Florence & Stanbury - [2022] FedCFamC2F 1755

Federal Circuit and Family Court of Australia
(DIVISION 2)
Florence & Stanbury [2022] FedCFamC2F 1755

File number(s): NCC 258 of 2021

Judgment of: JUDGE CARTY

Date of judgment: 16 December 2022

Catchwords: FAMILY LAW – PARENTING – Allocation of parental responsibility – whether equal time with each parent will promote best interests of children – considerations relevant to court making order for equal shared care-live with arrangements - spend time with arrangements – children’s schooling- application for passport and international travel

Legislation:
Australian Passport Act 2005 s 11

Evidence Act 1995 (Cth) ss 79,144

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC, 68B, 69ZT, 69ZX, Division 12A, Part VII

Cases cited:
Eden & Eden-Proust [2011] FamCAFC 138

McGregor & McGregor [2012] FamCAFC 69

Palange & Kalhoun [2022] FedCFamC2F 149

Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025

Re Child’s Passport Application [2008] FMCAfam 1031

Division: Division 2 Family Law

Number of paragraphs: 216

Date of last submission/s: 5 August 2022

Date of hearing: 4 and 5 August 2022

Place: Newcastle

Counsel for the Applicant: Mr Bithrey

Solicitor for the Applicant: Merridy Elphick Lawyers

Counsel for the Respondent: Mr Longworth

Solicitor for the Respondent: Everingham Solomons Solicitors

Table of Corrections

20 December 2022 The title of the judgment has been corrected from “Stanbury” to “Stanbury”.

In the order the name of the respondent has been corrected from “ Stanbury ” to “Stanbury”.

In paragraph 1 one reference to “ Stanbury” has been corrected to show “Stanbury”.

Page 23 title of evidence “Ms J” has been corrected to show “Ms J”.

In paragraph 98 one reference to “ Stanbury” has been corrected to show “Stanbury”.

In paragraph 99 two referenced to “ Stanbury” have been corrected to show “Stanbury”.

In paragraph 100 one reference to “ Stanbury” has been corrected to show “Stanbury”.
ORDERS

NCC 258 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FLORENCE

Applicant

AND:
MS STANBURY

Respondent

order made by:

JUDGE CARTY

DATE OF ORDER:

16 December 2022

THE COURT ORDERS THAT:
1.The children X (“X”) born in 2013, Y (“Y”) born in 2015 and Z (“Z”) born in 2017 (collectively “the children”) live with the mother.
2.The parents have equal shared parental responsibility for the children, save and except in relation to the major long term decisions about which school each child will attend.
3.The mother have sole parental responsibility for the major long term decisions about which school each child will attend.
4.With the exception of the major long term decisions about which school each child will attend, the parents will consult with each other about major long term issues as follows:
4.1They will inform the other parent about the decision to be made;
4.2They will consult with each other on terms upon which they agree; and
4.3They will make a genuine effort to come to a joint decision.

5.Whenever a major long term decision about which school each child will attend arises, the mother will contact the father in writing and:
5.1Identify the issue;
5.2Set out her proposal;
5.3Invite the father to respond with any alternate proposal within a stated and reasonable period of time; and
5.4Inform the father promptly of the decision she has made.

6.The children spend time with the father as follows:
6.1Until the commencement of Term 1 in 2024, during the school terms over a fortnightly regime as set out below:
(a)Week A – (Being in each school term during week numbers 1, 3, 5, 7, 9, and 11 if applicable):
(i)From 3.00pm Thursday at the conclusion of school until the following Friday at 3.00pm (or in circumstances as outlined below 3.40pm); and
(ii)To facilitate time in order 6.1(a)(i) the father will collect the children from their respective places of education, or in circumstances whereby any child/children are not at school the mother will deliver the child/children to the father’s place of residence at 3.40pm and the father will return the child/children to their respective place of education, at the conclusion of such time. In circumstances where any child/children is not attending school (on the Friday) the father will return the child/children to the mother’s place of residence at 3.40pm.

(b)Week B – (Being in each school term during week numbers 2, 4, 6, 8 and 10):
(i)From 3.00pm Thursday at the conclusion of school until 4.00pm on the following Sunday; and
(ii)To facilitate time in order 6.1(b)(i) the father will collect the child/children from their respective places of education, or in circumstances whereby any child/children are not at school the mother will deliver the child/children to the father’s place of residence at 3.40pm and the father will return the child/children to the mother’s place of residence at the conclusion of time;

6.2From the commencement of Term 1 in 2024, during the school terms over a fortnightly regime as set out below:
(a)Week A – (Being in each school term during week numbers 1, 3, 5, 7, 9 and 11 if applicable):
(i)From 3.00pm Thursday at the conclusion of school until the following Friday at 3.00pm (or in circumstances as outlined below 3.40pm); and
(ii)To facilitate such time in order 6.2(a)(i) the father will collect the children from their respective places of education, or in circumstances whereby any child/children are not at school the mother will deliver the child/children to the father’s place of residence at 3.40pm and the father will return the child/children to their respective place of education, at the conclusion of such time. In circumstances where any child/children is not attending school (on the Friday) the father will return the child/children to the mother’s place of residence at 3.40pm.

(b)Week B – (Being in each school term during week numbers 2, 4, 6, 8 and 10):
(i)From 3.00pm Thursday or the conclusion of school until the following Monday at 9.00am or the commencement of school; and
(ii)To facilitate such time in order 6.2(b)(i) the father will collect the child/children from their respective places of education or in circumstances whereby any child/children are not at school the mother will deliver the child/children to the father’s place of residence at 3.40pm and the father will return the child/children to their respective place of education at the conclusion of such time. In circumstances where any child/children is not attending school (on the Monday) the father will return the child/children to the mother’s place of residence at 9.30am.

6.3In addition to the time that the children spend with the father pursuant to orders 6.1 -6.2 inclusive, during the term 1, 2 and 3 school holiday periods the children will spend time with the father:
(a)For the first week of the NSW Gazetted school holidays at the conclusion of terms 1, 2 and 3 from the conclusion of school on the last day of the school term until the mid-point Saturday at 4.00pm;
(b)To facilitate time in order 6.3(a) the father will collect the child/children from their respective places of education or in circumstances whereby any child/children are not at school the mother will deliver the child/children to the father’s place of residence at 3.40pm at the commencement of such time and the father will return the child/children to the mother’s place of residence at the conclusion of such time at 4.00pm on the mid-point Saturday.

7.The children will spend time with each of the parents at the conclusion of term 4, during the Christmas/summer school holiday periods as follows:
7.1In 2022 and each alternate year thereafter the children will spend time with each of the parents as set out below:
7.1.1From December 20 at 3.00pm until December 24 at 4.00pm with their father;
7.1.2From December 24 at 4.00pm until January 6 at 4.00pm with their mother;
7.1.3From January 6 at 4.00pm until January 20 at 4.00pm with the father; and
7.1.4From January 20 at 4.00pm with their mother until the commencement of time in Week A for Term 1.

7.2In 2023 and each alternate year after the children will spend time with their mother and father as set out below:
7.2.1From December 23 at 4.00pm until January 5 at 4.00pm with their father;
7.2.2From January 5 at 4.00pm until January 19 at 4.00pm with their mother;
7.2.3From January 19 at 4.00pm with their mother until the commencement of time in Week A for Term 1.

7.3To facilitate time in order 7.1 and 7.2 the parent commencing time with the children will attend to the collection of the children at the commencement of such time and the father will return the children to the mother’s place of residence at 4.00pm or to their place of education at the conclusion.

8The children will spend time with each of the parents on special occasions such as:
8.1Birthdays
8.1.1The children will spend time with the parent with who they are not living as follows:
8.1.1.1With the mother for her birthday from 3.00pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of 4 hours as agreed, but failing agreement from 3.00pm until 7.00pm.
8.1.1.2With the father for his birthday from 3.00pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of four hours as agreed, but failing agreement from 3.00pm until 7.00pm.
8.1.1.3On each of the children’s birthday, the children will spend time with the non-resident parent on their birthday from 3.00pm or the conclusion of school or day care until 7.00pm if a school day, and if a non-school day, for a period of 4 hours as agreed, but failing agreement from 3.00pm until 7.00pm.
8.1.1.4To facilitate time with the children the parent who is having birthday time with the children will attend to the collection and return of the children.

8.2Mother’s day
8.2.1If the children are not living with the mother on Mother’s Day then the children will return to the mother on that day at 9.00am;
8.2.2To facilitate time the mother will collect the children from the father’s place of residence.

8.3Father’s Day
8.3.1If the children are not already spending time with the father pursuant to these orders then the children will spend time with the father on Father’s Day from 9.00am to 4.00pm on that day.
8.3.2To facilitate time the father will collect the children from the mother’s place of residence at the commencement of time and the mother will collect the children from the father’s place of residence at the conclusion of time.

