Hoffman & Hoffman - [2023] FedCFamC2F 979

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hoffman & Hoffman [2023] FedCFamC2F 979

File number(s): MLC 2840 of 2021

Judgment of: JUDGE KEARNEY

Date of judgment: 9 August 2023

Catchwords: FAMILY LAW – parenting – where one parent unilaterally relocated interstate with two pre-school children two years ago – consistent road blocks from intense parental conflict - demonstrated inability to promote a meaningful relationship with the other parent in the interim – repeated unilateral acts of non-compliance with interim Orders – parenting capacity impaired in prioritising children’s emotional needs - change of residence – children to return to live with father – regularised time with mother if remains interstate – best interests of children

Legislation: Family Law Act 1975 (Cth)

Cases cited:
AMS v AIF [1999] HCA 26

Berys & Berys [2022] FedCFamC2F 1162

Bielen & Kozma [2022] FedCFamC1A 221

Blinko & Blinko [2015] FamCAFC 146

Eastley & Eastley [2022] FedCFamC1F 101

Fairfield & Hoffman [2021] FamCAFC 151; (2021) FLC 94-045

Godfrey & Sanders [2007] FamCA 102

Hepburn & Noble [2010] FamCAFC 111

Isles & Nelissen [2022] FedCFamC1A 97

Koen & Biondi [2023] FedCFamC1A 89

Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554

Mazorski & Albright [2007] FamCA 520

MRR v GRR (2010) 240 CLR 461

Napier & Hepburn [2006] FamCA 1316

Russell & Close [1993] FamCA 62

Sayer & Radcliffe (2012) 48 Fam LR 298

Starr & Duggan [2009] FamCAFC 115

Sweet & Sweet [2022] FedCFamC2F 676

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 2 Family Law

Number of paragraphs: 179

Date of hearing: 17-19 July 2023

Place: Heard in Forster; delivered in Newcastle

Counsel for the Applicant: Ms Van Oosterom

Solicitor for the Applicant: Pearce Webster Dugdales

Counsel for the Respondent: Ms Court

Solicitor for the Respondent: Greg Tyler & Associates

Solicitor for the Independent Children's Lawyer: Ms McGregor (Solicitor Advocate) McGregor Family Law
ORDERS

MLC 2840 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HOFFMAN

Applicant

AND:
MS HOFFMAN

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

9 AUGUST 2023

Order amended on 10 August 2023 pursuant to sub-rule 10.13(1)(e) of the Federal Circuit and Family Court of Australia (Family Law) Rules (2021)
THE COURT ORDERS THAT:
All previous parenting orders are discharged.
Parental Responsibility
The applicant, Mr Hoffman (‘the father’) shall have sole parental responsibility for X born in 2016 and Y born in 2018 (‘the children’) PROVIDED THAT:
(a)the father shall notify the respondent, Ms Hoffman (‘the mother’), in writing of any major long-term decisions for the children at least 14 days’ prior to the decision being made;
(b)the mother will be at liberty to give feedback to the father in writing about the proposed decision; provided such feedback is received at least seven (7) days before the decision is to be made; and
(c)the father will inform the mother in writing of the decision made as soon as practicable afterwards.

Lives with the father
The children shall live with the father.
To facilitate Order 3, upon the handing down of this judgment, and unless otherwise agreed in writing between the parties, the mother is restrained and an injunction shall issue until 5.00pm Friday 11 August 2023 prohibiting her from –
(a)attempting to contact or approach the children;
(b)attending or attempting to enter an educational or other facility or residence where the children may be present; and
(c)requesting any agent of hers’ (including the maternal grandmother Ms B) from doing any act that is contrary to the injunctions contained within this Order.

The mother is restrained and an injunction shall issue prohibiting her from relocating the children (or either of them) from the State of Victoria (‘Victoria’) without the written consent of the father.
Spends time / communication with the mother if she remains living in the State of New South Wales (‘NSW’)
Term time
Unless otherwise agreed in writing between the parties, the mother shall be at liberty to give the father at least one week’s written notice of her intention to spend time with the children during school terms as exercised by the children’s school/s (‘term time’) for two (2) consecutive nights on the last weekend of each calendar month, from Friday after-school (or 4.00pm if a non-school day) until Sunday at 5.00pm PROVIDED THAT such ‘term time’ shall occur in the Melbourne area and changeovers shall be effected by the parties (or their nominee) at the children’s school or another location in Melbourne as nominated by the mother in writing to the father.
Holiday time
Unless otherwise agreed in writing between the parties, the children shall spend time with the mother for seven (7) nights during the Victorian autumn, winter and spring school holidays as exercised by the children’s school/s (‘holiday time’) as follows:
(a)From 9.00am on the first Saturday to 12.00noon on the middle Saturday in odd‑numbered years, commencing with the 2023 spring school holidays; and
(b)From 9.00am on the middle Saturday to 12.00noon on the last Saturday in even‑numbered years, commencing in 2024.

