Gable & Pasley - [2021] FedCFamC2F 79

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gable & Pasley [2021] FedCFamC2F 79

File number: MLC 9359 of 2018

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 23 September 2021

Catchwords: FAMILY LAW – final parenting – parenting arrangements for teenage children – where children live with mother – where children spend time with father – children’s wishes – parental responsibility – COVID19 vaccine – where father seeking to restrain mother from vaccinating the children against COVID19 – sole parental responsibility for health and medical including COVID19 vaccination.

Legislation:
Evidence Act 1995 (Cth), s 79

Family Law Act1975 (Cth), ss 60CC, 61DA, 64B, 65DAA, 65DAC, 67ZC, 68B

Cases cited:
Re F: Litigants in Person Guidelines [2001] FamCA 348

Withers & Russell and Anor [2016] FamCA 793

Division: Division 2 Family Law

Number of paragraphs: 203

Date of last submissions: 3 September 2021

Date of hearing: 26-29 July 2021, 3 September 2021

Place: Melbourne

The Applicant: Appeared In Person

The Respondent: Appeared In Person
ORDERS

MLC 9359 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS GABLE

Applicant

AND:
MR PASLEY

Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

3 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.These orders concern the children, W, born in 2004 (‘W’), X born in 2005 (‘X’), Y, born in 2007 (‘Y’) and Z, born in 2008 (‘Z’) and collectively referred to herein as “the children”.
2.That their mother, Ms Gable (‘the Mother’) have sole parental responsibility for the major long-term issues of;
(a)the children's education (both current and future); and
(b)the children's health and medical care including vaccination and COVID-19 vaccination; and
(c)except in the case of emergency, before the Mother makes a decision concerning those major long term issues described above, the Mother;
(i)inform their father, Mr Pasley, (‘the Father’), in a timely manner of the major long-term issue and her proposed decision; and
(ii)consider any input that the Father makes in a timely manner about the proposed decision; and
(iii)make the decision in a timely manner and inform the Father of that decision, with the Mother having the responsibility for the ultimate decision; and
(iv)otherwise the parents have equal shared parental responsibility for major long-term issues concerning the children.

3.That if and when considering a change of school for the children or any of them, provided order 2 (c) of the previous order above is complied with, the Mother make the decision with regard to changing schools provided;
(a)the selected school is within 6 km of their existing school; and
(b)the Father is provided all relevant information and invited to school tours.

BY CONSENT:
4.That each parent, the Mother and the Father, have sole parental responsibility for the day-to-day care, welfare and development of the children when in their respective care, including ensuring that each child undertakes an appropriate amount of homework and other tasks required by the children's school or schools.

BY THE COURT:
5.That the children live with the Mother and spend time with the Father as follows;
(a)During the school term, and commencing on Friday 3 September 2021, each alternative weekend from after school on Friday (and if Friday is a non-school day then from 3.30pm) until Monday morning before school or in the event the Monday is a public holiday or non-school day then until before school on Tuesday morning, and on each alternative weekend thereafter at those times; and
(b)for one half of each school term holiday as agreed and in default of agreement in writing by text message or email confirmed four weeks before the start of the school term holidays then;
(i)for the first half of the school term holidays, commencing from after school on the last day of school term, in 2021 and each alternative year thereafter; and
(ii)for the second half of the school term holidays, commencing from 5pm on the middle day of those holidays (the second Saturday of a standard two week holiday), in 2022 and each alternative year thereafter;

(c)for one half of the long summer school holidays as agreed and in default of agreement in writing by text message or email confirmed four weeks before the start of the school term holidays then;
(i)for the first half of the long summer school holidays, commencing from after school on the last day of school term, in 2021 and each alternative year thereafter; and
(ii)for the second half of the long summer school holidays, in 2022 and each alternative year thereafter and calculated so that the children are returned to the Mother's care two clear days before the start of school term with the changeover day to be at 5pm on the middle day of those holidays; and

(d)each parent facilitate extra-curricular activities and significant social events of the children during his or her time and in the event of a dispute of what is such an event the Mother determine that issue;
(e)such other times as agreed between the parties.

6.That upon the children turning 16 years of age, then the children spend time with the Father in accordance with their wishes as expressed to the Father and the Mother.

Special Days:
7.Irrespective of any other Order, the children spend time with the Father from 12 noon Christmas Eve until 12.00 noon on Christmas day in 2021 and in each alternate year thereafter.
8.Irrespective of any other Order, the children spend time with the Mother from 12.00 noon Christmas Eve until 12.00 noon on Christmas day in 2022 and in each alternate year thereafter.

BY CONSENT:
9.In the event that Father's Day does not fall on a day when the Father would ordinarily spend time with the children pursuant to these Orders, the children will spend time with the Father for three hours on the day and failing agreement, from 2.00pm to 5.00pm.
10.Irrespective of any other Order, in the event that Mother's Day does not fall on a day when the Mother would ordinarily spend time with the children pursuant to these Orders, the children will spend time with the Mother for three hours on the day, and failing agreement, from 2.00pm to 5.00pm.

Communication
11.The parent who does not have care of the children may call the children any time prior to 9.00pm.

BY THE COURT:
12.The parties communicate in relation to matters to do with the children via phone, email or text message, and reply within two days of receipt or sooner if required in an emergency and in the event of either parent sending the other an email concerning the children then that parent alert the other to the sending of the email by text message.

BY CONSENT:
Changeovers
13.For the purpose of all changeovers that do not occur at school, the parties make arrangements between them that provide for each of the parties to share the travel time equally.

BY THE COURT:
Specific Issues:
14.Each party at all times keep the other informed of their respective residential addresses and landline and mobile telephone numbers.
15.Each parent do all acts and things to cause and ensure that both parents are authorised to and able to contact the children's respective schools in relation to the children's education and access the Compass website and receive all information such as school reports, photo order forms and newsletters as parents ordinarily receive.
16.Each parent do all acts and things to cause and ensure that both parents are authorised to and permitted to attend all school parent teacher interviews for the children, all school concerts and plays, sports days and any other school events ordinarily attended by parents.

BY CONSENT:
17.Each of the parties forthwith inform the other of any illness or injury sustained by any of the children whilst in their care and provide the other with full particulars of the name, address and contact telephone number of any medical or other health professional or hospital from whom or at which the children have received or are to receive treatment.
18.Each parent to all acts and things to cause and ensure that both parents are nominated and referred to in all formal and informal documentation and circumstances relating to the children as the sole next of kin of the children.
19.The Mother do all acts and things to cause and ensure that the Father is informed of all referrals to specialists for the children.

BY THE COURT:
Passports:
20.The parties do all acts and things necessary and sign all documents as may be required to make application or renew passports for each of the children as may be required from time to time. That such passports be held by the Mother, with the Mother to make the passports available to the Father on request and to be returned to the Mother within 48 hours of return from overseas travel.
21.In the event that the Mother or Father refuses or neglects to comply with any of the provisions of these Orders, the Registrar of the Federal Circuit and Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these Orders.

BY CONSENT:
Travel
22.Each party be permitted to travel interstate with the children or any of them on the condition of giving no less than two weeks' notice in writing to the other party.
23.Each party be permitted to travel overseas with the children or any one of them for the purpose of holidays only, on the following conditions:
(a)The party intending to travel with the children or any one of them overseas shall provide the other party with no less than 28 days written notification ("the notice period") of their intention to travel overseas, including:
(i)An itinerary of date of departure and date of return together with full details of flight and/or other transportation arrangements (including copies of any tickets purchased and/or information about the carrier, flight numbers, flight times and stopover details).
(ii)Telephone numbers and addresses of where the children or any one of them will be residing whilst outside the Commonwealth of Australia.

(b)The removal of the children or any one of them from the Commonwealth of Australia shall not interrupt the children's school year and shall be for the duration for no more than two weeks.

24.That in the event either parent intends to travel overseas for the whole of a school term holiday time with the children or any of them, then provided that parent has complied with the preceding order and that parent has provided a further minimum of 28 days notice, that is a total of at least 56 days notice, then;
(a)both parents do all acts and things necessary to permit such travel at the expense of the travelling parent; and
(b)unless agreed otherwise in writing by text or email, upon the following school term holidays the parent that did not travel with the children spend make up time with the children during the time the other parent would ordinarily spend time with the children.

Other Matters:
25.Communication between the parties be respectful at all times.
26.Each of the parents do all acts and things necessary to attend upon a Parenting Orders Program (POP) as soon as reasonably practical and advise the other parent in writing when they have:
(a)enrolled; and
(b)completed such course.

27.The Father undertake a parenting course, specifically the Tuning Into Teens course as soon as reasonably practical and advise the Mother when he has:
(a)enrolled; and
(b)completed such course.

