Gazzi & Khera - [2024] FedCFamC2F 561

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gazzi & Khera [2024] FedCFamC2F 561

File number(s): PAC 580 of 2021

Judgment of: JUDGE NEWBRUN

Date of judgment: 7 May 2024

Catchwords: FAMILY LAW – PARENTING – Best interests of children – Orders made.

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

Cases cited: Saif & Saif [2020] FamCA 119

Division: Division 2 Family Law

Number of paragraphs: 124

Date of hearing: 25 – 27 March 2024

Place: Parramatta

Counsel for the Applicant: Mr Robertson

Solicitor for the Applicant: Lyons Law Group

Counsel for the Respondent: Ms Stolier

Solicitor for the Respondent: Legal Aid NSW

Counsel for the Independent Children's Lawyer: Mr Reeves

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

PAC 580 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GAZZI

Applicant

AND:
MS KHERA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

7 MAY 2024

ON A FINAL BASIS THE COURT ORDERS THAT:
Parental Responsibility
1.That the parties have equal shared parental responsibility for the child, X born in 2016 (‘the child’).

Child’s live and spend time with arrangements
2.That the child shall live with the Mother.
3.That the child spend time with the Father as follows:
(a)Stage 1: From the commencement of these Orders and continuing for a period of four (4) weeks, from the conclusion of school on Friday (or otherwise 3.00 pm) until 6.00 pm on Saturday, and each alternate weekend thereafter;
(b)Stage 2: Commencing upon the conclusion of Order 3(a) and continuing for a period of four (4) weeks, from the conclusion of school on Friday (or otherwise 3.00 pm) until 6.00 pm on Sunday and each alternate weekend thereafter;
(c)Stage 3: Commencing upon the conclusion of Order 3(b), from the conclusion of school on Friday (or otherwise 3.00 pm) until commencement of school or 9.00 am Monday and each alternate weekend thereafter.
(d)During the school holidays as follows:
(i)During the 2024 school holiday periods at the end of Term 2 and each school holidays other than Term 4 school holiday:
A.Unless otherwise agreed, from conclusion of school or 3:00pm on the last day of the school term for one half of the holidays;

(ii)Commencing from Term 4 2024 school holidays, and each Term 4 school holiday thereafter:
A.On a week about basis commencing on the first Friday of the school holiday, unless otherwise agreed.

(e)At such other and additional times as agreed to between the parents in writing.

4.That the child shall spend additional time with the Father as follows:
(a)On Father’s Day from 10.00 am until 6.00 pm;
(b)On the child’s birthday from 4.00 pm to 7.00 pm if on a school day, otherwise 9.00 am to 1.00 pm on any other day; and
(c)On Eid Al Fitr and Eid Al Adha as agreed to between the parents in writing (via text message).

5.That for the purposes of the child spending time with the Father, and unless otherwise agreed to between the parents in writing, changeover shall occur as follows:
(a)On occasions that changeover coincides with the commencement or conclusion of school, then changeover shall occur with the Father collecting/delivering the child to the child’s school; and
(b)At all other times, the Father or his nominee shall pick up the child from, and return the child to, the Mother (or her nominee) outside Suburb B Library.

6.That notwithstanding any other Order or arrangement herein, the child shall live with the Mother on the following days of special significance:
(a)On Mother’s Day from 10.00 am until 6.00 pm;
(b)On the child’s birthday, from 1.00 pm until 5.00 pm (if not on a school day);
(c)On Eid Al Fitr and Eid Al Adha as agreed to between the parents in writing (via text message);

AND in the event the child is spending time with the Father during the above periods, then the Mother shall collect the child from the Father outside Suburb B Library at the commencement of the periods and return the child to the Father outside Suburb B Library at the conclusion of the periods (if the child is due to spend time with the Father).
7.That in the event that the Mother is unavailable to care for the child, then the Father shall be given first priority to care for the child and shall make all necessary arrangements to facilitate the care of the child until such time as the Mother indicates she is in a position to resume the care of the child.

Communication
8.That for the purposes of communicating information about the child between the parents, and unless in the case of an emergency in which case the parents shall communicate via mobile telephone, the parents shall:
(a)download and subscribe to the OurFamilyWizard or such other agreed equivalent co-parenting app within seven (7) days from the making of these Orders. The parties shall pay their share of the subscription fee or seek a waiver, and ensure that their subscription is renewed every year thereafter;
(b)use the online communication feature to share all key documentary matters regarding the child, including school reports;
(c)use the Calendar feature to arrange any agreed variations to the order and/or record any medical appointments;
(d)use the Expense feature to record any child related expenditure that relates to the Orders;
(e)use the Messaging feature when information cannot be conveyed in the Calendar, Expense, and online communication features.

9.That the Father is permitted to communicate with the child by telephone or video call every Monday and Wednesday between 6.30 pm and 7.00 pm, and for that purpose, the Father shall initiate the call to the Mother’s mobile telephone and the Mother shall do all things necessary to facilitate such communication including ensuring the mobile telephone is switched on, fully charged and within range of reception.
10.That the Mother be permitted to communicate with the child via telephone or video call every day that the child is spending overnight time with the Father between 6.30 pm and 7.00 pm, and for that purpose, the Mother shall initiate the call to the Father’s mobile telephone and the Father shall do all things necessary to facilitate such communication including ensuring the mobile telephone is switched on, fully charged and within range of reception.

Restraints
11.That the Mother and Father are restrained from:
(a)Discussing any proceedings between them or the contents of any documents filed in or intended for use in any proceedings to, with or in the presence or hearing of the child;
(b)Permitting any person from discussing any proceedings between the parents or the contents of any documents filed in or intended for use in proceedings to, with or in the presence or hearing of the child;
(c)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or a member of that parent’s extended family in the presence or hearing of the child;
(d)Permitting any other person from abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or a member of that parent’s extended family in the presence or hearing of the child;
(e)Questioning the child concerning the personal and work matters of the other parent.

Courses/Programs
12.That within 14 days, the Mother and Father shall enrol in and subsequently complete the earliest available ‘Keeping Kids in Mind or Parents Not Partners course (by C Family Services)’ parenting program, and provide the other parent with evidence of their enrolment and a certificate of completion upon completing the course.

Provision of Information
13.That the Mother and Father shall keep one another informed in writing via the parenting application or text message/phone call in an emergency, of:
(a)Any significant illness, significant injury or significant medical problem suffered by the child whilst in their care;
(b)Any medication that has been prescribed for the child; and
(c)Their respective telephone number(s) and email address and the parents shall advise one another within twenty-four (24) hours should these details change.

Medical Issues
14.That the Mother and Father shall ensure that the child attends upon the same medical facility as nominated by the Mother for her general medical care, that being D Medical Centre in Suburb B, except in the case of an emergency or otherwise if by agreement. This Order authorises any treating health professional to communicate with the Mother and Father about the condition and treatment of the child.
15.That each of the parents shall ensure that they comply with all reasonable recommendations of the child’s treating medical practitioners and/or allied health professionals (such as Speech Therapists).

