Fratto & Fratto - [2023] FedCFamC1F 777

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fratto & Fratto [2023] FedCFamC1F 777

File number(s): MLC 13554 of 2018

Judgment of: CARTER J

Date of judgment: 14 September 2023

Catchwords: FAMILY LAW – CHILDREN – where parents are unable to agree on children’s time with the father – where the mother and Independent Children’s Lawyer proposed limited day time arrangements – where the parents have been engaged in protracted litigation – acrimonious relationship between the parents – where the parents have each perpetrated family violence on the other – where the parents are engaged in a narrative of blaming the other – where the greatest risk to the children is the ongoing exposure to the parents’ hostile relationship

Legislation:
Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15

Cases cited:
Bielen & Kozma (2022) 66 Fam LR 59

Fairfield & Hoffman (2021) FLC 94-045

Mazorski v Albright (2007) 37 Fam LR 518

Division: Division 1 First Instance

Number of paragraphs: 228

Date of hearing: 24 – 27 July 2023

Place: Melbourne

Counsel for the Applicant: Mr Keith Nicholson

Solicitor for the Applicant: Medson Legal

Counsel for the Respondent: Mr Robert Burns

Solicitor for the Respondent: Pear and Pair Law

Counsel for the Independent Children's Lawyer: Mr Michael Clarke

Solicitor for the Independent Children's Lawyer: Joliman Lawyers
ORDERS

MLC 13554 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FRATTO

Applicant

AND:
MR FRATTO

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

CARTER J

DATE OF ORDER:

14 SEPTEMBER 2023

THE COURT ORDERS BY CONSENT THAT:
1.All extant parenting orders be discharged.

Parental responsibility
2.Subject to Order 3, the mother have sole parental responsibility in relation to the health and education of the children X born 2012 and Y born 2015.
3.Prior to exercising a long-term decision and save in the event of an emergency:
(a)the mother shall contact the father by email or via AppClose to provide him with details as to the decision to be made, the options available and her proposed course of action;
(b)the mother shall afford the father a period of seven days to respond to the communication;
(c)the mother shall give due consideration to any input received by the father;
(d)the mother shall advise the father of the decision once made within seven days via email or AppClose.

4.The mother and father have equal shared parental responsibility for the children for all other issues.
5.The children live with the mother.

THE COURT ORDERS THAT:
The children’s time with the father
6.The children spend time with the father as follows:
(a)each alternate Saturday and Sunday from 9.00 am to 5.00 pm on each of the days for the next four alternate weekends following the making of these orders;
(b)then each alternate weekend from 9.00am Saturday to 5:00 pm Sunday for the next four alternate weekends; and
(c)thereafter, each alternate weekend;
(i)from the conclusion of school Friday or 3.30 pm in the event the children do not attend school that Friday; and
(ii)until the commencement of school Monday, or 8.30 am in the event the children do not attend school that Monday.

7.For the long summer holidays 2023/2024 time shall occur in accordance with Order 6(c) herein.
8.Commencing term 1, 2024, the children spend time with the father as follows:
(a)during school terms, each alternate weekend commencing on the first weekend after the resumption of the new school term;
(i)from the conclusion of school Friday or 3.30 pm in the event the children do not attend school that Friday; and
(ii)until the commencement of school Monday, or 8.30 am in the event the children do not attend school that Monday.

(b)during the short school term holidays from the conclusion of school on the last day of the school term to 6:00 pm on the second Saturday of the school term holiday:
(c)during the long summer holidays, for 21 nights:
(i)with the time to commence at the conclusion of school on the last day of term in 2024 and each alternate year thereafter and to conclude at 6:00 pm 21 nights later, and
(ii)with time commence at 6:00 pm on 2 January and conclude at 6:00 pm 23 January in 2026 and each alternate year thereafter.

THE COURT FURTHER ORDERS BY CONSENT THAT:
Special occasions
9.For special occasions as follows:
(a)for Christmas;
(i)with the father, if not already in his care, from 9:00 am to 2:00 pm in odd numbered years and from 2:00 pm to 7:00 pm in even numbered years;
(ii)with the mother, if not already in her care, from 9:00 am to 2:00 pm in even numbered years and from 2:00 pm to 7:00 pm in odd numbered years

(b)for the father’s birthday and each of the children’s birthdays, if not already in the care of the father;
(i)from after school or 3:30 pm to 6:00 pm if a school day and
(ii)from 2:00 pm to 6:00 pm if a non-school day.

THE COURT FURTHER ORDERS THAT:
(c)for the mother’s birthday and each of the children’s birthdays, if not already in the care of the mother;
(i)from after school or 3:30 pm to 6:00 pm if a school day and
(ii)from 2:00 pm to 6:00 pm if a non-school day.

THE COURT FURTHER ORDERS BY CONSENT THAT:
(d)for Easter;
(i)if not already in the care of the father, from 10:00 am to 4:00 pm on Easter Sunday in odd numbered years and from 10:00 am to 4:00 pm on Good Friday in even numbered years;
(ii)if not already in the care of the mother, from 10:00 am to 4:00 pm on Easter Sunday in even numbered years and from 10:00 am to 4:00 pm on Good Friday in odd numbered years;

THE COURT FURTHER ORDERS THAT:
(e)for Mother’s Day with the mother from 6:00 pm on the Saturday immediately preceding Mother’s Day until the commencement of school Monday;
(f)for Father’s Day with the father from 6:00 pm on the Saturday immediately preceding Father’s Day until the commencement of school Monday.

Changeovers
10.Changeover that does not occur at the children’s school will occur in the carpark at McDonalds Town B. Unless otherwise agreed, the changeover shall be effected by:
(a)the father and/or the father’s partner; and
(b)the mother and/or the maternal grandmother.

Communication
11.The children have telephone or electronic communication (including kids’ messenger) with each of their parents between 6:00 pm and 6.30 pm each Monday and Friday. The parent who has the children in their care shall initiate the contact with the other parent and ensure that the children have access to a charged telephone or device with sufficient reception and/or data.
12.The parents forthwith do all acts and sign all documents necessary to download and utilise the parenting communication application ‘AppClose’ to discuss all matters pertaining to the children (save that in relation to communication regarding long term decisions, the parents may also utilise email).

Restraints
13.Each parent be and are hereby restrained by injunction from:
(a)insulting, belittling, degrading, rebuking, abusing or otherwise denigrating the other parent or a member of their immediate household or family in the presence or hearing of the children or either of them;
(b)discussing these proceedings or any dispute about the children’s living or care arrangements with or in the presence or hearing of the children or either of them;
(c)showing the children or either of them any document associated with these proceedings;
(d)using physical discipline on the children or any of them;
(e)using the children or any of them to pass messages to the other parent;
(f)attending any of the children’s extra-curricular activities outside of school activities which do not fall within their time with the children pursuant to these Orders save as specified in Order 16(b);
(g)attending at the children’s school on a day the children are moving into the care of the other parent, save;
(i)to deliver the children to school that day; or
(ii)if requested to do so by the school; and

(h)permitting any other person to do anything prohibited under this Order.

14.The father be and is hereby restrained by injunction from taking the children to any medical practitioner, allied health or hospital for non-emergency treatment without the mother’s prior consent.

THE COURT FURTHER ORDERS BY CONSENT THAT:
15.Each parent keep the other informed of their current residential address, contact telephone number and email address for communication, and advise the other within 24 hours of any change to same.

THE COURT FURTHER ORDERS THAT:
Education
16.Each parent is authorised:
(a)to obtain from the children’s school all notices, letters, school reports, photographs and other documents pertaining to the children’s education at the expense, if any, of the requesting parent; and
(b)to attend all school events, (including parent/teacher interviews) and end of year concerts or other functions to which parents are usually invited PROVIDED THAT the parents do not approach within 10 metres of each other at any such event.

17.The father shall provide the mother with not less than seven days’ notice of his intention to attend any school function or end of year concert.

Provision of information
18.Both parents have leave to provide to any medical or allied health professional upon whom they attend (including any counsellor or psychologist) a copy of these reasons for judgment.

THE COURT FURTHER ORDERS BY CONSENT THAT:
Health
19.Each parent is at liberty to obtain from the children’s health practitioners (including any general practitioner, psychologist, counsellor or allied health professional) any assessments, reports and other information pertaining to the children’s health and wellbeing and to discuss all matters pertaining to the children’s health and wellbeing, upon a request made by that parent with the requesting parent to be responsible for any fees associated with such a request.
20.The parents notify the other as soon as reasonably practicable in the event of a medical emergency suffered by the children or either of them including details of the illness or injury suffered, any medication prescribed and of the treating doctor/hospital if applicable. In the event the children or either of them require hospitalisation, the parents shall notify the other within two hours of such a decision being made.

THE COURT FURTHER ORDERS THAT:
21.The appointment of the Independent Children’s Lawyer is hereby discharged.

AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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 has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER

The parents have two children – X aged 11 and Y aged 8. The parties agree the children shall live with their mother. As a result of the parents’ poor co-parenting relationship, it is also agreed that the mother shall have sole parental responsibility for the children’s health and education, so that further conflict between the parents can be avoided and decisions made for the children in a timely fashion.
There was no agreement as to the children’s time with their father.
It is deeply regrettable that this matter required Court time and attention. It was plain to me that the children’s best interests would have been met by their parents putting aside their dislike and distrust of the other, behaving in a child focussed manner and reaching an agreement about the children’s time with their father. That they were unable to do so reflects poorly on them both.
At the conclusion of the hearing it was abundantly evident to me that the biggest risk to the children’s wellbeing is that they remain caught in the crosshairs of their parents’ intense conflict. That was the impression formed by the Family Report Writer who observed:
The greatest risk to the children appeared to be the limited insight, the lack of prioritisation of the children’s needs and the high-level parental conflict.
If the parents do not immediately and actively take steps to change their behaviour and alleviate the distress their anger towards each other, the short and long term consequences for the children will be profound. This was explained to the parents by the Family Report Writer in her oral evidence. She described parental conflict as being particularly destructive for children’s mental and emotional development and wellbeing and enduring into their adult lives. She outlined the immediate impacts on children to include:
(a)the development of poor dispute resolution skills;
(b)social relationship difficulties at school and with their peers;
(c)issues with education such as difficulties concentrating in class, becoming withdrawn, being distracted and otherwise exhibiting poor classroom behaviours;
(d)defiance type behavioural issues; and
(e)poor emotional regulation.
As they move into adulthood the Family Report Writer outlined that children who have experienced intense parental conflict can find it particularly difficult to engage in functional relationships as they grow older. They can struggle to form or maintain longer term relationships.
In terms of the likely trajectory for the children’s relationships with their parents, the Family Report Writer said if the conflict continues, the children may withdraw from both parents, or reject one of their parents. She further outlined that the rejection of a parent as a result of intense parental conflict can have dire consequences for children. It may impact their sense of self, cause them to experience grief and loss, and potentially result in a raft of mental health issues, and/or substance abuse issues.
The Family Report Writer implored the parents to put aside their grievances with each other, advising them that if they did so, they would see their children grow, thrive and enjoy life.
It is remarkable to me that the parents listened to that evidence and yet remained unable to reach an agreement about the arrangements for the care of their children.
There is really nothing this Court can do to cause the parents to gain insight, change their behaviours, stop fighting and act in a child focussed manner. They are each deeply entrenched and invested in their narrative that the other parent is the one who should change, and that the other parent is at fault. They are unable to identify positives about the other parent, or to truly recognise the importance to the children of having both parents in their lives. Whatever orders I make will do nothing to alter that dynamic. The children’s exposure to their parents’ toxic relationship will remain a risk whether the children’s time with their father is restricted to Sunday day time visits or progresses to weekend and holiday time.
Ultimately, however, I have determined that the children’s best interests will be met by orders that implement strict boundaries around the children’s relationship with their father, and limit the parental interaction, but that also provide for substantial and significant time in their father’s care. It is up to the parents whether they will put aside their grievances with each other and make my orders work, or continue to cause profound and enduring damage to their children by persisting in the conflict, and undermining the orders I make.
THE ISSUES AT TRIAL
The parties agreed – or substantially agreed – on a raft of additional matters, including various restraints, the parents’ attendance at school functions, and the provision and exchange of information.
The substantive issue I must determine is the time the children should spend with their father.
The father proposed a gradually increasing regime of time, culminating in the children spending three nights a fortnight and half of the holidays in his care, together with time on special occasions. This was a significant departure from the regime he proposed in the weeks leading up to the final hearing, in which he proposed a change of residence and supervised time with the mother.
The mother proposed that the children spend day time with their father only, for six hours each alternate Sunday, with no increase to that time. She also proposed limited time on various special occasions. The mother’s case was initially that the father posed an unacceptable risk of harm to the children. However, counsel for the mother acknowledged that the concerns the mother had raised in relation to risks to the children’s physical health and safety could not be made out on the evidence. However, it was asserted that orders for the children to spend overnight or extended visits with the father would impact on the mother’s mental health, and in turn impact her parenting. I do not find the risk of that occurring is such that the children’s time with their father needs to be curtailed as is proposed by the mother, for the reasons set out in this judgment.
The Independent Children’s Lawyer proposed time on the Saturday and Sunday each alternate weekend, but did not support any orders for overnight or extended time. It was very difficult to understand the position adopted by the Independent Children’s Lawyer. I remain unclear as to why the Independent Children’s Lawyer persisted in a view that overnight time should not be ordered in this case.
THE EVIDENCE
The mother relied on:
(a)her affidavit dated 19 June 2023;
(b)the affidavit of Ms C attaching the report of the supervised contact visits at D Contact Service, filed 20 July 2023; and
(c)the affidavit of Ms E dated 19 October 2022 who provided a psychological assessment of the mother.
Counsel for the father and Independent Children’s Lawyer did not require Ms E for cross‑examination.
The father relied on:
(a)his affidavit dated 4 July 2023;
(b)the affidavit of Ms F dated 3 July 2023
(c)the affidavit of Mr G dated 3 July 2023;
(d)the affidavit of Mr H dated 3 July 2023; and
(e)the affidavit of Mr J.
The father’s witnesses were not required for cross examination. Their evidence does not provide any real assistance to me in determining the matters that I must now decide.
Both the mother and the father had exhibited a number of annexures to their trial affidavits. As I advised the parties, I have not had regard to any of those annexures other than those formally tendered during the hearing; rule 8.15(3)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