28.The parents be at liberty to provide a copy of the family report dated 13 September 2019, the family report dated 18 March 2021 and these final orders to all and any professionals assisting the family or either of them to resolve a dispute.
29.All remaining extant applications be dismissed.
30.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and particulars of the consequences that may follow if a person contravenes the orders are set out in Annexure A 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 Gable & Pasley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY

The Court was asked to determine the living arrangements for four teenagers; W now aged 17, X who turned 16 during the final hearing of this case, Y now aged 14 and Z age 12 but who will turn 13 in 2021 (‘the children’). The Applicant Mother is Ms Gable (‘the Mother’) and the Respondent Father is Mr Pasley (‘the Father’).
The parties’ commenced co-habitation in 1998, married in 2001 and separated in July 2011. The parents divorced on 26 July 2013. The Mother has re-partnered with Mr B and the Father has re-married with Ms C. Also living with the Father and his wife is the Father’s friend of many years.
The Mother is, by occupation, an allied health worker. In addition, she will shortly complete a degree and has recently been studying full time. The Mother is aged 46. The Father is aged 49 and works as a professional.
The Mother lives in a middle ring Melbourne suburb and the Father lives on the same side of the city but in a suburb further from the city. The Father has a rule in his household that the children must not use mobile phones/social media in their bedrooms or the bathroom, that is only in common areas of his household. The Mother does not have that rule in her household.
It is common ground that the parties have not spoken to each other, save for cross-examination of each other during this hearing, for five years or so save for meeting at a hospital in 2019 following a very difficult event that befell one of the children at that time.
On 3 September 2021 I made final parenting orders and reserved my reasons. These are those reasons. The purpose of reasons is firstly for the parties, and secondly for any other relevant observers, to see why, how and upon what legal and factual considerations the orders were made.
PROCEDURAL HISTORY
These proceedings commenced in August 2018 when the Mother, as applicant, sought the assistance of the Court in obtaining court orders that would permit her to obtain passports for her and the children to travel on a holiday to Country D. The Father refused to provide permission.
Regrettably, by a series of missteps in the litigation, that dispute which commenced in August 2018 now comes on to be heard by me in July 2021. The matter had been listed for final hearing on two prior occasions. The trial did not proceed on the first occasion, being October 2019, in circumstances where the trial judge adjourned the proceedings and ordered a further or second family report. For reasons not entirely clear to me, that second family report was not actioned until the Court's administrative processes ascertained that the matter had not been listed for final hearing.
The matter had been listed before me on 29 April 2021 for final hearing. However, the parties who each represented themselves told me that they were having discussions and hoped to settle the matter. In that context and at very short notice, with the assistance of the Victorian Family Law Bar, an experienced mediator, Mr H, was identified and offered to mediate between the parties pro bono there and then that afternoon instead of proceeding with a trial. I accept, and find that the parties attempted to resolve this dispute in good faith. The matter did not resolve. I am grateful to Mr H for his assistance to the parties and the court.
THE FINAL HEARING AND THE COVID-19 VACCINE APPLICATION
The matter proceeded by Microsoft Teams over 26, 27, 28 and 29 July 2021 and following the conclusion of the final hearing, I reserved my judgment.
On 24 August 2021, while judgment was reserved, the Mother emailed my Associate with a long email which I understood as being intended to be read by me. Before reading this email my Associate emailed the Father, copying him into the Mother’s email asking if there was any objection to my reading it. The Father responded, copied to the Mother, that he had no objection but said:
However I am extremely concerned about (the two older children). (The Mother) has booked them in for the COVID vaccination without my knowledge. I am at wits end and do not know what to do. Whilst I don’t have a problem with adults getting it I do not agree with children getting it.
The Mother responded with an email, copied to the Father, and attached information about the COVID-19 vaccination sent to senior students from the children’s school which I marked as an exhibit. None of these documents were in proper form but the parties were litigants in person and I am obliged to assist them with procedural matters (see Re F: Litigants in Person Guidelines [2001] FamCA 348). I listed the matter for mention on Thursday 2 September 2021.
Without objection I determined that I would treat the Mother’s email as a further submission in closing address and marked it exhibit M11, 2 September 2021. I asked the Father what he was asking me to do with his email concerning his problems with the COVID-19 vaccine. I had raised in final addresses on 29 July 2021 whether I should order one party to have sole parental responsibility for long-term issues relating to health and if so upon what conditions. The Father did not know what he could do and I raised with him that there were at least three possibilities;
(1)That he was asking me to reopen the case and treat the document as evidence in the case; or
(2)That he was reopening his case and asking for an order restrain the Mother from arranging for the children to be vaccinated against COVID-19; or
(3)That his email was simply a comment that he wanted me to know of.
The Father again, did not know what he wanted to do and I permitted him to have 30 minutes to reflect. He then sought a further 30 minutes and I permitted him to have that time to reflect. When the matter resumed the Father told me he was seeking to restrain the Mother from arranging or facilitating any of the children’s vaccinations against COVID-19. He also complained that he had been unable to marshal the evidence that he wished to put before me as the government websites he was consulting were busy and he could not access that information for the hearing that morning.
The Mother opposed the Father being permitted to raise the issue at all or being permitted to make any application on several basis. These included that he had not even attempted to discuss with her by email or otherwise, that his position was contrary to the government’s position, the schools position, the individual rights of the children and that in any event the children may be able to obtain such vaccination themselves and that she did not wish to take any more time off work to deal with the matter and simply wanted a decision. She opposed any restraint in regard to vaccination.

