late 2017 with Mr L. They lived together in Melbourne until mid‑2023 when Mr L moved to Town B. The mother proposes to relocate to Town B with the children so that she and they can live with Mr L.
At present the children live with the mother and spend three nights per fortnight with the father in term-time in a two-week cycle; in week one they spend time with the father on Monday night and from the end of school on Friday until 5pm on Sunday and in week two they do not spend time with the father. They also spend special days, a week during all term holidays and almost half of the summer school holidays with the father.
X is in year 8 at M School. Z and Y are in year 5 at N School.
The parents agree that X and Z have some special needs which are discussed elsewhere in these reasons.
The parents disagree about when they started living together, with the father saying that cohabitation began in 2002 and the mother in 1998. Nothing turns on that dispute.
The parents married in 2008.
X was born in 2010.
The twins Y and Z were born in 2013. Because they were born prematurely, they required a period of neonatal care, initially in the Intensive Care Unit at hospital.
In 2014, the father had major surgery.
The father says that he decided to end the marriage in 2015 for reasons relating to his health but that the parties attended couples’ counselling sessions and the relationship then continued.
Following a report to the Department of Families, Fairness and Housing (“DFFH”), there was a period of protective intervention in 2017. The protective concerns related to family violence said to be perpetrated by the father including smacking and rough handling of the children. The s.67Z response prepared by DFFH indicates that the father was assessed as a person responsible for harm as a result of these concerns.

The parties agree that they separated on 5 July 2017. They disagree about the reasons for the separation: the mother says that she ended the relationship because of family violence by the father and the father says that those allegations were fabricated by the mother.
In late 2017, the mother applied for an intervention order.
In late 2017, a final intervention order was made, on the basis of consent but no admissions by the father.
In late 2017, the father made a cross application for an intervention order which he withdrew in mid-2018.
The mother says that the parties agreed on a parenting plan on 28 November 2017 which provided for the children to spend one night with the father each week. She says that they rarely did so because the father lacked suitable accommodation. The father says that after separation he was unable to have “substantial care” of the children as he was living with a work colleague and had no access to the parties’ savings. He does not otherwise depose to the parenting arrangements for the children after separation.
The mother says that the parties entered into a new parenting plan on 6 February 2018 providing for the children to spend four nights per fortnight with the father.
In late 2018, the mother applied for and obtained an extension to the duration of the intervention order.
On 29 January 2019, final orders were made in relation to property and to schooling. Those orders provided inter alia that:
(a)the children attend N School from term 1 in 2019, until the completion of their primary school education, and attend a secondary school within a 5km radius of the same, unless otherwise agreed;
(b)the former matrimonial home be sold, and the proceeds of sale be calculated and distributed in accordance with a detailed equation, which takes into account a partial property settlement, the husband’s motor vehicle, the balance of a bank account and any amounts that remain unpaid by the husband in respect of his occupation of the property;
(c)shares be sold and the proceeds be distributed equally between the parties; and
(d)there be a superannuation split of $80,770.50 to the mother.
In 2020, the mother says that the parties attended mediation following which they entered into a parenting plan which reduced the children’s time with the father from four nights to three nights each fortnight. The father says that in December 2020 the parties agreed to a new parenting plan providing for the children to spend time with the father each alternate weekend, from the conclusion of school on Friday until 5pm on Sunday, and on alternate Monday nights. Nothing turns on this dispute as it is common ground that by December 2020, at the latest, the children were spending three nights per fortnight with the father.
The father initiated further proceedings in this Court on 30 June 2022. At that point he sought orders for the children to spend time with him on four nights each fortnight as well as time during school holidays and on special occasions.
On 5 June 2023, the mother filed an amended response seeking orders for the children to live with her in Queensland.
In mid-2023, the purchase of the property in Town B Queensland by the mother and Mr L settled.
On 13 July 2023, orders were made by consent providing for the parenting arrangements which are currently in place.
Mr L moved to Town B in mid-2023.
Orders were made on 26 October 2023 which included trial directions and notations indicating that if the children remained in Victoria, the mother proposed that the current arrangements for time should continue, and the father sought orders for the children to spend four nights per fortnight with him. At that hearing, the parties were told by the judicial officer that they should not discuss the mother’s proposals for relocation with the children.
The final hearing of this matter took place before me on 8, 9, 10 May and 7 June 2024. Both parties were represented by Counsel.
MATERIAL RELIED UPON
At the hearing, the father said that he relied upon:
(a)his amended initiating application filed on 17 April 2024;
(b)his trial affidavit filed on 17 April 2024;
(c)his affidavit in reply filed on 24 April 2024;
(d)the affidavit of Ms G, the father’s partner, filed on 17 April 2024;
(e)the affidavit of Dr O, psychologist, filed on 20 February 2024;
(f)the family report dated 21 February 2024 prepared by Family Consultant Ms P; and
(g)his outline of case filed on 2 May 2024.
At the hearing, the mother said that she relied upon:
(a)her amended response filed on 5 June 2023;
(b)her trial affidavit filed on 17 April 2024;
(c)her affidavit in reply filed on 24 April 2024;
(d)the affidavit of Mr L, mother’s fiancé, filed on 17 April 2024;
(e)the affidavit of Ms Q, maternal grandmother, filed on 17 April 2024;
(f)the affidavit of Ms S, maternal aunt, filed on 17 April 2024;
(g)the affidavit of Ms R, psychologist, filed on 17 April 2024;
(h)the affidavit of Dr T, psychiatrist, filed on 17 April 2024; and
(i)her outline of case filed on 2 May 2024.
THE PARTIES’ POSITIONS
The parties agree that if the children live in Melbourne:
(a)they should attend N School (Z and Y) and M School (X, and Z and Y from year 7);
(b)they should spend approximately a week of the school term holidays with each parent; approximately equal amounts of the long summer holidays with each parent and time with the father on special days such as Easter, Father’s Day, and their birthdays; and
(c)changeover should take place at the children’s schools on school days and otherwise at the mother’s home at the start of the children’s time with the father, and at the father’s home at the end of that time.
The parties agree that if the children relocate to Queensland:
(a)they should be enrolled at C School (for Z and Y until the end of year 6) and E School (for X, and for Z and Y from year 7 onwards);
(b)they should spend time with the father in Victoria on one weekend each term, for nine nights during each term holiday, for a period of approximately three weeks during the long summer holidays and on special occasions such as Easter, the father’s birthday and Father’s Day, with the mother paying the costs of the children’s travel; and
(c)that the father should be able to elect to spend an additional weekend each term in Queensland with the children.
The parties also agree that the father be at liberty to contact the children by telephone or FaceTime, passports should be obtained for the children, international travel with the children be permitted provided sufficient notice and information is provided, and that there should be restraints in relation to communicating via the children, denigration and discussion about these proceedings in the children’s presence.
The father indicated in his trial material that he would seek orders for the children to live with him if the mother relocated to Queensland and the children remained in Melbourne. At the start of the trial, his Counsel confirmed that his primary proposal was for the children to remain in Melbourne and to spend equal time with the parties.
Counsel for the mother confirmed that if I do not make orders for the children to live in Queensland, the mother would remain in Victoria and would seek orders for them to live with her and spend time with the father on a similar basis to the current arrangements. Because it was provided only in answer to my query as to her alternate position, I do not treat that position as a proposal of the mother. It is rather a concession as to the steps she would take to ensure that she can continue to provide primary care for the children if I do not accept her proposal that they live in Queensland.
On that basis, Counsel for the father conceded that there is no need for me to consider making a coercive order requiring the mother to remain in Victoria, or for me to consider the father’s proposal that the children live with him if the mother is living in Queensland.
As the father seeks orders for equal time if the children remain in Melbourne, I need to consider the benefits and disadvantages of that proposal for the children as well as the capacity of the parents to care for them.
The primary issues for the Court to consider therefore are:
(a)whether the children should live in the primary care of the mother or spend equal time with each parent;
(b)whether the children should live in Queensland or in Melbourne;
(c)whether decisions about major long-term medical and health issues should be made by the parents jointly or by the mother on her own, and ancillary orders for the provision of information about medical matters; and
(d)the timing and configuration of time with each parent during school holidays and on special days.