Schooling
16.That the Mother and Father be authorised, by this Order, to obtain information about the child’s educational progress and/or other school related activities and for this purpose, the school attended by the child is to supply both parents all copies of newsletters, school reports, photograph order forms, and copies of certificates and awards obtained by the child at the request of each parent and at their own cost.
17.That the parents are each permitted to attend all events involving the child which ordinarily allow for parental attendance including:
(a)Sporting events;
(b)Extracurricular activities; and
(c)School functions and events including concerts, school assemblies, sports days, parent and teacher interviews and school functions.

18.That the Mother have leave to provide a copy of these Orders to the child’s school, any After School Care provider, and any extra-curricular activity provider at which the child may attend from time to time.

Miscellaneous
19.The Mother shall hold all documents belonging to or concerning the child, including passports, medical reports, health care cards, Medicare cards, school documents and the like.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
INTRODUCTION

This final hearing relates to the child X born in 2016 (“the child”). The child is aged seven.
The father is aged 44. The mother is aged 43. Both parents are from Country E.
The parties married in 2013. They separated in November 2019. Since separation, the child has lived with the mother and spent irregular time with the father.
The father commenced proceedings in the then Federal Circuit Court (now Division 2 of the Federal Circuit and Family Court of Australia) by filing an Initiating Application on 8 February 2021, to which the mother filed her Response on 25 May 2021.
On 11 November 2021, the Independent Children’s Lawyer (“the ICL”) was appointed.
On 4 March 2022, interim orders were made by consent, inter alia, that the child live with the mother and spend time with the father from 10.00 am until 2.00 pm every Sunday for a period of four weeks, and thereafter from 9.00 am until 5.00 pm every Sunday.
PROPOSALS
The father seeks orders as set out in his Minute of Order, inter alia, that the parents have equal shared parental responsibility for the child and the child live with both parents on a graduating basis culminating in week about time. It was submitted that in the alternative, orders should be made providing for both weekend and midweek time between the child and the father.
The mother seeks orders as set out in her proposed Minute of Order, inter alia, that she hold sole parental responsibility for the child, the child live with her, and the child spend time with the father on a graduating basis culminating in from after school Friday until 6.00 pm Sunday each alternate weekend and specified overnight school holiday time.
The ICL seeks orders as set out in his Minute of Order, inter alia, that the parents have equal shared parental responsibility for the child, that the child live with the mother, and that the child spend time with the father on a graduating basis, culminating in alternate weekends from Friday afternoon to Monday morning during school term, and a sharing of time during school holidays.
MATERIAL RELIED UPON
The father relied upon:
(a)Initiating Application for Final Orders filed 8 February 2021;
(b)His affidavit filed 25 May 2023;
(c)Notice of Child Abuse Family Violence or Risk filed 8 February 2021;
(d)Affidavit of Ms F filed 25 May 2023, and;
(e)Case Outline filed 28 August 2023.
The mother relied upon:
(a)Further Amended Response to Final Orders filed 28 April 2023;
(b)Her affidavit filed 15 May 2023;
(c)Affidavit of Ms G filed 15 May 2023;
(d)Family Report of Ms H dated 9 June 2022, and;
(e)Case Outline filed 28 August 2023.
The ICL relied upon:
(a)Family Report of Ms H dated 9 June 2022, and;
(b)Case Outline filed 28 August 2023.
The following documents became exhibits:
(a)Exhibit A: Pages 7, 8 and 11 of mother’s tender bundle;
(b)Exhibit B: Pages 19, 20 and 21 of mother’s tender bundle;
(c)Exhibit C: Page 127 of mother’s affidavit – black and white photo of the child’s body
(d)Exhibit D: Bundle of text messages between mother and father;
(e)Exhibit E: Pages 25 and 26 of the mother’s tender bundle, speech therapist’s recommendations;
(f)Exhibit F: Transcript of proceedings in Local Court, and;
(g)Exhibit G: Family Report of Ms H dated 9 June 2022.
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 of the parties 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). In the event of any conflict between the evidence in this section and evidence referred to under the Court’s discussion under section 60CC, the latter evidence shall take precedence.
Both parties gave oral evidence and their demeanour was calm. They both sought to give responsive answers to questions asked of them. They had the assistance of interpreters.
The Court approaches the mother’s evidence with some caution by reason of the following oral evidence she gave.
Firstly, the mother was questioned in relation to paragraph 7 of her affidavit in which she stated, inter alia, that she had found preparing the affidavit very difficult because she had to relive experiences from her relationship with the father while caring for the child and working. In this context, the mother was asked whether she could have given better evidence, to which she replied, “maybe”. The mother was then asked whether her family violence allegations in her affidavit could have been given any better, to which the mother replied that she did not know and referred to possibly giving her solicitor more time (to prepare the affidavit).
And secondly, the mother confirmed that the parties had argued with each other during the relationship. She was then asked whether she was an active participant in those arguments, to which she answered in the negative. The mother was then taken to paragraph 39 of her affidavit in which she referred to an argument with the father in about late 2017 when the argument had become heated and they both raised their voices. The mother again stated that she had not been an active participant in that argument.
The father’s evidence
The Court does not propose to set out the entirety of the father’s affidavit and oral evidence.
The father stated he lives in Suburb B. He is about to start a new business. He presently carries out work in the transport industry.
The father’s new wife currently is living in Country E. He expects her to return to Australia in early 2024. He asserts that she has an approved partner visa. She has previously resided in Australia for two periods, one period of 12 months and another period of three months. The father stated that his new wife has previously spent time with the child on occasions that he spent time with the child on the weekend between 9.00 am and 5.00 pm. He stated that she last saw the child on the Sunday before her last departure from Australia to Country E.
The father stated that apart from his daytime time spent with the child he communicates with the child on a messaging app video call on Mondays and Wednesdays from 6.30 pm to 7.30 pm.
The father stated the child has problems pronouncing certain words, and that she has been assessed by a speech pathologist. He understood that a particular diagnosis had been made for the child regarding her speech difficulties.
The father denied there were previous arguments between himself and the mother about finances. He denied having called the mother a beggar, prostitute or having insulted her family. He denied being physically violent towards the mother.
The father stated that his mother, the mother’s mother-in-law, in her relationship with the mother, was guardian-like.
The father stated that he sent money to the parties’ joint account in Country E when the mother was living in Country E and the father was living in Australia.
The father denied that he insisted to the mother that her wages should be paid into the parties’ joint bank account, asserting that the mother agreed that her wages could be paid into the joint account.
The father confirmed that his mother lived in the parties’ rented apartment at one point. The child slept in the same bedroom as the parties. He stated that it was possible that if someone spoke with a raised voice in one room that the person in another room of the apartment could hear it.
The father confirmed that there was an argument with the mother about a coffee cup; he had asked the mother why she had to react like she did. He stated that later on the parties did have arguments. He gave an example that on one occasion he told the mother very politely that when her mother came to live with the parties he treated her with respect and he expected the mother to do the same with his mother.

