Harley & Cohen - [2024] FedCFamC2F 1280

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Harley & Cohen [2024] FedCFamC2F 1280

File number: WOC 743 of 2020

Judgment of: JUDGE LIOUMIS

Date of judgment: 10 December 2024

Catchwords: FAMILY LAW – CHILDREN – Where the parties agree that the children shall live with the father and the eldest child (15 years of age) shall spend time with the mother in accordance with her wishes – Whether orders should be made for time and communication between the youngest child (11 years) and the mother – Whether the father should hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties – Where the children have spent no time with the mother since September 2023 – Where the children hold strong views that there be no orders to spend time with the mother – Impact of protracted litigation on the children – Parental conflict – Where both children have experienced mental health difficulties – No positive findings of family violence – Findings made that coercive orders for the youngest child to spend time with the mother would not be in her best interests – Orders made for each child to spend time with and communicate with the mother in accordance with their wishes – Orders made for the father to hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties

Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 117

Cases cited: Whisprun Pty Ltd v Dixon [2003] HCA 48

Division: Division 2 Family Law

Number of paragraphs: 276

Date of hearing: 13, 14 & 15 May 2024

Place: Wollongong

Counsel for the Applicant: Mr Havenstein of Counsel

Solicitor for the Applicant: Kells The Lawyers

Counsel for the Respondent: Ms Cantrall of Counsel

Solicitor for the Respondent: Rossi Simicic Lawyers

Counsel for the Independent Children's Lawyer: Ms Druitt of Counsel

Solicitor for the Independent Children's Lawyer: Johnson Vardanega Lawyers
ORDERS

WOC 743 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HARLEY

Applicant

AND:
MS COHEN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE LIOUMIS

DATE OF ORDER:

10 DECEMBER 2024

ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting Orders shall be and are hereby discharged.
2.The parties shall continue to consult with one another about major long-term issues in relation to the children of the relationship, namely X born in 2008 and Y born in 2012 (collectively “the children”).
3.For the purposes of Order 2 above:
(a)The party raising any major long-term issue shall do so with the other party via email;
(b)The responding parent shall respond within 7 days;
(c)The initiating parent shall then respond within a further 7 days;
(d)If no agreement is reached, the Father shall make the final determination in respect of the issue in dispute.

4.Each party shall do all acts and things necessary to ensure that the child Y is enrolled in B School to commence Year 7 in 2025.
5.The children shall live with the Father.
6.Each child shall spend time and communicate with the Mother in accordance with their respective wishes.

7.The Mother be permitted to send letters, cards and gifts to the children on occasions of significance (including but not limited to Christmas, birthdays, graduation from school, school formal events, getting a driver’s licence or other significant events) to the children at their home address and the Father shall ensure the children are provided with those items and encourage each child to acknowledge receipt and thank the Mother.
8.The Father shall ensure that each child is provided with the Mother’s current mobile telephone number and current email address.
9.Each party shall advise the other party and keep the other party advised as to their current contact telephone numbers and email addresses and advise the other party of any changes within 48 hours of such change occurring.
10.Each party do all acts and things and execute all documents necessary to authorise any school at which the children attend or any medical practitioner upon whom the children attend to provide all requested information in respect to the children to the other party and to discuss all issues relating to the well-being of the children with the other party.
11.Each party shall do all things and execute all documents to authorise and direct any school attended by the children to discuss with each of the parties the children’s school attendance and progress, furnish reports, photos and copies of correspondence, newsletters or other materials produced by the school and distributed to parents relating to the children.
12.Each parent shall be restrained by injunction from making any negative, critical, belittling or derogatory comments in relation to the other parent or members of the other parent’s family or household (including questioning or criticising the parenting decisions and/or parenting capacity of the other parent) to or in the presence or hearing range of either of the children or via written correspondence or on social media, or allow any other person to do so within the children's presence or hearing.
13.Within 7 days of the date of these Orders, the Independent Children’s Lawyer shall meet with the children and explain the Orders to them.
14.Within 28 days of the date of these Orders, the Mother shall pay the sum of $11,050.32 to Legal Aid NSW as payment for the costs of the Independent Children’s Lawyer.
15.Within 28 days of the date of these Orders, the Father shall pay the sum of $9,400.32 to Legal Aid NSW as payment for the costs of the Independent Children’s Lawyer.
16.All outstanding applications are dismissed and the proceedings are removed from the list of matters awaiting finalisation.