At the start of the final hearing, I asked both parties to clarify the orders that they sought, noting in particular that the orders sought by the father at the start of the trial were difficult to follow in relation to the time to be spent with each parent. The orders sought by the father were amended on a number of occasions throughout the hearing.
THE EVIDENCE
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
Some portions of the trial were conducted via Microsoft Teams. There were no technical issues that affected those parts of the trial. I am satisfied I was sufficiently able to hear and assess the evidence, and that each of the participants in the hearing was sufficiently able to participate.
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
The father
The father’s affidavits filed on 17 April and 24 April 2024 appear to focus more on his criticisms of the mother than on the interests of the children or his response to her allegations. His affidavit contains only critical comments about her, many of which are wholly irrelevant to the matters before me: for example, when alleging that the mother often went out at night he asserts that she went “drinking with her work colleagues who were several years younger than her”.
The father’s evidence during cross-examination displayed a similar focus. His hostility towards and contempt for the mother was palpable. Again, he took the opportunity to make gratuitously critical comments of no possible relevance to the children, for example in commenting that the mother does not respect property and that her car looked like “an absolute pigsty”.
On a number of occasions, he chose to speak about a different issue rather than answering the question put. He sought to make comments during my discussions with Counsel despite being advised by me that he should not do so. He impressed as struggling with his lack of control over the process of cross-examination.
He did make some admissions against interest, for example that he had once referred to the twins as “little cunts” but followed such admissions with exculpatory statements, such as that he was only “joking around”. His evidence was inconsistent with some aspects of the other evidence: for example he said in cross-examination that he had only put children in time out outside for one or two minutes but told Ms P he had done so for up to five minutes.
Overall, the father’s evidence, both in his affidavits and in cross-examination, appeared to be driven by his grievances against the mother rather than his concerns for the children. That assessment is consistent with the observation of Ms P who notes that his “narrative at interview was focused on the losses he believed he had suffered after the final separation in relation to the children”.
The mother
During cross-examination, the mother struggled at times to answer the question put, often providing answers that went beyond what was required to answer the question. She was however readily able to make admissions against her interest, for example that she and Mr L are currently living off her income alone.
The mother gave comprehensive answers to questions, about matters such her attempts to obtain a detailed assessment of X’s problems with literacy, which were consistent with her affidavits. Significantly, there was no trace of vitriol in her references to the father; she referred on a number of occasions to the children’s enjoyment of time with him. She impressed as focused on the needs of the children and as sincere in her effort to answer questions frankly and honestly. Her evidence was consistent with third party evidence such as the reports of Dr T and Ms R.
My observations of the mother are consistent with those of Ms P, who found her narrative coherent and detailed.
Credit findings
It is usually appropriate to avoid making adverse credit findings against litigants if the disposition of a case can legitimately be achieved otherwise. In parenting disputes such as this case, “adverse credit findings in this decision carry the inherent risk that, rather than bring an end to long-standing conflictual issues, they may be embraced as vindication for the pursuit of further conflict in the future”.[1] Findings in relation to credit should only be made where necessary to resolve the issues in dispute and where they are soundly based.[2]
[1] Carlson & Fluvium [2012] FamCA 32 at [165]-[169] (‘Carlson & Fluvium’) quoted with approval in Adamson & Adamson (2014) FLC 93-622 at [89]-[90] (‘Adamson’).
[2] Carlson & Fluvium at [168] quoted with approval in Adamson at [89]-[90].
This is not a case where general findings as to credit are necessary or appropriate. I deal with the reliability of the evidence of the parties as to specific issues, most notably family violence and my findings in that regard, later in these reasons.
Ms G – father’s partner
The father relied on the affidavit of Ms G filed on 17 April 2024. She was not required to attend for cross-examination and her evidence is therefore unchallenged.
Ms G deposes to using her experience as an educator to tutor X via a reading intervention program. She says also that her two younger children live with her 50 per cent of the time but does not provide details about the schedule for their time with her.
Dr O – the father’s psychologist
Dr O has provided psychological support for the father for about a year in 2017/2018 and again since early 2023. The father relied upon his affidavit filed on 20 April 2024 to which a letter dated 23 November 2018 addressed to a local Court is annexed.
Dr O was not required to attend for cross-examination and his evidence is therefore unchallenged. His report is discussed elsewhere in these reasons.
Ms Q – maternal grandmother
The mother relied on an affidavit of Ms Q filed on 17 April 2024. She attended Court for cross‑examination on 10 May 2024. Her evidence is discussed elsewhere in these reasons.
Ms S – maternal aunt
The mother relied on an affidavit of Ms S filed on 17 April 2024. She attended Court for cross‑examination on 10 May 2024. Her evidence is discussed elsewhere in these reasons.
Mr L – mother’s partner
The mother relied on an affidavit of Mr L filed on 17 April 2024. He attended Court for cross‑examination on 10 May 2024.
Mr L gave his evidence in a straightforward manner. He was not successfully challenged in cross-examination. I consider his evidence to be reliable.
Ms R – mother’s psychologist
The mother relied on an affidavit of Ms R filed on 17 April 2024. She was cross-examined via Microsoft Teams on 10 May 2024. Her evidence is discussed elsewhere in these reasons.
Dr T – mother’s psychiatrist
The mother relied on an affidavit of Dr T filed on 17 April 2024 to which a report dated 3 April 2024 was annexed. The father argued through his Counsel that the affidavit constituted inadmissible opinion evidence on the grounds that it was late-filed and that the mother had not complied with r.7.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) in seeking to rely upon it. After hearing submissions from both Counsel, I gave ex tempore reasons in relation to my decision that the report was admissible pursuant to the provisions of r.7.01(1)(a) of the Rules.
Dr T was cross-examined via Microsoft teams on 7 June 2024. Her evidence is discussed elsewhere in these reasons.
Ms P - the Family Consultant
Ms P prepared one report in these proceedings, dated 21 February 2024. She was cross‑examined by Microsoft Teams on 7 June 2024. Her evidence is discussed throughout these reasons.
The Court is under no obligation to accept the recommendations of a Family Consultant. Whilst the Court will usually attach significant weight to the evaluation of the Family Consultant, the Consultant does not have the same opportunity as the judge to observe the witnesses or to weigh and test the evidence.[3]
[3] In the Marriage of Hall [1979] FamCA 73 at [24], cited with approval in Andrew & Delaine [2009] FamCAFC 182.
Neither the basis for Ms P’s opinions nor her opinions themselves were successfully challenged in cross-examination. Her observations and evaluations were consistent with my own. I attach significant weight to her evidence.
PARENTING PROCEEDINGS – LEGAL PRINCIPLES
The objects of Part VII of the Family Law Act 1975 (“the Act”) are to ensure that the best interests of children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child of 20 November 1989.[4] My decision is guided by those objects.
[4] Family Law Act 1975 (Cth) s.60B.
In deciding whether to make a particular parenting order in relation to the children, I must regard the best interests of X, Z and Y as the paramount consideration.[5]
[5] Family Law Act 1975 (Cth) s 60CA.
Section 60CC(2) of the Act sets out the list of matters that the Court must consider in determining what is in the children's best interests. Those considerations now follow.
What arrangements would promote the safety of the child and each person who has care of the child.
The Act confirms that safety includes safety from family violence, abuse, neglect or other harm.[6] Family violence and abuse are defined in the Act as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful”.[7] Examples of such behaviour include assaults, repeated derogatory taunts, intentionally damaging property, unreasonably withholding financial support and preventing a family member from keeping connections with his or her family and friends.
[6] S. 60CC(2)(a).
[7] Family Law Act 1975, s 4AB(1).
The Explanatory Memorandum indicates further that “other harm” allows me to consider whether these children are affected by issues such as inter-parental conflict.[8]
[8] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 20 at [36].
“Safety” is not defined in the Act. I note that the Explanatory Memorandum to the Family Law Amendment Act2023 states that s.60B(a) of the Act is “intended to make it clear to all users of the Family Law Act that safety is a fundamental consideration when considering the best interests of the child.”[9] It goes on to state that Courts should consider “what arrangements would encourage or support a removal, reduction or avoidance of harm”.[10]
[9] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 18 at [17].
[10] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 19 at [30].
In considering these matters I must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child; and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.[11]
[11] Family Law Act 1975 (Cth) s.60CC(2A)
Mother’s allegations of family violence against the father