Unless otherwise agreed in writing between the parties, the children shall spend time with the mother for a period of 21 consecutive nights during the Victorian summer school holidays as exercised by the children’s school/s (‘holiday time’) as follows:
(a)From 9.00am on the first Saturday after the conclusion of Term 4 commencing in 2023 and in each alternate year thereafter; and
(b)From 9.00am on 6 January 2025 and in each alternate year thereafter.

Unless otherwise agreed in writing by the parties, to facilitate Orders 7 and 8:
(a)no later than two (2) weeks prior to the commencement of time, the mother is to notify the father in writing of:
(i)any proposed flight itinerary
(ii)the costs of any return economy class flights for the children travelling from Melbourne to Suburb C and return (‘the children’s airfares’)
(iii)other proposed travel itinerary (including by road) and contact details of destination accommodation

(b)within one (1) week of notification pursuant to order 9(a)(ii), the father shall deposit to the mother’s bank account one half of the total cost of the children’s airfares;
(c)within 48 hours of deposit of funds to the mother’s bank account pursuant to Order 9(b), the mother shall provide the father with written confirmation of the payment and the itinerary for the children’s air travel.
(d)Within one (1) week of notification pursuant to order 9(a)(iii) the mother shall nominate (in writing to the father) a halfway point for changeover at the conclusion of time.

To facilitate Order 9 when Order 9(a)(ii) is invoked, changeover will be as follows:
(a)At the commencement of time the mother will collect the children from the father at the departures terminal at Melbourne airport;
(b)At the conclusion of time the father will collect the children from the mother at the departures terminal at Suburb C.

To facilitate Order 9 when Order 9(a)(iii) is invoked, changeover will be as follows:
(a)At the commencement of time, the mother or her nominee shall collect the children at the children’s school or such other location in Melbourne as agreed between the parties;
(b)At the conclusion of time, the father or his nominee will collect the children from the mother or her nominee at the halfway point as nominated in Order 9(d).

Miscellaneous
Whenever the children are to spend time with the mother in the Melbourne area, by seven (7) days before the children are to do so, the mother shall notify the father in writing of the location/s and address/es where the children will be staying.
Spends time / communication with the mother if she relocates to within a ten (10) kilometre radius of the children’s home
In the event that the mother relocates to within a ten (10) kilometre radius of the children’s home, THEN Orders 6 to 12 are suspended and Orders 14 to 19 shall have effect for so long as the mother is living within that specified geographical area.
Term time
Unless otherwise agreed in writing between the parties, the children shall spend time with the mother during school terms as exercised by the children’s school/s (‘term time’) for four (4) consecutive nights each alternate week from Thursday after-school (or 4.00pm if a non-school day) until Monday at the commencement of school (or 4.00pm if a non-school day).
To ascertain the resumption of term time spent by the children with the mother following any of the holiday periods, the sequence of alternating weekends shall be maintained (although not taken during school holidays) and used in calculating time in these orders.
Holiday time
Unless otherwise agreed in writing between the parties, the children shall spend time with the mother for seven (7) nights during the Victorian autumn, winter and spring school holidays as exercised by the children’s school/s (‘holiday time’) as follows:
(a)From 9.00am on the first Saturday to 12.00noon on the middle Saturday in odd‑numbered years, commencing with the 2023 spring school holidays; and
(b)From 9.00am on the middle Saturday to 12.00noon on the last Saturday in even‑numbered years, commencing in 2024.

Unless otherwise agreed in writing between the parties, the children shall spend time with the mother for a period of 21 nights during the Victorian summer school holidays as exercised by the children’s school/s as follows:
(a)From 9.00am on the first Saturday after the conclusion of Term 4 commencing in 2023 and in each alternate year thereafter; and
(b)From 9.00am on 6 January 2025 and in each alternate year thereafter.