The Independent Children’s Lawyer relied on:
(a)the affidavit of Ms C;
(b)the psychiatric assessment report of Dr K dated 18 November 2021; and
(c)the Family Report of Ms L dated 31 October 2022.
Only Dr K and Ms L were required to give evidence.
I had the opportunity of seeing each of the parents give evidence. Neither of them were particularly impressive. The mother, in particular, saw fit to repeatedly criticise and denigrate the father. Neither party demonstrated any real insight into their own shortcomings or contribution to the parental discord and the negative impact their own behaviour was having on the children. Instead each was fixed on blaming the other.
Whilst the father arguably demonstrated more insight than the mother, there was little substance to his asserted insights. For instance, his suggestion as to how the parental conflict could really be drawn to an end was that the children live with him and spend limited time with their mother. He had seemingly no understanding of the impact that would have on the children, and no insight into the distress that would cause the mother, and the resulting increase in parental tension. I do note, however, that his formal proposals at trial were for time rather than a change in care arrangements as he previously sought, which may indicate a more child focussed approach.
Both parents appeared largely unable to consider the situation from the perspective of the other parent, or indeed from the perspective of the children other than through their own lens. Neither parent has shielded the children from the conflict and they have both exposed the children to their toxic relationship. The mother was unable to concede the children might be telling her what they thought she wanted to hear. She was prepared to accept any and all complaints the children provide to her about the father. The father was at least able to recognise that the children may say things or misreport events to placate and appease either parent.
Both parents have engaged in violent and abusive behaviours at times – which they each defend on the basis that they were provoked by the other. Both have, in my view, used the Intervention Order processes in the Magistrates Court, and involved child protection and the Victorian Police at times to ‘point score’ and shore up their arguments against the other for the purpose of these proceedings. This must cease.
As already observed, unless the parents dramatically alter the way they interact with and respond to each other, no matter what orders I make, the outlook for their children is extremely bleak.
HOW ARE THE CHILDREN’S BEST INTERESTS ASSESSED?
As set out in s 60CA of the Family Law Act 1975 (Cth) in deciding whether to make a particular parenting order in relation to children, I must consider the best interests of the children as the paramount consideration.
It was recently observed by the Full Court in Bielen & Kozma (2022) 66 Fam LR 59 at [28] that this means:
…the focus of parenting proceedings should be on “the effect on the child” of the parties’ respective proposals (Fairfield & Hoffman (2021) FLC 94-045 at [71]).
That is, I must carefully consider the short and longer term impacts of the parties’ proposed orders “upon the [children’s] physical, emotional and psychological safety, security and wellbeing”: Bielen at [30].
There are a range of matters as set out in s 60CC that I am required to take into account when determining what arrangements are in the children’s best interests.
The objects of Part VII of the Act provide guidance as to how my discretion is to be exercised. Those objects include 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 children’s best interests [s 60B(1)(a)]. The legislation also provides that children have a right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development unless that would be contrary to a child’s best interests, [s 60B(2)].
The primary considerations in determining what is in the children’s best interests are set out in s60CC(2) of the Act. That section requires me to consider both the benefit to the children of having a meaningful relationship with both of their parents, and the need to protect children from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
Section 60CC(3) of the Act sets out a raft of additional consideration that I must also take into account in determining the children’s best interests. As set out by the Full Court in Bielen at [35], those can be conveniently grouped as follows:
·Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
·Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
·Issues of family violence: ss 60CC(3)(j) and (k);
·The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
·Practical difficulty of implementation: s 60CC(3)(e);
·Avoiding further proceedings: s 60CC(3)(l); and
·Other relevant matters: s 60CC(3)(m).
THE PRIMARY CONSIDERATIONS
Will the children benefit from having a meaningful relationship with the father?
In most cases there is a positive benefit to the children having both parents involved in their lives. The parties in this matter say they agree.
However, the parties do not agree as to how that relationship should be structured to provide the children with the benefit of it.
The care arrangements for the children have varied over time:
(a)when the parents first separated – in 2018, the father was working part of each month in South Australia. There is some dispute as to what precise time the children spent with their father, with the father asserting he spent more time with the children than the mother conceded;
(b)in May 2019, the parents agreed to final orders that the children spend one week in four with their father. At that time the father was working in South Australia for part of each month;
(c)that arrangement fell apart quite promptly, with the parents arguing in particular over the care arrangements for the children on Y’s birthday in 2019. There were also other altercations between the parents, in front of the children at X’s extracurricular classes;
(d)the mother instituted further parental proceedings in April 2020;
(e)the children’s time with their father was reduced, in December 2020. At that time interim orders were made for the children to spend time with the father on alternate weekends from Friday to Monday, for half of the holidays and on special occasions. Orders were also made for the mother to have sole parental responsibility;
(f)in August 2021 the mother filed an Application in a Proceeding seeking a recovery order. This was in circumstances where there had been a number of incidents of the parents over-holding the children or interfering with the children’s time with the other parent. Orders were made on 29 September 2021 for the alternate weekend time to resume;
(g)the father filed an Application in a Proceeding in November 2021 seeking that the children move into his primary care, after the mother had retained the children in her care on a number of occasions in around September 2021. The mother responded with an Application in a Proceeding to suspend the children’s time with their father entirely, asserting amongst other things that the father had assaulted X. The father had also taken the children to a number of medical appointments without the mother’s knowledge or consent;
(h)on 17 November 2021, orders were made reducing the children’s time with their father to shorter, supervised visits. Supervised visits then began at D Contact Service, City M in February 2022. Limited time occurred between the children and their father over 2022, with only around seven visits being provided on an alternate weekend basis by D Contact Service. They were then only able to offer supervised visits for two hours each school holiday period;
(i)in December 2022, the children’s time with their father was extended to 10.00 am to 5.00 pm each Saturday, supervised by a family member or friend of the father.
The interim orders I made at the conclusion of the trial provided for the time to occur each alternate Sunday from 10.00 am to 5.00 pm. The need for supervision was dispensed with.
The Act does not define the word “meaningful”. It has been held to be synonymous with notions such as “significant”, “important”, “of consequence” and “valuable to the child”: Mazorski v Albright (2007) 37 Fam LR 518. It is a prospective enquiry.
I am concerned that the proposals of the mother and those of the Independent Children’s Lawyer – restricting the children’s time with their father to day time visits only on alternate weekends and limited time on special occasions – will not provide the children with the benefit of having a meaningful relationship with their father. Those arrangements would exclude the father from participating in the children’s day to day activities such as getting the children ready for school, and collecting them from school. He would be excluded from participating in the start of and end of day to day routines such as breakfast, dinner time, homework, reading and bedtime. He would also be substantially unable to engage with the children’s school and social lives. Rather, he could quite readily become marginalised in the eyes of the children. That marginalisation could be easily exploited by the mother – to the extent the children could view him as a nuisance and an irritation that interrupts their weekends – and special occasions – at home with their mother.
Conversely, the proposals by the father – for alternate weekends and a sharing of the holidays – will provide the children with the opportunity to engage meaningfully with him, and members of his family; to experience life in his care; and to develop and foster an ongoing relationship with him.
Are these children at risk of experiencing physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence?
As will be plain from these reasons, the biggest risk to the children is that they remain at the centre of their parents’ dispute. They have repeatedly been exposed to their parents’ dislike of each other. They have repeatedly been exposed to their parents’ arguments and toxic behaviours.
Both parents have exposed the children to their negative attitude to the other parent. The mother conceded she had referred to the father as “a shit” and “stupid bastard” to the children. She also referred to him as a violent and cruel man in their presence. She did not demonstrate any real understanding of the impact on the children of referring to their father in these terms to them.
The mother deposed that the father has deliberately involved the children in the parental dispute on a number of occasions. She said he had instructed them to make positive comments about being in his care, that he told them he was going to get the mother banned from attending school, that he pressured the children to say that they want to live with him, and that he told them they will end up living with him.
The father denied having made these comments to the children. It is difficult to know whether the father has done as is alleged, or whether the children are making these statements to the mother in an effort to please her.
The inability of the parents to shield the children from their conflict was most prominently displayed on Y’s birthday in 2019, and at the conclusion of X’s extracurricular lesson in late 2019. These are not the only incidents, but these were two incidents that were explored in depth at the final hearing.
Y’s birthday 2019
In relation to Y’s birthday in 2019, the father obtained the mother’s agreement that he have time with the children after school on Y’s birthday. However, the mother did not agree to him having the children overnight, and wanted them returned to her at 7.30 pm. The father knew that when he collected the children. However, he decided that as he had not agreed to return the children that evening, he was not required to do so. The parents then met up at the police station after 9.00 pm, and an appalling scene played out: with the children crying, the mother calling them over to her, and the father apparently retaining them in his care.
The father admitted in his trial affidavit that he was extremely rude to the maternal grandmother during this changeover, calling her an “old cunt” and telling her to “fuck off”, in front of the children. This caused the children to cry.
After a period, a police officer came out of the station and promptly effected the change-over. The father’s refusal to return the children was disgraceful.
X’s extracurricular class 2019
In late 2019 there was another deeply unpleasant scene between the parents at the conclusion of X’s extracurricular class. The mother arranged for friends of hers to also attend the class, and to video the events at the conclusion of the lesson. There was a physical altercation between the father and the mother’s friends in the foyer of the hall as parents and children were leaving. This occurred in the presence of Y and X. Y can be heard screaming in distress in the videos. The scene also occurred in the presence of other young children who were at the lesson and their parents. At the conclusion of the altercation the mother can be heard apologising generally to those present and saying she “married a very nasty, violent man”. She said that in front of the children.
Both parents remained adamant at trial that the scene was caused essentially by the other parent. The father asserted the mother provoked the scene by arranging for her friends to be there, for then encouraging Y to embrace his father, and then permitting Mr N to ‘drag’ Y from him. He maintained that Ms O hit him with a plastic drink bottle. He admitted that he pushed Mr N, who fell over, and that he then grabbed Mr N by the scruff of his shirt and threw him out of the foyer. The mother asserted she had her friends with her because they are family friends and enjoyed watching the lessons, and that the father’s aggression was entirely unprovoked.
The father was charged with offences in relation to this incident. As I understand he pleaded not guilty to one charge but pleaded guilty to another (and the other one was withdrawn). The father said he entered into a Good Behaviour Bond in relation to the charge, with no conviction.
The mother’s evidence is that the children reported to her that the father played his video recording of the late 2019 class incident to them, and that he had tried to cause the children to ‘take his side’ regarding the events of that day. The father was not asked about that at trial. If that did occur it reflects extremely poorly on the father.
The mother deposed to another incident at X’s extracurricular lessons in 2019, when she said the father attended, and yelled and screamed at her. The police were called at that time, but did not take any action.
The mother’s allegations that the father has abused the children
The mother deposed the children were subjected to violence and verbal abuse by their father. She asserted that the children are afraid of their father and have been traumatised by him, so much so that following the incident at X’s class in 2019, the mother formed the view that the children required counselling.
Accordingly, in March 2020 the mother arranged for the children to attend upon Ms P, psychologist. The mother told Ms P the children had been “traumatised by the father” and needed help to “get through the trauma issues”.
After conducting four counselling and assessment sessions, according to her report, Ms P determined that there was no evidence the children had been traumatised as a result of their father. Rather, Ms P formed the view that the mother was “having difficulty in understanding and managing her children’s emotions and associated normal challenging behaviours”.
The mother was dissatisfied with Ms P’s assessment, and ceased counselling, asserting that the appointments were not providing the children with the help they needed. The Family Report Writer observed that this perhaps suggested that the mother sought treatment and interviews for the children “in order to suit her narrative”.
Also in around March 2020 the mother alleged the father had assaulted X with a tool. She notified child protection and then took X to the police to be interviewed. X participated in a VARE in which she said she had been helping her father repair a trailer and that a tool had fallen and hit her on the arm. She said the father hugged her and provided her with an icepack. There was no suggestion by X that the father had acted inappropriately in any way and the police took no action.
At trial the mother said she could not recall whether X had said the injury was a result of the father deliberately hurting her. She conceded that whilst she had thought it was appropriate to take X to be interviewed by police, the injury was not sufficiently significant that she sought or obtained medical advice. It is difficult to understand how the injury was deemed sufficiently concerning to the mother to arrange for X to be interviewed by police, but not sufficiently concerning for her to be examined by a medical professional. The mother added that the police officer who interviewed X was in plain clothes, seemingly in an attempt to somehow suggest her behaviour was benign and the impact on the children was negligible. I note the observations by the Family Report Writer that the requirement that children participate in interviews can subject the children to emotional and psychological trauma.
There were further allegations made by the mother in 2021, including that X had again been assaulted by her father and that the children had been forced by their father to kill and eat a pet bird. The mother reported these allegations which resulted in a further VARE interview for the children. X’s report was that the father smacked her on the hand and sent her to her bedroom. Y reported that during a game of hide and seek the father had – in play – used a belt to lightly flick the children when they were found. Y also reported hunting when with the father – and there was no suggestion this was upsetting to either child. The police determined the children were happy in the care of either parent and assessed that the issues were the result of parental animosity. No action was taken by the police.
The mother alleged X was assaulted by her father again over a holiday weekend in late 2021. The mother reported to Dr K that the father kicked X so severely on her bottom that she was unable to sit down for four days and suffered significant bruising. In her trial affidavit, the mother deposed that X reported having been held upside down by her father, smacked and had food forced into her mouth. She did not depose to X being unable to sit down. Nor did she refer to bruising, asserting only that there were red marks on her bottom. There was also no medical evidence adduced to support the assertion that X was so bruised from being assaulted that she was unable to sit down.
The mother reported this alleged abuse to child protection who attended at the home and took photographs of X’s bottom. According to the Family Report Writer, at that time the children were interviewed by child protection, and reported having been pushed and smacked and that the father had forced X’s mouth open to feed her vegetables. Both children reported that they felt unsafe during that incident and were fearful of their father. It does not appear that the father was interviewed, although he did deny the allegations in informal conversations with the Department. The Department did not take any action at that time, as the father’s time had been reduced to supervised visits.

