Galardi & Renosa - [2022] FedCFamC2F 1108

Federal Circuit and Family Court of Australia
(DIVISION 2)
Galardi & Renosa [2022] FedCFamC2F 1108

File number(s): PAC 1998 of 2020

Judgment of: JUDGE NEWBRUN

Date of judgment: 22 August 2022

Catchwords: FAMILY LAW – Parenting - final parenting hearing -competing parenting proposals - best interests of children -final parenting Orders made

Legislation: Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA(3), 65D

Cases cited:
Champness & Hanson (2009) FLC 93–407

Gorman & Huffman [2016] FamCAFC 174

Moose & Moose (2008) FLC 93–375

Rice & Asplund (1979) FLC 90–725

Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 336

Date of last submission/s: 13 June 2022

Date of hearing: 1–3 June 2022

Place: Parramatta

Counsel for the Applicant: Mr Alexander

Counsel for the Respondent: Mr Blackah

Counsel for the Independent Children’s Lawyer: Ms Hamilton
ORDERS

PAC 1998 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GALARDI

Applicant

AND:
MS RENOSA

Respondent

AND:
INDEPENDENT CHILDREN'S LAWYER

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

22 August 2022

THE COURT ORDERS THAT:
1.The Mother have sole parental responsibility for the children X born in 2017 and Y born in 2019 (“the children”).
2.The children live with the Mother in Melbourne.
3.Within 14 days of the date of these Orders, the Father shall enrol in and complete as soon as practical the program known as Taking Responsibility or other similar Men’s Behavioural Change program as recommended by G Counsellors and shall provide to the Mother his certificate of completion.
4.On the Father’s completion of the Taking Responsibility Program or other similar program pursuant to Order 3 herein, the children shall commence spending supervised time with the Father each alternate month on the last weekend of that month for a period of four hours on each occasion.
5.To facilitate the Father’s time with the children pursuant to Order 4 herein, the following shall occur:-
(a)The Mother shall nominate two private supervision agencies to the Father by email within 7 days of the date of these Orders and thereafter, subject to Order 3 herein, the Father shall arrange for the supervised time with the children to occur and advise the Mother in writing as to the date and time of the supervised contact during the months outlined in Order 4 herein;
(b)Both parties shall do all things necessary to ensure that they comply with intake and any other reasonable requirements of the private supervision agency;
(c)The Father shall be solely liable for the cost of the supervision.

6.The children will have FaceTime communication with the Father on the first and third Sunday of each month between 6:00pm and 6:30pm and the Mother shall provide the Father within 7 days of the date of these Orders with a mobile phone number for this purpose and the Mother shall do all things necessary to ensure that the children are available to speak with the Father and keep the Father advised of any change to the contact number for the purpose of this Order.
7.For the purpose of communication between the parties, the parties shall advise each other within 7 days of the date of these Orders of an email address to be used for the purpose of compliance with these Orders and for no other purpose.
8.The Father shall be at liberty to send to the children by post gifts and cards for the children’s birthdays and Christmas and for this purpose the Mother shall provide to the Father within 7 days of the date of these Orders a postal address for this purpose and the Mother shall do all things necessary to ensure that the children receive items posted to them by the Father and the Mother shall keep the Father advised of any change to the postal address.
9.The Mother shall provide to the Father by email within 14 days of receipt, a copy of the children’s school reports by email and the Mother shall be at liberty to redact or omit any information from those reports which might be used to reveal the children’s address or the location of their school.
10.The Mother shall advise the Father as soon as practical by email of any serious illness or injury suffered by the children or either of them including a diagnosis and prognosis and provide any and all reasonable updates.
11.Both parties are hereby restrained from speaking about the other parent or a member of the other parent’s household in a derogatory fashion in the presence or hearing of the children and shall remove the children from the presence or hearing of any third party seeking to do so.
12.The parties are hereby restrained from speaking to the children about these proceedings or showing the children any document in relation to these proceedings.

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 Galardi & Renosa has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
Introduction

This hearing relates to the children X born in 2017 and Y born in 2019 (“the children”).
Proposals
The Independent Children’s Lawyer (“ICL”) seeks Orders in accordance with her proposed Minute of Order, as follows:
1.That the Mother have sole parental responsibility for the children X born in 2017 and Y born in 2019 (“the children”).
2.That the children live with the Mother.
3.That within 14 days of the date of these Orders, the Father shall enrol in and complete as soon as practical the program known as Taking Responsibility or other similar Men’s Behavioural Change program as recommended by G Counsellors and shall provide to the Mother his certificate of completion.
4.That on the Father’s completion of the Taking Responsibility Program or other similar program pursuant to Order 3 herein, the children shall commence spending time with the Father commencing in July 2022 each month on the last weekend of that month for a period of 4 hours on each occasion;
5.To facilitate the Father’s time with the children pursuant to Order 4 herein, the following shall occur:-
(a)The Mother shall nominate two private supervision agencies to the Father by email within 7 days of the date of these Orders and thereafter the Father shall arrange for the supervised time with the children to occur and advise the Mother in writing as to the date and time of the supervised contact during the months outlined in Order 4 herein.
(b)That both parties shall do all things necessary to ensure that they comply with intake and any other reasonable requirements of the private supervision agency;
(c)That the Father shall be solely liable for the cost of the supervision.
6.That the children will have FaceTime communication with the Father on the first and third Sunday of each month between 6pm and 6:30pm and the Mother shall provide the Father within 7 days of the date of these Orders with a mobile phone number for this purpose and the Mother shall do all things necessary to ensure that the children are available to speak with the Father in a private setting and without distraction and keep the Father advised of any change to the contact number for the purpose of this Order.
7.That for the purpose of communication between the parties, the parties shall advise each other within 7 days of the date of these Orders of an email address to be used for the purpose of compliance with these Orders and for no other purpose.
8.That the Father shall be at liberty to send to the children by post gifts and cards for the children’s birthdays and Christmas and for this purpose the Mother shall provide to the Father within 7 days of the date of these Orders a postal address for this purpose and the Mother shall do all things necessary to ensure that the children receive items posted to them by the Father and the Mother shall keep the Father advised of any change to the postal address.
9.That the Mother shall provide to the Father by email within 14 days of receipt, a copy of the children’s school reports by email and the Mother shall be at liberty to redact or omit any information from those reports which might be used to reveal the children’s address or the location of their school.
10.That the Mother shall advise the Father as soon as practical by email of any serious illness or injury suffered by the children or either of them including a diagnosis and prognosis and provide any and all reasonable updates.
11.That both parties are hereby restrained from speaking about the other parent or a member of the other parent’s household in a derogatory fashion in the presence or hearing of the children and shall remove the children from the presence or hearing of any third party seeking to do so.
12.That the parties are hereby restrained from speaking to the children about these proceedings or showing the children any document in relation to these proceedings.
The Mother adopts the ICL’s proposed Minute of Order.
The Father seeks Orders as set out in his proposed Minute of Order. In the alternative, he seeks Orders as set out in his alternative Minute of Order. The Father’s Alternative Minute of Order provided is set out in the Appendix to this judgment.
His proposed Minute of Order was as follows:
1.That the Father have sole parental responsibility for the children:
(a)X born in 2017; and
(b)Y born in 2019 (‘the children”).
2.Prior to making any decisions affecting the children's long term welfare and development, the Father shall seek the Mother's views and take them into account in a bona fide manner.
3.The children live with the Father.
4.Order 3 is conditional upon the Father paying for the Mother to obtain private rental accommodation within 10kms of the Father’s home for a period of not less than 6 months and up to a maximum of $650 per week and further that he will pay for a removalist to transport the Mother’s and children's belongings to Sydney.
5.The children spend time with the Mother, at times as agreed, but failing agreement, as follows:
(a)During school term time: each alternate weekend from after school on Thursday until before school the following Monday and each alternate Wednesday until before school on Thursday;
(b)For one half of each school holiday, being the first half in odd numbered years and the second half in even numbered years. For the purposes of these orders school holidays shall be deemed to commence at the conclusion of school on the last day of each school term and conclude at 5:00pm on the day immediately prior to the day on which children are required to attend school in the following school term;
(c)For not less than three hours on each of the children's birthdays from after school or 3:00pm until 6:00pm;
(d)On Mother's Day from 9:00am to 5:00pm;
(e)On Christmas Day from 9:00am to 5:00pm in alternate years commencing in 2023.
6.The children have telephone, Skype or FaceTime communication with the Mother each Thursday at 5:30pm or another time as agreed between the parents.
7.The Father will give such consents and authorities as are necessary to enable the Mother to obtain information and documents from the children's schools, treating medical practitioners and hospitals.
8.Each party is restrained from making critical or derogatory remarks about the members of the other's family in the presence or within the hearing the children.
NOTATION
A.It is intended in the event that the children live primarily with Father that the paternal grandparents will move in to the Father’s home to assist him with the care of the children.
Material relied upon
The Father relied upon:
(1)His Case Outline filed 31 May 2022;
(2)His Affidavit filed 23 May 2022;
(3)The Affidavit of Ms H filed 28 May 2021.
The Mother relied upon:
(1)Her Amended Response filed 30 April 2021;
(2)Her Affidavit filed 1 June 2021.
The ICL relied upon her Case Outline filed 31 May 2022 and the following documents:
(1)Tender bundle of documents;
(2)Family Report dated 11 December 2020;
(3)Child Dispute Conference Memorandum dated 17 December 2019.
The following documents became Exhibits:
(1)Exhibit A: Unsworn Affidavit of the Mother;
(2)Exhibit B: Application and Summons for an Intervention Order;
(3)Exhibit C: Tender Bundle of the ICL containing 38 pages;
(4)Exhibit D: Family Report by Ms J dated 11 December 2020;
(5)Exhibit E: Statement of Police pages 18–20;
(6)Exhibit F: Photos of injuries sustained to Mr Galardi pages 28–30, 32–33;
(7)Exhibit G: Pages 171, 175, 177, 178 from Father’s Exhibit;
(8)Exhibit H: From Mother’s Affidavit Annexure R7 psychologist notes from Dr K;
(9)Exhibit I: Mother’s exhibit R13 WhatsApp records;
(10)Exhibit J: Part of the Mother’s Annexure R20 three-page report dated 24 August 2020;
(11)Exhibit K: Events Report NSW Police Suburb L 5 November 2019: Mother’s Tender Bundle, page 1;
(12)Exhibit L: Events Report NSW Police Suburb M 28 March 2020: Mother’s Tender Bundle, page 2;
(13)Exhibit M: Letter from B Contact Centre regarding supervision 22 April 2022: Mother’s Tender Bundle, page 21;
(14)Exhibit N: Consultation note of the Mother with Dr N dated 14 July 2020: Mother’s Tender Bundle, page 48;
(15)Exhibit O: Consultation note of the Mother with Dr N dated 21 October 2019; Mother’s Tender Bundle, page 49;
(16)Exhibit P: Consultation note of the Mother with Dr O dated 15 April 2019: Mother’s Tender Bundle, page 53;
(17)Exhibit Q: Annexures to the Mother’s Affidavit of 1 June 2021: R2, R3, R6, R7, R15, R16, R19, R23, R30;
(18)Exhibit R: Annexures to the Father’s Affidavit of 23 May 2022: 42/183, 54–61/183, 62/183, 82– 4/183, 90/183, 93–98/183.
EVIDENCE
In determining this case, the Court has had regard to all the written evidence referred to above together with the oral evidence given. Throughout these Reasons the Court will refer to a number of facts taken from that evidence. Any such reference should be regarded as a finding of fact unless a contrary intention is clear from the context. In determining disputed questions of fact the Court is required to assess the evidence on the balance of probabilities. In order to limit the size of this judgment not all factual issues will be addressed, and the Court will not set out the entirety of the evidence. Evidence relevant to the Court’s determination will be considered either in this section or whilst addressing the section 60CC considerations (ie section 60CC of the Family Law Act 1975 Cth (“the Act”)) (see below). Evidence referred to under the section 60CC considerations shall, in the event of any conflict with the evidence referred to in this section, take precedence.
Affidavit of the Father
The Court does not propose to set out the entirety of the Father’s Affidavit filed 23 May 2022.
The Father lives at Suburb P, NSW.
The Father proposed to the Mother in 2019. At this time the parties were expecting their second child, Y. The Mother accepted the Father’s proposal. The Mother told the Father that she wanted to have the parties’ second child before any marriage.
The AVO proceedings in August 2020 were finalised by consent on a without admissions basis.
In about May 2020 the Father attended a post office with the paternal grandmother and sent a box of chocolates to the Mother’s address in Melbourne. He admits to placing the name of a third party as the sender. His name was not disclosed and nor was the name of the paternal grandmother disclosed.
The Father alleges that on 28 February 2017 the Mother punched him to his eye and accused him of cheating on her whilst they were in the car. The Father incurred pain in his eye and he attended hospital.
The Father alleges that on 28 December 2018 at a restaurant the Mother scratched his face in relation to the Father receiving a text message from a female friend.
The Father alleges that on 14 April 2019 he was at his parent’s home when he received a phone call from the Mother advising him that she had a sore left ear and it was unbearable. He alleges the Mother wanted him to return home to help her.
The paternal grandparents have agreed with the Father that they will move in to live with him at his residence to assist him with the care of the children if the Court orders the return of the children. The paternal grandmother is retired and the paternal grandfather works casually two to three days per week.
After the Orders of 30 September 2020, relating to the Father spending supervised time with the children at a contact centre in Melbourne, and as a result of the COVID-19 pandemic, the Father has only been able to interact with the child X on a very limited basis. The child Y has not spent any quality time with the Father at the supervised contact centre because he is frightened of that place however the Father states that he is okay on FaceTime.
The Father’s supervised time at the contact centre occurred on four occasions: in March, April and December 2021, and on 7 January 2022.
The current interim Orders provide for FaceTime between the children and the Father on Tuesdays and Thursdays for 30 minutes. The child X talks with the Father when he is not occupied with other things including his tablet/laptop. The child Y is still young and when he sees the Father he smiles and is happy when he hears the Father’s voice however the Father’s talking to him has been limited.
The Father’s solicitor received an email from the Mother’s solicitor in late October 2021 advising that the child X was having urgent surgery that day. The Father became very upset and annoyed because the Mother had not updated him at all about X nor had she advised him in relation to any surgery.
In relation to an incident on 28 December 2018 at the parties’ residence, the Father states that he did get angry at the Mother’s disrespectful alleged verbal abuse of the paternal grandmother.
Affidavit of the paternal grandmother
The paternal grandmother’s Affidavit was filed 28 May 2021. The Court does not propose to set out the entirety of the content of that Affidavit or the entirety of the content of her oral evidence.
The paternal grandmother refers to the development of a positive relationship between herself and the child X after the child’s birth. She refers to minding the children after the child Y’s birth. She refers to assisting the Father with the care of X at various times prior to the Mother relocating the children’s residence to Melbourne in early November 2019. The paternal grandmother states that she has not seen the children since that time.
The paternal grandmother refers to attending a post office with the Father in early May 2020 and sending a parcel of chocolates to the Mother. She alleges that the Father was concerned that the Mother had given him “the wrong address and it was a set-up for him to breach an AVO in place.” She alleges that herself and the Father did not believe the Mother was in Melbourne. She alleges that she was shocked that the Mother had taken the children in circumstances where “they had no connection to Melbourne other than it being her original place of residence before her relationship with” the Father.
Affidavit of the Mother

