Grafton & Gorecki - [2023] FedCFamC1F 452

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
FIRST INSTANCE

Grafton & Gorecki [2023] FedCFamC1F 452

File number(s): SYC 8351 of 2016

Judgment of: CAREW J

Date of judgment: 29 June 2023

Catchwords: FAMILY LAW – PARENTING – Order for sole parental responsibility to the father in circumstances where the father is less likely to place the burden of parenting decisions onto the children – Where there is likely to be a continuing risk posed by the mother of emotional and psychological harm to the children by inappropriately involving them in parenting decisions and in the conflict more generally – Where on balance an order for equal time, week about is in the children’s best interests - Where such an arrangement is more likely to reduce the risk posed by the mother, both parties seek an order for equal time in relation to at least the two youngest children, the children have historically spent close to equal time in each household, and the independent children’s lawyer supports the arrangement - Where the mother is restrained from relocating the children’s residence further than 15 kilometres from Suburb C Post Office – Where the mother is restrained from attending at medical or other allied health appointments for the children so as to remove the children from exposure to a source of potential conflict

Legislation:
Evidence Act 1995 (Cth) ss 140

Family Law Act 1975 (Cth) ss 4, 4AB, 43, 65D, 64B, 60B(1), 60B(2), 60CA, 60CC, 60CG, 61C, 65DAC

Cases cited:
Baghti & Baghti and Ors [2015] FamCAFC 71

Banks & Banks (2015) FLC 93–637

Eastley & Eastley [2022] FedCF1A 101

Isles and Nelissen [2022] FedCFamC1A 97

Johnson & Page (2007) FLC 93-344

M v M (1988) 166 CLR 69

N and S and the Separate Representative (1996) FLC 92–655

Number of paragraphs: 146

Date of hearing: 8 - 10 May 2023

Place: Heard in Sydney, delivered in Brisbane

Counsel for the Applicant: Ms Seric

Solicitor for the Applicant: Nolan Lawyers

The Respondent: Litigant in person

Counsel for the Independent Children’s Lawyer: Ms Rebehy

Solicitor for the Independent Children’s Lawyer: JLM Family Lawyers Pty Ltd
ORDER

SYC 8351 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GORECKI

Applicant

AND:
MS GRAFTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CAREW J

DATE OF ORDER:

29 JUNE 2023

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.

Parental responsibility
2.The father have sole parental responsibility for making decisions with respect to major long term issues as defined by s 4 of the Family Law Act 1975 (Cth) pertaining to the care, welfare and development of the four children of the marriage, namely:
~~(a)~~W born 2008;
~~(b)~~X born 2010;
~~(c)~~Y born 2012; and
~~(d)~~Z born 2012,

(“the children”).
3.In the exercise of his sole parental responsibility:
(a)the father shall notify the mother of the decision to be made and invite the mother’s input who may provide her input in a message to the father sent via WhatsApp;
(b)if the father does not receive a response from the mother within seven days of his notification, then he is not obliged to take any further step prior to making the decision; and
(c)upon making the decision the father shall inform the mother of the decision he has made.

Children’s residence
4.The mother is restrained from relocating the residence of the children beyond a radius of 15 kilometres from the Suburb C Post Office without the prior written consent of the father.
5.The mother is restrained from permitting, causing, or allowing the children to stay at the mother’s residence at B Street, Suburb D, or elsewhere beyond a radius of 15 kilometres from Suburb C Post Office, except on weekends or during school holidays when the children are in the mother’s care, without the prior written consent of the father.
6.Each party shall notify the other within 24 hours of any change of their address and/or landline and/or mobile number and/or email address.

Live with arrangements – school terms
7.Except as otherwise agreed in writing, the children shall live with the father, commencing on the first Friday after the making of this Order, from after school Friday (or 3.00pm in the event the child/ren do not attend school that day), to after school the following Friday (or 3.00pm in the event the child/ren do not attend school that day), and each alternate week thereafter.
8.Except as otherwise agreed in writing, the children shall live with the mother, commencing on the second Friday after the making of this Order, from after school Friday (or 3.00pm in the event the child/ren do not attend school that day), to after school the following Friday (or 3.00pm in the event the child/ren do not attend school that day), and each alternate week thereafter.

Live with arrangements – school holidays
9.Except as otherwise agreed in writing, the children shall live with each of the father and mother during the Term 1, 2 and 3 school holiday periods as follows:
(a)During the Term 1 school holidays in accordance with the cycle of alternating weekly time as provided by paragraphs 7 and 8 of this Order;
(b)During the Term 2 school holidays in odd numbered years commencing in 2023 in accordance with the cycle of alternating weekly time as provided by paragraph 7 and 8 of this Order;
(c)With the father for the whole of the Term 2 school holiday period in even numbered years commencing in 2024 from after school on the last day of the school term (or 3:00pm in the event that the child/ren do not attend school that day) and concluding at 3:00pm on the Friday immediately prior to the first day of Term 3 when the alternating weekly cycle of time pursuant to paragraphs 7 and 8 of this Order shall recommence with the children living with the mother;
(d)During the Term 3 school holidays in odd numbered years commencing in 2023, in accordance with the cycle of alternating weekly time as provided by paragraphs 7 and 8 of this Order;
(e)With the mother for the whole of the Term 3 school holiday period in even numbered years commencing in 2024 from after school on the last day of the school term (or 3:00pm in the event that the child/ren do not attend school that day) and concluding at 3:00pm on the Friday immediately prior to the first day of Term 4 when the alternating weekly cycle of time pursuant to paragraphs 7 and 8 of this Order shall recommence with the children living with the father.

10.The children shall live with each of the father and the mother for one half of the Term 4 school holiday period as follows:
(a)With the father for the first half of the school holiday period in even numbered years commencing from after school on the last day of school in Term 4 (or 3:00pm in the event that the child/ren do not attend school that day) and concluding at 3:00pm on the middle day of the school holidays, and with the mother for the second half of the school holiday period commencing at 3:00pm on the middle day of the school holiday period and concluding at 3:00pm on the Friday immediately prior to the first day of Term 1 when the alternating weekly cycle of time pursuant to paragraphs 7 and 8 of this Order shall recommence with the children living with the father;
(b)With the mother for the first half of the school holiday period in odd numbered years commencing from after school on the last day of school in Term 4 (or 3:00pm in the event that the child/ren do not attend school that day) and concluding at 3:00pm on the middle day of the school holidays, and with the father for the second half of the school holiday period commencing at 3:00pm on the middle day of the school holiday period and concluding at 3:00pm on the Friday immediately prior to the first day of Term 1 when the alternating weekly cycle of time pursuant to paragraphs 7 and 8 of this Order shall recommence with the children living with the mother;
(c)If the number of days in the school holiday period is an odd number, the extra day will be spent with the parent who has the children for the second half of the holidays;
(d)For the purposes only of calculating the number of days in the school holiday period: if the children finish school in Term 4 on different days, the holidays commence on the day the last child finishes school and conclude on the Friday immediately prior to the first day of Term 1.

Special occasions
11.Except as otherwise agreed in writing, the operation of this Order in so far as it relates to the periods of time that the children are to live with each parent is to be suspended to enable the children to spend time with the parents on the following occasions:
(a)With the mother each Mother’s Day from 10.00am to 6.00pm;
(b)With the father each Father’s Day from 10.00am to 6.00pm;
(c)For the Christmas festive season with the father from 6.00pm on 23 December until 10.00am on Christmas Day and with the mother from 10.00am on Christmas Day until 6.00pm on Boxing Day.

Changeovers
12.Except as otherwise agreed in writing, on occasions when a changeover does not occur at school, the parent with whom the children are living ("Parent 1") shall deliver the children to the residence of the other parent ("Parent 2") at the commencement of the time specified, and Parent 2 shall return the children to Parent 1 at the conclusion of such time.

Medical issues and emergencies
13.Each parent is to immediately notify the other of any emergency with respect to the children while in the care of that parent by telephone or SMS.
14.Except in the event of a medical emergency, the father is to ensure that the treating General Medical Practitioner (“GP”) for the children is Dr E at F Street, Suburb C for so long as he is in practice.
15.Except in the event of a medical emergency, the mother is restrained from taking the children or any of them to any medical or allied health appointment or from attending any such appointment, including but not limited to an appointment with a GP, paediatrician, counsellor, therapist, psychologist and/or psychiatrist without the prior written consent of the father.
16.Within 7 days from the making of this Order, the mother shall provide the father with the names and details of all of the medical and health care professionals treating the children, including but not limited to GP(s), paediatrician(s), psychologist(s), psychiatrist(s) and/or therapist(s) together with a list including date, time and place of any upcoming scheduled appointments for the children.
17.This Order authorises the father to attend all appointments, obtain all records and receive information and copies of documents, and communicate with, each child’s treating medical and health care professionals, including but not limited to GP(s), paediatrician(s), psychologist(s), psychiatrist(s) and/or therapist(s).
18.The father shall provide the mother with a copy of any written report he receives from any medical or health care professional treating any of the children, including but not limited to GP(s), paediatrician(s), psychologist(s), psychiatrist(s) and/or therapist(s) and provide the mother with an update of any treatment provided to the children, other than as set out in any such report, no less than once per month.

Communication between the parents
19.The parents shall only communicate with each other by WhatsApp unless in the event of an emergency as provided for in paragraph 13 of this Order.

Education
20.The father shall do all acts and things and sign all documents as may be necessary to complete and facilitate the enrolment of:
(a)W, at G School, Suburb H Campus for the remainder of his secondary education commencing in 2024 and at Suburb C Campus for the remainder of 2023;
(b)X, at J School for the remainder of her secondary education;
(c)Y:
(i)At G School, Suburb C Campus for Year 7 until Year 10 of her secondary education; and thereafter
(ii)At G School, Suburb H Campus for the remainder of her secondary education being Year 11 and Year 12;

(d)Z:
(i)At G School, Suburb C Campus for Year 7 until Year 10 of his secondary education; and thereafter
(ii)At G School, Suburb H Campus for the remainder of his secondary education being Year 11 and Year 12.