The father stated that when his mother arrived to live with the parties, relations were “pretty good” but gradually became bitter.
The father can read English. He had read the Family Report.
The father stated he could not recall speaking to the mother’s mother in late 2019. Again he denied there having been any physical altercation with the mother. He denied having had a fight with the mother.
The father confirmed that he had told the Family Report writer (in mid-2022) that he believed the mother to be mentally ill as her behaviour towards him was not normal.
The father was asked whether he still believed the mother was mentally ill to which he responded that he does not think like that.
It was suggested to the father that he and the mother had difficulties communicating to which the father responded that they can communicate with each other by sending text messages. The father was asked whether he could communicate with the mother in a respectful way, to which the father responded that he always keeps respect by maintaining communications with the mother in text messages. The father stated that the mother often doesn’t respect him and has abused him.
The father stated that the parenting-related courses that he had completed included an anger management course which were completed online. The courses were in English. He stated that one matter that he had learnt from the parenting courses was that the parents should not discuss difficult matters in front of a child.
The father was asked whether he thought he had an anger management problem to which he responded that he was able to manage his anger. He stated that a mediator had suggested he complete the above courses.
The father was asked whether he had learnt anything in his parenting courses in respect to improving communication with the mother. He answered in the affirmative. He stated that the courses dealt with different types of communication including face-to-face communication and through communication apps with a view to improved communication.
The father was asked whether he considered the mother was a liar to which he replied, “not exactly”, and then he stated that he did not regard the mother as having lied in relation to the child.
The father told the Court that the last time the parties spoke face-to-face was at a hospital about a month ago. He stated that at changeovers there is no verbal discussion between the parties. He stated he prefers text message communication. He stated there was no problem if the parties talk to each other (face-to-face).
The father stated that he provided significant care of the child from birth to 12 months because the mother used to work on weekends.
In relation to the father having said to the child during the observation session for the family report, “mummy didn’t let you [see the father]”, the father accepted that such a question may have made the child uncomfortable and it was not appropriate for him to have asked that question.
The father agreed that if the child was spending time between the parties’ respective homes, then his communication with the mother would have to improve for that to work.
The father stated that communication should occur in a safe manner. He was then asked whether he was concerned about his safety when communicating with the mother. In response he stated that the mother had used abusive words towards him when communicating with him.
The father stated to the Court that he was concerned about the possibility of the mother abusing him so he would prefer communications to occur via a parenting app.
The mother’s evidence
The Court does not propose to set out the entirety of the mother’s affidavit and oral evidence.
The mother stated that she can read and write English.
The mother agreed that her position was that the child was safe in the father’s care.
The mother agreed that in relation to her position that the father perpetrated family violence, the court only needed to consider that issue in relation to her communication with the father. She stated that she was fearful of communicating with him. She stated that her proposed orders adequately deal with her fear of communicating with the father. She agreed that she was seeking an order for sole parental responsibility so that she could manage that fear.
In relation to the mother’s proposed Order 3.3 (on page 3 of her proposed Minute of Order) stating that time between the child and the father would occur, inter alia, “At such other and additional times as agreed to between the parents in writing”, the mother agreed that to reach agreement the parties would need to communicate.
The mother agreed that she was concerned about having discussions in person with the father in relation to the child.
The mother agreed, in relation to an incident where the child hurt herself at preschool, that she was so concerned about the child’s injury that she contacted the father and sought his help. In this context the mother stated that she was in panic and needed to call someone. She stated that on attending the child at her childcare she observed the child crying and she was hurt.
The mother stated that in early 2024 she had had text message communications with the father in relation to her request to him to take the child to a medical specialist.
The mother confirmed her proposed Order 8 stating, inter alia, “That in the event that the mother is unavailable to care for the child, then the father shall be given first priority to care for the child…”
The mother was asked whether she reports to the father after the child has attended a health practitioner, to which she replied that she updates him on everything.
The mother agreed that in early 2024, a Sunday when the child was to spend time with the father, she entrusted him to take the child to the D Medical Centre for a medical appointment. The mother stated that she trusted the father to ensure the child’s needs were met by the doctor. She stated that she trusted the father would report back to her accurately what had occurred in such medical appointments.
The mother agreed that in early 2024, she had asked the father to take the child for a speech therapy appointment “next Monday” because she was working that day.
The mother was questioned in relation to the child possibly spending time with the father, during school term times, for three nights each fortnight from after school Friday to before school Monday morning. The mother stated that she had concerns about three nights each fortnight because from her bad experience the father could not control himself. She stated that if the father becomes angry he cannot control himself and she is really worried about the child in these circumstances.
It was then suggested to the mother that she had not put on any evidence as to why two nights each fortnight (Friday and Saturday nights) should not continue to Monday before school. The mother responded that if it was increased slowly it would be better for the child.
It was suggested to the mother that she could not say why the child’s time with the father should not increase to 5 nights each fortnight. The mother responded by stating that she did not know what would happen in the future and that the child cannot sleep without her.
The mother confirmed that she encourages the child to have a good relationship with the father.
The mother was questioned in relation to police charges brought against the father in about late 2019. Again she confirmed that she can read and write English. She stated that she believes she signed a police statement handed to her by the police.
The mother was asked whether she accepted that the child may want to see the father more often, to which the mother responded, “gradually increasing”.
The mother agreed that apart from these proceedings she and the father were getting along and managing the child.
It was suggested to the mother that the text message exchanges between the parties as revealed in Exhibit D indicate that the parties are able to communicate for the benefit of the child. The mother did not agree and stated that she did not know how she could manage to communicate with the father. The mother stated that she was not able to communicate with the father in order to ensure that the child’s medical needs were met.
The mother stated that she would be prepared to use a parenting app rather than using text messages to communicate with the father.
Family Report
The Family Report was prepared by Ms H, Court Child Expert, and is dated 9 June 2022.
The Family Report writer interviewed the parties and the child in mid-2022.
The Court does not propose to set out the entirety of the Family Report.
Under the heading “Child Safety and Wellbeing”, the Family Report writer said:
12.There are concerns about [X]’s development, particularly in regards to her speech.
Under the heading “Mental Health”, the Family Report writer said:
15.There are concerns about [Ms Khera]’s mental health, with [Mr Gazzi] considering she has an unidentified mental health issue because of her alleged adverse behaviour towards him, and [Ms Khera] indicating she has experienced acute stress and anxiety in relation to her experiences of [Mr Gazzi].
Under the heading “Adults”, the Family Report writer said:
21.[Mr Gazzi] said that [X] has difficulties with her language, and while she seems to understand what is being said to her, she cannot clearly articulate herself and very few words can be understood. He noted that she has been prescribed spectacles to assist her with […] sight. [Mr Gazzi] stated that he has spoken to her school, who noted that she has had some difficulties with her language and vision. He said that [Ms Khera] manages [X]’s medical appointments, and has informed him of the outcomes. He said that he is not aware of her having any other significant health issues.
…
24.[Ms Khera] reported that [X] has a speech development issue, and she reported that she has attended a speech pathology consultation. She said that that speech therapist also spoke to [X]’s school, who confirmed that she requires treatment and support. She said that [X] will be involved in group speech therapy to address her speech issues, which commences in [mid]-2022.
25.[Ms Khera] also reported that [X] was assessed by an optometrist who visited her school, and noted that she has some issues with her […] sight and requires spectacles. [Ms Khera] said that this seems to primarily be school based, as it not something she has noticed for [X] having difficulty with while at home. She said that [X]’s teacher has said that she does not always pay attention in class, but otherwise has no other issues.
Under the heading “Family Violence”, the Family Report writer said:
29.[Mr Gazzi] said that he was charged with physically assaulting [Ms Khera] during their relationship, but he was found not guilty. He said that [Ms Khera] has made numerous allegations about him being physically violent towards her, and he denied ever doing so, noting that she would have had significant injuries if her allegations were accurate. [Mr Gazzi] stated that [Ms Khera] has been physically violent towards him, and provided the examples that she threw [an object] at him, and that she has pushed him.
30.[Mr Gazzi] recounted that [Ms Khera] was verbally abusive towards him, and also to the paternal grandmother, when she was in Australia. He said that [Ms Khera] would be verbally abusive in front of [X], and she would lie and be aggressive towards him and the paternal grandmother, such as throwing out the paternal grandmother’s [food] that had been specifically purchased for her while she was in Australia. [Mr Gazzi] alleged that [Ms Khera] made threats to him and the paternal grandmother, and said that she would “show” them, which he understood to mean that she would make false complaints to the police to have him and the paternal grandmother arrested.
…