X was also interviewed by the police for a third time. The father was not charged as the police formed the view that the father’s behaviour was within the bounds of lawful chastisement.
The mother’s evidence included a number of additional complaints she said the children made to her about the father. That included allegations he was not present on occasions when the children were meant to be in his care; that he allowed them to do dangerous activities, such as swimming in the river, unsupervised, or having them engaged in water activities without life jackets; that he forced them to drive vehicles at high speed which frightened them; that he did not require the children to wear seatbelts in the car; that he tried to injure them and has them around his worksite which is unsafe; that he gets angry and smacks them; that he has told the children they are fat/will get fat; that he is aggressive, mean, nasty and cruel; that he leaves the children to play around the “dirty river” and the “dirty buildings” where their father works; that the children return dirty and unwashed in a “putrid” state; and that he denigrated the mother to the children, calling her names and threatening to send her to jail, to hurt her and to kill her. The mother also deposed that recently the father took the children to another man’s house where they were threatened with a weapon. She described the children as being fearful of the father, and of being distressed by him.
Additionally, the mother described the father as being unable to pay proper attention to the children’s health and safety. She maintained in her oral evidence that there was a continued risk of physical abuse and ideally she believed the time should remain supervised. However, she also consented to interim orders for unsupervised time at the conclusion of the hearing. Her application for final orders was also for time to be unsupervised, albeit for short visits.
I note the father was not cross examined about many of these allegations. Those that were put to him, he denied. He was able to provide a detailed description of his workplace – being a narrow strip of land surrounded by two and a half acres of land he owned, and on which the children can play. He explained that when he is working, a temporary fence is erected, and the children are unable to access the worksite whilst he is doing repairs or maintenance. The father also gave credible evidence about ensuring the children’s safety when slowly driving an old vehicle or riding bikes on his property. He denied leaving the children unattended, said that the swimming they do is in a channel, and is safe and supervised, and that he does not leave the children unattended or work when the children are in his care.
The mother would not concede the children might be exaggerating or fabricating complaints in order to please her or that she may have blown some complaints ‘out of proportion’. She appeared to accept without question any negative reporting by the children on their father and his care of them. She begrudgingly acknowledged that on several occasions the children may have had a nice time and that Y may have enjoyed some of the activities the father arranged. Generally, however, she said the children return to her complaining that they are scared by their father, that he is not nice to them, and that he is mean to them. It is notable that the mother permits the children to sleep in her bed with her when they return from their father’s home and report that they are scared. It is also notable that rather than reassuring the children, the mother deposed she instructed X to “go to the […] shed across the road or to the [Q Family’s] house” if she became scared whilst in her father’s care. The mother confirmed she regarded the father as an abusive husband, an uninvolved father and a risk to the children’s physical and emotional wellbeing.
Dr K did not form an impression that the father posed a risk to the children. However, he had some concern that the mother provided inaccurate descriptions and embellishments of events.
Similarly, Ms E questioned the veracity of the mother’s allegations of abuse perpetrated by the father on the children. She concluded:
(the mother) appears to experience difficulty separating her own experience and unresolved hurt related to [the father] from that of the children.
…
… it is my assessment that [the mother’s] concerns about the children are motivated by her depiction of family violence perpetrated by [the father] and her own inability to move on from the parental separation and accept [the father’s] relationship with [Ms R]. In this, she [sic] it is possible that she may be projecting her own hurt and anger onto the children.
I formed a similar view. This was based in part on the mother’s presentation at Court. I also took into account the lack of corroborating evidence, and the children’s extremely positive interactions with the father at supervised visits and when interviewed by the Family Report Writer. The mother’s difficulty in separating her views of the father from the children’s separate experiences of him was highlighted by her evidence regarding when X sustained the bruise from the tool dropped by the father. She said she could not remember if X had said the father did that on purpose, and said the father used to throw tools at her, and she wanted to “protect my children from having something thrown at them”. There was never any suggestion that X had indicated the father ‘threw’ a tool at her.
The father’s allegations against the mother
Likewise, the father also set out a litany of complaints against the mother, and her family. He said X reported being punished by the mother for saying his name, and is too scared to tell the mother she missed her father; that the mother told everyone the father will go to jail; and that the mother listened in to the children’s calls with him and terminated them when she wanted to. Additional complaints included that the mother abused prescription medication; that she had brought the children into contact with a registered sex offender; that the maternal grandmother was mentally ill and added to the mother’s mental health issues; that the mother was severely depressed and unable to provide appropriate care for the children; that she threatened to drive the children into the river when they were babies; and that she neglected the children’s medical needs, diet and dental hygiene. The father also alleged that the mother left the children unsupervised with her brother, who the father regards as dangerous, unsafe, and potentially sexually abusive.
Most of these matters were not ventilated in any meaningful way at trial. In relation to the allegations of medical negligence, counsel for the mother said – and I agree – that the allegations of medical neglect could not be made out on the evidence. Nor was there any reasonable foundation for the father’s repeated allegations that the mother knowingly brought the children into contact with a sex offender. The father was able to acknowledge that the children’s complaints to him could be motivated by the children’s desire to say things to him to make him happy. There was also no evidence that the state of the mother’s mental health posed any risk to the children.
At any rate, the father conceded the children will remain in the mother’s primary care. Implicit in that concession is an acknowledgment that the mother is able to provide appropriately for the children’s day to day needs.
I note further the concession made by counsel for the mother – with which I again agree – that on the evidence presented at trial, I could not make findings that the children have been physically abused by either parent. After carefully considering the evidence, I am not satisfied that the children are at risk of being exposed to abuse, neglect or family violence in the care of either parent. They are, however, clearly being exposed to their parents’ ongoing hostility and contempt for each other.
THE ADDITIONAL CONSIDERATIONS
Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);
The observations by D Contact Service over seven periods of supervised time in early 2022 indicated the children had a strong and loving relationship with their father. They were excited to see him and clearly delighted in spending time with him. The observations included references to physical affection, playful interactions, age appropriate play and caring and attentive parenting by the father.
The Family Report was prepared in October 2022.
X was described by the Family Report Writer as a “bright and bubbly child”, who became anxious, reserved and teary at times during the interview. In relation to the number of interviews to which she has been subjected, she told the Family Report Writer “I’m used to them now, I’ve had a lot”. She also said that the interviews with the police “make me feel weird”.
X reported that she felt unsafe at the father’s home when he left her unsupervised for a long period, and that he has hit and hurt her, and shoved food into her mouth. However, X also reported that she and her father never fight. The mother said X was not reporting accurately when she said that, but only made that comment so that she would not get into trouble with her father.
X was able to identify positive experiences at her father’s home, and at her mother’s home.
The Family Report Writer described that X presented as;
…confused, anxious and with an inconsistent narrative and her resistance to her father during interview was in contradiction to her behaviour during observations and what appeared to be a strong connection with him.
Y presented to the Family Report Writer as an energetic and fun-loving child. He reported that his mother had called the father “a stupid bastard” and had discussed with Y what he was supposed to say at the interview. At trial, the mother insisted she had told the children to ‘tell the truth’. In her oral evidence the mother struggled to admit that she had called the father a stupid bastard, saying she “may have”, but it would have been “a one off” and she did not recall the incident.
Y reported that the father smacked the children, but then said the father only smacked X. His narrative was not detailed. He reported the father told the children that the mother was “nasty”. Y was able to identify positives in his father care, including the large backyard, and playing on his bike. Y told the Family Report Writer that he loves seeing his father and is happy to see him.
During the observations, the Family Report Writer observed a close and loving relationship between the children and their mother.
At the commencement of the observations with the father, X was a little reserved. However, within a minute of time commencing:
… the three looked through the photographs together all talking, reminiscing and laughing over memories of them together. There was no awkwardness or hesitation between any of the three as they engaged, including [X], despite her initial objections. [The father] managed the situation well and immediately included [X] but did not make a fuss or point out that she had chosen to engage with them. [X] moved towards her father and leaned in and was touching her father during the interaction.
The children and father then played for the balance of the observations, with the father being described as dividing his attention between the children’s competing demands. The Family Report Writer observed loving, physical contact between the father and both children.
It was the view of the Family Report Writer that the mother had “likely influenced the children to provide damaging and possibly fabricated information about their father”. I have already noted my concern that the mother accepts – if not invites – criticisms from the children about their father, and effectively rewards them by co-sleeping if they report being fearful of him.
The Family Report Writer also noted that the children’s narrative regarding their father was “incongruent with their behaviour during observations with him”. She said they did not appear apprehensive or fearful of their father, but were “loving, affectionate and presented as highly connected to him”.
She opined that the mother’s influence on the children seeking to cause them to reject their father placed the children’s emotional and psychological wellbeing at risk. She said the children may reject their father, and/or resent their mother for encouraging that rejection. She said this behaviour could impact the children’s learning and social development and mental health.
The Family Report Writer noted that as at October 2022, a resist and refuse dynamic may have started to emerge with X. She described “serious concerns” for the children being at the centre of the parental dispute.
I note, however, that there was nothing in the mother’s evidence that either child was resistant to spending time with their father. Whilst the mother said they made complaints to her upon their return, she did not depose to the children being oppositional to seeing their father, or expressing a wish not to go. That suggests the children do continue to have a close relationship with their father despite any pressure they may experience to reject him.
The mother also said that the children were fearful of their father. Whilst the children appear to have reported that to child protection in around late 2021, there was nothing in the observations of the Family Report Writer in late 2022 to support that assertion.
In her oral evidence, the Family Report Writer said given the parents’ behaviour to date, there appear to be harmful effects to the children’s psychological wellbeing in the care of either parent. She reiterated that the children have a strong connection with their father. She emphasised that the parent/child relationships had remained close and connected even in circumstances where the children were spending fairly limited time with their father. She supported a regime of alternate weekend, overnight visits, describing that as being beneficial for the children, although both parents would need to modify their behaviour and adopt a child focussed stance.
In closing, counsel for the Independent Children’s Lawyer indicated his instructor had spoken to the children, and ascertained their views. That was never put in evidence before me, and I did not allow him to adduce evidence in that regard from the bar table well after the evidence had concluded.
Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);
The mother is 48 years old. She undertakes community work. She lives in a home she owns in Town B. She has not re-partnered.
The father is 46 years old. He works as a tradesperson. The father has re-partnered, but he and his partner do not live together. He lives in a three bedroom home that he owns in Town B, with each of the children having a fully furnished bedroom allocated for them.
Whilst both parents are competent to provide for the physical needs of the children, I have serious reservations about the ability of them each to meet the children’s emotional needs. In particular, neither parent seemed to grasp the importance to the children of having both of their parents significantly and meaningfully involved in their lives. Whilst the father may have demonstrated a slightly better ability to listen and accept advice, and a greater willingness to reflect on and alter his own behaviour, the difference in the parents’ level of insight, or ability to moderate their behaviour to be more child focussed was, in my view, relatively marginal.
The parents’ inability to shield the children from their dispute
The parents have allowed the children to become enmeshed in adult issues and embroiled in the parental dispute. They have acted out in emotionally uncontained and dysregulated ways as already set out. They have also exposed the children to their negative views of each other. They each blame the other for the conflict and dysfunction, and justify their own behaviour as a result of being provoked by the other. I agree with Dr K’s description – that the parents are both “incorrigible”.
Both parents have struggled to act in a child focussed manner. Instead they have each sought to denigrate the other parent, undermine his or her parenting, and present themselves as the children’s protectors.
For instance, in early 2020 the father chose to raise with the school that the mother had brought the children into contact with a child sex offender – Mr S – and that X had been sexually assaulted at the school by other students when she was in her first year there. In relation to the complaints about Mr S, the father somewhat dramatically labelled the subject matter in the emails with the school as “[Ms Fratto] bringing sex offender to school”.
Neither of these issues could be described as recent concerns as at early 2020. The incident regarding X being sexually assaulted at school had occurred in 2016 or 2017. There was no probative evidence that the children have had anything further to do with Mr S since late 2018. The father’s concerns in early 2020 appeared to be based on Mr S having attended a function at school (that had occurred in late 2018) and X having commented in April 2019 that Mr S had given the children Easter eggs. I also note that the father’s sworn evidence regarding the children’s assertions they were given Easter eggs by Mr S occurred in April 2019.
These complaints to the school were made by the father following a disagreement he had with the school in early 2020 about X’s attendance with him at a parent/teacher meeting. He was of the view that X should have been permitted to attend that meeting. The school did not agree. This clearly irritated the father, who had attempted to record the interaction. Indeed the father told the school at a meeting in early 2020 that he had brought up the sexual assault allegation because he did not feel well treated by the school and was “pissed off”.
As a result of the father’s alleged concerns about Mr S, child protection became involved. The children were interviewed in early 2020. They did not disclose any contact with Mr S. According to what the father told the Family Report Writer, he also took the children to be interviewed by the police in relation to their alleged contact with Mr S.
At trial the father maintained he was entitled to be concerned about the children being in contact with Mr S given their comments to him. I do not agree. There did not appear to be any reasonable basis for the father to raise either of these issues with the school in early 2020. He did so because he was annoyed and frustrated with the school. I do not regard the father as having a reasonable basis to believe the mother was bringing the children into contact with a known sex offender as at early 2020. The involvement of child protection and the police on this basis was distressing for the mother, and required the children to be interviewed again unnecessarily.
At around that time, the mother asserted X had been injured by the father with a tool. As indicated, that resulted in X being interviewed by the police who determined the injury was accidental.
I have concerns about the parents both deciding, on occasion, to simply retain the children in his or her care, seemingly with little regard for the disruption this causes to the children’s daily routines and relationship with the other parent. For instance, the mother retained the children in her care in April 2020 after she filed the Initiating Application, allegedly on the basis she was concerned for the welfare of the children. A careful consideration of the evidence does not suggest that there was a reasonable basis for the mother to withhold the children from the father at that time.

