Gill & Ingram - [2022] FedCFamC2F 109

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gill & Ingram [2022] FedCFamC2F 109

File number(s): MLC 10289 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 8 February 2022

Catchwords: FAMILY LAW – Parenting – whether or not either parent is a risk to the children – whether or not the parents should exercise equal shared parental responsibility – treatment of medical issues – family violence allegations – parenting coordinator.

Legislation: Family Law Act 1975 (Cth), pt.VII, ss.4AB, 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA

Cases cited: Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Waterford & Waterford [2013] FamCA 33

Division: Division 2 Family Law

Number of paragraphs: 197

Date of hearing: 29, 30 November 2021 and 1 December 2021

Place: Melbourne

Counsel for the Applicant: Mr Stanley

Solicitor for the Applicant: Kennedy Partners

Counsel for the Respondent: Ms Johnston

Solicitor for the Respondent: Hargreaves Family Lawyers
ORDERS

MLC 10289 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GILL

Applicant

AND:
MS INGRAM

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

8 FEBRUARY 2022

THE COURT ORDERS THAT:
RECITALS
The Court notes the following definitions for the purposes of these Orders:
A.“The Children” means the children:
a.X born in 2009 (“X”); and
b.Y born in 2013 (“Y”).

B.“The Children’s Specialist Treating Practitioners” include, but are not limited to:
a.Dr B, paediatrician, of C Clinic
b.Dr D, paediatric gastroenterologist, of Paediatric Gastroenterology Victoria
c.Ms E, Occupational Therapist, of F Clinic
d.Dr G, Principal Dentist, of Town H Dental Clinic
e.Dr PP, Associate Dentist, of Town H Dental Clinic
f.Dr J, Associate Dentist, of Town H Dental Clinic; and
g.Any other medical or allied health professional that the Children, or either of them, attend upon from time to time, save for any general practitioner at the K Medical Group and the Children’s General Practitioner.

C.“K Medical Group” means the K Medical Group, L Street, Town K, in the State of Victoria.
D.“The Children’s General Practitioner” means Dr M of K Medical Group.
E.“School Terms” means the Victorian Gazetted Term 1, 2, 3 and 4 school terms.
F.“School Term Holidays” means the Term 1, 2 and 3 school term holiday periods commencing at the conclusion of school on the last day of term and concluding at the commencement of school on the first day of the new term.
G.“Long Summer School Holidays” means the December/January school holiday period commencing at 4:00pm on Christmas Eve and concluding at 4:00pm on 24 January.
H.“The Father’s Roster” means the Father’s Employer “B Shift” Roster which operates on an 8-day cycle as outlined below:
Day 1: Day Shift from 8:00am until 6:00pm
Day 2: Day Shift from 8:00am until 6:00pm
Day 3: Night Shift from 6:00pm until 8:00am
Day 4: Night Shift from 6:00pm until 8:00am
Day 5: Rostered Day Off (being Night 5)
Day 6: Rostered Day Off (being Night 6)
Day 7: Rostered Day Off (being Night 7)
Day 8: Rostered Day Off

THE COURT ORDERS THAT:
Parental Responsibility
1.The Mother and the Father share parental responsibility for the making of major long term decisions for the Children with respect to:
(a)The Children’s religion; and
(b)The Children’s names.

2.Save as provided for in order 1, the Mother have sole parental responsibility for the Children including, but not limited to:
(a)The Children’s education subject to Order 5; and
(b)The Children’s health;

3.For the purposes of order 2, in relation to any proposed major long term decision to be made for the Children, or either of them, in relation to education or health matters, the Mother shall:
(a)Advise the Father by email of any proposed decision 14 days prior to making the decision (save for in the event of an emergency in which case the mother shall be permitted to make the decision without notice to the father);
(b)Seek the Father’s opinion in relation to the proposed decision;
(c)Take the Father’s opinion into account in making the decision, provided the Father’s opinion is provided within 7 days of the mother’s email to him pursuant to order 2(a) (noting that nothing in this order limits the mother’s ultimate decision making power); and
(d)Notify the Father in writing within 7 days of making the decision.

Parenting Coordinator
4.The parties forthwith do all things necessary to jointly appoint Ms N in her capacity as Parenting Coordinator, or such other Parenting Coordinator as the parties may agree in writing (“Parenting Coordinator”), for a period of 24 calendar months from the date of these orders and for this purpose:
(a)The parties be at liberty to provide a copy of the Family Report authored by Ms W dated 7 June 2021 and the Psychiatric Assessment authored by Dr P dated 20 August 2021 to the Parenting Coordinator;
(b)The parties shall do all things reasonably requested of them by the Parenting Coordinator to assist with the implementation of the parenting arrangements as provided for in these Orders;
(c)The parties attend upon the Parenting Coordinator once per quarter (i.e. 4 times per year) at times to be agreed unless otherwise agreed between the parties in writing;
(d)The costs of the Parenting Coordinator be shared equally between the parties;
(e)The parties attendances upon the Parenting Coordinator be non-confidential and fully reportable to the Court upon the written request of one or both of the parties, or by Order of the Court;
(f)The parties be at liberty to provide a copy of these Orders to the Parenting Coordinator;

5.The Mother will not withdraw X’s enrolment at Q High School without first obtaining the consent of the Father in writing or an Order of this Honourable Court.

Living Arrangements
6.The Children live with the Mother.
7.The Children spend time and communicate with the Father during School Terms on Night 5, Night 6 and Night 7 (concluding on Day 8), of the Father’s Roster.
8.For the purposes of order 7, changeover shall take place:
(a)Where Night 5 falls on a Monday to Friday, time shall commence at the conclusion of school with the Father to collect the Children from school (or 3:30pm if a non-school day with the Father to collect the Children or either of them as the case may be from the home of the Mother);
(b)Where Day 8 falls on a Monday to Friday, time shall conclude at the conclusion of school with the Mother to collect the Children from school (or 3:30pm if a non-school day with the Mother to collect the Children or either of them as the case may be from the home of the Father);
(c)Where Night 5 falls on a weekend, time shall commence at 11:00am with the Father to collect the Children from the home of the Mother; and
(d)Where Day 8 falls on a weekend, time shall conclude at 11:00am with the Mother to collect the Children from the home of the Father.

School Term and Long Summer Holidays
9.The Children live with the parties during the School Term Holidays by agreement in writing and, failing agreement in writing as follows:
(a)With the Mother, from the conclusion of school on the last day of the school term until 3:30pm on the middle Sunday;
(b)With the Father from 3:30pm on the middle Sunday until the commencement of the first day of the new school.

10.The Children live with the parties during the Long Summer School Holidays by agreement in writing and, failing agreement in writing as follows:
(a)In accordance with orders 6 and 7 which continues the usual School Term arrangement until 4:00pm on 24 December and then from 4:00pm on 24 January;
(b)From 4:00pm Christmas Eve until 4:00pm on 24 January by agreement and, failing agreement:
(i)In 2022 and each even numbered year thereafter:
A.With the Mother:
1.From 4:00pm on Christmas Eve until 4:00pm on Christmas Day; and
2.From 4:00pm on 10 January until 4:00pm on 24 January.

A.With the Father, from 4:00pm on Christmas Day until 4:00pm on 10 January.

(ii)In 2023 and each odd numbered year thereafter:
A.With the Mother, from 4:00pm on Christmas Day until 4:00pm on 10 January.
B.With the Father:
1.From 4:00pm on Christmas Eve until 4:00pm on Christmas Day; and
2.From 4:00pm on 10 January until 4:00pm on 24 January.

12.The arrangements in orders 6 and 7 shall be suspended during the School Term Holidays and Long Summer Holidays, with the time the Children spend with the Father to recommence in accordance with order 7 in the same cycle as if the holiday period had not otherwise intervened so as not to interrupt the Father’s Roster.
Changeovers
13.Unless otherwise stated in these Orders, all changeovers which do not take place at school, take place with the parent who the children are due to live with or spend time with, collecting the children from the other parent, at the home of the other parent, unless otherwise agreed in writing between the parties.
14.For the purpose of order 13 hereof, the party who is delivering the children for changeover shall remain in their vehicle and not enter the other party’s property, save for in the event of an emergency or where is otherwise agreed in writing between the parties.
15.In the event the children are engaged in remote learning on a day changeover is due to take place, changeover will occur at 3.30pm unless otherwise agreed in writing.
16.Each parent provide the children with the personal, medical, activities and school items they will each require during the periods the children will be in the other parent’s care and otherwise use their best endeavours to ensure that items provided by the other parent to support their participation in any activity shall remain generally at that parent’s home or be returned to the parent at the earliest opportunity.
Injunctions
17.Both the mother and father be restrained by injunction from:
(a)Denigrating the other parent to or in the presence or hearing of the children, or allowing any other person to do so;
(b)Discussing these proceedings with the children, or in their presence or hearing or allowing any other person to do so other than to explain the parenting arrangements under these orders; and
(c)Discussing negotiations between the parents related to children’s issues with the children.

Employer U Roster
18.The Father provide to the Mother by no later than 4:00pm on 15 December in each year a copy of his colour coded employer annual shift calendar for the following year.
Address and Telephone
19.The Mother and the Father shall each keep the other informed of the residential address at which the Children reside while living with / spending time with that parent and of their current mobile phone number and shall notify the other as soon as practicable, but not less than 14 days prior to any change taking effect.
Medical
20.The Father be and is hereby restrained by injunction by himself, his servants and agents from:
(a)Scheduling any appointment(s) for himself in relation to the Children, for the Children or either of them, or taking the Children or either of them to any appointments(s) with any of the Children’s Specialist Treating Practitioners or any other medical or allied health professional, save for:
(i)With the Children’s General Practitioner; or
(ii)With the consent in writing of the Mother; or
(iii)In the event of an emergency.

(b)Requesting or obtaining a medical referral for or on behalf of the Children or either of them without first obtaining the consent in writing of the Mother, or upon the Mother providing her consent directly to the referring medical practitioner;
(c)Requesting the preparation or review of an Asthma Plan for the Children or either of them without first obtaining the consent of the Mother in writing;
(d)Withdrawing or removing:
(i)Y from school to attend an appointment that is scheduled for X; or
(ii)X from school to attend an appointment that is scheduled for Y.

(e)Discussing:
(i)Y with any treating practitioner appointed on behalf of X, or during an any appointment scheduled for X;
(ii)X with any treating practitioner appointed on behalf of Y, or during an appointment scheduled for Y.

(f)Amending or varying X’s NDIS arrangements including, but not limited to, his NDIS Plan or Plan Management without the consent in writing of the Mother.

21.The Father must notify the Mother immediately:
(a)Of any appointment made for the Children or either of them as authorised in accordance with order 20(a) and shall provide particulars of any treatment received together with the name and address of the treatment provider together and the location at which the Children or either of them is a patient;
(b)If an emergency service has been contacted to attend upon the Children, or either of them, including the attendance of any Ambulance Victoria service;
(c)Of any attendance by the Children or either of them at any hospital including any attendance at an emergency department.