The Mother further submitted that as the family and society were in the middle of a pandemic the matter did not need to be considered at all and that it was urgent, that the older children had appointments for vaccination in October and the younger children would be permitted to attempt to make appointments from 14 September 2021. I decided the matter was urgent. I determined that I would permit the Father to make the application that he sought as a further order or variation of the orders that he had sought in the proceedings and I adjourned the matter to 10.00am the following day to permit him to gather his evidence and for this new aspect of his case to be heard then. I dealt with the Father’s application to restrain the Mother from vaccinating the children against COVID-19 separately, and those findings are set out later in this judgment.
MATERIAL RELIED UPON
The material that the Mother relies upon is as follows;
(a)an application in a case filed on 8 April 2021;
(b)an affidavit by the Mother sealed 7 April 2021;
(c)an affidavit by the Mother filed 19 July 2021;
(d)exhibits tendered during the trial; and
(e)her oral evidence including her opinions as to the COVID-19 vaccination.
The Father relies upon;
(a)an outline of case;
(b)an application filed on 16 July 2021;
(c)his affidavit filed on 16 July 2021;
(d)a further affidavit, sworn by him, filed 23 July 2021;
(e)each of the family reports;
(f)exhibits tendered during the trial; and
(g)his oral evidence including his opinions as to the COVID-19 vaccination.
There had been a family report prepared by a family report writer, Ms E. That report had been ordered on 18 December 2018 and had been prepared following interviews on 9 August 2019, with the parents and the children. That report was dated 13 September 2019. At the time of the first family report, the children were aged 15, 14, 12 and 11 years.
As best I understand it, the context to a second family report being ordered was that the Mother had asserted to the then trial judge on the day of the first final hearing listing that there were significant factual errors in the first family report. The second family report of family report writer Mr F was dated 18 March 2021. That report had been ordered to be undertaken by the then trial judge on 14 October 2019, when the first final hearing did not proceed.
The consequence of these events has been that for almost three years this litigation has hung over the heads of this family and the lives of these four girls.
ISSUES IN DISPUTE
The dispute between the parties comes down to four main issues.
(1)Should the Father's alternate weekend time with the children be extended by one night. That is that it be from after school Friday until before school the following Wednesday morning and each alternate week thereafter. Or should that time be reduced by one night so that it only be from each alternate weekend after school on Friday and till before school Monday? The parties agreed that there should be one half of the school holidays each to them. However, the Mother sought and, ultimately, the Father agreed on the basis that there be make-up time that she have available to her the opportunity to take the whole of one of the school term holidays for the purpose of travelling overseas. The Father did not oppose such arrangement provided that his half of the school holidays was put in place the following holidays. The Mother agreed to this position.
(2)Another contentious issue between the parties can be described as how some flexibility can be included in the orders for the purpose of accommodating teenage children's demands and lifestyle and immersion in the community and social groups. The order the Mother sought at paragraph 4 of her application was in these terms:
4.Irrespective of any other order, the children have the right to spend additional time with either the father or the mother if specific reasons relating to social, mental or physical wellbeing are given to both parties.
(3)The next significant dispute was irrespective of any other order upon each child turning 16 years of age whether the children then be able to determine their own spend-time arrangements.
(4)The remaining dispute was whether the Mother should be able to change the children’s schools if they wished so but provided that not be a further distance than five kilometres from the existing schools.
The further dispute regarding the Father’s application to restrain the Mother from having the children vaccinated against COVID-19 arose after the final hearing had concluded but before decision.
THE MOTHER’S CASE
The Mother set out the detailed orders she sought in an application in a case filed 7 April 2021. I recite those orders sought and indicate in bold the orders that the Father agreed with, as told to me, or as stated in his Response filed 16 July 2021:
1.The Mother and Father have equal shared parental responsibility for the long-term care, welfare and development of the children of the relationship, namely W ("W") born in 2004, X ("X") born in 2005, Y ("Y") born in 2007, and Z ("Z") born in 2008 ("the children"). (Agreed)
2.        The children live with the Mother. (Agreed)
3.        The Father spend time with the children during term time as follows:
(a)In week one from Friday at the conclusion of school until the following Monday at the commencement of school; and
(b)       At other times as agreed.
4.Irrespective of any other Order, the children have the right to spend additional time with either the Father or the Mother if specific reasons relating to social, mental or physical wellbeing are given to both parties.
5.Irrespective of any other Order, upon each child turning 16 years of age, the children are able to determine their own spend time arrangements.
6.Each party have sole parental responsibility for the day-to-day care, welfare and development of the children when in their respective care, including ensuring that each child undertakes an appropriate amount of homework and other tasks required by the school. (Agreed)
Holiday periods
7.The children spend time with the Father during the term school holiday periods for half of all term school holiday periods, at times to be agreed between the parties.
8.The children spend time with the Mother during term school holiday periods for half of all term school holiday periods, at times to be agreed between the parties.
9.In the long summer holidays the children will spend time with the Father from the conclusion of school until 3.00pm on 29 December of each year.
10.In the long summer holidays the children will spend time with the Mother from 3.00pm on 29 December until 3.00pm on 16 January of each year.
11.In the long summer holidays the children will spend time with the Father from 3.00pm on 16 January until 3.00pm on 26 January of each year.
12.In the long summer holidays the children will spend time with the Mother from 3.00pm on 26 January until the commencement of school each year.
Special Days
13.Irrespective of any other Order, the children will spend time with the Mother from 10.00am Christmas eve until 10.00am on Christmas day in 2022 and in each alternate year thereafter.
14.Irrespective of any other Order, the children will spend time with the Father from 10.00am Christmas eve until 10.00am on Christmas day in 2021 and in each alternate year thereafter.
15.Irrespective of any other Order, the children will spend time with the Mother from 10.00am Christmas day until 4.00pm on Boxing day in 2021 and in each alternate year thereafter.
16.Irrespective of any other Order, the children will spend time with the Father from 10.00am Christmas day until 4.00pm on Boxing day in 2022 and in each alternate year thereafter.
17.Irrespective of any other Order, the children will spend time with the Father from 10.00am New Year's Eve in 2021 until 4.00pm on New Year's Day in 2022 and in each alternate year thereafter.
18.Irrespective of any other Order, the children will spend time with the Mother from 10.00am New Year's Eve in 2022 until 4.00pm on New Year's Day in 2023 and in each alternate year thereafter.
19.In the event that Father's Day does not fall on a day when the Father would ordinarily spend time with the children pursuant to these Orders, the children will spend time with the Father for three hours on the day and failing agreement, from 2.00pm to 5.00pm. (Agreed)
20.Irrespective of any other Order, in the event that Mother's Day does not fall on a day when the Mother would ordinarily spend time with the children pursuant to these Orders, the children will spend time with the Mother for three hours on the day, and failing agreement, from 2.00pm to 5.00pm. (Agreed)
21.On each of the children's birthdays and each of the parents' birthdays, with the party who does not have the care of the children, for a minimum of three hours, at times agreed between the parties and children.
Communication
22.The parent who does not have care of the children may call the children any time prior to 9.00pm. (Agreed)
23.The parties will communicate in relation to matters to do with the children via phone, email or text message, and will reply within two days of receipt or sooner if required in an emergency.
Changeovers
24.For the purpose of all changeovers that do not occur at school, the parties will make arrangements between them that provide for each of the parties to share the travel time equally. (Agreed)
Specific Issues
25.Each party at all times keep the other informed of their respective residential addresses and landline and mobile telephone numbers.
26.Both parties be able to contact the children's respective schools in relation to the children's education and access to the Compass website. (Agreed)
27.The parties be permitted to attend all school parent teacher interviews for the children, all school concerts and plays, sports days and any other school events ordinarily attended by parents.