The mother alleges that the father has perpetrated family violence against her on many occasions since the relationship began. She does not allege that he has behaved in a physically or verbally abusive manner towards her since 2017, or that the children have been exposed to such behaviour since that time, or that the children are currently at risk of exposure to family violence. Such an assertion would in any event be inconsistent with her proposals for significant amounts of unsupervised time.
The mother says that what she asserts is a pattern of historical behaviour is relevant because it has left her suffering from post-traumatic stress disorder (“PTSD”) and wholly unable to collaborate or cooperate with the father to the extent that an order for joint decision making would require.
The father has alleged since the proceedings began not just that the allegations are false but that the mother has deliberately fabricated them for her own benefit. If that is the case, as Ms P opines, there is a risk that the children’s beliefs about the father will be manipulated, and they will see him as someone to be feared when there are no grounds for that fear. Ms P says, and I accept, that if that is the case, it would have implications for the children’s long term mental health.
Whether on the father’s case or the mother’s, the allegations are relevant to the matters before me although neither party contends that the other party represents an unacceptable risk to the children. For that reason, I will consider them in some detail.
The mother alleges that during the relationship the father verbally abused her for example by calling her a “fucking cunt”, and an “arsehole”, that he criticised her parenting, belittled her in social settings and threatened self-harm.
The mother’s specific allegations of verbal abuse were not challenged in cross-examination, save that it was put to her that she, too, used strong language during arguments. The father admits in his response affidavit to using strong language but denies that he has done so “for many years”. In cross-examination, he admitted that he had engaged in some of the alleged behaviour but denied others. I prefer the mother’s evidence to that of the father in relation to these allegations.
The father does not provide any particularised response to the majority of the family violence allegations. In response to some 15 detailed allegations of family violence, he provides a single blanket denial. He deposes that “the mother and I argued however it was not as the mother describes”. It is not clear to which of the allegations of the mother that sentence refers, or whether it is intended as a generic response to each of the allegations. He goes on to deny that he has threatened or physically abused the mother or the children but admits that he smacked X once when he was two or three years old. He says he believes that she made these allegations in 2017 at a time when the parties were negotiating their property settlement “to further her claim for a greater share of the property”.
The first allegation of physical abuse that the mother makes relates to an occasion when she was aged about 17. She says that she was in the car with the father, her sister, Ms S, and a friend of Ms S’s. She says that as her sister and the friend got out of the car, the father grabbed her round the neck and tried to strangle her. The mother’s account is consistent with that of Ms S. Both were cross-examined without any successful challenge to their evidence. The father provides no account of this incident in his reply affidavit. When cross-examined he denied any attempted strangulation but otherwise could not recall the incident. I prefer the mother’s evidence to that of the father.
The mother alleges that in about early 2009 the father held his fist at her and threatened to punch her when she was driving him home after dinner with friends. She says that he was drunk, and she felt unsafe, so she decided to drive to her parents’ home. She says that he started punching the windscreen and car window and then opened his door while the car was moving. She pulled over and he then got out of the car. Again, the father’s reply affidavit does not refer to this allegation. The mother was not cross-examined about it. In cross-examination, the father said that he might have been drunk on such an occasion, and that the parties might have been arguing, but otherwise denied the allegations. I prefer the evidence of the mother.
The mother says that in early 2013 she was driving from Town U to her parents’ home, with the father in the passenger seat and X in the rear seat. She says that the father had been drinking. She alleges that he shouted abuse at her for the whole of the car journey and threatened to punch her. She says that he then smashed the rear-view mirror off the inside of the windscreen with his fist, opened his car door and threatened to jump out of the car, and threatened self-harm. She says that she and X were terrified. The father’s reply affidavit does not refer to this allegation. The mother was not cross-examined about it. In cross-examination, the father said that he might have had some drinks, but was not drunk, and that whilst he might have raised his voice and been “assertive”, he did not yell.
This evidence was one of several occasions on which the father sought to deny the allegations by relying on distinctions which may have been evident to him, for example the distinction between ‘rage”, which he denied, and “frustration” to which he admitted. He displayed no understanding that whether his voice was raised in frustration or rage, his behaviour could have caused both the mother and X to be fearful. I prefer the evidence of the mother to that of the father in relation to this incident.
The mother alleges that on two occasions the father threatened to harm the children and then himself on at least two occasions, saying to her that she would have to “live with that for the rest of [her] life”. She says that on other occasions he threatened to harm her. She says that she told her mother about these threats.
That evidence is consistent with the evidence of Ms Q, who says that in about mid-2017 the mother told her that the father had threatened to harm her twice in recent months. The father denies ever making threats to harm in his affidavit and maintained that denial in cross‑examination. His Counsel did not cross-examine the mother or Ms Q about this issue. I prefer the evidence of the mother to that of the father in relation to this allegation.
The mother alleges that in about mid-2015, the father threw Z (then aged under two years) onto the couch. She says that he then threatened to drive his vehicle off the road at high speed. Again, the father’s reply affidavit does not refer to this allegation. He denied the alleged conduct when cross-examined. The mother was not cross-examined about it. I prefer the evidence of the mother to that of the father.
The mother says that in 2016, on an occasion when the twins were in their highchairs and were crying, the father shouted at them with his face close to theirs, saying things like “what the fuck is wrong with you” and “shut the fuck up”. She alleges that the father said to her that it was her fault that they were “like this” because she comforted them when they were upset. The father does not comment on this allegation in his affidavits. In cross-examination, he denied the alleged conduct but admitted that he had on other occasions told the mother that their behaviour was their fault. The mother was not challenged in relation to her evidence about this incident and I prefer it to that of the father.
The mother describes a number of incidents in 2017 including the following:
(a)An occasion when the father became angry with the mother, shouting and punching a hole in a door next to the mother’s head.
(b)Another occasion when the father became upset with Z, then aged three, and held him by the torso and directed his head towards the concrete driveway, stopping just short of hitting Z’s head on the ground. She says that the father then used excessive force to put Z in the car and yelled at him. She says that X witnessed this event and was “frozen”.
(c)In early 2017, the father became angry whilst the family were driving to the maternal aunt’s holiday house. The mother says that the father began driving erratically and threw an object out of the car window.
(d)In mid-2017, the father verbally abused the mother in the presence of the children including telling her to “fuck off” and “get fucked”. The mother alleges that he was also abusive to Z in mid-2017.
(e)In mid-2017, the father threatened the mother in the presence of the children, saying that he would be “financially screwed” if she left him and he would “have to kill [her]”.
(f)In mid-2017, the father became angry with Z and yelled at him as he put him in his car seat. The mother alleges that the father then placed his hand over Z’s face and pushed his head into the car seat with force. The mother says that she told the father to stop and that what he was doing was child abuse.
(g)The mother alleges that in mid-2017, the father smacked Y on the head and also smacked X. The mother says that she told the father not to smack the children and he replied that he was “sick of [her] political correctness”.
(h)The mother says that in mid-2017, she asked the father to put away a hammer when she was tidying up. She says that he picked it up and made a hammering motion towards her head and said “imagine if I smashed your head in with this” and “I wouldn’t do that because it would be too gruesome”. She says that she became distressed, and the father laughed.