22.The Mother shall do all acts and things and sign all documents as may be necessary (electronic or otherwise) to:
(a)Keep the Father advised as to the name and address of any treating practitioner upon which the Children or either of them attends; and
(b)Provide the Father with not less than seven days prior written notice of any appointment scheduled with any of the Children’s Specialist Treating Practitioners or, if an appointment is made with less than seven days’ notice, as soon as possible upon making the appointment (noting that the Mother does not need to inform the Father in advance of any appointment with Children’s General Practitioner or the K Medical Group;
(c)Permit the Father’s in person attendance at any appointment scheduled with any of the Children’s Specialist Treating Practitioners;
(d)Inform the Father as soon as practicable of any serious illness or injury sustained by the Children or either of them whilst in her care and, further, provide any particulars of any emergency treatment received together with the name and address of the treatment provider together and the location at which the Children or either of them is a patient; and
(e)Ensure the Father is authorised to make reasonable enquiries of, and communicate with, the Children’s Specialist Treating Practitioners and the K Medical Group solely about matters concerning the health of the Children or either of them and with the communication to be in accordance with order 25.
(f)Ensure the Father can obtain information directly from the NDIS in relation to X’s Plan and Plan Management, subject to order 20(f).

23.The parties shall do all acts and things and sign all documents as may be necessary (electronic or otherwise) to ensure that the Children’s contact details with their Specialist Treating Practitioners, the K Medical Group and any new practitioners are amended / recorded as the Mother’s home address, phone number, email address and primary Medicare number.
24.The parties shall make available to the other any medications prescribed for the Children or either of them to the other to enable that party to administer such medication as prescribed and it shall pass between the parties to ensure it is in the possession of the party with whom the Children are living or spending time.
25.The Mother and the Father be and are hereby restrained by injunction from communicating in writing with the Children’s General Practitioner, any of the Children’s Specialist Treating Practitioners, the K Medical Group and / or any new practitioners in writing save that:
(a)they be permitted to do so for the purposes of requesting information or records in relation to the medical treatment of the Children or either of them (provided the authorised written communication is carbon copied to the other); and
(b)The mother be permitted to communicate in writing for the purposes of arranging appointments, providing documents and providing information provided the Mother carbon copies the Father to those written communications.

26.In the event the Mother or the Father do not comply with the requirements of order 25, the relevant practitioner is authorised, and directed to, forthwith provide a copy of the unilateral communication to the other parent.

Education
27.The Mother shall do all acts and things and sign all documents as may be necessary (electronic or otherwise) to ensure the Father is authorised to obtain copies of all reports, notices, information, newsletters, photographs, invitations for parent-teacher interviews and other information relating to the Children or either of them from any school at which they are enrolled.
28.The parties shall each be at liberty to attend school functions for the Children or either of them to which parents are ordinarily invited to attend and shall schedule separate parent-teacher interviews with the children’s educators.

Extra-Curricular Activities
29.The parents shall use their best endeavours to facilitate the Children’s attendance at any extra-curricular activity in which they are enrolled during any period in which the Children spend time with them including, but not limited to, Y’s dancing lessons, recitals and performances and the children’s activities.
30.Neither party shall enrol the Children or either of them in any extra-curricular activity during any period in which they live with the other parent without first obtaining the consent of the other parent in writing, save that X shall continue to be enrolled in Scouts at Town R, Y shall continue to be enrolled at Cubs at Town R, and Y shall continue to be enrolled in dancing.
31.The Father shall forthwith do all acts and things and sign all documents (electronic or otherwise) as are necessary to ensure:
(a)The Mother is granted unfettered and continuing editing access to Y’s and X’s Operoo profile for Cubs / Scouts;
(b)The Mother is listed as a carer and an emergency contact for Y and X’s Cubs / Scouts enrolment;
(c)The following words are removed from Y’s Operoo profile and are not reinstated at any stage in the same or similar terms:
“Y had recurrent vulva vaginitis (sic) that may flare up during camps. Y should be gently reminded to ensure she gives everywhere a good wash prior to showering on camps when activities or planning dictates that a shower is appropriate. Y will make sure she makes a leader aware (preferably her dad) if she experiences any discomfort so that her father can provide the care and support she needs.”

Provision of Sealed Order
32.The parties are at liberty to provide a copy of these Orders to:
(a)The Parenting Coordinator;
(b)The Children’s General Practitioner;
(c)The Children’s Specialist Treating Practitioners;
(d)The K Medical Group;
(e)Any other treating practitioner (medical, psychological, allied health or otherwise) appointed by the Mother on behalf of the Children or either of them;
(f)X’s National Disability Insurance Scheme (NDIS) local area co-ordinators, NDIS related service providers and NDIS plan management representatives;

(g)Any school at which the Children or either of them are enrolled to attend from time to time;
(h)Any out of school hours care provider at which the Children or either of them attend including, but not limited to, Camp Australia OSHC and School Holiday Care Programs operated by Town H Primary School or such other provider as agreed in writing;
(i)Any extra-curricular activity provider at which the Children or either of them are enrolled to attend from time to time including, but not limited to, the Region T Dance School and Scouts Victoria.

Passport and Travel
33.The parties are permitted to travel outside of the State of Victoria, but within the Commonwealth of Australia, with the Children during any period in which the Children are living with / spending time with that parent provided always that:
(a)The travel complies with all directions issued by the Victorian and/or Federal Government; and
(b)The travelling parent provides the other with flight/airline particulars and details of the accommodation at which the children will reside;
(c)During School Terms the travel occurs only between 3:20pm Friday and 9:00am Monday unless the consent of the non-travelling parent is provided in writing not less than 45 days prior to the date of departure (unless otherwise agreed in writing)

34.The parties shall be permitted to travel outside of the Commonwealth of Australia with the Children during any period in which the Children are living with / spending time with that parent, provided always that:
(a)The travel complies with all directions issued by the Victorian and/or Federal Government;
(b)The travelling parent provides to the other notice of their intention to travel with Children as soon as reasonably practicable and, where possible with at least 60 days prior written notice;
(c)The travelling parent provides to the other a copy of an itinerary of the intended travel including, but not limited to, departure and arrival dates, flight/airline/ship details and numbers, details of country(ies) to be visited and accommodation details including a phone number on which the Children can be contacted by the non-travelling parent;
(d)The travelling parent shall organise travel insurance to cover medical and provide the other parent with a copy of the insurance policy;
(e)A final itinerary is provided not less than 7 days prior to the intended departure date and the travelling parent must keep the other parent informed of any variations to the itinerary promptly after the variation is made.

35.The parties shall do all acts and things and sign all documents (electronic or otherwise) as may be necessary to apply for and/or maintain Australian Passports in each of the children’s names as well as any necessary visa(s) for travel within 14 days of one parent making a request in writing to the other.
36.The costs associated with applying for and/or maintaining the Children’s Passports and/or any necessary visa shall be met by the requesting parent.
37.Travel within the Commonwealth of Australia that does not impact the other parent’s time with the children does not require the other parent’s consent.
38.The mother and father shall do all such acts and things and sign all such documents as may be required to renew the passports for the children not less than six months before the expiration date.
39.Other than when the children are travelling overseas with either parent, or if required for proof of identity for travel purposes within Australia, the father shall retain X’s Australian passport and the mother shall retain Y’s Australian passport for safekeeping.

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 Gill & Ingram has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:
INTRODUCTION

X was born in 2009 and is 12 years old. Y was born in 2013 and is 8 years old. Their parents are unable to agree on the best parenting arrangements for them. They resolved their property dispute with final property orders being made by consent in chambers on 15 June 2021. The mother has recently purchased a home in Town H and was planning to move before the start of the 2022 school year. This will reduce the difficulties occurring at changeovers that do not occur after school and also resolves the practical difficulties with respect to Y’s attendance at dance classes and cub scouts on the same night after school. The parties were also able to resolve the issue of the choice of X’s high school with consent orders being made on 12 November 2021. He will commence at Town Q in 2022 and is also participating in their enhancement program.
The father relied upon the following documents:
(1)Further Amended Initiating Application filed on 1 November 2021;
(2)Affidavit of the father filed on 1 November 2021.
The mother relied upon the following documents:
(1)Amended Response to Initiating Application filed on 1 November 2021;
(2)Affidavit of the mother filed on 1 November 2021.
Both parties also relied on the Affidavit of Ms W filed on 19 November 2021 and the Affidavit of Dr P filed on 30 September 2021.
BACKGROUND
The father was born in 1978 and is a professional community worker with Employer U. He presently resides in a rental property in Town V and moved there in March 2021 following the sale of the former matrimonial home.
The mother was born in 1979 and is currently employed as a professional on a permanent part-time basis working from 9am to 5pm on Mondays and Thursdays and from 9am to 3pm on Tuesdays and Fridays.
The parties commenced residing together in 2004 and were married in 2005. The parties separated on a final basis on 23 December 2019. They remained separated living under the same roof until 1 February 2020 at the former matrimonial home in Town H. The mother relocated to her parent’s holiday home in Town K. The children moved to live with the mother on 17 February 2020.
X was diagnosed for Autism Spectrum Disorder (“ASD”) in late 2015.
THE FATHER’S CASE
In opening this case, the father’s counsel acknowledged the Court accommodating the trial within 14 months of the initiating application being filed and, also noting the parties had not yet been separated for two years combined with the impact of the COVID-19 pandemic.
He submitted there were many areas that were agreed between the parties, including that both are loving parents and the children should have the benefit of a meaningful and loving relationship with both parents as well as significant time with each of them.
The father’s counsel made reference to a number of fixed matters, including the father being a professional community worker. He was a community worker when the parties met and is passionate about his job and he intends to remain in that position until he retires. Save for a nine month secondment, the family’s lives were subject to his roster. This is the case during the relationship and after separation. The father works shift work according to a 28-day roster on an 8-day cycle that rotates as follows:
(1)Day 1: Day shift from 8AM to 6PM;
(2)Day 2: Day shift from 8AM to 6PM;
(3)Day 3: Night shift from 6PM to 8AM;
(4)Day 4: Night shift from 6PM to 8AM;
(5)Day 5: Day off commencing from end of previous shift at 8AM;
(6)Day 6 to 8: Days off
This roster repeats over a 28-day cycle and includes weekends and public holidays.
Another fixed matter is the personalities and lived experiences of the parties. One of the issues of conflict between the parties has been with respect to medical treatment for the children. X has been diagnosed with ASD and is in receipt of funding from the National Disability Insurance Scheme (“NDIS”). The father had severe epilepsy as a child and underwent chemotherapy as a result of having cancer. It is his position that due to his lived experiences, the father understands the need for medical intervention and is passionate about that and forthrightly expresses his views with respect to this need as being in the best interests of the children.
The father’s position with respect to the mother is that she is a risk to the children. He submits that the mother’s family violence and her neglect when it comes to the children’s medical needs put the children at risk in her care.
The father’s counsel relies on the comments of the family report writer, Ms W, that the urgent issue for this family is addressing the dysfunctional co-parenting relationship. He highlighted Ms W’s comments that the mother has at times adopted a passive-aggressive approach to dealing with the father. He also emphasised the psychiatric evaluation report of Dr P, which included Dr P’s insight that from both parties’ perspectives, their position stems from fear and disempowerment.
The father’s counsel submitted that a solution to their co-parenting relationship is engaging a parenting coordinator, who will be able to assist the parties for the next 2 years. A further solution is not to reduce the father’s time and exclude him from medical appointments, but rather to embrace the rhythm of the father’s roster, and work through the issues with the guidance from a parenting coordinator.
The father also proposes that X have an additional night with him, and for X to be left alone at his house in the morning before school for a couple of hours and that X take himself to school.
By the end of the trial, the father had modified his position such that he was no longer seeking an order for sole parental responsibility in his favour, but urged the Court to make an order for the parents to exercise equal shared parental responsibility for the children. The father’s emphasis on the frailties of both parents’ personalities and the relative recency of the parties’ separation would carry more weight if the father had demonstrated any shift in his attitudes and beliefs that the mother is an abusive and neglectful parent and the experts’ evidence has not given him any assurances.
THE MOTHER’S CASE
The mother’s case is that the father is violent and controlling and undermines her parenting. She says the father is determined to have the children diagnosed and medicated and is determined to align new and existing medical treaters to his side. The mother says in order to protect the children from this, she must have sole parental responsibility for making decisions with respect to the children’s health, education and extra-curricular activities. She also seeks to reduce the father’s time.
By the end of the trial the mother had also somewhat modified her position and was not pursuing as greater reduction in the father’s time as she was previously. She does seek that changeovers take place at school where possible. She also seeks a series of detailed injunctions against the father, which target the father’s harmful behaviour which was the subject of cross-examination.
ISSUES IN DISPUTE
The issues in this matter that I must determine are:
(1)
Whether or not either parent is a risk to the children and the nature of that risk.