Miscellaneous
Whenever the children are to spend holiday time with either party interstate, by seven (7) days before taking the children interstate, that party shall notify the other party in writing of the location/s and address/es where the children will be staying.
Changeovers
To facilitate the children’s time with the mother in accordance with Orders 14, 16 and 17, AND unless otherwise agreed in writing between the parties; changeovers shall occur at the children’s school or at another agreed location in Melbourne with:
(a)The mother or her nominee to collect the children at the commencement of the time; and
(b)The father or his nominee to collect the children at the conclusion of the time.

Communication between the children and the parties
Subject to Order 4 and whenever the children are not in either party’s care, the children shall communicate with the party they are not in the care of by telephone or FaceTime each Monday and Wednesday between 5.00pm and 5.30pm unless otherwise agreed upon in writing by the parties and in this regard –
(a)the party with whom the children are not in the care of shall initiate the call;
(b)the other party shall ensure the children are available to receive the call;
(c)the children shall communicate with the party with whom they are not in the care of without distraction and in their home environment (which incorporates an internal living space within any holiday accommodation where the children may be staying).

Notwithstanding Order 20, each party shall also facilitate any reasonable request by the children (or either of them) to communicate with the other party by telephone or FaceTime and during such calls (as much as practicable given that such requests may be at short notice) that party shall ensure that the children are available to communicate without distraction and in their home environment (which incorporates an internal living space within any holiday accommodation where the children may be staying).
Special occasions
Unless otherwise agreed in writing between the parties and notwithstanding any other order, the children shall spend time with the mother and the father (as may be specified) on the following special occasions:-
(a)Mother’s Day – with the mother from 10.00am to 5.00pm on Mother’s Day (if the children are not already spending time with her);
(b)Father’s Day – with the father from 10.00am to 5.00pm on Father’s Day (if the children are not already living with him);
(c)Christmas period –
(i)in odd-numbered years commencing in 2023, with the father from 12.00noon Christmas Eve until 2.00pm Christmas Day and with the mother from 2.00pm Christmas Day to 2.00pm Boxing Day; and
(ii)in even-numbered years commencing in 2024, with the mother from 12.00noon Christmas Eve until 2.00pm Christmas Day and with the father from 2.00pm Christmas Day to 2:00pm Boxing Day;

(d)Children’s birthdays –with the party they are not in the care of on those days for a period of three (3) hours from after-school to 7.00pm (if the birthday falls on a school day) and if not, THEN from 10.00am to 1.00pm.

Other Orders about the children
Education and Health
Unless otherwise agreed in writing between the parties, Y shall attend Suburb D Day Care and Kindergarten until such time as she commences school when she shall attend D School.
Unless otherwise agreed in writing between the parties, X shall attend D School.
As soon as practicable, the father shall engage the children with a social worker or psychologist who has experience in dealing with children in ‘out of home care situations’ (‘the children’s counsellor’), WITH such engagement to endure for as long as deemed necessary by the children’s counsellor (in consultation with the father) to support the children’s transition to his care in Victoria.
To assist the children’s counsellor in understanding the children’s situation, the father is permitted to provide to that person a copy of the family report dated 21 December 2022 and a copy of these Orders.
To facilitate Order 25, by 4.00pm 22 August 2023, the father shall have –
(a)at least made an appointment with a general physician (if required) for the purposes of obtaining a referral to the children’s counsellor; or preferably
(b)made an appointment on the next available date for the children to attend an intake session with the children’s counsellor.