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

This matter relates to the parenting arrangements for X born in 2008, aged 15 at the commencement of the hearing, and Y born in 2012, aged 11 at the commencement of the hearing (collectively “the children”).
The Applicant father is Mr Harley (“the father”).
The Respondent mother is Ms Cohen (“the mother”).
The parties commenced cohabitation in the United Kingdom in 2003, were married in Australia in 2005 and separated on 19 May 2020. Their divorce was finalised in early 2023.
ISSUES
The issues that require the Court’s determination are as follows:
(a)Whether the father should be permitted to have sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties;
(b)Whether there should be orders in relation to time and communication between Y and the mother;
(c)Whether the parents should participate in a form of dispute resolution in the future in relation to Y re-engaging in spending time with the mother, if she has not already done so; and
(d)Whether some form of family therapy, or therapeutic assistance for the parents, should occur.
The parties appear agreed on the following:
(a)That parental responsibility for the children be shared;
(b)That the children live with the father; and
(c)That X spend time with the mother in accordance with X’s wishes.
EVIDENCE
The hearing was conducted in person and the parties were legally represented.
The father relied on his Outline of Case document filed 2 May 2024 and the following documents:
(a)Amended Initiating Application filed 27 March 2024; and
(b)Affidavit of Mr Harley filed 27 March 2024.
The mother relied on her Outline of Case document filed 2 May 2024 and the following documents:
(a)Further Amended Response to Initiating Application filed 5 February 2024;
(b)Affidavit of Ms Cohen filed 3 April 2024;
(c)Affidavit of Ms C filed 26 June 2023;
(d)Undertaking as to disclosure filed 3 April 2024; and
(e)Notice of Change of Name filed 2 May 2024.
The Independent Children’s Lawyer (“ICL”) relied on their Case Outline document filed 10 May 2024.
Both parties and the ICL relied on the Family Report by Ms D dated 17 August 2023.
I have also read and considered all evidence tendered and marked as exhibits.
Whilst I have read and considered all material relied upon by the parties, I do not propose to traverse all the evidence in these reasons, but rather address the evidence that grounds the reasons for my decision: Whisprun Pty Ltd v Dixon [2003] HCA 48.
PROPOSALS
The mother proposes that:
(a)Y spend time with the mother initially on alternate Saturdays for six hours, gradually increasing in duration every 8 weeks until Y spends overnight time each alternate week from the conclusion of school on Friday to the commencement of school on Monday. The mother also seeks orders for Y to spend time with each parent on special occasions such as Christmas and Mother’s Day, and at other times as agreed between the parties;
(b)The mother communicate with Y by phone each Wednesday evening, and with both children on special days that they are not spending time with the mother;
(c)The mother be at liberty to send cards and/or gifts to the children each year on their birthday and at Easter and Christmas, with the cards and/or gifts to be delivered by an independent third party to the father’s home and the father to ensure the children receive them;
(d)The mother be at liberty to attend the children’s schools for parent teacher interviews and other events that ordinarily involve parental attendance, provided the mother does not approach the children unless the child/ren initiate contact with her; and
(e)The mother be restrained from approaching the children in public unless contact is initiated by the child/ren, and mutual restraints on non-denigration.
The ICL proposes that:
(a)The parties continue to consult each other about major long-term issues relating to the children via email and if no agreement is reached, the father make the final determination in respect of the dispute;
(b)Y spend time and communicate with the mother in accordance with her wishes;
(c)The mother be permitted to send cards, gifts and letters to the children on occasions of significance including birthdays and graduations, and the father is to ensure the children receive these items and encourage the children to acknowledge receipt and thank the mother;
(d)The father ensure the children are provided with the mother’s mobile number and email address;
(e)Y be enrolled in B School;
(f)Mutual restraints on non-denigration, including a restraint on allowing any other person to make such comments within the children’s presence or hearing; and
(g)By no later than 31 July 2026, each parent approach E Family Centre or such other agreed service for the purposes of attending a Child Inclusive Mediation to discuss whether Y wishes to re-engage in spending time with the mother if this has not already occurred.
The father, having heard the evidence at final hearing, adopted the position of the ICL in submissions.
BACKGROUND
The father was born in 1977 and was aged 46 at the commencement of the hearing.
The mother was born in 1977 in the UK and was aged 46 at the commencement of the hearing.
The relationship commenced when the parties met in late 2001 or early 2002 while in Country F on holiday.
The parties maintained a long-distance relationship until they began cohabitating in 2003 when the father relocated to the UK to live with the mother.
In 2005, the parties were married in Australia and then returned to live in the UK.
In 2008, the parties’ first child X was born, and the mother took maternity leave before returning to full-time work.
In 2012, the parties’ second child Y was born, and the mother took maternity leave before returning to full-time work.
Both children were born in the UK and are dual citizens of the UK and Australia.
Throughout the relationship, both parties worked and contributed domestically. The mother asserts that she was the children’s primary carer, and the father asserts that the paternal grandparents had a significant involvement in the children’s lives.
In late 2012, the parties relocated from the UK to Australia. The father was and remains a dual citizen of the UK and Australia. The mother moved to Australia with permanent residency but has since obtained Australian citizenship and is a dual national.
In 2014 when the mother returned to full-time work, the paternal grandparents began assisting in taking care of the children.
In 2015, the mother was diagnosed with anxiety and depression apparently associated with work stressors. She was prescribed medication and directed to attend upon a psychologist and psychiatrist.
In early 2017, the mother asserts that the father threatened self-harm following an argument.
In 2017, the mother arranged for the children to be baptised without the father’s knowledge. The father asserts that this was part of what he described as a mental health episode.
In 2018, the mother reduced her working hours to three days per week.
In March 2020, the mother displayed symptoms of COVID-19 after returning from a work trip to Melbourne. She self-isolated for two weeks in a separate area of the house. At this time, she ceased taking her medication. The father contends this decision was made without consultation with her doctor.
The father asserts that in May 2020, the mother’s ability to take care of herself and the children was declining and her consumption of alcohol had increased. The mother asserts she stopped working until mid-2020, when she recommenced work two days per week.
In May 2020, the father asserts he insisted the mother attend upon her doctor who renewed her prescription for four weeks. The father contends that the mother did not fill this prescription until June 2020.
In May 2020, the father asserts that the mother went through his work computer and accused him of having an affair with a coworker.
In May 2020, the parties had an argument. The parties agree that an incident followed where the mother’s fingers were injured in a door the father was opening.
The mother asserts that she attended City H Police Station on two occasions to report the incident of May 2020. The mother reported domestic violence to the Police, telling them she had been a victim of abuse by the father for years and has no escape, asserting he controlled and manipulated her financially. She asserted that the father never assaulted or threatened to assault her, but he was capable of doing so.
In May 2020, the parties separated when the mother moved out of the family home. The mother says she went to a relative’s house. The father says he discovered the mother’s departure when X received a text message from the mother stating she was in City H. The father asserts he received a call from his brother informing him that the mother had contacted his wife and advised she had made a Police report against the father.
The father asserts he attended City J Police Station with the paternal grandfather where he was informed of the reports made by the mother, including reports of the incident in which the mother’s fingers were injured in a door. Police later attended the home to inspect the damage alleged by the mother and the father was cautioned.
In May 2020, the mother states that she attended City H Police Station but became upset and had a panic attack and left.
The mother states she also attended the Police Station the next day and again had a panic attack, causing the Police to call an ambulance which transported her to City H Hospital. Later that day, the father asserts he was contacted by City H Hospital advising of the mother’s admission to its emergency department. The mother asserts she made attempts to call the father to speak to the children but was unsuccessful.
The mother asserts that in May 2020, the father withdrew approximately $25,000 from the parties’ joint bank account without her knowledge or authority. She further asserts that he removed her from family internet accounts and subscriptions.
While in hospital, the mother expressed to staff that she had ceased taking anti-depressant medication a week prior and described the incident as the father was being physically aggressive towards her. She reported similar “breakdowns” in 2014 and 2017. The mother asserted that she was reluctant to take medication, and not convinced she was having a mental health episode, but she was experiencing a normal reaction to marriage breakdown.
The father contends that he and the children were in regular contact with the mother during her admission, however it is the mother’s position that she made several attempts to contact the father so she could speak to the children and many of her calls went unanswered.
In May 2020, the mother was transferred from City H Hospital to K Hospital before being discharged the following day.
The mother contends that following her discharge from Hospital, she made attempts to spend time with the children through the father and paternal grandfather but that they would change the arrangements with little notice. She asserts she did not see the children between May 2020 and November 2020.
The father reports that the mother contacted the paternal grandfather on 2 June 2020 to arrange time with the children. Arrangements were made, however the father asserts that the mother cancelled the visit via SMS to the paternal grandfather.
On 4 June 2020, the parties arranged for the mother to meet the children at Suburb L. The father claims that the mother saw him and the children before running away. The mother claims there was a miscommunication as to the exact meeting location.
On 6 and 7 June 2020, the mother made another attempt to contact the children by phone and spoke to Y. The following day, the mother attended the family home and collected her belongings.
On 15 June 2020, the father asserts that the mother’s mental health was deteriorating as demonstrated in her behaviour in refusing to co-operate with him in unfreezing the joint account and not calling the children in line with the father’s proposals until mid-August 2020.
The father asserts that on 17 June 2020, the mother entered the family home while the father was at work and the children were in the care of the paternal grandparents. The father received an alert on his phone showing that the security cameras had been triggered. He messaged the mother telling her she was not allowed to visit the home and when she replied stating it was “her house,” he messaged the paternal grandparents to attend the home. The paternal grandfather attended the property and reported the incident to Police. The father further asserts that he later discovered many of the children’s belongings including passports, electronics, clothing, birth certificates and school materials had been removed from the property.