Despite hearing the evidence of the experts, the father maintained his position throughout the trial that the mother is a risk to children. He describes this risk as being with respect to family violence and also primarily through neglecting the children’s health. He is so fixed in his view that this is highly unlikely to change. This is problematic because the evidence establishes that the risk in this case does not come from the mother, but comes from the father’s rigidity, erroneous beliefs and a lack of insight. His beliefs have led him to engage with various professionals involved in the children’s treatment and care in a way that is undermining of the mother’s parenting and quite destructive.
(2)Allegations of family violence and the nature of that violence.
(3)Who should exercise parental responsibility with respect to medical issues? By the end of the trial the father’s position was that the parents should exercise equal shared parental responsibility. The mother’s position remained that she should exercise sole parental responsibility for education and medical issues with respect to the children.
(4)Whether or not parties should engage a parenting coordinator. Post separation, the parties have struggled to communicate effectively. Both parents have engaged in problematic and unhelpful communication that has exacerbated the conflict between them. The father proposed an order for a parenting co-ordinator, which the mother disagreed with. However, after hearing the evidence from Ms W and having a better understanding of the nature and scope of the role of a parenting coordinator, the mother agreed that appointing a parenting co-ordinator would be appropriate.
Issues of risk that need to be explored relate to the following:
·The father’s concerns about the mother’s attitude and her treatment of the children’s various medical issues;
·the risk arising from the father’s pervasive and fixed view of the mother being a risk to the children in spite of all the evidence including from experts to the contrary; and
·the unilateral actions that the father has taken continued to take, including but not limited to the children’s health and education.
It is not only the fact that the father communicates unilaterally with various professionals involved with the children, but also the way in which he communicates, the content of that communication and the effect this has on undermining the mother’s parenting. There is also the negative impact on the children regarding the father’s view of the mother and his fixed belief that the mother is a risk to the children. For the reasons I shall explain, the evidence shows that it is the father who presents a risk to the children’s psychological and emotional well-being, not the mother.
Both parties were sincere in the evidence, although it was clear that the father is fixed in his views and inflexible. It was also clear that the mother was worn out and frustrated from being under sustained attack from the father following separation.
Throughout the father’s cross-examination, many of his answers were critical of the mother and justifying his own position. At several points he had to be warned to focus on the question being asked and limit his answers. For example, the father requested extra time at Easter so he could see the children on Easter Sunday 2021, which the mother allowed, but the father was then unable to show the same flexibility when the mother also asked for extra time on Easter Monday 2021 as she was not working. The father seems unable to take into account how his responses impact on the mother and/or the children. Given this, I have concerns as to how anything that is close to an equal time arrangement would work for these children. It is clear that the father wants to maximise his time with the children during periods he is not working, but does not appear to appreciate that the mother also seeks the same. It will not always be possible to accommodate this given the father’s roster and the mother’s work hours. Rotating rosters such as the father’s necessarily lead to parenting arrangements post separation that are more complex and less predictable than in matters where there is no need to accommodate that type of shift work. The father says the children are used to the roster whereas the mother says they find it unsettling. Post separation the parties and the children have to adjust managing the roster and parenting arrangements between two households.
The mother was at times incredibly defensive when giving her evidence and I had the sense that she did not see how she has also contributed to the conflict. She also had to be warned on several occasions to listen to the questions and limit her answers to what she was being asked.
In contested proceedings such as these, where parents’ conduct comes under scrutiny during a difficult period, it is common for criticisms to be made of both parents. It is important to remember, however, that there are many positive aspects about both parents’ parenting. Both parents clearly love their children and they are, and will remain, important figures in the children’s lives.
EVENTS LEADING UP TO AND AROUND THE SEPARATION
The parties separated under the same roof in December 2019, and separated on a final basis in early January 2020. The mother described the events leading up to separation to Dr P, who conducted a psychiatric evaluation of the parties. The mother stated that the father was angry with the mother in the week leading up to her 40^th birthday. She described the father as getting very drunk at her birthday party and not talking to anyone. Later when she could not find him, she went looking and found him sitting in his car crying. She said the father then sent her multiple texts, and that he told her “the only thing that stopped him from driving into a tree was the fact that there was a car already in the driveway which was blocking his”. The father did not mention this incident to Dr P. He described in the lead up to the mother’s birthday he felt increasingly unwanted and felt uninvited at her party. He said two days after the birthday party “Ms Gill announced she’d had enough” and considered this the end of their relationship. The family report writer, Ms W, questioned the father about what the mother said he had told her in relation to driving into a tree. The father said “I recall being emotionally affected by events at the time, upset yes, sad yes.” The mother told Ms W she felt what he had told her was “designed to manipulate her and force a review of the decision to separate.”
MEDICAL ISSUES
X in particular has seen various medical professionals. X has an NDIS plan and receives funding for supports including speech therapy and counselling. Y also has some medical issues but they are not as extensive as her brothers. Both children have had asthma on occasion. The children have a number of medical treaters. The mother’s counsel helpfully provided an aide memoire of the relevant medical practitioners. Those referred to in these reasons are as follows:

Name Practice Qualification Description

Dr B C Health Clinic Paediatrician X’s Paediatrician

Dr D Paediatric
Gastroenterology
Victoria Paediatric
Gastroenterologist Y’s Paediatric
Gastroenterologist

Dr M
and Dr Z
K
Medical Group General
practitioners Both X and Y
have seen a variety of
GPs at this clinic, but
primarily Dr M
and Dr Z. They
currently primarily see
Dr M.

Ms E F Clinic Occupational
Therapist Assists X in
relation to handwriting

Ms AA F Clinic
Occupational

therapist

Provided X with
hippotherapy (therapy
involving horses)
between October 2018

and October 2020

Ms BB CC Psychology Psychologist
Treated X
between September
2019 and December

2020.

Ms DD EE Clinic
Expert in speech

pathology

Saw X in April
2021 for assessment
of X’s phonological
processing, reading

and spelling

Ms FF Psychologist X’s previous
psychologist between
2016 and 2019.

Dr GG HH Psychology Educational and
Psychology
Services Undertook a cognitive
assessment of X
in May 2021