28.The Mother is given the right to make the final decision with regards to changing schools if one or more children decide they wish to do so, on the following conditions:
(a)       The selected school is within 5km of their existing school.
(b)There has been considerable discussion with the child, and that the child agrees with the move.
(c)The Father is provided all relevant information and invited to all school tours.
29.Each of the parties forthwith inform the other of any illness or injury sustained by any of the children whilst in their care and provide the other with full particulars of the name, address and contact telephone number of any medical or other health professional or hospital from whom or at which the children have received or are to receive treatment. (Agreed)
30.The parties shall ensure at all times that the Mother and Father are nominated and referred to in all formal and informal documentation and circumstances relating to the children as the sole next of kin of the children. (Agreed)
31.The Mother undertakes to inform the Father of all referrals to specialists for the children.
Passports
32.The parties do all acts and things necessary and sign all documents as may be required to make application or renew passports for each of the children as may be required from time to time. That such passports be held by the Mother, with the Mother to make the passports available to the Father on request and to be returned to the Mother within 48 hours of return from overseas travel.
33.In the event that the Mother or Father refuses or neglects to comply with any of the provisions of these Orders, the Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to these Orders.
Travel
34.Each party be permitted to travel interstate with the children or any of them on the condition of giving no less than two weeks' notice in writing to the other party. (Agreed)
35.Each party be permitted to travel overseas with the children or any one of them for the purpose of holidays only, on the following conditions:
(a)The party intending to travel with the children or any one of them overseas shall provide the other party with no less than 28 days written notification ("the notice period") of their intention to travel overseas, including:
(i)An itinerary of date of departure and date of return together with full details of flight and/or other transportation arrangements (including copies of any tickets purchased and/or information about the carrier, flight numbers, flight times and stopover details).
(ii)Telephone numbers and addresses of where the children or any one of them will be residing whilst outside the Commonwealth of Australia.
(b)The removal of the children or any one of them from the Commonwealth of Australia shall not interrupt the children's school year and shall be for the duration for no more than two weeks.
36.In the event that the travel outlined in paragraphs 34 and 35 herein takes place when the children or any one of them are scheduled to be in the other parent's care pursuant to these Orders, there be provision for make-up time for the time missed.
Other matters
37.      Communication between the parties is to be respectful at all times. (Agreed)
38.That both parties will endeavour to support the children's social and extracurricular activities, including during school holiday periods, and the party who has the care of the children, or in whose care they will be, being responsible for giving permission for any of the children to attend a forthcoming activity. (Agreed)
39.Both parties will endeavour to support the children's social and emotional development and wellbeing, including validating the children's own thoughts, feelings and choices in relation to matters than concern them.
40.Both parties support the children financially and emotionally to continue to receive counselling with either the school counsellor at Camberwell High School or another independent counsellor.
41.That pursuant to Section 65DA(2) of the Family Law Act, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders are set out in Annexure A, attached hereto and these particulars are included in these Orders.
In her outline of case the Mother sought an order of equal shared parental responsibility. She also sought under specific issues an order that she be given the right to make the final decision in regard to changing schools (but provided that school is within five kilometres of the existing school). At the start of the hearing the mother indicated that that was no longer an issue at the moment. However, in an outline of case and closing addresses she sought the order as follows:
“The children be permitted to change schools if they so wish”.
The gist of the Mother's evidence was that she had a close and appropriate relationship with the children and that her style of communication with the children was to listen to and be responsive to their expressed wishes. I find that the Mother is an excellent parent and attempts to be carefully in tune with her children and their emotional and psychological needs as they develop and evolve as individuals over time from her point of view.
The other matter of substance in her evidence was that she had difficulty communicating with the Father and, that as a general rule, he did not respond to information or requests for input regarding serious parenting issues, or if he did respond, his default position was to say no without proper or serious consultation. The Mother is motivated by her view that the children should have “agency over their care arrangements”.
I had no hesitation in finding that the Mother was a reliable and truthful witness. The Mother's evidence was, to a modest degree, influenced by her own perceptions of what was her interest in the case. The Mother feels confident and empowered by her relationship with the children.
THE FATHER’S CASE
The gist of the Father's evidence case and evidence was that, despite the criticisms by the Mother of his parenting, he had a close and appropriate relationship with the four children and that the children's time in his household was appropriate and enjoyable for them at all times.
The Father sought the following orders in his application filed 16 July 2021:
Fathers Time
1. That the children live with the Father as follows:
(a)During term time, in each alternate week on Friday from the conclusion of school, or 3.30pm if not a school day, until the following Wednesday at the conclusion of school, or 3.30pm if not a school day;
(b)During term school holiday periods for half of all term school holiday periods, at times to be agreed between the parties, and in default of agreement, for one week with the Father's holiday time to commence in accordance with the Father's ordinary/usual fortnightly term time cycle;
(c)During the long summer holiday period for half of all the summer holidays. The first two weeks with the Father commencing at the ordinary/usual fortnightly cycle and the following two weeks with the Mother. Then on a week about basis until the commencement of the scholastic year.
Special Days Spend Time
2.Irrespective of any other Order, the children will spend time with the Father from 12.00pm Christmas eve until 12.00pm on Christmas day in 2021 and in each alternate year thereafter
3.Irrespective of any other Order, the children will spend time with the Mother from 12.00pm Christmas day until 12.00pm on Boxing day in 2021 and in each alternate year thereafter.
4.Irrespective of any other Order, the children will spend time with the Father from 12.00pm New Year’s Eve in 2021 until 12.00pm on New Year’s Day in 2022 and in each alternate year thereafter.
5.Irrespective of any other Order, the children will spend time with the Mother from 12.00pm New Year’s Eve in 2022 until 12.00pm on New Year’s Day in 2023 and in each alternate year thereafter
6.At other times as agreed by the parties.
Passports and Travel
7.The parties do all acts and things necessary and sign all documents as may be required to make application or renew passports for each of the children as may be required from time to time. That such passports be held by the Mother, with the Mother to make the passports available to the Father on request and to be returned to the Mother within 7 days of return from overseas travel.
8.In the event that the Mother or Father refuses or neglects to comply with any of the provisions of the above Order, the Registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the defaulting party and do all acts and things necessary to give validity and operation to the above Order
9.That in the event that the travel outlined in Ms Gable’s paragraphs 34 and 35 herein takes place when the children or any one of them are scheduled to be in the other parent’s care pursuant to these Orders, permission from the other parent must first be given before any travel arrangements can be made, and suitable makeup time be provisioned for.
Communication
10. Each of the parties, their servants and agents be and are hereby restrained from:
(a)Abusing, insulting, belittling, rebuking or otherwise denigrating the other party or their partner;
(b)Advising the children that they should not advise the other parent of any important issue;
(c)From discussing with the children any issues requiring prior parental consent;
11.The parties will communicate via email and /or text message in relation to matters to do with the children. Matters of urgency must be communicated via text or phone call.
12.That each party at all times keep the other informed of their respective residential addresses and landline and mobile telephone numbers within seven (7) days of such change..
13.Health issues both physical and mental regarding the children are to be discussed between both parties before seeking any referrals.