There was then a pattern of both parents over holding the children in 2021, which I will refer to in detail later in these reasons. This occurred from around July 2021, when the conflict between the parents became particularly inflamed.
I also have significant concerns about the way at times both parents have sought to utilise police resources to their benefit. For instance, the father made a police statement in late 2020 in which he complained that the mother did not provide him with time with the children on Y’s birthday. The father had apparently attended Y’s kindergarten to spend time there with him on his birthday (despite there being no agreement he do so) and discovered he had not been delivered there that day by the mother. The father said the mother then did not answer his calls that he made “during [his] allocated phone time”, and he went to the police “for assistance”. The father said a police officer contacted the mother and said she was behaving in a controlling manner. The father then had an extremely brief telephone call with Y, which he did not find satisfactory. The father contacted the police again and apparently they spoke with the mother again. The father said he then had a satisfactory call with Y. The father apparently regarded the mother’s behaviour as constituting a breach of the Intervention Order. It does not appear she was charged.
I do not regard it as an appropriate use of police time to facilitate birthday phone communication between the father and the children. It would have been distressing and upsetting for the mother, and probably confusing and stressful for Y to be caught up in that dispute on his birthday.
I also do not understand why the father waited months after Y’s birthday (and just four days after the interim orders made by Mercuri J providing that the mother have sole parental responsibility for the children and reducing their time with him) to make a police statement about the birthday events. In his oral evidence the father acknowledged he was annoyed his time had been reduced. The father incorrectly advised the police at that time that he had equal parenting rights. He was unable to provide a satisfactory explanation as to why he misled the police in that regard.
The father has also taken the children to medical and allied health professionals without the mother’s consent after the interim orders were made on 3 December 2020 providing that the mother have sole parental responsibility. In late 2020 the father took Y to a doctor for tonsillitis. He did not contact the mother before doing so. Even though Y may have been unwell, it is difficult to understand the father’s decision to make a medical appointment for him without communicating with the mother just days after orders were made allocating sole parental responsibility to her. There were a number of other appointments in 2021, to which I will shortly turn.
In mid-2021 the father again complained that the mother was bringing the children into contact with Mr S. In his correspondence with the Independent Children’s Lawyer in May 2021 the father did not make it clear that the reports of Easter eggs from Mr S were more than two years old by that time, which seemingly suggested the contact had occurred as recently as Easter 2021.
Around this time, the mother asserted the father had assaulted X, repeatedly smacking her on the back and bottom. The mother deposed that X had told her “[she] thought [she] was dead”.
The mother obtained a three year intervention order for the protection of herself at the Magistrates Court in mid-2021. At around that time, the mother did not take the children to school on two Fridays, thereby making it impossible for the father to have the children in his care for the weekend.
When the father then did collect the children, he responded by retaining them in his care – and not sending them to school – allegedly on the basis that he again asserted the mother was bringing the children into contact with Mr S. He wrote in an email to the Independent Children’s Lawyer in mid-2021 alleging the mother had confirmed at the Magistrates Court in mid-2021 that she had allowed the children to come into contact with Mr S following his release from jail, asserting she had said he was a very dear friend. The father also wrote that he required a “reassurance/undertaking” before agreeing for the mother to collect the children from school. The father then placed an advertisement online looking to engage an early child care provided “for in home care and home schooling urgently”.
Nowhere in the Magistrates’ Court transcript did the mother say she had brought the children into contact with Mr S following his release from jail. That appears to be a complete fabrication on behalf of the father. He repeated this fabrication in another email to the Independent Children’s Lawyer dated mid-2021.
At trial before me, the father conceded the mother had not told the Magistrates Court that she remained in contact with Mr S. However, he could not admit that there was no rational basis for him to withhold the children at that time.
I do not accept the father had any basis to retain the children in his care. It would have been confusing for the children, and again disrupted their daily routine. It would also have caused the mother considerable distress. The father did acknowledge at trial that it would have been traumatic for the children. When asked if he regarded his retention of the children as being family violence, he answered that he had been a victim of it many times. Of course, it is the children who have been the victims of their parents’ acrimony.
The children were again interviewed by SOCIT in August 2021. The father said that appointment was not arranged by him, but he did take the children to those interviews, which had been previously arranged as a result of complaints made about his care of the children. I am not aware that the police took any action at that time.
The mother sought a recovery order and then retained the children in her care. This would again have been extremely confusing for the children. It also further inflamed the animosity between the parents.
It is troubling that when time resumed in September, the father immediately took the opportunity that month and in October 2021, to take the children to T Medical Centre for blood tests, to obtain referrals for the children to a psychologist (Ms P) and to a dietician and to have a genital examination performed on X. That examination occurred in late 2021. At trial the father said X had complained that she was itchy and had a burning sensation in her genitals. The father did not raise the issue with the mother either before or after this medical examination was conducted. The examination did not reveal any abnormalities.
The father also took X to the doctor a short time later regarding her weight. She was apparently weighed and measured, and referred to a dietician who she saw in late 2021. There was nothing in the report of the dietitian that suggested any urgent action was required. Reference was made to small alterations being made to her diet. However, the father maintained at trial that it was appropriate he took X as the mother was feeding her “too much junk food”.
The father was fully aware that he did not have parental responsibility to take the children to these appointments, or to seek referrals to other practitioners. He made no attempt to contact the mother before any of the appointments, or to seek her consent to the referrals or examinations. The appointments could not be appropriately described as being for emergency treatment, and the father reluctantly conceded that point.
The father sent the mother a text message in October 2021 saying that the mother needed to make a follow up appointment for Y to be seen. Apparently, his blood test results showed an elevated white blood cell count, which could indicate he had a viral infection, or something more significant. When the mother did not agree, the father then involved child protection who again visited the mother and children at home.
It appears that after further blood tests were conducted, the doctor at T Medical Centre formed a view that Y was fine. The mother provided the results of the subsequent tests to the father a short time later 2021 informing him that the results were normal and that Y was well and back at school.
However, the father was not satisfied with that determination, and sought to arrange a further blood test for Y at another medical centre. He also responded to the mother’s text as follows:
Much better although still a few abnormal results. High platelets are from poor diet, stress or cancer.
There was nothing in the medical material put before me that suggested that as October 2021 any medical practitioner had concerns that Y suffered from a poor diet, or may have cancer. I anticipate the mother would have been stressed and upset by the receipt of that text. There was also no suggestion by the father in his evidence that he grasped how his own conduct had likely caused Y significant stress during this period.
It is deeply troubling that the father was prepared to knowingly and repeatedly breach court orders, apparently in an effort to adduce evidence that would support him and undermine the mother in their parenting dispute. It is also troubling that child protection were again required to meet with the children. These events would have been confusing for the children, and potentially suggested to them that their mother was not properly attending to their health needs. It is also troubling that at trial the father maintained that it was in the children’s best interests that they had those appointments, insisting his interventions had reaped significant benefits for the children’s functioning.
When the mother became aware of the father taking the children to medical appointments in breach of the order that she have sole parental responsibility, the mother again ceased the children’s time with their father for a number of weeks. They did not spend time with him for Father’s Day or for most of the school holidays. The father contacted the police to complain about the withholding, writing:
They always plan it around Fathers day [sic] and the children’s birthdays. Hoping I’ll crack and do something silly.
Again, it does not seem to me to be a matter regarding which the police needed to be notified. However, the police did contact the mother’s solicitors in late 2021. Somewhat surprisingly, Officer U of the Town B Police Station wrote in that email that he regarded the mother’s behaviour of withholding the children as “seriously risking the mental health and wellbeing of her children” and that:
… it is accepted that deliberately depriving a parent of their children is considered family violence. I am of the view that your client is using both State and Federal legislation to harass and commit family violence against [the father].
The involvement of the police at that time would have been upsetting and distressing for the mother.
At about this time the father made an Application in a Proceeding seeking the children live with him. The mother responded by filing an Application in a Proceeding to suspend time. She also made an application for an Intervention Order, with the children as named protected persons.
The father then attended at the children’s school on a morning in late 2021 and took Y into his care overnight against the mother’s wishes. The mother responded with an application seeking a recovery order. The father said at that time the children were entitled to be in his care that weekend (Friday to Monday) under the orders that were made on 29 September 2021.
In around November 2021, the father re-engaged Ms P and took Y for interview with her. Again, he did not have consent from the mother, and no authority to do so. Ms P apparently concluded from her interview with Y that the father did not present a threat to Y, and that Y had a close emotional connection with the father.
The matter came before a Senior Judicial Registrar on 17 November 2021. In light of the history I have outlined, orders were made suspending all previous orders for time between the children and the father. Instead orders were made for the father’s time to be professionally supervised by D Contact Service in City M.
At times during the supervised visits, the father’s behaviour towards the workers at D Contact Service reflected very poorly on him. He was rude and dismissive towards them on a number of occasions. At trial, he acknowledged that he “vented” at the workers, but was keen to point out at trial that he did not behave in that way when spending time with the children. I note the D Contact Service report also refers to the mother rolling her eyes at a worker when the worker said she would see the family again a few days later. Additionally, the mother asked at the end of a visit how many more visits would occur, and said “[w]ell I think we have had enough”. She said this in front of the children.
The father’s sister – Ms V – acted as the supervisor for visits in 2022 and 2023. She was not on affidavit, but her observations of some of the visits were tendered by the mother into evidence. According to those observations, it was clear to Ms V that the mother had discussed court proceedings and court orders with the children, and denigrated him in the presence of the children.
The professional assessments of the parents
The parents’ lack of insight has been commented on by the professionals engaged in these proceedings.
The Family Report Writer described the mother as egocentric, holding the father “wholly responsible for the current circumstances and lacking a child focus.”
The Family Report Writer said the father took responsibility for some of his behaviour, but was critical of the mother. However, she regarded the father as being more child focussed, and better able to prioritise the children’s needs.
The Family Report Writer wrote:
The parents’ behaviour from the start of these proceedings appeared to be driven by retribution by both parents and as the proceedings progressed, their conflict escalated. The filed material and narrative by both parents suggested that they both involved the children in the parental dispute.
Throughout these proceedings, it appeared that both parents made decisions in relation to the children on the basis of possibly furthering their own agendas and using the children as pawns to achieve outcomes for themselves. It appeared apparent that this dispute is centred on the relationship issues between the parents and the children’s needs had become secondary to the parents’ desire to hurt the other.
It appeared that both parents experienced considerable difficulties managing their own emotionality and the dynamics over the course of the separation may be characterised by an inherent desire for retribution. The ongoing acrimony between the parents’ appears to have affected their capacity to engage in a functional co-parenting relationship, engage in collaborative problem solving and provide a consistent and emotionally attuned home environment for the children including supporting the children’s relationship with each of their parents.
I agree with those observations.
The Family Report Writer also observed:
These parents’ appeared to have taken every opportunity, over the course of these proceedings, to report each other to Victoria Police and Child Protection in relation to breaches of the IVOs or other criticisms alleged. Their actions did not appear to consider whether the children were present and the possible impact on them.
I reached a similar conclusion.
Likewise, I agree with her observation:
There are concerns in relation to the parenting capacity of both parents given what appears to be their inability to ensure the children’s emotional and psychological wellbeing by shielding them from parental conflict.
Dr K expressed concern about the mother’s lack of insight into her own behaviour. He noted the mother’s additional comments of a critical nature in relation to the father “in most if not all of her answers”.
The mother described that she felt at a disadvantage during the interviews with Dr K as the father had over held Y which had caused her to feel anxious. However, I note that she similarly made frequent criticisms of the father in her evidence at trial.
Ms E observed that the mother “tended to portray herself in a positive light… and blamed [the father] for their high conflict relationship post-separation. In this respect, [the mother] had limited insight”.
She further observed:
[The mother] had a tendency to deny, justify or blame [the father] when asked about allegations against her. She lacked insight and was unable to consider her own behaviours that have resulted in charges of assault, breaches of Intervention Orders, and two Good Behaviour Bonds. [The mother] had a victim mentality regarding herself and the children and she did not accept any responsibility for her actions. Consistent with this, [the mother] was motivated to present herself in a positive light.
The mother presented similarly at trial.
Ms E also identified that the mother was reluctant to admit to even minor faults, and that she had experienced “considerable difficulty adjusting after her marriage breakdown”. It is notable that the topic “continued to elicit tears and some distress… .four years later”. Ms E continued:
There is no doubt that [the mother] has suffered great stress post-separation and any interaction with [the father] causes her heightened anxiety which may result in her overstating the risk to the children with their father.
I accept all those observations by the expert witnesses. They very much reflect the impressions I formed of the parents at trial.
As will be plain from these reasons, I do not regard either parent as being particularly child focussed or able to prioritise the children’s needs. Neither of them impressed as having much insight into the role they played in the dysfunctional parenting relationship they and the children now endure, nor on the impact that has on the children.
Issues of family violence: ss 60CC(3)(j) and (k);
As indicated, both parents asserted they were the victim of the other parent’s abuse and violence.
The mother deposed that the father was violent and controlling, and subjected her to ongoing criticism and denigration. She said he belittled her and her family, was financially controlling and jealous. She deposed he grabbed at her, pushed her around and on one occasion grabbed her by the neck and shook her. The mother also said post separation the father subjected her to abuse and intimidation.
These allegations were denied by the father. However, he was able to concede that his behaviour at the changeover in 2019 on Y’s birthday constituted family violence. He also acknowledged that on occasion, at other changeovers he had sworn, and that also amounted to family violence.
The father said the mother was the aggressor and perpetrator of a number of assaults on him. He said she threw things at him, slapped him, hit him and verbally denigrated him.
In her affidavit, the mother acknowledged she had slapped and shoved the father, but said she did so in response to him calling her names. The mother admitted to Ms E that she “whacked” the father across his face in August 2018. She told the Family Report Writer that she “wacked him and I shouldn’t have”. She also told the Family Report Writer “I said a few things I shouldn’t” including calling him “a shit”. As already noted, it is apparent the mother had talked about the father in a derogatory manner to the children on other occasions.
The mother also acknowledged to Ms E that in 2016 she had thrown a remote control at the father during an argument, which struck him on the head and caused a laceration requiring stitches. She told Ms E that the parents “later laughed” about the incident, which was not intentional. To the Family Report Writer, the mother said she had thrown the remote control to him, not at him, because he had made a face at her, but she had not wanted to hurt him. In her oral evidence, the mother said she threw the remote at his tummy “when he was being cruel”. The mother’s evidence that the father’s injury was regarded humorously by the parents was not compelling.