32.[Ms Khera] said that, during her relationship with [Mr Gazzi], he was physically violent to her including kicking her, slapping her and punching her. She said that this occurred all throughout their relationship, but intensified in 2019. She confirmed that he was charged with [assault], but was found not guilty. [Ms Khera] reported that there was an incident where there was a verbal argument between her and [Mr Gazzi] regarding the paternal grandmother cooking food instead of her ([Ms Khera]), and she went to the bathroom as the argument was escalating and she thought that [Mr Gazzi] was going to hit her. She said that he came into the bathroom and hit her so hard, she could not open her mouth for three days. She said that she did not report this to the police, as at the time she was new to Australia and did not know what she could or should do. [Ms Khera] said that shortly after that incident, there was an occasion where [Mr Gazzi] twisted her finger and injured it, and that was the incident that she reported to the police. She stated that [Mr Gazzi] was aggressive and has made verbal threats against her, such as that if they were living in [Country E], he would have killed her.
…
37.[Ms Khera] stated that [X] has witnessed a lot of verbal abuse towards her from [Mr Gazzi]. She said that [X] has witnessed the two severe occasions of physical violence by [Mr Gazzi], that being when she ([Ms Khera]) could not open her mouth and when he twisted her finger, and [X] was scared and saw her ([Ms Khera]) screaming and crying.
Under the heading “Evaluation”, the Family Report writer said:
49.For her age and developmental stage, [X]’s expressive language ability appeared to be very poor and the vast majority of her words were unable to be deciphered by the Court Child Expert. She was a friendly and outgoing girl but she appeared to be in need of attention to developing her speech which appeared to be significantly delayed. It appeared that [Ms Khera] is attending to this and that [X]’s school is aware of the issue.
50.[Mr Gazzi] also noted that [X] had speech issues, and it is important that [X] receive treatment as is specified by any treating practitioner. If [X] does not receive treatment she is likely to have difficulties with her learning and in her relationships. Although her parents seemed to mostly understand her, any other people, including her peers and other important adults such as teachers, may have difficulty and communication from [X] to others will largely be ineffective. It is important that each parent be involved in any treatment for [X] so that each parent can attend to any at home work that [X] is prescribed in a manner that is recommended by her treating practitioner and that is cohesive and similar in each household.
51.In terms of [X]’s safety with each parent and the quality of the parenting she receives from each parent, [Mr Gazzi]’s main concern was not [X]’s day to day safety with [Ms Khera] or about her ability to provide quality care to [X], but rather that [X]’s emotional well-being and development will be harmed by [Ms Khera] not supporting their relationship. [Ms Khera] presented as desirous of [X] having a relationship with [Mr Gazzi], although she sought for this to be limited based on her concerns about supervision issues, [Mr Gazzi]’s ability to prioritise [X] over his wife, and about the impact on [X] of witnessing family violence.
…
55.[Mr Gazzi] alleged that [Ms Khera] has issues with her mental health, although he was unable to specify what the issues were, beyond considering her to be “not normal”. [Ms Khera] reported that she experienced stress and anxiety in relation to her experiences in her relationship with [Mr Gazzi], and was planning on seeking support and treatment for this. If [Ms Khera]’s experiences of [Mr Gazzi] in relation to family violence are accurate, then her having issues with anxiety and managing stress would be considered a typical and predictable reaction to those life experiences.
56.If [Ms Khera] has experienced family violence perpetrated by [Mr Gazzi], then her issues with her mental health are considered a psychological injury caused by [Mr Gazzi], and not a deficit in her personality or her parenting. If [Ms Khera] is able to manage her mental health through treatment by way of counselling and/or medication as is determined by her treating medical or allied health practitioners, then this would be considered adequate and appropriate. [Ms Khera] impressed as willing and able to obtain such treatment as required.
57.There are allegations that [Mr Gazzi] perpetrated family violence against [Ms Khera] during their relationship. The account provided by [Ms Khera] during interview and in her Affidavit material is one that contains very serious allegations of physical family violence, resulting in physical injury to her. She reported one particular incident where her face was so injured such that she could not open her mouth for several days, and another incident whereby her finger was injured. She described that [Mr Gazzi] was physically and verbally abusive towards her throughout their relationship, but this intensified towards the end of their relationship. She also described that he had threatened to kill her, and she described that he was verbally and emotionally abusive during their communications after their separation. She further described that he would attend her residence and be abusive outside the property.
58.[Ms Khera] described behaviour from [Mr Gazzi] that included physical violence, intimidation and causing fear, threatening behaviour, and verbal and emotional abuse. She reported that [X] witnessed the abuse and the violence. A parent who perpetrates family violence is considered to be making a choice to cause harm to the victim, and it is also considered a parenting choice to cause harm to the child.
59.A parent perpetrating family violence causes harm to the victim(s), which includes the children, in multiple ways. In general, it can cause trauma to children by effecting their physical and emotional safety, negatively effects family functioning by causing housing instability, loss of contact with friends and family, and educational difficulties for children. It also has a negative effect on the victim parent’s parenting by causing or exacerbating mental health issues, and making that parent less available to the children as they are preoccupied with managing the perpetrator parent’s behaviour. There is also loss of daily routines for the children, when there is family violence occurring in the household.
60.It is not beyond possibility that [X]’s speech development may have been impacted by her witnessing family violence. If her development was impacted by trauma (experiencing family violence), then her development may have been disrupted. If a young child experiences trauma, this can also impact on their capacity to attain future developmental milestones, as future development relies on the foundation of reaching previous developmental milestones.
61.Furthermore, experiencing family violence as a young child would have put at risk the formation of important attachment relationships in the context of having a secure, calm and nurturing environment. If [Mr Gazzi] did perpetrate family violence, he also chose to cause harm to his child in this way. In addition, if [X] was exposed to family violence prenatally, she would have experienced physical maternal stress in utero, which may have impacted on her neurological development. If accurate, these are all considered parenting choices of abuse that [Mr Gazzi] made against his unborn/young child at the time, and are not of a parenting standard that would be considered in any way acceptable.
…
64.[Mr Gazzi] alleged that [Ms Khera] was abusive towards him, including throwing [an object] at him. If [Ms Khera] was the victim of family violence from [Mr Gazzi], then if she acted in a manner of throwing something at him, this may have been in the context of violent resistance. There were also allegations that she was abusive to the paternal grandmother, however, what was described does not appear to constitute family violence, but rather a conflicted relationship with poor emotional regulation that at times escalated to physically violent acts. It is possible that, if [Ms Khera] was a victim of family violence from [Mr Gazzi] and the paternal grandmother did not intervene or inflamed the situation, [Ms Khera] may have developed a negative perception of her based on her experiences. It is also possible that the paternal grandmother had limited resources to act protectively or intervene in [Mr Gazzi]’s alleged behaviour.
65.With regards to the allegations that [Ms Khera] threw [an object] at [Mr Gazzi], if he was violent towards her and is considered the primary perpetrator, her behaviour may have been violent resistance, or behaviour that occurs in self-defence, and if this is the more accurate explanation, [Ms Khera] would not be considered a perpetrator of family violence.
66.If [Mr Gazzi] is a family violence perpetrator as alleged, as previously discussed, it would also be considered that he made a choice to perpetrate violence against [X]. A parent who perpetrates family violence will also have associated deficits in their parenting, including being likely to be more punitive and rigid, and more likely to engage in excessive physical discipline and tolerate challenging childhood behaviour.
…
70.Even if [Mr Gazzi] did provide substantial care to her as an infant, at her age now and because of the disruption in their relationship over several years, it is unlikely that that would be adequate for them to have a close relationship now, and it would be considered more likely that they have a developing relationship.
…
73.Given the history of the parenting arrangements, the nature of [X]’s relationship with [Mr Gazzi], the family violence allegations, and the co-parenting relationship, it is not recommended that [X] live in an equal time arrangement. [Mr Gazzi] appeared to be lacking in insight in regards to his view that [X] would be able to live with him for seven nights a fortnight immediately with no issues, despite their limited relationship.
…
81.[Ms Khera] considered that [X] should spend some time with [Mr Gazzi] and have a relationship with him and it may be that an alternate weekend is appropriate. However, if there is veracity to the family violence allegations, alternate weekends would be considered the maximum amount of time that [X] should spend with [Mr Gazzi], for the reasons outlined previously related to the risks posed to her by his likely problematic parenting.
…
83.If there is no veracity to the allegations of family violence against [Mr Gazzi] and [Ms Khera] is not being overly supportive of [X] and [Mr Gazzi] developing their relationship for other reasons, then [X] may benefit from spending more time with [Mr Gazzi]. It appears that, so far, [Ms Khera] has not been obstructive in [X]’s relationship with [Mr Gazzi], and it was rather that he did not seek substantial time with her to develop her relationship with him. Giving consideration to the co-parenting relationship, and the history of [X]’s parenting arrangements, in this scenario it would be recommended that [X] spend alternate weekends with [Mr Gazzi], from after school Friday until before school Monday, with additional telephone contact twice per week.
84.In the absence of safety concerns, it appears likely that [X] will be able to adjust relatively quickly to the above arrangement, however, for her comfort, it is recommended that this occur incrementally over a short period of time (for example, adding one night per month). With regards to school holiday time, [X] may be able to spend some extended time with [Mr Gazzi], although at her current age and over the next two to three years, she may find the summer holidays difficult to be away from [Ms Khera] for three weeks, and it would be suggested that this be a week about arrangement for the next three years, unless otherwise agreed.