The father’s unilateral communication with the children’s medical treaters

Shortly after the parties separated the father started communicating with several of the children’s treating practitioners unilaterally. He emailed Ms BB, X’s psychologist, on 28 January 2020, copying his lawyer to the email. In that email the father said:
Ms Ingram is behaving in a manner that I’m unable to communicate with her (by my choice), as there is a risk of escalating behaviour towards potential unqualified accusations that can be used to remove husbands from the family home during separation.
He goes on to make critical comments about the mother suggesting that Ms BB’s office call the mother to ensure she is aware of the importance of the appointment for X and that the mother may need reminding about Ms BB’s clothing request for the session. These are examples of the father’s controlling behaviour undermining the mother.
The father’s tone is very directive, which is not isolated to this correspondence, but is reflective of his correspondence in evidence generally whether it be with professionals or texts between the parties. When the mother’s counsel cross-examined the father about this, suggesting to him that communicating in this manner with one of X’s treating practitioners was unacceptable and inappropriate, the father answered that his solicitor had explained this to him afterwards. It is clear from his answers, however, that what he thought was inappropriate was copying in his solicitor, not his unilateral communication. He did not agree that his unilateral communication was problematic. The father was pressed on this point and what is apparent is that he believes his actions were appropriate. This is what is troubling about the father’s unilateral communications with various professionals. It would not be of such concern if this conduct had ceased after the immediate aftermath of separation and that the father could acknowledge the concerns of the experts. In contrast, this type of communication has continued and the most the father was able to say is that he wished it could be different, however implicit in his answers is the fact that he does not see what is wrong with his approach.
On 21 February 2020, the father attended upon Ms BB’s office unannounced and when X did not have an appointment. He wanted to show Ms BB some documents and seek urgent advice. The father could not recall the details. He agreed that he provided her with a copy of the intervention order (“IVO”). He said he did that with respect to various treating practitioners to assist them in understanding the current issues for the children. He agreed that the only order made was that the mother not commit family violence. He also provided a copy of the IVO to other professionals involved in X’s care, including his occupational therapist Ms AA. There is an underlying assumption that the father’s views are fact, not opinion, and that any views the mother might have would be invalid.
The father was cross-examined about a file note of Ms BB dated 15 June 2020, where the father attended and Ms BB requested that she to speak to the mother. In her file note, Ms BB recorded that the father was worried about the consequences of her request. He did give permission for Ms BB to speak with the school, but Ms BB stated she would also have to ask the mother for permission. A month later on 15 July 2020, the father sent an email to Ms BB where he outlines his concern about “X’s use of behaviours that Ms Ingram [the mother] used when committing FV. Throwing items and slamming doors.” In the email, he noted that these behaviours had not occurred recently. He also expressed concerns about the children returning to the mother’s care and about X struggling with those transitions, having and showing negative feelings and expressions, saying that X releases his frustrations on Y as soon as he comes into the father’s home. The father feels that this is because X feels safe to let out “built up frustration” in his care.
The mother’s counsel suggested that this was another example of his unilateral communication with one of X’s treaters. Significantly, the father responded to this suggestion saying, “yes, that was meant to help X and help her understand what X has done and why.” Of course, the difficulty here is that the father makes various assumptions and conclusions, including that X has been exposed to family violence in the mother’s care. Again the father maintained that he thought his communication was appropriate and that he believed it helped Ms BB understand and support X. The father agreed he also forwarded that correspondence to X’s GP on 16 July 2020 and again justified that on the basis of assisting the GP to understand the things that were affecting X. This email was exhibit 3.8. He further agrees he did not provide a copy of that correspondence to the mother. It is significant and troubling that the father responded that he did not want to put the children at further risk and said “you will find all those emails contain considerable concern for my children, for Y and X. X particularly”. Further, in an email to K Medical Group dated 20 July 2020, he asked that the email he had sent previously with respect to family violence not be shared with the mother. The father was pressed during cross-examination with respect to this, and said he did not accept that it was inappropriate to ask the children’s treating practitioners to keep things confidential from the mother, as in his view he was doing it to protect the children.
Prior to separation, the mother organised equine therapy for X with Ms AA, an occupational therapist. The father agreed that X benefitted from that. The father wrote to Ms AA on 6 August 2020 saying that he and the children are protected from the mother’s behaviours and referred to reporting the mother to child protection for the second time. When the mother’s counsel asked why it was necessary for the occupational therapist to know this particular piece of information, the father insisted that it was providing “critical emotional regulation and support for X.”
Most concerning is the fact the father maintained when pressed that he would not change his behaviour which he characterises as “discussing critical information about the harm and hurt Y and X experienced to help Y and X.” Implicit in his communications and his answers in cross-examination is that the mother has harmed the children. He is so fixed and rigid in his view that he does not appear to be able to consider other possibilities, such as the children being negatively affected by the separation and the high conflict between the parents. It is incredibly common for children to have their own struggles with their parents’ separating. Transitioning between parents’ homes can be particularly difficult. In high conflict cases, in particular it is extremely common for both parents to express concern for the children’s emotional wellbeing coming into and leaving their care, assuming that their children’s distress is as a result of something happening in the other parents’ home rather than being a response to the separation and as a result of the children being caught in between their parents’ acrimony. I also note that the father did not provide any examples in his trial affidavit, apart from the CD incident (as detailed later in these reasons) to support his conclusions. It causes me to wonder if the father equates someone disagreeing with him and raising their voice as violence. If so, the father may struggle to deal with the children when they get older and start to individuate, test boundaries and express different views to him.
X’s Impetigo
X suffers from impetigo, which is commonly referred to as school sores because it’s a common infection amongst school aged children. X tends to scratch them, which causes them to worsen. The father took X to K Medical Group on 16 July 2020 before school. Dr M wrote to X’s psychologist expressing his view that the real treatment will be prevention from a psychological angle. The father was unsatisfied with the advice Dr M gave which was to keep them covered and to leave the dressings on for a week. The father was concerned that dressing the sores without using some sort of cream or other treatment was not enough. He obtained a second opinion from his aunt, who is a GP, however does not see X in that capacity. His aunt did not see X in person, only the photos that the father took of X showing his sores on his legs and buttocks. He says she immediately rang back and said he needed to take X to another doctor.
The father refused to tell the mother who he obtained the second opinion from. He said he did not think the identity of the doctor was relevant. On that same day, 16 July 2020, the father collected both children after school and took them to the emergency department of City HH hospital. The father did not tell the mother about this until two days later.
The concern is not about the father seeking a second opinion given the lack of improvement but his exclusion of the mother and taking both children to the emergency department of a hospital.
This latter point is of real concern to the mother. The father says the children were with him at the emergency department wearing masks for less than two hours. In the context of the COVID-19 pandemic and its state in Melbourne at the time, exposing the children to an emergency department environment is concerning. The discharge records refer to X having “a complex social history and has experienced family violence from the mother,” repeating the narrative again that the mother exposes and subjects the children to family violence. The father was vague in his recollection as to where the children were when he was giving this information to the doctors and said that he did not think they were present. He said that he has always done his best to not have discussions in the presence of the children. The doctor prescribed an antibiotic for X. He was not admitted. When asked to agree that it was inappropriate to take the children to an emergency department in the context of the pandemic, the father said he “would have liked to have been able to do it differently” but went on to say that he did not do it differently because of his concerns “that the sores and the things that X was experiencing was as a result of Ms Ingram’s behaviours.” He went on to say that he believed that the sores were caused by anxiety that X experienced when not in his care. This is the father’s unqualified opinion, which he characterises as fact. There is no basis for the suggestion that X’s impetigo was caused by the mother. It is an issue X has suffered from periodically. It is a contagious skin infection commonly suffered by children.
The father’s reaction to the mother taking photos of X’s sores and sending them to him is of particular concern in this case. When the mother’s counsel suggested that the mother did this to show that she was keeping on top of the treatment, he said he accepted this was her intention, but said the photos disgusted him. He said he sought advice from a helpline and thought it was child abuse, so he reported the mother to the Department of Health and Human Services (the “Department”).
The father could not acknowledge or understand that what the mother was doing by sending pictures of her treating X was in fact addressing his criticisms of her. He then sought to distinguish the photos that he sent to his aunt from the photos the mother sent him, and said that X was uncomfortable and expressed significant concerns about the photos the mother took. He says that X also complained about being watched before showering. In the context of the father’s ongoing criticisms of the mother being neglectful and not treating things appropriately, it is not at all surprising that the mother wanted to give the father some sort of reassurance about the wounds being treated. Clearly, the father is primed to interpret whatever the mother does as being abusive and threatening and conveys this to X. He may do this unintentionally, but the children could not help but be aware that the father does not think they are safe in the mother’s care. The father’s reactions to the mother and some of the medical issues is completely disproportionate and concerning.
The father said that it was not his view that the mother’s conduct was child abuse, but that he sought advice and then said that he was told by the Department that they could only support him if he made a complaint. Of course the Department was relying on what the father was telling them. When pressed, the father conceded that he thought the mother’s conduct was child abuse and still did. This is extremely concerning and what makes it even more so, is the fact that the father continues to be resolute in his belief that the mother has engaged in child abuse. The father has acknowledged reporting the mother twice. Yet it is clear the expert assessments that have been carried out have continually found the mother is not a risk to the children.
X’s asthma
Another significant area of controversy between the parties is the treatment of X’s asthma. When the mother’s counsel said to the father that he and the mother have fundamentally different views on the appropriate treatment, he replied “yes, I believe prevention is better than cure”. The parents have different views about the symptoms X experiences. The father wants X to be prescribed a preventer inhaler. The father insists that Dr M did not say it was not necessary but that he would not prescribe it without the consent of both parents. The father went to a different doctor at the practice and obtained a prescription for Nasonex.
On 19 November 2020 both the parents and X attended X’s usual GP, Dr M. Dr M spoke to X directly and asked him to describe his symptoms. Dr M recorded that X has mild intermittent asthma. The father disagrees with that diagnosis and thinks that it is more than mild. There was another joint appointment to review X’s asthma on 8 July 2021.
The father rang the clinic to express his concern that Dr M was shifting the responsibility to the parents as to whether or not the preventer should be prescribed rather than making the decision himself. Dr JJ, also from the K Medical Group, contacted him. The father told her that he wanted it recorded in X’s records that he had spoken to the Asthma Foundation and found that X fell within the national guidelines for the prescription of a low dose preventer and that he was not prescribed one by the medical centre. The father has no appreciation of the difficult position that he places various medical practitioners in. It is very clear that the father cannot tolerate others having different opinions to him on issues he considers important. The father said that Dr M said he was not going to continually get in between the parents. That was a perfectly reasonable approach for him to take, particularly in light of the ongoing unilateral communications by the father and his criticisms of the mother.
The father was cross-examined about a letter dated 8 August 2021 from X’s paediatrician, Dr B, reporting back to Dr M. She refers to there being significant ongoing conflict between the parents and records that it is difficult to obtain a clear history of X’s asthma symptoms. She states the following:
Regarding the possibility of asthma in particular, I have recommended in the first instance that X trial Ventolin more regularly to obtain more evidence of its effectiveness. Strongly recommended using the spacer to administer Ventolin as without much less of the Ventolin will enter his lungs. Recommended that he try using Ventolin approximately 10 minutes before exercise to see whether this helps him and improves his endurance. As mentioned, I placed a referral to the Royal Children’s Hospital for X to have a lung function test.
The father reluctantly conceded that Dr B has not prescribed a preventer. The father still thinks he should be prescribed a preventer “when required”. The appropriateness or otherwise of prescribing reliever and preventer asthma medication is a matter for the medical experts. What is apparent is that neither Dr M nor Dr B is of the view that X needs a preventer. It is clear from the subpoenaed records that Dr B agreed with Dr M in relation to X’s asthma being mild. In a consultation record dated 1 October 2021, Dr B records that X told her he has been well and has not used any Ventolin since she last saw him. When cross-examined about this, the father finally conceded that X’s asthma is mild “most of the time.”
On 7 July 2021, the father sent Dr M a lengthy email. The father did not copy the mother into the email. He sent a further email on 28 July 2021. These are exhibits 3.13 and 3.14. These emails are concerning. They go well beyond providing information. In the email sent on 7 July 2021, which was the night before X’s asthma appointment, the father explained how he was sending this email without copying in the mother because he felt it was his only option to get his point across, and he felt he had been talked over in the previous appointment. The email is three pages long and went into other issues, including X being bullied at school. When cross-examined about this, the father again could not see that this unilateral communication with the GP was inappropriate and referred to giving full disclosure to his lawyer. This again misses the point. He said that the doctor could discuss these issues with the mother but then conceded that he did not tell the doctor and said it was not his place to do so. This answer is somewhat disingenuous. He has no concern about directing a specialist not to provide information to a referring GP. Given the extensive nature of the father’s communication, it is somewhat surprising that none of the medical practitioners have elected to cease working with the family. It is also somewhat troubling that the father had such difficulty accepting medical advice when it did not reflect his position. The exhibits with respect to this issue show the father going beyond seeking to ensure that the medical practitioners had all the relevant information, but seeking to pressure and persuade medical practitioners to change their opinions.
In the second email, the father presents as hyper vigilant. He also seeks to have the GP act as a go between for the parties to obtain the mother’s consent for a referral. He also continues to undermine the mother and outlines various ways the mother is a risk to the children and obstructive of treatment. He refers to the mother continuing to drink alcohol. The father said that X on his own initiative checked the mother’s recycling bin as he was concerned about the mother drinking alcohol both when they (the children) are there and when then they are not. The father insists that he does not question the children. He says they volunteer information and Y has told him about the mother bringing a special glass to the table. He keeps a record of what the children tell him but does not record his responses to them and in cross-examination had difficulty recalling what he said to them. I am troubled by this. Clearly the children know the father is receptive and attentive to them when they report negative things about the mother. It is likely that they know the father would not respond in the same way to positive comments about the Mother. It is also concerning that when the mother’s counsel squarely suggested to the father the possibility that the children were telling him what they think he wants to hear he did not think that was the case and continued to maintain that the mother is a risk to the children. It raises real concerns about the father continuing to give the message to the children that their mother is dangerous and they are unsafe in her care and continuing to undermine her parenting.
X’s Therapy
It also appears that at times the father misinterprets information from medical professionals. For example, he insists that Dr B recommended that X see a psychologist, despite being taken to her letter of 8 August 2021 that says he should see a psychologist or continue to receive support at his school, as it is important that X is comfortable with who he talks with. The father agreed that X has been seeing Mr KK at school and is comfortable with him. The father was further taken to a letter from Dr M to Mr KK where Dr M reports that X is resistant to seeing a psychologist and was much more comfortable talking to Mr KK. The father then said Dr B recommended seeing a psychologist in other documents. There are no documents to support the father’s assertion. What is in evidence at paragraph 102.3 of the father’s trial affidavit is that the father does not think Mr KK is qualified enough. This is another example of the father’s rigidity and inability to tolerate different points of view from his own. The concern goes beyond the father not accepting opinions different to his own. He believes the mother is obstructing the children’s treatment. There is simply no evidence to support the father’s view.