21.Each parent is permitted to receive copies of the children's school reports and notices regarding school activities and events and each parent is to be responsible for arranging for the children's school/s to provide them with such reports and notices at the requesting parent’s cost.
22.Each parent is at liberty to attend all school functions, sporting fixtures or extracurricular activities and events at which the attendance of parents is permitted or required, whether such events occur during the time the children are spending with that parent or not.

Extracurricular activities
23.The father and the mother are restrained from causing the child/ren to be enrolled in any extracurricular activity or sporting event that requires the child/ren’s attendance during the time the children are living with the other parent, without the prior written consent of the other parent.
24.Each parent is to ensure that the children attend extracurricular activities and events that they participate in, by agreement between the parties, when in their respective care.
25.For the purpose of this Order an "extracurricular activity" is defined as any academic, musical, arts or sporting activity in addition to the normal course of school study that the child/ren participate in during term or holiday time.

Travel and passports
26.The parents shall each forthwith do all acts and things and sign all documents necessary to cause an Australian passport to be issued for each of the children, and thereafter to cause the passports to be renewed no less than six months prior to expiry.
27.Upon issue of the children’s passports, the father is to hold the passports for the children other than during any time the children are travelling with the mother.
28.Each parent is at liberty to travel with the children outside Australia during any period of time that the children are in their respective care pursuant to this Order, or at other times as may be agreed in writing, and shall do all acts and things necessary to facilitate such travel on the following terms and conditions:
~~(a)~~The travelling party provide to the other party not less than one month prior to the proposed overseas travel: the proposed destination, means of travel, an itinerary detailing flights or other means of travel, and accommodation in which the children will be staying including address, if known;
~~(b)~~The travelling party obtains travel insurance for the children and provide relevant details to the other parent within 3 days of the scheduled departure date;
~~(c)~~The father provide a copy of the children’s passports to the mother within 48 hours of any request by the mother to facilitate travel bookings;
~~(d)~~The father provide the children’s passports to the mother no later than 7 days prior to the scheduled departure date;
~~(e)~~The mother return the children’s passports to the father no later than 7 days after the children’s return to Australia and the passports be held pursuant to paragraph 27 of this Order.

29.Each parent is at liberty to travel with the children within Australia during any period of time that the children are in their care pursuant to this Order, or at other times as may be agreed in writing, provided that the travelling parent shall provide to the other parent not less than 7 days prior to the proposed travel: all details related to such travel including departure/return dates and times, flight details or details of other modes of transport, destination name, address of all accommodation in which the children shall be staying including telephone and email contact details.

Mutual restraints
30.Each parent is restrained from denigrating or speaking in a derogatory manner about the other parent or any member of the other parent's household or family in the presence or hearing of the children, or permitting any other person to do so.
31.Each parent is restrained from discussing the proceedings or any allegation raised in the proceedings with the children or permitting the children to have access to any of the documents filed in the proceedings.

IT IS FURTHER ORDERED BY CONSENT
32.The mother is to pay to Legal Aid New South Wales the sum of $3,564.50 within 60 days of this Order.
33.The father is to pay to Legal Aid New South Wales the sum of $5,214 within 60 days of this Order.

IT IS FURTHER ORDERED
34.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

NOTATION:
A.As at the date of the making of this Order:
(a)W is not enrolled in any extracurricular activity;
(b)X is enrolled in music lessons but is not currently attending;
(c)Y attends sports; and
(d)Z attends sports.

ADDITIONAL NOTATION:
B.There is no Court by the name “Federal Circuit and Family Court of Australia”. This Court was formerly known as the Family Court of Australia and is now known as the Federal Circuit and Family Court of Australia (Division 1).
C.The design of the seal affixed to this Order issued by the Federal Circuit and Family Court of Australia (Division 1) was determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Carew J.

Mr Gorecki and Ms Grafton were in a de facto relationship from 2002 until 2016.[1] They have four children, who have been the focus of their parents’ conflict since they separated.
[1] To assist in the anonymisation of the judgment I will refer to Mr Gorecki as “the father” and Ms Grafton as “the mother” in these Reasons. No disrespect is thereby intended.
Unfortunately, there are some parental conflicts that cannot be resolved by a court order. This is probably one of those cases. It is naïve to think that the law can change a parent’s personality. Whatever order is made, I have little confidence that the conflict will cease entirely or that the four children who are the subject of their parents’ dispute will not continue to suffer as a consequence. This is a tragedy of the parents own making and it is not as though they have not been repeatedly warned.