On 22 June 2020, the father filed an Initiating Application. Orders were made in Chambers for material relating to the children and parents to be produced pursuant to section 69ZW of the Family Law Act 1975 (Cth) (“the Act”) and for the children’s names to be placed on the Airport Watchlist, and the matter was listed on an urgent basis on 3 July 2020.
On that date, further Orders were made by consent, including:
(a)For the children to live with the father;
(b)For the children to spend time with the mother as agreed by the parties in writing; and
(c)For the mother to be restrained from approaching within 100 m of the children’s home and schools.
Further Orders were also made for the mother to return the children’s belongings, for the parties to attend a Child Inclusive Dispute Conference and for the matter to be listed for interim hearing on 9 October 2020.
It appears agreed between the parties that the mother returned the items belonging to the children in a series of instalments. The mother asserted she returned the items on 22 July 2020 and returned some remaining items to Kells Lawyers at a later stage.
On 6 October 2020, the parties consented to the interim hearing listed on 9 October 2020 being vacated, and Orders were made adjourning the matter to 29 January 2021 for interim hearing. Interim Orders were also made by consent for:
(a)The children to live with the father;
(b)Family therapy and for the parties to follow the recommendations of the therapist;
(c)Supervised time between the children and the mother for two hours each alternate Sunday;
(d)The parents to attend upon their general practitioners for the purpose of obtaining a Treatment Plan or Mental Health Care Plan; and
(e)The children to spend time with the mother for two hours under the supervision of M Contact Service at times nominated by that service with the costs of supervision to be shared equally by the parties.
On 9 October 2020, the father contends he and the children attended N Medical Centre City J to obtain a Mental Health Care Plan for the purposes of engaging in family therapy pursuant to the interim consent Orders. He asserts that X was diagnosed with depression and Y with anxiety and depression.
On 12 October 2020, the father asserts he made arrangements for the commencement of family therapy.
In November 2020, the mother attended upon a psychiatrist at the recommendation of her general practitioner. The mother asserts she was diagnosed with complex post-traumatic stress disorder and mixed anxiety depression and prescribed an antidepressant.
The supervised time between the mother and children commenced on 28 November 2020 and continued fortnightly. The father asserts that the children appeared tired and deflated or frustrated and angry following the visits.
On 26 December 2020, the children attended supervised time with the mother.
While setting up the device, the father asserts he discovered a voice memo of the mother dated November 2020 on an old mobile phone the mother gifted X for Christmas previously used by the mother. He asserts that he deleted the voice memo from the phone but saved the recording onto a USB and instructed his solicitors to prepare a typescript of same, which is annexed to his affidavit filed 3 April 2024 and marked G.
The parties are agreed that on 29 January 2021, further interim Orders were made by consent providing for, among other things:
(a)All previous parenting orders to be discharged;
(b)The children to live with the father;
(c)The children to spend time with the mother supervised by an agreed person or person nominated by the ICL on alternate Saturdays, with a provision for a graduated increase in time until the children spend between 10 am and 5 pm each alternate Saturday with the mother;
(d)The children to communicate with the mother each Thursday and on special occasions by phone;
(e)The continuation of family therapy;
(f)A restraint on the mother approaching or coming within 100 m of the children’s schools and home and the home of the paternal grandparents; and
(g)A restraint on both parties discussing the proceedings and denigrating the other in front of the children.
The parties were able to agree on three supervisors and both report that all instances of time between the children and the mother were supervised by one of these parties.
On 26 February 2021, the father contends that the mother arrived early to the family therapy appointment and attempted to initiate contact with the father.
The father asserts that in mid-April 2021, the mother began sending messages suggesting she wanted to reconcile and give their family another chance.
The mother asserts that in April 2021, she made attempts to communicate with the father about their family situation and after unexpectedly seeing him at N Medical Centre in City J. The father recounts a similar encounter but asserts the date of the incident was May 2021. The father asserts the mother was asking him to give the family another chance. He asserts the mother had tried to “intercept” him at several family therapy appointments. The last appointment took place on 7 May 2021.
The father asserts that by 6 May 2021 and up to 15 July 2021, the children’s phone calls with the mother were becoming increasingly difficult and leaving the children upset.
The father asserts that following the children’s supervised visit with the mother on 15 May 2021, X informed him that the mother screamed at her which made her cry and led to her hiding in a cupboard and that Y curled up in a ball as the shouting was too much to deal with.
On 27 May 2021, the father asserts that X reported that two of her friends, including one of the daughters of one of the supervisors, were no longer allowed to associate with her due to the mother’s communication with their parents. He asserts the mother frequently “interfered” in X’s friendships.
On 12 June 2021, the children attended their first seven hour visit with the mother pursuant to the 29 January 2021 consent Orders. The father asserts that the children told him they were distressed following this visit as they had fought with the mother, causing the supervisor to intervene.
On 22 July 2021, the parties entered into interim consent Orders providing for, among other things, the children to spend unsupervised time with the mother each alternate Friday and Saturday.
From 24 July 2021, the children spent unsupervised time with the mother. The father asserts that on many occasions following time with the mother, the children returned to him early and distressed. On some occasions, he asserts that they disclosed that the mother had discussed disordered eating, mental health and financial issues with the children.
On 17 August 2021, the father was informed by X’s school that X had engaged in self-harming behaviour. The father asserts that this was linked to interactions with the mother.
Between 2 November and 9 November 2021, the father was informed by X’s school that she was engaging in self-harming behaviours and experiencing suicidal thoughts. The father asserts that he informed the mother by text message, email and written correspondence between their solicitors. The mother agrees that she received email communications regarding these issues from the father.
The father further asserts that he worked with the school to develop a Care Plan and refer X to the Child and Adolescent and Youth Mental Health Service (“CAYMHS”) who agreed to accept X as a patient in November 2021.
The father asserts that he updated the mother about X’s mental health treatment.
In December 2021, the father asserts that he was contacted by X’s school regarding her making a prank call to the mother and threatening self-harm, and that X had brought a dangerous item to school the day before. The father further asserts that he contacted the mother to inform her of these communications.
From late January to 1 March 2022, the maternal grandmother visited the mother and spent time with the children during their scheduled time with the mother. The father says X asserted that the mother and maternal grandmother would “gang up” on her.
On 9 February 2022, the father asserts he received an updated child support assessment based on the mother having an annual income of $0. He asserts he learned that the mother had not worked since November 2021 due to mental health concerns.
On 16 February 2022, the father asserts he was contacted by Child Protective Services after the Department received a report of concerns for X expressing fears about her mother. He further asserts that Child Protective Services chose not to pursue an investigation as the children were residing in his home.
On 18 March 2022, X attended a psychiatrist and was prescribed medication to assist with sleep.
In March 2022, an incident occurred during the children’s time with the mother. It appears agreed between the parties that the children and the mother had an argument about what they would eat for dinner that escalated, leading to the children locking themselves in the bathroom and Police attending due to, as the father asserts, the mother making a threat of self-harm.
Following Police attendance, the visit was terminated and the paternal grandparents collected the children. On 28 March 2022, the father’s solicitor sent correspondence to the mother’s solicitor informing her that the father was no longer willing to facilitate time between the mother and children due to the impact of the incident on the children and their expressed wishes not to see the mother. The children did not spend time with the mother until 25 February 2023.
On 7 April 2022, the father asserts that the children met with the ICL to discuss, among other things, the incident of March and that upon returning home, X engaged in self-harming behaviours.
In mid-2022, the mother returned to the UK to care for the maternal grandparents and maternal great-grandmother. During this time, the children had weekly calls with the mother. The father asserts that these calls often resulted in conflict.