It is also difficult to fathom the father’s position with respect to the mother’s proposal that they appoint an independent paediatrician specialising in autism spectrum disorder to provide an assessment for X, given the parties’ inability to communicate. The father refused as he thought it was unnecessary and that what he needed was an occupational therapist. It is somewhat ironic that when it is the mother suggesting specialist intervention the father refuses. He finally agreed some 10 weeks later, yet maintains his criticism of the mother, saying at paragraph 118 of his trial affidavit that the mother is resistant to obtaining appropriate supports for X in a timely manner in spite of the considerable supports X needs. The father’s level of hypocrisy in this regard is stunning.
X was seeing Ms E for occupational therapy. When the father was questioned about whether he had had unilateral communication with Ms E and Dr GG, another of X’s treaters, the father said no, and that the parties “communicated individually and directly with both of those professionals.” The father says Ms E wanted the parties to provide her with their individual feedback so both parents communicated with Ms E unilaterally. Ordinarily, this type of communication would not seem concerning, however it is not the full picture. On 27 July 2021, the father wrote to Ms E saying that X reported he was not undertaking her assigned tasks in the mother’s home. The following exchange took place:
Ms Johnston: But you took it as an opportunity to complain about the mother?
The father: No, it was a mere demonstration of fact. Ms E is managing X’s benefit of the work he is doing. If he’s only doing the work half the time, she needs to understand, well, that might explain why something is or wasn’t progressing.
Ms Johnston: So it’s not your opinion, it’s fact. It’s X comes home and tells you what’s happening in his mother’s household, and you accept that as fact; is that right?
The father: I – yes. I have great trust and belief in what X tells me.
Y’s health issues
In his trial affidavit, the father outlines a number of concerns he has for Y’s health at paragraphs 98 and 99 of his trial affidavit:
Y suffers from hay fever and asthma for which she has an annual treatment plan. She also presents with dermatitis with recurrent marks on her legs which are yet to be diagnosed. She continues to be at risk of vulvo vaginitis (sic) due to her weight issues and the rubbing and compression of her legs and lack of ventilation leading to vaginal irritation. Y does not use soaps in the bath/shower as they are a source of irritation for her. There is an inherent link to types of foods and inflammation also. It is a condition that could occur easily on any activity like a cub or school camp where there are wet and dirty water activities like canoeing.
I am concerned that Y is not meeting all her age-appropriate intellectual and physical developmental milestones and have conveyed this to Ms Gill. My concerns are supported by Y’s primary school transition report and my own observations. Annexed and marked “-5” [pages 10 to 22] is Y’s primary school transition report dated 19 October 2018. For instance, last year, an additional youth assistant spent more time with Y than other students at dance class with Ms LL to assist Y, to keep pace with the teacher’s instructions and not impact the flow of the class. I believe Y would benefit from being more accurately assessed and working with a paediatrician to address these issues. Ms Gill refuses to explore this.
When cross-examined, the father said that he has various concerns about Y’s health, including as recently as the week before the trial, and further said that not only does he stand by the concerns outlined in his affidavit as set out above, but has more. This is troubling.
The father’s concern that Y is not meeting her intellectual and physical developmental milestones is troubling because there does not appear to be support for this concern from independent sources. In fact, they suggest the contrary.
Y has been attending dance classes since she was three or four years old. The father says he regularly took her and says that she has struggled to process communication and instructions throughout her time attending the classes. This is not the view of Y’s dance teacher who wrote a letter dated 19 March 2021, which described Y as a dedicated and diligent student developing and progressing extremely well and that she did not require any extra assistance in her dance class. When cross-examined about this letter the father continued to disagree and said that particular teacher has only seen Y three times. I have some concerns about the father labelling Y in this way, which could be damaging to Y if he gives her the message that, consciously or otherwise, there is something wrong with her.
Y’s school report for semester one 2021, which is exhibit 2.10, does not indicate any concerns about Y’s progress. The father was cross-examined about the report which showed Y progressing well in all areas. Despite this, the father said that the teachers confirmed with him that they do not watch the children in the playground and said he was devastated for Y when she could not climb the monkey bars like she wanted to, and he is helping her with that goal. This seems to be an overreaction by the father.
Another area of disagreement between the parents is whether or not Y should be assessed by a paediatrician. The mother has not thought it necessary. X had an appointment to see his paediatrician Dr B on 5 August 2021. The father took both children out of school and took them to that appointment. The father claims that this was at Dr B’s direction despite there being no referral for Y. The father maintained that it was Dr B’s desire to see the whole family. When questioned further it is clear that Dr B had expressed a desire to see the whole family, including the mother, and that this was in the context of X’s treatment.
It is also clear that the letter Dr B later provided at the father’s request merely stated that she was happy to see Y. This is neutral. That is quite different to Dr B raising a concern about Y’s wellbeing or requesting to see her specifically.
The mother was cross-examined about statements from Y’s kinder teacher that Y needed some assistance with gross motor skills, and she said sometimes she would need support to learn how to do things just as other kids do. Some sensitivities to loud noises and smells had also been identified. The mother agreed that these can be markers of children on the autism spectrum. The mother said she did not think it was an appropriate time to have Y assessed because of the COVID-19 lockdowns and schools being shut down. When she was challenged and the father’s counsel pointed out that her evidence was that there is nothing wrong with Y, the mother said that she does not think that Y has the same reactions that she was showing three years ago. The mother eventually conceded that she would allow Y to be assessed by a paediatrician. Hopefully that will put the father’s concerns to rest, provided he accepts expert opinion which may be that Y is developing normally.
In April 2020, the mother took Y to see Dr Z at the K Medical Clinic when Y was suffering a flare-up of her gastro symptoms. On 1 May 2020, the father rang the clinic to speak with Dr Z. Dr Z’s file note about the telephone conference is exhibit 3.22. Dr Z notes she had an “unusual discussion” with the father, and that he had firstly ensured that Dr Z was aware of the intervention order against the mother. He also said that Y does not suffer from these abdominal symptoms when in his care and that he believed he looked after the children’s diet and hydration better than their mother. The father agreed that that record was accurate. He stated it was his view the mother was feeding the children junk food when in her care, and that this was based on the children telling him the types of food they eat when with her. This is another example of where the father simply accepts whatever the children say at face value, particularly if it supports his negative view of the mother.
It also appears that the father’s antipathy of the mother colours his views with respect to medical issues concerning the children. This is not simply a case of the mother not having concerns about the children’s health and neglecting their health as the father makes out, as is clearly shown with respect to his attitude towards Y’s stomach issues. Certainly both parents refer to Y having gastro and constipation issues. The mother arranged an appointment for Y to see senior paediatric gastroenterologist and technologist Dr D. The father emailed Dr D on 6 July 2020 saying that he had a history of gastro that is confidential in nature and relevant to his assessment of Y but that the information could not be discussed with the mother or the referring GPs without the father’s express consent, as his siblings and parents were not willing to share that information. Firstly, the father’s dictatorial approach which is highlighted here and reflected throughout his correspondence with various professionals is concerning. It is extraordinary that he should think it appropriate to tell a specialist to keep information from a referring GP. Further, this particular instance of communication seems somewhat paranoid and disproportionate for the father’s family to have concerns about the mother and the referring GP having knowledge about their gastroenterological history.
The father agrees that Y was subsequently diagnosed with fructose malabsorption and he agrees with that diagnosis. However, he still maintains his view that Y’s problems in May 2020 when the mother took her to see Dr Z was because of the mother feeding the children takeaway food. While he did admit there could have been an alternate view, he did not accept that he was wrong because of what the children were telling him about the food they were eating.
The father refers to an incident in October 2017 when Y experienced an asthma attack. He says he came home and found Y blue in the lips and sitting hunched over unattended by the mother. He gave her Ventolin and that assisted her. The father’s reference to Y being unattended is quite unfair and misleading as the mother was home simply helping X get ready for school. When cross-examined about this the father maintained that he did not know where the mother was and so said Y was unattended. His narrative about this incident in his trial affidavit is further selectively misleading as he refers to taking Y to the GP whereupon the GP advised she be taken to hospital, however does not refer to the fact that the mother attended as well, or that it was she who arranged the GP appointment. When this was put to the father, he said that his affidavit did not say that she was not there. The point is that he is creating a picture where he is the only one involved and concerned for their child’s welfare. As one would expect parents to do, the father went home to look after X and the mother stayed with Y at the emergency department. Y was released a few hours later.
The father says he was not aware Y had had some shortness of breath in the morning before he got home and maintained that he found her pale hunched over and blue in the lips, yet did not call the ambulance. He said that he gave her Ventolin to which she responded, and conceded it was the mother who made the urgent appointment with the GP.
The father is also disapproving of the mother’s treatment of Y’s asthma in November 2020 and criticises her for not calling a paramedic. The mother says that it was not necessary to call a paramedic and she was not advised that she should have done that. She said the medical records would back up this statement. Exhibit 3.23 is a consultation note dated 12 November 2020. It records that Y attended her GP with her mother. The note states that Y suffered from asthma overnight and records that there was a recent increase in environmental risk given thunderstorm asthma warnings. She was assessed as having an asthma flare that was being treated. There is no reference or recommendation that the mother should call an ambulance. The mother agreed with the proposition that both of them have been concerned about Y’s asthma and the father was not overreacting. However, the worry is with his continuing criticisms of the mother in the way she has managed the children’s medical issues, which is unjustified.
In relation to the consent orders the parties entered into on 12 November 2021 for X to attend Town Q College and its enhancement program, the mother said that she was able to agree at that time because she had secured a house in Town H and so did not anticipate she would experience any logistical difficulties in taking X to that school. I accept the mother’s concerns about the practicalities prior to securing a home in Town H. These concerns are perfectly legitimate, particularly when seen in the context of the father’s rigidity and inflexibility about changeover arrangements.
Another area of disagreement between the parties has been with respect to X engaging in the Victorian Higher Achievement Program. The mother thought X should try out the program before making a final decision. She thought there were aspects he would enjoy but made the point during cross-examination that she was unaware Ms E had said the program would not be suitable for X because of his challenges and anxiety with handwriting. The mother pointed out that Ms E had information the mother did not have access to, as the father had not provided it to her. This is an example of the father’s unilateral communications with treaters being counter-productive, because if he had provided the information to the mother, this issue could have been resolved much earlier. The mother rejected any suggestion that she would have forced X to do that program if she had sole parental responsibility. Understandably, what upset the mother was not being told that X’s occupational therapist opposed X participating in that program, where she was not aware that his occupational therapist had even been asked about that program. Once she was aware of Ms E’s concerns, she no longer sought that X participate in the program.
The mother conceded that she has contributed to the difficulties in negotiating with the father.
SCOUTS
One of the passions that the father and X share is for scouts. The father has been involved with the Scouts Victoria organisation for many years and is a cub leader. The mother agrees that scouts is one of the things that really engages X in a positive way. The father is keen for both children to be involved in scouts, including attending their camps.
One of the issues of conflict between the parties has been whether or not X should attend the jamboree. When the father’s counsel suggested to the mother that she refused to consent to X attending the jamboree, the mother said that she spoke to X about it and X told her he did not want to go because it was going to be over seven nights and there would not be any reprieve from the noise and intensity of it. She referred to seeing the effect on him after having attended a school camp that was only three nights and how that after shorter camps he really needs a timeout to recover.
The father’s counsel suggested to the mother that she has previously been advised that X will be able to have an aid at the camp and will be able to have timeout as needed. The mother said she thought she was aware of the ability for him to have timeouts but not about the aid. The father’s counsel referred to the mother’s evidence earlier that X has been able to adapt and become more flexible as a result. Further, he suggested that the camp would be a constructive opportunity for X to positively engage in something, and the camp is a special event in the organisation that does not take place every year. The mother then said that X could attend if he wishes.
The mother accepted that the organisation is very important to the father and is important for his sense of identity, including as a father. The father has been involved in the organisation himself. The mother has not been involved.
The mother conceded that, with respect to the issue of scouts, she has also contributed to the conflict. She acknowledged that her seeking to be the primary parent and contact parent for emergencies is a source of conflict. The mother says that was not her intention.
The father says that Y is extremely keen on becoming a cub on her eighth birthday and has seen her older brother engage in scouts and her father assisting him and being a cub leader. The mother refused to consent to Y going to a cubs’ camp a few months prior to her eighth birthday. The mother went further than not just consenting to Y going on the camp and contacted the Chief Commissioner of Scouts Victoria to prevent her from going on this camp. The mother agreed that the father was going to be a cub leader at that camp and that the children have spent extended periods of time in the father’s care over the school holidays.
This incident needs to be seen in context. The father controls Y’s Operoo profile, which provides medical and other confidential information to the scouting organisation about the children. The mother strongly opposes the father’s references in that profile to Y suffering from vaginitis. The mother said she did not think that Y was ready for the camp. She agreed that the medical information on that profile was a major concern to her and she made very clear that it remains a major concern for her because what is described in that document would provide an unscrupulous adult with an opportunity to violate Y and get away with it. It is necessary to set out what the father says in that profile:
Y had recurrent vulva vaginints [sic] and will require support to ensure that the area is clean/not irritated on camps particularly. Medication will be provided when necessary.
The mother objected to this being included in Y’s Operoo profile. The father amended the profile to read as follows:
Y had recurrent vulva vaginitis that may flare up during camps. Y should be gently reminded to ensure she gives everywhere a good wash prior to showering on camps when activities or planning dictates that a shower is appropriate. Y will ensure she make a leader aware (preferably her dad) if she experiences any discomfort so that her father can provide the care and support she may need.
I accept that this is not a public document, but is available to leaders in the movement and to those to supervising the children at camps and other activities. The father took great offence at the mother contacting the head of Scouts after the father refused to amend Y’s Operoo profile given the mother’s concerns. The mother only had viewing access to the profile and could not amend it herself. In response, the father wrote a four page letter to the Chief Commissioner of Scouts where he goes into detail far beyond the scope of Y’s Operoo profile. In that letter, he complains that the mother’s concerns are a smear on his character. No doubt this is how the mother has felt about many of his comments about her to numerous third parties. I also find the descriptions in Y’s Operoo profile troubling because it blows out of proportion something that is a minor childhood infection, which girls suffer from time to time and has the potential to cause Y a great deal of embarrassment. I further note that the mother was also opposed to Y attending the camp as at that time Y was around seven and a half years old, and it is scouts policy that children need to be eight to attend cub camps.
The father’s case is also that the mother was unreasonable in wanting Y to participate in cubs at Town MM, rather than at Town R where the father volunteered. Again, there is a context to the mother wanting Y to participate at Town MM. This is in the practical difficulty the mother would have in taking Y to cubs where there is a 20 to 25 minute drive from Town MM to Town R, and where the cubs’ sessions were held on the same day as her dance classes – something which Y has been doing for many years. This was really a logistical concern and is particularly relevant in the context of the father’s absolute inflexibility when it comes to this type of issue. In re-examination, the mother said that the dance classes on Wednesdays went from 4.15pm to 5.15pm. The mother would then need to drive 15 minutes to Town K and then a further half-hour drive if she was to take Y to cubs at Town R starting at 6.30pm and then picking her up to take her home in 8:00pm or 8.30pm. Those logistical difficulties have been resolved by the mother buying a home in Town H.
THE FATHER’S CRITICISMS OF THE MOTHER