The Mother is aged 35 years. The Father is aged 38 years.
The parties commenced their relationship in about mid 2016.
They separated on about 5 November 2019. The Mother then left the parties’ residence after which an interim ADVO was issued for the Mother’s protection.
Since November 2019 the Mother has been residing in Melbourne with the children.
The Mother grew up in Melbourne and all her family and friends reside in Melbourne. She had first come to Sydney in January 2015. She then met the Father. She returned to Melbourne. She then came to Sydney in November 2015 and the Father would visit her in Suburb Q.
In 2016 the Mother sought a transfer with her employer, Employer R, to move to Sydney which was approved. The Mother thought that Sydney would be a good career move for her. The Mother visited the Father at his home and they developed a relationship. In 2016 the Mother moved in with the Father.
The Father, in 2017, purchased a business in the Sydney CBD which he operated until August 2017.
The Mother was the children’s primary carer during the parties’ relationship.
The child X had surgery immediately following his birth in relation to a heart condition. He was discharged from hospital in 2017.
The Father, once X was one year old, became controlling of him. The Father began to keep X away from the Mother. X was allowed to do whatever he wanted, and the Mother was not allowed to discipline or teach basic manners. X was not allowed to play by himself and the Father or his parents had to be with him. The Father would not allow the child X to eat vegetables. X had issues regarding his emotions as he was not told “no”.
Following Y’s birth, and when the Mother returned home with the child Y, the Father told the Mother not to show X the baby Y. The Mother was not permitted to explain to X that he had a sibling or where the Mother had been for a week. The Father wanted the baby Y to sleep downstairs alone.
The Father verbally abused the Mother during the relationship.
The Father insisted to the Mother that she was suffering from postnatal depression and he would tell her that she needed help and needed to be medicated.
The Father was financially controlling of the Mother. The Mother had a job interview on 5 November 2018 and the Father prevented her from attending that interview by taking the Mother’s car.
When the parties had arguments during their relationship the Father would threaten the Mother with violence or death by third parties.
After the child Y was born the Father would often threaten to take X away and would tell the Mother that she could leave with Y.
On 28 February 2017 the parties had an argument in the Mother’s car. The Mother alleges that the Father went to hit the Mother and the Mother raised her left hand to block the Father and she accidentally scratched his eye.
On 28 December 2018 the parties had an argument and the Father allegedly launched at the Mother and the Mother had accidentally scratched the Father when she put her hands up to protect herself.
On 13 April 2019 the Mother was pregnant with Y. The parties got into an argument and during this argument the Father allegedly hit the Mother to her side. The Mother’s ear was allegedly ringing.
In August 2019 the Mother’s doctor referred her to a clinical psychologist. The Mother attended upon this psychologist three times in October 2019.
On about 5 November 2019 the Mother alleges that the Father told her that she was not taking the child X to a playgroup and he slapped her across the left cheek whilst the Mother was asking the Father to give her the child X. The Mother called the police. The police arrested the Father. A provisional ADVO was taken out for the Mother’s protection.
In August 2020 at the Suburb M Local Court a charge of common assault against the Father was dropped however there was agreement for a final ADVO to be in place until 19 December 2020. On 28 October 2020 the police applied for a variation of that ADVO to protect the Mother from the Father. On 17 December 2020 a further interim ADVO was put in place naming the Mother as the protected person and the Father as the defendant.
After the Mother moved to Melbourne she did not tell the Father through a WhatsApp conversation where the children and herself were living. She did not tell the Father she was residing in Melbourne and did not give him her address.
On about 2 June 2020 the Mother was at her home in Melbourne. She received some letters and a package addressed to herself from a person she did not know. She opened the package and saw it was a box of chocolates and the address of the sender was S Street, Suburb F. The Mother found a note on an envelope that said, “start with these hope you feel better love mum”. The Mother recognised this handwriting as the handwriting of the paternal grandmother. At this point the Mother was fearful for her safety so she attended upon a police station in Melbourne as she became concerned that the Father had located where she was living.
The Mother continued to receive threatening messages from the Father after separation, including the text message received by the Mother from the Father set out in annexure R19 to the Mother’s trial Affidavit.
The Mother facilitated FaceTime calls with the Father and the children in July 2020, August 2020, October 2020, 25 December 2020, January 2021, and April 2021.
The Father has been inconsistent with FaceTime calls since interim Court Orders were made.
The Father had two visits at a contact centre in Suburb C, in March 2021 and April 2021.
The Mother is financially unable to afford to return to Sydney. She has her family and an extended support network in Melbourne. She is still in contact with maternal health nurse Ms T who comes to her home about twice a month. The Mother has a good relationship with this woman, who has a good rapport with the children.
The children have been progressing well living with the Mother in Melbourne. The Mother has seen a significant improvement in X’s presentation and well-being. He now has a healthy appetite and has been able to put on weight. He is a happy child who loves his brother and treats him with affection. The children and the Mother have been in Melbourne since early November 2019 and the children are settled and progressing well. In 2021 X was attending kindergarten three days a week. He enjoys kindergarten and is developing his social skills.
Oral evidence of the Father
The Mother cross-examined the Father.
The Father stated he continues to have plans to commence self-employment as a business owner but he was waiting for these proceedings to end. He confirmed that he remains unemployed.
The Father stated he does not pay child support and has not previously paid child support.
The Father stated that his FaceTime time with the children has deteriorated.
The Father confirmed that the quality of his communication with the Mother was such that it would be very difficult for the parties to share parental responsibility.
The Father confirmed sending a text message to the Mother post separation (annexure R19 to the Mother’s trial Affidavit) which the Mother had described in her trial Affidavit as a threatening message from the Father and which text message was as follows:
There is no custody u dog my son will stay wit me full time I will put my life on it. Ur best and safest option is take [X] and make a clean sweep better u got 1 then none , u can threaten me bout Court but let me promise ya u will not have one day in ur life u won't be looking ovr u shoulders every min doesn't matter Melbourne or Sydney or we're ever u go I nilate ur life in every aspect if u fuk rnd wit [X] and u know who I am and wat I want gets done doesn't matter wat. Show the cops ur dad ur mum Santa clause dnt care. U wana play nasty all good I go 9 yards so today on ur window shopping experience take in wat I said for all those innocent ppl we know.
The Father stated that he had sent this text message to the Mother when he was very angry. He confirmed that the reference to “my son” was a reference to the child X. He stated that when he sent this text message he did not consider whether dividing the children was in their best interests.
It was put to the Father that he meant the text message to be a threat to the Mother, and in response he stated, “not necessarily”. When pressed, the Father stated that it was a threat but it was just “hot air” on his part and there was “nothing behind it”. He stated that it was just a stupid threat. It was then put to the Father that the words in the text message, “if u fuk rnd wit X and u know who I am and wat I want gets done doesn't matter wat” was meant as a threat to the Mother, to which the Father disputed. The Father stated that the Mother had “said worse stuff to me”. In relation to the last two sentences in the text message, it was put to the Father that he meant those words to be a threat to the Mother, and again, the Father stated that it was just “hot air” and “nothing behind it”.
The Father was asked whether there were any aspects of his own parenting that he was critical of or would do better. The Father responded in the negative.
The Father conceded that he had called the Mother a “dog” and a “gronk”. He said it was not good to call her that, however he stated that he had been “triggered off” by the Mother’s behaviour.
The Father agreed that he had told the Mother she was an unfit Mother and a shit Mother, as alleged in paragraph 27 of the Mother’s trial Affidavit.
The Father agreed that he had said to the Mother, words to the effect, “you’ve got more dents in your face than a panel beater”, “you’re ugly, you’re fat”, however he stated that such remarks were in response to the Mother calling him a “gronk”.
The Father conceded that it was possible that he said to the Mother, “if you ever leave me no one will would look at you, no one goes for seconds”, and “women would die to be where you are, I do everything for you.”
The Father agreed that he had sent the Mother a message in about early November 2020 stating words to the effect, “dickhead stop lying around I am paying da bill”, in relation to an anticipated bill from a trucking company.
The Father agreed the Mother had an extended family in Melbourne. He agreed that that was important stating that family play a big part.
The Father was asked whether the Mother’s decision regarding her place of living in Melbourne was a result of one incident. The Father responded that it was not one incident but maybe five or six. In this context he stated that if he was that bad the Mother would not have had a second child to the Father or married him. He stated he wasn’t that bad.
It was put to the Father that he had said to the Mother, “I want your blood” (see paragraph 47 of the Family Report). The Father responded that he had said that when he was angry but that it was just hot air.
It was put to the Father that he says things when he gets angry to which he agreed. He denied that he lost control when he got angry. He stated that he does not have anger issues. He stated that he was triggered by what the Mother does to him such as scratching. He denied that he had an anger problem.
In relation to an incident in early November 2019 leading to the parties’ separation, the Father said that the Mother had possibly screamed and said that she had had enough.
The Father agreed that he had sent the Mother a box of chocolates. He agreed that the chocolates were sent to her under a name other than himself. He was not sure if the address was genuine. There was an ADVO in place. He did not want to get into more jeopardy. A short time later he stated that the Mother had given him this address on WhatsApp. He stated that he had initially sent the chocolates to this provided address. Then he sent some other stuff to this address. He agreed that he had sent some flowers and a card referring to a sincere apology. As to what he was apologising for, the Father stated that it was “the whole way the thing turned out”. He said he was no angel and that no one is perfect. He stated that he may have said something (to the Mother) or done things differently. He stated that he was only triggered by others. He did not accept that he had verbally abused the Mother.
The Father agreed that he had not lived with the child, Y, since he was seven weeks of age. Later, in answer to the Court, the Father stated that since this time he had seen Y three to four times face-to-face, apart from FaceTime.
The Father stated that Y was okay on FaceTime. He stated that when Y went to the contact centre he hated it.
The Father was asked to assume that the child Y had been breastfed by the Mother for 20 months and that that child had always been in the company of the Mother. The Father was asked whether he was stating that Y should be transplanted from Melbourne to Sydney and live predominantly in the Father’s care to which the Father replied in the affirmative. It was put to the Father that that would be extremely stressful from Y’s point of view, to which the Father replied in the negative.
The Father was asked to reflect on emotional harm to the child Y if he was uprooted and made the subject of the Father’s proposed Orders. The Father responded that he agreed but stated that after a bit of time this child would be all right. He stated that that was exactly what had happened to X (previously).
The Father was asked to accept that it was inevitable that emotional damage would occur to Y if the Father’s Orders were made. The Father disagreed, and stated that there was a Father and son bond.This child called him “dadda” over the phone.
The Father agreed sending a text message to the Mother after the child X turned one year of age as follows (see annexure R2 to the Mother’s trial Affidavit):
U continue driving like dat with [X] in car u piece of shit I put ur head throw the windscreen u think I am joking do it gain. And leave music full blast when he is crying u dog I wish nothing more than bad upon u in life may God answer my prayers. U will not be takin him any more as of nxt wk my mum will be here full-time dnt like go jump.
In re-examination, in relation to the above text message, he stated that he had been in his driveway at Suburb P. He had opened the back door, and the Mother had sped down the driveway with X in the back of the car with music blaring. The child X was crying. The Father then sent the above message to the Mother.
The Father was asked whether there were other occasions when he had threatened the Mother. The Father replied, “possibly”, stating that it was all hot air and done in the heat of the moment.
The Father was asked whether he had ever referred to the Mother as a peasant. The Father replied, “possibly”. The Father was asked what he meant by the phrase “like a peasant”. He responded by stating that if you act like a peasant you will get treated like one.
The Father was asked if he had called the Mother a “fat lazy prick”. The Father stated he was not sure. The Father stated that the Mother had called him fat and lazy and he had just responded back.
The Father agreed that X was very special to him. In this context he stated that X was with him longer than the child Y.
The Father confirmed his statement to the Family Report writer that there was a lack of bond between the child X and the Mother. He stated that the child X has said on FaceTime once or twice, “Dadda I want to come back to Sydney. Dadda I want a new mummy”. In this context the Father was asked whether he was suggesting that the child X wanted to trade in his Mother for a new Mother to which the Father replied that he did not know.
The Father agreed that he and the paternal grandmother had sent the Mother a box of chocolates. He accepted an ADVO was then in place. The Father was asked to accept that the Mother receiving such a box of chocolates was bound to cause her anxiety in circumstances where the real sender’s name was not used, to which the Father disagreed.
The Father accepted that in a general sense children are better off if their parents feel comfortable in their surroundings.
The ICL cross-examined the Father.
The Father confirmed that he lives alone in a three-bedroom house. He had been there since November 2020 and he was now unemployed. The paternal grandfather pays the weekly rental of $650. The Father receives Centrelink benefits of $320 per week by way of JobSeeker.
The Father stated he would look at operating a business after the proceedings were concluded. He said he had the stress of these proceedings and his neck was not the best having had a motorbike accident in 2017. He said that he experiences stress in not seeing the children and he has been severely upset in this regard.
The Father stated that the Mother had previously physically backed him up against a wall and he had reacted angrily. He was asked if that had occurred in X’s presence. He referred to several incidents involving arguments with the Mother that had occurred in the child X’s presence. In this context the Father stated that he had never physically harmed the Mother.
The Father was questioned about certain text messages that he had sent the Mother which appeared to contain threats, and was asked whether that was concerning behaviour on his part. The Father stated that it was bad however it was spur of the moment, just anger, and it eventuated into nothing. He stated that it was just nothing. No one was perfect. Everyone fights and says things to their partners, and it was just natural. He was asked whether everyone threatens their partners with violence to which he responded in the negative and stated that it was not normal, and he then stated that he wished that he had kept the messages where the Mother had done the same thing to him. He stated that that was his biggest regret “today” not keeping the messages that the Mother had sent him. The Father was asked to assume that the Mother had sent those messages to him and it was put to the Father that it was still wrong for him to send those messages to the Mother to which he agreed. It was put to the Father that it showed he lost control of his anger in those moments in sending the messages and he agreed. He was asked when it first occurred to him that he had sometimes lost control of his anger with her. He responded by stating that he never did lose his control and that he knows when to stop. The Father stated that most of the time he just left.
The Father was asked whether he had ever told anyone that he had lost control of his anger with the Mother. He stated that he had told the paternal grandparents and his sisters and a couple of friends. He said he had not really lost his temper in the sense that he had gone violent or done something stupid, and he said he may have said things but he did not go into a rage. He was asked whether he agreed that verbal abuse does exist to which he agreed. He was asked whether he had been verbally abusive to the Mother to which the Father agreed but only after the Mother had sent him text messages; the Mother had instigated it and he had just responded back. He stated that the parties had both been verbally abusive to each other; the Father stated that the Mother threw a stone at him and he threw one back and he stated that that was how it had always been. He stated that he regretted not keeping the messages that the Mother had sent him. It was suggested to the Father that even if the Mother “fires first” that the Father firing back was not okay and that it was not good behaviour. The Father responded by saying that when you are living with someone and the person was constantly chirping in your ear what happens – it was like a volcano ready to explode. The Father was asked what he did to stop that situation from continuing. The Father said he would go see his friends and just get out of the house and hopefully it would cool down but the next day the Mother was in the same frame of mind as the night before and it just spiralled again.