In 2022, the mother resigned from her employment due to the passing of her mother and her grandmother. The mother returned to Australia in mid-2022.
In August 2022, the father reports that Y commenced attending upon a therapist to assist with her anxiety and started taking medication.
On 12 December 2022, interim consent Orders were made providing for the children to spend time with the mother for two hours each fortnight to be supervised by O Contact Service and telephone communication on alternate Fridays.
The mother travelled to the UK for Christmas 2022 and returned in January 2023.
On 10 January 2023, the father asserts the children met again with the ICL to discuss their return to supervised time. The father asserts that the children did not want to recommence time with the mother.
In February 2023, supervised contact between the mother and the children commenced pursuant to interim consent Orders of 12 December 2022. The father asserts that the children were reluctant to attend and were often distressed prior to and following visits, which were often terminated early or cancelled due to the children’s refusals to attend.
On 3 March 2023, the father asserts he accessed his MyGov account and found the mother was more than $3,000 in arrears on her child support payments. He asserts that by 5 April 2023, the outstanding payments had been made and a new assessment had been completed.
From mid-2023, the mother returned to full-time employment.
On 27 June 2023, the parties and children attended Family Report interviews. The children refused to engage in contact with the mother for the purpose of the observation.
The parties are agreed that the children have spent no time with the mother since September 2023. The mother asserts that on 21 December 2023, the father proposed that Y spend supervised time with the mother on 6 occasions per year, but that he was unwilling to implement this on an interim basis. The father asserts that X has ceased calls with the mother since December 2023.
FAMILY VIOLENCE
It is the mother’s case that in May 2020, she and the father had an argument. She says that she ran to the bathroom and had her hands against the door. She says the father charged at the door and the lock broke, the door swung open and she injured her fingers causing her pain. The mother sought medical attention for her fingers but examination revealed no injury. The mother says that she was frightened during the incident and her oral evidence is that she remains frightened of the father.
It is the father’s evidence that on that evening, there was an accident in which the mother was behind a closed door. The father opened the door and in doing so, the mother’s hand was hurt. It is the father’s evidence that he immediately attended to the mother’s injured hand and provided an ice pack to reduce the injury.
Two days later, the mother attended on general practitioner Dr P and the records indicate “accedentally [sic] snap fingers in the door”.[1] The records indicate that the mother also discussed mindfulness and stress management and that the mother was worried of her relationship with the father. The nature of that worry is not recorded. Records from Dr P dated 25 June 2020 indicate the mother disclosed that she was reluctant to start medication and was worried about “her past stress life – with husband that unspoken issues”.[2]
[1] Exhibit F6.
[2] Exhibit F6.
The Mother attended City H Police Station in May 2020. The records indicate that the mother reported that she had closed the door and the father had “barged” it open, causing the lock to break and injuring her hand.[3] The COPS record indicates that the mother reported that the father “apologised and went downstairs”.[4]
[3] Exhibit F5.
[4] Exhibit F5.
The COPS report also notes that “the victim told police she had been the victim of abuse for years and she has now escaped”.[5] The mother gave Police an example of the father being controlling while they were visiting the UK when the father did not want to visit her father, and said the father had been financially controlling. The mother stated that the father “had never assaulted or threatened to assault her, however [he] was ‘capable of it’”.[6]
[5] Exhibit F5.
[6] Exhibit F5.
I have carefully considered the evidence in relation to this event. Having considered both parties’ oral evidence and the third party material, I do not make a positive finding in respect of family violence in this matter. I am not satisfied that the evidence taken as a whole would support a finding to the requisite standard.
MOTHER’S MENTAL HEALTH
It is agreed that the mother took medication for anxiety and depression between 2015 and 2020.
The mother determined in March 2020 that she no longer needed to be medicated and reduced her medication and then ceased it, without the advice of medical professionals. The parties agree that the father was opposed to the mother’s decision to cease her medication.
There is conflicting evidence as to the mother’s behaviour around this time. The mother says that she avoided the father because of the deterioration in their marriage. The father says that the mother disengaged from the family and slept a lot.
At a consultation with general practitioner Dr P, it is recorded the mother was prescribed medication.
In May 2020, the mother left the family home and drove to City H and initially stayed with relatives. The parties agree this is when separation occurred.
On the same date, the mother attended City H Police Station and her evidence is that she had become very upset, had a panic attack and left. The following day, the mother again attended City H Police Station and her evidence is that she had another panic attack at the station and an ambulance was called. The mother was hospitalised at City H Hospital prior to being transferred to K Hospital where she spent a further day.
The discharge summary from K Hospital indicates that she had an “adjustment disorder (anxious mood)” and had “presented in situational crisis in context of alleged domestic violence and a history of anxiety”.[7] The summary also noted previous diagnoses of anxiety and depression.
[7] Exhibit F4.
During the Family Report interviews, the father described what he observed to be the mother’s declining mental health and its impact on the family. The Court Child Expert Ms D at paragraph 23 of the Family Report described the father as being at a loss as to how to deal with the mother’s “odd” behaviour and how to protect the children. I accept this assessment by the Court Child Expert as it concurs with my observations of the father during cross-examination. The father remained fixed in his concerns about the mother and her mental health and struggled to accept that the mother’s mental health had improved.
Despite the mother having filed evidence from her treater, who was not called, having provided information to the father since separation regarding her treatment and having been assessed by the Court Child Expert, the father maintained a concern that the mother’s mental health was poor.
The father’s fixed views on the mother’s mental health have impeded his capacity to support the children’s time with the mother. He conceded in cross-examination that he accepted what the children have told him, particularly that the mother has acted inappropriately when the children are in her care, without conferring with the mother to ascertain her views of her interactions with the children.
The mother denied to the Court Child Expert that she was sleeping poorly and that her personal hygiene had deteriorated, as alleged by the father. At paragraph 27 of the Family Report, the mother was described as:
…dismissive and somewhat avoidant of exploring [Mr Harley]’s account of her alleged deteriorating mental health and other concerning aspects of her behaviour which he had expressed concern about to [sic] in the lead up to their separation.
I accept this assessment by the Court Child Expert as it aligns with the mother’s oral evidence during the trial. The mother minimised and deflected concerns held by the father and the children in relation to her behaviour in the lead up to and following separation.
Ms C’s evidence
Ms C is a psychologist who has conducted 15 sessions with the mother since 2022. Ms C commenced her care of the mother after Ms Q left the practice. Ms Q had 39 sessions with the mother.
Ms C was not required for cross-examination.
The mother provided Ms C a history including that the father had perpetrated family violence towards her which involved coercive control, leveraging her mental health to undermine her capacity, verbal and emotional abuse, and intimidation, and that he had continued to exercise control over her during the family law proceedings in relation to her spending time with the children.
Ms C concurred with the diagnosis of Dr R of S Hospital that the mother suffers from “Post Traumatic Stress Disorder (PTSD) with mixed anxiety and depression along with intermittent suicidal ideation”.[8]
[8] Exhibit M4.
Ms C assessed the mother’s prognosis as very positive and opined that the mother has engaged well during treatment, is highly motivated and has made significant gains. According to Ms C:[9]
The prognosis for [Ms Cohen] is very positive. She has engaged well throughout therapeutic treatment and has seen significant gains across multiple domains of her life. She has moved from high and almost consistent suicidal ideation and inability to engage in employment, the community, and social settings and complete generalised ADLS, to now being employed, maintaining her physical and mental health including and [sic] suitable self-care.
[9] Exhibit M4.
I accept this evidence of the prognosis of the mother’s mental health.
Discussion
I accept that the mother’s mental health is now well managed. I find that the mother has appropriately sought assistance and has been diligent in following recommendations from her treaters, despite previous challenges in following medication regimes as prescribed.