Ms W was cross-examined about whether the parenting coordinator would be able to assist the parties in relation to the flow of information to third parties to which she responded saying yes. She further explained they tend to have extensive agreements around what information goes to whom and the allocation of roles and responsibilities.
The mother was initially resistant to a parenting coordinator being appointed due to her concern that such a platform would be a further continuance of the conflict and the family violence that she experiences the father’s conduct as being. Ms W said that part of the function of the parenting coordinator is to arrange a safe platform with safety to come before anything else. She pointed out that these parents need some sort of mechanism to communicate around the children’s needs. She confirmed that parenting coordinators, just as family consultants and report writers, conduct an initial risk assessment. In her view, a parenting coordinator would be an invaluable tool for the parties regardless of how parental responsibility is allocated.
Ms W ultimately agreed the parties in this case would benefit from a parenting coordinator, stating they are valuable, even if only for the benefit of avoiding further litigation.
I asked Ms W to expand upon what is meant by the triangulation of the children for the parties benefit and she said the following:
Ms W: So what happens for children, particularly children in that middle – in that middle childhood developmental stage, is that because – because they experience the conflict as confusing and because they – there is stress associated with that confusing/competing ideas from their parents about who is right and wrong, what children do to alleviate that stress associated with it is they start to sort of, firstly, feel as though they – they can start to find solutions for – for the parental conflict. But possibly more damaging is that they start to align themselves with one particular parent. And that becomes sort of overwhelming because the alternative is staying in this stressed confused state. So if we – if I take this case, for example. So let’s just say that Y is getting messages from her father that her mother is unsafe. Now, Y is getting those messages, but in fact she experiences her mother as very safe. So she feels safe, but she’s being told by a trusted caregiver that her other caregiver is unsafe. Now, that is confusing. That is fundamentally confusing. And so what Y might start doing, if that is persistent – if that is persistent, then Y might start to adopt a particular view that alleviates the stress associated with those – those two competing ideas. And so we might start seeing Y start to talk about Mum being unsafe. She might make remarks that she doesn’t necessarily believe are true but that help her align herself with this idea that her father has that Mum is unsafe. So she doesn’t – she doesn’t feel it, but she says it. And in the saying – in the saying of it, there is – there is an immediate feeling of a release of that stress. What then happens is what the parents do with that. So most reasonable parents will say, “Well, this is what kids do. You know, we’re in a conflicted relationship,” but some parents will act on that and start to see that as support for their view that that parent is unsafe. So it – it – it – it’s cyclical and it – and it – and it – and it grows very quickly. And it is transmitted to children very easily, both in verbal cues and in non-verbal cues.
She also confirmed that as this Court commonly observes in high conflict cases, children will say things to each of their parents that are contradictory because they think that is what their parents want to hear. Certainly there are a few comments that both children have made that raise this concern. Ms W said children can say things, including negative comments about the other parent, which temporarily can make both the child and parent feel better. It can relieve some of the stress that the parent feels for the children, which then feeds into what the parent is thinking and can become a self-fulfilling prophecy. For high-conflict parents, changeovers that do not occur in mutual spaces can become an “opportunistic and irresistible” situation for the parent, exposing the child to risk. She further explained that when children talk about the conflict between their parents, they often talk about their parents’ facial expressions, so the conflict need not be overt for the children to be highly aware and sensitive to it. It is also common for the parents not to be conscious of their actions and the impact of their non-verbal communication, Ms W said that when she points out these facial expressions in parenting observations, they are surprised because what they are trying to do is to refrain from engaging in conflict. But that mutual experience, of the parent’s remaining tense and neutral, trying to refrain from engaging in conflict, can be interpreted by children as equalling something negative. This is why so many children talk about just wanting their parents to be friends, similar to how Y in her interview talked about wanting everybody to be happy. Ms W spoke about how when parents separate, children often expect the conflict will not continue, so when the conflict does continue, children can be confused. The children can feel somewhat hopeless about the situation.
RESTRAINTS THE PARTIES SEEK
One of the complaints the father makes against the mother is about her drinking alcohol when the children are in her care. The father seeks an injunction restraining the parties from drinking alcohol when the children are in their care. He continued to seek this order even though there is no evidentiary basis for it. It concerned me that the father gave evidence that X had taken to checking the recycling bin. This seems utterly disproportionate given the lack of any evidence elsewhere that the mother drinks alcohol to excess. Whether consciously or not, it is likely that the father has encouraged X to report these types of things back to him. Y also mentions the mother having a special glass that she brings to the mother. When cross-examined further about this, the father could not remember the details as to what he said to the children when they raise these things with him. He said he probably tries to rationalise the situation and listen to them and not say very much. He said that he recalls the impact of the conversation and records the “harm and the injury that has been caused to them.” The father shows no insight at all with respect to this and clearly has not considered the possibility that what the children tell him may not be accurate. The children would be keenly aware of the attention that they receive from their father when they report things like this to him. It is natural for children to seek to please their parents. The risk to the children really lies in the father’s behaviour and fixed beliefs, not the mother’s. There is no evidentiary basis for the injunction restraining the parties from drinking alcohol. I decline to make it.
The mother seeks a range of injunctions against the father which are aimed at reducing the risk posed by the father’s unilateral communication with the medical treaters undermining the mother. I am satisfied that most of the injunctions are necessary to protect the mother and the children. She sought an injunction restraining the father from filling scripts and giving the children prescription medication other than in accordance with the written directions of a medical practitioner. Given the surrounding restraints the mother seeks that will prevent the father from unilaterally taking children to doctors and engaging in unilateral communications with third parties, I am not satisfied that that particular restraint is necessary. There is no evidence that the father gave the children unnecessary medication. The balance of the injunctions sought by the mother address specific behaviours the father has engaged in, which has undermined the mother’s parenting and harmed the children.
LEGAL PRINCIPLES
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) These considerations include the views of the child, the nature of the child’s relationship with their parents and significant others, the extent to which the parents have or failed to take opportunities to participate in decision-making, spending time with and communicating with the child, the likely effect of separation on the children, the attitude of the parents to the responsibilities of parenthood and the capacity of the parents and significant other persons to provide for a child’s needs.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
Family Violence
The definition of family violence at s.4AB of the Family Law Act is broad:
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
a.an assault; or
b.a sexual assault or other sexually abusive behaviour; or
c.stalking; or
d.repeated derogatory taunts; or
e.intentionally damaging or destroying property; or
f.intentionally causing death or injury to an animal; or
g.unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h.unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
i.preventing the family member from making or keeping connections with his or her family, friends or culture; or
j.unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
a.overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
b.seeing or hearing an assault of a member of the child's family by another member of the child's family; or
c.comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
d.cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
e.being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
The father’s family violence concerns
The father says throughout their relationship, the mother would lose her temper and speak in a raised voice and he would have to go to another room. This general statement does not assist. In his affidavit he says that on 8 June 2019, the mother left the house in anger and frustration to give herself some thinking space. He says she later sent a text message writing “I am sorry for yelling and losing the plot. I’ll [be] home later – not for dinner – I need to calm down.” The father repeatedly refers to the mother being violent in his correspondence with various professionals. This single text does not support a course of family violence. Not every instance of someone becoming angry and aggressive is family violence; context is important. It appears rather that the parties’ temperaments were not well suited to each other.
On 28 February 2020, the father made a complaint to the police and obtained an intervention order against the mother on behalf of the children. The mother consented to a final order without admission which expired on 30 January 2021. The father’s concerns largely related to what he says was behaviour perpetrated by the mother post separation and also concerns before separation. He provides an example in his affidavit of the incident that took place on 1 February 2020 where he says the mother threw a container of CDs “at or near him.” X witnessed this incident. The mother concedes that there was an incident at the home where she was gathering some of her belongings. She says she became frustrated and threw some CDs. Throwing the CDs, whether she intended to hit the father or not, is an act of violence. However it appears to be an isolated incident. I am not satisfied that the mother has engaged in a course of family violence in the circumstances of the separation.
The father further highlights two occasions on 15 February 2020 and 18 February 2020 whereby the mother removed items of joint property without the father’s knowledge or consent. The father says in his affidavit that what the mother removed from the house was significant and that when the children returned home on the first occasion, Y and X both “screamed with extreme force and cried.” I accept that the father found the CD incident and the mother removing items from the home distressing. The children would have also been distressed and would have picked up on their father’s discomfort.
The father says the mother’s behaviour caused significant psychological and emotional distress to him and the children. There is an underlying assumption by the father that the mother was not entitled to remove any joint items from the property unless he agreed. It is difficult to see how at that time the parties could have engaged in any reasonable communication about her removing items from the home. The father’s position with respect to the mother removing some joint items was high-handed and unreasonable.
The father says he felt like the mother was continually setting him up and encouraging him to do something to have him kicked out of the home. He does not provide any examples or context with respect to this assertion. If he is referring to her attending the home and removing items, he is missing the point. He had a much higher income and she needed to re-house herself and the children. She may have gone about it in a way that increased the conflict between them, though both were dealing with the stressful situation post-separation.
The father also refers to needing to take eight days of leave to recover. When cross-examined, the mother confirmed that it is not part of her case that the father’s reactions are not genuine. They are however disproportionate. It also appears that it has become fixed in the father’s narrative that the mother is violent and the children are at a continuing risk of this. However what the father repeatedly refers to is the mother yelling and getting angry. The mother certainly concedes that she has at times lost her temper and yelled and further conceded that the father does not cope that well with that. She says at those times she was not coping well either. With respect to the mother, her conduct does not reflect someone engaging in coercive and controlling violence but reflects the fact that the parents had a maladaptive way of coping with the stresses between them and poor communication. It is unrealistic to expect someone to never get angry or upset. It is part of being human. Certainly the CD incident escalated beyond this to an incident of violence but I am satisfied that this was isolated.
Both parents behaved in manners that were not ideal during this early period of separation. This is very common as regardless of who ends the relationship, particularly a long-standing relationship with children, it will inevitably be a very stressful and emotional time for both parents and children.
The mother’s family violence concerns
Whilst I have found that the mother was responsible for an incident of violence, she has not engaged in a course of family violence. Her actions need to be seen in the context of separation and may also have been an instance of violent resistance in the context of responding to the father’s controlling and punitive actions.