The Father stated that his neck injury would not affect his ability to work. He stated that if he had a business he would start at 7:00am and finish at 3:00pm to 3:30pm. He stated that the last business he had operated was from Monday to Friday.
The Father stated that he proposed that should the children live with him the paternal grandparents would move into his home and they would be a support base for him. The Father stated he did not have a car and that the paternal grandparents would assist him in driving the children to school and preschool. The Father was asked how many days the child Y would be sent to pre-school if the children were living with him, to which the Father replied that he was not sure because the Mother had done all that.
The Father stated that there would be no difficulties at all in the child X moving to Sydney, but rather the opposite. As to the child Y moving to Sydney, the Father stated that initially there would be a couple of hiccups but he would be alright. It was suggested to the Father that Y might experience significant distress in living with the Father in Sydney to which the Father responded, “not necessarily”. The Father stated that after a couple of weeks the children would adjust to living with him. He agreed that the child Y did not know the paternal grandparents.
The Father was asked whether the children would benefit from counselling or professional help if living with the Father, to which the Father responded, “if they needed”. The Father was asked how would he know if the children needed such help to which he responded there would be signs.
The Father was asked how he would support the Mother’s relationship with the children if the Mother told the Court that she could not live in Sydney. The Father replied by referring to FaceTime and the Mother could see the children whenever she wanted.
The Father was asked whether, if the Court ordered that the children spend supervised time with him, he would attend such supervised time. The Father responded in the affirmative stating, “if need be”. However he stated that it was not the proper setting and asked why he needed to be watched.
The Father stated that he had not considered moving to Melbourne because he was born in Sydney and his friends and family were here. He further stated that he was about to start a business again. He stated that if he had to move to Melbourne for the children’s sake he might do it but ideally he did not want to. He stated that he had one or two friends in Melbourne.
Oral evidence of the paternal grandmother
The paternal grandmother gave oral evidence.
The paternal grandmother was cross-examined by the Mother.
She stated that she thought the Mother was a loving person when she first met her.
The paternal grandmother stated that the Mother became very jealous of her relationship with the Father.
The paternal grandmother agreed with the Father’s contention that the Mother was also jealous of the closeness between the Father and the child X. She stated that the Mother was a good Mother.
The paternal grandmother, in relation to the sending of the chocolates to the Mother from the Suburb F post office, stated that she feared the Father was being set up.
The paternal grandmother was asked where the sender’s address (in relation to the chocolates sent to the Mother) was obtained from, and the paternal grandmother stated that that was just something she had thought of.
The paternal grandmother was asked whether she had thought of how the Mother would react from receiving the chocolates, to which the paternal grandmother stated, “not at the time”.
The paternal grandmother was asked why she had not put her own name on the parcel (of chocolates). She stated that probably because she thought that the Mother would go to the police.
The paternal grandmother was asked whether she had ever experienced the Father being angry with the Mother, to which she replied, “sometimes”.
The paternal grandmother was cross examined by the ICL.
The paternal grandmother confirmed that the Father was proposing that she move in with him to live. She stated that she was not working and that she was retired.
The paternal grandmother confirmed that the Father wants to set up his own business, and that he knows the restaurant and hospitality trade. She stated that she and the paternal grandfather had helped the Father with rent recently. She stated that the Father has use of her car. She stated that she would love to help with the children and that she is available. She stated that she has other grandchildren: four that live in Suburb U and four that live in Suburb V.
The paternal grandmother was asked whether, if the child X came to live with the Father, it would be difficult for that child moving in. She replied by stating that it wouldn’t and that that child absolutely adores the Father. The paternal grandmother was asked the same question in relation to Y. She replied by stating “just in the beginning” and that it should not be a big problem. She stated that this child would see how the Father and X are (together) and settle in.
The paternal grandmother was asked whether the children would miss the Mother if living with the Father. She initially replied by stating that she wasn’t really sure but supposed that they would. She then stated she did not know if they would miss the Mother. In this context she stated that, “You don’t take off after three months after the second (child). Why have a second child if you are not happy in the relationship?”
The paternal grandmother was asked what she would do about the children spending time with the Mother if the children were living with the Father in Sydney and the Mother was residing in Victoria. She replied by stating that it was up to the Mother and that she was “the mum”. She stated that “we” could work towards that with her.
Oral evidence of the Mother
The Mother gave oral evidence.
The Mother stated that she was a stay at home Mother.
The Mother was cross-examined by the Father.
The Mother was asked whether she would come back to Sydney (if the Court ordered the children’s residence be relocated to Sydney). The Mother stated that if she had no other option she would return to Sydney.
The Mother stated that the child X attends Kinder (being a form of pre-school) in Melbourne.
The Mother stated that she may have called the Father a “dickhead” however she did not use that word frequently.
The Mother stated that there were times when the parties argued in front of the children.
The Mother stated that she has not heard the child X say anything like the words, “I want a new mummy”.
The Mother was asked what time she would support occurring between the children and the Father if the Father was to move to Melbourne. The Mother stated that the children’s time with the Father would need to be supervised for as long as there was a risk of the Father abducting the children. The Mother was asked whether this was the only risk to which the Mother replied in the negative.
The Mother was asked questions in relation to a former partner Mr W. The Mother admitted that on 15 December 2015 she had attended upon his home and started banging on windows and doors seeking for that person to come outside. When the person did come outside the Mother started verbally abusing him for allegedly having scratched the Mother’s sister’s car.
The Mother stated that following an incident between the parties on 5 November 2019, to which the police became involved, the Mother took the children to Melbourne.
The Mother stated that while she was staying at a refuge with the children in Melbourne her family and friends visited.
The Mother acknowledged that the parties fought; in this context, the Mother stated that the Father would call the Mother a name and the Mother would become upset and yell back. The Mother denied that she was not frightened at these times.
The Mother stated that it would benefit the child X to not have negative contact with the Father. In this context the Mother stated that the Father would always be the children’s Father and it was important for children to have a Father.
The Mother stated that she would allow FaceTime between the children and the Father on two occasions each week as ordered by the Court.
The Mother was asked what her position would be if FaceTime communication commenced between the children and the Father and in a few months’ time the child X asked to see the Father. The Mother stated that if X wanted to see the Father she would arrange for supervised visits. In this context the Mother stated she had a fear of the Father abducting X and she wished there to be control of what the Father said to the child. The Mother stated that despite there having been an Order for the parties not to denigrate each other in the presence of the children the Father had still said things on FaceTime (in denigration of the Mother).
The Mother was questioned as to the child Y’s crying and refusing to spend time with the Father. It was put to the Mother that when she encountered opposition from the child Y to see the Father the Mother simply gave in to this child and no time was spent with the Father. The Mother responded that this child was distressed and she had attempted to have this child spend time with the Father.
The Mother was asked why the child Y was resistant to seeing the Father. The Mother responded by stating that the child was very young (at separation). She stated that Y does not know or have any relationship with the Father.
The Mother stated that at the contact centre there was a room, toys and an outside area where children can bring their own toys. The Mother stated she had brought toys to supervised time.
The Mother stated that she had felt safer moving to Melbourne. She stated she had regard to the children’s safety in going to Melbourne.
The Mother stated that it was in the best interests of the children to have a relationship with the Father’s family and cousins.
The Mother was asked why she had not supported the children’s relationship with the paternal grandmother. She stated that the Father and the paternal grandmother had taken control of the child X and herself in the lead up to the parties’ separation. She stated that the Father and the paternal grandmother did not support how she cared for the child X.
The Mother stated that the children were aware of gifts sent to them by the Father. The Mother agreed that she had sold certain toys that the Father had sent the children if the children already had the same toy. The Mother stated that she herself sells toys that she has purchased for the children after the children had used them. She stated that she rotates the children’s toys.
The Mother was cross-examined by the ICL.
The Mother stated that she planned to work in employment when the children started primary school.
The Mother stated that the child X would begin primary school next year. She stated that she would feel safer if the Father did not know the identity of the school. She stated that she was worried that the Father would go and take X from the school and return with him to Sydney.
The Mother was asked whether, if the main risk of unsupervised time was abduction by the Father of the children, did that mean that the Mother no longer held fears that the Father would harm her. The Mother responded by stating that she 100 per cent holds those fears (of harm). The Mother stated that if she had to return to Sydney she also feared for her safety; she stated her concern that the Father would have her killed.
The Mother stated that the child Y had just started to attend a preschool for one day each week. She stated that presently the child X attends preschool three days each week.
The Mother stated that the maternal grandmother sees the children. She stated that the maternal grandmother has assisted in the care of the children when the Mother needed such help. She stated that the maternal grandmother works full-time. She stated that the maternal grandfather works full-time and he has also helped in the care of the children. She stated the maternal grandparents have separated but they work together regarding the care of the children.
The Mother stated that both children were exposed to the parties yelling at each other during the relationship. The Mother was asked what effect that would have had on the children. The Mother responded by stating anxiety, hurt, and confusion. She stated her belief that the children had been damaged and she accepted some responsibility for how they felt.
The Mother was asked whether she had behaved badly in relation to Mr W. The Mother stated that the text messages sent by her to this person was a poor way to handle that person’s alleged prior damaging of the Mother’s sister’s car.
The Mother had stated that she was presently in a new relationship but was not living together with the other person. She stated that the children had met this person, who lives in Melbourne. The Mother was asked whether there was any conflict in her relationship with this person. The Mother replied in the negative stating that there was no yelling and she and this person discuss issues arising between them. The Mother asked whether she had matured since her relationship with the Father. The Mother replied in the affirmative stating that her incentive in this regard was how women should be treated, being fairly, correctly, and as an equal.
The Mother agreed that her relationship with the Father had been volatile and conflictual. She felt scared of the Father during their relationship and remains scared of him. The Mother stated that she felt scared having received (abusive) text messages from the Father. In this context she referred to receiving chocolates from the Father and knowing that the Father and the paternal grandmother were working together and knowing where she lived. She stated her belief that the Father and the paternal grandmother had obtained the services of an investigator.
The Mother confirmed that the child Y was crying and was distressed at the contact centre. She had heard this crying and distress through the door. She had asked Y whether she wanted to go and see his brother X and the Father and he did not respond.
The Mother stated that she had taken steps for the children to go on FaceTime (to speak to the Father). She referred to going into a quiet room with the children. She referred to practical steps she took to try and have the children be more (physically) still on FaceTime.
The Mother was asked what Orders she would seek if the Court ordered the children’s residence to be relocated (to Sydney). The Mother stated that would seek Orders that the children live with her and have FaceTime with the Father.
The Mother stated that she had looked into the (possible) provision of supervision contact services outside the confines of the contact centre, in relation to the children spending supervised time with the Father, but she had found those services to be too expensive. She then was asked whether she would agree to such supervision occurring if the Father was to pay for it. She replied by stating that after the Father had done the contact centre services he was doing now she would possibly consider it, with such supervised time to happen in Melbourne. She stated that this could occur as long as a supervisor was present to hear the verbal interaction between the Father and the children. The Mother stated that although there were a few supervised visits at the contact centre that were cancelled due to COVID-19, the contact centre had offered the Father to make up replacement visits.
The Mother stated that since separation in November 2019 the Father had had physical face-to-face time with X about four or five times. The Mother said that the Father was possibly right when he stated that the child Y had had physical face-to-face time with the Father about three or four times since the parties’ separation.
In re-examination, the Mother confirmed that the Father had an overly close relationship with the paternal grandmother. In this regard, she stated that, for example, the Father would telephone his Mother for the loan of a car and his Mother would simply comply. The Mother stated that the Father would overpower and overrule his Mother and the latter would not say “no” to him. The Mother stated that she had wanted to teach the children “thank you and please” and the paternal grandmother would override the Mother and tell the Mother there was no need for the children to say “thank you or please”.
The Mother stated that she had daily contact over the telephone with the maternal grandfather in Melbourne; he works from home. The Mother would speak to the maternal grandmother once a week as the maternal grandmother works (in employment).
In Melbourne, the Mother stated she sees the maternal grandmother every week and the maternal grandfather every two weeks.
In Melbourne, the Mother stated she sees her uncle once a month.
In Melbourne, the Mother has made friends through X’s kindergarten and she goes to parks with those friends and their children and might socialise with them for a tea or coffee.
The Mother stated that having grown up in Melbourne and attended school there, she has school personal friends who she speaks with regularly every couple of days.
The Mother stated that she shares her personal problems with her immediate family in Melbourne, being her parents and uncle.
The Mother is not presently receiving any psychological counselling. She stated that just before the final hearing commenced she made contact with Z Health Care and she plans to do some counselling after the proceedings. The Mother stated she is not presently ingesting any mental health related medications.
Exhibits
The Court does not propose to set out the entirety of the exhibits.
Exhibit A is an Affidavit of the Mother adopted by her in oral evidence.
In late April 2022 the Mother received a letter from a senior social worker at B Contact Centre advising, “The service has been informed by (the Father) via phone call that he no longer needs the service for supervised visits.” The letter also confirmed that the service would close the case. The Father was scheduled to have supervised contact visits with the above organisation for one visit in February and March 2022, and two visits in April 2022. In late May 2022 the Mother received an email from the above organisation advising that the Father had cancelled the scheduled visits (Exhibit M is a copy of the above letter).
The Mother states that the Father has been inconsistent in his telephone calls with the children.
On 8 February 2022 the Father called to speak to the children. He said, “X have you been naughty?” Y said, “yes” and the Father said, “good boy, be like daddy, be naughty.” On 29 March 2022, the Father had FaceTime with the children. The Mother heard the Father say, “are your bags packed for 6 weeks’ time?” The Mother understood this to be a reference to the final hearing.
Exhibit C is the ICL’s tender bundle.
The ICL entry for 21 October 2019 refers to the Mother reporting, “husband being verbally abusive. Mother-in-law allegedly quite hostile to patient. finding it very difficult to cope.”
The ICL tender bundle page 27 refers to a report from a paediatrician in Suburb AB, Victoria, dated 28 May 2021, and stating, inter alia, that the child X was a friendly child who was easy to interact with and showed appropriate non-verbal skills, and that X was reported to do well at kindergarten and to engage well with his peers.
The ICL tender bundle pages 37–38 refers to notes for the child X from the AC Kindergarten between February 2022 and April 2022 and are positive reports for this child at kindergarten referring to his developing educational and social skills, including referring to positive interactions with his peers.
Exhibit J is a report dated 24 August 2020 from Z Health Care referring, inter alia, to the engagement of the child X and the Mother with the Family Violence Children Program. The Mother, in June–July 2020, had reported that she had observed changes in X’s behaviour including that child appearing more settled at home, listening to the Mother, following the house rules, and playing nicely with his younger brother. However in August 2020 the Mother had reported certain changes in X’s behaviour, including X becoming very agitated during phone calls with the Father.