The Family Report writer gave oral evidence. The Court does not propose to set out the entirety of this evidence.
Counsel for the ICL cross-examined the Family Report writer about her recommendations as to time with the father:
[COUNSEL]And knowing that the mother’s stated concern is about communication, it seems that you would still say that from Friday through to Monday is probably the safer option than Friday through to Sunday afternoon; would that be right?
[WITNESS]In terms of [X] witnessing parental conflict, yes.
[COUNSEL]Right. Is there any other reason that – if there’s no unacceptable risk – that you suggested from Friday through till Monday morning?
[WITNESS]If there was no risk related to family violence, that arrangement, in my mind, wasn’t so much that was – would – would require a significant amount of communication between the parents. It would allow [X] to have recreational time with both parents, or weekend time with both parents. And additionally, it would allow [X] to have her father involved in picking her up from school, taking her to school on the Monday. So in – in that scenario, she would have that experience of having both parents involved in both parts of her life – that is, day-to-day routine, school, and recreational weekend time.
[COUNSEL]All right. And absent violence, at paragraph 84, or absent safety concerns, you say that the child may be able to spend some extended time with the father in the school holidays?
[WITNESS]Yes.
[COUNSEL]And correct me if I’m wrong, but it seems from reading that paragraph that you’re actually suggesting half school holidays with each parent.
[HIS HONOUR]        Well, she referred to – second-last line of paragraph 84:
It would be suggested that this be a week-about arrangement for the next three years unless otherwise agreed.
[COUNSEL]Yes. So that’s half the - - -?
[WITNESS]Half, but broken up so it’s not a three-week block.
[COUNSEL]Yes. But you do suggest that a three-week block might be possible when the child is a bit older?
[WITNESS]Yes.
…
[COUNSEL]All right. Now, during the school term, you’re suggesting Friday through to Monday means that there’s less requirement for communication, and that is – and in holidays, presumably, there’s less requirement for communication because the child is not moving back and forth to school; is that right?
[WITNESS]Yes.
The Family Report writer was asked about the level of communication between the parties:
[HIS HONOUR]        Does – do the text messages in Exhibit D that you’ve just read – do they shed any light, in your view, on how these parties in the future may be able to communicate with each other on day-to-day matters affecting the child?
[WITNESS]On day-to-day matters, I think that it would be drawn out, based on this – drawn out, and back and forth for who knows how long. And if it’s a day-to-day matter and it becomes quite simple matters that are, “Who’s going to pick this child up and take her to her [sports] lesson?” and that becomes a back-and-forward, it just creates a situation for [X] where she will not be able to enjoy those type of things because her parents are – there’s so much back-and-forth about day-to-day, simple things.
[HIS HONOUR]        Did you form any impression as to the level of cooperation between the parties from exhibit D? Did it strike you, for example, as a highly cooperative, communicative relationship between the parties - - -?
[WITNESS]No.
…
[HIS HONOUR]        That is, if the parties were – if the child was spending more time with the father rather than less time, there would need to be a greater level of cooperative communication between the parties, wouldn’t there?
[WITNESS]Yes.
[HIS HONOUR]        Yes. And that’s particularly the case in an equal time relationship, isn’t it?
[WITNESS]Yes, absolutely.
[HIS HONOUR]        There has to be, would you agree, a high level of cooperative communication between the parties in that sort of arrangement?
[WITNESS]I would go so far as to say it has to be a positive co-parenting relationship for equal time to be considered.
…
[HIS HONOUR]        So are you saying, [Ms H], just in summary from this last passage of cross-examination, that even assuming the mother’s family violence allegations are not made out, on the material that you’ve considered – putting the family violence allegations to one side – you still have a concern about the quality of communication that is able to occur between these parties in relation to the child?
[WITNESS]Yes.
[HIS HONOUR]        And you’ve got a concern, do you, about the nature and extent of their cooperative coparenting relationship for this child?
[WITNESS]               Yes.
When cross-examined by counsel for the father, the Family Report writer gave the following evidence as to the possibility of midweek time:
[COUNSEL]Is what you tell the court that if his Honour makes a finding that there’s no family violence and his Honour makes a finding that absent these proceedings, the parties communicate effectively, that there isn’t some other reason as to why midweek time couldn’t be a possibility for [X] and the father?
[WITNESS]That would then become a whole different assessment with a whole different set of circumstances where there’s no family violence and parties get along really well, and have an excellent coparenting relationship and all of these issues don’t exist, anymore. In that scenario, then, I would usually consider weekend time plus midweek time to allow for the child to benefit from having both parents involved in recreational time as well as routine day-to-day school life. That would have been something I would’ve considered in that scenario.
[COUNSEL]Is there an age that [X] will get to where, given the current state of play, she would be able to cope with midweek time?
[WITNESS]Absenting all those other issues, she’s of an age now where she could cope with that. However, the caveat to that is I think there would need to be a lead up to that and not just occur suddenly, but it would also be dependent on her. When I interviewed these parents and based on what I’ve seen today, there were real concerns about her development as well. So you can’t just look at age on its own. It’s also development and developmental issues for the child as well.
[COUNSEL]So if his Honour made a scheme of orders that increased over a period of time which resulted in [X] spending midweek time with the father, would that be an appropriate way to get to her spending midweek time?
[WITNESS]If all those other issues weren’t there, yes.
Counsel for the ICL asked certain questions of the Family Report writer:
[COUNSEL]If you take it from me that [X] has been diagnosed with a moderate developmental language disorder that’s in respect of her expressive language skills, and she’s within the low average range for her receptive language skills and she has ongoing speech therapy to assist her within the school environment. You were asked some questions about the communication between the parents with respect to managing, in particular, her medical needs. Would you agree with me that a child with – that [X] is not just an ordinary child, shall we use that word. That she has got some special needs?
[WITNESS]               Yes.
[COUNSEL]Would you agree with me that that requires an extra layer of competent communication between the parties?
[WITNESS]Yes. And that’s what I was trying to explain when I was speaking about projected communication needs for [X] because at the time of interview, some of those – her – some of those additional needs had already been – well, there was queries around them and my impression of [X] was that she did have some – there was certainly speech issues there quite significantly.
…
[COUNSEL]Needless to say, she has been diagnosed. Now, this is going to require cooperation between the parents, isn’t it, in terms of the kind of work that [X] would do within each household outside of school to assist with her speech therapy?
[WITNESS]               Yes.
[COUNSEL]And once again, that requires an extra layer of agreement and communication between mother and father, doesn’t it?
[WITNESS]               And cooperation.
The Court accepts the evidence of the Family Report writer subject to any contrary view expressed by the Court below, whether express or implied, in its discussion of relevant matters under s 60CC of the Act.
RELEVANT LEGAL PRINCIPLES