9.Each parent will keep the other parent advised of their current residential address, email address, telephone contact number and mobile telephone number.
10.When the child/children is in the care of either parent, the parent who has the care of the child/children will notify the other not later than twenty-four (24) hours of any hospital consultation or consultation with a medical practitioner or any illness relating to the child/children.
11.In the event that any of the children have been admitted to hospital or consulting a doctor in either case or in an emergency, accident, illness or otherwise the father/mother will immediately notify the other of such admission or illness.
12.Neither parent shall denigrate the other/or members of their family or friends, in the presence of any of the children nor permit any other person to do so.
13.Neither parent discuss any court proceedings involving the other in the presence of the children nor permit any person to do so, with the exception as to the explanation of these parenting orders.
14.Both the mother and the father will consult with the child/children’s general practitioner and immunologist prior to any child/children receiving any recommended vaccines.
15.Each parent shall be and is hereby restrained from having the child/children vaccinated with any of the COVID vaccines and from permitting any third party to do so, unless with the written consent of the other parent.
16.The parents will:
16.1Keep each other fully informed of all matters concerning the health of the child/children, including names of medical practitioners and health practitioners who attends upon a child/children from time to time and will authorise such persons to provide each other with such information that may be sought by each parent from time to time and each parent is hereby authorised to seek such information.
16.2Keep each other fully informed about the child/children’s schools and authorise the principal of such schools to provide the other parent with such information concerning the child/children as may be requested by either parent from time to time and each parent is hereby authorised to receive that information.
16.3Give all necessary consent to enable each parent to visit the child/children’s school on special occasions that the parents are invited to be present and to participate in the child/children’s school activities and both the parents are hereby authorised to visit each child/children at school.

17Pursuant to section 65(DA)(2) 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 annexure “A”.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Florence & Stanbury has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Amended pursuant to r 10.14(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 20 December 2022
JUDGE CARTY
Introduction

The applicant father Mr Florence (“the father”) and the respondent mother Ms Stanbury (“the mother”) are unable to reach agreement about the parenting arrangements for their three children X currently 9 years old, Y currently 7 ½ years old, and Z currently 5 years old.
The key issues which require determination by the court are:
(1)Whether the mother will have the final say about major long term decisions for the children’s schooling and health, in circumstances where the parents both seek an order that they have equal shared parental responsibility for the children;
(2)Whether the children will spend equal time with each of the parents, or live with the mother and spend substantial and significant time with the father;
(3)Which school each child will attend;
(4)Whether the court will make an order compelling the parents to obtain a passport for each child and make orders permitting each parent to travel internationally with the children.
Background
The father was born in 1990. He is 32 years old. He lives in City B in the home the family occupied until the parents separated. He is self-employed running a repair business. His self-employment allows him flexibility to attend to his parenting responsibilities. The father has not re-partnered.
The mother was born in 1989. She is 33 years old. She describes her occupation as home maker. During her oral evidence the mother said that she works two days each week for about six hours each day in a business operated by her parents, and that she also works as an allied health worker, on average not less than five hours each week. The mother organises her work to fit in with her parenting responsibilities.
The mother has re-partnered with Mr C (“Mr C”). At the date of hearing the mother and Mr C were not living together. Mr C has two children, a daughter D, ten years old who attends E School in year 5, and a son F, five years old who attends F School.
The parents commenced living together in 2009. They decided to separate in March 2020, and on 10 April 2020 the mother moved out with the children and went to stay at the home of the maternal grandparents at Town G, near City B, before moving with the children into an investment property owned by her parents at Suburb H, near City B, where she and the children remain living.
There are three children of the relationship:
·X born in 2013 currently 9 years old;
·Y born in 2015 currently 7 ½ years old; and
·Z born in 2017 now 5 years old.
It is common ground that during the parents’ relationship the mother was the primary homemaker and parent and the father was the primary income earner.[1] The father worked away from home for extended periods of time from July 2014 until April 2017, when he commenced to operate his own business.
[1] Father’s affidavit paragraph 7 and 10
On 2 February 2021 the father filed an Initiating Application in which he did not particularise the final parenting orders he sought, pending release of a family report. The father sought interim orders including that the parents have equal shared parental responsibility for the children, that the children live with the mother and spend time with the father each alternate weekend from Friday to Sunday and each alternate week from Tuesday to Thursday. The father also sought an order that the parents have the children immunised “to the extent necessary for enrolment in any public school” and that X and Y be enrolled at City B.
On 12 March 2021 the mother filed a Response in which she sought final parenting orders including that the parents have equal shared parental responsibility for the children, with the exception of education. The mother sought an order that she have sole parental responsibility for the children’s education. She sought an order that the children be enrolled at the E School at City B (“E School”), that the children live with the mother and spend time with the father, during school term time from Friday to Sunday in weeks 2, 4, 6, 8 & 10, with Z to spend those Fridays with the father, and that the children spend one half of school holidays with the father.
Until interim orders were made on 16 March 2021, the arrangements for the children to spend time with the father were ad hoc. The father’s position is that the mother steadfastly refused to allow him anything other than insufficient time with the children. The mother’s position is that she facilitated time for the children with the father which was appropriate in light of the children’s ages and their needs, and her concerns about the father’s mental health in the context of his adjustment to the parental separation.
On 16 March 2021 interim parenting orders were made, including that the parents have equal shared parental responsibility for the children, except in relation to the schools which the children would attend, which was to be determined by the court. The interim orders provide that the children live with the mother and spend time with the father each alternate week from after school Tuesday until school time on Wednesday and each alternate weekend from 3.00pm Friday until 4.00pm Sunday, and during school holidays for week long block periods. An order was made for the parents and the children to attend a child inclusive child dispute conference pursuant to s.11F Family Law Act 1975 (Cth.) (“the Act”)