However, the mother struggled during these proceedings and in her cross-examination to demonstrate that she understood that her mental health issues, while well managed now, have in the past had a significant impact on the children. I find that the mother was unable to accept that the children’s experiences of her has included periods where her behaviour was erratic, explosive and frightening.
I find that the father has a negative view of the mother, and he has been unable to accept that the mental health issues that the mother had at separation have resolved.
He has maintained to experts and treaters that the mother remains a risk to the children because of her mental health issues. I do not find that this is the case.
CHILDREN’S MENTAL HEALTH
X
X has received treatment for eating disorders, self-harm and depression.
In October 2020, X was diagnosed with depression. X disclosed to Dr T feeling traumatised and intimidated by the mother.
On 12 October 2020, the father contacted the agreed family therapist Ms U. It is the father’s evidence that he took the children to the sessions with Ms U and implemented the strategies that she recommended to commence spending supervised time with the mother.
The children commenced unsupervised time with the mother on 24 July 2021.
The father’s evidence is that on 13 August 2021, the children had a negative interaction with the mother and called him from McDonald’s, and he attended to collect them. The children were reported to be highly distressed and crying. The father’s evidence is that X reported the mother called her a “nasty and rude girl” and said to X: “You wouldn’t care if I died or was in jail [sic]. That’s probably what you want”. The father asserted that she also made other comments relating to the proceedings to the children.
On 17 August 2021, the father says that he received a phone call from X’s school and was informed that X was self-harming. The father organised for X to receive counselling at V Centre. The father reports that X said to him:
It is because of my relationship with [Ms Cohen], people not believing me about what has happened, missing my friends due to lockdown, feeling blamed for [Ms Cohen]’s mental health problems, and the pressures of school and deadlines in lockdown.
On 24 September 2021, the father reports that X reported that the mother was making comments about what she was eating and that the mother had said to her, “you really like taking things from me, don’t you [X]” when X tried to bring a cup home, and accused X of bullying her.
On 2 October 2021, the children reported that the mother had a panic attack when it was time to drive them home and had again clashed with X. The children reported to the father that the mother called X a “nasty girl,” “cruel” and a “liar,” made comments about X taking things from her and “stood over” her.
In November 2021, the father received a phone call from X’s school and was informed that X was self-harming. The father and X then attended at the children’s general practitioner and received referrals to a psychiatrist and psychologist to treat her self-harm and disordered eating.
On 3 November 2021, it is the father’s evidence that he told the mother about X’s difficulties and asked her to remove sharp objects from the house. He also asserts that on 3 November 2021, X told him she was considering suicide.
In November 2021, the father says that X self-harmed and was having suicidal thoughts. The father says that X received assistance from her school and a Care Plan was implemented.
In November 2021, the father says that X self-harmed at school. X was referred to CAYMHS.
On 10 November 2021, the father advised the mother about X’s self-harm.
In November 2021, CAYMHS undertook an initial assessment of X. Two days later, CAYMHS accepted X as a patient.
In November 2021, the father says that the school psychologist contacted him and advised that X disclosed she had tried to self-harm. The father advised the mother and the mother made adjustments to the home to make it safer.
On 27 November 2021, the father says that during a visit with the mother, X telephoned him and she and Y were upset at comments the mother made including allegedly that the children were the reason for her mental health issues and that the father was abusive to the children. He says X was feeling unsafe and experiencing suicidal thoughts and that he calmed the children down over the phone and encouraged them to finish the visit.
In December 2021, the father received a phone call from X’s school advising that X had made a threat to take her own life and had brought a dangerous item to school the previous day. The father advised the mother and advised her that the school believed the threat was credible and to take care over the weekend. The school also advised that X had prank called the mother, however X suggested one of her friends made the call.
A week later, X had her first appointment with CAYMHS. It was agreed that X would engage on a weekly basis and implement a Safety Plan. The father’s evidence is that he advised the mother of the outcome of the session and confirmed that he would keep the mother updated.
It is the father’s evidence that X remained unsettled during December 2021, but she was having some success in implementing her behavioural strategies. The children spent Christmas Day and New Years Eve 2021 and 14 January 2022 with the mother, and the father asserts that the children complained of inappropriate comments the mother had made about the children’s eating. X also made several allegations that the mother treated Y differently, including providing her with nicer gifts.
On 16 February 2022, the father asserts that he received a call from Child Protective Services concerning X’s expressed fears about her mother and risk of psychological harm in the mother’s care. However, Child Protective Services confirmed that an investigation would not be pursued as the children were in his care.
On 19 February 2022, the father’s evidence is that he contacted the mother and updated her on X’s treatment at CAYMHS, her current Safety Plan and that X had been taken off “high alert status.”
On 5 and 11 March 2022, the father alleges that the mother discussed X’s eating disorder with her.
On 18 March 2022, X had an appointment with her psychiatrist Dr W. The father’s evidence is that he provided information to the mother about the outcome of this appointment. X described longstanding difficulties with the mother, and with respect to self-harm, asserted this existed since she was nine years of age.
After the incident in March 2022, the father stated that X and Y were very unsettled and had difficulty sleeping, and that X would cry uncontrollably thinking that the mother was outside.
In April 2022, the children refused to spend time with the mother and from late August 2022, phone calls between X and the mother resulted in heated arguments in which the father alleges the mother denigrated the father to X and brought up other topics to upset her.
The father alleges that at the orientation session on 11 February 2023 with O Contact Centre, the children expressed fears about seeing the mother again and developed “safe words” they would use to let supervisors know if they were anxious. He asserts that X was upset during and after the following visits and that she stated she “spaced out” and began to cry.
X attended fortnightly psychology sessions during the orientation period in the beginning of 2023. The father asserts that X continues to attend monthly psychology appointments.
On 2 February 2024, X’s psychologist spoke to X following being contacted by the mother.
Y
In late 2020, Y was diagnosed with depression and anxiety.
Y was often present when X and the mother argued during phone calls and supervised visits. She often left phone calls very shortly after they commenced or hid during visits. Following the incident in March 2022, the father’s evidence is that Y refused to spend time with the mother. The father’s evidence is that Y was having difficulty sleeping and expressed concerns about her mother and attending at her mother’s home.
On 7 April 2022, the father organised for Y to attend her general practitioner and Y was referred to a therapist for counselling and prescribed medication to assist her with sleep.
In August 2022, Y commenced therapy with Ms Z at AA Centre. The father says that Y was given assistance for anxiety.
The father’s evidence is that Y’s sleep became disrupted in January 2023 when she had to recommence spending time with the mother.
On 11 January 2023, the father attended Y’s therapy session and his evidence is that Y asked him to tell the therapist that Y was not ready to see her mother.
On 21 April 2023, Y commenced psychology at BB Clinic. In April 2023, Y received assistance in relation to what was described as “ongoing stress related to situation with mum and having supervised visits with her”.[10]
[10] Exhibit M9.
In May 2023, Y received assistance for fight/flight/freeze responses which were creating anxiety and panic symptoms.
In January 2024, Y’s psychologist advised the father that she had spoken with the mother. This was the first time that a person working with Y in relation to her mental health had contacted the mother.
In March 2024, notes from BB Clinic record that Y was having difficulty sleeping and that she had an irregular appetite. The identified stressors were school, staying in routine and phone calls with the mother.
In April 2024, Y’s general practitioner considered a referral of Y for psychiatric care and a break in the requirement that she participate in phone calls with the mother in response to a deterioration in Y’s mental health. It was noted that Y had voiced that she didn’t want to see or speak to the mother in the future.
Y has been referred by the general practitioner for continuing treatment at BB Clinic where she continues to attend and receive assistance.
Discussion
The mother conceded when interviewed by the Court Child Expert that X had asked her about her mental health issues. The mother conceded that she told X that she had anxiety for a number of years and that it developed after X’s birth. The mother said that this has led to X believing that the mother blamed X for her mental health and that that was not the mother’s intention.
X discussed her mental health with the Court Child Expert as recorded at paragraph 50 of the Family Report:
[X] spoke about her mental health “not being good” during Years 7 and 8 and the negative impact this had on her social life. She sensitively and confidently spoke about her mental health struggles with suicidal ideation since, she believes, she was about nine years of age. She linked these struggles to her perception that her mother favoured [Y] over her, and spoke about experiencing her mother as having a tendency to blame her [X] for issues in her mother’s personal and work life. [X]’s expression was one of sadness as she recalled her mother, when [X] was younger: taking “my soft toys” as punishment; punishing her if she asked to sleep with the light on, with [X] adding that, “I was scared of the dark”, and closing [X]’s bedroom door and telling [X] that she was not to come out. [X] said that she felt she could not talk to her father about her concerns/fears as “I was scared they would get divorced [and that] I would be blamed”. [X]’s experience of her intact family unit was of the group being a reflection of her mother’s emotional state, “If Mum was upset everyone else would be upset”. It also seems that [X] experienced her mother as an emotional absent parent and as seeking comfort from her [X] if she [her mother] was sad.
As recorded by the Court Child Expert at paragraphs 56 and 57 of the Family Report:
[56] [Y]’s family drawing depicted herself, [X] and their father, drawing a circle around these figures she commented that they live “in one house”, before placing her paternal grandparents outside the circle. She then placed dotted lines down the page and draw [sic] another circle adjacent to the dotted lines saying, “Then there’s [Ms Cohen] in another house”. It was noted that, thereafter, [Y] seemingly very consciously when referring to her mother, ensured that her mother was referred to as “[Ms Cohen]”. [Y] identified herself and [X] as the sad people in her drawing and linked this to the stress she and, she also believes [X], experiences in relation to supervised visits with their mother. [Y] described her sense of being “overwhelmed” by the visits with her mother. [Y] expressed anger about seeing her mother “after what she has done”, perceiving that her mother has “stolen our stuff … run away from us … [And] broken our trust”. She considers that, in other separated families, children live with one parent and spent time with the other, but [Y] commented that she experiences her mother as “bribing” her to spend time with her. It seems that this relates to her mother bringing gifts or even food to contact visits.
[57] Further assessment of [Y] indicates that she remains confused and anxious about being required to spend time with her mother at [O Contact Centre]. She spoke about “bottling up my emotions” about being required to spent [sic] time with her mother, but said that attending counselling is helping her to overcome this tendency.
The mother is critical of the father’s engagement with health services for the children. The mother’s concern is that the father has not encouraged service providers to speak to the mother. The mother is concerned that the history provided by the father in relation to the mother’s mental health was negatively portrayed.
The mother says that the services that have engaged with X and Y to aid them have spoken with the father and have not sought to speak to the mother. This has resulted in the father’s narrative in relation to the mother being largely unchallenged and the children’s negative views of the mother being accepted as being based on the mother causing trauma to the children or the mother having mental health issues which impact her capacity to nurture the children.
During cross-examination, the following was put to the Court Child Expert by counsel for the mother:
And in fact, the father continued to, in essence, believe what the children were saying and seek mental health treatment on the basis of that belief, in terms of their alleged distress when with their mother?---Well, I suppose what you’re putting to me is it’s almost like systems abuse. Or it could be systems abuse. Nobody is checking. Nobody is following up. Nobody is seeking any further independent information, and unfortunately we know that in the community, people – they’re running small businesses; they’re not going to - - -
And [Ms D] - - -?--- - - - chase that up.
- - - it would be concerning, would it not, if [Y]’s presentation with her mother – and unfortunately, we’ve been here four years, so we’ve got some longitudinal data, but if [Y]’s presentation with her mother initially was quite willing to engage, quite engaged during these professionally supervised visits, and appropriate – and the mother being appropriate – again, I’m talking about [Y] now. It’s concerning, is it not, that that seems to have deteriorated while she has been living exclusively in the father’s care? ---Yes.
X’s deterioration in her mental health occurred prior to separation and her threats and actual self-harm were a significant concern to both parents and treaters throughout 2021 to date.
In the face of the issues that were facing X, it is understandable that the father’s responses were not as attuned to presenting a neutral or empathic history of his relationship with the mother. His amplification of the mother’s mental health issues is unfortunate but understandable when considering the deterioration and challenges that the children’s mental health presentations posed.
To his credit, the father obtained assistance for the children. He ensured that he followed referrals and that the children attended for assistance. That, in my view, was critical to the children, and although the mother criticises both the father and the services for not involving her, I am satisfied that he was acting in what he believed was in the children’s best interests.
I find that the children have been adversely affected by the mother’s previous mental health difficulties and their own experiences of deteriorating mental health.
I accept the view of the Court Child Expert that Y’s capacity to engage with the mother and be subject to coercive orders to spend time with the mother is severely compromised by her experiences. These lived experiences, when viewed from Y’s perspective, have resulted in Y remaining confused and anxious at spending time with the mother. While the mother blames the father for distorting the children’s views of her, I find that the children’s views are informed by their lived experiences.
In this matter, there have been numerous orders and arrangements which have focused on providing time between the mother and children. These attempts to repair the rupture in the children’s relationship with the mother have been unsuccessful.
MOTHER REMOVING THE CHILDREN’S BELONGINGS
On 17 June 2020, the father alleges that the mother attended at the former matrimonial home and took items that belonged to the children. This included the children’s passports, school bags, laptop and iPad and some of the children’s soft toys.
The father saw via a security camera that the mother was in the home. He called his parents and his father attended the home. The paternal grandfather called the Police.
It is not contested that when the father arrived and entered the home with the children, the children saw the result of the mother having been in the home, including seeing a photo of the father ripped and in pieces.
The return of the children’s belongings required repeated correspondence.
The father did not consider the need to protect the children and did not shield them from the aftermath of the mother’s attendance at the home. He was subjected to considerable criticism for this from the mother’s representative. However, it is equally true that the mother in her conduct had exposed the children to the dispute. She acknowledged that the removal of the children’s belongings was a mistake.
This incident is an example of how each parent has at times been unable to mitigate the impact on the children of, and shield them from, the parental discord.
MARCH 2022 INCIDENT
The children spent time with the mother in March 2022. The father says that during their visit, the children rang him and told him they were in the bathroom and had locked the door.
The father reports that the children told him that there was an argument over dinner and that X said to him:
I was worried about the age of the food so I checked the use by date and accidentally knocked the ice tray off the counter spilling ice on the floor. [Ms Cohen] then exploded at me and started yelling. She said that I was mean and nasty and that I wanted to make her homeless by deliberately breaking everything. [Y] and I were scared by the shouting so we ran upstairs and [Ms Cohen] chased us. She tried to grab at me when we ran up the stairs and we barely got the bathroom door closed.
The mother’s evidence is that she had texted the father prior to the children spending time to ask him what the children’s favourite foods were. Her evidence is that the father did not respond to her question.
The mother’s evidence is that the incident occurred within 20 minutes of the children arriving and that she believed that X was having a tantrum because she did not like the dinner the mother had prepared. The mother said that on this occasion, she had said to X that she would not be buying fast food for dinner. The mother says that this was the first time since the children started coming to her home that she said no to them. The mother’s evidence is that she asked X to write down what food she would like in future and X wrote down “not chicken nuggets.” The mother’s evidence is that X grabbed Y and said that they were going. The children placed themselves in the bathroom and would not come out.