The other matter of substance in his case and affidavit material was that the Mother had adopted a position of superiority in regard to parenting and was a gatekeeper as to the time that he should spend with the children and had taken it upon herself to permit the children to determine when they should and should not come on Court-ordered time with him.
His case was that the concept that the children’s time with each parent was a matter for the parents to determine and that the children or any of them should not be burdened with the responsibility of determining when they spent time with either parent.
I found the Father to be an honest and straight forward witness. To only a small degree his evidence was shaped by his interest in the case.
The Father feels that his time and relationship with the children are constantly under threat from the Mother. He presents as feeling powerless and clinging onto his precious relationship with his children as it slips from his grasp. He presented as feeling besieged by the Mother’s communications, conflict about mobile phone/social media use in his home, by the demands of his job, by his relationship with his wife, by his health and life. He presented as seeing strict compliance with rigid court orders (for more time) as the only remedy.
THE CURRENT ARRANGEMENTS
By consent on 18 December 2018, when the matter had been set down for hearing on 14 October 2019, the parties had agreed to a number of interim orders. Those orders provided that the parents have equal-shared parental responsibility and that each party have the sole parental responsibility for the day to day care, welfare and development of the children. This included ensuring that each child undertakes an appropriate amount of homework and other tasks required by the children's school.
The agreed time arrangements for the children was that the children would spend time with the Father during school term, each alternate week from Friday after school until the following Tuesday morning at the conclusion of school, that is Tuesday morning to school but being responsible for their care until the conclusion of school in the afternoon. In addition, the parties agreed that the children spent time for half of school-term holidays at times to be agreed and in default of agreement, for one week with the Father's time to commence in accordance with the usual fortnightly regime.
Those orders made specific times for the 2018/2019 school holidays but did not otherwise make provision for the long Summer holidays. I infer that this was because the matter was listed for final hearing in October of the following year. The circumstance that there was no specific arrangement for these children over the further school holidays has been a source of conflict and trouble for this family.
The key dispute was the extent to which the children enjoyed their time in the Father’s household and the impact on them of the Father’s rules as where the children were permitted to use their mobile phones with all that entails.
Ultimately, there were few other facts in dispute between the parents. The real issue between them was their respective parenting styles and their respective attitudes to parenting and the time that the children should spend with the other parent.
The Mother demonstrated that she places great weight upon what the children have told her are their wishes.
THE FIRST FAMILY REPORT
Significant evidence was the first family report prepared by Family Consultant Ms E (the first report writer). She was not required or put on notice for cross-examination. The interviews were on 9 August 2019. At that time the Father sought the additional day for his time. The first report writer described the Mother as follows:
19.…She presented with some fixations on past conflicts with the father and struggled to reshift her focus despite numerous prompts…
The Mother's partner, Mr B, was described as follows:
19.… Mr B presented as calm, considered and provided responses primarily when asked to give his input. Mr B presented as more child focussed potentially due to having no history of conflict with Mr Pasley (whom he has not formally met).
The first report writer opined that the Mother:
20.…appears to have developed an interest in spirituality, mindfulness and meditation since separating from Ms Gable. She also reported being somewhat more purposeful and driven since commencing a relationship with Mr B and often replied to questions with “We believe” or “We think,” or “Now that I have a partner.”
The Mother denied the Father's claims that she has unstable mental health. At paragraph 24, the first report writer opined:
24.In respect to Mr Pasley’s proposed an additional overnight with the children on alternate Thursdays (that is a five night block), however Ms Gable was not in agreement with his proposal. She stated, “I don’t agree because we have established stability, a routine and activities; the kids don’t want anything to change and are happy as it is.”
The Mother at that time proposed for the children to live with her and spend alternate weekends with the father from Friday until the following Tuesday (that is the same arrangement as in the existing order). At paragraph 26, the report writer opined:
26.In relation to co-parenting, Ms Gable reported being supportive of the children’s relationship with Mr Pasley, however lacking in insight into the contributions she has made to perpetuating conflict with him. For example, Ms Gable became aware of Mr Pasley allegedly having another daughter (denied by Mr Pasley) and she advised, “So I emailed him to congratulate him on his new daughter, and he just got angry at me.”…
At paragraph 27, the report writer observed:
27.Of concern are allegations that Ms Gable had put significant and unfair pressure on W to obtain her father’s signature for the children’s passports, in order for them to travel to Country D. Ms Gable showed limited empathy in relation to the experiences of W, who confirmed during interview that this had occurred and that she felt upset…
The Father was described as:
30.Mr Pasley presented as calm, polite and reasonable, however eager to defend himself. He struggled to shift his focus away from past conflicts and each parties’ detailed affidavits. Mr Pasley’s speech and affect remained the same throughout the interview, however he became tearful when discussing his concerns for W when Ms Gable pressured her to obtain Mr Pasley’s signature for the children’s passports. Mr Pasley presented as exhausted at the end of the interview and held his face in his hands, and looked towards the ground…
The Father told the first report writer at paragraph 31:
31.It’s not my call but my concern is that she is extremely manipulative with the kids.
The conflicting parenting styles were apparent when the Father advised the report writer that the Mother:
36.…is too relaxed in her parenting style, and that the children “could” get lost or go missing when travelling with Ms Gable overseas. Mr Pasley reported that he believes the children attend “too many social events on the weekdays; three times a week; once a week is more appropriate.”
At the time of the first family report, the child W, then aged 15 years and seven months, appeared to the report writer as:
38.…polite, however somewhat overwhelmed and with restricted affect. She denied having any worries or thoughts which made her feel sad, however she was particularly tearful when discussing how her mother might feel if she wanted more time with her father. W confirmed that she felt pressure from being in between parental conflict as her Mother and Father, “they don't talk to each other.”
39.In relation to being required to get passport documents signed by her father, W rated her stress levels as “eleven out of ten.” W advised that her mother sent her father an email requesting that he sign the children’ passport applications. Mr Pasley did not see the email and Ms Gable asked W to follow up the issues with her father during the next visits. It appears that both parties have focussed on their own needs as opposed to being sensitive to the impact of their parenting difficulties on W. W described feeling pressure and frustration from each of her parents when issues arise.
40.W stated that she would like to spend some extra time with her father, however “as I please, like my friends with separated parents; they can go to each parents house as they please.”
The child, X, was then 14 years and she responded to most questions from the report writer as, “I don't mind”, or, “I don't know”. She stated at paragraph 42:
42. It is a bit awkward between them, but I don't worry too much.
The child, Y, was observed as becoming less reserved and burst into tears at the end of the interview. At paragraph 46 the report writer stated:
46.Y became less reserved and burst into tears at the end of the interview, when asked about how she felt coming to Court. Y, tearfully blurted out, “I’m so worried that I’m going to say the wrong thing, and then something bad will happen.” Y could not identify what bad thing will happen, or whom she may offend, she repeated, “I don’t know”…
The report writer went on to observe:
46.… It appears that either one parent, or both parents, are contributing to Y’s feelings of being overwhelmed and pressured to ‘say the right thing,’ which is an impossible expectation to place on a child, especially in the context of parental conflict…
The child, Z, presented as confident and talkative. The report writer observed:
47.She was frank and advised, “We are here because mum and dad don’t agree about something”…
Z advised the report writer that the Father had never met Mr B (the Mother’s partner) and she is not sure why. She said that her Mother does not like Ms C (the Father's wife) and she does not know why. She said that her Mother and Father do not talk and she does not know why. At that time, at paragraph 49, Z advised:
49.“My only wish is that mum and dad would get along and talk, I want everyone to live together and get along”…
Z also told the report writer:
49.…“Sometimes when we are on our phones and mum gets angry, we say to her that we are going to live at dad's if mum says no to us.”
As to the children's relationship with their Father, observed by the report writer, she stated that:
51.… The children appeared to very comfortable, settled and confidant in the playroom and loudly laughed and spoke over the top of each other. (The Father) relaxed as time progressed and (the youngest child) sat on his lap for the duration of the observation. Overall, the children appeared to have a close and enjoyable relationship with (the Father), with a slight need to make him feel wanted and comfortable.
In regard to their relationship with their Mother, the first report writer observed:
52.The children’s behaviour and interactions was similar during observations with (the Mother and her partner)……(The Mother’s partner) appeared to enjoyed interactions and the children appeared to enjoy spending time with (him) and (the Mother); they laughed loudly, spoke over the top of each other and remarked on who was winning the game.
53.Overall, the children appeared to be slightly louder, and more confidant during observations with (the Mother)…
At the end of the observation session, the report writer observed that the Mother tapped the older two children on the shoulder, and said to all of them:
“I'm really proud of you guys, you did really well”.
The report writer observed that the Father had inadvertently punished the children for the Mother's behaviour, by not allowing them to travel overseas for the first time. She said the Father's response does not appear to be completely child focused, and has potentially escalated conflict. The report writer observed the Mother's proposal to travel with the children to Country D is also reasonable, however appears to have been poorly managed or communicated to the Father.
The first report observed:
65.W and X are currently commencing adolescence and are at ages whereby their social relationships will become a higher priority than time on the weekends with each parent. Therefore, some flexibility will be appropriate in their spend time arrangements with… (the Father). For Y and Z, a structured spend time arrangement with Mr Pasley is more appropriate due to their younger ages. At interview, all of the children presented with some reluctance in expressing their wishes due to concerns that they may offend either Mr Pasley or Ms Gable. Based on the children’s presentation, and their ages and stages of development, substantial weight could be given to the children’s wishes (when they are confident enough to disclose them). All four children have reported enjoying their time with Mr Pasley, and all four children were open to spending more time with him.
The first report writer recommended that there be an extension of the time, and that the children spend alternate weekends from the conclusion of school Thursday, until the commencement of school the following Tuesday (that is in accord with the Father’s position). However, he also recommended that the parents and their partners attend a number of family therapy sessions to improve communication, gain insight into the children's experiences, and integrate new partners into the co-parenting relationship. The first report writer also recommended that the parents communication be through a parenting application, such as Talking Parents, or 2Houses or Our Family Wizard.
None of those recommendations were put into place, or acted upon by the parents. None.
I accept the observations and opinions of the first report writer as to circumstances at that time in 2019.
THE SECOND FAMILY REPORT
By the time of the second report 18 months later the parental conflict had not abated. The report was undertaken by a different report writer, Family Consultant Mr F (the second family report writer). The interviews for the second report were undertaken on 9 February 2021, and by video conference. The children were at the Mother's home during the video conference. The children were not observed with either parent. The only observations of the children with their parents is as stated in the first report.
The Father had given the report writer notice to be available for cross-examination for the April 2021 final hearing but not for the July 2021 hearing. I made inquiries and the report writer was not available for this hearing. The Father would have asked the report writer questions if available. I understood the parties wished to get on with the hearing notwithstanding that glitch. In final address the Father told me he regarded the second family report as “biased against him” and that it commented on matters that had not been raised with him such as being alert to gender issues. I did not find the report was biased for or against either party.
The second report opined that it should be read together with the first family report, and specifically referred to the observations that were completed during the first family report. What had occurred since the first family report interviews was that the oldest child, W had, since about late 2019, regularly stayed an additional overnight at her Father's home each fortnight and returned to her mother's residence after school the following day.
The oldest child had also obtained casual employment and worked on weekends. The children had a busy extracurricular life, as well as a school life. The Father still sought the extra day of time that he had previously sought. The issues identified at the second family report assessment were:
(a)the children's adolescent stage of development and increasing desire for independence.
(b)Significant ongoing animosity resulting in a conflictual co-parenting relationship.
(c)The children's exposure to an adult conflict and a negative impact on their parental relationships.
(d)The children's apparent preference for a more consultative parenting style and increasing resistance to their father's parental approach and boundaries.
(e)The children's anxiety around discussing their views and concerns with their father.
The second report writer observed as follows:
39.The parents described a highly acrimonious relationship with each parent presenting with polarised views and viewing the other as fundamentally responsible for the escalation of the conflict. The parents were inclined to apportion blame toward their co-parent who were viewed as holding negative biases with significant mistrust. They appeared to struggle to identify positives relating to the other parent.
40.…The parents described currently communicating via text message and email. Mr Pasley described the parents ceasing direct verbal communication around five years ago. He reported Ms Gable as communicating in writing regularly regarding the children’s issues and providing copious content, which was “white noise”, overwhelming and contributing to his delays in responding and missing specific pertinent issues…
…
42.It was surprising that neither parent has completed post separation education, given the protracted nature of their dispute, with evident disruption and negative impacts on the children. Notably neither parents advised of completing post separation education.
In fact, the Mother had completed a course about post-separation parenting.
The child, W, now 17 years old, was described as emotional throughout the interview and appeared to struggle discussing issues relating to her Father, and particularly relating to her concerns around his parenting. She was regularly tearful throughout the interview. W described struggling to communicate with him, and feeling issues were never resolved. She described discussions including her Father referring to the need for privacy as “bullshit”, and referencing his view that children do not need privacy. She also referred to her request to change spend time arrangements being met with anger from her Father, who resisted.
W reported the additional overnight she spends with her Father as instigated by her Father. She described her Father as overly protective. At paragraph 48, the report writer observed:
48.Withstanding the concerns, it was evident W maintains a strong connection with her father. She presented as anxious about hurting his feelings… It appeared evident that W felt significant pressure and concern regarding making her own decision and was wary of upsetting her father.
X, now 15, was interviewed again for the second report. X turned 16 on the second day of the final hearing. X was notably upset in discussing topics relating to her Father. X described her Father as broadly stricter than her Mother, and being angered when she disagreed with him, reporting that occasionally her Father would get mad and yell. She described her Father yelling at Y for wanting to complete her dancing upstairs, away from the main living area. X told the report writer that in regard to what she wanted to change she wanted more independence and to choose when she goes, and does not go, to spend time with her Father. She outlined a preference to go less and there being a high likelihood of attending less often if she was provided with choice. X told the report writer that she was uncomfortable discussing topics where her Father disagreed, due to her expectation her father would respond with hostility and may yell.
Y, then 13 years old, reported her Father recently struggling with back surgery and being unable to drive. She described it as being harder to see her friends and seeing them less while at her Father's residence.
Y described some experiences or rules at her Father's house as being overwhelming for her. Y described that she lacked the confidence to speak with her Father and she outlined that her change in her position from her previous interview was her being frozen and stressed in the previous interview and not conveying her thoughts accurately and experiencing a sense of pressure to not make a mistake.