What I now have to consider is whether the father’s actions are gatekeeping behaviours driven by anxiety or whether they are coercive controlling violence. Having considered the totality of the evidence, I find that the father’s behaviour goes beyond that of anxious gatekeeping and falls within the definition of coercive and controlling violence that has persisted. His actions have gone beyond that of a concerned parent advocating for his children’s medical needs. He has characterised the mother as violent and abusive and expressed this view persistently over time, and has sought to align various third parties involved with the family to his side and has undermined and denigrated the mother. He has continued to do this in spite of the expert evidence that the mother is not a risk to the children. Hs conduct goes beyond raising concerns about the children’s wellbeing and seeks to align third parties to his views which include a negative view of the mother’s parenting capacity. His continuing conduct in engaging in unilateral communications with doctors and seeking to influence their decision making and directing them not to share information with the mother is harmful and is not in the children’s best interests. It is also not the case that the father has always been shown to be right with respect to his concerns about the children’s health as has been demonstrated in the discussions above.
Given my findings about the father’s coercive control, the presumption that the parents should exercise equal shared parental responsibility does not apply. I find it is in the children’s best interests for the mother to have sole parental responsibility for education and medical issues. I will make those orders sought by the mother which oblige her to inform the father of pending decisions and consider his views, as the father does have valuable contributions to make.
The children have valuable relationships with both parents which will continue. There is little evidence of the children’s views with respect to their living arrangements. Subject to the concerns addressed above, both parents are able to provide for the children’s physical and intellectual needs. There are some limitations on the father’s ability to provide for their emotional and psychological needs. Neither parent raises concerns about the other’s maintenance of the children.
CLOSING SUBMISSIONS
In closing, the mother’s counsel submitted that at the heart of this case is the concept of risk and that the concept is used very differently by the parties. She urged the Court to find that the father has engaged in coercive and controlling family violence and that it is necessary to look at both the father’s past conduct, which has been referred to in these reasons in some detail, and what the father says he is going to do about that conduct that informs future risk. She further submitted that even if the Court were to find that, rather than it being coercive and controlling family violence, they are an act of gatekeeping by the father and the impact of his conduct is the same either way. The evidence amply demonstrates the father engaging in a course of conduct that goes beyond anxious gatekeeping and genuine but disproportionate concern. Whether he was conscious of it or not, he has engaged in a course of conduct that is malicious and designed to remove the mother’s sense of agency and undermine her relationships with various professionals and diminish her parenting. The father’s lack of insight is what makes this so concerning as it is unlikely that his views will change and as such his behaviours will continue.
As discussed above, the mother also contributed to the conflict and has not always acted in the children’s interest. Her conduct needs to be seen in context of the attacks by the father both direct and indirect. Much of these only became known to the mother by inspecting subpoenaed material. In the letter dated 12 August 2020, the mother’s lawyers tell the father’s lawyers they object to inappropriate texts from the father to the mother, his accusations of her family violence, as well as his continuing unilateral communications and accusations against the mother to other agencies, including the Department and the police. His behaviour did not change and has continued up to the trial. Significantly, the father continued to maintain throughout the trial that the mother is a risk to the children.
Despite the attacks to her character, and in contrast to the father, the mother has shown an ability to be flexible with respect to requests made by the father for additional time. For example in Easter 2021, and also enabling the father to take X to interview for the enhancement program, which was important to him. In that instance and also another instance where X has been at a camp close to the mother’s time when changeover was due to take place, the mother requested changeover take place near her home rather than at Town H, as it was some distance away from the mother. The father refused. At one point during cross-examination, he said he was so afraid to go to the mother’s, yet he did not suggest that changeover takes place at the camp, or some other public location near the mother, for example. The father’s inflexibility did not consider the children’s interests. The times the mother refused to accede to the father’s demands resulted in one occasion of the father calling the police and X thinking that the mother has abandoned him. This resulted in numerous complaints by the father about the mother breaching orders which did not exist.
The father has not demonstrated any insight into his behaviour and has not taken on board the comments of the experts. Significantly throughout the trial he did not move from his position that the mother is a risk to the children. Given this, unless restraints are placed on the father’s conduct, it is likely to continue.
The mother’s orders are detailed and appear to micromanage matters but I accept the mother’s counsel’s submissions that is necessary in the context of this case.
I also note that the mother’s orders for sole parental responsibility also refer to extracurricular activities. There might be some argument about whether or not those activities fall within major issues concerning the children’s care, welfare and development, but certainly they can be the source of much conflict. It also depends significantly on the context. In this case it will be important that the mother is able to find out information in a timely manner and be able to make a decision with respect to issues, for example the children’s attendance at the scout jamborees. However, as the orders proposed by the mother specifically address Y’s dancing and the children’s participation in scouts, which are the major extracurricular activities the children are involved in, I do not think it is necessary for the mother to exercise sole parental responsibility for extracurricular activities.
The father’s counsel submitted that equal shared parental responsibility was in the children’s best interests because of the valuable contributions the father has to make to their lives. He said that the difference would be between being in an advisory role for Parliament rather than being able to cast a vote. The father’s counsel pointed to examples where the father’s persistence paid off and gives the treatment of X’s impetigo as an example, and the father’s concerns about the enhancement program. However, as I have already indicated there are other instances where the father’s views with respect to medical issues were not correct and yet he persisted. For example, maintaining that X needed a preventer inhaler despite his GP and paediatrician forming the view that he did not.
He submitted that carefully drafted, nuanced orders and restraints would be enough to make equal shared parental responsibility work. I do not share his optimism in that regard. It was also significant that when I asked what the father’s position was with respect to Dr P’s evidence given in cross-examination that morning regarding the father undergoing a psychological assessment for Asperger’s Syndrome, he did not have updated instructions to whether or not he was amenable to engaging with the therapist and seeking treatment. He said it was not something that his client would do lightly. I indicated that the father needs to understand that this could be an important consideration as to whether or not equal shared parental responsibility or sole parental responsibility would be in the children’s best interests. I gave him the opportunity to take instructions over the lunch break.
The father’s counsel urged me not to label the father’s conduct as malicious and said it did not fit the definition of controlling and coercive violence but was as a result of his personality traits, his rigidity, his tendency to catastrophise and his overreactions.
The father continued to press for an additional overnight with children and for changeovers to occur not at school, but at 7.30pm.
After the lunch break the father’s counsel proposed that the father would submit to an order on the following terms:
the father do all things and attend upon a clinical psychologist or psychiatrist for assessment and diagnosis in respect to any adjustment disorder or possible Asperger’s syndrome, and for this purpose, the father shall follow all reasonable directions and recommendations with respect to his treatment.
The father’s counsel said that the above order would provide a further safety net. However, the proffered order does not give me confidence that the father would be willing to engage in a course of treatment so that he receives a diagnosis. It is therefore unlikely that the father’s beliefs about and attitude towards the mother are likely to change. Whilst the parenting coordinator will assist the parties, I do not think that it is enough to support an order for equal shared parental responsibility.
CONCLUSION
This case presents dilemmas for the Court, as whilst on the surface it may appear that the issues in dispute are narrow, the fundamental differences between the parties is that the mother recognises that the father is a good parent, (apart from the risk issues arising out of his attitudes and beliefs discussed above), whereas the father, in spite of expert evidence to the contrary, remains fixed in his view that the mother is a risk to the children. Both propose the children will continue to spend substantial and significant time with both their parents.
The risk issue centres on the father’s inability to facilitate the relationship between the children and their mother and his negative attitude towards the mother, which risks the children being in a loyalty bind. This is because they may feel forced to choose one parent over the other to avoid conflict. One solution to some of these issues is to assign the mother sole parental responsibility for medical and education issues – but there is a risk that that may have its own dilemmas. Particularly given the father’s own childhood experiences of cancer, it is understandable that he places importance on the children’s medical issues being addressed. This means he is especially sensitive to the issue of having potential problems identified and treated early. It does not explain his refusal to accept medical recommendations which do not accord with his opinion (such as in the case of the asthma preventer) or his instructions to specialists to withhold information from the referring GP. I am not satisfied that the mother neglects the children’s medical issues as the father alleges and that she does not take their medical issues seriously. The focus has primarily been with respect to the father’s unilateral interactions with medical professions, noting that the issue of X’s high school was resolved shortly before the trial, but has involved various other third parties who interact with the family. I am satisfied that the risk issues apply to education and medical issues.
Furthermore, people can have different perspectives that are both perfectly reasonable and genuine, but the conflict is strong and the distrust between the parents is such that they can take undermining positions. The father does catastrophise and if the mother does not agree with him he tends to see this in terms of neglect. I also have some concerns that the father tends to want to label the children and may cause the children to worry excessively about their health and development. Both children have had asthma. I was somewhat concerned to hear that the father has a pulse oximeter at home that he puts on the children’s fingers. He does not indicate whether it was recommended that he do that. It would be more common for a doctor to recommend a peak flow metre be used at home to measure lung function in cases with chronic severe asthma. It is apparent that neither Dr M nor Dr B have considered this necessary.
To exclude the father from decision-making for the children’s medical and education issues carries with it some risk as the father has important and valuable things to contribute with respect to the children’s medical and education issues. I am certainly satisfied that regardless of whether or not the parents exercise equal shared parental responsibility or the mother exercise sole parental responsibility for education and medical issues, the father must be restrained from unilaterally communicating with any professional involved with the children because of its potential to damage and undermine the mother’s parenting.
Wherever possible, the changeovers should take place via the children’s school to avoid the parents coming into contact with each other. Having the changeovers take place at school also provides the children with some psychological space in between transitions. The father maintained his opposition to changeovers at school and wants instead for changeovers to take place at 7.30pm on the night he is due to return the children so that he can have those additional few hours with the children when he is not working. This is more about his needs than the children’s. Ms W identified the contrast in the parents approach to this, she noted the mother’s proposal was more balanced, where she showed a willingness to incorporate parts of the father’s roster, whereas the father’s approach was more self-interested in wanting to have the children whenever he has time off and when he was working they could be cared for by the mother, who he continues to regard as unsafe.
I have some concerns about the father thinking it appropriate to rely on X, particularly given his age, to get himself up and ready for school on the mornings that the father has an early shift. The father saw no problem with this when questioned, saying the school is a 10 minute walk from his home. Even if X did not have ASD that is a lot of responsibility to place on a child in his first year of high school. The father’s proposal does not concern Y as the father proposed that X have an additional night with him. It strikes me that if the mother made a similar proposal the father would accuse the mother of neglect.
I am confident that the father will comply with Court orders if the orders are detailed and clear. I think it is necessary to make an order restraining the father from unilaterally communicating with any of the children’s medical treaters. The father seeks a mutual restraint on the parties with respect to drinking alcohol. There is no evidentiary basis for such an order.
Given his history, it is easy to understand why the father is passionate about medical issues. I accept that the father is genuine in his views, but that does not alter the ongoing risk to the children. Having considered the evidence, I am satisfied that the risk to the children stems from the father’s view of the mother being a risk to the children and intentionally or not, conveying this to the children, as well as his undermining of her parenting. There is a danger of the father pathologising the children’s medical conditions, particularly Y’s own medical conditions. What is concerning is that there are so many instances of the father communicating unilaterally with medical professionals in a way that is incredibly undermining of the mother as a parent, and also without appreciation of the fact that his view is not the only valid view in the circumstances. It may have been more valuable for doctors to be aware of both parents’ views from the outset. I have a concern that the children may have a heightened or distorted view of their health.
Given the volume of correspondence and the level of control that the father seeks to exert I am somewhat surprised that none of the doctors involved in the children’s care have refused to continue working with the family. On balance, I have determined that it is in the children’s best interests for the mother to exercise sole parental responsibility for medical and education decisions subject to the orders she seeks that will ensure the father is still able to participate in those decisions and which make clear what decisions have already been made.
With respect to overseas travel, I will change the mother’s suggested order of the travelling parent providing 45 days’ notice to the other parent to 60 days’ notice. This will ensure enough time to file any application or objection with the Court if it becomes necessary.
I will not make an order granting the mother sole parental responsibility over the children’s extra-curricular activities as she sought in her minute of orders handed up at the end of trial. Her orders comprehensively address the extra-curricular activities the children are to undertake. The father is heavily involved in the children’s scout and cub organisation and is likely to know more and want to engage in upcoming activities and events. As discussed earlier, the father has stated that his participation in scouts is important to his identity as a father, to which the mother has agreed. Given how important scouting is for the father and his involvement in the children’s lives, it would not be fair to remove his decision making power with respect to scouts and the children’s other extracurricular activities.
The mother’s concern with respect to Y’s Operoo profile can be resolved with her proposed orders restraining the father from including any reference to Y’s vaginitis in her Operoo profile, and in the mother having full access and editing capability for both children’s Operoo profiles.
The parents have had other disagreements regarding the children’s extracurricular activities, however these mostly occurred when the mother was living further away and there were difficulties in arranging travel. Other issues the parents have had or are likely to have in future with respect to the children’s extracurricular activities are likely to stem more from the parents’ communication difficulties. Any issues that arise can hopefully be resolved with the help of the parenting co-ordinator.
The mother sought to restrain the father from enrolling the children in any other extracurricular activity and an order for the father to facilitate the children’s attendance at extracurricular activities. I am not satisfied that the injunction is necessary. Instead, I will make an order preventing both parents from enrolling the children in any other extracurricular activity that occurs during the other parent’s time unless without written consent. I will also include an order for both parents to facilitate the children’s attendance at extracurricular activities.
For these reasons I have given I am satisfied that these orders are in the children’s best interests.