The father did not address any of these allegations in his reply affidavit save for the blanket denial discussed above. No specific challenge was put to the mother during cross-examination save that she had invented all allegations of physical force and threats directed to her or the children. The father was cross-examined in detail about each incident. In relation to most, he said that his conduct had been exaggerated, for example that he had had to use some force to put the children in their car seats, but not the degree described by the mother. He also said that he might have been playfighting with Y when the mother accused him of smacking him and admitted that he had accused the mother on another occasion of “political correctness” because his view was that children “need a level of discipline” and “can’t always get their own way”.
Relevantly in relation to the incident in early 2017, the father conceded that he had “hooked” an item belonging to the mother out of the car window whilst driving because he was “unhappy” that it had damaged his car. He went onto volunteer with some force that the mother does not respect property and that her car was “an absolute pigsty”, but he kept his car clean. His contempt for the mother was palpable during this evidence.
The mother says that in late 2017 the father entered the family home, refused to leave, pushed past her sister, and then shoved the mother into the doors of a cupboard in the bedroom. This evidence is consistent with the account of Ms S, who says that the father also told the mother that he was going to change the locks while she was gone and that this incident happened in the presence of the children.
The father deposes to going to the family home on this occasion to collect clothing and says that Ms S invited him in. He says that as he tried to take a photo of the bedroom, the mother hit him and grabbed his arm. He denies shoving the mother.
Both the mother and Ms S were cross-examined about this incident as was the father. The father maintained his denial but conceded that he had asked why he couldn’t change the locks on the mother as she had done to him. He admitted that the children were present during this incident. Neither the evidence of the mother or Ms S was successfully challenged during cross‑examination, and I prefer it to that of the father.
The father says that the mother made a false allegation to police in late 2018 in reporting that he had breached an intervention order by going to her front door. He says that he was not in breach as the parties had agreed in writing that he was able to do so at changeover. He says that he was arrested but that after an investigation no charges were pressed. The mother says that although the father had previously come to her door to collect and return the children, the parenting plan dated 6 February 2018 provided that the father would say goodbye to the children at his car and drop their belongings at the top of the stairs. The parenting plan, the contents of which supports the mother’s evidence, is annexed to her reply affidavit. I prefer the evidence of the mother to that of the father in this regard.
The evidence of the mother, her sister and the maternal grandmother is that the father drank to excess during the relationship, that on a number of occasions he was found “passed out” and unresponsive after drinking and that his angry and aggressive behaviour was often fuelled by alcohol. The father admitted drinking to excess at times when he was a teenager but denied that he was drunk during any of the alleged incidents of family violence or to the point of passing out. The mother does not allege that the father’s current use of alcohol represents a risk to the children and so I do not need to scrutinise that evidence in detail.
The father asks me to attach weight to the report of Dr O dated 23 November 2018, and in particular, Dr O’s reference to his notes indicating that he carried out a risk assessment and that the mother “denied any violence by [the father] towards her” and said that her primary concern was the children’s welfare. The father says that reference should dilute the weight I attach to the allegations of family violence.
I note that Dr O records also that the mother told him that she was seeking his assistance because of the father’s anger towards her and their children. The mother said in cross‑examination that she told Dr O that she was not worried about family violence and that she just wanted the father “to be better for [the] kids”.
Ms P opines that caution should be adopted when interpreting what the mother said to Dr O and refers in that regard to the social science research indicating the obstacles which may prevent victim-survivors from disclosing family violence at the time of separation. I accept that evidence.
Further caution is required in my assessment because of the extent to which Dr O’s view of the parties’ behaviour is informed by and aligned with that of the father. I note also that Dr O says that the father was an “honest man who acts with integrity” and he appears to have accepted the father’s description of the mother behaving in a “deceptive, obstructive, manipulative and dishonest” manner. Those observations are not consistent with my assessment of the mother.
In those circumstances, I attach minimal weight to Dr O’s record of his conversation with the mother.
The mother alleged in her intervention order application dated late 2017 that the father had threatened self-harm in mid-2017. The father says that her subsequent conduct was inconsistent with that allegation. The mother conceded that she invited him to her parents’ home in mid‑2017 where he spent unsupervised time with the children. The father argued through his Counsel that I should infer from the mother’s conduct in permitting unsupervised time that her allegation was false. I reject that submission because there are legitimate reasons for which the mother might have chosen to invite the father to spend time with the children immediately after such a threat; she may have felt under pressure to allow him to see the children or concluded that he did not intend to carry out this threat.
As far as the family violence allegations are concerned, I prefer the account of the mother to that of the father for the reasons already discussed and for the following reasons:
(a)The mother’s allegations are particularised and detailed.
(b)Her allegations are corroborated in relation to some incidents by her mother and sister who gave detailed and contextualised accounts, and also by the decision of DFFH in 2017 to assess that the father was responsible for harm consisting of family violence.
(c)I find it inherently improbable that, as the father asserts, the maternal grandmother and aunt would fabricate evidence which corroborates that of the mother simply because they are “looking after each other”.
(d)The father’s evidence in his affidavit was sparse and consisted mainly of unparticularised denials.
(e)Some concessions made by the father, for example in relation to swearing at the mother at a family gathering, and throwing objects out of a moving car, indicate that he did engage in the sort of conduct which the mother alleges.
(f)The defensive manner in which the father gave evidence during cross-examination indicated his lack of insight into the likely impact of his behaviour on the mother and the children. For example, in insisting that “yelling” was not the same as raising his voice, and seeking to distinguish between “frustration” which he admitted to displaying versus anger, which he did not, he impressed as being likely to consider it legitimate to raise his voice when frustrated without understanding the fear and distress which might result for the mother and children.
(g)If the evidence of the mother and her relatives is correct about the father’s excessive alcohol use, his memory of some of the relevant events may be impaired.
Father’s allegations of family violence against the mother
The father alleges in his reply affidavit that the mother perpetrated family violence in late 2017 when he says she became “extremely aggressive”, hit him and grabbed his arm. Relevantly, he makes no such allegation in his trial affidavit filed contemporaneously with that of the mother.
This pattern is similar to the parties’ interactions with Ms P, to whom the father alleged that the mother had hit him physically and had used family violence by seeking to alienate him from the children. Ms P opines:
[The father’s] allegations that [the mother] used family violence was not presented as a pattern of family violence, provided little context or detail and was offered immediately upon his denial of using family violence when he was asked about the allegations that he had used a pattern of family violence mainly associated with alcohol abuse. There should be caution that [the father] may have used (deny, attack, reverse victim and offender) DARVO which is a strategy that a person who uses family violence may apply when being held accountable.
Ms P’s view is consistent with my assessment that the father’s allegations are retaliatory, and I reject them.
Evaluation
I am satisfied that the father has perpetrated family violence against the mother. I am satisfied that on some occasions the father has perpetrated family violence against the children in the form of physical force and verbal abuse and that on other occasions the children have been exposed to family violence by witnessing the father’s violent and threatening conduct to the mother.
Neither party suggests that unsupervised time with the other party represents an unacceptable risk of harm to the children. However, my findings as to family violence support the opinions expressed by Dr T and Ms R about the aetiology of the mother’s PTSD. It is also possible that the vulnerabilities of X and Z may have been caused or exacerbated by their exposure to family violence although the evidence does not support a finding in that regard. The father’s conduct and his lack of insight into its effect on the children is relevant to his understanding of their emotional and psychological needs. It is relevant also to my decision as to the manner in which decisions about major long-term issues for the children should be decided.