Section 60B of the Act sets out the objects of Part VII of the Act relating to children that inform the making of parenting orders.
In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration: section 60CA of the Act.
Section 60CC of the Act provides that in determining what is in the child’s best interests, the Court must consider the matters set out in subsections (2) and (3).
Under section 60CC(2A) of the Act, the Court, in applying the meaningful relationship primary consideration and the need to protect primary consideration under section 60CC(2) of the Act, is to give greater weight to the need to protect primary consideration.
When making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child: section 61DA of the Act. The presumption may be rebutted if there are reasonable grounds to believe a parent (or a person who lives with the parent) has engaged in abuse of the child or family violence: section 61DA(2).
If the presumption of equal shared parental responsibility in relation to the child applies, and is not rebutted, the Court must firstly consider whether the child spending equal time with each of the parents would be in the best interests of the child and reasonably practicable.
If equal time is found not to be in the child’s best interests, or impracticable, as a result of consideration of one or more of the matters in section 60CC, the Court must consider making an order that the child spends substantial and significant time (as defined in section 65DAA (3)) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in section 60CC, or impracticable.
If neither equal time nor substantial and significant time is considered to be in the best interests of the child, or impracticable, then the court may make such orders in the discretion of the court that it thinks proper, being orders that are in the best interests of the child, as a result of consideration of one or more of the matters in section 60CC: sections 60CA, 60CC, 65D.
The best interests of the children
Section 60CC considerations
(2)(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
In Saif & Saif [2020] FamCA 119, Foster J stated:
95.The reality is, in the context of this interim hearing, that the Court is obliged to have regard to the maintenance and promotion of the children’s relationships with both parents. A relationship may be less than optimal but nonetheless meaningful: (Godfrey & Sanders [2007] FamCA 102 at [33]-[36]; Sigley & Evor (2011) 44 Fam LR 439 at [182]).
96.In Mazorski v Albright [2007] FamCA 520, Brown J considered ordinary definitions of the term “meaningful” and observed:
[26]What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
97.In McCall & Clark [2009] FamCAFC 92 at [121] the Full Court accepted as appropriate this interpretation by Brown J of “meaningful relationship”.
The child has a meaningful relationship with the mother and the child will benefit from the continuation of that relationship. The mother, for most of the child’s life, has been her primary carer.
The Court will now consider the child’s relationship with the father.
The parties separated in about November 2019. At that time the child was aged 3 years. The Court finds that it is likely that at separation the child had a meaningful relationship with the father. However, it is likely that that relationship dissipated to a significant extent by reason of the child only spending quite limited time with the father, particularly up to 4 March 2022 when interim parenting orders were made.
An interim ADVO was made for the protection of the mother and child against the father shortly after the separation. In about late 2019 the mother went to the Suburb B Local Court to cancel this ADVO because, inter alia, she knew the child missed the father. The Local Court declined to cancel the ADVO. A final ADVO was made by consent and without admissions against the father in early 2020 for one year.
From mid-2020 until early 2021 the father saw the child about once a fortnight at her childcare centre but only briefly. After the ADVO expired in early 2021, the child began to spend some time with the father; it was mostly on occasional weekends, for about three hours, which arrangement continued until interim parenting orders were made on 4 March 2022. Since those orders the child has been spending time with the father on most Sundays.
The father, without the mother’s permission, had the child spend overnight at his home in late 2022. Since separation the child has spent overnight time with the father on about three occasions, all without the mother’s consent. Since interim parenting Orders of 20 February 2023, the father has been calling the child on most Mondays and Wednesdays through an online messaging app.
The Family Report writer had observed a positive observation session between the child and the father in mid-2022 and had opined that at that time their relationship was a developing one. Since that time, the child has spent regular time with the father on Sundays. It is likely that the child now has a meaningful relationship with the father.
Should the Court make the ICL’s proposed final parenting orders, which provides, inter alia, for the child’s time with the father during school term times to ultimately reach three nights each fortnight, it is likely that the child’s meaningful relationship with the father can be maintained and, importantly, enhanced.
The Court is concerned that the mother’s proposed final parenting orders will militate against the child’s meaningful relationship with the father becoming enhanced.
The Court is concerned that the father’s proposed final parenting orders, seeking, inter alia, an equal time arrangement, will result in conflict between the parties and which could well lead to the child’s meaningful relationship with the father being jeopardised.
The Court gives significant weight to this meaningful relationship primary consideration.
(2)(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The Court finds that during the parties’ relationship the parties, on occasion, engaged in significant verbal disputation with each other and where both parties raised their voices.
On the balance of probabilities, the Court does not accept that during the parties’ relationship the father perpetrated physical violence against the mother, for the following reasons:
(a)The father has consistently denied such alleged violence, both to the police and in these proceedings (including in his oral evidence).
(b)The only medical record in evidence, adduced by the mother, related to a sore finger. No health professional evidence was adduced by her in relation to, inter alia, her allegation that the father punched her in the face leaving her with a sore jaw.
(c)The mother gave inconsistent evidence in relation to the circumstances of alleged family violence committed by the father in about late 2019 when comparing her oral evidence before the Local Court in early 2020 and her evidence in these proceedings.
(d)Whilst the Court acknowledges that there are often sound reasons why victims of domestic violence do not report such violence to the police, the Court nevertheless takes into account that the mother had not reported to the police, in a timely fashion, alleged instances of family violence by the husband in about early 2014, early 2015, and in late 2017.
(e)The Court attaches no weight to the learned Magistrate’s remarks at the Local Court hearing in early 2020 that the father may well have perpetrated family violence against the mother on occasions other than on the charged occasions of assault the subject of the Local Court criminal hearing. The father was ultimately found not guilty in the Local Court.
(f)The Court acknowledges the father did not adduce affidavit evidence from his mother in relation to certain of the mother’s family violence allegations; however, even accepting that such evidence, if called, would not have assisted the father’s case on this issue, the Court would still not make family violence findings as contended for by the mother.