I certify that the preceding one hundred and ninety-seven (197) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Harland.
Dated: 8 February 2022

File number(s):	MLC 10289 of 2020
Judgment of:	JUDGE HARLAND
Date of judgment:	8 February 2022
Catchwords:	FAMILY LAW – Parenting – whether or not either parent is a risk to the children – whether or not the parents should exercise equal shared parental responsibility – treatment of medical issues – family violence allegations – parenting coordinator.
Legislation:	Family Law Act 1975 (Cth), pt.VII, ss.4AB, 60B, 60CA, 60CC, 61DA, 64, 65D, 65DAA
Cases cited:	Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Waterford & Waterford [2013] FamCA 33
Division:	Division 2 Family Law
Number of paragraphs:	197
Date of hearing:	29, 30 November 2021 and 1 December 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Stanley
Solicitor for the Applicant:	Kennedy Partners
Counsel for the Respondent:	Ms Johnston
Solicitor for the Respondent:	Hargreaves Family Lawyers

MLC 10289 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR GILL Applicant
AND:	MS INGRAM Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	8 FEBRUARY 2022

Name	Practice	Qualification	Description
Dr B	C Health Clinic	Paediatrician	X’s Paediatrician
Dr D	Paediatric Gastroenterology Victoria	Paediatric Gastroenterologist	Y’s Paediatric Gastroenterologist
Dr M and Dr Z	K Medical Group	General practitioners	Both X and Y have seen a variety of GPs at this clinic, but primarily Dr M and Dr Z. They currently primarily see Dr M.
Ms E	F Clinic	Occupational Therapist	Assists X in relation to handwriting
Ms AA	F Clinic	Occupational therapist	Provided X with hippotherapy (therapy involving horses) between October 2018 and October 2020
Ms BB	CC Psychology	Psychologist	Treated X between September 2019 and December 2020.
Ms DD	EE Clinic	Expert in speech pathology	Saw X in April 2021 for assessment of X’s phonological processing, reading and spelling
Ms FF	Psychologist	X’s previous psychologist between 2016 and 2019.
Dr GG	HH Psychology	Educational and Psychology Services	Undertook a cognitive assessment of X in May 2021