Exhibit Q includes annexure R7 to the Mother’s trial Affidavit, and are copies of the Mother’s consultation notes with a clinical psychologist that she attended upon in Sydney on three occasions in October 2019.
The notes state, inter alia, that the domestic violence takes the form of emotional and psychological abuse. The Mother reports to the psychologist examples of verbal abuse by the Father towards her. The Mother reports the Father favours the child X over the child Y. She reports that the Father does not attend to Y. She reports that the Father has sought to diminish the child X’s relationship with the Mother. The Mother gives examples of these reports.
The notes state, inter alia, that the Mother reports feeling anxious when at home with the Father. The notes report the Mother being tearful when describing her fear of losing the child X to the Father; she reports that the Father had threatened to keep X if the Mother leaves him. The psychologist refers to the Mother’s thought content centred on fears of abuse.
The notes refer to a consultation on 31 October 2019 when the Mother presented with the children. The child X complied with the Mother’s requests to sit quietly. The psychologist refers to there appearing to be a mutual trust between the Mother and X. The Mother reports the paternal grandmother being verbally abusive towards the Mother over the past week. The Mother reports then finding a solicitor and making plans to go to a women’s refuge with the children. The Mother reports her solicitor advising her to obtain an AVO on the Father however the Mother reported she was too frightened to do this as it may provoke him.
The notes refer to the Mother reporting that she denied that the Father or the paternal grandmother “have abused the children”. The Mother reported being afraid that if she remained with the Father he would continue to manipulate the child X by creating a wedge between the Father and the Mother. The Mother reported that she was in regular contact with supportive family members who live in Melbourne.
The notes refer to a consultation on 11 November 2019 when the Mother reported, inter alia, that she was currently staying at a refuge in Melbourne with the children. She reported to the psychologist that she promptly left last week after feeling threatened by the paternal grandmother and by the Father who slapped her across the face.
In Exhibit J, a report dated 24 August 2020 from Z Health to the presiding Magistrate, there is reference to the specialist family violence children’s worker discussing with the Mother ways in which she could support the child X’s engagement with the Father during the phone access.
Exhibit Q are copies of various annexures to the Mother’s trial Affidavit.
Annexure R3, being messages between the parties after the child Y’s birth in 2019, include a message from the Father to the Mother stating: “Sweet give me X take ur kid to ur mums clean sweep u can see him whenever u like. I even throw u a nice chunk. That’s my offer take it. U wouldn’t be able to afford them both so take the counteroffer while it’s there.”
Exhibit R contains copies of various annexures to the Father’s trial Affidavit.
Annexure 42/183 is a copy of an email from a Victorian Police Constable dated 12 October 2020 to a police officer referring to investigations into the Father and paternal grandmother sending chocolates to the Mother from the Suburb F post office. The email states, inter alia, that the Mother was adamant that the Father should not have been aware of her address and when the Mother did present to the police station she was very clearly shaken up. The email states that when the police confirmed via CCTV footage that it was the Father, again the Mother was clearly fearful and broke down. The email refers to the Mother having gone to the extent of having cameras installed around her house. The Mother’s police statement at pages