The youngest child, Z, now 12 and soon to be 13, was described as being direct in communication with the report writer and, at times, broke down crying during the interview. Z was more direct than her siblings describing a number of problems/experiences with her Father's care. She referred to him as overpowering and described being made to feel uncomfortable. Z referred to recently choosing to stay at her Mother's home on the weekend and being questioned by her Father, who stated, “Where are you going and who are you going with?” Z was described as referencing worry about getting into trouble at her Father's residence and feeling afraid of her Father with reference to it being like walking on egg shells.
The Mother’s 7 April 2021 affidavit had stated as follows in regard to Z:
[34] On occasions Z has asked to live permanently with us and visit her father on an ad hoc basis. She experiences anxiety and feelings of overwhelm about going there and has told us that she has historically felt miserable, overlooked and anxious while at her dad’s house. I have been trying to help her understand what a permanent arrangement staying with us would mean that she would struggle to have any relationship with her father. I have encouraged her to speak with her school counsellor; she has been having sessions for several weeks now.
[35]Since allowing Z more flexibility, she has responded well by showing more interest in having a relationship with her father on her own terms. She has told us the following:
(a)She feels relieved not having to go there sometimes and feels less stressed and anxious when she can stay home.
The second report writer observed:
71.…the children appear heavily linked to the parental conflict and in this context, an increasing strain on their relationship with Mr Pasley and resistance to his parenting approach. The emotional impact on the children was evident throughout their interviews, with all four of the children appearing upset and tearful throughout the process. These responses were evidently the result of the children feeling significant pressure associated with being exposed to the acrimonious parental conflict and potential to upset their parents.
The second report writer described the Mother's opinion of the Father's parenting as:
72.…domineering parenting style, which were reported as contributing to the children experiencing discomfort during his care. She also highlighted issues around the distance from the location of the children’s school, regular social and extracurricular activities, which are primarily occur within the (suburb where Mother lives) area. In contrast, Mr Pasley denies concerns regarding his parenting approach, describing the children as comfortable at his residence and relating the children’s concerns as issues as deriving from exposure to the views of Ms Gable.
The second report writer observed:
74.The children’s interviews included notable changes when contrasted with views expressed in the original Family Report dated 13 September 2019. This change was likely a product of time with over 12 months elapsing and also reported difficulty expressing themselves within the previous interviews, with reference to concern of upsetting their father… It is probable that the persisting conflict and evident animosity between the parents is contributing to the children’s increasing alignment with their mother and increasingly vocal resistance of Mr Pasley’s parenting. Children exposed to high conflict co-parenting relationships often align with one parent and develop increasing resistance to spend time with their other parent. However, there are other factors also contributing to this dynamic, including the children’s ongoing adolescent development as discussed and Mr Pasley’s more authoritarian parenting style…
The report writer observed:
75.Irrespective of the cause of the change all four of the children described perceived problems with the father's parenting approach…
…
77.…each of the children expressed a desire for greater control over (the spend time arrangements). They reflected feeling mature enough to make these decisions on their own…Whereby, choice was provided to the children, there is a realistic possibility that one or more of the children might refuse to attend upon their father’s residence entirely. This was particularly the case as noted by Z. The children exercising control of spend time arrangements, whilst providing flexibility, would also place responsibility on the children for decisions and navigating communication with their parents. This would impose a significant emotional burden on each child and with a risk of creating further instability and fragmentation within the family. The three younger children are viewed as more likely to benefit from a consistent and structured approach to spend time arrangements. W given her age is viewed as a necessary exception to this rule, given her age, maturity and associated greater need for flexibility, including her completion of year 12 studies and casual employment.
(emphasis added and the Father’s case relied upon this observation)
The report writer recommended that W determine her own arrangements and that the three younger children attend each alternate weekend from Friday until Monday (that is one night less than currently) with each parent to facilitate the children's extracurricular activities during their allocated spend time. Further, the report writer recommended that upon each child turning 16 years of age there be “consideration” for them to determine their own spend time arrangements.
At the time of the report dated 18 March 2021 the report writer recommended that the parents attend a parenting orders program and provided a contact for that to be undertaken. It was also recommended that the Father undertake a parenting course, specifically the Tuning into Teens course and a contact number was provided.
It was also recommended that given the ongoing stress relating to the conflict each of the children should be encouraged and supported to engage in individual counselling to explore difficulties and concerns with an independent professional.
I accept the opinions and observations of the second report writer.
FAILURE TO COMMUNICATE
The Father is an educated and intelligent man. I enquired of him as to why he had not undertaken a Parenting Orders Program or the Tuning into Teens course as recommended in the second family report. As best as I understand his explanation it was not that he was opposed to either course. Rather with the combination of precious time with his children from alternate Friday after school to the Tuesday morning, a busy work life, the demands of time and energy in repairing and maintaining his marital relationship with his wife, the difficulties of the COVID-19 pandemic, the need for surgery and the extended time needed for rehabilitation from that surgery, had simply not left enough time for him to get around to arranging or seriously considering arranging either course. By the last day of the hearing in final address the Father told me that he had, that day, booked into the Tuning into Teens course.
There are a number of examples of the parents communicating very poorly. I found the examples in evidence are representative of the way the parents communicate about long term issues for the children. Ultimately, I find that both parents are responsible for that to some degree but that the greater degree of responsibility rests with the Father. Consistent with his regarding communications from the Mother as white noise on many occasions he simply does not respond. It also appears by simply the business of a busy life he does not become alert to emails from the Mother. He is usually alert to text messages from the Mother. The state of the parental relationship is such that picking up the phone is simply not an option these parties consider. I find that the children have suffered stress as a result of the inability of the parents to discuss matters by telephone or at all.
The parents' communication difficulties were not limited to simply a failure to discuss anything person to person or the father failing to read or respond to enquiries and requests of the Mother made by email. When there was communication neither trusted what the other said in the email or text communication as being the truth. Each sought, and found, affirmation of their own view of the other parent in such communications as there were between them.
The Mother's style of communication is also to refer to herself or her views as “we” and “us” and it is difficult for the reader of the email or text message to discern whether “we” is the Mother and her partner, or the Mother and the children or the Mother and her partner and the children or simply the Mother herself. On almost every occasion the Mother's communications and requests are clear and expressed courteously. The Father's communication style, when he does respond, is abrupt, critical and fails to respond to the issues that are clearly of concern to the Mother other than in the briefest terms, if at all, and usually by reference to past events and some of them many years ago.
The parents' communication in the latter half of 2020 are reasonably representative examples of the parties' communication and are emblematic of the history of the parental relationship.
In the middle of 2020 the parties were waiting for advice as to the date of the next final hearing. Existing orders did not provide as to what would occur over the Christmas holidays. On 11 June 2020 at 9:52am the Mother sent an email, in courteous, clear and practical terms to the Father as follows:
Hi Mr Pasley,
We’ve decided to post phone our family holiday plans until January… I’ve looked over the Dec-Jan calendar and propose the following care based on what we did earlier this year.
December 18 Girls are with me for the first week of the holidays
Christmas Day you collect the girls for Christmas at midday and have them for the following two weeks.
January 8th I pick up the girls at 3 PM and have them for the following two weeks (we’ve booked accommodation in New South Wales from 8th-15th and will send the travel details later)
January 22 You pick (up) girls at 3 PM and have them for the last week until still school starts on 28th January.
The Father responded 22 minutes later as follows:
Might be best to wait and see what the outcome is in court before you start booking things.
Hence it was entirely unclear whether the Father agreed or not.
The Mother responded 44 minutes later as follows:
We've already booked this accommodation and it's within Australia so were not breaking our court orders. We've worked within your idea of you having the first half of Summer holidays and doing our travel within the Summer break. We haven't been given a court date as yet and with COVID it's very unlikely will be heard until next year…
(The three youngest girls) have repeatedly told us since court started that they don't want the care percentage to change which is why we won't agree to this term in your application. (The oldest child) asked to stay another night and we agreed to her request because it's what she asked. She has expressed wanting flexibility now we think that is a good option for all of them when they are 16. They are aware they might have to go back to the family report because of this unresolved matter.
The rest of the parenting things we agree with and would be open to a mediation session to settle outside of court if you are? I think last year and this year has worked well and we could compromise based on that. It would be less stressful for the girls to know we could manage to come to a parenting agreement together. If not we accept that to.
The Father did not respond.
On 7 November 2020 the Mother emailed the Father as follows:
I wanted to raise issues with you that are impacting the girls well-being. I am concerned about the girls not being able to have privacy when in your care. They are getting to the age where privacy is important for them as well as making social connections and being trusted to manage them online and in person. They feel isolated there on the weekends and during the holidays and I think it is not good for them to feel restricted and isolated from their social lives having privacy.
They have told me numerous times they are only allowed in one room to communicate with their friends and me on their phones and it's a public space shared with (the Father's wife, his adult friend who lives in the same house and his wife's adult daughter)… and the older girls have expressed not wanting to bring their friends there because they are not allowed their own space and privacy.
I am also concerned you're continuing to insist that the girls stay an extra night in your court application without fully discussing it with them in hearing why they don't want that. The girls have continued to express to me that they don't want their care arrangement to change and feel very uncomfortable around the whole matter. (The oldest child) also feels conflicted about the arrangement now given she has a boyfriend and wants to spend more time with him. They said they feel they can't tell you because they are afraid you will get upset. I am concerned you're not aware of the girls needs and communicating with them to find out what they want in this scenario. This creates a lot of conflict for them.
I think it is too much pressure on the girls for them to communicate these issues with you directly and it's a real matter of ongoing concern for them and as a parent I thought you had a right to know and I hope you can address this caringly.
Whether or not the Mother's opinions were correct the email was a careful, sensible and sensitive communication from one parent to another. It should have been considered carefully by the recipient, the Father. It wasn't.
The following day on 8 November 2020 the Father responded as follows:
Yes Phones and laptops are not allowed in their bedrooms. Maybe you missed that part on (the oldest child’s) information night at “high school” (this was at the start of year seven and the child now being in year 11).
They are allowed to go outside under the pergola and (the oldest child) has numerous times gone out when needed. There is plenty of space for privacy. Can you please show me where I have told (the youngest child) not to bring her phone???
You are confusing it with the time… Please refer back to earlier emails in case you have forgotten. And was brought up in the original court case. Yeah she was not allowed to use that phone with your account on it and annul tentative phone was given to her here…. She prefers to use a laptop here.
The Mother responded that evening in an email that includes the following:
…The girls feel crammed into one room in the house and I’m wondering if you can change this rule about their phones. They feel they don’t have privacy to communicate to their friends and us while in your care. They continue to be reluctant to invite their friends to come socialise their which I’m concerned about because it means they are isolated from their social groups every fortnight and holidays will have to go out to see them.
They feel very conflicted about communicating these issues around privacy and your request to change their care arrangement with you directly. I think it’s too much pressure for them and their uncomfortable about it which is why I decided to email you directly about these parenting matters. I don’t want them to be brought into a conflict you have with me communicating their parenting, or for them to feel bad for speaking up about things they are uncomfortable about…
We are very concerned about the impact these issues have on the girls. Respecting privacy and showing trust is very important for teens, as it helps them become more independent and builds their confidence. (The older two girls) are speaking to Kim the counsellor as you know and she is encouraging them to understand themselves, their issues and being more confident. I wish that as parents we can communicate issues that are impacting them in a child focused and caring way and make parenting decisions that empower them.
The Father responded abruptly two days later on 10 November 2020:
Stop making up stuff and concentrate on real things like how upset and distress they are from not seeing their cousins.
The Mother promptly responded with:
I am not making anything up; the privacy and care issues are real and have been expressed by all of the girls for some time. You're deflecting again from the real issues here are not addressing parenting concerns I have raised with you.
Despite the courteous efforts of the Mother the opportunity for the parents to focus and deal with the actual life of these children was lost.
On 9 December 2020 at 6:13am, the Mother sent another long and considered email to the Father about aspects of the children's welfare that concerned her and arrangements over the Christmas holidays. Relevant parts of the email are as follows:
I am writing about what happened there last weekend because I'm worried about the girls mental health. I received a call from (the second youngest child) on the 29th when she was at your house. She said you came into her room, screamed at her and she said she was petrified of you (her words). She said you screamed at her that the privacy issue was bull ship and that what I'd said was bull sheet and that's not how you do things... Once you stop screaming at her she said she was crying… And you stormed out and left the house.
That's when she called me and appeared to be having a panic attack, she was speaking quickly like she was terrified and unable to breeze and kept asking for me to come and get her because she was scared and felt unsafe… I managed to calm her down….
She also told me that (the Father's wife) afterwards told her not to call me if there are issues there or she has a problem because i.e. mail you and cause drama for you and you're too sick and tired from work and it isn't good for you to have more drama. She felt scared to text me after that because she was anxious (the Father's wife) would get angry at her…
…The other girls… Said they felt very uncomfortable there last weekend and have been reluctant to go. None of them have said they want to spend more time there but you seen oblivious to their wants or needs and have your own reasons which are concerning and something we will raise at trial. The girls are upset you've not asked them directly about what they want they say you've made an assumption but never ask what they want.
They also asked to come to our street party over a week ago and are still waiting for you to confirm and make arrangements. Last night (the second youngest) said she called you and you told her you are too tired from work not to stress about it but (she) said she wasn't stressed she just wanted an answer and you deflected from giving one so now they are unsure of what's happening.
I'm encouraging (the second youngest child) to speak with her school counsellor about this and have also told them to continue to openly talk about their feelings, thoughts and be assertive about they want as well as asking for healthier boundaries for their own space. I'm concerned about the impact all this is having on their mental health now seeking advice because none of them want the care arrangement to change or to continue with the way things are. Both (the older two children) are speaking with Ms G (the counsellor) for help with issues affecting them and I want to help the girls feel safe and comfortable and able to speak up confidently.
The Father did not ever respond to that email or the concerns of the Mother.
On the same day at 8:54am, the Mother sent a text message to the Father stating:
The girls have asked if they can stay on Sunday night after the street party.