I have done my best to fashion a parenting order that will as far as possible reduce the issues about which conflict may arise, but in the end, it is up to each parent to review their behaviour and communication in the future so as to ensure that their children can be relieved from the burden of exposure to what has been almost a lifetime of conflict for them.
For the reasons which follow, I conclude that the best interests of the children in the circumstances of this case, will be met by the father having sole parental responsibility for all major long term issues as that term is defined in s 4 of the Family Law Act 1975 (Cth) (“the Act”). I have come to this conclusion, not because the father is a ‘better parent’, but because decisions have to be made and the father is less likely to place the burden of such decisions on the children. Further, I have decided that all the children should live in a week about arrangement with their parents. As submitted on behalf of the father, equal time may seem counterintuitive but it is hopefully the best way to protect the children from feeling guilty about not spending at least equal time with the mother, or from being worried about her.
ISSUES
The significant issues for my determination are as follows:
(1)Which parent should have sole parental responsibility for major long term issues for the children?
(2)What configuration of equal time with each parent for some or all of the children should occur?
(3)Should an order be made for the children to attend particular schools?
(4)Should the mother be restrained from taking the children to medical or other health professional appointments other than in cases of emergency?
(5)Should the parents be restrained from residing with the children more than 10 kilometres, 15 kilometres or 20 kilometres from the Suburb C Post Office?
PROPOSALS OF EACH PARTY
At the commencement of the trial, each party was seeking an order for equal shared parental responsibility. By the end of the trial, each party was seeking an order for sole parental responsibility. In truth, this case was never one where an order for equal shared parental responsibility was going to be in the best interests of the children, given that the parties have been unable to make joint decisions either at all or only after exceedingly difficult and acrimonious negotiations or further Court order. The cross-examination of and by each party highlighted this reality.
The father proposes that he have sole parental responsibility for all major long term parenting issues and that all of the children live in a week about arrangement. The precise terms of the order sought by him are set out in the further amended Initiating Application filed by leave on the last day of trial.
The mother proposes that she have sole parental responsibility for all major long term parenting issues and that the two younger children live equally with the parents but on a split week basis, that W spend alternate weekends with each parent but otherwise choose where he lives during each week, and that X live with the mother and spend time with the father when she so chooses. The precise terms of the order sought by the mother are set out in the further amended Response filed by leave on the last day of trial.
The independent children’s lawyer (“ICL”) recommends that the father have sole parental responsibility for all major long term parenting issues and that all the children live in a week about arrangement with changeovers on Fridays. The precise terms of the order recommended by the ICL are set out in exhibit 4.[2]
[2] Exhibit 4 was amended with a substituted minute of order at the commencement of the submissions made on behalf of the ICL.
The mother is self-represented although she was permitted to have various persons assist and support her at the bar table. The mother’s costs notice discloses that she has incurred legal costs prior to the trial of about $29,000. The mother consents to paying the balance of her share of legal costs incurred by the ICL in the sum of $3,564.50 within 60 days.
The father is legally represented and his costs notice discloses that his legal costs are estimated to be about $183,000 including the costs for the trial. The father consents to paying his share of legal costs incurred by the ICL in the sum of $5,214 within 60 days.
BACKGROUND
As earlier noted the father and mother were in a de facto relationship from 2002 until 2016. They remained living under the same roof until 2017.
The father has since married. Ms K is 48 years of age and employed full-time as a manager for L Organisation. The father and Ms K married in 2019. By all accounts the children have a close and loving relationship with Ms K.
The father is 48 years of age. He was born in Country M and immigrated to Australia in 1981. He is a project manager by occupation and operates a business. The father was recently diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and another medical condition. There is no evidence as to what impact, if any, these conditions have on his daily life.
The mother is 45 years of age. She is a qualified educator currently working pursuant to a temporary part-time contract in Suburb N, Sydney and also at other locations when available in a casual capacity, whilst also operating a short-term rental for a property owned by her in Suburb D, New South Wales. The mother has recently been diagnosed with a medical condition. There is no evidence as to what impact, if any, this condition has on her daily life.
Both parties reside in an inner west suburb of Sydney near the Suburb C Post Office.
These proceedings relate to the care of four children, namely, W born 2008, X born 2010, and twins, Y and Z born 2012.
Until recently, all of the children were living with their parents in a shared care arrangement (six nights with the father and eight nights with the mother in each fortnight) such that they spent every Tuesday night and alternate weekends from Friday to Tuesday at their father’s home. This arrangement reflected a final order made by consent on 9 January 2018, and which also provided for the parents to have equal shared parental responsibility.
Notwithstanding the order, X has not spent any time with the father since March 2023, except for a brief visit in April 2023 and for a medical appointment in April 2023. Currently, X is very much isolated. She is not attending school. She is not attending her extracurricular activities. She is not spending time with friends. She is not spending time with her siblings when they are living with the father. X’s mental health appears to be deteriorating, at least according to the mother.
In mid-2018, the mother utilised the proceeds of her property settlement with the father to purchase a property in Suburb D, a one and a half to two hour drive from the suburb where both parents were then living (and continue to live). Despite the mother’s contention, during the trial, that it had never been her intention to relocate with the children to Suburb D, the evidence overwhelmingly establishes otherwise.[3] Indeed in the mother’s own trial affidavit she deposes that on 20 December 2019 at 9:20am she sent an email to the father “giving notice that I would need to move to the [Suburb D] residence with the children. I considered the distance was not ideal, but it was commutable and didn’t necessitate a change in time in care orders, though one could be considered if in the children’s best interests”. The email to which the mother refers informed the father of her intention to relocate to her Suburb D residence “as soon as possible” and expressed her concerns with the children’s then current school, R School and suggested that a change of school was necessary, and proposed one in Suburb D as well as S School.
[3] For example: Email from the mother to the father dated 31 January 2019 in which she stated “I just wanted to let you know that I plan to move up to [Suburb D] around the start of April.”; Exhibit 13 is notes from P Psychology Ms Q, which include, “[…] Mother informed [Ms Q] that the father had started legal action to stop her from moving the kids to [Suburb D]”, “[…] spending every weekend with the mother in [Suburb D] which [W] described as a bit far away” (at that time, X described them having “three houses” and W complained about all four children living in the same room at the mother’s Sydney residence); Exhibit 22 is an email from the mother to the father dated 28 January 2020 referring to the delay in enrolling the children in S School because her then residential address in Sydney was not her permanent residential address.
The father, through correspondence from his lawyers, advised the mother that he did not consent to the relocation or to the proposed change of school.
In January 2020, the parties attended mediation with Ms T of Counsel, at which time an agreement was reached for W to attend G School, Suburb C Campus and for X, Y and Z to change schools to S School for the first term in 2020. G School is a school with multiple campuses including a campus at Suburb C and a campus at Suburb H.
For reasons which are disputed between the parties, the enrolment forms to S School were not submitted on time.
As a result, the father urgently recommenced proceedings by filing an Initiating Application on 17 February 2020. An interim order was made on 11 March 2020 restraining the mother from relocating with the children or residing with the children in a residence beyond a radius of 10 kilometres from the Suburb C Post Office and directing that the parties do all things necessary to enrol X, Y and Z at S School.
The matter was transferred to this Court on 29 April 2021 given its “wide ambit”. At the hearing on 29 April 2021, it appears the mother notified the court she was not intending to relocate with the children, and a notation was included to this effect.
Despite relocation with the children no longer being an issue for determination, each party seeks an injunction prohibiting the prospect of relocation further than a particular radius from the Suburb C Post Office. The father seeks to restrain the mother from relocating with the children without his consent, and the mother seeks to restrain both parents from relocating with the children without the other’s consent.
In 2021, there was a further dispute about schooling in relation to X, which was ultimately resolved by a consent order made on 27 September 2021.
After attending an appointment in early 2023, W was ‘flagged’ by his paediatrician as having “likely inattentive ADHD”. It is common ground that W became disengaged with his schooling from first term last year and that in the third term last year he rarely attended school. W is attending school this year but the parents disagree about whether a change of school is the answer to what has been a history of disengagement.
X attended upon Dr U, paediatrician, in early 2023, and was diagnosed with ADHD. In May 2023, Dr V, a child and adolescent psychiatrist, opined as follows:
…
[X] presents with school refusal and impaired functioning with working diagnoses of generalised anxiety disorder, social anxiety disorder, obsessive-compulsive traits, and major depression.
Our treatment recommendations at this stage include:
- ongoing engagement and assessment of [X] and her family
- psychological therapy - psychiatric input - liaison with other health professionals including her paediatrician and GP
- liaison with school
Z has a disability, for which he receives ongoing occupational and speech therapy. This condition appears to have only a limited impact on his day to day life.
APPLICABLE LEGAL PRINCIPLES
In parenting proceedings under the Act, s 43 of the Act requires the Court to have regard to a number of matters including:
(a)The need to protect the rights of children and to promote their welfare; and
(b)The need to ensure protection from family violence.
Every parenting decision requires the application of the relevant parts of Part VII of the Act which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[4]
[4] Family Law Act 1975 (Cth) s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
(a)The person or persons with whom a child is to live;
(b)The time a child is to spend with another person or other persons;
(c)The allocation of parental responsibility; and
(d)The communication a child is to have with another person or persons.
The objects and principles of Part VII of the Act are set out in s 60B(1) and s 60B(2) and those sections make it clear that the Court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur. In deciding whether to make a particular parenting order, the Court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations: the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence, and additional considerations including: any views expressed by the child, the nature of the relationship between the child and each parent and other persons, the past involvement of each parent with the child, the likely effect of any changes in the child’s circumstances, the practical difficulty and expense of the child spending time with a parent, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family, whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child, and any other fact or circumstance considered relevant (s 60CC).
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the Court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Family violence is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, stalking, repeated derogatory taunts, intentional damage or destruction of property etc.
In cases involving allegations of abuse or family violence, a positive finding should not be made unless the Court is satisfied on the balance of probabilities[5] having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding”[6] and proof to the reasonable satisfaction of the Court, “should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[7] Where a positive finding is not made but it is nevertheless not possible to reject an allegation as groundless, the Court is required to assess and evaluate the magnitude of any risk to the child and to determine whether the risk of harm is unacceptable.[8]
[5] Evidence Act 1995 (Cth) s 140.
[6] M v M (1988) 166 CLR 69 (“M & M”).
[7] Ibid.
[8] M v M (fn 6); N and S and the Separate Representative (1996) FLC 92–655.
When assessing the nature and magnitude of a risk posed by a parent, all relevant evidence must be considered as part of the “matrix of evidence”[9] to determine whether or not the risk of possible future harm is unacceptable and, in making that determination, it is not necessary to make findings of fact on the balance of probabilities on each piece of relevant evidence (or even any), although caution is required if concluding that a risk is unacceptable where no such findings are made.[10] When assessing whether a risk is unacceptable, the Court is concerned with possibilities and not probabilities.[11] Whether a risk is found to be unacceptable is not determined according to the civil standard of proof i.e. on the balance of probabilities.[12]
[9] Eastley & Eastley [2022] FedCF1A 101 at [31] (“Eastley”).
[10] Johnson & Page (2007) FLC 93-344 at 81,890, [68]-[71] (adopting the extra curial commentary by the Hon. John Fogarty AM) NB. Johnson & Page was overturned by Isles and Nelissen [2022] FedCFamC1A 97 (“Isles”) but not on this point which was subsequently confirmed by Eastley.
[11] Isles at [7].
[12] Ibid at [81].
When considering the parenting dispute more broadly, it is not necessary to make findings of fact on every factual dispute raised by the parties.[13] The paramount issue for the Court is to determine what order is in the best interests of the subject child in the particular circumstances of the case, and in the process of that determination the Court “cannot be diverted by the supposed need to arrive at a definitive conclusion”[14] on each and every factual dispute.
[13] Baghti & Baghti and Ors [2015] FamCAFC 71.
[14] M v M (fn 6) at 76.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the Court (s 61C).
Section 65DAC makes it clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section of the Act I have considered all sections as required when making my determination.[15]
[15] Banks & Banks (2015) FLC 93–637.
WHICH PARENT SHOULD HAVE SOLE PARENTAL RESPONSIBILITY FOR MAJOR LONG TERM ISSUES FOR THE CHILDREN?
It is common ground that one parent only should have parental responsibility for major long term issues given the history of conflict over such decisions. Each parent contends that they should be the parent with that responsibility.
To date, any major parenting decision has proved to be a source of immense conflict and delay. The parents agree that their communication has been unhelpful to say the least.
From April to at least August 2019 the family engaged in counselling with Ms Q, a clinical psychologist, from P Psychology. Ms Q’s notes record that in June 2019 she gave the mother clear feedback that the relationship between the parents was affecting the children and would continue to do so unless the parents found a way to communicate and get on. The parents ceased engaging with Ms Q in late 2019.
It is useful at this stage to set out some prescient opinions by the family report writer, Dr AA, in her report dated 20 October 2020 at [142]:
If the parents inappropriately empower children, that could potentially lead the children to feeling stressed because they are developmentally ill-equipped to manage that level of decision making. This may result in them feeling they have let a parent down if those wishes are not granted and ultimately, they might play one parent against the other as seems to have happened with [W]. Inappropriate empowerment also encourages children at a younger and younger age to feel entitled to make decisions about their living arrangements.
The family report writer further opined at [152] in her report:
It is not uncommon for the children who are caught in hostile and acrimonious family law conflicts to find they can no longer traverse the delicate and conflicted trajectory between their warring parents and take a black and white/wrong and right attitude to their parents’ dispute. They may align themselves with a parent who they believe is vulnerable and needs them, the parent who they believe is being treated unfairly, the parent who they perceive to not be at fault, the parent who they are spending most time with, the parent who they perceive to be giving them most latitude or the parent who the children are most afraid to reject because of the anticipated consequences.
The father’s submissions