54–61/183 refers to the Mother, inter alia, feeling very threatened and unsafe again and she is very fearful that the child X will be snatched.
Annexure 82/183 includes a copy text message from the Father to the Mother post separation, including one message stating, “ur fried dead set but there is only a little bit left of play left in da rope.” Annexure 83/183 is another copy text message from the Father to the Mother post separation stating, “But I swear on my nonna’s grave I will spend wat ever it takes to win my kids bak doesn’t matter wat length I gotta go to and u know how I function in dat department.” In respect to these messages, the Father states that before commencing these parenting proceedings this communication was sent to the Mother to try and get some time with the children.
Annexure 93/183 refers to certain supervised visits which occurred between the children and the Father including 30 April 2021, 17 December 2021, and 7 January 2022, albeit that the child Y had been returned to the Mother at the start of these visits due to his crying and wish to return to the Mother. Visits organised between May 2021 and October 2021 did not occur due to COVID-19.
Family Report
Ms J, family consultant, was the Family Report writer; her Family Report is dated 11 December 2020. She had a telephone interview with the Father on 3 December 2020 and an interview with the Mother on Microsoft Teams on 7 December 2020. The children were not interviewed or observed with either parent by reason of the children’s ages, geographical location, and the COVID-19 restrictions.
The Family Report writer observed that there is one Apprehended Domestic Violence Order (ADVO) protecting Ms Renosa from Mr Galardi, which expires in December 2020.
The Family Report writer observed that in September 2020, Orders were made that the children spend time with Mr Galardi via video-call or similar twice per week. Orders were also made for the children to spend supervised time with Mr Galardi in Victoria for between two hours and four hours per fortnight in Victoria.
Mr Galardi reported that the children have been having contact with him over video-call twice per week. He said that X especially enjoys this, as he is very close to X. He said that he usually speaks to X for approximately 30 minutes and reiterated numerous times that X is very special to both him, and the paternal grandparents.
Mr Galardi stated that he had had a motorcycle accident around the time that X was born, and was injured and subsequently at home with X all the time while Ms Renosa was out. Mr Galardi went on to describe X as "my best buddy".
Mr Galardi said that he did not have much information about Y and indicated that they had a limited relationship, as Y was four months old when he and Ms Renosa separated.
Mr Galardi said that, if the children lived primarily with him, the paternal grandparents would care for the children while he is at work, if they were not in Ms Renosa's care (if she lived in Sydney).
Ms Renosa said that she relocated to Melbourne with the children as she was born in Melbourne and her friends and family members reside in Melbourne. She indicated that she did not have any family or friend support, independent of Mr Galardi's family and friends, in Sydney. She said that she is unable to move back to Sydney and would have serious concerns for hers and the children's safety from Mr Galardi if she did.
Ms Renosa said that X mostly has contact with Mr Galardi by video-call, and given Y's age, he does not interact much with Mr Galardi.
Mr Galardi denied ever being physically violent towards Ms Renosa.
Mr Galardi explained that the majority of the arguments between him and Ms Renosa were not beyond what any other couple would argue about, and he denied that most of them were violent.
Mr Galardi also denied being verbally abusive to Ms Renosa. He then said that he has sent her text messages that were “spoken in a bad way”, which he considered were the result of him being “pushed into a corner”, and were not something he would normally do. He said that Ms Renosa has sent similar text messages. Mr Galardi denied sending any threatening text messages, and explained that he has only told her that she cannot take the children away, and to bring them home. He said that those messages were sent in the “heat of the moment” and he has no intention of harming her or the children. He then stated, “I have said stupid things, I admit” and added that he has called Ms Renosa a “gronk”. Mr Galardi said that she has also called him names, such as “fat”. He denied saying that he could have her killed.
Ms Renosa stated that, during her relationship with Mr Galardi, he was constantly verbally and emotionally abusive, and would say “you're fat, you're ugly, you got more dints on your face than a mechanic” in reference to her skin conditions. She said that, although she enjoyed attending the gym, he would tell her she “shouldn't go” and was wasting her time. She said that he constantly made negative comments about her physical appearance.
Ms Renosa said that Mr Galardi constantly threatened her and provided the example that he would say, “I want your blood” and that she would have a car accident, or he would get someone to kill her while he was eating his “big mac” so no one would know it was him. She stated that he would also threaten that he would have his friends’ partners “bash” her.
Ms Renosa alleged that Mr Galardi was physically violent to her.
Ms Renosa said that Mr Galardi only allowed to her to socialise and have friendships with his friends.
Ms Renosa recounted an incident in 2017, when she was pregnant and they were in the car together. She said that they were arguing, and he raised his right hand to her, which she pushed down with her left hand and said “don't you dare do that”. She stated that her fingernail scratched his eye in the process, when she tried to stop him from hitting her.
In relation to the incident with the Father in November 2019, Ms Renosa said that the assault charges against Mr Galardi were withdrawn because she was not permitted to attend the Court date via video link.
Ms Renosa said that she remains fearful of Mr Galardi.
Mr Galardi denied not allowing Ms Renosa and X to have a relationship. He said that X did not like Ms Renosa because he “felt her vibe”" and provided the example that X preferred him to change his nappy, rather than her. When asked what Ms Renosa's vibes were, he said that X experienced her being “on edge” and “he didn't want a bar of her”. Mr Galardi said that he would tell X, “it's alright, Dad is here” to support him but, when asked, said that he did not do anything else to assist their relationship because he was injured “on the couch, doing my own thing” and he “just watched them”. He explained that there was no bond between Ms Renosa and X from his birth.
Mr Galardi denied having any concerns about extended maternal family members.
Ms Renosa said that, during their relationship, Mr Galardi tried to negatively influence X against her. She said that X would hit her, kick and spit at her and Mr Galardi would say to X that she is “yuck”. Ms Renosa stated that the paternal grandmother would attend their house every day from the early morning, and would take X out. She said that Mr Galardi and the paternal grandmother allowed X to do whatever he wanted to do, eat what he wanted to eat, and do things such as play with glass, batteries and stand on tables. She said that Mr Galardi would sleep and shower with X and X had no boundaries, routines, and became “wild”.
Ms Renosa said that, when she and the children relocated to Melbourne, X's behaviour and presentation improved almost immediately. She said that he was not distressed at not having contact with Mr Galardi, and began eating and sleeping better. She said that X used to often be anxious and appear sad and scared, prior to the separation. Ms Renosa reported, however, that X is attending counselling to assist him with his behaviour and to assist her “to be the parent I wasn't allowed to be before”.
Ms Renosa denied not having a bond with X. She said, however, that Mr Galardi and the paternal grandmother interfered in X's relationship with her so much that, just prior to the separation, X would not want to come near her. She said that Mr Galardi used to tell her, while holding X, that X hates her.
Ms Renosa said that her primary concern regarding the children having contact with Mr Galardi and the paternal grandmother, is their safety. She said that, previously, there was an incident where the paternal grandmother was caring for Y briefly while she was assisting Mr Galardi with something in their garage, and when she returned she saw that Y had his beanie over his face while the paternal grandmother was on the telephone.
Ms Renosa stated that she strongly believes that if the paternal family had contact with the children again, she would never see them again. She said that she also has concerns about their ability to set appropriate boundaries and routines for the children, and also engage with them in a child focussed manner.
Ms Renosa acknowledged that Mr Galardi is the children’s Father and she was distressed at the idea of them not having a relationship with him, but considered that their safety and well-being will be at such significant risk that she does not believe it in their best interests to have an ongoing relationship with him. She reiterated numerous times that, if the children have any form of face-to-face contact with Mr Galardi, she will never see them again. She also raised concerns about how he will care for them if he is working long hours as a business owner.
Mr Galardi said that he and Ms Renosa are currently able to talk to each other, but described her attitude to their co-parenting relationship as “up and down”.
Ms Renosa said that she and Mr Galardi have contact through video-call, but primarily to facilitate the children’s contact with him. She said that she and Mr Galardi have not had any private conversations between them about the children. Ms Renosa said that, while the children are talking to Mr Galardi over video-call, Mr Galardi will often mumble things to her such as “you think a piece of paper will stop me” and will make comments to the children about their bedding, such as “use that for now, it won't be your bed for long”.
Ms Renosa said that she is not comfortable in communicating with Mr Galardi, but will be civil and follow Orders directing her to. Ms Renosa advised that she has no intentions of reconciling her relationship with Mr Galardi.
Ms Renosa said that she does not have a positive relationship with the paternal grandparents, although she has always been respectful to them.
Under the heading Evaluation, the Family Report writer stated, inter alia, that the most pertinent risk issue in this matter appears to be the allegations of family violence that Ms Renosa has made against Mr Galardi, the veracity of which may be a matter for the Court to determine. Ms Renosa’s account and description of the alleged family violence would indicate that, if it occurred, it was family violence that contained significant elements of control and coercion. In addition, the allegations that the relationship between X and Ms Renosa was negatively influenced would also be considered to fall within the scope of severe family violence.
The Family Report writer stated that family violence containing elements of control and dominance by a primary perpetrator typically results in fear, intimidation and submission through the use of threats, emotional abuse, restriction of contacts, and/or actual harm. Within a coercive-controlling dynamic, incidents of physical harm do not need to be frequent or severe in nature to maintain an abusive dynamic, rather the fear generated in the victim by the perpetrator's actions is sufficient.
The Family Report writer stated that exposure to family violence is known to have a detrimental impact on children, including on their physical safety and psychological wellbeing. Furthermore, family violence that contains elements of coercion and control can be associated with parenting deficits including inappropriate use of authority and/or coercive discipline methods which can escalate to physical abuse, a limited capacity to identify and meet a child's needs, a limited capacity to separate a child's needs from the perpetrator’s own needs, and a limited capacity to tolerate age appropriate behaviour.
The Family Report writer stated that in the long term, exposure to family violence can cause children to experience mental health issues such as depression and anxiety, low self-esteem, aggression, anti-social behaviour, difficulties with emotional regulation, and substance abuse.
Family violence in a relationship can also be associated with increased parenting stress for the victim-survivor, decreased parental availability, and a reduced capacity to manage children’s emotions. Being a victim of family violence can also have a negative effect on parenting, including related mental health issues such as anxiety, depression and trauma symptoms, and an inability to protect children from direct abusive or neglectful behaviour.
Experiencing trauma is recognised as impairing parenting capacity, particularly where there is an ongoing lack of safety, or threats associated with the trauma remain unresolved or there are other ongoing trigger issues.
Perpetrators of family violence may also use a variety of means to undermine the victim survivor parent, including criticising and denigrating that parent to the children. They may also override any decision making, and undermine and manipulate the child's relationship with the victim-survivor parent. It is noted that allegations of this nature have also been made, particularly in relation to X.
Parents who perpetrate family violence are likely to have difficulties in their parenting, including being unable to understand a child's experience as different from their own, have difficulty being child focused, and engage in angry outbursts with a child when the child engages in challenging behaviour. They may also minimise the effect that the violence has had on the child.
In the absence of a perpetrating parent assuming responsibility for the violence, presenting as motivated to change and engaging with a specific therapeutic change program, it is likely that the family violence dynamic will continue post separation in the future co-parenting relationship, and this is likely to undermine the victim-survivor parent’s ability to make and enforce child-focused decisions.
Ms Renosa’s allegations that Mr Galardi influenced her relationship with X by not applying boundaries and rules to X, over indulging him with material items, and not allowing Ms Renosa general day to day contact with him are, if accurate, indications that Mr Galardi would directly use the children in a family violence dynamic by triangulating their relationships with their Mother. If this is accurate, he may have been engaging in behaviour to ensure that Ms Renosa is constantly emotionally abused by undermining her bond with her children, and the children's bond with each other.
Mr Galardi’s own report of his relationship with X raised some concerns about his parental reflective functioning, which are his ability to reflect on his own internal experiences as well as that of the children, separately from him. He appeared to identify X as being a friend, and he was intensely focused on his relationship with X and the lack of relationship between X and Ms Renosa. Although Y was only four months old at the time of separation, Mr Galardi said very little about him and appeared to have limited interest in Y as an individual.
Mr Galardi also attributed intense emotional responses for minor actions to X as being rejecting of Ms Renosa, such as X not wanting “a bar” of Ms Renosa while he was a baby just having his nappy changed. If X was upset at having his nappy change, it is considered highly unlikely, in the absence of abusive or rough treatment, that his distress was specifically aimed at Ms Renosa.