Since the interim orders were made the children have spent three nights a fortnight with the father during school terms, and block periods of one week with the father during school holidays.
DOCUMENTS RELIED UPON
In support of his case the father relied on the following documents:
(a)Outline of Case (Final Hearing) filed 3 August 2022;
(b)Amended Initiating Application filed 27 October 2021;
(c)Affidavit of father filed 19 July 2022; and
(d)Affidavit of father filed 29 July 2022.
In support of her case the mother relied on the following documents:
(a)Outline of Case filed 2 August 2022;
(b)Amended Response filed 12 July 2022;
(c)Affidavit of mother filed 25 July 2022;
(d)Affidavit of Ms J filed 22 July 2022; and
(e)Child Inclusive Conference memorandum to the court prepared by family consultant Mr K on 1 June 2021. [2]
[2] Exhibt E
Each party also tendered into evidence documents which became exhibits.
PROPOSALS OF THE PARTIES
The father’s proposal
In summary the father seeks the following final parenting orders:
(a)That the parents have equal shared parental responsibility for the children.
(b)That the children live with each parent on a week about basis from Thursday to Thursday.
(c)That the parents can each suspend the other parent’s time with the children on one occasion each calendar year for the purpose of spending a two week block period with the children, on conditions including that the block period does not exceed 14 nights and that it occurs during the children’s school holiday periods.
(d)Spend time with orders for special occasions including Mother’s Day, Father’s Day, each parent’s birthday, the children’s birthdays, Easter and Christmas.
(e)Changeovers at the children’s school or day care or as otherwise agreed, and the parents be at liberty to send a nominee over the age of 18 years who is known to the children to attend changeover on their behalf.
(f)Communication with the children, exchange of information between parents, restraints against denigration or showing the children any documents relating to these proceedings, or communicating through the children.
(g)Parents enrol and keep the children enrolled at City B Public School and in due course at L School.
(h)Passport and international travel orders.
During final submissions Learned Counsel for the father informed the court that the father no longer presses for an order that the parents to do all acts and things required to cause each child to be immunised according to the recommendations of the NSW Health Department. The father is now content for an order to be made which restrains each parent from causing any of the children to be vaccinated against COVID19, without the written consent of the other parent.
The mother’s proposal
In summary the mother seeks the following orders:
(a)That parents have equal shared parental responsibility for the children, and that in the event that the parents are unable to reach agreement about children’s enrolment at school and treatment for health then the mother have authority to make the final decision.
(b)That the two younger children, Y and Z remain enrolled at the E School (“E School”) at City B for their primary school education, and unless agreed by the parties in writing X continue to attend at City B School for the duration of her primary school education.
(c)That the three children attend E School for their High School Education, unless otherwise agreed between the parents in writing.
(d)That the children live with the mother.
(e)That the children spend time with the father on a fortnightly regime as follows:
·Week A – From 3.00 pm Thursday or conclusion of school until the following Friday at 3.00 pm;
·Week B – From 3.00 pm Thursday or the conclusion of school until the following Sunday at 4.00 pm.
(f)That the children spend time with the father for the first week of the Term 1, 2 and 3 school holiday periods, and during specific periods during the Christmas Summer school holidays in 2022 and each alternate year, and in 2023 and each alternate year.
(g)That the children spend time with the parents on special occasions including the parents birthdays, the children’s birthdays, Mother’s Day and Father’s Day.
(h)Orders for information exchange, non-denigration orders along similar lines as those sought by the father.
THE LEGAL PRINCIPLES
Parenting orders are made under the provisions of Part VII of the Family Law Act 1975 (Cth) (“the Act”). The objects of Part VII, and the principles underlying the objects, are set out in section 60B of the Act, which provides relevantly for present purposes that:
The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)  children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)  children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)  parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)  parents should agree about the future parenting of their children; and
(e)  children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, the court must regard the best interests of the child as the paramount consideration.”
In determining what is in the child’s best interests, the court must consider the matters set out in sections 60CC (2) and (3) of the Act in so far as they are relevant.
When making a parenting order the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child (s.61DA). The presumption does not apply if there are reasonable grounds to believe that a parent of a child has engaged in abuse of the child (or another child who was a member of the parent’s family) or family violence.
The presumption can be rebutted by evidence that satisfies the court that it would not be in the best interests of a child for the child’s parents to have equal shared parental responsibility for the child.
When the court makes an order for the parents to have equal shared parental responsibility for a child, then the provisions of s.65DAA apply and the court must consider whether it is reasonably practicable and in the best interests of the child for the child to spend equal time with each parent.
Where equal time is not reasonably practicable or not in the best interests of the child then the court must consider whether it is reasonably practicable and in the child’s best interest to spend substantial and significant time with each parent.
Section 65DAA(5) provides that in determining whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents the court must have regard to have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Note: Paragraph (c) reference to future capacity--the court has power under section 13C to make orders for parties to attend family counselling or family dispute resolution or participate in courses, programs or services.
In this case the issue of the children’s schooling looms large. The Full Court of the Family Court held in Re G: Children’s Schooling[3] in summary that:
1. The best interests of the child is the paramount consideration, having regard to the relevant matters in s.60CC (3) of the Act;
2.        There is no legal presumption in favour of the residence parent and, correspondingly, no onus faced by the other parent, however the reality of the child residing with one parent is relevant;
3.        Where prima facie two schools are satisfactory, weight should be accorded to a school that is closer; and
4.        The objects and the principles underlying the objects in 60B should be taken into account.
[3] [2000] FamCA 462 at [65]-[66]; (2000) 26 Fam LR 143; FLC 93-025
In Eden & Eden-Proust[4] Thackray J affirmed that while each parents’ convenience is a relevant factor in cases involving disputes about a child’s schooling, the best interests of the child remain the paramount consideration, and must be at the forefront of the consideration when the court is making its decision.
[4] [2011]FamCAFC 138
the trial
The father was represented by Mr Bithrey of Counsel. The mother was represented by Mr Longworth of Counsel. The trial proceeded in Sydney via Microsoft Teams over the course of two days.
Each of the parents was cross examined. The maternal grandmother was not required for cross examination.
One of the difficulties in this case is that whilst the court has the benefit of a Child Inclusive Memorandum[5] there is no Family Report. The court therefore has preliminary expert advice which is necessarily limited, and not the more fulsome investigation into the circumstances of the family, including the interviews, observations, evaluation and recommendations which are to be found in a Family Report. It appears that neither party raised this issue when the matter was set down for trial, and neither party applied for an adjournment of the proceedings at the commencement of the trial so that a Family Report could be obtained. Accordingly the court is left to do the best it can on the available evidence.
[5] Exhibit E
The father’s evidence
I have no doubt that the father loves the children very much, and that he desires to have a meaningful involvement in their lives, including to spend time and communicate with the children on a regular basis, and to share the duties and responsibilities of parenting with the mother. I consider that the father has the capacity to provide for the children’s day to day physical needs, and that he has their best interests at heart.
I have some significant reservations as to whether the father has the capacity to prioritise the children’s emotional needs over his own.
I was troubled by much of the father’s evidence, which was mainly focussed on criticising and complaining about the mother. He presented with a sullen and resentful attitude towards her, and he had nothing positive to say about her. The father sought to portray the mother in a very poor light, and he omitted a number of important details from his affidavit evidence in support of his objective.
The father’s evidence at paragraph 5 of his affidavit is that:
“[Ms Stanbury] and I separated on 13 March 2020 and on 10 April 2020 [Ms Stanbury] left the former matrimonial home at [M Street, City B] and went to live with her parents…[Ms Stanbury] also removed the children from the home without any prior consultation with me.”
At paragraph 12 of his affidavit the father says that
“On 10 April 2020, [Ms Stanbury] made the unilateral decision to remove the children from the home. On that date I came home to find the children’s clothing, toys, car seats and other belongings had been taken from the house.”
The father readily agreed during cross examination that the impression he had tried to paint for the court was that the mother had left without notice to him, and that her leaving had come as a complete shock to him, and that the mother had stripped the home bare. When Learned Counsel for the mother suggested to the father that this was not the true picture he replied “The house did not look like what it did prior to her leaving”.
The father initially denied that he and the mother had discussed her plan to move out with the children, and he denied that he’d had at least 24 hours’ notice of her proposed move. He later conceded that he had left home on the day the mother packed up and moved out with the children, because he didn’t want to be there when she moved. He was ultimately forced to concede that he knew that the mother planned to move out with the children, and he’d had about 24 hours’ notice of the day that they would be moving. The separation had been discussed between the parents for weeks before the move, and I am satisfied that it did not come as a shock to the father, although he was clearly and understandably very upset about the situation. The father agreed that there had been conflict between the parents in front of the children, and that the mother had taken appropriate steps to remove the children from the conflict by leaving the relationship.
The father reluctantly agreed in cross examination that the mother had not stripped the home bare when she left, and that she had left behind beds, a cupboard, and play equipment for the children. When he was asked to confirm that the mother had left a see saw and climbing frames for the children, the father could only volunteer the word “rotting”.
The father’s evidence in paragraph 11 of his affidavit is that during the period immediately after separation the mother:
“…significantly reduced my time with the children and started to make onerous demands that my time with them be supervised without providing evidence why…I do not misuse alcohol…”
The father was forced to concede that there was a concern that he may misuse alcohol. He asked the mother, in a text message sent to her on the day that she left with the children, “Can you please make sure you take all of the alcohol” and he agreed that he was concerned that he may misuse alcohol “with my children gone”.
The father agreed that the paternal grandmother moved into the home and lived there for a couple of months with him, to provide support to him, after the separation. He agreed that when he spoke to the family consultant, during the preparation of the child inclusive conference memorandum, the father reported that following the separation he was depressed, and that he had tried to talk to the mother about relationship issues in front of the children.
In relation to the father’s evidence that between 15 April 2020 and 3 May 2020 he “…was only permitted to see the children via FaceTime…”[6] a text message stream between himself and the mother on Sunday 12 April 2020 at 6.15 pm was admitted into evidence[7]. The father admitted that he sent a text message to the mother which reads “I would like to come out and see the kids if I can?” and the mother responds “Yeah that is fine, your mum and dad are welcome to come out too”.
[6] Father’s affidavit paragraph 14
[7] Exhibit A
On 15 April 2020 at 12.21 pm the father sent a text message to the mother which reads:
“I would like to kids to spend some time with me at home today at 3.30 pm. I would like you to drop them off…”
The mother responded:
“As I already mentioned, I would like you to give the kids at least a week to settle in here first. I do not want to stop them from seeing you. You and your mum are more than welcome to visit them out here for now.”
The father was forced to concede in cross examination that within two days of separation the mother offered for himself and his mother to come out to the home of the maternal grandparents and spend time with the children there, and that it was not true that he was only permitted to see the children via FaceTime.
On 18 June 2020 the father received a letter from the mother’s solicitors offering for him to spend one hour with the children on Y’s birthday. The father says that the letter:
“…again offer[ed] no justification as why my time with the children was to be only one hour long and supervised by [Ms Stanbury]’s parents at their home.”[8].
[8] Father’s affidavit paragraph 20
The father annexed to his affidavit[9] a copy of the letter from the mother’s solicitors dated 18 June 2020. The letter relevantly reads:
“Our client proposes the following to occur for the child, [Y]’s birthday:
•That the father is welcome to attend the home of the children, situated at [N Street, City B], at 4.00 pm for birthday celebrations.
•It is anticipated such birthday celebrations will take place between 4.00 pm to 5.00 pm.
•Only family members will be present.
•The father is welcome to bring a support person or, in circumstances where his parents are at [City B], they are also welcome to attend the event.
•The father will continue to spend time with the children on Sunday, between the hours of 2.00 pm and 4.00 pm, at [N Street, City B.”
[9] at annexure B
Clearly what was being offered to the father was not a spend time with arrangement but rather an invitation extended to him and his parents, if they were available, to attend at Y’s birthday celebration at the home of the maternal grandparents. The father agrees that he refused the invitation due to his view that his time was being restricted without justification. He said that Y would have felt upset that he wasn’t present, and that he had thought so at the time, and that nevertheless he declined the invitation to attend. He confirmed that the impression he meant to give in his affidavit was that the mother had offered him to spend time with Y for only one hour on her birthday, without justification. I consider that the father preferred his own sense of indignation, due to what he perceived was an unwarranted intrusion into his relationship with the children, over Y’s likely pleasure at having him present, with other family members, for her birthday celebration. It is concerning that the father maintained his sense of indignation during his oral evidence and that he continues to reframe the invitation as a negative act on the part of the mother, designed to deny him time with the children.
On the father’s birthday in 2020 he had been out of town working. He complains in his affidavit “When I returned to City B at about 7.00pm, Ms Stanbury would only permit me to have 15 minutes with the children at her residence”[10]. In cross examination he conceded that the children had called him on FaceTime and that he asked them to ask their mother if he could come over. This was no pre-planned event. The mother said that he could come over for 15 minutes, as the children are usually in bed by 7.00pm. The father agreed that upon his arrival the mother invited him to come inside the house. He refused and insisted that the children spend time with him outside on the verandah. He agrees that it was after 7.00pm in the middle of June and that it was cold outside. He agrees that the children gave him gifts, which clearly the mother had provided for them to give to him. He agrees that he tried to talk to the mother about the arrangements for the children, in front of them, and that she made it clear to him that this was not appropriate. He agrees that he continued to try and discuss the adult issues in X’s presence, notwithstanding that the mother had asked him to stop talking in front of the children. He agrees that he left the presents the children had given him inside the door of the mother’s home, and that he did not take the children’s gifts home with him. He refused to concede that the impression that he had painted in his affidavit was that the mother had unreasonably denied him an appropriate amount of time with the children on his birthday.
[10] Father’s affidavit paragraph 24