(g)The Court found the evidence of the maternal grandmother to be unreliable in relation to her allegations of family violence by the father and it does not accept that evidence. In this regard it was telling that in her oral evidence she asserted initially, contrary to her affidavit, in respect to an alleged incident involving the father trying to hurt the mother with a weapon, that the father had taken the weapon from her (as opposed to having allegedly taken the weapon from a table). She had also stated in her oral evidence, which was not mentioned in her affidavit, in relation to this incident, that the father had pulled the mother’s hair, and pushed and kicked the mother.
The Court does not accept that the father perpetrated coercive and/or controlling family violence against the mother during their relationship. Inter alia, their joint savings were quite modest, and the Court accepts the father’s and ICL’s submissions in this context.
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
Not applicable. The child is of tender years.
(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 the meaningful relationship primary consideration above. The child would appear to have a positive relationship with the maternal grandmother. When the father’s wife was present in Australia in 2022 – 2023, she had a positive relationship with the child.
(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 parties have taken such opportunities.
(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 parties have fulfilled their obligations in this regard.
(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 meaningful relationship primary consideration.
The child’s meaningful relationship with the mother should not be adversely affected by the ICL’s proposed final parenting orders (see the ICL’s proposed Minute of Order) provided the child’s time with the father during school term time is increased gradually (as proposed by the ICL) and block time during school holidays commences at the end of Term 2 (as proposed by the ICL).
(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
Not applicable. The parties live near to each other.
(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 parties have such capacities.
(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
The parties hail from Country E. They both speak Country E language. They both have extended family in Country E. The child has some verbal language difficulties however she receives treatment for this issue and both parties are attuned to her need for such treatment.
(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 parties have usually demonstrated appropriate attitudes to the child and to the responsibilities of parenthood.
(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
The Court refers to its discussions above under the meaningful relationship primary consideration in relation to a previous interim ADVO and a final ADVO by consent and without admissions. There is no family violence order presently in force.
(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
In the view of the Court, the ICL’s proposed orders, in contrast to the mother and father’s respective proposed final parenting orders, would be least likely to lead to the institution of further proceedings in relation to the child. In this regard the Court refers to its discussions above under the meaningful relationship primary consideration in particular.
(3)(m) Any other fact or circumstance that the Court thinks is relevant
As to overseas travel, the Court has a concern with the father’s proposed overseas travel orders which would effectively permit either parent to take the child overseas (including to Country E which is not a party to the Hague Convention). The mother’s affidavit at paragraphs 129 – 133 raises concerns that should the father take the child to Country E he may not return to Australia with her in a timely manner. In the view of the Court there was otherwise insufficient evidence adduced by the parties to justify, in the best interests of the child, the father’s proposed overseas travel orders being made.
Parental responsibility, equal time and substantial and significant time
The Court having found, on the balance of probabilities, that the father did not engage in family violence as alleged by the mother, the presumption of equal shared parental responsibility applies.
The Court considers that it is in the child’s best interests that the parents equally share parental responsibility. In this respect, the Court accepts the submissions of the father and the ICL that the evidence reveals:
(a)There is no issue between the parties as to the child’s religion or schooling;
(b)Whilst the child’s development and related treatment is a current issue for the parties, there is no evidence that the parties have disagreed, for example, as to the need for the child to see a speech pathologist. The issues between the parties in this respect have been primarily logistical with respect to obtaining referrals and attending appointments;
(c)There is probably sufficient communication between the parties to enable them to reach agreement on major long-term issues without conflict and in a timely fashion.
As to equal time, the nature and extent of the parties’ level of communication and co-parenting relationship is far from adequate to facilitate an equal time arrangement operating successfully. In the view of the Court, an equal time arrangement will likely result in conflict between the parties and which could well lead to the child’s meaningful relationship with the father being jeopardised. In this context, the parties do not regularly speak with each other face to face; this last occurred at a hospital earlier in the year. The father prefers to communicate with the mother via text messages. The mother is apprehensive about encountering the father face to face, including at changeovers, for fear of disputation occurring, and she too prefers text message communication. The fairly recent text message communication of the parties revealed in Exhibit D indicates that, whilst the parties can communicate to some extent with each other in relation to the child through such messaging, the content of their messaging is often terse and impliedly critical of the other person.
As to substantial and significant time, the ICL’s proposed Orders, by Stage 3 (Order 3.3), comprising overnight time from after school Friday to before school Monday each fortnight, probably amounts to such time. As to the child spending further overnight time beyond Stage 3, the Court is of the view, having regard to the above discussed limitations in the parties’ level of communication and co-parenting relationship, that any such further time between the child and the father, including mid-week time in the off week, would likely lead to conflict between the parties because they would not be able to sufficiently communicate and co-operate in respect to parenting the child during such further time; such further time would not be in the best interests of the child.
For the purposes of s 65DAA(1)(b), equal time or substantial and significant time would probably be practicable. However, for the reasons discussed above, the Court does not propose to make an equal time order.
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 final parenting orders:
Parental Responsibility
1.That the parties have equal shared parental responsibility for the child, X born in 2016 (‘the child’).
Child’s live and spend time with arrangements
2.That the child shall live with the Mother.
3.That the child spend time with the Father as follows:
(a)Stage 1: From the commencement of these Orders and continuing for a period of four (4) weeks, from the conclusion of school on Friday (or otherwise 3.00 pm) until 6.00 pm on Saturday, and each alternate weekend thereafter;
(b)Stage 2: Commencing upon the conclusion of Order 3(a) and continuing for a period of four (4) weeks, from the conclusion of school on Friday (or otherwise 3.00 pm) until 6.00 pm on Sunday and each alternate weekend thereafter;
(c)Stage 3: Commencing upon the conclusion of Order 3(b), from the conclusion of school on Friday (or otherwise 3.00 pm) until commencement of school or 9.00 am Monday and each alternate weekend thereafter.
(d)During the school holidays as follows:
(i)During the 2024 school holiday periods at the end of Term 2 and each school holidays other than Term 4 school holiday:
A.Unless otherwise agreed, from conclusion of school or 3:00pm on the last day of the school term for one half of the holidays;
(ii)Commencing from Term 4 2024 school holidays, and each Term 4 school holiday thereafter:
A.On a week about basis commencing on the first Friday of the school holiday, unless otherwise agreed.