However the children are sensible and mature and socially active teenagers and those circumstances mean that the Act commands that their wishes be given considerable weight. The orders I made reflected that weight. The extent of the parent’s communication and the style of it means there will likely be conflict around what are or are not significant social and extra-curricular events that should effect the children’s time with each parent. The children, particularly the younger two children, should not be in the middle of that likely conflict. Hence for that reasons, as well as the same reasons set out about equal shared parental responsibility for health and education, in the children’s best interests one parent must have responsibility for determining that issue where it is not agreed. For the same reasons that should be the Mother.
I found that it was not in the children’s, and particularly the youngest, interests to make the order 4 (recited above) as sought by the Mother. The second report writer observed:
77.…The children exercising control of spend time arrangements, whilst providing flexibility, would also place responsibility on the children for decisions and navigating communication with their parents. This would impose a significant emotional burden on each child and with a risk of creating further instability and fragmentation within the family. The three younger children are viewed as more likely to benefit from a consistent and structured approach to spend time arrangements…
I found those observations and opinions of the second report writer as well founded and I adopt them. In all of the circumstances of these children’s lives the order as sought by the Mother would place a significant emotional burden on the children and the younger two in particular.
The report writer recommended and the Mother pressed an order that from 16 years of age the children determine the spend time arrangements. The Father did not consent to such an order. It is in the children’s best interests that they determine their own arrangements from that age and I made that order as sought.
60CC(3)(b) the nature of the relationships
I took into account the nature of the relationship of the children with each of their parents. The relationship of the three younger children and particularly the youngest, soon to be a teenager, with their father has deteriorated in the time between reports. Both parents have close and loving but different relationships with the children. The Mother is more attuned to the day to day needs and feelings of the children. Both love and are loved by the children and there is much for all of the children to benefit from those different relationships with their parents.
60CC(3)(c) the extent of the parents involvement
The Act also commands me to take into account the extent to which each of the parents have taken or failed to take opportunities to participate in decisions about major long term issues and to communicate and/or spend time with the children. Both parents have taken every opportunity to communicate and spend time with the children. As discussed above the Father has missed opportunities to consult with the Mother and hence participate in decisions about major long term issues of the children’s health, particularly counselling and psychological health, and education particularly whether a change of school should be considered or not.
60CC(3)(ca) the extent of the parents obligations to maintain the children
There is no evidence to suggest that both parents have done other than fulfilled his and her obligations to maintain the children.
60CC(3)(d) the effect of any changes on the children’s circumstances
The orders that I made will change, that is lessen, the time the children spent with the Father. These changes is in accordance with their wishes and their usual lifestyles and interests but mean that they will spend considerable time with their Father and have the benefit of that relationship.
The parties live in different suburbs on the same side of a major city and nearby the same train line. There is only a little practical difficulty and expense involved in either the previous spend time arrangements or the different ones now ordered and this did not impact on my decisions.
Both parents have different but appropriate capacities to provide for the children’s emotional and intellectual needs. The children have experienced aspects of the Father’s parenting as different to their mother’s and as difficult. The Mother is attuned to the children’s emotional needs to a greater degree than the Father. The Father’s relationship with the children will benefit from the Tuning into Teens course.
60CC(3)(g) the maturity, sex, lifestyle and background of the children
The extent of any difference between the lifestyle, culture and traditions of each parent was not explored or relevant to the parents. The fact that the children were mature young women was very important to the Mother and she was very conscience of the potential social disadvantage of women in society and not unreasonably saw their empowerment to choose their own path and stand up to power structures that may or will oppress them as necessary for their wellbeing.
The Mother sees what she regards as the Father’s authoritarian parenting and failure to always follow what she regards as the children’s wishes as antithetical to that empowerment. The extent to which the Father understands these concepts as seen by the Mother was not explored by the parties but there is no evidence that the Father would not or does not support the same or similar values for his children. I have taken into account that each of the children are mature for their age young women, particularly as to the weight to be given to their wishes.
60CC(3)(i) the parents attitude to the responsibilities of parenthood
The Father’s inability to communicate with the Mother about the children’s health and education in a sensitive and engaged manner reflects on his attitude to the responsibilities of parenthood. The Mother’s persistence in seeking his views and keeping him informed also reflects on her attitude to the responsibilities of parenthood. Neither parent took up or attempted to take up the recommendations of the first family report writer as to improving their communication. They should have. Otherwise both parents have demonstrated an appropriate attitude to the responsibilities of parenthood.
60CC(3)(l) making orders that least likely lead to further proceedings
The parties sought final orders. The extent of years of litigation and court events and simple waiting for a final determination has impacted on the parties parenting relationship and hence their parenting. The matter cried out for a final determination.
60CC(3)(m) any other fact or circumstances
In all the circumstances I found that the welfare of the children would be advanced, and conflict about parenting reduced, if both parents were further informed, from the same course, about parenting in the post final orders environment. This was recommended by the second report writer and he identified a particular program. Neither parent spoke for or against it. I determined that such undertaking was in the children’s interests. It will also assist each parent, and hence the children, if each knows of the nature and extent of the information each other receives about parenting and making court orders work for the benefit of the children. These orders are directed to the improvement of the parenting relationship essential to the children’s welfare.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME MUST BE CONSIDERED
The orders made meant that the parents have equal shared parental responsibility for major long term issues relating to the care welfare and development of the children save health and education where I decided the Mother should have sole responsibility on conditions set out in the orders.
That there is an aspect of shared parental responsibility means I must consider the children spending equal time with their parents as directed by section 65DAA of the Act if that reasonably practical. Neither parent sought equal time and the children’s wishes are against it. It is not practical nor in the children’s best interest. As it is not reasonably practical I need not consider it further.
That there is an aspect of shared parental responsibility means that after considering equal time I must consider the children spending substantial and significant time with their parents as directed by section 65DAA of the Act if that reasonably practical.
Section 65DAA(3) sets out what is substantial and significant time:
(3)For the purposes of subsection (2), a child will be taken to spend substantial and significant time with a parent only if:
(a)       the time the child spends with the parent includes both:
(i)        days that fall on weekends and holidays; and
(ii)       days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)        the child's daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Both parties seek different orders that provide for substantial and significant time and the alternate weekend Friday after school to Monday before school and half school holiday time means that is what is ordered. It is reasonably practical and in the children’s best interests.
THE COVID-19 VACCINATION RESTRAINT SOUGHT BY THE FATHER
Following the conclusion of the hearing and while my decision was reserved, as described above, I received an email from the Mother and one from the Father not objecting to that email being taken into account but raising his despair at the prospect of the children being vaccinated against COVID-19. I listed the matter for mention and upon the Father’s request adjourned the matter to the following day to enable him to collect evidence from a government website that he had been unable to connect with since he had become aware of the Mother’s intention to vaccinate the children. The Father sought to restrain the Mother by injunction from arranging or permitting the vaccination the children against COVID-19. The Mother opposed any such restraint.
The Mothers evidence included her email M12 and the emailed letters from the children’s school (sent the previous week and since the conclusion of the final hearing) that included the following:
Dear students
As part of the COVID-19 vaccination roll-out, all students aged 16 years and above are now eligible to receive the Pfizer COVID-19 vaccine.
The Victorian Government aims to fully vaccinate all final year students by the time they sit their end-of-year exams and provide at least one dose for children aged 12 and older by the end of the school year. Final year students are therefore urged to immediately make an appointment to receive a vaccine by following the instructions…
All eligible students are encouraged to make an appointment to receive the vaccine as soon as possible.
We are particularly encouraging final year students to make an early appointment as this will support the safe conduct of the VCE examinations late this year. You will be supported in every way possible to be vaccinated before the examinations begin.
All GAT students are encouraged to book in for your first dose before the GAT on 9 September. With limited vaccine supply, there are limited appointments available, you’re encouraged to check for appointments in state-run vaccination sites, and at General Practices. However, it is recommended you don’t get your first vaccine on the day of an exam, or the day before an exam - to avoid feeling common but mild side effects such as tiredness, headache, muscle pain, fever and chills and/or joint pain during your exam.
…
Students can book their own appointment and consent to vaccination themselves if the health professional assesses them to be a mature minor…
The letter from the school addressed to parents was as follows:
Dear parents and carers,
As part of the phased COVID-19 vaccination rollout, more Victorian school students are now eligible to receive the Pfizer COVID-19 vaccine.
From Monday 9 August, children aged between 12 to 15 years old are eligible to receive a Pfizer COVID-19 vaccine if they:
•identify as Aboriginal and Torres Strait Islander
•have a specified medical condition.
People aged 16 years and older continue to also be eligible under these categories, to get a COVID-19 vaccine.
The Australian Technical Advisory Group on Immunisation will provide further advice on the broader 12-to-15-year age group in coming months. As more COVID-19 vaccine doses become available more people will be able to get vaccinated.
The free and safe vaccines being used in Australia are very effective at preventing serious illness and loss of life from COVID-19.
Eligible young people and their parents or guardians should speak to their doctor if they have questions about the COVID-19 vaccine and their health.
The Mother’s evidence included M13, advice from the school about the coming webinar of the Victorian Department of Health providing information about vaccination and that advice included the following:
Vaccination Blitz
The Victorian government on Wednesday announced a vaccination blitz for final year students, their teachers and for VCE exam supervisors and assessors.
The blitz will begin on 7 September and continue until 17 September. During the blitz, final year students, their teachers and VCE exam supervises and assessors will have access to priority timeslots to attend their vaccination appointment at a vaccination centre…
The Father had made himself aware of the communications from the school. The Mother’s evidence included M14 which was a 4 short letters from the children’s General Practitioner (‘the GP’) obtained the day before the hearing. The three letters concerning the three younger children, now aged 16, 14 and 12 (almost 13) were as follows:
This is to confirm that the above child, (name) is known to me and has no current medical conditions which would be a contraindication to having the COVID 19 vaccine administered. The pros of vaccination versus the discussion regarding rare side effects of the vaccines has been explained to her.
The GP’s letter concerning the older child stated as follows:
This is to confirm that W is a regular patient known to me at this medical practice. She has no serious underlying medical condition which would be considered a contraindication to her receiving a COVID 19 vaccination. The pros of vaccination have been discussed against the acknowledged rare side effects of the vaccination. I acknowledge that W is of age to understand these facts and is able to make a decision to proceed with vaccination of her own accord.
The Mother was flummoxed that the Father not only disagreed with vaccination but sought to prevent her facilitating the same and regarded his application as “sabotage” of a necessary medical procedure.
The Mother agreed with the proposition that the children’s right to vaccination in a pandemic was as significant as their right to shelter, food, education and medical care. The Mother said the children had told her that the Father had involved them in discussions about she interpreted as being anti-vaccination and anti-the vaccination stance of the Premier Daniel Andrews.
The Mother said that she had received the first and second COVID-19 vaccinations and that the children were aware of this and that the she and the children had discussed this issue and the children were interested in and enthusiastic about receiving COVID-19 vaccination as soon as possible. It is likely the children’s view will have been influenced by their Mother’s view and also information from school and discussion with peers and news reports of the consequences of infection with COVID-19 and the concerns of Commonwealth and State governments and people the world over.
The Father’s evidence was that the medical certificates and advice from the GP did not change his position. He said that if the doctor would give him a written guarantee that nothing would go wrong and take complete responsibility for the vaccination then he would agree to the vaccination.
The Father said that he was not an “anti-vaxxer”, that he had not objected to the children’s regular childhood vaccinations and that he was regularly vaccinated against influenza. He said that the issue was 100% about the children’s safety and nothing to do with any conspiracy or conspiracy allegations “just the kids safety”. He said his concern was that there was not enough evidence to demonstrate that the vaccines were safe for children and that, “we just don’t know yet”. He said that there was “no long term data” about whether the vaccines were safe and that the children were well.
He relied upon the letters from the doctor of exhibit M14 is demonstrating that the children were well. It followed he said that there was no need for the vaccine given that the children were well. He was concerned with the degree of risk to the children being vaccinated with what he regarded as untested medicine. He said he was concerned with his belief that the vaccine was an mRNA vaccine and that this could change DNA. I did not find that the Father was or was not an “anti-vaxxer” or that he had or had not been influenced by a “conspiracy theory” and it was not necessary that I do so and in any event there was insufficient evidence to determine those matters. I found him to be a caring parent.
When cross-examined by the Mother he said he was aware of how stressed the older child was about the issue and that she was old enough to make a room decision. In cross examination the Mother compared the COVID-19 vaccine to vaccines that are ubiquitous when considering overseas travel and in some cases are required before visiting particular countries and identified the ubiquity of the malaria vaccine.
The Father tended in evidence what I regarded as a business record of the Australian Government, Department of Health, Therapeutic Goods Administration (‘the TGA’), Database of Adverse Events Notifications - Medicines, Medicine Summary for the period between 1 January 2019 and 19 August 2021, being the search period that the Father had entered the website (exhibit F8) and I will refer to that exhibit as the ‘the TGA document’. This produced 48 pages of results but in particular the Father relied upon page 3 of 48 and the summary of results described therein. The opening words of the document at page 2 of 48 stated:
The TGA uses adverse event reports when a safety issue may be present. An adverse event report does not mean that the medicine is the cause of the adverse event.
Page 3 of 48 of the TGA document recorded that in the period searched (1 January 2019 to 19 August 2021) the results of that search was as follows:
Results
Number of reports (cases): 19337
(Multiple adverse events have been reported for some patients)
Number of cases with a single suspected medicine: 19006
(The TGA thinks there is a possibility that the medicine caused the adverse event)
Number of cases where death was a reported outcome: 175
(These reports of death may or may not have been a result of taking a medicine)
The bottom of page 3 of 48 stated:
The TGA uses adverse event reports to identify when a safety issue maybe present. An adverse event report does not mean that the medicine is the cause of the adverse event…
The children had told the report writer that the Father would not let the children go to the local park without supervision. The parties had come to Court when the Mother wished to travel with the children overseas and the Father was troubled that the children might get lost. The Father told me that he had never been treated for anxiety.