As difficult as the circumstances were for the father in 2020, it was unfortunate for the children that he preferred his own needs over theirs. He made the children his messengers by asking them to ask the mother if he could come over. He persisted in trying to discuss adult issues in front of the children, even when the mother asked him to refrain. He preferred his sense of offence over the emotional needs of the children by storming off in front of them, leaving behind the gifts they had provided to him on his birthday. Of more immediate concern is that the father maintained his sense of offence during his evidence and deflected the responsibility for the situation which had unfolded onto the mother. The father could not bring himself to concede the mother’s good intentions, or to agree the mother could be credited for agreeing to his impromptu visit, and he sought to construe the event as one for which the mother should be criticised. The evidence he provided in his affidavit had left out almost all of the important detail. I am satisfied that the father prioritised his needs over the children’s needs on this occasions, and I consider the fact, as recently as during the hearing he maintained his position that his actions were appropriate, demonstrates that the father continues to lack insight into the emotional needs of the children.
In his affidavit the father is critical of the mother for supervising “from an adjacent room” a FaceTime call on 29 May 2020 for the children with him, which she had facilitated, after he had asked her to move the children to another room to allow more privacy[11]. The children were aged 6 years, 4 years and 2 years old respectively at the time. It is hard to imagine how children of such tender years could collectively participate, in any meaningful way, in a FaceTime call with the father without some level of supervision by the mother, at the very least from an adjacent room.
[11] Father’s affidavit paragraph 19
The father deposes that on 23 September 2020 he received a FaceTime call from Z “…whom I spoke to for approximately 3 minutes. Z then put the iPad down on the couch and this was the end of the conversation. On this date, I did not speak to X or Y.”[12] Noting that Z was not quite 3 years old at the time, and that the father had objected to the mother supervising the children’s FaceTime calls with him, even from an adjacent room, it is hardly surprising given [Z’s] age, that the call was ended after a relatively short period of time and in the manner the father describes. The father is critical of the mother for supervising the children’s calls to him, and critical of her for not supervising [Z’s] call to him.
[12] Father’s affidavit paragraph 26
The father says that on 18 September 2020 he:
“…received a text message from [Ms Stanbury] at 3.22pm saying, “Does it suit for the kids to Facetime now? We wont be able to do at 5.30pm” I was working and unable to Facetime until 5.30pm. When I attempted to Facetime at 5.30pm there was no answer”.
The father is critical of the mother because the children were not available to speak with him on the very occasion that she informed him that they would not be available, and when she had offered him an earlier than the usual call. The father does not explain why he was unable to accommodate the mother’s request, or even at some time proximate, noting his evidence that:
“I commenced working fulltime in my own business so that I could have greater flexibility and time with the children”[13] and “… Because I am self-employed, I have flexible working arrangements and I am readily available to provide routine and stability for the children as well as to spend quality time with them”.[14]
[13] Father’s affidavit paragraph 8
[14] Father’s affidavit paragraph 77
The father complains that
“Between our separation in April 2020 and when interim orders were made on 16 March 2021, [Ms Stanbury] only permitted [Y] to stay overnight in my care on one occasion, and the children all together on nine occasions”.
Evidence tendered to the court in text messages exchanged between the parents demonstrates that in November 2020 the mother offered for the children to spend overnight time with the father on either a Friday or a Saturday night, and that he refused, and responded
“I am after a interim arrangement until court. I have made myself very clear on my position of your proposed plan. Unless there are substantial changes, I will not be agreeing to it…” [15]
[15] Exhibit B
The tenor of the father’s message to the mother is that unless she agrees to his demands, he is not prepared to spend regular overnight time with the children, and clearly the mother is offering for him to do so.
The father asserted that during the parents’ relationship the mother made the:
“unilateral medical decision …that the children would not receive their recommended childhood vaccinations” [16]
[16] Father’s affidavit paragraph 32
The father says that X received all recommended vaccinations up to age 4, but that the mother “would not allow” Y to receive her vaccinations from 2 years of age onwards. He says that he did not agree with the mother, and that he and the mother had “many heated discussions…regarding the issue.” He agrees that Y has had eczema and various serious allergies since birth, and that on at least one occasion the child care centre had to call an ambulance to treat Y for an anaphylactic reaction. The father says Y was referred to an immunologist, who the parents saw with Y prior to separation. The father says that the immunologist told the parents that there was no reason why Y could not be immunised. There is no evidence that the father took any step to have Y immunised prior to separation.
The father says that the failure to complete Y’s vaccinations in accordance with the usual schedule lead to financial stress because the family was not eligible for the child care subsidy for Y’s day care fees.[17] The father told Y’s doctor in about November 2019 that “Y either needs to be vaccinated or we need an exemption for her not to be vaccinated.”[18] I consider that the father’s priority at that time was not for Y be vaccinated but rather to ensure that the family were eligible to receive the child care subsidy for her day care fees. Although he seeks to caste sole responsibility for the situation onto the mother, I am satisfied that the father acquiesced during the relationship, and only took affirmative action to ensure that Y’s vaccinations were brought up to date months after the parents had separated, when he filed his initiating application.
[17] Father’s affidavit paragraph 34
[18] Father’s affidavit paragraph 35
When Z was born the mother would not permit him to be vaccinated. The father says that he disagreed with the mother’s decision but did not want to fight with her on the issue.[19] He says that the mother’s decision not to vaccinate Z meant that they were not able to enrol Z in the community pre-school which X and Y had attended. The father says that the reason he consented, prior to separation, for Z to be enrolled at E School pre-school was that E School would accept unvaccinated children. The father again acquiesced, but seeks to caste responsibility entirely at the feet of the mother.
[19] Father’s affidavit paragraph 38
Z and Y are currently up to date with their childhood immunisations. The evidence demonstrates that the mother recommenced to facilitate Y to be immunised and commenced the process for Z to be immunised, in 2020, under the advice and with the guidance of the children’s treating doctors, including their immunologist. The process commenced prior to the father filing his initiating application in early February 2021. The father’s extraordinary evidence in cross examination is that he believes that the mother took steps to complete the immunisations for Y and Z, not out of her genuine concern for their wellbeing, but only to make herself look good for the court, and he confirmed that he thinks that the mother is prepared to place the children at risk of harm by doing something to them that she believes is harmful “for show”. The father adduced no evidence that the mother believes that vaccinations per se are harmful to children and the evidence that was adduced demonstrates that the mother had a genuine concern about the impacts on the two individual children concerned in light of their individual health status and that she went to considerable lengths to obtain advice and assistance to meet the needs of the children.
I reject the father’s evidence that the mother had the children vaccinated for show or that she deliberately caused the children to be placed at risk of harm to make herself look good. I consider his evidence demonstrates a lack of respect for the mother as a parent, and an inclination to criticise and find fault with her. I accept the submission of Counsel for the mother that not only is the father’s evidence extraordinary, it stands in stark contradiction to his proposal that the parties should exercise equal shared parental responsibility for the children and that the children should spend equal time with each of the parents.
The parents are unable to agree about which primary school Y and Z will attend, and which school X will attend in High School. X commenced school at City B Public School in Kindergarten during the parents’ relationship and she has attended at that school since. I accept the father’s evidence that the mother enrolled the children at E School for their primary school education against his written objections[20] and that she persisted with those enrolments over his objection. I am also satisfied that the father enrolled Y in City B Public School without consulting the mother and informed her that he had done so after the event, on 8 November 2020.
[20] Father’s affidavit paragraph 42
The father deposes that
“In about April 2020 [Ms Stanbury] unilaterally enrolled… [Z] in [E School]… for the pre-school year commencing January 2021. Prior to separation we agreed that he would attend the pre-school because they did not require his immunisations to be up to date unlike the community pre-schools.”[21]
[21] Father’s affidavit paragraph 44
In fact the father and the mother signed an enrolment form for Z to attend pre-school at E School “O House” in 2021. The enrolment form was signed on 30 January 2020 and is annexed to the mother’s affidavit.[22] As previously noted, the father was prepared for Z to be enrolled at E School to attend pre-school because E School accepted children who were not vaccinated.
[22] Mother’s affidavit annexure 15A
The father deposes as to the reasons why he considers that the children’s enrolment at E School is not in their best interests at paragraphs 53 and 54 of his affidavit. His primary objection is that he does not agree with the teachings of Christianity, and that he has concerns about his relationship with E School, concerns which he sets out at paragraphs 58-61 of his affidavit.