The father submits that the mother’s actions have inappropriately empowered the children such that they are now burdened with decisions which should be made by a parent e.g. what school they should attend, what time they spend with each parent etc. The father points to the mother’s long history of interference in the children’s lives to their detriment and the interminable processes the mother has required before any decision is made. The father submits that the children need certainty, and for decisions to be taken out of their hands, which can only happen if he has the decision making responsibility.
The father contends that the mother’s unhelpful conduct commenced when W was in kindergarten when the mother had a falling out with the principal that resulted in the mother preparing a detailed report of complaint about the kindergarten to the Department of Education. The father contends that the mother then decided it would be better for W to attend an alternative school. The father says that he compromised with the mother by agreeing to W being home schooled for a year.
The father contends that the mother then had a major falling out with the principal and some of the teachers at the children’s school, R School. This was preceded by the mother’s incendiary emails of significant length sent to R School, disclosing unnecessary personal family matters and criticising the father and the school. By way of example:
(a)Lengthy email from the mother to R School in early 2019 including the following:
…
[The father] and I separated a couple of years ago. Both of us are still in the process of creating our new lives with the kids … It’s been a tough couple of years … I’m trying to find new solutions and I’d like to ask [R School] for assistance in implementing some of them …
… [The father] has blocked my phone number … has also refused to attend several of our regular Ordered meetings … This situation is very distressing for the kids and I. Unfortunately, the children do know that this is how things are as there have been so many occasions when we have needed a response from [the father] to confirm organisation of events, activities or care and no response has been received or contact able to be made …
(b)Lengthy email from the mother to R School in mid-2019 including the following:
…
[W] told me he has gone from one extreme of [the father] not pressuring him to do any homework at all, to [the father] demanding he does all homework that is expected. As a result, [W] has told me he will now refuse to do any homework at my place because he will have to do it all when he is with [the father].
…
(c)Lengthy email from the mother to R School in mid-2019 including the following:
…
Finally, I expressed my dismay and frustration at the content and topic of emails between [Ms BB] [teacher and assistant principal] and I being shared with [the father], and the conversation then continuing to include him. When [Ms BB] brought [the father] in on a conversation I was having with her regarding [W’s] homework last week, it threw a complete spanner in the works in our households. It caused great distress for [W] and I, and more conflict between our households, as was discussed within emails last week.
…
(d)Lengthy email from the mother to R School in late 2019 including the following:
…
[W] was upset by [Ms BB] [his class teacher] interfering with his social/home life and parenting issues again on Wednesday, bringing back to the surface some anxiety he had put to bed at the beginning of the year…In fact, [W] has told me that [Ms BB] expressly told him that she would not tell [the father] or I about her concerns. This is extremely worrying. It is not in line with Child Protection guidelines and does not serve to protect the welfare of the child.
…
I don’t feel as though those incidents have been handled appropriately by staff at all, and both have caused significant distress for [W] and our household.
(e)Lengthy email from the mother to R School in late 2019 including the following:
…
… two out of three of the kids’ teachers refused to give me access to my children’s work until after I had seen you and I was made to demand it … it was about 3.05pm before I was even able to sit in peace and go through [the children’s] books … It took a couple of hours for the kids…and I to get over the shock and the stress of that half hour at [R School].
(f)Email from the mother to R School in late 2019 including the following:
…
There is little evidence to support [the children’s] semester 2 reports … I will now be taking my complaints up formally with the department. I have no intention of sending my kids to [R School] next year.
(g)Email from the mother to R School in early 2020 (during school holidays) including the following:
…
Just following up on this before lodging my complaint …
(h)Lengthy email from the mother to R School in early 2020 including the following:
[The mother says in her email that she saw [the principal] in passing while at the school office that day and asked [the principal] when she would be able to meet the mother, to which [the principal] responded that she was busy at the moment.]
… This treatment of a parent, refusing to respond or communicate with them about their children’s learning and avoiding such, is completely unacceptable. It goes against department policy and is not in line with the Community Charter. … [The mother requests copies of] any of the learning adjustments that have ever been put in place for either [Y] or [Z] and a copy of the class timetables … by COB on Friday 6^th March…
The father submits that the mother’s overbearing interference and over involvement of the children in all decisions knows no bounds and culminated in the principal of R School emailing the mother in early 2020 including the following comments:
…
I am aware that you are not happy with the school, … as you have made this clear many times: in face-to face conversations and passing comments with teachers and me; in many emails; in parent forums; in meetings; at meet the teacher nights and more recently when you have been checking [Y’s], [Z’s] and [X’s] work in our school staffroom or speaking to office staff. You are entitled to your opinion but I want to move on from that, in the interests of the wellbeing of your children, who are and always will be our prime concern.
…
… This year, you have requested individual meetings with each of the teachers and with me, but now I cannot allow these individual meetings to take place due to previous interactions that you have had with staff members and with me that have not ended very positively and have left everyone, including you I imagine, feeling very uncomfortable.
The father contends that W and X have both complained about being involved in the conflict by the mother. By way of example, W and X attended counselling at P Psychology in June 2019 and the counselling notes record the following:
[W] reports to the counsellor:
“mum’s telling us everything about dad that he has done to her, mum’s playing us off”
…
“can’t call mum from dad’s after dinner mum thinks dad doing this so we can’t call her” “dad’s not, that’s silly”
[X] reports to the counsellor:
“mum says dad is rude to her, he’s not replying back, now you have to tell dad this, she says she needs comm[unication]”
“not sure if entirely true, so don’t know who to believe” “Loads of things piling on top of me”
As earlier noted, the parents attended a mediation in January 2020 and agreed that the three youngest children would commence at S School at the commencement of 2020. This did not occur. As a consequence of the father recommencing proceedings, the parents were required by Order dated 11 March 2020, to do all acts and things and sign all documents and give all consents to comply with all of the requirements of S School with regard to the enrolment of the children. The father contends that the mother’s unreasonable conduct continued, culminating in yet another email by the mother to S School only days before the children were finally due to start in mid-2020. In mid-2020, the mother sent a lengthy email to the school with an extraordinary list of 17 questions and required a response within three days.
In relation to X, in particular, the father contends that the mother’s inappropriate empowerment of the child is detrimental to her wellbeing and contends that the mother has developed an unhealthy enmeshed relationship with the child. The father provides the following examples:
(a)Emails exchanged between the parents from 11 to 14 November 2022:
(b)The parties exchanged emails about X and the mother suggested that it is “[X’s] proposal” to spend more time in the mother’s household. When the father asked for the reasons, the mother said “Her reasons are her own”. The mother told the father to speak to X and “listen to her voice”. The mother suggested that the father needs to “let us know … so that we can organise ourselves”. The father did not agree that it was in X’s best interests to significantly reduce the time in his household but nevertheless agreed to X spending the occasional additional night with her mother. The father suggested that the disruption experienced by X might be reduced by a week about arrangement rather than the broken up weeks.
(c)Emails exchanged between the parents on 27 March 2023:
(i)The mother proposed that X remain in her household and “reduce” her time with the father:
I suggest that to help [X] feel better and to ensure you do maintain contact with her, that we vary the schedule of time that she spends with you, and reduce (but not cancel) that time, until the matter is finalised at Court or by consent.
(ii)The father responded disagreeing that X remaining with the mother had been recommended or is best for X:
We have had 3 people speak to [X] in the last fortnight and it is clear that movement between the homes has been raised and in no case has any of the 3 people suggested that spending time at our house is problematic.
(iii)The mother responded:
This is truly an unbelievable response. It shows your clear denial of communication from [X], medical experts and fact… [X] is refusing to return to your home.
(iv)Father responded:
You are reinforcing to [X] that it is ok for her not to be at our house in clear continuing breach of the orders and as such have put her at risk and continue to do so.
(d)Email from the mother to the father dated 28 March 2023, the mother informed the father that X “is refusing to go to your place”;
(e)Email from the mother to the father dated 4 April 2023, the mother informed the father:
Just letting you know that [X] is with me. She has not been well and is refusing to go to your home again.
(f)Email from the father to the mother dated 6 April 2023, the father said:
[X] has not come to our house, according to the orders she was due here at 3pm or conclusion of school…Please bring her to our place at your earliest convenience.
(g)Email from the mother to the father dated 6 April 2023, the mother said:
[The school and the mother have put together a] Learning Support Plan for [X] … [X] was really not feeling well at your home and asked for my help… She was very distressed and virtually paralysed… [Mental Health Access Line] suggested [X] should remain with me until she is assessed in person and feeling better. … [Dr E] recommended she remain with me and be assessed at a Children’s Hospital. I’ve since taken her to [CC Hospital]…Their recommendations were that she remain with me until better… Please respond to let me know whether you’re understanding of this and willing to stop pressuring [X] to come to you until she is well and ready.
(h)Email exchange between the parents on 7 April 2023,
(i)The father responded:
I’m deeply distressed by this. I would ask to be advised if [X] needs to visit the doctor or attend hospital so I am able to attend. … I would like to see [X] as soon as possible. If she isn’t leaving your place for whatever reason then I need to be allowed to spend some time with her there. Being estranged from me and the rest of her family is not helping her, arguably making the situation worse.
(ii)The mother responded:
Please get in contact with the health professionals again and ask them to re‑explain things to you … [X] has now reached the point where she doesn’t want to see you and doesn’t want you to come to appointments, as she feels you have absolutely refused to listen to her…[to] stay up to date without interfering, obstructing or feeling left out, I’d suggest you make contact with the various treatment providers after [X] has been seen to get their summary. The absolute worst thing for [X] at the moment would be for her to refuse to go to appointments because she is afraid she will be confronted by you there… The fact that you’d suggest you come to our home to see [X] is telling…Your visit would cause distress for both [X] and I. … Please know that she is not isolated or estranged from her family. Her issues at the moment are with school and with your home and family.
(iii)The father again requested to see X as soon as possible.
(iv)The mother responded:
Please speak to other adults, including the medical professionals I’ve mentioned, who may be able to advise you what is best for [X] in this circumstance… I am in no way stopping [X] from seeing you, or not allowing her to see you…I’m encouraging her to see you but she is refusing to see you.
(i)Email exchange between the parents on 8 April 2023:
(i)At 5.40am the father emailed the mother asking to see X and advised that he will come to the mother’s home at 10.00am to see X if he does not hear back;
(ii)At 8.39am the mother responded:
… you again threaten to come to our home – I’ve told you that this would be distressing for both [X] and I and have asked you not to come …yet you continue to threaten us both. Please do not come to our home.
(iii)And at 11.25am:
[X’s] been clear with you in telling you what she needs - you've told her you'll support her and give her time with me (the total opposite of the demanding to see her and accusing me of estrangement that are features of this communication thread between US) but then, shortly afterwards, you keep pressuring her again to see you and threaten to come to our safe spaces when you've been asked not to…
(iv)At 12.07pm the father responded:
I understand that [X] is unwell but I think it is important that I am allowed to see her in person and speak to her. I was not given the opportunity to come to the medical appointments or be involved in any aspect of [X’s] care for the last 2 weeks …
The father also asked the mother to clarify whether there is evidence of medical advice that X should not see the father and asked that the mother provide it to him, including particulars of who gave such advice and exactly what was said. The father again asked to see X – at the mother’s house, at an alternative location, or at his house.
(v)The mother responded telling the father “it’s best you get it straight from them” referring to his request that she provide evidence of advice received that X should not see the father and referred to the decision being X’s – “[X’s] been clear with you in telling you what she needs”.
(j)On 9 April 2023, Easter Sunday, X attended the father’s home for a few hours to join in some celebrations;
(k)On 12 April 2023, the mother emailed the father saying X has “still been picky about where she goes and she still wasn’t willing or able to return to your home with the other children yesterday” and the mother raised for the first time that X had experienced “voices, hallucinations”. The father responded by stating that he wants to attend all medical appointments.
The father submits that the evidence from X’s doctors do not support the mother’s contention that advice was received that the child not spend time with the father:
(a)Dr E’s notes indicate that X and the parents attended an appointment in March 2023, during which X was seen separately from her parents and “[X] respects both parents and wanst (sic) to be in both houses and just finds it hard to be at school and have 2 houses to live in and its disruptive to her and her studies”. X was referred to a paediatrician, Dr U “mums choice”;
(b)Dr U’s notes reveal that X and both parents attended upon Dr U, in March 2023 after a referral from Dr E. Both parents attended with her.
…there is an acrimonious parental separation and divorce…clearly it is hard to determine how much of the family disharmony contributes to [X’s] issues at school, but certainly it does contribute to her mental health. [X’s] symptomology extends back for many years as does the acrimony between her parents …Clearly, moving between 2 houses is time consuming and requires more organisational skills than for the average year 8 girl. [X] feels supported by both parents, but she feels that she should achieve more if she could live in one environment and she would choose her mother over her father, although she still very much wants to see her father regularly and doesn’t want to offend him. … strong features of an attention deficit disorder, poor self-esteem, emotional dysregulation, features of anxiety, depression and lack of clarity about what the future holds for [X].
(c)Dr U’s notes reveal that X and her parents attended for a further consultation in April 2023 where it was noted that:
[X] presents with school refusal, significant anxiety (generalised, social, and features of OCD and panic), features of depression with pervasive low and irritable mood, mood dysregulation, and [disordered behaviour]. She has recently been assessed by her paediatrician as having likely ADHD. On today's assessment she did not present with acute risks in terms of harm to self or others or features of psychosis.
X saw the ICL in March 2023 and said that both parents had taken her to see Dr E the other day and that she was happy that both parents had provided that support to her and that she was feeling better.
Extraordinarily, during her oral evidence the mother said that spending time at the father’s home is making X sick or at least not allowing her to get better.
The father contends that, to the extent permitted, he has always done what he can to help X e.g. he made the appointment for X to see Dr E in March 2023 after she did not go to school and complained of stomach ache and he gave her space and has tried to attend every medical appointment. The father and his wife have also sought advice from a psychologist and intend on seeing her on a recurring basis. The advice received was to give X space and to be there as much as possible for her and to advocate on her behalf with any medical professionals. The father contends he has followed that advice.
The father contends that he will take all steps necessary to ensure X, and the other children, receive the medical or other interventions that may be warranted.
The mother’s submissions
The mother rejects the criticisms made by the father of her involvement in the children’s schooling, contending that as an educator she is best placed to make decisions involving the children’s education. The mother is critical of the father’s failure to respond in a timely fashion to matters raised by her. The mother places significant weight on the children’s views in any decision to be made.
As to the specific criticisms of her emails and attendances at R School, the mother contends that it was the father who initially provided private information to the school, e.g. that the mother was relocating with the children to Suburb D, and sought their feedback. The mother contends that the father at least contributed to her relationship with the school being poisoned. The mother maintains her criticisms of R School’s handling of various issues concerning the children e.g. alleged bullying of W.