The father’s evidence is that he called his parents but continued to hear a lot of yelling and banging on the call connected to the children. The father says that his concern for the children’s wellbeing led to him asking his parents to call the Police.
The father’s evidence is that the children told him the mother said, “even if I die tomorrow, I will love you” which he interpreted as a threat by the mother to take her own life. The father’s evidence is that he told the children to remain in the bathroom until the Police came.
The mother’s evidence is that she denies saying anything to cause fear in either Y or X.
The father says that when the children tell him things, he believes them. It is clear that in this case, not only did the father believe the children, but he accepted that their distress was legitimate and was a reaction to some wrongdoing by the mother.
I accept that the father, in his reaction to what the children were saying to him, made clear to the children that he believed the mother was capable of harming them. I accept that in telling the children to stay in the bathroom, he was accepting the children’s version of events and was unable during that incident to do anything to contain the children’s distress.
The mother denies that she lost control and that the children were at any risk in her care. The mother’s counsel criticised the father for the steps he had taken that evening in ringing his parents and then the Police, rather than speaking to the mother.
At the time the children were interviewed by the Court Child Expert, they both spoke to her about the incident and both described the incident as being traumatic. The Court Child Expert was asked whether it was a concern if the children’s fear was exacerbated by the father’s narrative of fear in relation to the mother, and the Court Child Expert agreed that this would be a concern.
This incident led to the final rupture in the relationship between X and the mother. While supervised time was again implemented after this incident, both children have displayed significant reluctance in attending to spend time with the mother.
CHILDREN’S TIME WITH THE MOTHER
As outlined in the background above, there has been a series of Orders in relation to the children’s time with the mother. None of those arrangements have resolved the ruptures in the children’s relationships with the mother.
The mother argues that the children’s views of her are not fixed and that they have at times extended their time with the mother at supervised contact visits. That is an optimistic view and is not borne out in light of the evidence of what has occurred.
The mother referred to a visit where X spent, at her own election, 45 minutes with the mother rather than the 20 minutes X had stipulated as being the time she would spend. The Contact Reports indicate that at times, both children have attended to spend time with the mother and have been observed to be content in her company, to share jokes and interact well with the mother.
Unfortunately, those glimpses of positive interactions between the children and the mother are overwhelmed by visits where Y in particular will not enter the contact service and will not participate in spending time with her mother.
The Court Child Expert opined that the situation between the mother and the children was complex and that the children may feel rejected by their lack of relationship with the mother and may question why their mother “left them.”
I accept that the children have complex feelings about their mother. She was their primary carer until separation and I accept that they experience both anger and sadness at the state of their relationship with the mother.
THE FAMILY REPORT
The Court Child Expert provided a Family Report dated 17 August 2023 in this matter and was cross-examined. Prior to cross-examination, she had read the trial affidavit of each of the parties.
I found the Court Child Expert’s oral evidence to be clear, thoughtful and reasoned. She was an impressive expert witness.
The Court Child Expert observed that each parent’s narrative had a “pedantic” quality as each parent specified exact dates when recounting events, but each blamed the other for all disputes and conflict.
X described to the Court Child Expert her struggles with her mental health in years 7 and 8 and described her history of suicidal ideation since she was nine years of age. X said her memory of the mother included that the mother favoured Y and blamed X for the mother’s mental health, personal and professional struggles.
During her interview, Y referred to the mother as “Ms Cohen” and was angry about having to spend time with her mother in a supervised setting. Y was negative about the mother and attributed negative reasons for the mother’s behaviour, including bringing gifts to supervised time. Y was assessed as being anxious and confused about having to spend time with her mother.
Both children spoke about the incident in March 2022 and of being “scared” when they observed the mother becoming angry and displaying what they believed to be suicidal ideation, and both described locking themselves in the bathroom and calling the father.[11]
[11] Family Report at [61].
In respect of the children, the Court Child Expert said at paragraph 73 of the Family Report:
Given [X]’s level of maturity and developmental stage it is suggested that her views in relation to spending time and/or having any contact with her mother be respected and thus significant weight ought to be given to views and wish [sic] that there be no orders for her to spend time with her mother. [Y]’s wish to spent [sic] time with her mother on few occasions is not unusual in the context of supervision, but also is likely to reflect [Y]’s emotional bond with her mother being less than might be expected in the context of [Y] seemingly have experienced her mother, on occasions, as an absent parent. [Y]’s wish to have less supervised time with her mother ought to be given some weight in the context of her experiencing such time as emotionally difficult. It is noted that, in the context of this report, [Y] displayed significant emotional distress even after the observation task and the limited nature of the intervention (likely 20 to 40 minutes) was explained to her. The difficulty for the parents will be who the supervisor might be after [O Contact Centre]’s supervision concludes at the end of 2023. It might be that the parents will need to consider employing a private supervisor for future contact between [Y] and her mother.
In the Family Report, the Court Child Expert recommended that there be no orders for X to spend time with the mother. She recommended that Y spend time with the mother on up to six occasions each year (including special occasions and birthdays) with such time to be supervised at least for the foreseeable future. The Court Child Expert also recommended that the mother be able to forward cards, letters and gifts to the children and that the father ensure the children receive these.
In relation to Y’s time with the mother, the Court Child Expert was referred to Y’s attendance on therapeutic services. The Court Child Expert opined that the length of time that Y had been in therapy was concerning because “interventions can prevent a child actually moving on and letting go of these memories which are troubling for her”.[12]
[12] Transcript of proceedings dated 15 May 2024, page 49.
In respect of Y’s reactions to being required to spend time with the mother, the Court Child Expert said:[13]
I think this is most likely to set-up more resistance. She’s being forced to do something that creates her to have a reaction – an adverse reaction – and that can mean that one is not able to – if one was to accept that she has been traumatised by what happened around separation on the last occasion they had unsupervised contact with their mum, she’s being forced to stay ..... she can’t just let it go. It’s likely that every time she speaks to her mum, those memories are triggered. And the way to heal trauma is to try and take the triggers away and to help the person find a way to manage them.
[13] Transcript of proceedings dated 15 May 2024, page 50.
The Court Child Expert said that Y is about to transition to high school and that she needs to focus on that transition. She noted in her oral evidence that irrespective of the stability in the mother’s mental health, the children need some relief from being required to consider their interactions with the mother whether they be in person, writing or via a private electronic forum. The Court Child Expert opined in her oral evidence that Y would benefit from not being preoccupied by receiving phone calls or spending time with the mother.
The Court Child Expert said that given the interviews were completed 12 months prior to the final hearing, she observed Y was continuing to experience anxiety in those circumstances and therefore recommended in her oral evidence that there be no order for time between Y and her mother.
The Court Child Expert placed significant weight on the impact of orders for Y to spend time with the mother. The Court Child Expert considered whether time with the mother could be supported by ongoing therapy, but was pessimistic of the potential success of counselling given the shortcomings in both parents’ parenting capacity:[14]
…I’m just not quite sure about either parent’s parenting capacity to deal with children’s emotional needs, because the last thing that I would want is that there are orders to say that she’s to have X period of time with her mother, and the only way that is going to be facilitated is for this little girl to have the ongoing counselling, which she will start to resist. Children usually resist it.
[14] Transcript of proceedings dated 15 May 2024, page 50.
I accept this evidence of the Court Child Expert.
The Court Child Expert said that it was important that the father was positive and able to encourage the children to accept any gift or letter forwarded by the mother. As I have concluded earlier, that is unlikely given the father’s views in relation to the mother.
The mother’s case is that the father has alienated the children from her and has therefore failed to promote the relationship between her and the children. The mother asserts that the father has failed to accept the improvements to her mental health and has instead increased the fear that the children have of the mother by promoting her as mentally unwell and a risk to the children.
The Court Child Expert agreed that it may well be that the father’s evidence, at its highest, has not resulted in a proportionate response by the children. The Court Child Expert also said that there may have been stressors on the family or vulnerabilities in the family that led to the children’s reactions to the mother leaving the matrimonial home.
The Court Child Expert agreed that it was probable that the father had not effectively contained the children’s distress at the mother leaving the former matrimonial home. The Court Child Expert’s oral evidence was that she had assessed that the father did not have the skills, insight or knowledge in terms of the resources available in the community to support the children during separation. The Court Child Expert agreed that involving the children in parental disputes was detrimental to the children.
The Court Child Expert agreed that the children were aligned with the father but did not agree, having considered the children’s counselling notes, that the children were protecting the father.
The Court Child Expert appropriately conceded that the children having undertaken therapy with only the father being involved in the information exchange with the therapist was problematic. An example of the impact of an approach to therapy which only includes one parent’s narrative is found in X’s counselling notes where X says, “What if I hadn’t made such a fuss about nuggets?” and this was met by the counsellor redirecting X back to the narrative of the mother being responsible for the Police being called and implicitly, the mother being a danger to the children.
That incident, which I have discussed above, has had a significant negative impact on the rupture in the relationship between the children and the mother. The father’s inability to contain the children’s distress and the reinforcement of the children’s fear through their therapeutic engagement is problematic.
The Court Child Expert’s oral evidence on the impact on children of no time with their parents was as follows:[15]
…You feel rejected, particularly coming – as she moves into adolescence that, “There’s something wrong with me; my mother doesn’t love me. If she loved me she would fight for me. She just walked away from us.” And I think that actually, in my report, [X] – no, [Y] said something about – that, “Mum walked away from us. She left us. She stole our toys.” …. One of them made this comment about Mum having “left us”. It was [X].
…
their sense that Mum had gone away from them. So that’s going to have an impact on a child, particularly a child who, if I accept that she might have generalised anxiety, is anxious. Now, is this anxiety infecting people. And so, “Mum has gone away because she can’t deal with my anxiety.” It’s going to affect her academic, her social relationships and behaviour. The longer term is it – it’s extremely problematic, because we know that many children go seeking a parent in adulthood and confront them about these things, and sometimes there are positive outcomes, and sometimes there are not. But it certainly has a long-term consequence for children when – even if a parent has been incredibly violent, anybody who has worked in juvenile justice knows that – or in fostering – knows those children crave their parents. They don’t say, “I never want to see that parent again”. But if these children – if what the mother’s barrister is putting to me is that the father has kept this very negative narrative alive in the family and with a whole range of therapists – and I – I also don’t understand why you would be constantly changing therapists. That’s difficult for a child.
[15] Transcript of proceedings dated 15 May 2024, pages 71 – 72.
The Court Child Expert reinforced that the long-term impact on the children of losing a parent involves significant risks to their physical and psychological safety, including potentially engaging in self-harm, drug use, alcohol abuse and inappropriate relationships.
Further, the Court Child Expert raised that if orders are made for Y to spend time with the mother and not for X, this could reinforce in X’s mind her view that Y remains the preferred child and as a result, could negatively impact the sibling relationship.
The Court Child Expert was clear in her oral evidence that there is no good outcome for either child unless both parents, and particularly the father, can accept that the mother has stable mental health and that she does not pose a risk to the children.
It is clear that this case involves complex issues for the children and in circumstances where the children’s tolerance for engaging in therapeutic intervention has been exhausted, the Court Child Expert remained of the view in oral evidence that the most appropriate way forward is for there to be no coercive order for Y to spend time with the mother.
THE LAW
Parenting proceedings are governed by Part VII of the Act. In making a parenting order, s 60CA requires that I am to regard the best interests of the children as the paramount consideration. In determining what is in the children’s best interests, s 60CC(2) sets out the matters that are required to be considered. No one matter takes priority over the other. The matters to be considered are:
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
In considering the matters in s 60CC(2)(a), I must, pursuant to s 60CC(2A), consider any history of family violence, abuse or neglect involving the child or a person caring for the children together with any family violence order that applies in relation to the child/ren or a member of the children’s family.
Section 60CG of the Act requires me, when making a parenting order, to ensure the order does not expose a person to an unacceptable risk of family violence and is consistent with any existing family violence order.
Pursuant to s 60CC(2)(a), the Court must have regard to the arrangements which would promote the safety of the children and the person who has the care of the children. The word safety should, in my view, be given its ordinary meaning; that is, the orders should provide a degree of protection from the matters identified in the subsection to the extent necessary, relative to the evidence and risk of harm.
SECTION 60CC(2) CONSIDERATIONS
Y’s safety
I find that the mother’s mental health has improved and that she has proactively managed her mental health. I accept the evidence of the mother and her treater and find that the mother does not pose a risk to Y as a consequence of her mental health.
I find that Y’s safety is at risk as a consequence of her poor relationship with the mother. I find, on the basis of the father’s oral evidence, that he has limited capacity to assist Y in overcoming her negative perceptions of the mother and her apprehension around spending time with her.
I accept the evidence of the Court Child Expert that Y’s capacity to participate in ongoing therapeutic intervention is exhausted. I accept that to make Y the subject of coercive orders to spend time with the mother will not bring about any repair of the rupture in their relationship. I find that coercive orders for Y to spend time with the mother will have a negative impact on Y’s psychological safety.
Y’s views
Y’s views were assessed by the Court Child Expert and I accept that Y finds seeing her mother overwhelming. It was Y’s view that she did not wish for there to be orders in relation to her spending time with the mother.
There has been a long period since separation. Y has experienced several changes in the time she spends with the mother. She has also been subject to lengthy separations.
Y is 11 years of age. I place significant weight on her wishes and on her expression of resistance to spending time with the mother. I accept the Court Child Expert’s evidence that for Y, being required to participate in time with the mother either face to face or by way of telephone is traumatic.
I find that Y has suffered a series of losses of her mother and given her mother was the primary carer of the children until separation, I accept that this has been traumatic for Y.
Y’s needs
For Y, the length of time the proceedings have been on foot has not assisted her in resolving her negative views of the mother. That is unfortunate because I accept that the mother has a lot to offer Y by way of support, love and care. Despite this, Y’s resistance to the mother has become a catalyst to maintain the trauma of her experience of separation.
I accept the evidence of the Court Child Expert that in order to resolve the trauma, Y needs ongoing assistance from a skilled personal therapist and for there to be no orders compelling her to spend time with the mother. Any therapy Y undertakes should now focus on Y and primarily her needs, and not on addressing the rupture in her relationship with the mother.