The father says that the children have already experienced a number of significant changes in their lives, including moving out of the family home post separation into the maternal grandparents’ home, followed by a further move into their current home, having their time with him decreased, and meeting their mother’s new partner. He notes that X has attended City B Public School for years and that she has a steady group of friends there. Both parents agree that X will remain at her current school until she completes her primary education.
The father also refers to the fact that he is an atheist and that both parents signed a form to the effect that X would not attend Scripture at City B Public School. He says that although the grandparents would assist the mother to pay the fees at E School there is no guarantee that they will continue to do so.
In his affidavit the father was critical of the mother in relation to her spiritual or faith journey, and he is sceptical that she is really a Christian at all. The father went so far in cross examination as to tell the court that he thinks that the mother is lying and giving false evidence when she says that she is a Christian. He said “I have seen no evidence pertaining to Ms Stanbury’s Christianity at all”. When he was asked why he had not said in his affidavit that he thinks the mother is lying about her faith he said “I can’t prove it. I don’t intend to try and prove it.” When he was asked what he thought her motivation for lying about it might be and he responded “I don’t know.”
Having had the opportunity to see both parents give their evidence in the witness box, and having read the affidavits of both parents, I reject the father’s evidence that the mother is lying and giving false evidence to the court about her Christian faith and I consider his evidence to be another example of his inclination to criticise the mother and try to paint her in a poor light, and demonstrative of his lack of respect for her.
When the father was asked to name the top three qualities that the mother offers as a parent to the children, he was unable to offer anything at all, notwithstanding a delay of at least 10 seconds between the question and his response which was “I can’t answer that. I can’t think of one sitting here”.
The father’s negative opinion of the mother and his poor attitude to her is particularly disappointing, given that he has had the benefit of participating in the Program P in August 2020.[23]
[23] Father’s affidavit Annexure M
I accept the submission of Learned Counsel for the father that there is evidence that more recently the father has demonstrated a more positive approach to his communication with the mother[24] and this is certainly a credit to him, but nevertheless his attitude in the witness box and his evidence, as noted, was concerning.
[24] Exhibit G
It is very important for the wellbeing of the children that the parents can improve their communication and co-operate with each other respectfully. Notwithstanding that the father remains critical of the mother, and that his level of respect for her is low, it appears that his capacity to put aside his feelings in order to communicate with the mother about the day to day needs of the children in a child focussed way has increased over time, and I accept that there is no evidence currently that he has exposed the children to his negative views of the mother.
The mother’s evidence
The mother records in her affidavit, and it is common ground, that Y suffers from allergies which became evident shortly after her birth, and which have persisted throughout her childhood so far. The mother describes the considerable efforts that she has made to obtain appropriate assistance for Y, including medical advice and treatment, and trialling dietary measures to improve Y’s health.
The mother describes the assistance that she received from the maternal grandmother and the paternal grandmother following the birth of X, and from the maternal grandmother following the births of Y and Z. The mother acknowledges that the father assisted her on occasions with the children’s bedtime routines, and with pick-ups and drop-offs to day-care. It is common ground between the parents that the mother was the primary carer for the children during the parents’ relationship.
The mother describes the period post separation, from March 2020 until June 2020, as “acrimonious” and says that the father would attempt to discuss relationship issues with her in front of the children. The father concedes that he did so. The mother describes feeling that the father’s behaviour towards her was intimidating, and she sought the assistance of a counsellor at Centacare to help her.
The mother recalls that, in the immediate post separation period, the children spent time with the father at her parent’s home, and FaceTime with the father about twice each week. She says that Z was only 2 years old and did not engage too much with the calls, and she recalls the older children having “a good chat with their father.”[25]
[25] Mother’s affidavit paragraph 67
In the period from June to September 2020 the mother relied on relatives to facilitate the children’s time with the father, because when the parents saw each other the father would want to discuss their relationship in front of the children. Thereafter the mother facilitated some overnight time for the children with the father, although not weekly, and she commenced to use a communication book and encouraged the father to use it with her to communicate issues concerning the children’s health, education and development. The parents were able to organise for the children to spend time with the father over Christmas 2020 from 2.00pm on 25 December until 28 December 2020.
The mother deposes that Z has struggled with his personal and emotional development since the interim parenting orders were made on 16 March 2021[26]. She says that until 12 months ago Z was “extremely clingy”, and that he continues to exhibit some signs of clinginess.[27]
[26] Mother’s affidavit paragraph 82-83
[27] Mother’s affidavit paragraph 83
The mother says that Y has displayed signs of distress and has said to the mother “Mum, I just miss you too much.”[28]
[28] Mother’s affidavit paragraph 84
The mother expresses her concern that the father has exposed X to adult issues by discussing the parenting arrangements with her, and that this has caused distress to the child[29].
[29] Mother’s affidavit paragraph 85-86
The mother deposes to the attempts she has made to communicate with the father and she complains that his responses have been dismissive or unco-operative, including as recently as February 2022.[30]
[30] Mother’s affidavit paragraph 87(b)
The mother is aware that the father’s parents spend significant time in his home and are there to support him on certain days, and that they go on holidays with the father and the children. The mother deposes that she is “happy that our children have a benefit of a relationship with both their paternal and maternal grandparents.”[31]
[31] Mother’s affidavit paragraph 96
The mother opposes a week about regime for the children and provides three reasons[32]:
(a)The impact on Z. She says that Z does not cope well with a change of routine and often takes days to settle;
(b)The three children come home from holiday time with the father tired and unsettled, and Y’s allergic rhinitis flares up; and
(c)Y has told the mother that she misses her. In June and July 2022 Y had FaceTime calls with the mother from the father’s home to settle herself before sleep, and the mother says that it takes 2-3 days for Y to settle back into her routine at home after spending time with the father.
[32] Mother’s affidavit paragraph 97
The mother sets out in detail the research she has done and the efforts she has made to assist the children in relation to their health needs, including vaccination.[33]
[33] Mother’s affidavit paragraphs 99-145
The mother is clear to say that she proposes that X will continue with her primary education at City B Public School.[34]
[34] Mother’s affidavit paragraph 181
The mother sets out her reasons for wanting to enrol the children at E School, in a letter forwarded by her solicitors to the father’s solicitors dated 18 November 2020[35], and in her affidavit at paragraphs 178 and 193. In addition, the mother deposes that Y struggled with the parents’ separation and was anxious and sensitive, and that two of Y’s friends were due to attend E School, and the mother felt that Y’s transition to school would be easier if she also attended E School. Further the mother deposes that during the COVID19 school lockdowns in 2021 she experienced E School to provide a more supportive learning environment for the children and more assistance for the parents, than what was provided by City B Public school.[36]
[35] Mother’s affidavit Annexure 17
[36] Mother’s affidavit paragraph 183-192
The mother does not dispute that, in the period immediately post separation, she unilaterally completed an enrolment application form for the three children to attend at E School[37]. She said in her affidavit that she is aware that the father is adamant that he does not want the children to go to a Christian school[38]. She denied in cross examination that the father had made it known to her, prior to separation, that he did not wish for the children to attend a Christian school, and says that he did not make it known to her. The mother readily agreed that there was no agreement between the parents prior to separation for the children to attend E School for their primary or secondary education, and that there had been no agreement post separation either, and that the father had not provided his consent for the children to be enrolled at E School for primary or secondary education. She disagreed with the proposition that the father did not know that she had enrolled X and Y at E School, and she denied that she had not asked him to sign the form because she thought he would not consent. She said that the reason she had not asked the father to sign the form was that their communication was strained and he was quite aggressive. She said that she had tried to talk to him about the children’s enrolments and the feedback she had received is that he would not consent. Although it is clear on the face of the enrolment application form that the mother did not enter the father’s details, she said in her oral evidence that she had provided the school with his details verbally, and that as Z was already enrolled in the pre-school at E School the school had the father’s details.
[37] Exhibit E and Exhibit K
[38] Mother’s affidavit paragraph 146