The email from the father to R School about which the mother takes issue is set out below:
[In early] 2019 at 1:47pm the father wrote to [R School]:
Hi [Ms BB] [[W’s] teacher]
[W] just called me to pick him up-was in the middle of typing this email:
Thanks so much for your time today, I really appreciate you taking care of [W]. I didn't think I was going to get him there this morning but hopefully he had a good day. He was telling me that he doesn't have to go to school because his mum already contacted [the principal] and it is all sorted so he can stay home and he may not need to go back to your class ever again. This is consistent pattern of behaviour from [Ms Grafton] and happened last year with [X].
I'm concerned that what may be happening broadly is that attention is being deflected to problems with the school, with the class and his teacher and away from the core issues at hand - 1. Move to [Suburb D], being uprooted and the uncertainty about what will happen, 2. Being involved and being drawn into a conflict by his mother- by being told that his Dad is uncooperative, unreliable or inconsiderate - whether I am or not is not the point - it is that [W] is being told this is unfortunate because it impacts him.
I am not sure if you are aware but I am getting married [soon] but I think the kids are actually looking forward to the wedding and they know that nothing changes, [Ms K] my partner lives with us and has done for the best part of a year and we all get on very well, she has been amazing with them.
I realised today that I need to be more pro-active and pre-emptive with these things and I welcome any feedback or advice you may have.
Thanks again
The mother denies that any of her emails and interaction with R School were aggressive, confrontational or overbearing as alleged by the father. The mother denies that she was responsible for any conflict arising with the school. The mother denies that she has at any time intentionally involved the school in the family law dispute. The mother contends that she has at all times acted appropriately in seeking the children’s views and has listened to their expressed wishes and worries and rejects the father’s contention that the major trigger for X’s current condition was the mother’s empowerment of X to choose where she lived.
The mother contends that in a medical team meeting about X, with Mr DD, Ms EE and Dr V, she and the father received advice: to let X know that they were there to support her; to encourage her to continue with her regular activities as normal; and not to force her to do anything that would increase her anxiety and symptoms. The father concedes that the mother’s account sounded about right but added the medical team also wanted to get X back to school.
The mother contends that she has been proactive in seeking out the necessary treatment for X and, historically has been involved to a far greater extent than the father in the children’s medical, psychological and other needs.
I am conscious of the fact that the mother represented herself in these proceedings and no doubt had to contend with the stress of the trial process in addition to preparing for trial. I am also conscious that as consequence of her self-representation I had the opportunity to observe her to a far greater extent than the father. However, even making allowances for such matters, I have come to the conclusion that the mother can be a very difficult person to deal with and that this is likely to have impacted on her relationships with others including the children’s schools, at times to the children’s detriment.
The mother repeatedly ignored directions from the Court e.g. during her cross-examination of the father the mother was repeatedly directed to ask one question at a time and to refrain from making statements rather than asking questions. Further, the cross-examination of the mother, by counsel for the father, was made much more difficult and lengthy as a direct result of the mother’s repeated obfuscation in response to questions. I do not suggest that the mother necessarily engaged in such conduct deliberately. Indeed, she appeared to have little insight into the impact of her conduct on others. At times the mother’s determination to do what she wanted rather than what was required of her became somewhat overwhelming.
I can readily accept that the mother’s communication style and superior attitude when dealing with the principal and teachers at R School would have been confrontational and overbearing. That is not to say that the mother may not have had some legitimate cause to complain on occasion. The issue is how she went about that process. For example, attending at R School’s staff room to demand to see the children’s workbooks, and directly involving the children in what was clearly an unpleasant experience for all involved is regrettable to say the least. The mother’s own evidence is that it took quite some time for the children to recover. The mother’s communication with the children’s schools has been unhelpful at times and I reject the mother’s contention that the father was to blame for the deterioration in her relationship with R School. One need only compare the tone of the emails sent by each of them to the school to conclude that the mother was ultimately responsible for the poor relationship. In the end, the principal of R School had to refuse any future meetings with the mother. Such conduct by the mother, even if the mother had not already directly involved the children herself, is likely to have had a detrimental impact upon the children.
By way of further example of the mother’s unhelpful communication and unnecessary involvement of the children’s school in the parental dispute, I note the following:
(a)A very lengthy email to R School in early 2018 in which she included the following criticisms of the father:
…
Right now, in order to finalise the financial aspect of our separation, our family home is on the market. The kids are still living there when they are with [the father] but the house is not their home anymore – most of their things have been taken away as the house has been styled and they are not able to use it as they did a few weeks ago. [The father] is also not keeping much food in the house as he is spending most of the time when the kids are not with him with a new partner (the kids don’t know about this yet). So the kids have been eating out for dinners and breakfasts and getting lunch orders while in [the father’s] care. This is a big change in their routines and diets and what they know as “normal”.
…
(b)Another lengthy email from the mother to R School dated early 2020 which included the following:
…
Unfortunately, I will not be able to attend tomorrow's meeting as there has been a major development which makes it difficult.
As you know, [the father] took legal action against me recently and there is a hearing this Wednesday. I asked [the father] via my lawyers to pause proceedings, so we can reach a settlement on the issues between us out of court, but as of last Friday he still refuses.
…
[The father] and I will not be able to have meetings together with you until this legal matter is resolved.
…
From looking at the assessment and work samples it also seems as though there are still no learning adjustments in place. Certainly, none have been forwarded to me by the school yet. This needs to be rectified ASAP please. I'd like to ensure that [Ms FF] is making the necessary adjustments as required, so that [Z’s] learning progress isn't impacted any further.
In addition, there should be a plan put in place for NAPLAN sitting adjustments to be made.
As mentioned to you in the staffroom […], [Ms GG], as I was looking through the kids' books, we really need to consult on this and I'd be grateful for a meeting with [Ms FF] asap. There is a LOT to communicate.
…
[Ms GG], despite your claim in your first email of this thread on 5.3.2020 that you're trying to build a bridge between [the father] and I, in reality, over the course of the last year, I believe yourself and certain other staff have done the exact opposite, and continue to do so in many ways, though mainly through your inaccurate and selective written and spoken communication between [the father] and I. The most recent example of that is your email of 5.3.2020.
Statements, allegations and recounts like those that you included in that email to [the father] and I, without any background or context provided, nor any other form of explanation, but plenty of omissions, actually does nothing to resolve any conflict between us, and everything to enflame it.
If you really are interested in "building a bridge", I'm sure you'll have no problem with helping us here.
(c)In circumstances where the father had written to the school (copying in the mother) suggesting that the school counsellor might subtly check in on X who seemed to be having some occasional struggles getting up for school, an email from the mother to the school dated mid-2020, in which the mother responded as follows:
…
For various reasons and due to [X’s] own expressed wish not to see the school counsellor, I DO NOT give consent for the school counsellor to see [X] or any of our children until further written notice.
We will source professional and appropriate mental health support for the children, as required, independently of the school. The chosen professional will be better placed to accurately determine the child's mental health needs, the reason for the needs, and deliver an appropriate therapy for the child. If it is required that the school is informed of or participates in that therapy, the appropriate staff will be advised.
I request that the school please just focus on meeting the educational needs of the children while they are in your care and advise [the father] and I if you have any concerns.
The fact that the mother tendered these emails in her own case would seem to indicate that she saw no problem with the content. In my view, the emails provide further evidence of the mother’s confrontational style of communication, her unhelpful empowerment of the children, and her unnecessary involvement of the children’s school in the personal conflict between herself and the father.
One feature of the mother’s evidence which causes me some further concern is her evidence about the escalation in X’s symptoms including her alleged hallucinations and hearing voices. Such symptoms, if they have occurred, seem to be of recent origin, first mentioned it seems, by the mother in an email to the father dated 12 April 2023 and again in an email to the father dated 15 April 2023 where the mother referred to “her voices, hallucinations and distressing paralysis etc”. The mother deposes briefly to alleged symptoms in her trial affidavit where she refers to X having an “extreme panic attack on April 3 [when] she disclosed hearing voices and seeing ‘characters’”. There is no evidence that anyone other than the mother has observed such symptoms.
X does have a history of previously requiring psychological intervention. In 2016, at the time the parents were separating, X consulted a Dr HH. It seems that the catalyst for the consultation related to X’s difficulty in containing her anger at times. X ceased her consultations with Dr HH because the mother suspected that Dr HH’s objectivity had been compromised by the father. Whatever the true situation, this provides yet another example of the conflict detrimentally impacting the children, in this case, X. X has also seen the school counsellor on occasion although as noted above the mother objected to the child seeing the school counsellor in mid‑2020. The father does not recall X being particularly anxious as a younger child and contends that X has generally been a healthy child with no significant issues. However, it is apparent that as long ago as June 2019 X was conveying to Ms Q that she was feeling overburdened in the context of the parental conflict.
In relation to the apparent recent deterioration in X’s psychological health, I note an email from the mother to Ms JJ, occupational therapist, from KK Services in April 2023, in which the mother included the following:
…
In our meeting yesterday, there wasn’t really an opportunity for me express or discuss my concerns or observations of [X’s] behaviour or history of such ‐ especially in relation to low mood, difficulty with emotional regulation, sensory needs/difficulties, increasing distress with going to school or [the father’s], increasing experiences with hearing voices and seeing the characters that make them, spending a lot of time in the shower at our home but feeling unable to use the shower at [the father’s] due to her worries, increasing reports from her that [the father] does not understand her struggles and that she just wants him to leave her alone (which she again stated after we left the appointment yesterday when [the father] had pressured her to agree to text him later that afternoon so that he could have his need fulfilled and tell her what he needed to). Is there an opportunity for us to speak with psychology/psychiatry staff about these concerns directly and receive advice on how they are best treated please?
I mentioned in our meeting that I had received advice from a psychiatrist who thought the most immediate problem to have solved for [X] was not necessarily her separation anxiety (as I believe the [CC Hospital] team thought). She believes that [X] should absolutely have a psychiatric assessment as a matter of urgency and suspects that [X] may need medication, though given her symptoms, she should definitely not start any stimulants for her recently diagnosed ADHD.
…
When offered an appointment for X with Dr V, psychiatrist, the mother responded and copied the father into her email:
…
[X’s] preference is to come to the appointment at 9am next Monday with me ([X] is in my care at this time), and to have [the father] check-in with [Dr V] in the afternoon. This is also the option that I would feel most comfortable with. I hope that [Mr Gorecki] will agree to this and await his response.
…
The father’s private response to the mother was that he intended attending the appointment “unless there is a legitimate reason for me not to be there”. The mother forwarded the father’s response to the service and included the following further comments:
…
I am concerned that [X] should be able to express herself freely at her appointment with [Dr V] in order to receive the best care and advice on a treatment plan that will work best for her, without being intimidated or feeling under duress by the presence of a parent.
I therefore ask for [Dr V] and [KK Services] to consider this at the appointment and make arrangements to ensure that [X] feels safe and able to speak freely and receive the help she needs when she attends at 9am on Monday […]^th.
I consider it to be most unhelpful for the mother to place the medical professionals in the middle of a dispute between the parents about who attends medical appointments.
An appointment with Dr V, psychiatrist, proceeded in April 2023 and in her letter dated 3 May 2023, there is no mention of any symptoms of hallucinations or voices. She opined as follows:
[X] presents with school refusal and impaired functioning with working diagnoses of generalised anxiety disorder, social anxiety disorder, obsessive-compulsive traits, and major depression.
Our treatment recommendations at this stage include:
- ongoing engagement and assessment of [X] and her family
- psychological therapy
- psychiatric input
- liaison with other health professionals including her paediatrician and GP
- liaison with school
When X was reviewed by Dr U, paediatrician, on the same day, she opined that X “did not present with acute risks in terms of harm to self or others or features of psychosis”.
X attended a further appointment at KK Services in May 2023 and in an email from Ms JJ she noted that while the “impression” was that X’s anxiety remains high, she had been making some progress by increasing the length of her daily walks and setting goals about improving sleep and monitoring her food intake.
While a referral was made for X to attend LL Health Service (a mental health service), the referral was unable to proceed until both parents confirmed they were agreeable for it to proceed.
It is tragic that X was in effect pleading with her parents as long ago as 2020 to stop the conflict. The family report writer reports at [137] that:
… It is poignant that [X] wishes her parents could be nice to each other and not argue. Her position shows perhaps more maturity than the adults. Notwithstanding the emotional tug-o-war to which she has been exposed, [X] nominated her family members as highly significant and she reported that she enjoys positive relationships with her parents, [the father’s wife], members of her families and friends.
There needs to be a circuit breaker and I have come to the conclusion that the father should take over the sole responsibility for making decisions concerning the children’s health, education and all major long term issues.
It is not my intention to be unnecessarily harsh in my conclusions. However, it needs to be made clear why I have come to the conclusion that the father and not the mother should have sole parental responsibility for major long term issues, despite the mother’s experience as a teacher and her greater involvement in attending to the children’s medical needs.
In my view, the father is likely to have a better working relationship with the children’s schools, medical practitioners and other professionals, than the mother. In this context, I also note and accept the opinion of the family report writer expressed at [160] of the family report:
… [The father] is inclined to see the children as much more robust than their mother who … considers the children to be vulnerable and has a high need to intervene on their behalf. Unfortunately, this does not help the children develop resilience and autonomy.
While the children’s views on particular issues may be important, ultimately decisions of a parenting nature are required to be made by a parent and not a child. While I am sure the father is not without some responsibility for the impact of the poor communication between the parents on the children, I am of the view that the father will make decisions for the children in a far less confrontational way than the mother and that while he may seek their input he will make it clear that the ultimate responsibility rests with him as a parent.
Despite the mother’s greater involvement in taking the children to appointments historically, the father appears to have attended, and at times organised a number of the medical and psychological appointments for the children e.g. Dr MM for W, Dr E for X, and I accept that he is motivated to do whatever he needs to do to address X’s current apparent crisis. I can only hope the mother will accept this outcome and not seek to sabotage any interventions. I do not suggest that the mother is motivated to harm the child but rather may not accept that it is more likely to be her approach that is exacerbating the problem.
The fact is that since the mother empowered X to choose when she spent time with her father, she has not in fact seen him and her condition seems to have deteriorated alarmingly, if the mother is to be believed. I am reminded of the warning given by the family report writer, namely, that if a child is inappropriately empowered that may cause stress for the child because they are developmentally ill-equipped to manage that level of decision making. A different approach is required.
WHAT CONFIGURATION OF EQUAL TIME OR TIME WITH EACH PARENT FOR SOME OR ALL OF THE CHILDREN SHOULD OCCUR?
In relation to Y and Z, both parents agree that during school term they should live with each parent on an equal time basis but they disagree about the configuration of that time.
The mother submits that until Y and Z turn 15 they should live with the father from after school Monday until before school Wednesday in week one and from after school Friday to before school Wednesday in week two, and with her at all other times. In relation to W (who is already 15), and when Y and Z turn 15, the mother submits that the children should live with the father each alternate weekend and that any time during the week with either parent should occur in accordance with their wishes. In relation to X, the mother contends that she should live with her and spend time with the father in accordance with her wishes.