In the family report, Ms P says:
[The mother’s] diagnosis of PTSD, her narrative about the family violence and the indicators of the children’s lived experience of family violence were provided in a coherent manner suggestive that there had been a pattern of family violence towards her and the children. It would be an elaborate fabrication, if, as [the father] stated, those accounts are fabrications. While the family violence does not appear to be ongoing in highly threatening ways, a protective parenting choice (if the Court finds it likely there was significant family violence) would be to support [the mother] to feel emotionally supported so that she can continue to support the children emotionally and physically.
I accept that evaluation which is consistent with my own.
Views expressed by the children
The Explanatory Memorandum indicates that I have a discretion as to how I consider the views of the children in the light of their particular circumstances, and as to the weight which I attach to those views.[12]
[12] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 21 at [37].
Ms P spoke to all of the children about their views.
She described X as quiet and appearing to be at about expected maturity. He spoke positively about this mother’s caring nature, and the hands-on things he does with his father and Mr L. He had nothing negative to say about either parent or their partners. He said that the current parenting arrangements work reasonably well save that he has to take his big sport bag to school on Monday so that he has what he needs for the next two days. X said that if he had to relocate he would find it difficult to make new friends. He said he would be “the most upset” if there was a week about arrangement because of the distance from his school and friends when at his father’s house.
Ms P was cross-examined by Counsel for the father about her interpretation of X’s wishes and, in particular, his dislike of the additional travel time from the father’s house to his school. It was put to her that the journey of some 30 minutes was not arduous, and that X’s expressed wishes in that regard should not attract weight. Ms P said that she raised the issue because it was raised by X, and that she interpreted it as a possible indication that he would prefer to have one primary home than travel between two households.
Ms P notes that Y appeared open and forthcoming. He too was able to identify positive aspects of both parents and their partners and there was nothing that he disliked about them. Y said that he would be sad if he had to relocate and change schools, and that his father would be upset if the children moved to Queensland because he believes that his father wants to spend more time with them.
Ms P notes that Y spoke only about physical aspects rather than emotional aspects of the parents’ households, and that he denied knowing whether the parents like each other.
Ms P assessed Z as more outspoken than Y, and at or possibly above expected maturity in relation to emotional literacy. Like the other children, Z identified positives but no negatives in relation to both parents and their partners. Z said he had no idea how he would feel about moving to Queensland because he has only holidayed and never lived there. Like Y, he thought his father would be sad if the children lived interstate because the father wants more time with them. He said he would struggle with a week about arrangement because he would miss his mother and is used to living with her. He believes that his parents do not like each other.
Ms P notes that all of the children appeared to be aware of the father’s wishes to have more time with them and that this may have influenced their presentation at interview. Ms P opines that some weight should be attached to the expressed wishes of all three children to remain in the primary care of the mother, given that all of them were assessed to be at least the expected level of maturity for their age.
In relation to X’s views about relocation, she states:
While [X] has expressed wishes for his living circumstances to remain as they are currently and his wishes should carry some weight, the situation for the family is complex and the adults will need to make the decisions taking into account all the complexities. Noted is that mature executive function is required to be able to make complex decisions associated with planning and future outcomes.
In relation to Z and Y she opines:
The twins do not have the cognitive developmental capacity to be able to make decisions about complex family needs. They will require the adults to make those decisions and to support their understanding of how the decisions were made by using an authoritative parenting style.
The Full Court has opined that:
There are many factors that may go to the weight that should be given to the wishes of children and these will vary from case to case and it is undesirable and indeed impossible to catalogue or confine them in the manner suggested. Ultimately it is a process of intuitive synthesis on the part of any trial judge weighing up all the evidence relevant to the wishes of the children and applying it in a common sense way as one of the factors in the overall assessment of the children's best interests.[13]
[13] R and R: Children’s Wishes [2000] FamCA 43 at [54].
I am satisfied that X and Z like their schools and would prefer not to leave them. I am satisfied also that all three children wish to remain living primarily with the mother. I attach weight to those views and the other views expressed by the children.
The developmental, psychological, emotional and cultural needs of the children
The Explanatory Memorandum indicates that this section is intended to allow me to consider a broad range of evidence about the children’s needs including their daily routine.[14]
[14] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 21 at [41].
The parties agree that X and Z have special needs.
The parents agree that X experienced difficulties with learning, particularly literacy, during primary school. The mother tendered a document showing X’s NAPLAN results in year 7 in 2023 which the father conceded during cross-examination showed that he had significant issues with language, writing and spelling. The subsequent dispute between the parents as to further assessment of X is considered elsewhere in these reasons.
The parties agree also that Z has significant behavioural problems which mean that he struggles to regulate his emotions at school. At school he receives support from a teacher’s aide, an occupational therapist, and the school counsellor.
The parents have very different explanations for Z’s behavioural problems.
In his trial affidavit the father says that Dr V, the children’s paediatrician, told him that Z has “learned behaviours.” He confirmed in cross-examination that he understood this to mean that Z’s behaviour was the result of being spoiled. He says in his affidavit that Z enjoys the attention he receives when he behaves badly.
He says also that Z suffered from separation anxiety when dropped at school by the mother but not by him. He says that the mother encourages the children’s dependence upon her, and that Z’s school is “wary” of dealing with her because she “is adamant that because she is a [health care worker], she knows what is best for the children.”
The father annexes minutes from a Student Support Group meeting at Z’s school in early 2024 to his affidavit. The parties agree that the school offers separate meetings to the parents and that the father, but not the mother, attended this meeting. The minutes do not suggest that Z’s dysregulation at the start of the day occurred more often when dropped by the mother, nor do they refer to the mother insisting that she knows best for the children. They do record the very different perspectives of the parents, with the father saying that often Z “is playing a game and pushing boundaries” and the school noting the mother’s view that the behaviours are a response to trauma. The minutes go on to record:
The complete opposite understanding and approach (and expectations from [the father] and [the mother]) is at the heart of these issues as the school feels caught in the middle so there is an element of inconsistency.
The mother agrees that Z has found it difficult to separate from her at school and that his dysregulation has had a significant impact on his learning and engagement at school. She says Z has told her that he gets upset because he is worried about having to go to the father’s house after school. She says that although since 2023 he has begun to separate more easily from her, there were a number of occasions in 2023 when he was refusing to engage and running away including running out of the school grounds. The mother says that she has asked for psychological support for Z via the school and that after some delays he was provided with a private counsellor starting in late 2023 and a private occupational therapist in early 2024.
There is no evidence from a court-appointed expert which would support findings as to the aetiology of X or Z’s difficulties. Neither party provided submissions as to how those difficulties should affect my approach to the matters in dispute. In those circumstances, I am unable to make any findings in that regard. The impact of the dispute between the parents on this topic is relevant to my determination about decision-making for the children.
The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs of the child
The Explanatory Memorandum indicates that the consideration of “capacity” is “intended to allow broad judicial discretion to consider a range of matters to assess the ability of each person who has, or is proposed to have, parental responsibility, to provide for the individual needs of each child.”[15] Those matters may include that person’s history of care of the children, the nature of the children’s relationship with that person and that person’s attitude to the children and the responsibilities of parenthood.[16]
[15] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 21 at [43].
[16] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) 22 at [43].
The father’s parenting capacity
The observations by Ms P of the children with the father indicate that the children “seemed relaxed and comfortable” with him. That is consistent with the evidence of both parents, the mother having deposed and confirmed in cross-examination that the children love the father and enjoy their time in his care. The mother told Ms P that she is no longer concerned about inappropriate discipline and that the children are now happy to spend time with the father.
The mother told Ms P however that there had been significant historical problems in the children’s relationship with the father, referring to the occasions of family violence in respect of which I have made findings, and also to occasions when she considered that the father’s approach to discipline had been inappropriately harsh. She deposes in her affidavit and described to Ms P being told by the children in mid-2020 that the father put them in “time out” outside the house after dark which they found frightening. She annexed to her affidavit a copy of an email which she sent to the father in mid-2020 saying that he needed to stop punishing the children in this fashion.
The father denies in his affidavit that he locked the children outside at nighttime. In cross‑examination, he sought to distinguish his conduct from that alleged by the mother by conceding that he had put the children outside but stating that the door was closed rather than locked. He said the children had been outside for “literally not more than one or two minutes” but told Ms P that he had placed the children outside the home for a period consistent with their age, such as five minutes for a five-year-old. He maintained to Ms P that he had done so at dusk but not after dark.
Ms P noted that Z appeared to find it difficult to recall what disciplinary measures are used in his father’s house. She noted that “he appeared to shut down immediately when the question was asked”. Y said that discipline is similar in both homes, involving a “little talk”. Ms P considers that there were indicators that he has a “freeze response” when asked a challenging question. Ms P records being told by X that both parents remove privileges as a disciplinary measure and that this was a change from past discipline at the father’s house when he had been put outside in the dark and had been scared. She was not challenged in relation to this evidence.
I am satisfied that the father placed the children outside as a form of discipline at a time of day when it was sufficiently dark for them to find the experience upsetting. That finding is based on the unchallenged evidence of Ms P, supported by the mother’s evidence of the children’s accounts to her in 2020.
Ms P notes that that the father did not accept responsibility that this behaviour may have contributed to the children’s separation anxiety, for which he blamed the mother, suggesting that she encouraged the children to cling to her at changeovers.
I infer from that evidence that the father sees himself as compensating for what he considers to be the over-indulgent approach of the mother and the maternal family. That inference is further supported by the father’s evidence in cross-examination about his approach to discipline, which he described as a choice between ‘soft parenting” or “accommodating type parenting” on the one hand and “firm parenting” or “hard line” on the other, going on to say that “his boys”, in his experience, need direction. In cross-examination, he said that he had taken the mother’s comments to him into account in relation to discipline and had ceased to put the children in time out. That is reassuring, but his lack of insight into the children’s experience of being shut outside at dusk or nighttime is concerning.
The father’s unrelenting hostility towards the mother, his suspicion about her motives in the context of proposals for the children, and his view that he needs to compensate for what he considers to be the deficiencies in her parenting of the children, all present problems in terms of his capacity to support the children’s relationship with the mother. They are also difficult to reconcile with his willingness for the children to live in her primary care for the seven years that have elapsed since separation.
The mother’s parenting capacity
The father alleges that the mother has historically struggled to meet the needs of the children. He alleges that after the twins were born the family had the help of nannies, an au pair and relatives “because the mother was not coping with caring for the children”. At this point, the mother was caring for a toddler and premature twins. The fact that she required assistance in doing so is not one for which she can or should be criticised.
The father makes further criticisms of the mother in his Case Outline:
The Father argues that the Mother is using her knowledge of the family law system through her work as a [health care worker] to create a narrative of him that further restricts his access to the children.
The Mother has caused the children to suffer from separation anxiety in the past. The Father also contends that the Mother has manipulated the children and exposed them to adult issues in the parental dispute.
The evidence does not support these allegations. The father’s allegation that the mother has restricted his time with the children, taken at its highest, is that she was unwilling to agree to a further night with the children when he initiated these proceedings in June 2022. The mother disputes that allegation and was not challenged in that regard. It is clear that the mother has supported frequent and regular time including overnight time since the parties separated in 2017.
There is no evidence to support the suggestion that the mother has induced separation anxiety in the children, nor that she has manipulated them. As discussed elsewhere in these reasons, the assessment of Ms P suggests that the children had been exposed to the father’s views rather than those of the mother.
Ms P observed the mother with the children and noted that she was “warm and affectionate” with them and divided her attention well between them. The mother told Ms P she was “relieved that the children are now happy to spend time with the father”. This is consistent with her affidavit and her evidence in cross-examination, in which she confirmed that the children love their father and enjoy their time and their activities with him.
Ms P notes that
[The mother] appeared highly attuned to the children’s needs and of balancing, as much as might be possible, individual children’s needs with her capacity to provide and to be emotionally supported.
The assessment of Ms P is consistent with my observation of the mother and my evaluation of the evidence before me, and I accept it. On balance, I consider that the mother’s capacity to parent the children is greater than that of the father.
The benefit to X, Z and Y of being able to have a relationship with their parents and other people who are significant to the child where it is safe to do so
The Explanatory Memorandum states:
This consideration recognises the importance of parental relationships, and relationships with other people who are significant to the child (such as grandparents or members of a broader kinship group) to a child’s wellbeing. Where appropriate and safe, parenting orders that ensure children benefit from a close and nurturing relationship with their parents should be made.
No one particular arrangement will work for all children or all families, whose needs are diverse and will change over time. However, where safe and appropriate, most children benefit from spending time with their parents not only at the weekends and in school holidays, but also during the school week, and will also benefit from allowing each parent to be involved in the child’s daily routine and occasions and events that are of particular significance to the child.[17]
[17] Explanatory Memorandum, Family Law Amendment Bill 2023 (Cth) at [45] – [46].
It is evident from the observations of Ms P that the children benefit from the strong and loving relationship that they have with the mother. The father proposes an equal time arrangement if the children remain in Victoria. It follows from that proposal that he accepts the benefit the children derive from the relationship with the mother.
The children also have a loving relationship with the father. The mother conceded as much in cross-examination when she referred to the children being happy to see him, and by virtue of her proposals for time whether the children are living in Melbourne or Town B.
It is convenient to consider here the impact of the proposed relocation on the benefit which the children derive from the relationship both with the father and with relatives who live in Victoria. The father asks me to find that the children will benefit from the father being able to continue to be involved in the children’s weekly routine including taking them to and from school and attending extra- curricular activities.
Counsel for the father put to Ms P that these regular and routine interactions are required to “form and maintain parental bonds”. Ms P opined that these children have already formed parental bonds and are of an age where they can maintain the parental relationship with less regular contact, as long as they spend enough time in person with the father and are able to use technology as another means of maintaining the relationship.
Inevitably, if the children live in Queensland and the father remains in Melbourne, their relationship would lack the richness that comes from living in the same city, more frequent interactions and the father’s greater ability to be involved in their educational, sporting and social activities. However, I accept the evidence of Ms P that with adequate face to face visits, and video calls between those visits, the children’s relationship with the father can be supported in a manner which may not be optimal but will enable the parental bond to be maintained.