I accept the evidence of the Court Child Expert that to subject Y to coercive orders is going to lead to resistance and will traumatise Y.
I accept the following oral submission of the ICL:[16]
… Now, we heard [Ms D]’s view that those needs of [Y] now are not for more treatment. They’re not for family therapy. They’re for a break.
[16] Transcript of proceedings dated 15 May 2024, page 101.
That need for a break includes a break from these proceedings, the parental conflict and the expectation that she will attend to spend time with the mother.
The capacity of the parents to meet Y’s needs
I find that while each parent can meet Y’s day-to-day needs and the father has appropriately obtained assistance for Y for her mental health, neither parent has been able to shield Y from the parental separation or broader parental dispute.
Y has adopted a fixed view of the mother which is negative. The father has not been able to assist Y to form a positive view of the mother. The mother, by way of her limited time with Y, has not been able to effect a change in Y’s presentation.
Y has the support of her sister and I accept that Y has a good relationship with the father.
Benefits to Y of a relationship with the parents
The orders I will make will not provide for Y to spend time with the mother. Y will not have the benefit of a relationship with the mother. I accept that this is a loss for Y. I accept the evidence of the Court Child Expert that the loss of the relationship with the mother may lead to Y feeling rejected and having a loss of a sense of identity.
I have considered this loss, however I have prioritised providing Y with a break from the parental dispute and relieving her from the pressure of having to comply with orders. Forcing Y to comply with orders creates in her a traumatic response and a further rejection of the mother.
I accept the evidence of the Court Child Expert that it is in Y’s best interests to have a pathway left open for her to contact her mother. The ICL’s proposal does that by providing for some communication between Y and her mother by way of letters, cards and gifts and by providing that Y may spend time and communicate with the mother in accordance with her wishes. I find that these orders provide a way for Y to communicate with the mother in the future. It is a way of maintaining some connection between Y and the mother without burdening Y with having to be subjected to coercive orders.
DISCUSSION – TIME
The ICL proposes that there be no orders for time between Y and the mother, except in accordance with Y’s wishes. I accept the following submission of the ICL:[17]
But what we have is two children caught in a pretty dreadful dynamic, but the dynamic needs to be pulled and the pull, at this stage, we submit, is just stop everything. No orders for a time.
[17] Transcript of proceedings dated 15 May 2024, page 101.
The orders proposed by the ICL promote a pathway of communication between Y and her mother.
The mother’s orders would result in a series of increasing periods of time between Y and the mother. Those periods are to be unsupervised.
It is the mother’s case that there is no risk to Y arising from the mother’s mental health. The mother was vulnerable at the date of separation and took appropriate steps in firstly seeking medical assistance and raising her complaint in relation to the father’s conduct with Police. The mother argues that the issues which were present at separation have resolved and that she has undertaken and assertively participated in long-term therapy which has been successful.
The mother argues that the consequences of these steps have been that the father and his family have not shielded the children from the adult dispute and adult issues. Rather, the father has shared his fears in relation to the mother’s mental health with the children and has over time not moved on from this position. The result is that the father has nurtured and encouraged the children’s fears, which has led to the rupture in the relationship between the children and the mother.
The mother’s case is that the children are similarly at no risk arising from the mother’s conduct. The mother is supported in this assertion by the Supervised Contact Reports which show that the mother is responsive and patient with the children and follows directions from the supervisors.
The mother argues that the significant risk to the children is that the father will not support the children’s relationship with the mother. As a result of the father’s position, the children have sustained a prolonged rupture in their relationship with the person who was until the date of separation their primary carer.
In this matter the orders sought by the mother are based on the premise that at the conclusion of these proceedings, coercive orders can provide a repair to the rupture in the relationship between the mother and Y.
The issue before the Court is the impact on Y of being subjected to orders as the mother seeks. These orders would result in the immediate commencement of unsupervised time and move to longer periods of time between Y and her mother.
As identified, orders like those proposed by the mother would be against both the wishes, emotional needs and psychological safety of Y. I find that these are significant factors in this matter.
I make this finding in light of the period of time that has elapsed, the attempts made for Y to spend time with the mother and the failures of those attempts. I accept the evidence of the Court Child Expert of the negative impact on Y of coercive orders to spend time with her mother.
Y has significant resistance to spending time with the mother. Y’s own mental health is vulnerable. Y identifies that it is the requirement to spend time and speak with her mother that is the cause of her stress. It is clear that this is a position that is supported by the father and X.
The mother’s position is that Y’s resistance can be safely navigated by the reintroduction of regular unsupervised time with the mother. I prefer the evidence of the Court Child Expert in relation to the effectiveness of this approach and find that this is not an approach which would be in Y’s best interests. I accept the evidence of the Court Child Expert that this would negatively impact Y, and I find that Y’s existing personal vulnerabilities would place her at high risk of psychological and emotional harm.
I find this would significantly affect the sibling relationship and family dynamic when obligations are placed on the parties to facilitate time between the mother and Y and not X. I cannot find that Y would benefit from coercive orders for time with the mother.
The Court Child Expert and the ICL’s proposed orders suggested that a break in orders for time could lead to a mediation in two years’ time in the event Y had not reconnected with the mother. I am not prepared to mandate that this occur as I find it will leave the prospect of the proceedings continuing. That is not in Y’s interests.
In this matter, I find that it is important that the orders are conveyed to the children by the ICL. The ICL has been representing the children for three and a half years and has met them several times. I consider it appropriate and in Y’s and X’s best interests for the ICL to meet with them and explain the orders I make to them.
DECISION-MAKING
The parties have a dysfunctional relationship. They have struggled since separation to make decisions together.
The children are likely to need some further therapeutic intervention as well as decisions being made in relation to schooling and extra-curricular activities.
I am satisfied that the father has demonstrated a child-focused approach to making decisions. The children will live with the father and as a consequence, I find that it is appropriate that in the event of an absence of agreement between the parents, the father be entitled to hold sole decision-making responsibility for major long-term issues for the children.
THERAPEUTIC ASSISTANCE FOR THE PARENTS
I do not propose to make orders for family therapy or therapeutic assistance for the parents. I am of the opinion that orders of this nature are aspirational and are unlikely to result in any change in attitude of the parents.
Given the orders made in relation to parenting overall, I find that it is inappropriate to make such orders.
COSTS
The ICL seeks a costs order that each party meet the costs of the ICL. I am satisfied that it is appropriate to make such an order. The ICL has had the conduct of this matter for a significant period.
Section 117(1) of the Act requires that each party meet their own costs. Section 117(3) of the Act permits an order to be made in favour of the ICL. Section 117(4) requires that:
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
In this matter, neither party is in receipt of a grant of legal aid.
I have regard to the Costs Notices of the parties and I find that neither party will suffer financial hardship if they are required to contribute to the costs of the ICL.
The costs of the ICL are $22,100.64 and will be apportioned to each party equally, noting the father has already paid an upfront contribution. Each party will have the option of seeking a waiver of fees or an extension of time to pay with Legal Aid NSW.
CONCLUSION
This is a complex and difficult matter and I accept the result is not what the mother had hoped for. I am satisfied however that the orders I make are in the children’s best interests.
I make orders accordingly.