In relation to the Father’s proposed Orders in the alternate, that is, his proposed Orders in circumstances where the children remain living with the Mother in Melbourne, the Court observes that such proposed Orders provide, inter alia, for the children spending unsupervised time with the Father, both in Melbourne and in Sydney during school holidays. For the reasons discussed above, such proposed Orders for unsupervised time would pose a risk of harm to the children.
The Court now turns to the ICL’s proposed Orders regarding the Father being able to spend supervised time with the children if he now completes a Men’s Behavioural Change program.
The ICL submits that the Father loves the children and desires to be a parent to them, and he has likely commenced these parenting proceedings with a view to allowing him to be an active parent to the children. The ICL submits that if the Father completes a Men’s Behavioural Change program he should be given the opportunity to begin to spend supervised time with the children. The ICL submits that such supervised time should not progress to unsupervised time until the Father can demonstrate that he has developed significant insight relating to his past coercive and controlling family violence towards the Mother having completed the above program. There is force to these submissions.
Elaborating, the Court refers again to the Family Report writer’s evidence relating to the Father’s past perpetration of family violence towards the Mother and what the Father should demonstrate to indicate he has achieved some insight into the adverse effects upon the Mother of such conduct, including the following oral evidence:
He would need to be able to explain how his behaviour would have impacted the Mother, have some empathy for any emotions or distress that she might have felt in response to that and he would have had to have been able to explain how he would act differently the next time he felt similar sort of emotions that he was unable to manage and be able to describe the steps that he would take to address any emotions he was having difficulty with so that he was better able to moderate his behaviour.
In the view of the Court, the Father’s completion of such a Men’s Behavioural Change program alone would not necessarily indicate that he would be able to demonstrate an understanding of the above matters.
The Court observes that the above oral evidence of the Family Report writer was consistent with her warning at paragraph 96 of the Family Report:
In the absence of a perpetrating parent assuming responsibility for the violence, presenting as motivated to change and engaging with a specific therapeutic change program, it is likely that the family violence dynamic will continue post-separation in the future co-parenting relationship, and this is likely to undermine the victim-survivor parents’ ability to make and enforce child-focused decisions.
The ICL proposes that such supervised time should comprise the children spending supervised time in Melbourne each alternate month on the last weekend of that month for a period of four hours on each occasion, and through a private supervision agency. The ICL submits that the Father is more likely to be able to comply with the extent of such proposed supervised time rather than a more regular regime for supervised time because of past difficulties relating to the children spending supervised time with the Father at a Melbourne contact centre pursuant to previous interim parenting Orders, the Father’s cancellation of the Melbourne contact centre service in about April 2022, and the cost to the Father (noting his present unemployment) and inconvenience to him of travelling to Melbourne from Sydney and return more frequently. There is force to these submissions.
In relation to the ICL’s proposed Orders for FaceTime communication twice each month, which time should, according to the ICL’s proposed Orders, commence and continue irrespective of the Father completing the Men’s Behavioural Change program, the Court is of the view that the ICL’s proposed Order 6 should be amended by deleting the words, “in a private setting and without distraction” so as to unambiguously afford the Mother the ability to monitor such communication and terminate such communication if the Father is, for example, denigrating the Mother, or is communicating with X in a manner which is diminishing his relationship with the Mother. In this context the Court refers to and accepts the Mother’s evidence in relation to difficulties having been encountered during previous FaceTime time between the children and the Father by reason of the Father’s adverse behaviour. The Court, not without some hesitation, has concluded that the ICL’s proposed Order 6 should be made (with the above amendment) without the Father having first completed the Men’s Behaviour Change program; this is because such FaceTime communication may facilitate the children’s continuing relationship with the Father in circumstances where there probably exists a real prospect that the Father will enrol in and complete the Men’s Behaviour Change program leading to supervised time with the children (noting that such program can take up to about 16 weeks to complete).
The Court recognises that the ICL’s proposed FaceTime communication between the children and the Father, namely on the first and third Sunday of each month between 6:00pm and 6:30pm, is FaceTime communication to a lesser extent than the Court’s previous interim Orders of 8 October 2020 which provided for such communication with the children on two occasions each week. Such reduction, in the view of the Court, is necessary to further minimise the risk of adverse verbal behaviour by the Father during such FaceTime time, and to ensure that he reliably takes up such opportunity to speak to the children in circumstances where he has previously been inconsistent in complying with such previous interim Orders.
The Court has considered relevant case law applicable to the Court making indefinite supervision Orders. The Court has had regard to the decisions in Moose & Moose (2008) FLC 93–375, Champness & Hanson (2009) FLC 93–407; Gorman & Huffman [2016] FamCAFC 174, relating to the Court providing cogent reasons to support indefinite supervision Orders, the difficulties associated with long-term supervision, and the Court considering whether it should expressly provide, in its Orders, a review mechanism such as to enable the Father to approach the Court with an Application to seek Orders for unsupervised time.
Again, the ICL had submitted that her proposed supervised time should not progress to unsupervised time until the Father can demonstrate that he has developed significant insight relating to his past coercive and controlling family violence towards the Mother having completed the above program. The Court, above, has referred to and discussed in this context the evidence of the Family Report writer, including her oral evidence, as to what the Father would need to demonstrate to indicate that he had achieved some insight into the adverse effects upon the Mother of his previously perpetrated family violence upon her; such evidence, if presented by the Father in future parenting proceedings, would likely overcome the “changed circumstances” test in Rice & Asplund (1979) FLC 90–725. However, there is force to the inferred submissions of the ICL and the Mother that the nature of such evidence is probably presently incapable of being the subject of a discrete review mechanism contained within an Order of the Court.
The Court would have a significant concern as to the children spending supervised time through the supervision of the paternal grandmother. There is force to the submissions of the ICL in this context, including that the paternal grandmother probably lacks insight and empathy into the children’s young developmental age, and lacks such insight and empathy into the children’s care history between the parties as discussed in these Reasons.
The Court should state that it broadly accepts the submissions of the ICL that the evidence of the Mother demonstrated some significant insight and regret into the ill effects of her past conflictive behaviour with the Father upon the children during their relationship and that she also demonstrated a capacity to positively change. In this context, the Mother had given evidence, inter alia, about her capacity to reason and resolve conflict in a positive manner in her new relationship.
The Court gives significant weight to this need to protect primary consideration.
This primary consideration, in all the circumstances discussed above, and to a most significant extent, favours the children remaining living with the Mother in Melbourne.
Section 60CC(3) additional considerations
(3)(a) Any views expressed by the child and any factors (such as the child maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The children are too young to express a relevant view.
(3) (b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The Court refers to its discussions above under the meaningful relationship primary consideration. The children do not presently have a meaningful relationship with the paternal grandparents. The child X, prior to separation, probably had a positive relationship with the paternal grandmother. They have positive relationships with the Mother’s extended family in Melbourne.
This consideration is probably neutral as to relocation.
(3)(c) The extent to which each of the child’s parents has taken or failed to take the opportunity; to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
The Father has not always taken up opportunities to spend time, including FaceTime with the children, whilst the Court acknowledges that, to some extent, COVID-19 restrictions impacted upon his ability to spend such time with them. The Mother has been making the major decisions for the children, at least since separation to date. Subject to the above, both parents would appear to have taken, or sought to have taken, such opportunities.
This consideration is probably neutral as to relocation.
(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
The parents would appear to have maintained the children when the children were in their respective care, however the preponderance of the children’s care, time wise, has been provided by the Mother. The Father does not pay child support, whilst recognising that he has been unemployed for a period.
This consideration is probably neutral as to relocation.
(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The Court refers to its discussions above under the primary considerations, in particular under the need to protect primary consideration.
(3)(e) The practical difficulty and expense of a child spending time with and communicating with the parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Should the children’s residence remain in Melbourne living with the Mother there, there is likely to be some practical difficulty in the children spending time with the Father; this is discussed further below under subsection (3)(m).
(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The Mother has such capacities.
As to the Father, the Court refers to its discussions above under the need to protect primary consideration in relation to the issue of family violence perpetrated by the Father and his lack of insight in relation to this issue, and which indicates the Father probably lacks some significant capacity to provide for the emotional needs of the children.
(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
These young children appear to be progressing and developing well living with the Mother in Melbourne. Again the Court refers to its discussions above under the need to protect primary consideration in relation to the Father.
(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child: the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and the likely impact any proposed parenting order under this Part will have on that right
Not applicable.
(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Court refers to its discussions above under the need to protect primary consideration. Otherwise, the parents appear to have demonstrated appropriate attitudes.
(3)(j) Any family violence involving the child or a member of the child's family.
The Court refers to its discussions above under the need to protect primary consideration.
(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following: the nature of the order; the circumstances in which the order was made; any findings made by the Court in, or in proceedings for, the order; any other relevant matter.
As to this additional consideration, the Court refers to its discussions above in these Reasons as to the evidence in relation to ADVOs.
(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
The Court refers to its discussions above under the need to protect primary consideration as to ensuing risks in making the Father’s proposed Orders.
Orders relating to the children spending time with the Father as discussed above under the meaningful relationship primary consideration would be least likely to lead to the institution of further proceedings in relation to the children.
(3)(m) Any other fact or circumstance that the Court thinks is relevant.
The Father seeks to relocate the children’s residence to Sydney from Melbourne. The Court refers to his proposed Orders.
The Court now addresses, to the extent that it has not been previously addressed in the Court’s consideration of section 60CC factors, the advantages and disadvantages in respect to the relevant proposals of the parties.
Turning first to the Father’s proposals in relation to his proposed relocation of the children’s residence to Sydney from Melbourne.
The Father asserts advantages to the children’s residence being relocated to Sydney from Melbourne, inter alia, as follows:
(a)The children, whether living with the Father or with the Mother in Sydney (and if living with the Mother, the children spending regular time with the Father), would be more practically able to develop, maintain and enhance a meaningful relationship with the Father.
The Court recognises that should relocation not be permitted, there are practical difficulties in relation to the children spending regular time with the Father, noting the significant distance between Melbourne and Sydney. In particular, there is a significant prospect that the Father will be faced with some financial difficulties in relation to travelling from Sydney to Melbourne and return in order to spend time with the children in Melbourne.
(b)The Father would have the assistance of the paternal grandparents in caring for the children, if, for example, he was away at work;
(c)The children would be best placed to develop a positive relationship with the Father’s extended paternal family, including the paternal grandparents, if their residence was relocated from Melbourne to Sydney.
As to (a), (b), (c) above, the Court refers to its discussions above under the need to protect primary consideration in relation to, inter alia, the risks of harm posed to the children if required to relocate to Sydney from Melbourne. Such discussions and related conclusions under the need to protect primary consideration significantly outweigh these contended advantages.
The Mother’s contended advantages in opposing relocation have been previously addressed under section 60CC, in particular as discussed under the need to protect primary consideration, and include:
(a)The children are well settled in Melbourne living with the Mother and have significant social capital living there, including their pre-schooling, exposure to friends and the maternal extended family, and to uproot them from Melbourne to live in Sydney would destabilise their present position with adverse effects upon them;
(b)The Court infers that the Mother, in circumstances where she continues to fear the Father (which the Court finds to be the case), feels safer living in Melbourne compared to Sydney, and feels, to a significant extent, shielded from the prospect of conflict with the Father if she was to live in Sydney;
(c)The Mother, in circumstances where she continues to fear the Father, has exposure and related emotional comfort from her maternal extended family and friends who reside in Melbourne. The Mother has no such family and friends in Sydney. In these circumstances, that is, living in Melbourne with such support, the Mother experiences reduced anxiety and stress compared to living in Sydney closer to the Father. The Mother’s parenting capacity for the children is enhanced by remaining living in Melbourne accordingly. The Mother’s parenting capacity for the children would be significantly reduced were the children’s residence to be relocated to Sydney by Court Order with the Mother moving to Sydney also.
The Court would give significant weight to these advantages and related matters contended by the Mother.
On balance, the Court is of the view, evaluating the above considerations under section 60CC of the Act, and other matters discussed above, and having regard to relevant legal principle, that it will be in the best interests of the children to remain living with the Mother in Melbourne.
Parental responsibility
The ICL and Mother seek an order for sole parental responsibility for the children which is opposed by the Father. He in turn seeks an order that he have sole parental responsibility for the children. It will be in the best interests of the children that the Mother have sole parental responsibility for them. In this regard, the Court takes into account the parties’ lack of trust with each other in relation to the children, their lack of any significant co-parenting relationship, the Mother’s primary care of the children from birth to date and her satisfactory major decision-making in relation to the children, and the Father’s perpetration of family violence and related lack of insight into such violence (as discussed above under the need to protect primary consideration). Such an order will minimise the risk of conflict occurring between the parties if they otherwise had to reach agreement in relation to major decisions for the children. The Court is not satisfied that these parties could reach agreement in a timely fashion in relation to major decisions affecting the children without conflict.
Summary