As best as I can tell, the mother was charged with assaults on the father in 2019, for which she subsequently received Good Behaviour Bonds.
The parents have each had Intervention Orders against the other. I accept the father’s evidence that when the police first obtained an Intervention Order on his behalf he had not appreciated that the mother would be required to immediately vacate the home. When he became aware that was the effect of the order, he immediately agreed to leave the property so that the mother and children could continue to live there.
The father has also brought applications against the mother’s brother, and her friends Mr N and Ms O. The maternal grandmother lives with the uncle, and obtaining an Intervention Order against the maternal uncle would have made it difficult for the mother to engage with her mother. The father subsequently withdrew that application.
In around early 2021, the father also sought an Intervention Order against Mr S for the protection of the children. The hearing in relation to that application occurred in mid-2021 and was apparently withdrawn. The father said that was because the Magistrate said the father did not have standing to bring the application for the children’s protection in circumstances where the mother had sole parental responsibility. The Magistrate also noted there was no basis for the order as there was no evidence Mr S had acted inappropriately towards the children or was likely to do so again. At trial before me the father was reluctant to concede that point.
The father maintained at trial he was very concerned the mother had opposed an Intervention Order being made to protect the children from Mr S. However, I do not regard the father as having adduced any probative evidence that the mother had maintained a relationship with Mr S or brought the children into contact with him. She told the Magistrates Court that Mr S had not seen the children since 2018, after she became aware of the sexual offences.
The father’s application against Mr N and Ms O was also listed in mid-2021 and was not successful. Those applications would likely have caused the mother some stress.
The mother currently has an Intervention Order in place naming the father as the respondent. That will lapse in mid-2024. The father’s application to revoke that order was dismissed in mid-2021 when the father attended at the Magistrates Court unrepresented, and accordingly, unable to challenge the mother’s evidence.
The father does not appear to have an Intervention Order against the mother.
I am satisfied that both parents have subjected the other to abuse and denigration – each asserting that any time they lashed out at the other was as a result of being goaded or provoked by the other. I accept that at times the mother has subjected the father to acts of physical violence, including hitting him on the face, and throwing the remote control at him, causing an injury that required sutures.
Breach charges
Each party has been charged on several occasions with breaching the Intervention Orders. I have concerns that at least some of these breaches have been reported to police in order to obtain a tactical advantage.
I am unclear as to how frequently the father has made complaints of breach, and as to how many charges have been actually laid against the mother and proceeded with. As best as I can tell:
(a)in 2018, the mother was charged with denigrating the father in front of the children. I am unclear whether that charge was withdrawn;
(b)in late 2018, the mother was charged for keeping the father under surveillance for allegedly attempting to meet with his lawyer. I am unclear as to whether that charge was withdrawn;
(c)in around mid-2019, the mother asked a teacher to take a photograph of the father as she said he was standing too close to her at a school event. The father reported that as a breach and the mother was charged with stalking. As best as I can tell, that charge was withdrawn. It seems to me that there was little utility in the complaint having been made in the first place;
(d)the mother was also charged in relation to sending two text messages to the father in 2019 in which she said she intended to apply for a divorce, and told him to leave her alone. The father reported these communications to the police and the mother was charged with breaching the Intervention Order as the messages did not relate to the children. The mother pleaded guilty in relation to these breaches and was fined without conviction. It seems to me that it was somewhat petty that the father reported these communications to the police.
As best as I can tell, the father has been charged with three contraventions of the Intervention Order. I understand the charges included that the father had contacted the mother regarding the children coming into contact with Mr S (in early 2019) and that he sent her a copy of her house floor plan. As best I can tell, he was charged and fined without conviction in relation to at least two charges of breach. At trial the father acknowledged that sending the mother a copy of her floor plan constituted family violence.
I understand the father was also charged for breach after sending further correspondence to the mother about Mr S in late 2020. At trial the father said he felt it was appropriate he had sent the correspondence regarding Mr S, and did not regard that as a breach of the Intervention Order.
The father deposed he was interviewed by the police for providing the children with Christmas presents, which the mother had reported as being a breach of the Intervention Order. If that occurred, it seems the police did not proceed with those charges. There may have been other charges for breach – including for attending at the school – but the father described this application as having been “defeated” by him.
The parents have in my view, involved or threatened to involve the police entirely unnecessarily on a number of occasions. I have already set out some of those instances. I note the father also arranged for the police to attend the mother’s home to undertake a welfare check in late 2019 after X did not engage with him in a telephone communication. The attendance of the police at the mother’s home must have been confusing and upsetting for the mother and children. The father also threatened to contact the police on other occasions when the mother did not answer the telephone. I have already referred to the father making what I regard to be an unnecessary police statement in late 2020. The father admitted that he had called 000 about three times to complain about the mother’s behaviour.
Ms E noted that the police records indicated both of the parents had at times requested the police to conduct welfare checks which did not result in any concerns being substantiated.
As already observed the mother’s reports of alleged abuse of the children by the father led to the children being repeatedly interviewed by police. None of her concerns or allegations have resulted in further action being taken by the police.
The likely effect if a child’s circumstances are changed: s 60CC(3)(d);
Pursuant to the interim orders made on 27 July 2023, the children now spend each alternate Sunday with their father, unsupervised. They have not had overnight time in their father’s care since late 2021.
If orders are made increasing the children’s time with their father, that will be a change for the children. If the changes are added in over a period of time, I do not anticipate this will be difficult for the children to manage – particularly in light of the strong father/child relationships observed by the Family Report Writer. Moreover, increasing the children’s time with their father will enable them to have a deeper connection with him.
If the care arrangements are not changed, I have concern that the children will regard their father as increasingly peripheral to their lives.
Practical difficulty of implementation: s 60CC(3)(e);
The parents live reasonably close to each other in Town B. Other than the parents’ strong dislike of each other – and how that may impact their behaviour at changeovers – there are no practical difficulties in implementing orders for the children to spend time with their father.
The proposal for changeovers D Contact Service in City M in my view is impracticable. It would require the parents to each drive almost an hour to City M to effect a changeover. If changeovers were to take place on the Saturday and Sunday at the beginning and end of each day (as proposed by the Independent Children’s Lawyer) that would require the children to spend almost four hours in the car on each of those days.
Avoiding further proceedings: s 60CC(3)(l);
It is clearly powerfully in the children’s best interests for these proceedings to come to an end, and for orders to be made that will reduce the likelihood of further litigation. I have considerable concern that orders that provide only for very limited time are, in my view, unlikely to end the conflict between the parents. Rather, the father is likely to seek ways to increase the children’s time in his care. It is also possible that the mother will rail against the orders I am making and continue to seek ways to marginalise the father.
I also accept that given the parents’ entrenched dislike and mistrust of the other, further proceedings may be inevitable. That may include contravention applications, or even further parenting proceedings. I hope not – as it is abundantly clear that repeated litigation has a disastrous impact on children. It is regrettable that an awareness of the damage being caused to their children has done little to deter the parents to date.
It is hoped that as I am making final orders, the desire of each of the parents to obtain information to ‘use’ against the other in these proceedings is brought to a conclusion. The resolution of these proceedings should also relieve some of the pressure on the children.
Other relevant matters: s 60CC(3)(m).
In his closing submissions, counsel for the mother referred to the report of Ms E and her reference to the mother’s mental health history – whereby she was first diagnosed with anxiety at the age of thirty. She also experienced post-natal depression after the birth of each child. She attended upon psychologists and/or counsellors over the years, and had been prescribed anti‑depressants. The social worker – Ms W – upon whom the mother earlier attended outlined the mother’s anxieties to include a fear that the father would withhold the children.
Ms E noted that the mother continued to view the father as presenting an unacceptable risk to the children’s physical and emotional safety. She wrote:
[The mother] has a fixed perception and only sees [the father] through the lens of an abusive husband, an uninvolved father and an unacceptable risk to the children's physical and emotional wellbeing. Therefore, even minor difficulties experienced by the children during their spend time with their father, will be perceived by [the mother] as vindication of her concerns. [The mother] appears to experience difficulty separating her own experience and unresolved hurt related to [the father] from that of the children.
Counsel for the mother asserted that orders providing for overnight or extended time between the children and the father would likely impact the mother’s mental health, and in turn affect her parenting capacity. He referred to the report of Ms E, and in particular to her conclusion that:
[s]hould the Court reinstate the children's time with their father, [the mother] will require significant support from her therapists because of the escalation of anxiety this is likely to cause and the potential impact of this on her mental health and parenting capacity. Her belief that [the father] poses a risk to the children is unlikely to shift, even in the absence of evidence of risk, without further professional support.
Accordingly, counsel for the mother argued that the orders for the children’s time had to be in accordance with the mother’s proposals – as she would not support, manage, or tolerate any other regime, without her parenting capacity becoming compromised.
There are three points to be made which undermine that argument.
First, at the time Ms E wrote her report, professionally supervised time had come to a conclusion, and no time at all was occurring between the father and the children. Notwithstanding Ms E’s concerns, time was resumed in late 2022, with a member of the father’s family or one of his friends to provide supervision. There was no evidence adduced at the final hearing to indicate that as a result of the resumption of time the mother’s anxiety had escalated, or her mental health had been impacted to the extent her parenting capacity was compromised.
Secondly, I note that at its highest, Ms E said a reintroduction of time was likely to cause the mother’s anxiety to escalate. She said that could potentially impact the mother’s mental health and parenting capacity. However, Ms E did not go as far as saying there was a real risk that the mother’s parenting capacity would likely become compromised to the extent that the children would then be negatively affected.
Thirdly, the potential impact on the mother’s parenting capacity can, in my view, be managed by the mother engaging with professional supports. I note that the mother has previously attended upon a Ms Z psychologist and a Ms W, social worker. I was not advised of any impediments to the mother resuming attendance upon those – or other – mental health support workers. That is, if there are risks to the mother’s health, in my view, any such risk can be substantially ameliorated by the mother’s attendance upon mental health practitioners. It would obviously be of assistance to any counsellor or psychologist to have a copy of these reasons.
I also note that when assessed by Dr K, about nine months earlier, there was no suggestion that the mother’s mental health would be compromised by the introduction of unsupervised or overnight time. At its highest, Dr K observed that the mother spoke of having some fear of the father, but described her presentation as demonstrating “anxious themes but no overt features of traumatisation”. He concluded that the mother had an adjustment disorder with anxious mood, which he regarded as being in remission. He did not express a view that the mother’s mental health functioning was impaired, or would likely be impaired if the children spent substantial and significant time with their father. Nor was this proposition put to him by counsel for the mother.
WHAT ORDERS ARE IN THE CHILDREN’S BEST INTERESTS?
This is a matter in which it is necessary to make clear, detailed and prescriptive orders that the parents can follow meticulously, with little flexibility or negotiation. I have considerable concern that the parents will each seek to exploit any lack of clarity or areas of ambiguity in the orders. No doubt there will be matters that are not covered by my orders, and potentially areas where the parents will not agree on their interpretation. I have done my best to ensure clarity and draft simple and clear orders. It is a matter for the parents how they respond and react to any issues that may arise.
Parental responsibility
The parties agree that the mother should have sole parental responsibility for the children’s health and education. That is entirely appropriate given the parents’ inability to communicate appropriately or co-parent in a functional or cooperative manner. The parents have equal shared parental responsibility for other matters. It is matters affecting the children’s health and education that need to be determined by the mother, as those have been areas of significant conflict, and often prompt decisions will be required to be made.
The children’s time with their father
As indicated, I am of the view that these children should spend substantial and significant time with their father. I do not agree that there is any utility in time being restricted to day time visits only. The parental hate and discord will continue whether the time is restricted to day time or includes overnight visits. If time is restricted to day time visits on alternate weekends only, the father will likely feel victimised. I expect he would continue to look for ways to increase his time with the children. The mother would feel vindicated and potentially empowered by such a decision to continue to look for ways to further exclude the father from the children’s lives.
I share the Family Report Writer’s concerns that a regime in which the children spend substantial and significant time with their father could cause difficulties. Such an arrangement might leave the children exposed to the parental conflict – whereas an order for no time would end that exposure. However, I note the Family Report Writer also said given the depth of the children’s relationship with their father, at this time the benefits to the children maintaining and developing their relationships with him appeared to outweigh the risks involved with that arrangement.
Balancing all of the risks, benefits and additional considerations, I find that a Friday to Monday alternate weekend arrangement, and a sharing of school holidays and special occasions would be the most beneficial and preferable arrangement. It ensures the children have the opportunity to have a meaningful relationship with both parents. It reduces face to face changeovers between the parents. Bringing the proceedings to a conclusion will, hopefully, reduce the parents’ constant attempts to shore up evidence and ammunition against the other.
My orders move the children to overnight time with their father more quickly than was proposed by him. In my view, however, there is no utility in this being dragged out over a protracted period. The longer the changeovers are effected between the parents, without the children having the benefit of their school day acting as a ‘buffer’ between their parents’ homes, the greater the chance of the parents engaging in inappropriate behaviour at changeover. I am satisfied that the time frame outlined in my orders provides the children with sufficient time to adjust to each stage, and ready them for progression to substantial and significant time with their father.
I appreciate the mother will not be happy with this decision – but she will need to find a way to manage her unhappiness.
Holiday arrangements
The mother did not propose any holiday time. The father proposed a sharing of the holidays, with a rotation of the first and second halves. I am not providing a rotation of the shorter term holidays. In my view this may lead to confusion and argument. A clearer and simpler arrangement is that the children simply spend the first half of each of the shorter term holidays with their father and the second half with their mother. That means they will always be collected by their father on the last day of term, so that the parents do not have to engage with each other at the start of the children’s time with their father. That holiday time will commence in 2024.
The longer summer holidays are generally six weeks long. I have provided from the end of next year, the children will spend 21 nights with their father each long summer holiday. Time will commence at the conclusion of school year on alternate years, and then on 2 January in the other year. Again that is a clearer and simpler arrangement than leaving it to the parents to agree as to a changeover day. By changing the start date, each parent is able to have effectively one half of the holidays uninterrupted by Christmas in the alternate year. That will enable the children to spend extended, uninterrupted time with each of their parents.
Additional orders
Changeovers
Whilst D Contact Service might be ideal in terms of preventing the parents from coming into contact with each other, in my view, it is just too far to drive. It takes almost an hour each way – which would mean the children would have to be driven for almost an hour to the changeover, transition into their father’s care and then be driven back to Town B. The reverse would occur at the conclusion of time. The proposal becomes even more unworkable on special occasions, like Christmas and birthdays, when the children would need to be driven from City M to Town B and back again twice on the same day – spending hours in the car on days that should be spent celebrating, connecting and relaxing with family.