The mother said in cross examination that her parents co-signed the enrolment form with her on 4 May 2020 because the children were living in their home, and that her parents were prepared to assist her with paying the school fees, and that she wanted them listed as emergency contacts. She agreed that she had entered information on the form including that “The children’s father is currently only allowed to visit the children at their home with me present as per legal advice. We are in the process of seeking a legal arrangement”. The mother denied that her entry contributed in any way to the father allegedly having difficulties in his communications with staff at the school, and she stood by her entry and said that she had told the school that she had concerns at that time, but she did not intend to convey that the father presented a risk to the school or to the staff or that he ought not to be included in communications, and she reiterated that she had specifically asked the school to include the father in communications. She consistently denied that there had been an element of secrecy in the way she went about completing the application for the enrolment, and said that she did not try to hide her intentions from the father.
The mother agreed that she had commenced the process to end X’s enrolment at City B Public School from the end of 2020, and that she had informed the school that X would be attending E School in 2021. Because the father’s consent for X to attend E School in 2021 was not forthcoming, the mother had to send an email to City B Public School in early 2021 informing the school that X would be returning. Fortunately City B Public School still had a place for X there. The mother said that she had told X that she was accepted for a place at E School, and that she would love for X to start at E School, but had not told X that she was going to E School. It was unfortunate for X that she found herself to be in a circumstance of great uncertainty in relation to what school she would be attending in 2021, and that she was exposed to the adult issues arising out of the parental conflict. The mother bears the responsibility for putting X in that position, when she knew full well that the father was unlikely to consent to X changing schools.
Having regard to the evidence overall[39] I consider that the mother desires and tries to have a good co-parenting relationship with the father. To her credit she has generally maintained positive and sensitive communications with him throughout the course of the separation and up to the present time, which has assisted both parents to keep the children’s needs at the forefront of their minds when dealing with day to day issue, such as items left behind and health and medical concerns. I consider that the current improved state of the parental communication is a testament to the mother’s patience in dealing with the father and ensuring that he has had access to all information concerning the children, as well as to the father’s emerging capacity to prioritise the children’s needs above his own.
[39] Including in Exhibits A, B, F & G
Having regard to the evidence of the parental conflict in front of the children prior to and in the post-separation period, and noting the father’s adjustment issues and his lack of respect for the mother, that the mother took appropriate steps to remove the children from the parental conflict, by making the decision to separate, and by insisting that the parents did not discuss their relationship issues, or the parenting arrangements for the children, in front of the children. I consider that the mother harboured genuine concerns about the father’s capacity to manage the individual needs of the children in the period post separation, due to her concern that he was suffering from depression and that he may misuse alcohol, and due to the young ages of the children at the relevant time.
Although not everything that the mother said in cross examination withstood scrutiny, I do consider that she gave her evidence in a free and fulsome way and that she was responsive to the questions she was asked. She made appropriate concessions, was thoughtful and child focussed in her responses, and she was not unduly critical of the father. I was impressed with her patience and willingness to communicate with the father and consider that the mother prioritises the children’s needs. She has an appropriate level of respect for the children’s father and values the children’s important relationships with him.
Ms J - the maternal grandmother
The maternal grandmother provided an affidavit which she swore on 22 February 2022. As noted previously, she was not required for cross examination.
Ms J lives near City B with her husband, Mr Q, and she has seven grandchildren, including the three subject children.
Ms J expresses her willingness and ability to assist the three children with emotional, physical and financial support. In particular she says that the mother and the children visit her home at least once a week, and that she and her husband do their best to support the mother and the children, including by permitting her to live in their investment property since July 2020. Ms J assists the mother on a weekly basis by collecting X from City B Public school while the mother collects Y and Z from E School. She says that the arrangements work well and that X travels with her without any problem. She sees Z and Y after school when they attend to with the mother to pick X up.
Ms J says that she is aware that the E School fees amount to approximately $8000.00 per year for two students, and she and the maternal grandfather have paid fees of $4,750.00 in 2021, and $5,353.78 in 2022. She says that they have paid $2,000.00 toward the 2023 school year for Y and Z’s education and that:
“I will continue in assisting [Ms Stanbury] with paying the school fees and with other expenses as best to assist [X], [Y] and [Z].”
I accept the unchallenged evidence of the maternal grandmother that she is willing to assist the mother and the children, and that the maternal grandparents have assisted the mother with the payment of school fees and other expenses in the past, and that they will continue to provide such assistance in the future.
Child Inclusive Conference memorandum – Family Consultant Mr K
The memorandum, prepared on 1 June 2021, records that the parents had reached agreement to share parental responsibility, including in relation to the children’s education, although it was noted that an issue in dispute was the father seeking to enrol Y and Z in City B Public School and the mother seeking to enrol the children in E School.
The father proposed a gradual increase in the children’s time with him until a week about arrangement, and the mother proposed the children live with her and spend time with the father similar to the arrangement provided in the interim parenting orders made in March 2021. The mother believed it would be better for the children’s midweek time to occur on an alternate Thursday overnight and she was open to reviewing the arrangements in the future, say in 12 months or when Z commenced kindergarten in 2023 or 2024.
The father agreed that he had struggled with situational depression at separation and had been prescribed medication and had engaged with a psychologist. It was noted that the father
“…questioned the effectiveness of the medication and appeared nonchalant about his inconsistent compliance with his medication.”
Both parents describe their communication as “strained” and it was noted that the current communication is mostly in written form, including a communication book which the mother said the father did not consistently utilise. Both parents expressed wanting to be able to consistently communicate in person, and both believed that the other parent is responsible for their inability to do so.
The family consultant noted:
“…that the children’s exposure to parental conflict has the potential to damage one or both parent/child relationships as children grow older…exposure to parental conflict can also impact on children’s general development, including their emotional and psychological wellbeing, and their education and social development.”
The family consultant noted that the parents appeared to disagree in their approach to the children’s health and medication, which may be detrimental to the children’s health and could result in the children receiving inconsistent treatment, and irregular administration of prescribed medication and other self-help supplements.
In relation to the children’s schooling it was noted that X attends City B Public School and Y attends E School Christian School and is in kindergarten. Z attends a pre-school attached to E School. Both parents indicated that they would like for the children to attend the same school for practical reasons and so that they can have a shared educational experience. The family consultant noted that it maybe that X and Y are settled and comfortable at their current schools, and that a change of school for either of them would be a significant adjustment, particularly in relation to forming new peer relationships, educational values, daily school related routines and the general school environment.
The parents agreed that Y is currently doing well and enjoying attending E School and it appears agreed that she may struggle with a change of school given her initially shy, quiet nature. The mother described that Y “has come out of her shell” since commencing kindergarten. The mother believes that X would benefit from the smaller and lower number of classes at E School and noted that X has a friend that has moved from City B Public School to E School, and that E School would provide consistency through High School. The mother reported recent feedback from a parent teacher interview which suggested that X is “quiet” and “withdrawn” at City B school, which is unlike X.
The family consultant reported that the father identified three key reasons why he wishes for the children to attend City B Public School, in order of importance:
(a)The issue of religion and not wanting the children’s education to be taught with creationism as a fundamental value and noting neither parent is Christian – the mother identified as Christian and reports attending a Christian church without the children;
(b)Wanting the children to share their schooling experience through attending his preferred school; and
(c)The issue of affordability of school fees for E School, questioning the maternal grandparent’s ability to consistently support this and noting the mother’s inability to afford this herself.
The mother spoke about the parents previously agreeing for Z to attend the preschool attached to E School. The mother likes the ethos of the school, especially regarding the values and attitude she wants the children to be raised with. With this in mind she unilaterally enrolled Y into the school during the period after separation, when the parents’ co-relationship and communication was particularly poor.
Mr K recommended that, given the parental conflict, the parents may benefit from completing a Parenting after Separation Course. He recommended that if a change of school is required for either X or Y it is suggested that this occur in a well-planned manner to support the children as best as possible with this significant change. He noted that the parents’ co-parenting communication will need to improve if they are going to be able to effectively have discussions and make joint decisions about the children.
Primary considerations
S. 60CC (2) (a) Benefit to the child of having a meaningful relationship with both of the child’s parents
The parents agree that the children have meaningful relationships with each of the parents and that the children benefit from such relationships. On behalf of the father it was conceded that adopting either one of the parent’s proposals will provide an outcome for the children which will allow each child to continue to have the benefit of a meaningful relationship with both of the child’s parents.
S.60CC (2) (b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse neglect of family violence
It was expressly conceded that neither parent contends that there is a need to protect the children from harm in household of the other parent. In other words, each parent agrees that the children are not at risk of being subjected or exposed to abuse, neglect or family violence while in the care of the either of the parents.
Relevant additional considerations
S.60CC (3) (a) Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
The children X and Y both declined to speak with the family consultant during the child inclusive conference. Z was too young to be interviewed. The court has no independent evidence about the children’s views.
I have regard to the mother’s evidence, which was corroborated by the father during his oral evidence, that Y has told the mother that she misses her when she is with the father, and that Y has, on occasions, expressed a wish to have a FaceTime call with the mother before settling down to sleep in the father’s home. I consider that this demonstrates that the father is child focussed and it is to the father’s credit that he has assisted Y in this way.
S.60CC (3) (b) The nature of the relationship of the child to:
(i) each of the child’s parents; and
(ii) relatives (or other relevant persons)
The family consultant observed the interactions of the children with each of the parents and both parents were observed to interact warmly and positively with the children, and the children’s interactions, responsiveness and comfort in the presence of each of the parents was obvious.
S.60CC (3) (c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child
The father says that during the parents’ relationship the mother did not often consult him when it came to making big decisions for the children, and that he would often follow her instructions so as not to cause arguments between them.[40] This is in the context of the parents’ agreement that the mother was the primary carer for the children and the father was the financial provider, and I consider that it most likely that the father acquiesced and was by a large content to leave such decisions up to the mother.
[40] Father’s affidavit paragraph 10, 37
As previously noted, during their relationship the parents attended medical appointments together for Y in relation to her allergies and her vaccination status.
The parents arranged for X to be enrolled in City B Public School and they agreed that she would not participate in Scripture at the school.
The parents agreed that Z would attend at the E School pre-school, which he commenced in January 2021.
I consider that during their relationship both parents took such opportunities to participate in making decisions for the children and to spend time and communicate with the children, which were consistent with the roles they each adopted by mutual agreement and that they each fulfilled throughout their relationship.
Post separation, apart from the occasions when the father did not take up the mother’s offer to spend time with Y and the other children on Y’s birthday in 2020, and at least some of the opportunities he was offered to spend time with the children overnight from November 2020 onwards, I consider that both parents have taken every opportunity to participate in making decisions for the children, and to spend time and communicate with the children.
S.60CC (3) (ca) The extent to which each of the child’s parents has fulfilled or failed to fulfil, the parent’s obligations to maintain the child
I am satisfied that both parents have met and continue to fulfil their obligations to maintain the children. The father works in his own business and pays $200.00 per month for their support.[41]
[41] Father’s affidavit paragraph 77-78
Both parents share equally the cost of the children’s medical appointments and psychologist fees.
S.60CC (3) (d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of the parents; or
(ii) any other child, or other person, with whom he or she has been living
One of the difficulties in this trial is that there is little expert evidence in relation to the key issues in dispute, in particular in regard to the father’s proposal for the children to live in an equal time arrangement, and which school the children should attend.
Equal time
The father’s proposal for equal time involves a significant change to the children’s current circumstances. It significantly reduces the time that the children will spend with the mother, and with the maternal grandparents and the maternal cousins. The children currently attend at the maternal grandparents home at least once each week and the maternal grandmother assists the mother on a weekly basis with school pick up for X.
The father’s proposal requires that the children change the home in which they live week in and week out, and they would no longer have one established home base as they do now, and to which they are accustomed.
I consider that there may be significant challenges for the children, and for the parents, in participating in an equal time arrangement. Equal shared care arrangements can be particularly difficult for children, as the children are required to transfer constantly from one home to another. The children must pack up and relocate every week, which some children find burdensome and tiring. The children must constantly adjust to their changed physical environment, their different personal items, different behavioural expectations, parental responses, routines, social opportunities and support networks. Some children adapt well and other children find it very challenging, and it is difficult to predict the outcome for each individual child.
In this family the communication between the parents is challenging for each of them. Overall the father’s oral evidence was consistent with the theme of his affidavit, essentially a series of complaints about the mother, and criticisms of her, which raises a concern for the court as to how the parents could co-parent the children in an equal time arrangement when one parent is not only unable to express any positive thought in relation to the other, but demonstrates a significant lack of respect for the other parent. The parents have not demonstrated the capacity to resolve fundamental issues relating to the children’s care, such as the spend time arrangements after separation, with the father maintaining the view that the mother has unreasonably limited his time and placed onerous obligations on him, notwithstanding the evidence to the contrary.
The father’s evidence raises concern about how he, as a parent who holds the belief that the mother has done something that she believes to be harmful to the children, just for show and to look good for the court, would be able to co-parent the children on an equal time basis with the mother, given the challenges and pressures that an equal time arrangement for the children in each household would entail.
Where the parents remain in such conflict, then I consider it highly unlikely that they will manage an equal shared parenting arrangement successfully. If the children are placed at the centre of parental conflict then their wellbeing is compromised, and their capacity to maintain positive relationships with both parents is undermined.
The current young ages of the children and their developmental needs require consideration. I accept the mother’s evidence that Y misses her and struggles with the separation from her primary caregiver and that Z is clingy following time with the father. Although X might cope, the children have always lived together and neither parent proposes that they ought to live separately and apart. I consider that the developmental needs of the younger children must be prioritised. The father’s proposal requires that the children are separated from their mother who has been their primary caregiver, for one week each alternate week. There is no expert evidence which assists the court to consider the impact of the father’s proposal on the children. I have regard to the only expert evidence, contained within the child inclusive conference memorandum that
“The children currently live with the mother and spend time with the father generally consistent with the current order. It appears generally they agree the children have adjusted to the current arrangement and that they have a good relationship with both parents currently.”[42]
[42] Exhibit E paragraph 20
Schooling