(e)At such other and additional times as agreed to between the parents in writing.
4.That the child shall spend additional time with the Father as follows:
(a)On Father’s Day from 10.00 am until 6.00 pm;
(b)On the child’s birthday from 4.00 pm to 7.00 pm if on a school day, otherwise 9.00 am to 1.00 pm on any other day; and
(c)On Eid Al Fitr and Eid Al Adha as agreed to between the parents in writing (via text message).
5.That for the purposes of the child spending time with the Father, and unless otherwise agreed to between the parents in writing, changeover shall occur as follows:
(a)On occasions that changeover coincides with the commencement or conclusion of school, then changeover shall occur with the Father collecting/delivering the child to the child’s school; and
(b)At all other times, the Father or his nominee shall pick up the child from, and return the child to, the Mother (or her nominee) outside Suburb B Library.
6.That notwithstanding any other Order or arrangement herein, the child shall live with the Mother on the following days of special significance:
(a)On Mother’s Day from 10.00 am until 6.00 pm;
(b)On the child’s birthday, from 1.00 pm until 5.00 pm (if not on a school day);
(c)On Eid Al Fitr and Eid Al Adha as agreed to between the parents in writing (via text message);
AND in the event the child is spending time with the Father during the above periods, then the Mother shall collect the child from the Father outside Suburb B Library at the commencement of the periods and return the child to the Father outside Suburb B Library at the conclusion of the periods (if the child is due to spend time with the Father).
7.That in the event that the Mother is unavailable to care for the child, then the Father shall be given first priority to care for the child and shall make all necessary arrangements to facilitate the care of the child until such time as the Mother indicates she is in a position to resume the care of the child.
Communication
8.That for the purposes of communicating information about the child between the parents, and unless in the case of an emergency in which case the parents shall communicate via mobile telephone, the parents shall:
(a)download and subscribe to the OurFamilyWizard or such other agreed equivalent co-parenting app within seven (7) days from the making of these Orders. The parties shall pay their share of the subscription fee or seek a waiver, and ensure that their subscription is renewed every year thereafter;
(b)use the online communication feature to share all key documentary matters regarding the child, including school reports;
(c)use the Calendar feature to arrange any agreed variations to the order and/or record any medical appointments;
(d)use the Expense feature to record any child related expenditure that relates to the Orders;
(e)use the Messaging feature when information cannot be conveyed in the Calendar, Expense, and communication features.
9.That the Father is permitted to communicate with the child by telephone or video call every Monday and Wednesday between 6.30 pm and 7.00 pm, and for that purpose, the Father shall initiate the call to the Mother’s mobile telephone and the Mother shall do all things necessary to facilitate such communication including ensuring the mobile telephone is switched on, fully charged and within range of reception.
10.That the Mother be permitted to communicate with the child via telephone or video call every day that the child is spending overnight time with the Father between 6.30 pm and 7.00 pm, and for that purpose, the Mother shall initiate the call to the Father’s mobile telephone and the Father shall do all things necessary to facilitate such communication including ensuring the mobile telephone is switched on, fully charged and within range of reception.
Restraints
11.That the Mother and Father are restrained from:
(a)Discussing any proceedings between them or the contents of any documents filed in or intended for use in any proceedings to, with or in the presence or hearing of the child;
(b)Permitting any person from discussing any proceedings between the parents or the contents of any documents filed in or intended for use in proceedings to, with or in the presence or hearing of the child;
(c)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or a member of that parent’s extended family in the presence or hearing of the child;
(d)Permitting any other person from abusing, insulting, belittling, rebuking, or otherwise denigrating the other parent or a member of that parent’s extended family in the presence or hearing of the child;
(e)Questioning the child concerning the personal and work matters of the other parent.
Courses/Programs
12.That within 14 days, the Mother and Father shall enrol in and subsequently complete the earliest available ‘Keeping Kids in Mind or Parents Not Partners course (by C Family Services)’ parenting program, and provide the other parent with evidence of their enrolment and a certificate of completion upon completing the course.
Provision of Information
13.That the Mother and Father shall keep one another informed in writing via the parenting application or text message/phone call in an emergency, of:
(a)Any significant illness, significant injury or significant medical problem suffered by the child whilst in their care;
(b)Any medication that has been prescribed for the child; and
(c)Their respective telephone number(s) and email address and the parents shall advise one another within twenty-four (24) hours should these details change.
Medical Issues
14.That the Mother and Father shall ensure that the child attends upon the same medical facility as nominated by the Mother for her general medical care, that being D Medical Centre in Suburb B, except in the case of an emergency or otherwise if by agreement. This Order authorises any treating health professional to communicate with the Mother and Father about the condition and treatment of the child.
15.That each of the parents shall ensure that they comply with all reasonable recommendations of the child’s treating medical practitioners and/or allied health professionals (such as Speech Therapists).
Schooling
16.That the Mother and Father be authorised, by this Order, to obtain information about the child’s educational progress and/or other school related activities and for this purpose, the school attended by the child is to supply both parents all copies of newsletters, school reports, photograph order forms, and copies of certificates and awards obtained by the child at the request of each parent and at their own cost.
17.That the parents are each permitted to attend all events involving the child which ordinarily allow for parental attendance including:
(a)Sporting events;
(b)Extracurricular activities; and
(c)School functions and events including concerts, school assemblies, sports days, parent and teacher interviews and school functions.
18.That the Mother have leave to provide a copy of these Orders to the child’s school, any After School Care provider, and any extra-curricular activity provider at which the child may attend from time to time.
Miscellaneous
19.The Mother shall hold all documents belonging to or concerning the child, including passports, medical reports, health care cards, Medicare cards, school documents and the like.

I certify that the preceding one hundred and twenty-four (124) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun.
Associate:
Dated: 7 May 2024

File number(s):	PAC 580 of 2021
Judgment of:	JUDGE NEWBRUN
Date of judgment:	7 May 2024
Catchwords:	FAMILY LAW – PARENTING – Best interests of children – Orders made.
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 65D, 61DA(3), 65DAA (3)
Cases cited:	Saif & Saif [2020] FamCA 119
Division:	Division 2 Family Law
Number of paragraphs:	124
Date of hearing:	25 – 27 March 2024
Place:	Parramatta
Counsel for the Applicant:	Mr Robertson
Solicitor for the Applicant:	Lyons Law Group
Counsel for the Respondent:	Ms Stolier
Solicitor for the Respondent:	Legal Aid NSW
Counsel for the Independent Children's Lawyer:	Mr Reeves
Solicitor for the Independent Children's Lawyer:	Harb Lawyers

PAC 580 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR GAZZI Applicant
AND:	MS KHERA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE NEWBRUN
DATE OF ORDER:	7 MAY 2024