The TGA document purports to record any and all reports of any and all adverse events that may relate to any and all medicines taken for the entire Australian population. The TGA document demonstrates the significant care and attention to detail that the TGA takes with any report of what may be an adverse event of the use of any and all medicines. The TGA document does not have anything to say about the risk of COVID-19 vaccination for children or anyone.
It was common ground that unless restrained the Mother would do what she could to facilitate and arrange for all of the children being vaccinated starting with the oldest (17 years old) in a matter of days and then the other children as vaccines became available.
In substance the Father’s case was that that:
(1)I should accept his opinion that there is a no proper or proper long term data about the effect of COVID-19 vaccinations on children; and
(2)It was not disputed that a COVID-19 vaccination was a medicine and hence I should infer from the TGA document that there was a real risk of harm to the children if they were vaccinated and I infer an unacceptable risk of harm to the children; and
(3)In those circumstances the court should restrain the Mother from permitting or facilitating or arranging the COVID-19 vaccination of the children in the best interests of the children and do so as a matter of urgency.
The Father sought a permanent or at least indefinite restraint or order. Any facts he relies upon must be proven on the balance of probabilities. The test to be applied is whether the Father there has satisfied the court that there is an unacceptable risk of harm to the children from vaccination. I found that the Father is genuinely concerned at the risk of harm to the children from vaccination.
I was satisfied that the Father has demonstrated that reports of adverse events that may relate to use of medicine in Australia are not uncommon. The Father seeks a permanent or at least indefinite order or injunction (the characterisation does not matter) restraining the Mother from permitting or facilitating or arranging the vaccination of any of the children from COVID-19.
I am satisfied such an order would be a parenting order empowered by section 64B(2)(i) of the Act:
(i) any aspect of the care welfare or development of the child or any other aspect of parental responsibility for a child.
Such an order may also be a empowered by section 67ZC of the Act:
67ZC(1)In addition to the jurisdiction that a court has under this part in relation to children, the court also has jurisdiction to make orders relating to the welfare of children.
If I were to find that the COVID-19 vaccination was an unacceptable risk of harm to the children from COVID-19 vaccination then there would also be power to make the order sought by the Father pursuant to section 68B of the Act:
(1)If proceedings are instituted in a court having jurisdiction under this Part for an injunction in relation to a child, the court may make such order or grant such injunction as it considers appropriate for the welfare of the child, including:
(a) an injunction for the personal protection of the child; or
Hence I am satisfied the court has the power to make the order sought by the Father.
In Withers & Russell and Anor [2016] FamCA 793 (‘Withers & Russell’), Watts J ordered that one parent have sole parental responsibility for major long term issues. The parties disagreed about immunisation or vaccination of the children. Watts J had found:
[427]I conclude that it is not possible to be confident that the husband and wife would be ultimately able through consultation, to reach a joint decision relating to a major long term issue in respect of the children. Examples of issues about which there has been an inability to reach a joint decision are the children’s surname, the older child’s school, immunisation and the consumption of gluten.
Watts J made an order as follows:
“To avoid any doubt, and subject to order 10, a decision in respect of the immunisation of the children and whether the children may consume gluten are decisions about a major long term issues to which the preceding order applies.”
I am not satisfied that the Father has the expertise as required by section 79 of the Evidence Act 1995 (Cth) to express the opinion that he did, as an expert, about the extent of (and lack of) proper data about adverse effects on children of the COVID-19 vaccine and hence his opinion was not admissible as to that fact. If I was wrong about that and the Father has or had sufficient expertise for that opinion to be prima facie admissible, I was not satisfied he had made all proper inquiries and demonstrated the basis of his opinion for that to qualify as admissible expert evidence or that he had presented sufficient evidence to persuade me on the balance of probabilities of the lack of proper data. Of course there cannot be data over years, if that is what is meant by “long term” because COVID-19 vaccines have only recently emerged.
However I regarded the fact that the Father held the opinions that he did, and his basis for those opinions, as relevant and hence admissible, to the issue of whether the section 61DA presumption applied and to the allocation of parental responsibility including whether equal shared parental responsibility for health and education was in the children’s best interests and whether it was possible for the consultation and joint decision making mandated by section 65DAC of the Act, if there was to be shared parental responsibility, to occur.
I found that his opinion (as to the extent of data) was genuinely held. In deciding upon or making any parenting order, including the COVID-19 issue, I must regard the best interests of the children is the paramount consideration and I did.
The context to the Father’s COVID-19 vaccine restraint application was his concern about possible harm to the children and the Mother’s intention to facilitate vaccination of at least the oldest and possibly all of the children as soon as possible and the possibility that I may determine that the Mother should have sole parental responsibility for the long term issue of the children’s health.
It was not in issue that the children were and are living in a society beset by the pandemic of COVID-19. The children’s wishes were not in issue nor was the intention of the children’s school/s and the Department of Health that as many children 12 years and over as possible be COVID-19 vaccinated. I took into account and placed significant weight on the fact that the Father’s application was against the children’s wishes and against the wishes of their other parent and carer, the Mother, who had demonstrated a caring and considered approach to the responsibility of parenting. I took into account and placed significant weight on the circumstance that vaccination is likely to be common place for children at the schools they attend. I took into account and placed significant weight of the Mother’s evidence that the eldest child seeks vaccination and is about to start year 12 exams and was stressed about the prospect of not getting a COVID-19 vaccine. I took into account that the GP regarded the oldest child as sufficiently mature to determine herself whether or not to be vaccinated. I did not determine whether or not the other children were or were not mature to determine that issue themselves and it was not necessary that I do so.
It was clear, by the end of submissions, that the Mother was aware of the Father’s view, had considered it and had decided to have the children vaccinated if she could and that she has via these proceedings informed him of that decision. I found there was no prospect of a timely joint decision.
The short notice to the parents of COVID-19 vaccination being available for the children and the urgency of each parties position meant that there was little opportunity for consultation between the parents to occur and I do not place any weight on the agreed fact that neither party consulted the other about the issue.
Conclusion as to Father’s COVID-19 restraint application.
Taking all of those matters into account I was not satisfied on the evidence that there was an unacceptable risk of harm to the children of permitting the Mother to make the decision as to the children’s health of whether or not to permit, facilitate and arrange COVID-19 vaccination of the children.
My order was consistent with the approach of Watts J in Withers & Russell. The order I made as to parental responsibility for long term issues of health and education will empower the Mother to make that decision. In so allocating parental responsibility and not making the order sought by the Father, by implication, I dismissed his oral application to restrain the Mother from getting the children vaccinated against COVID-19.
CONCLUSION
I take into account all the above reasons and all of the evidence of the parties. I concluded the orders as made on 3 September 2021 were in the best interests of the children. I have concluded these children have the benefit of two good and devoted parents and that these orders are in the best interests of the children.

I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Dated: 23 September 2021

File number:	MLC 9359 of 2018
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	23 September 2021
Catchwords:	FAMILY LAW – final parenting – parenting arrangements for teenage children – where children live with mother – where children spend time with father – children’s wishes – parental responsibility – COVID19 vaccine – where father seeking to restrain mother from vaccinating the children against COVID19 – sole parental responsibility for health and medical including COVID19 vaccination.
Legislation:	Evidence Act 1995 (Cth), s 79 Family Law Act1975 (Cth), ss 60CC, 61DA, 64B, 65DAA, 65DAC, 67ZC, 68B
Cases cited:	Re F: Litigants in Person Guidelines [2001] FamCA 348 Withers & Russell and Anor [2016] FamCA 793
Division:	Division 2 Family Law
Number of paragraphs:	203
Date of last submissions:	3 September 2021
Date of hearing:	26-29 July 2021, 3 September 2021
Place:	Melbourne
The Applicant:	Appeared In Person
The Respondent:	Appeared In Person

MLC 9359 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS GABLE Applicant
AND:	MR PASLEY Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	3 SEPTEMBER 2021