I also do not agree that changeovers should occur in the foyer of the Town B Police Station. It sends the wrong message to the children – and provides the parents with the opportunity to seek the unnecessary support and involvement of the police.
The parents have effected changeover at McDonalds in Town B. It has generally been without too much angst. Once time is extended to commence on a Friday during school terms, it will only be on a handful of occasions each year that the parents will need to exchange the children at the McDonalds. Again, it is up the parents how they decide to conduct themselves at changeover.
The interim orders I made provided for the parents, the maternal grandmother or the father’s partner to participate in the changeovers. My chambers has not been informed that there have been issues with these arrangements in the weeks since the hearing.
Special occasions
In relation to special occasions, the parents each proposed similar arrangements for Christmas, Easter and birthdays, and substantially (but not entirely) those matters are consented to by the parents.
I have significant concerns that moving the children between households on these occasions could cause tensions and potentially ruin the children’s experiences of these important events. However, I share the Family Report Writer’s concerns regarding the narrative that may be provided to the children in the event they are unable to spend time with each of their parents on those special events. I am also mindful that the parents have effectively reached an agreement about these matters, and they should be encouraged and supported to make arrangements by agreement.
Accordingly, I will make orders for a sharing of those special days. It is of course up to each of the parents whether they will make the changeovers easy and pleasant or difficult and tense.
I have extended the time on Mothers’ Day and Fathers’ Day from 2024 onwards to conclude at the commencement of school on the Monday, to avoid another changeover between the parents.
Injunctions
The parents have both proposed a number of injunctions that substantially mirror the other's proposals, such that there is considerable consent regarding this aspect. However, I have expressed the injunctions as being orders of the court as I have used different words, included additional restraints and excluded parts of the proposals of the parties.
I have included an injunction regarding the other parent attending school on a day when the children are otherwise not moving into or from their care. Additionally, I am making a specific restraint on the father not taking the children to medical appointments – other than in an emergency – without the mother’s prior consent. I am satisfied that he knows the sorts of matters that the Court would regard as amounting to an emergency. To be clear, none of the appointments that he arranged for the children in breach of the interim orders pursuant to which the mother had sole parental responsibility amounted to emergency treatment.
I am not including the restraint sought by the mother injuncting the parents from “questioning the children about the other parent or arrangements in their home”. The potential for this to be misinterpreted is obvious. For instance, if one parent asks “what did you do on the weekend?” that could be construed as questioning the children about arrangements in the other parents’ home. That could then lead to a contravention application. Similarly the restraint sought by the father preventing the parents from leaving the children unattended could lead to further conflict and disagreement. Moreover, there was no compelling evidence that this has been a genuine issue. Accordingly, I will not make such an order.
The children’s communications
Despite the mother deposing at length to issues she said she faced in encouraging the children to communicate with their father on the telephone, she included a proposal for electronic communication with the father on a twice weekly basis, in substantially similar terms to the proposals by the father.
In circumstances where the mother has included such communication, I am satisfied that notwithstanding the issues she said she previously faced, she must be reasonably confident she can comply with an order for the children to communicate with their father twice each week.
I have made the orders for communication with the children applicable to both parents, to cover the times the children are with the father for holidays.
I have not included the specifications as to ensuring a quiet environment or encouraging the children to participate – as those matters may again lead to further conflict and argument. I note at any rate it is unnecessary to include in the order that the parents encourage participation in that communication. The parenting orders themselves impose an obligation on the parents to do everything a parenting orders says. Parents are obliged to take positive action and all reasonable steps – including positively encouraging children – to ensure the order is put into place.
Attendances at functions
The parties largely agreed in relation to both parents being able to attend at school functions and activities. The mother however sought to impose a limit on the father’s attendance to no more than eight events in one year. I did not have any evidence about why that limit was necessary or appropriate. It is, in my view, appropriate that the father notify the mother that he will be attending, and she can then decide whether she will or will not also attend.
Communication between the parents
The parents agreed they would use the App Close application to communicate regarding the children. I note that the parents also agreed that in relation to the parents discussing education and health matters those communications could be via email.
Counselling
Although the parties each included in their proposed minutes of orders requiring the parents to attend upon counsellors for personal counselling, in discussion at closing, orders to that effect were not pressed.
I note Dr K indicated there was little utility in each parent attending on their own counsellors for personal counselling. He suggested reportable therapeutic counselling where the parents both attend upon the same experienced practitioner, armed with the reports and any reasons for judgment. However it appears the parents are unable to fund that sort of intervention.
As indicated, in circumstances where the parents do not appear to have the resources to meet the costs of the sort of specialised counselling that might be effective for them, there is little utility in making the order. Further, I have concerns that reportable family therapy would provide the parents with another platform to ventilate their ongoing grievances and complaints about the other. It could also inflame the conflict if there was resistance by one party or one of the children to participate in the counselling – leading to contravention applications.
I note the Family Report Writer felt that the parents could benefit from counselling, to support them whilst the orders were first implemented. If either parent wishes to attend upon a mental health practitioner to assist them to manage the implementation of my orders, it would be of use to that practitioner to have a copy of these reasons for judgment, and I order accordingly.
Given the observations made by Ms E, and the submissions made by her own counsel as to the potential impact my orders may have on the mother’s mental health, it may be wise for the mother to seek such assistance. However, I am not satisfied the likelihood of the impact on the mother’s functioning to the extent that her parenting will be compromised is such that I am required to order her attendance upon professional supports as part of the suite of parenting orders I now make.
Other orders sought by the father
I have, unusually, not included an order for additional or other time for the children to spend with their father ‘as is agreed’. That terminology has been the source of much conflict and argument, with the father making repeated requests for additional time and the mother’s almost consistent refusal to agree to any requests. I have also not included the father’s proposed order for the mother not to unreasonably refuse any request by the children for additional time with their father. It is quite obvious orders to that effect would create more conflict and dispute.
The father included in his proposals an order that he be required to return a child to the mother in the event that child requested on an overnight visit to be returned to the mother. I am not prepared to make that order, as in my view it is likely to cause further issues between the parents. For instance, a child may not request a return but tell the mother that they did make such a request. Alternatively, that order could be exploited by the children. A child might request a return when they are dissatisfied with the father as a result of having been asked to undertake a chore, like doing the dishes, or cleaning their room. That would undermine the father/child relationship.
As already repeatedly observed, the parents in this matter need to end the dispute between themselves so that their children can enjoy the balance of their childhoods and grow up with fond memories of their younger years. I have no doubt they both love their children dearly, and want them to reach their full potential. In order that their children can do so, each parent needs to reflect on themselves and consider carefully what they can do to draw the conflict between them to a close. If they cannot do so, the outlook for their children is grim.