Pursuant to S.61DA(4) of the Act, the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The court is satisfied that in this case it is not in the best interests of the children for the parents to have equal shared parental responsibility for the children in relation to major long term decisions about the children’s enrolments at school. I consider that the welfare of the children will be clearly advanced by an order that vests sole responsibility for decisions about the children’s enrolment at school with one parent.
The parents told the family consultant that they would each like the children to attend the same school for practical reasons, however they have not been able to achieve this goal and each parent accuses the other of having taken unilateral actions with respect to enrolling the children at school. There is a stalemate between the parents regarding the enrolment of the children into schools which has continued since shortly after separation. The failure of the parents to be able to reach consensus on this issue has placed the children at the centre of parental conflict and has left the children in a situation of uncertainty and exacerbated the parental conflict.
The court is concerned about the father’s demonstrated lack respect for the mother as a parent, and his focus on criticising her. The father’s critical and resentful attitude towards the mother, impedes the ability of the parents to consult with each other and make a genuine attempt to reach joint agreements about the children’s education.
I found the mother to be significantly more proactive, respectful and fore bearing in her attitude to the father and in her communications with him, than he is with her. The mother is a capable parent who has historically made the major long term decisions for the children during the parents’ relationship. She is sensitive to the individual needs of each child and goes to considerable lengths to obtain assistance for each child as required.
I am confident that the mother is capable and will make child focussed decisions in relation to the education of the children and that she will take into account the father’s views on what is best for the children.
I have no hesitation in accepting the unchallenged evidence of the maternal grandmother that she will assist the mother to pay the school fees for the children to attend E School.
I consider that the parents ought not to have equal shared parental responsibility for major long term decisions about the children’s education. The children ought not to be placed in a position where they are at the centre of conflict and uncertainty while the parents battle out their philosophical differences.
I consider that the mother’s proposal in relation to the children’s education is more nuanced and child focussed than the father’s. The younger children are clearly settled at E School, and I take into account in particular that Y is a reserved and shy child who may struggle with a change of school. The father’s focus is on his conscientious objection to the children receiving a Christian education, and his own level of comfort, rather than on the younger children’s lived experiences and whether or not they are happy and well settled at their schools.
I consider that it is not appropriate for the court to make a positive order that the children attend at a particular school where there is no expert evidence as to the suitability of one particular school over another. I consider it more appropriate to leave the decision up to at least one of the children’s parents, given that the parents have been unable to reach agreement, notwithstanding the child inclusive conference and mediation. It is unfortunate that the parents have been unable to come to a joint decision, noting that one of the principles underlying the objectives of the Act is “parents should agree about the future parenting of their children”.
I consider that the mother has taken a genuine and thoughtful approach to the children’s welfare generally and that she is well equipped to make the decision about what school they will attend. I consider that the mother has demonstrated greater insight into the emotional needs of the children than the father has, and that the children’s emotional needs are linked to the decision as to what school will best suit each individual child.
I take into account that the mother proposes to maintain X’s enrolment at City B Public School for primary school, which will maintain X’s stability until she completes primary school, at which time her situation can be reassessed in order to meet her evolving needs. As noted previously, X will have to change schools when it comes time for her to go to High School. I consider that the mother is capable to make a decision in relation to X’s High School education that she sees fit at the relevant time, taking into account X’s educational and emotional needs.
I consider that the best interests of the children will be served by an allocation of sole parental responsibility to the mother in respect of the children’s enrolment at school.
Major long term decisions concerning the children’s health
The father’s changed position in relation to the immunisation issue takes account of the difficulties which were inherent in him asking the court to determine the issue of whether or not the children should be immunised, absent any expert evidence, and in circumstances where neither parent has suggested that they have any relevant medical, public health or other expertise which would qualify them to give opinion evidence about whether or not it is in the best interests of each individual child to receive an immunisation.
The significance of various forms of evidence in a case where the court is asked to make an order, in the best interests of a child, where one parent wants vaccination, and the other parent does not and expresses concern about possible adverse effects, is evaluated and succinctly discussed by His Honour Judge Smith (now Justice Smith) in Palange & Kalhoun [2022] FedCFamC2F 149.
In Palange the court had expert opinion evidence from a doctor in the form of “…a concise affidavit setting out her qualifications, opinion and advising the reference material upon which her opinions were based.”[49] The doctor, who has qualifications in Public Health, and experience in the area of vaccination, was not required for cross examination. His Honour noted that there was no challenge to the doctor’s expertise and she was not cross examined on her opinion evidence.
[49] Palange & Kalhoun at paragraph 57
In Palange His Honour discussed the relevant provisions of the Evidence Act 1995 (Cth) (“the Evidence Act”), which the court is required to apply when admitting and weighing evidence, in the context of “child-related proceedings” under Division 12A of Part VII of the Act. His Honour considered that the hearsay exclusion applied to
“the parties evidence of what they say various public health bodies have said, and to the contents of the two pamphlets or articles annexed to the mother’s affidavit”[50]
[50] Ibid at paragraphs 63- 69
His Honour also considered that the parties’ opinions, which are not based on specialised knowledge, were inadmissible to prove the existence of a fact about the effects of COVID19 infection or vaccinations on children, or the relative risks and benefits[51].
[51] Ibid at paragraphs 70-84
When discussing whether or not the evidence that each party lead about COVID19 infections and vaccinations could be admitted pursuant to the “common knowledge” provision in s. 144 of the Evidence Act, His Honour referred to the decision of the Full Court of the Family Court of Australia in McGregor & McGregor [2012] FamCAFC 69, wherein the Full Court said, inter alia, from [67]-[71] that:
“It is important to note from the outset that the information to which the section refers is of a kind not reasonably open to question and is capable of verification from authoritative source.”
“In practice there would be few issues in respect of which reference to extrinsic materials would not be “reasonably open to question.”
“A more recent example is in Mains & Redden [2011] FamCAFC 184 which involved consideration of whether administering a number of conventional and almost universally administered vaccinations of children against a variety of conditions was in the child’s best interest. The conflict of expert opinion evidence in relation to the benefits and risks of immunisation precluded any prospect of the court taking “judicial notice” under s.144 of the Evidence Act. If an issue in proceedings is controversial, it is almost inevitable that there will be differing credible expert opinions in relation to it and demonstrably it would not fall within the operation of s. 144.”
Judge Smith found that the articles annexed by the mother were not admissible pursuant to s.144 of the Evidence Act. His Honour found that the only admissible evidence in the proceedings before him, if the Evidence Act applied, would be the doctor’s opinion.
His Honour then went on to discuss Subdivision D of Division 12A of Part V11 of the Act, in particular s.69ZT which provides:
(1) These provisions of the Evidence Act 1995 do not apply to child-related proceedings:
(a) Divisions 3, 4 and 5 of Part 2.1 (which deal with general rules about giving evidence, examination in chief, re-examination and cross-examination), other than sections 26, 30, 36 and 41;
Note: Section 26 is about the court's control over questioning of witnesses. Section 30 is about interpreters. Section 36 relates to examination of a person without subpoena or other process. Section 41 is about improper questions.
(b) Parts 2.2 and 2.3 (which deal with documents and other evidence including demonstrations, experiments and inspections);
(c) Parts 3.2 to 3.8 (which deal with hearsay, opinion, admissions, evidence of judgments and convictions, tendency and coincidence, credibility and character).
(2) The court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 not applying because of subsection (1).
(3) Despite subsection (1), the court may decide to apply one or more of the provisions of a Division or Part mentioned in that subsection to an issue in the proceedings, if:
(a) the court is satisfied that the circumstances are exceptional; and
(b) the court has taken into account (in addition to any other matters the court thinks relevant):
(i) the importance of the evidence in the proceedings; and
(ii) the nature of the subject matter of the proceedings; and
(iii) the probative value of the evidence; and
(iv) the powers of the court (if any) to adjourn the hearing, to make another order or to give a direction in relation to the evidence.
(4) If the court decides to apply a provision of a Division or Part mentioned in subsection (1) to an issue in the proceedings, the court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of the provision applying.
(5) Subsection (1) does not revive the operation of:
(a) a rule of common law; or
(b) a law of a State or a Territory;
that, but for subsection (1), would have been prevented from operating because of a provision of a Division or Part mentioned in that subsection.
As can be seen the hearsay and opinion rules in the Evidence Act are covered by s.69ZT and so do not apply to the parenting proceedings, and Judge Smith found that:
“the parties hearsay and opinion evidence about what public health bodies have said about the COVID19 vaccination safety for children, including the articles, as well as the mother’s opinion evidence about the child’s health and the risks …was admissible.”[52]
and that
[52] Ibid paragraph 101
“ the question of what weight is to be given to evidence once admitted is a separated step”
which
“takes on particular significance where… evidence which is admitted only by operation of s 69ZT(1) may, by subsection (2), be given “such weight (if any) as the court thinks fit.”[53]
[53] Ibid paragraph 103
His Honour determined that:
“ In the absence of any relevant qualifications of either party to give opinion evidence about this complex issue I do not consider it appropriate to give any weight to either of their opinions on the medical and public health issues associated with COVID19 infection or vaccination”[54]
[54] Ibid paragraph 109
For the same reasons as are set out above, and noting that the mother had no expertise to give evidence on “complex medical issues” concerning the “medical, psychological and contagion risks specific to the child”, His Honour did not consider it appropriate to give any weight to the mother’s opinion evidence on such issues, and noted that the child’s treating medical practitioners or similarly qualified experts could have given the evidence.[55]
[55] Ibid paragraph 110
As the authors of the pamphlets which were attached to the mother’s affidavits were not available to be cross examined the court gave no weight to those pamphlets.[56]
[56] Ibid paragraph 111
His Honour gave substantial weight to the unchallenged and uncontested evidence of the doctor who he considered was a highly qualified expert, whose opinion was admissible pursuant to s. 79 of the Evidence Act.[57]
[57] Ibid paragraph 112
Finally Judge Smith noted s. 69ZX(3) of the Act, which provides that the court may receive into evidence material from other proceedings, and noted that such material might become relevant to the determination of other applications where the issue is COVID19 vaccination of children.[58]
[58] Judge Smith quoted from Donnell & Dovey [2010] FamCAFC 15 [210]-[2017]
The court has jurisdiction to make the restraining order proposed by the father pursuant to s.68B of the Act if the court considers that it is appropriate for the welfare of the child. Such a restraint will leave the issue of vaccination against COVID19 to be resolved by the parents in the proper exercise of their equal shared parental responsibility, and will permit them to take advice and guidance from each child’s treating medical practitioner prior to providing the consent required for such vaccinations to be administered.
The principal reason why the mother seeks an order that she have the ultimate authority to make major long term decisions about the children’s health, in the event that the parents are unable to resolve their differences, has its’ genesis in the father’s original application for an order that the parents to do all things required to cause each child to be immunised according to the recommendations of the NSW Health Department. That is clear from reading the mother’s affidavit[59].
[59] Mother’s affidavit paragraphs 99-101, 107-117
The evidence in Exhibits F and H demonstrates not only that the mother is willing to keep, and has kept, the father informed about all health issues concerning the children, but also that she welcomes his involvement, and also demonstrates that the father has participated in medical appointments and treatments for the children.
The evidence demonstrates that the mother has arranged for the immunisations for Y and Z to be brought up to date, and that her approach has been informed by the advice of the children’s treating medical practitioners in relation to the each child’s specific health requirements.
I am satisfied that, in relation to the children’s health, the parents have demonstrated a far greater capacity to communicate and cooperate, possibly assisted by advice from the children’s treating medical practitioners, than they have in relation to the children’s schooling where they are simply not able to agree at all.
I consider that the Father’s input in relation to the issue of the immunisation of Y and Z may have assisted in ensuring that the immunisations were completed.
I consider that both parents are devoted to meeting the needs of the children and that they are each responsible parents. The mother in particular is to be commended for taking every opportunity to inform herself about medical decisions which are required to be made and she has proven that she is capable and willing to take on board medical advice to ensure the children’s individual health needs are properly met.
I am satisfied that the parents should have equal shared parental responsibility for major long term decisions about the children’s health, and in relation to all major long term issues save and except for the children’s enrolment at school.
CONCLUSION
I find that each parent has the capacity to meet the day to day needs of the children and that the children will emotionally be able to cope with time away from the other parent in order for the orders which the court will make to be implemented. The mothers proposal that the children can cope with up to two weeks at a time away from her during school holiday periods whilst not determinative, underscores but the children will benefit from being able to spend substantial and significant time in the household of each of the parents.
I consider that the mother’s proposal best meets the needs of the children currently and will continue to provide an environment in which the children can benefit from a meaningful relationship with both parents, and will allow both parents to retain a meaningful and involvement in each child’s life.
During final submissions Counsel for the father properly submitted that the court is not bound by the proposals of the parties and is able to make orders which the court considers are in the best interests of the children, which may be in between each parties’ respective positions. Counsel for the mother made no submission to the contrary, and his submissions were properly concentrated on the challenges with the father’s proposal for equal time, and the lack of expert evidence about the impacts of the significant changes inherent in the children spending equal time with each parent. Counsel for the mother properly submitted that the highest state of the evidence is that the children had adjusted to the spend time with arrangements which were in place at the time of the child inclusive conference in June 2021, and the mother’s evidence as to the children’s current experiences, discussed previously.
The mother’s proposal is that the spend time arrangements are extended immediately by one night each fortnight, so inferentially she accepts that the children have the capacity to manage an extension of time, notwithstanding the challenges she has raised, but certainly not to the extent that they should be required to live in an equal time arrangement.
Having regard to the evidence overall I consider that, commencing in Term 1 2024 and thereafter, it is in the best interests of the children for them to spend one further additional night each fortnight with the father during school terms, on top of what the mother currently proposes for the children. I have taken into account in making this decision that the children have close relationships with both parents and that they will benefit from both parents having a meaningful involvement in their lives, to the greatest extent possible, which is consistent with the children’s need for stability and routine. I also take into account that there are no identified risk issues in either household.
I consider that the orders the court will make will allow the children to gradually adjust to spending the additional time with the father that the mother proposes currently, and also the further one night per fortnight from Term 1 2024 that the court intends to order. The children will have one full year to adjust to the four nights per fortnight that the mother currently proposes they will spend with the father. I take into account that the mother expressed to the family consultant that she was prepared to review the parenting arrangements in 2023 or 2024. I take into account that the parents agreed that generally the children had adjusted well to spending three nights each fortnight with the father during school terms throughout 2021 and 2022, after the interim orders were made.