The father confirmed in cross-examination that in March 2022 the mother sent him an email proposing that the assessment be conducted by Ms BB in mid-2022. The father accepted that initially he did not reply to the email and that the mother sent him a further email in early 2022. He confirmed that he sent her a reply in which he said that he was “exploring [his] options” and would advise her of his position prior to the proposed appointment dates.
When he was asked in cross-examination what “options” he was exploring, the father referred to another assessment which was already in progress, namely a cognitive assessment from an educational psychologist which resulted in a report released in mid-2022. He said that he had been advised by staff at X’s school and by his paediatrician that the existing assessments of X were adequate. He conceded however that the cognitive assessment failed to identify the reasons for X’s difficulties or to provide a diagnosis.
He accepted that the mother had contacted him again on seven occasions in 2023 to request his consent to the proposed neuropsychological assessment. He accepted that he had sent an email to the mother in mid-2023 saying that he was exploring a range of options and would share them at the hearing listed on 26 October 2023. He conceded that at the hearing he told the Judge that he had not agreed to the neuropsychological assessment because he felt that the mother had ulterior motives for seeking it. When asked what he meant by that, he referred to the mother having obtained NDIS funding for Z and Y as a result of which she received a carers’ allowance.
The father did eventually agree to the neuropsychological assessment of X. The resulting report was not available at the time of the final hearing although the testing is complete. It follows from the father’s consent to the proposed assessment that he considers it of at least potential benefit to X. He confirmed in cross-examination that he would comply with the recommendations of the report once available. The evidence does not indicate precisely when the father consented to the assessment but there appears to have been a delay of approximately two years between the mother’s proposal in March 2022 and the father’s consent to the assessment.
X and Z’s special needs mean that additional major long-term decisions about psychological and medical support will need to be made, as well as the normal range of health-related decisions. Because of those special needs, it is particularly important that there is no delay in providing appropriate assessment, treatment, or support of the kind that occurred in relation to the assessment of X.
I have found that the father has perpetrated significant family violence. I am satisfied that the mother is more vulnerable as a result of her PTSD diagnosis. I have found that in the past the father has at times lacked insight into the needs of the children and that his approach to X’s special needs has been tainted by his hostility towards the mother. The parents have no trust in one another and their communication is replete with conflict.
In that atmosphere of hostility and distrust, imposing an obligation to consult and make genuine effort to make joint decisions is likely to lead to protracted and conflictual communication as it did in relation to the neuropsychological assessment of X. That would not be in the best interests of the children. The children will remain in the primary care of the mother pursuant to my orders and I am satisfied that she will identify and facilitate appropriate treatment and support for them.
In spite of the father’s distrust of the mother, he confirmed in cross-examination that the mother would identify appropriate treating professionals for the children if she and they live in Queensland and that she would follow their recommendations. I share his confidence in that regard which as Ms P opines is consistent with the evidence of her approach to the children’s medical and psychological needs:
[Ms Pariser] appeared to be a loving and protective parent who has supported the children’s medical and educational wellbeing by engaging with medical and allied health professionals and appropriate schools to assess and provide supports according to the children’s needs.
The parties agree that they should make joint decisions in relation to major long-term issues save in relation to medical and allied health matters. The evidence suggests that they have been able to do so in relation to the choice of schools for the children.
I will therefore make the orders for the mother to make sole decisions in relation to medical and allied matters and the parties to make joint decisions in relation to other major long-term issues.
ORDERS TO BE MADE
Section 65D of the Act directs the Court to make such parenting orders as it thinks proper. As to what is “proper”, and how the Court’s discretion is to be exercised, the Full Court of the has said:
A discretionary judgment concerning parenting orders necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition.[29]
[29] Grella & Jamieson [2017] FamCAFC 21 at [18].
Whilst I must scrutinise the competing proposals of each party in accordance with the legislative pathway, I am not bound by those proposals in considering what is in the children’s best interests.[30]
[30] U v U [2002] HCA 36.
In considering the father’s proposal for the children to spend equal time with both parents, I have regard to my findings that the father has at times displayed a lack of insight into the needs of the children, and that the mother’s capacity to understand and meet the needs of the children is greater than his. I attach weight to the expressed wishes of the children to remain in the primary care of the mother. I accept the view expressed by Ms P that more time with the father than provided for under the current parenting arrangements would benefit the children only if I considered that the children are at risk in the care of the mother; I do not consider that they are at risk in her care. I have regard also to the poor state of the co-parenting relationship between these parents and the difficulties they are likely to experience in managing the degree of cooperation required for an equal time arrangement.
I am satisfied that it is in the best interests of the children to remain in the primary care of the mother. I am supported in that view by the conduct of the father since separation, in that he has been content for the children to live with the mother and spend two or three nights per fortnight with him. He did not seek to alter that arrangement until the mother indicated a wish to relocate. I consider that his proposal for equal time is motivated in part by retaliation.
My findings as to the proposed relocation are discussed elsewhere in these reasons. I order that the children live with the mother in Town B.
Somewhat unusually, the amount of time with the father in Melbourne proposed by the mother if the children live in Queensland is greater than that sought by father. For example, the mother proposes one weekend in each term from Wednesday to Sunday, but the father seeks time from Thursday to Sunday. This was explained by him in cross-examination by reference to children taking time off school and also because he would have to take an additional day of leave from work. In respect of time during school term holidays, the mother proposed that time conclude on Sunday, while the father proposed that time conclude on Saturday, which he says will allow the children time “to settle back in” before returning to school.
There is little utility in making orders for the children to spend more time with the father than he wishes to have. I will therefore make orders for the duration sought by the father.
The father seeks orders which specify the time at which time in Melbourne should begin, generally commencing at 9 am. The mother proposes that the time should commence and conclude at such times as are reasonable to facilitate the children’s travel. Neither party made submissions about this aspect of the orders. Doing the best I can it is difficult to see how the children could leave Town B in order to arrive in Melbourne at 9 am. The mother is bearing the responsibility for arranging and paying for the children’s travel and that of an accompanying adult. I am satisfied that she will make arrangements which support rather than limit the children’s time and I therefore make the orders that she seeks in relation to timing.
Neither party advanced a principled reason as to why the weekend of time during each school term should take place during the fourth week (as the mother seeks) or the fifth week (as the father seeks). I will order that that time take place during the fifth week in accordance with the father’s proposals. I will also make orders for time over the Easter weekend and during the term holidays which comply with the slightly shorter duration sought by the father.
The amount of time which each party proposes during the long summer holidays is similar, but the configuration sought differs. The mother proposes two blocks of time: the second weekend in December and a three-week block starting on either 24 or 26 December in alternate years. She proposes an additional weekend on or immediately after the father’s birthday.
The father seeks a three-week block from 22 December (in odd numbered years) or a two-and-a-half-week block from 26 December (in even numbered years), plus a four-night block over his birthday. The mother says that the gazetted school holidays in Queensland sometimes end before or during the period sought by the father and was not challenged in this regard. For that reason I prefer her proposal, which provides for an almost identical amount of time but will ensure that the children do not miss the first few days of the new school year.
In terms of the time that the father is able to elect to spend in Queensland with the children, the parties disagree as to the notice that he should provide. In my assessment, three weeks is a reasonable period of time in which the mother can make arrangements for the children to be able to spend the weekend with the father and I so order.
The orders sought by the mother in relation to the timing of flights, and her proposal that the father bear responsibility for making arrangements for the children’s return if they do not board the flights booked for them at the end of time with the father, were not the subject of challenge by the father or submissions by his Counsel. They are appropriate and I so order.
In terms of communication with the children, the father seeks to be at liberty to contact the children at all reasonable times via X’s mobile. No evidence was adduced by other party as to the merits of their proposals and no questions were put to Ms P in that regard. I do not consider that X and his mobile should be used as a vehicle for the father to communicate with the other children and will order that phone calls take place twice a week until all of the children have their own phones, at which point the father may communicate with them at all reasonable times.
The parties sought similar but slightly different orders in relation to the provision of medical and educational information. Those sought by the father required the parties “to keep each other advised and mutually involved in any medical or health issues”. Orders in those terms are in my assessment unenforceable, vague and likely to lead to further disputes between the parties. I therefore make orders in the terms sought by the mother.
The parties also sought similar but slightly different orders in relation to international travel and holding the children’s passports. As the mother is the primary carer of the children I consider it appropriate for her to hold the passports and it is appropriate for her to release them to the father no less than 30 days before international travel.
For all of the foregoing reasons, I make the orders as are set out.
COSTS
The mother’s costs of the hearing on 30 April 2024 were reserved and fixed in the sum of $3,500. The mother says that the circumstances justify the making of a costs order and seeks an order that he pay those costs. The father opposes the proposed costs order. My decision is governed by the provisions of s.117 of the Act.
Both parties have filed financial statements.
The father deposes to:
(a)weekly income of $2,694, from his employment as a professional;
(b)weekly expenses of $2,651, comprising mortgage repayments, insurance premiums, child support and general living expenses;
(c)assets worth approximately $1,431,761, comprising real property, three motor vehicles and modest savings;
(d)liabilities in the sum of $422,174, comprising a mortgage and credit card debt; and
(e)superannuation in the sum of $376,934.
The mother deposes to:
(a)weekly income of $2,365[31], comprising $1,756 from her employment as a health care worker, with the balance derived from government benefits and child support;
(b)weekly expenses of $1,916, comprising mortgage repayments, insurance premiums and general living expenses;
(c)assets worth approximately $1,246,209, comprising real property in Victoria and Queensland, $273,389 in funds held in banks and a motor vehicle;
(d)liabilities in the sum of $412,928, comprising a mortgage legal fee and outstanding neuropsychological assessment fees; and
(e)superannuation in the sum of $322,941.
[31] At Part O of her financial statement filed on 22 May 2024, the mother indicates that her current gross weekly salary of $1,756 is a result of working additional hours on a specific project, and as of 3 June 2024, her weekly gross income will reduce to $1,216.
The father is in receipt of legal aid in the form of representation via the Victoria Legal Aid Commonwealth Family Violence and Cross-Examination of Parties Scheme. The mother has paid for her representation.
The father was unrepresented until 5 April 2024, when his current solicitors filed a notice of address for service. His application in a proceeding seeking the appointment of an independent children’s lawyer was not filed until 22 April, just over two weeks before the final hearing. The mother argues that the application was misconceived as it was based on the argument that an independent children’s lawyer should be appointed to remedy perceived deficiencies in the assessment of Ms P.
The father conceded that the application was wholly unsuccessful but sought to argue that although he is the applicant in the proceedings, the mother is the person seeking a relocation, and that the application of the father for the appointment of an independent children’s lawyer was not intended to benefit himself but was made for the benefit of the children.
The relevance of those arguments within the structure of s.117 of the Act is not clear. The relevance of who is the real applicant is also unclear. In my assessment, the father’s application was made in order to strengthen his case in terms of his opposition to the proposed relocation.
I accept the mother’s submission that the application was misconceived and that she incurred costs as a result and that the circumstances justify the making of a costs order.
I will accordingly order that the father pay the mother’s costs fixed in the sum of $3,500.