The father submits that all four children should live in a week about arrangement.
The father’s submissions
The father contends that the mother’s conduct has at times been unreasonable and demonstrates an “unhealthy enmeshment” of her own needs with those of the children. An order that leaves the decision of when W, and Y and Z (when they turn 15) see the father (other than on alternate weekends) and entirely leaves the decision of when X sees the father, is simply not going to work, as demonstrated by the fact that X is not currently seeing the father at all. Such an order would also continue to put further unnecessary pressure on the children.
The father contends that the continued splitting of weeks as proposed by the mother is unnecessarily disruptive for the children and that living arrangements would be far simpler for the children if they spent each alternate week with each parent (including during most mid-year school holiday periods) with changeovers on Fridays. There would be no room for confusion. It would provide a stable and consistent routine.
The father contends that he has taken X’s reported wish to primarily live in one environment into account but expresses concern about what he perceives to be pressure placed upon her by the mother in expressing a preference to live primarily with the mother. The father also contends that in his view it is not wise to separate the siblings and points to the apparent deterioration in X’s condition after ceasing to spend any time with him.
It seems from the questions put to the father during cross-examination by the mother, that the factors precipitating X’s apparent preference to live primarily with the mother were that the mother could take her to sport on Monday nights (and the father agreed to X then staying overnight with the mother) and, that Y and X were to share a bedroom at the father’s home whereas previously Y had shared with Z and X had had her own room. The mother described the sharing of bedrooms as “[X] had to share her space with somebody for the first time in a long time”. I considered that to be an odd phrase to use given that Y was not just “somebody” but X’s little sister. The mother pointed to this “correlation” between the commencement of X wanting to spend more time with her mother and having to share a bedroom. The mother describes X feeling “uncomfortable” about the arrangement.
It was submitted on behalf of the father that the mother poses a risk of emotional and psychological harm to the children and pointed to the mother being “uncontained in her cross-examination and in her behaviour in court”. It was further submitted that while no order should be made simply to appease a parent, the risk posed by the mother would be exacerbated by a significant reduction in her time with the children as the mother would be likely to embroil the children in the conflict to an even greater extent.
The mother’s submissions
The mother contends that X told Dr E, her GP, that “she wants to live primarily in one home” and “that she finds it hard to have two houses to live in and it’s disruptive to her studies”. I note that the medical record from Dr E dated March 2023 is not quite in those terms:
…
[X] respects both parents and wants to be in both houses and just finds it hard to be at school and have 2 houses to live in and its disruptive to her and her studies …
Further, the mother contends that X told Dr U, paediatrician, as reported in a letter dated March 2023 that her preference is to live with her mother.
The letter from Dr U includes the following:
…
… there is an acrimonious parental separation … Clearly, it is hard to determine how much of the family disharmony contributes to [X’s] issues at school, but certainly it does contribute to her mental health. [X’s] symptomology extends back for many years as does the acrimony between her parents.
…
… Clearly, moving between 2 houses is time consuming and requires more organisational skills than for the average year 8 girl. [X] feels supported by both parents, but she feels that she should achieve more if she could live in one environment and she would choose her mother over her father, although she still very much wants to see her father regularly and doesn't want to offend him.
…
… Her preference to live with her mother should be borne in mind.
The mother submits that a split week arrangement for Y and Z will enable her to ensure that the children attend any required appointments or activities each week.
The mother submits that children should be able to choose what their living arrangements are by the time they turn 15 years of age.
Conclusion – children’s time with each parent
The mother’s proposal directly empowers W and X (and Y and Z when they turn 15) to make the decision about what time they spend with the father.
W is 15 years of age and in normal circumstances it might be accepted that his wishes should be given considerable weight. W currently lives with the father six nights per fortnight in a split week arrangement. The parties declined to obtain an updated family report at their cost so there is no independent evidence of W’s wishes. However, there is no evidence that W wants to reduce the time he currently spends with the father. Although somewhat dated, I note that W told the family report writer that he likes the time he spends with the father and that his home tends to be “calmer and more relaxed”. Further, W said there was “nothing he dislikes about being with his father”. There is no suggestion that W will do other than what is required in terms of any order made.
X is 13 years of age and as she is not currently spending any time with the father it would seem that if an order is not made for her to do so, then it will not occur.
Certainly removing mid-week changeovers would provide greater clarity and stability, and having changeovers on Fridays would mean that the children then have the weekend to settle in.
I am satisfied that the father will ensure the children’s attendance at required appointments and activities and do not see what the mother says is a need for her to take the children to appointments and activities, as sufficient reason for the split weeks to continue.
Given the history of conflict it may seem counterintuitive to order a week about or otherwise equal time arrangement. Both parents nevertheless seek an equal time arrangement (at least in relation to Y and Z).
I accept that there is likely to be a continuing risk posed by the mother of emotional and psychological harm to the children by inappropriately involving them in parenting decisions and in the conflict more generally. Accordingly, I must be satisfied that any order I make will not increase that risk.
I accept the submission made on behalf of the father, that to significantly reduce the mother’s time with the children, particularly with the older two children, may cause them to feel guilty or worried about the mother or to feel sorry for her. It may also cause the mother to feel resentful and exacerbate any risk.
In my view, while it may seem counterintuitive, I consider that, on balance, the best interests of the children will be met by an equal time week about arrangement with changeovers on Fridays. In summary, such an arrangement is more likely to reduce the risk posed by the mother; both parties seek an order for equal time (at least for the younger two children); and all four children have historically spent close to equal time with each parent. I further note that such an arrangement is recommended by the ICL.
SHOULD AN ORDER BE MADE FOR THE CHILDREN TO ATTEND PARTICULAR SCHOOLS?
It might be thought that if the father has sole parental responsibility for the decision as to which school the children attend, there would not be a need to make an order for the children to attend a particular school. However, it is submitted on behalf of the father that even if he has sole parental responsibility the order should include the schools preferred by him so that it puts an end to the prospect of any further decision making burden being place on the children.
W is currently in grade 10 and, if he remains at his current school next year (G School), this will involve a change in campus for years 11 and 12. The mother contends that W should change schools next year to a NN School, a high school at Suburb N, Sydney. It is common ground that W has expressed a wish to attend NN School. The difficulty, however, is that it cannot be ruled out that the mother has influenced W to say he wants to attend NN School, which is what she favours. While it is common ground that W has demonstrated significant disengagement with his schooling at least for most of 2022, there were some improvements noted in the school records by the end of 2022. It also seems there has been improvement this year and that W has been attending school, at least when he is living with the father. The mother contends that G School do not care if W attends or not and that there are no consequences if he does not attend. The father disagrees. I must say I find it unlikely that the school would not care if W attended school or not.
Whatever school W attends next year, it seems that he will be reasonably close to his parent’s respective homes, although NN School may take a bit longer to get to and involve public transport. The father concedes that if W genuinely wants to attend NN School this may be a motivating factor for him, but the father is not convinced that any increased motivation because of a change of school will be long lasting.
W had significant absences from school or late arrivals particularly during terms 3 and 4 of 2022. During the 10 weeks of term three in 2022, W was late on more than 10 occasions, sick on seven occasions and absent because of “refusal” or “unjustified” on more than 20 occasions. During term 4, W had nine whole day absences and more than 30 partial day absences. However, W’s teacher’s comments include that W was able to “seek academic achievement, gain new communicative skills, promote personal wellbeing and build a positive environment” and his “journey was met with challenges and these absences hindered some of his learning”.
The mother contends that the main issue for W is that he has been unable to access “education content that interests him” and that he is “not supported by expectation of the learning environment that he is in”. It seems W has been able to design his own course of study through a program. The mother contends this will not be able to continue next year if he continues at G School. The father does not accept that.
The mother contends that a change of school for W will not impact his friendships because he has no close friends at his current school although he gets along well with people. School records for 2022 indicate that “[W] was positively influenced by his peers”, and that he had “established strong connections with members of the [program], particularly in the Outlearning opportunities document by an array of photos which has benefited his mental health and increased engagement in school”.
During a review with his paediatrician, Dr PP, in March 2023 with the mother also in attendance, Dr PP noted the following in his letter of the same date:
…
There have been different options raised for [W’s] learning environment and we had discussed starting TAFE which didn't go ahead as they are not offering subjects that he wants. He was attending [a] program at [G School] as an alternative program to mainstream education, but that didn't end up working out either.
Currently he is keenest to move to [NN School] by the end of the year as he is excited about their [specialist] program. Second choice is an option between staying at [G School] either in mainstream or [the] program, or [QQ School, Suburb RR].
He works part-time on Sat[urday] […] & has no problems with concentration/organisation & waking up and getting himself ready, etc
…
I will review him by end of May to see where he is in schooling environment and if needed a trial of medication for ADHD then to see if it will motivate him more. …
…
The reference to the program not working out seems at odds with the parents’ evidence and the information from the school.
Y is currently in grade six at S School and the mother proposes that she attend J School next year, where X attends. The father proposes that Y attend G School, where W currently attends, and will continue to attend if the father’s preference is ordered, although at a different campus.
J School is an all-girls school. The father opposes Y attending J School because he contends that Y’s friendship group are mostly boys and the father considers that Y would benefit from attending a co-educational school i.e. G School. The mother contends that Y has special needs while the father believes her needs are no more than an average child. Y currently participates in a special learning group for literacy at S School. Y’s 2022 school records indicate that Y “can be pleased with her overall level of achievement this semester” with her overall achievements for all subjects being at “expected level” with one “high” and one “outstanding effort”.
The father contends that recent feedback from Y’s teacher indicates that she is doing well even in things she is not good at. It seems that Y has always struggled with reading. The father contends that G School offers lots of options for Y in art and drama which he sees as her areas of strength. The mother contends that J School offers better learning support than G School and that it has impressive opportunities for students in “creative and practical arts”. It is common ground that J School is a smaller school than G School.
The mother contends that it would benefit Y and Z to attend different schools although they have to date attended the same school. While acknowledging their unique relationship because they are twins, the mother considers it would be good for their respective independence to attend different schools. The mother contends that the children will make new friends at whatever school they attend and to the extent they wish to maintain existing friendships they can do so on weekends and holidays.
The mother sent the father an email on 12 March 2023 listing the “results of the conversations I had with [Y] and [Z] about their preferences and what THEY thought of their options is in the below two tables”. Y included a longer list of “pros” in relation to attending J School rather than G School although nothing of great significance stands out. For example, Y lists as a “pro” to attending J School that is has the “best feel” and in the “cons” side for G School she lists “dirty, gross bathrooms” and “some staff didn’t seem great” and “everything that [W] says”. Z also included a longer list of “pros” for attending NN School rather than G School, although again nothing of great significance stands out. For example, Z lists as a “pro” to attending NN School that the “school is tidy and nicely kept” and in the “cons” side for G School, he lists “grubby, non-functional toilets” and “everything [W’s] said”. Interestingly, both children list as a “pro” to attending G School that lots of their local friends are going there.
In relation to Z, the father contends that Z should attend G School with Y and contends that a cohort from his current school will be attending that school. The father contends that Z would also benefit from attending a co-educational school. He opposes Z attending an all-boys’ school based mainly on his own experience of having attended an all boys’ school. The father concedes that NN School has great facilities. It seems to be common ground that Z’s primary wish is for the issue about his schooling next year to be decided by his parents and not left to him.
The mother contends that there is very little difference in terms of travel time between Z attending NN School with W, which is her wish, and going to G School. The mother contends that Z would still be able to see his current friends on weekends and holidays. The mother contends that the facilities and opportunities are greater at NN School. It is common ground that Z experiences some difficulty with his hands and with writing although again it seems that the parents are at odds about the extent of his difficulty. The father contends that while Z has some difficulties it is not obvious to anyone observing him, while the mother, it seems, views his difficulties as more debilitating. The parents agree that Z would benefit from engaging in sporting and musical programs which are offered at both schools although the mother contends that the opportunities at NN School are superior. Z has had music lessons in the past and it is common ground that he is musically inclined.
In the mother’s view, while acknowledging that the father’s view about the children attending a school that is close to their homes is important, “the most important thing is that the child’s needs are met”.
Conclusion – schools
In my view, W should continue attending G School for the following reasons:
(a)This is the school he currently attends and I do not regard the change in campus next year as the same as a change of school;
(b)The school is in close proximity to the parents’ homes;
(c)The school has appropriate programs and opportunities for W and has demonstrated a flexible approach in trying to accommodate W at the school;
(d)This is the school the father wants him to attend and the father will have sole parental responsibility;
(e)An order that he attend this school will provide certainty for the future;
(f)There are fees associated with attendance at NN School (more than $5,000 per annum for the first child and more than $4,000 for the second child) which neither parent would appear to be currently able to pay, although the mother contends she would obtain more work to meet the full fees “if [the father] doesn’t want to contribute with what I believe would provide them with the best education and meet their needs”. I must say even the way the mother couched this evidence reflected poorly on her, in that it was but a veiled criticism of the father. The mother suggested that if the father did not agree to NN School and pay for half the fees he did not support what was best for the children.
Y and Z should attend G School for their high school years for the following reasons:
(a)This is the school W currently attends and will be attending next year (although at a different campus);
(b)The school is in close proximity to the parents’ homes;
(c)The school has appropriate programs and opportunities for the children;
(d)Y’s friendship cohort consists of boys (mainly) and J School is an all-girls school;
(e)Y would probably benefit from attending a co-educational school given her male friendships;
(f)Y and Z have always attended the same school and a continuation of that would seem beneficial;
(g)Many of their current friends will be attending G School and both children see this as an advantage;
(h)This is the school the father wants him to attend and the father will have sole parental responsibility;
(i)An order that they attend this school will provide certainty for the future;
(j)There are fees associated with attendance at NN School and J School which neither parent would appear to be currently able to pay.
It is agreed that X will continue to attend J School.
SHOULD THE MOTHER BE RESTRAINED FROM TAKING THE CHILDREN TO MEDICAL OR OTHER HEALTH PROFESSIONAL APPOINTMENTS OTHER THAN IN CASES OF EMERGENCY?
It is a difficult decision whether to exclude the mother from attending medical or other health professional appointments. It is common ground that the mother has been very much involved in seeking out and taking the children to medical and other health professional appointments. The father has been less involved, but contends this has more to do with the mother failing to keep him informed than with any lack of interest. I accept that the father is as committed as the mother to ensuring the children receive all appropriate medical and other interventions.