I certify that the preceding two hundred and seventy-six (276) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Lioumis.
Associate:
Dated: 10 December 2024

File number:	WOC 743 of 2020
Judgment of:	JUDGE LIOUMIS
Date of judgment:	10 December 2024
Catchwords:	FAMILY LAW – CHILDREN – Where the parties agree that the children shall live with the father and the eldest child (15 years of age) shall spend time with the mother in accordance with her wishes – Whether orders should be made for time and communication between the youngest child (11 years) and the mother – Whether the father should hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties – Where the children have spent no time with the mother since September 2023 – Where the children hold strong views that there be no orders to spend time with the mother – Impact of protracted litigation on the children – Parental conflict – Where both children have experienced mental health difficulties – No positive findings of family violence – Findings made that coercive orders for the youngest child to spend time with the mother would not be in her best interests – Orders made for each child to spend time with and communicate with the mother in accordance with their wishes – Orders made for the father to hold sole decision-making responsibility for major long-term issues relating to the children in the absence of agreement between the parties
Legislation:	Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 117
Cases cited:	Whisprun Pty Ltd v Dixon [2003] HCA 48
Division:	Division 2 Family Law
Number of paragraphs:	276
Date of hearing:	13, 14 & 15 May 2024
Place:	Wollongong
Counsel for the Applicant:	Mr Havenstein of Counsel
Solicitor for the Applicant:	Kells The Lawyers
Counsel for the Respondent:	Ms Cantrall of Counsel
Solicitor for the Respondent:	Rossi Simicic Lawyers
Counsel for the Independent Children's Lawyer:	Ms Druitt of Counsel
Solicitor for the Independent Children's Lawyer:	Johnson Vardanega Lawyers

WOC 743 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HARLEY Applicant
AND:	MS COHEN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE LIOUMIS
DATE OF ORDER:	10 DECEMBER 2024