Evaluating the above discussed considerations under section 60CC of the Act, and other matters discussed above, the Court is of the view that it will be in the best interests of the child to make the following parenting Orders:
1.The Mother have sole parental responsibility for the children X born in 2017 and Y born in 2019 (“the children”).
2.The children live with the Mother in Melbourne.
3.Within 14 days of the date of these Orders, the Father shall enrol in and complete as soon as practical the program known as Taking Responsibility or other similar Men’s Behavioural Change program as recommended by G Counsellors and shall provide to the Mother his certificate of completion.
4.On the Father’s completion of the Taking Responsibility Program or other similar program pursuant to Order 3 herein, the children shall commence spending supervised time with the Father each alternate month on the last weekend of that month for a period of four hours on each occasion.
5.To facilitate the Father’s time with the children pursuant to Order 4 herein, the following shall occur:-
(a)The Mother shall nominate two private supervision agencies to the Father by email within 7 days of the date of these Orders and thereafter, subject to Order 3 herein, the Father shall arrange for the supervised time with the children to occur and advise the Mother in writing as to the date and time of the supervised contact during the months outlined in Order 4 herein;
(b)Both parties shall do all things necessary to ensure that they comply with intake and any other reasonable requirements of the private supervision agency;
(c)The Father shall be solely liable for the cost of the supervision.
6.The children will have FaceTime communication with the Father on the first and third Sunday of each month between 6:00pm and 6:30pm and the Mother shall provide the Father within 7 days of the date of these Orders with a mobile phone number for this purpose and the Mother shall do all things necessary to ensure that the children are available to speak with the Father and keep the Father advised of any change to the contact number for the purpose of this Order.
7.For the purpose of communication between the parties, the parties shall advise each other within 7 days of the date of these Orders of an email address to be used for the purpose of compliance with these Orders and for no other purpose.
8.The Father shall be at liberty to send to the children by post gifts and cards for the children’s birthdays and Christmas and for this purpose the Mother shall provide to the Father within 7 days of the date of these Orders a postal address for this purpose and the Mother shall do all things necessary to ensure that the children receive items posted to them by the Father and the Mother shall keep the Father advised of any change to the postal address.
9.The Mother shall provide to the Father by email within 14 days of receipt, a copy of the children’s school reports by email and the Mother shall be at liberty to redact or omit any information from those reports which might be used to reveal the children’s address or the location of their school.
10.The Mother shall advise the Father as soon as practical by email of any serious illness or injury suffered by the children or either of them including a diagnosis and prognosis and provide any and all reasonable updates.
11.Both parties are hereby restrained from speaking about the other parent or a member of the other parent’s household in a derogatory fashion in the presence or hearing of the children and shall remove the children from the presence or hearing of any third party seeking to do so.
12.The parties are hereby restrained from speaking to the children about these proceedings or showing the children any document in relation to these proceedings.