Historically, the parents have both attended at least some appointments with the children but the conflict between the parents, e.g. who should attend appointments, has at times directly involved the medical practitioners. The discussion at [72] – [82] of these reasons is also pertinent to this issue.
The rationale for an order restraining the mother from attending medical appointments (and the like) is to remove the children from exposure to a source of potential conflict. Having observed the parents, particularly the mother because she was representing herself and I therefore had a greater opportunity to observe her, I would have to say that it would be better for the children not to have to endure the underlying tension between the parents (on display throughout the trial) at such appointments. The mother certainly presented as someone who considered that her opinions and decisions were superior to that of the father’s while the father presented as someone who was more prepared to consider the mother’s views and at times defer to her opinions. The father was at times complimentary of the mother’s instigation of appropriate treatment for the children. By contrast, when asked for an example of any parenting opinion from the father which she considered to have value, the mother struggled to identify anything. The mother could only come up with an example that she valued his suggestion that the children go bike riding or camping. Clearly such matters are not related to major long term parenting issues. When further pressed, the mother said she valued the father’s suggestion that it may be beneficial for the children to attend schools close to home.
The mother’s empowerment of X into the role of decision maker, even as to which parent should attend her medical appointments, is yet another example of the burden placed on the child by the mother.
I accept the father’s assurances that he will ensure that the children receive appropriate medical and other health professional assistance and conclude that the mother should be restrained from attending appointments except with the father’s prior written consent.
SHOULD THE PARENTS BE RESTRAINED FROM RESIDING WITH THE CHILDREN MORE THAN 10 KILOMETRES, 15 KILOMETRES OR 20 KILOMETRES FROM THE SUBURB C POST OFFICE?
The mother has been subject to a restraint from relocating the residence of the children beyond a radius of ten kilometres from the Suburb C Post Office and from permitting the children to reside at her Suburb D residence other than on weekends or school holidays, without the written consent of the father, since she consented to that interim order in 2020.
The mother consents to the continuation of a restraint but seeks an extension of the radius to 20 kilometres and also contends that the father should be similarly restrained. The mother speculates that with the cost of rent rising she may find it necessary to relocate and extending the radius would give her more options. The mother contends that she has no option but to rent and is not currently in a permanent work position. The mother speculates that if the current restriction remains in place she and the children may become homeless.
There is of course no evidence that the mother’s prospects of continuing with her employment as an educator is at risk, indeed the mother was confident during her evidence of increasing her employment after the proceedings. There is no evidence that she is at risk of having to leave her current rental accommodation. I also note that the mother owns a property in Suburb D. If her financial circumstances deteriorated, there is no evidence that selling the Suburb D property would not be an option. The suggestion that she and the children could become homeless appears somewhat hyperbolic.
It is conceded on behalf of the father, that “there is no magic in 10, 15 or 20” kilometres. The ICL submits that the restraint should be extended to 15 kilometres.
While it is rather an arbitrary outcome I intend to accept the ICL’s submission and extend the radius to 15 kilometres. I consider the restraints, as sought, to be necessary because of the mother’s previous proposal to relocate with the children to Suburb D and what I regard as her disingenuous denial of her intention to do so during these proceedings. It also seems that at one point the mother intended to commute with the children from Suburb D which in my view would not be in the children’s best interests given the distances and traffic involved.
I do not propose to impose a similar restraint against the father. There is and never has been any suggestion that the father proposes to relocate with the children. The father owns the home in which he and his wife and the children live. The granting of an injunction should only ever be to the minimum required and based upon the evidence.
WHAT PARENTING ORDER IS PROPER?
I conclude that it is in the best interests of the children for the father to have sole parental responsibility for major long term issues including, but not limited to, health and education and that all the children should be included in an order that they live week about with their parents.
The father includes in his proposed order, a requirement to inform the mother prior to making a decision and to provide her with an opportunity to have some input. The ICL opposes such a provision, presumably because it may invite further opportunity for conflict. Given the ICL’s opposition, the father did not press such a provision but, in my view, the mother should at least be given one opportunity for limited and succinct input on each occasion a major long term issue is required to be made. The father will ultimately make the decision.
I note that in an aide memoir comparing the orders sought, there was an indication from the father and the ICL that I should make an order that the father have sole parental responsibility for day to day issues, in addition to major long term issues. The father does not seek such an order in his further amended Initiating Application nor does the ICL in her recommended order. No submissions were made in relation thereto. I do not propose to make such an order. However, there are a suite of provisions in the order I propose to make that will have an impact on how some day to day issues are decided e.g. the mother will be restrained from taking the children to medical appointments other than in the case of a genuine emergency.
I do not propose to include in the order any requirement for the children and the parent with whom they are not living in a particular week to communicate. The children will be living with each parent on a week about basis and given the ages of the children, particularly W and X, I anticipate the children will make contact with the other parent if and when they wish to do so.
Leave is not required for the father or the mother to provide a copy of the parenting order to the children’s respective schools or to their treating medical practitioners.
Each of the parents and the ICL had the opportunity to make submissions about the entirety of the order sought by each other and provided an aide memoir reflecting areas of agreement and disagreement. Ultimately, I propose to include in the final parenting order those provisions which I consider to be in the best interests of the children.