I certify that the preceding two hundred and twenty-eight (228) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 14 September 2023

File number(s):	MLC 13554 of 2018
Judgment of:	CARTER J
Date of judgment:	14 September 2023
Catchwords:	FAMILY LAW – CHILDREN – where parents are unable to agree on children’s time with the father – where the mother and Independent Children’s Lawyer proposed limited day time arrangements – where the parents have been engaged in protracted litigation – acrimonious relationship between the parents – where the parents have each perpetrated family violence on the other – where the parents are engaged in a narrative of blaming the other – where the greatest risk to the children is the ongoing exposure to the parents’ hostile relationship
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.15
Cases cited:	Bielen & Kozma (2022) 66 Fam LR 59 Fairfield & Hoffman (2021) FLC 94-045 Mazorski v Albright (2007) 37 Fam LR 518
Division:	Division 1 First Instance
Number of paragraphs:	228
Date of hearing:	24 – 27 July 2023
Place:	Melbourne
Counsel for the Applicant:	Mr Keith Nicholson
Solicitor for the Applicant:	Medson Legal
Counsel for the Respondent:	Mr Robert Burns
Solicitor for the Respondent:	Pear and Pair Law
Counsel for the Independent Children's Lawyer:	Mr Michael Clarke
Solicitor for the Independent Children's Lawyer:	Joliman Lawyers

MLC 13554 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FRATTO Applicant
AND:	MR FRATTO Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	CARTER J
DATE OF ORDER:	14 SEPTEMBER 2023