I certify that the preceding two hundred and thirty-five (235) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Burt.
Associate:
Dated: 27 June 2024
APPENDEIX A
“Regular font” orders refer to orders proposed by the mother.
“Italicised font” orders refer to orders proposed by the father.
“Underlined font” refers to orders agreed to by both parties.
1.All previous orders be discharged.
2.The mother make decisions relating to medical, psychological or allied health assessment and treatment for the children X born in 2010, Y born in 2013 and Z born in 2013 (“the children”) or any of them (“the treatment”), providing that:
(a)The mother shall provide the father with not less than 28 days’ notice of the proposed treatment, inclusive of the name and contact details of the proposed treater and copies of any reports or referrals in support of such proposed treatment;
(b)The father shall within 14 days of receipt of such a proposal provide any response or comments he may have;
(c)In the event the parties cannot agree as to the treatment, the mother shall make the final decision and forthwith inform the father of same.

3.The parties otherwise make joint decisions in relation to all major long-term issues for the children.
4.The parties to make joint decisions in relation to all major long-term issues for the children X born in 2010, Y born in 2013 and Z born in 2013 (“the children”).

SPEND TIME ORDERS IF THE COURT ALLOWS THE RELOCATION TO QUEENSLAND
5.The children live with the Mother in Town B, Queensland.
6.The children be enrolled at C School (for the remainder of primary school for Y and Z) and E School in Town D, Queensland (for X, and subsequently for Y and Z from year 7) and continue to be enrolled at such schools until further order of the Court or the written agreement of both parties.
7.Unless otherwise agreed between the parties in writing, the children spend time and communicate with the father in Melbourne as follows:
(a)For one occasion during each school term period from
Wednesday to Sunday during the 4th week of school term
9:00am Thursday to 3:30pm Sunday during the 5th week of school term.
(b)For a period of 9 consecutive nights during each Queensland gazetted school term holiday period,
from 5:00pm on the second last Friday of the term holidays until the last Sunday of the school term holidays; and
for the second week of the holidays, commencing on the preceding Friday at 9:00am until 3:30pm the last Saturday of the school holidays.
(c)For a period of three and a half weeks during the Queensland gazetted long Summer school holidays as follows:
(i)On the second weekend in December from Friday until 9:00am Monday;
(ii)In even numbered years, from 5:00pm on 24 December until 5:00pm on 14 January; and
(iii)In odd numbered years, from 9:00am on 26 December until 9:00am on 16 January.

(d)During the Queensland gazetted long Summer school holidays as follows:
(i)In odd numbered years, from 5:00pm on 22 December until 9:00am on 12 January.
(ii)In even numbered years, from 5:00pm on 26 December until 9:00am on 14 January.

8.Unless otherwise agreed between the parties in writing, the children spend time with the father in Melbourne (if not already in his care):
(a)On the weekend of or immediately following the Father’s birthday from Friday to Sunday;
The Father’s Birthday: from 3:30pm until 3:30pm.
(b)For a period of 5 nights at Easter, commencing the Thursday before Good Friday and concluding at 9:00am on the Tuesday immediately following Easter Monday;
For a period of 4 nights at Easter, commencing Thursday before Good Friday at 3:30pm and concluding at 3:30pm Easter Monday;
(c)From Friday to Sunday on the Father’s Day weekend;
Father’s Day: from 3:30pm Friday before Father’s Day to 3:30pm Father’s Day.
(d)Children’s birthdays: if the birthday falls on a weekday, from 3:30pm Friday following the birthday until 3:30pm Sunday of the same weekend, and if the birthday falls during the weekend, from 3:30pm Friday until 3:30pm Sunday of that weekend.
(e)In the event that the father is able to travel, and Upon the provision of not less than 4 weeks’ not less than 2 weeks’ written notice to the mother, for one additional weekend per school term in Queensland during Terms 1, 2 and 4, with such time to commence at the conclusion of school or 3:30pm if a non‑school day Friday and conclude at 4:00pm Sunday.

9.For the purpose of the children’s time with the father in accordance with Orders 6 and 7:
(a)such time shall commence and conclude at such times as are reasonable to facilitate the children's travel between Town B and Melbourne; and
(b)for all times when there is a time-difference between Victoria and Queensland, Queensland time shall apply.

10.Irrespective of any other order, the children shall spend time with the Mother on the Mother’s Day weekend from the conclusion of school on Friday or 3.30pm until the start of school on Monday.
11.If for any reason, the children (or any of them) do not board a flight on which they are booked to depart (from Melbourne to return to Town B), at the conclusion of the father's time, the father shall be responsible for:
(a)re-booking the child or children on the next available flight to City F/City H;
(b)the cost of rebooking flights to return the child or the children to City F/City H; and
(c)the care of the child or children until they have departed on the next available flight from Melbourne to City F/City H.

Changeover
12.Changeover occur as follows:
(a)If the mother is in Melbourne with the children on the changeover days, the mother shall deliver the children to the father's home at the commencement of time and collect the children from the father's home at the conclusion of time, with the mother to text the father upon her arrival and the changeover to be facilitated outside the father's home;
(b)If the mother is not in Melbourne with the children on the changeover days, changeover shall occur at Melbourne airport, the father will collect the children from the airport through which they are transiting at the commencement of his time and returns the children to Melbourne airport at the conclusion of time
(c)For the purposes of orders 11(a) and (b) hereof, the mother shall provide the father with not less than 28 days written notice of whether she will be in Melbourne or not, on the changeover days.
(d)In the event that the father travels to Queensland to see the children, the mother shall deliver the children to an agreed location in Town D at the commencement of the father’s time, or at a destination agreed to in writing.

Communication
13.Until such time that Y and Z have their own personal mobile phones, the father be at liberty to contact the children via X’s mobile telephone or FaceTime call each Tuesday and Thursday from 6:30pm to 7:00pm, at all reasonable times with the father to initiate such calls.
14.Upon all three children having their own personal mobile phones, the father be at liberty to communicate via phone or text message with the children at all reasonable times.
15.The parties keep each other informed of their respective residential addresses, contact telephone numbers and email addresses.

Medical information
16.The parties shall keep each other informed of issues relating to the children's health, including:
(a)Advising the other parent of any specialist medical appointments along with the names and contact details of same including but not limited to via telephone or video conference;
(b)Forthwith advising the other of any illness or injury sustained by the children or any of them whilst in their care and further provide the other with full particulars of the name, address and contact telephone number of any medical or other health professional or hospital from whom or at which the children have received or are to receive treatment so that each parent may liaise with same.

The parties exercise prior notification, and keep each other advised, and mutually involved in any medical or health issues, and or assessments relating to the children via email including, but not limited to, providing:
(a)the parties are to agree in writing via email acceptance of the medical health care provider prior to making an appointment excluding emergencies; and
(b)details of any appointments for the children including but not limited to general practitioner, dentist, paediatrician, psychologist, and other health specialist’s appointments including all contact details; and
(c)particulars of any medication that has been prescribed to the children and each party to agree in writing before any prescribed medication is given to the children excluding in an emergency. Ensuring that the medication is provided to the other party at changeover and the name and contact details of the treating practitioner; and
(d)details of any procedures that the children may need to undergo, which are to be agreed in writing by both parties, excluding emergencies; and
(e)both parties to be listed as nominees and have equal access to the children’s treatment plans and funding, including but not limited to National Disability Insurance Scheme (NDIS). Where there is funding, this is to be plan managed by the organisation.

17.Both parties shall follow all recommendations made by any GP or other healthcare treatment provider that may treat the child/ren from time to time.

Travel
18.The parties forthwith do all acts and things necessary and sign all such documents as may be required to make an application for an Australian Passport for each of the children within 7 days of a request from the other party.
19.The requesting party shall be responsible for the payment for the passports.
20.The children’s passports be held by the mother when not in use and provided to the father when requested in accordance with Order 15 and be returned to the mother within 7 days of the children’s return to Australia.
When the passports are not in use they shall be held by the party who requested and paid for the passports.
21.The mother shall release the children’s passports to the father upon notice of proposed international travel no later than 30 days’ prior to the intended travel.
The parent holding the passports is to provide the other parent the passports within 14 days of a request from the other party.
22.The parties may travel with the children outside of the Commonwealth of Australia provided that the parent intending to travel provides to the other parent, no later than 60 days prior to the intended international departure date, written confirmation of the following:
(a)The places and/or countries, and intended itineraries, addresses and accommodation bookings as far as practicable, to which the children will travel; and
(b)The children’s travel insurance certificate/confirmation the children are covered by a travel insurance policy.
(c)The intended airlines and flight bookings upon which the children will travel;
(d)The date upon which the child will depart from and return to the Commonwealth of Australia; and
(e)A telephone and/or WhatsApp contact number on which the non-travelling parent can communicate with the children during the travel period.

23.The children be only permitted to travel overseas for a maximum of 4 weeks per annum with no more than 2 weeks absence during the school term.
24.The travelling parent facilitate telephone and/or WhatsApp contact between the non-travelling parent and the children at all reasonable times.
25.In the event the travel is to take place at a time when the children would normally be with the other parent, unless otherwise agreed between the parents, the other parent be afforded makeup time equal to the time lost with such to occur at times as agreed between the parties in writing.
26.The travelling parent be responsible for all airfares and associated costs of travel for each of the children.