I take into account that by 2024 Z will have attained the age of six years and that it is likely that he will have adjusted to spending four nights per fortnight with the father, and that he will most likely be able to accommodate, and will benefit, from a further adjustment to him spending five nights each fortnight with the father. I take into account that Y will be eight and one half years old by the time the further additional one night each fortnight is implemented and I consider that Y will most likely adjust to the introduction of such an additional night. There appears no issue between the parents that X is an adaptable child who enjoys her time with both her parents.
The addition of one night per fortnight for the children with the father from 2024 onwards extends the opportunity for him to be involved in the children’s weekly routines including their school routines. I have regard to the emerging improvement in the father’s capacity to prioritise the children’s needs, and the improvement in the parental communication, and consider that both parents have the capacity to meet the day to day needs of the children, and that spending five nights each fortnight in the care of the father during school terms from 2024 onwards is in the children’s best interests.
I consider that the orders provided at the forefront of these reasons are the orders that are in the best interests of each child.

I certify that the preceding two hundred and sixteen (216) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Carty.
Associate:
Dated: 16 December 2022

File number(s):	NCC 258 of 2021
Judgment of:	JUDGE CARTY
Date of judgment:	16 December 2022
Catchwords:	FAMILY LAW – PARENTING – Allocation of parental responsibility – whether equal time with each parent will promote best interests of children – considerations relevant to court making order for equal shared care-live with arrangements - spend time with arrangements – children’s schooling- application for passport and international travel
Legislation:	Australian Passport Act 2005 s 11 Evidence Act 1995 (Cth) ss 79,144 Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAC, 68B, 69ZT, 69ZX, Division 12A, Part VII
Cases cited:	Eden & Eden-Proust [2011] FamCAFC 138 McGregor & McGregor [2012] FamCAFC 69 Palange & Kalhoun [2022] FedCFamC2F 149 Re G: Children’s Schooling [2000] FamCA 462; (2000) 26 Fam LR 143; FLC 93-025 Re Child’s Passport Application [2008] FMCAfam 1031
Division:	Division 2 Family Law
Number of paragraphs:	216
Date of last submission/s:	5 August 2022
Date of hearing:	4 and 5 August 2022
Place:	Newcastle
Counsel for the Applicant:	Mr Bithrey
Solicitor for the Applicant:	Merridy Elphick Lawyers
Counsel for the Respondent:	Mr Longworth
Solicitor for the Respondent:	Everingham Solomons Solicitors

Table of Corrections
20 December 2022	The title of the judgment has been corrected from “Stanbury” to “Stanbury”.
In the order the name of the respondent has been corrected from “ Stanbury ” to “Stanbury”.
In paragraph 1 one reference to “ Stanbury” has been corrected to show “Stanbury”.
Page 23 title of evidence “Ms J” has been corrected to show “Ms J”.
In paragraph 98 one reference to “ Stanbury” has been corrected to show “Stanbury”.
In paragraph 99 two referenced to “ Stanbury” have been corrected to show “Stanbury”.
In paragraph 100 one reference to “ Stanbury” has been corrected to show “Stanbury”.

NCC 258 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR FLORENCE Applicant
AND:	MS STANBURY Respondent

order made by:	JUDGE CARTY
DATE OF ORDER:	16 December 2022