I certify that the preceding three hundred and thirty-six (336) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 22 August 2022
Appendix
Father’s alternate Minute of Order
Parental Responsibility
1.That the parties have equal shared parental responsibility for the children:
(a)X born in 2017; and
(b)Y born in 2019 (“the children”).

Live With
2.That the children live with the Mother.

Time with the Father during School Terms
3.That the children spend time with the Father from Friday in Melbourne for one period of up to seven consecutive nights during each school term, as nominated by the Father subject to Order 4 below.
4.For the purpose of Order 3 above, the Father shall provide the Mother with written notice by way of text message or email of his intention to spend time with the children in Melbourne at least fourteen (14) days prior to the commencement of the Father’s proposed time with the children.

Time with the Father during School Holidays
5.That the children spend time with the Father in Sydney during the Victoria gazetted school holiday periods as agreed between the parties in writing and failing agreement:
(a)For the school holiday periods occurring at the conclusions of Terms 1, 2 and 3 as follows:
(i)In 2020 and each alternate year thereafter, subject to Order 7 below, from 1:00pm on the first day immediately following the last day of required school attendance that term until 3:00pm on the Sunday in the middle of the school holiday period;
(i)In 2021 and each alternate year thereafter, subject to Order 8 below, from 3:00pm on the Sunday in the middle of the school holiday period until 3:00pm on the Sunday immediately prior to the first day of required school attendance for the next term;

(b)For the school holiday periods occurring at the conclusion of Term 4 as follows:
(i)In 2022 and each alternate year thereafter, subject to Order 7 below, from 3:00pm on the middle day of the school holiday period until 3:00pm on the Sunday immediately prior to the first day of school for the next term;
(ii)In 2023 and each alternate year thereafter, subject to Orders 7 and 8 below, from 1:00pm on first day immediately following the last day of required school attendance that terms until 3:00pm on the middle day of the school holiday period.

6.That for the purpose of Order 5(b) hereof, unless otherwise agreed between the parties in writing:
(a)The school holiday period commences on the first day immediately following the last day of required school attendance that term;
(b)The school holiday period concludes on the Sunday immediately prior to the first day of required school attendance for the next term;
(c)The middle day of the school holiday period shall be calculated by dividing the number of nights in that school holiday period by two, and in the event of an odd number of days, the parent with whom the children spent Christmas Day that year, shall have the extra day with the children.

7.That for the purpose of Order 5 hereof, in the event there are no flights available permitting changeover to occur at the stipulated time set out in that Order, unless otherwise agreed between the parties in writing, the following shall apply:
(a)The parties shall book the flight that arrives at the changeover location at the closest time available to the changeover time; and
(b)Notwithstanding Order 7(a) hereof:
(i)In relation to the changeover on the first day immediately following the last day of required school attendance, the parties shall book the first flight available departing after 8:00am that day;
(ii)In relation to the changeover on the Sunday immediately prior to the first day of school for the next term, the parties shall arrange for flights to be booked such that the children are returned to the Mother’s care no later than 5:00pm.

8.For the purposes of time between the Father and the children that occurs in Sydney:
(a)The Mother shall pay for the costs of the children’s flights from Melbourne to Sydney;
(b)The Father shall pay for the costs of the children’s flights from Sydney to Melbourne; and
(c)Each party shall provide the other with a copy of the booked flight tickets at least 14 days prior to the departure of the flight.

Special Days
9.That notwithstanding any other Order hereof, during special days unless otherwise agreed between the parties in writing, the following shall apply:
(a)On each of the children’s birthdays each year:
(i)In the event the children are in the Father’s care pursuant to Order 4 above, the Mother shall be permitted to spend time with the children from after school until 6:00pm on a school day or from 10:00am until 1:00pm on a non-school day;
(ii)In the event the children are not already in the Father’s care pursuant to Order 4 above, the Father shall be permitted to spend time with the children from after school until 6:00pm on a school day or from 10:00am until 1:00pm on a non-school day.

(b)On Mother’s Day, in the event the children are in the Father’s care pursuant to Order 4 above, the Mother shall be permitted to spend time with the children from 10:00am until 4:00pm;
(c)On Father’s Day, in the event the children are not already in the Father’s care pursuant to Order 4 above, the Father shall be permitted to spend time with the children in Melbourne if he elects to travel to Melbourne, from 10:00am until 4:00pm.

Communication with the children
10.That the children have telephone and/or FaceTime communication with the parent with whom they are not living as agreed between the parties in writing, and failing agreement, a minimum of three (3) times per week on Monday, Wednesday and Friday mornings at 8am, and at such other times as the children reasonably request to speak to the other parent.
11.For the purpose of Order 10, the parent with whom the children are living is to facilitate such communication.

Communication between the parties
12.That the parties shall communicate with each other either only via text message, email or other communication application agreed between the parties, unless it is an urgent issue regarding the health or welfare of the child, in which case the quickest form of communication shall be used to contact the other parents including by telephone call.
13.Each party shall advise the other party in writing of any change of address, email address or contact telephone number within 24 hours of such a change occurring.

Restraints
14.That each party be restrained by injunction from denigrating the other parent and/or their partner, family members and friends to the children or in the presence of the children, and shall do all things reasonably necessary to remove the children from any environment in which the other parent and/or their partner, family or friends are being denigrated in the presence of the children.
15.That each party be restrained by injunction from passing information or messages through the children to the other parents.
16.That each party be restrained by injunction from discussing these proceedings and/or their family law dispute with the children.

Information Sharing
17.That both parties shall authorise by these Orders any school attended by either child, to provide to either parent, upon request, any reports, information or photos relating to either child at the requesting parent’s cost.
18.That the parties shall authorise by these Orders any of the children’s General Practitioner or treating medical and/or allied health practitioner/s to provide either party with any information or medical reports relating to the children at that parent’s cost (if any).

File number(s):	PAC 1998 of 2020
Judgment of:	JUDGE NEWBRUN
Date of judgment:	22 August 2022
Catchwords:	FAMILY LAW – Parenting - final parenting hearing -competing parenting proposals - best interests of children -final parenting Orders made
Legislation:	Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 65DAA(3), 65D
Cases cited:	Champness & Hanson (2009) FLC 93–407 Gorman & Huffman [2016] FamCAFC 174 Moose & Moose (2008) FLC 93–375 Rice & Asplund (1979) FLC 90–725 Saif & Saif [2020] FamCA 119
Division:	Division 2 Family Law
Number of paragraphs:	336
Date of last submission/s:	13 June 2022
Date of hearing:	1–3 June 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Alexander
Counsel for the Respondent:	Mr Blackah
Counsel for the Independent Children’s Lawyer:	Ms Hamilton

PAC 1998 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR GALARDI Applicant
AND:	MS RENOSA Respondent
AND:	INDEPENDENT CHILDREN'S LAWYER

order made by:	JUDGE NEWBRUN
DATE OF ORDER:	22 August 2022