Restraints
27.The parties are hereby restrained from:
(a)communicating with each other via the children; and
(b)denigrating the other party or their family, including their partner, in the presence and/or hearing of the children or permitting a third party to do so; and
(c)discussing any Court proceedings in the presence and/or hearing of the children or permitting a third party to do so; and

28.The mother will be responsible for all return flights to facilitate the children spending time with the father in Melbourne pursuant to Orders 7 and 8.

PROPOSED ORDERS FOR TIME AND COMMUNICATION IF THE CHILDREN REMAIN LIVING IN MELBOURNE:
29.The children live with the Mother.
30.The children attend N School (Z and Y) and M School (X, and subsequently Z and Y from year 7) until the completion of their primary school / secondary school education unless otherwise agreed in writing between the parties.
31.The children spend time and communicate with the Father as follows:
(a)During school terms on each alternate week from the conclusion of school or 3:30.p.m on Friday until the commencement of school or 9.00.a.m on Monday, to extend to the commencement of school or 9am on Tuesday, if the Monday falls on a public holiday.
(b)For the first week of each school term holiday period commencing at the conclusion of school on the last day of term and concluding at 5:00.p.m on the following Saturday (the mid-point day of the term holidays).
(c)In the long summer holidays for a period of three weeks as follows:
(i)In even numbered years, from 5:00.p.m on 24 December until 10:00.a.m on 7 January;
(ii)In odd numbered years, from 10:00.a.m on 26 December until 10:00.a.m on 9 January; and
(iii)In each year in the last week of the holidays from 3:30.p.m on the penultimate Saturday until 3:30.p.m on the final Saturday prior to the new school year commencing.

32.From 13 May 2024 until the commencement of the Term 2 school holidays, the children spend time with the mother and the father as follows:
(a)With the father from 3.30pm Monday 13 May 2024 to before school Wednesday 15 May 2024 and each alternate week thereafter.
(b)With the father from 3.30pm Friday 17 May 2024 to before school Monday 20 May 2024 and each alternate week thereafter.
(c)With the mother at all other times.

33.From after the Term 2 school holidays, the children spend time with the father and the mother as follows;
(a)The children to live with the mother from 9:00am Monday 15 July 2024 to 3.30pm Monday 22 July 2024 and each alternate week thereafter.
(b)The children to live with the father from 3.30pm Monday 22 July to 9:00am Monday 29 July and each alternate week thereafter.
(c)These arrangements shall resume at the beginning of each term as if they had not been interrupted by the school holidays.

School Holiday Care (Victorian State School Holiday Dates)
34.The children spend time with the father and the mother during the term school holidays as follows:
(a)For the first week of the school holidays with the mother from the conclusion of the school term to 3.30pm on Saturday.
(b)For the second week of the school holidays with the father from 3:30pm Saturday until the commencement of school.

Christmas Summer School Holiday Care (Victorian State School Holiday Dates)
35.The children live with the father as per the following schedule, and with the mother at all other times during this period;
(a)From 3.30pm 22 December 2024 to 3.30pm 24 December 2024 and each alternate year thereafter.
(b)From 3.30pm Christmas Day 25 December 2024 to 3.30pm New Year's Eve 31 December 2024 and each alternate year thereafter.
(c)From 3.30pm 2 January 2025 to 7.30am the second Monday in January (13 January 2025) and each alternate year thereafter.
(d)From 3.30pm Christmas Eve 24 December 2025 to 3.30pm Christmas Day 25 December 2025 and each alternate year thereafter.
(e)From 3.30pm Boxing Day 26 December 2025 to 7.30am the second Monday in January (12 January 2026) and each alternate year thereafter.

Easter Holidays
36.The children spend time with the father and mother as follows;
(a)With the mother from 3.30pm Thursday before Good Friday 2025, until 9.00am Tuesday immediately following Easter Monday 2025 and each alternate year thereafter.
(b)With the father from 3.30pm Thursday before Good Friday 2026, until 9.00am Tuesday immediately following Easter Monday 2026 and each alternate year thereafter.

Public Holidays
37.The children spend time with the father from 3.30pm the day before the public holiday to 9.00am Monday following the public holiday on the below holidays:
(a)Friday before AFL Grand Final Day.

38.The children spend time with the father from 3.30pm Friday before the public holiday to 9:00am am the day after the public holiday as follows:
(a)Australia Day.
(b)Melbourne Cup Day.
(c)Labour Day.

Special occasions care
39.The children spend time with the father as follows;
(a)Father's Day, from the conclusion of school on Friday until the start of school on Monday of the Father's Day weekend.
(b)Children’s birthdays (if in the mother’s care), if on a weekday, from 3.30pm to 7.30pm/5.30pm. If on a weekend, from 9.00am to 5.00pm/1pm.
(c)The father’s birthday, from 9:00am until 5:00pm.
(d)The father be at liberty to collect the children from the mother to attend Father’s / Father’s Day school events / activities at all reasonable times.

40.The children spend time with the mother as follows;
(a)Mother’s Day, from 3.30pm Friday before Mother’s Day to 3.30pm Monday immediately following Mother’s Day.
(b)Children’s birthdays (if in the father’s care), if on a weekday, from 3.30pm to 7.30/5.30pm. If on a weekend, from 9.00am to 5.00pm/1pm.
(c)The mother be at liberty to collect the children from the father to attend Mother’s Day/school events/activities at all reasonable times.
(d)The provisions above that provide for the children to spend time with the parent with whom they are not otherwise spending time are suspended when their birthday falls during the gazetted Victorian School Holidays.

Changeover if children remain living in Melbourne
41.Unless otherwise agreed in writing between the parents:
(a)during school term time:
(i)all changeovers on days the children attend school shall take place at the children's school;
(ii)On all non-school days, the Father or his agent shall collect the children from the Mother's home at the commencement of his time, and the mother or her agent shall collect the children from the Father's home at the conclusion of his time.
(iii)If the children are otherwise in the Father's care, but are to spend time with the mother on their birthdays, and it is a non-school day, the mother shall collect the children from the Father's home at the commencement of her time.
(iv)If the children are otherwise in the Father's care but are to spend time with the mother on their birthdays, the mother shall return the children to the Father's home at the conclusion of her time.
(v)If the children are otherwise in the Father's care

(b)during school holidays, changeover shall take place:
(i)at the commencement of the Father's time, at the children's school if a school day and otherwise at the mother's residence; and
(ii)at the conclusion of the Father's time the Mother or her agent shall collect the children from the Father's home at the conclusion of his time;

42.Orders 1-4 and 12-27 above shall apply regardless of whether the children relocate to live with the mother in Town B, Queensland.
43.Usual section 62B and section 65DA(2) Orders.
44.The father pay the mother’s costs fixed in the sum of $3,500 arising from the interim hearing on 30 April 2024.
45.All extant applications are otherwise dismissed.

File number(s):	DGC 2043 of 2022
Judgment of:	JUDGE BURT
Date of judgment:	27 June 2024
Catchwords:	FAMILY LAW – Parenting – three children, aged 14 and twins aged ten – mother’s application to relocate the children from Melbourne to regional Queensland – father’s primary application for the children to remain living in Melbourne and gradually transition to a week about arrangement – children currently spending time with father three nights per fortnight – allegations of multiple instances of family violence perpetrated against the mother and the children – blanket denials made by father – findings made – mother diagnosed with PTSD – expert evidence given by each party’s psychologist and the mother’s psychiatrist – mother experiencing emotional and physical dysregulation when required to communicate with the father – father lacking insight and minimising the impact of his behaviours – one child experiencing behavioural problems – one child experiencing learning difficulties – children having a loving relationship with both parents – mother having purchased property in Queensland to establish a business with her new partner – mother’s proposal for children to spend time with the father almost monthly in Melbourne, at her cost – significant delays in neuropsychological assessment of a child due to parental disagreement – held – relocation permitted – spend time with the father in accordance with his proposed secondary position – the mother make sole decisions with respect medical assessment and treatment – the parties to otherwise make joint decisions.
Legislation:	Family Law Act 1975, ss 4AB(1), 60B, 60CA, 60CC, 61B, 61C, 61CA, 61DAA, 65D Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r 7.11 Explanatory Memorandum, Family Law Amendment Bill 2023
Cases cited:	Adamson & Adamson (2014) FLC 93-622 AMS v AIF [1999] HCA 26 Andrew & Delaine [2009] FamCAFC 182 Asher & Wilkinson [2020] FamCAFC 44 Carlson & Fluvium [2012] FamCA 32 Franklyn & Franklyn [2019] FamCAFC 256 Grella & Jamieson [2017] FamCAFC 21 In the Marriage of Hall [1979] FamCA 73 Jefford & Jefford [2022] FedCFamC1F 539 Malcolm & Monroe and Anor [2011] FamCAFC 16 Timms & Payton [2015] FCCA 3324 U v U [2002] HCA 36
Division:	Division 2 Family Law
Number of paragraphs:	235
Date of hearing:	8, 9, 10 May 2024, 7 June 2024
Place:	Dandenong
Counsel for the Applicant:	Mr Smith
Solicitor for the Applicant:	TFA Legal
Counsel for the Respondent:	Ms Paterson
Solicitor for the Respondent:	Clancy and Triado

DGC 2043 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR EASTLING Applicant
AND:	MS PARISER Respondent

ORDER MADE BY:	JUDGE BURT
DATE OF ORDER:	27 JUNE 2024