I certify that the preceding one hundred and forty-six (146) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carew.
Associate:
Dated: 29 June 2023

File number(s):	SYC 8351 of 2016
Judgment of:	CAREW J
Date of judgment:	29 June 2023
Catchwords:	FAMILY LAW – PARENTING – Order for sole parental responsibility to the father in circumstances where the father is less likely to place the burden of parenting decisions onto the children – Where there is likely to be a continuing risk posed by the mother of emotional and psychological harm to the children by inappropriately involving them in parenting decisions and in the conflict more generally – Where on balance an order for equal time, week about is in the children’s best interests - Where such an arrangement is more likely to reduce the risk posed by the mother, both parties seek an order for equal time in relation to at least the two youngest children, the children have historically spent close to equal time in each household, and the independent children’s lawyer supports the arrangement - Where the mother is restrained from relocating the children’s residence further than 15 kilometres from Suburb C Post Office – Where the mother is restrained from attending at medical or other allied health appointments for the children so as to remove the children from exposure to a source of potential conflict
Legislation:	Evidence Act 1995 (Cth) ss 140 Family Law Act 1975 (Cth) ss 4, 4AB, 43, 65D, 64B, 60B(1), 60B(2), 60CA, 60CC, 60CG, 61C, 65DAC
Cases cited:	Baghti & Baghti and Ors [2015] FamCAFC 71 Banks & Banks (2015) FLC 93–637 Eastley & Eastley [2022] FedCF1A 101 Isles and Nelissen [2022] FedCFamC1A 97 Johnson & Page (2007) FLC 93-344 M v M (1988) 166 CLR 69 N and S and the Separate Representative (1996) FLC 92–655
Number of paragraphs:	146
Date of hearing:	8 - 10 May 2023
Place:	Heard in Sydney, delivered in Brisbane
Counsel for the Applicant:	Ms Seric
Solicitor for the Applicant:	Nolan Lawyers
The Respondent:	Litigant in person
Counsel for the Independent Children’s Lawyer:	Ms Rebehy
Solicitor for the Independent Children’s Lawyer:	JLM Family Lawyers Pty Ltd

SYC 8351 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GORECKI Applicant
AND:	MS GRAFTON Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CAREW J
DATE OF ORDER:	29 JUNE 2023