The parties are restrained and an injunction shall issue prohibiting either or both of them from enrolling either child at an alternative kindergarten or school without the prior written consent of the other party.
The parties are permitted to attend any school or extra-curricular activity for the children (or either of them) that a parent would normally be invited to attend.
Notwithstanding the allocation of sole parental responsibility to the father, these Orders shall provide an authority for either party to request information regarding the children (or either of them) from any educational facility that either child may attend and for that educational facility to provide such information to the requesting party that a parent would normally be at liberty to receive including but not limited to school reports, notifications, attendance sheets, assessments, school photographs and access to any school Apps, social media or other digital platforms.
Notwithstanding the allocation of sole parental responsibility to the father, these Orders shall provide an authority for either party to request relevant information regarding the children (or either of them) from any treating health professional that the children (or either of them) may attend upon and for the treating health professional to provide such information that would usually be provided to a parent.
Notwithstanding the allocation of sole parental responsibility to the father, BUT at the sole discretion of the treating health professional - the parties are at liberty to attend any specialist appointments required for either child.
Notwithstanding the allocation of sole parental responsibility to the father, the parties are restrained and an injunction shall issue prohibiting them from engaging with any specialist health professional for either child without the knowledge and consent of the other party.
Notwithstanding the allocation of sole parental responsibility to the father, the parties shall comply with any treatment or medication regime recommended for either child by the treating health professional for the child.
The parties shall as soon as possible notify each other by SMS text message upon any of the children:
(a)becoming seriously ill; or
(b)being involved in an accident or in an emergency that requires hospitalisations (including presentations at an accident and/or emergency department); or
(c)suffering a serious injury requiring urgent medical attention.

To facilitate Orders 23 to 35, the parties are permitted to provide a copy of these Orders to any educational facility or treating health professional that the children (or either of them) may attend upon.
Other Orders about the parties
Communication between the parties
The parties shall communicate with each other regarding relevant issues for the children and/or to notify each other in writing via SMS text message or email.
To facilitate Order 37, each party shall forthwith provide to each other their current mobile phone number and email address and advise of any change in these details within 24 hours of any change occurring.
Injunctions
The parties are prohibited and an injunction shall issue restraining them from denigrating each other or a member of that parent’s family in the presence or hearing of the child/ren and shall immediately remove the child/ren from the presence of any other person doing so.
The parties are prohibited and an injunction shall issue restraining them from exposing the children to family violence as prescribed in s 4AB of the Family Law Act 1975 (Cth) (‘the Act’).
The mother is prohibited and an injunction shall issue restraining her from seeking assistance for the child/ren from Ms E, counsellor.
Overseas Travel
Notwithstanding the allocation of sole parental responsibility to the father, pursuant to s 11 (b) (i) of the Australian Passports Act 2005 (Cth) a party (‘the travelling parent’) is permitted to apply for a passport or renewal of a passport for either child without the consent of the other party (‘the other parent’) if -
(a)The travelling parent has provided the other parent with a copy of the passport application (‘the application’) not less than three (3) calendar months prior to the date of travel, and,
(b)Within 14 days of receiving the application, the other parent has declined to sign the application without a reasonable excuse or has failed to respond to the request to sign the application.

The travelling parent shall be responsible for the cost of any passport application.
Pursuant to s 65Y of the Act, both parents are permitted to travel overseas with the children (or either of them) for the purpose of an overseas holiday with the travelling parent responsible for all costs associated with such travel.
To facilitate Order 44, and by three (3) weeks prior to the date of intended travel, the travelling parent shall provide to the other parent:
(a)a copy of the travel tickets including the return date;
(b)a copy of the itinerary including the address where the children will be staying during the trip; and
(c)contact details including a contact telephone number for the children while they are overseas.

Miscellaneous
An authorised officer of the Court is to immediately provide an electronic copy of these Orders to F School and to Senior Court Child Expert Ms G.
By 1.00pm 16 August 2023, the Independent Children’s Lawyer (‘the ICL’) is to meet with the children (either face-to-face or audio-visually) to explain the effect of these Orders to them AND to give effect to this Order, IF the ICL requires the father to travel with the children to a location between Town F and Town H then he shall comply with any reasonable request to do so.

Upon compliance with Order 47, the ICL is discharged.
Pursuant to s 117(4)(b) of the Act, the oral application for costs made by the ICL against the father is dismissed.
All outstanding applications are dismissed.
Pursuant to ss 65DA(2) and 62B of the Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.
THE COURT NOTES THAT:
A.At the time of making these Orders, the Court understood that the children were spending time with the father for the week commencing Monday 7 August 2023.
B.Should any authorised officer from either child’s current educational provider require assistance in supporting the children (or either of them) with the transition of their care to the father and/or managing any unexpected contact or communication with either party about the effect of these Orders, THEN they are at liberty to contact Senior Court Child Expert Ms G via email … or telephone ….
C.Where the parties are to return the children by a specific time, it shall be accepted by the parties that having the children on a flight at that time will be sufficient.
D.Order 25 is not to be construed as in any way inhibiting the children’s counsellor’s discretion as to whom they engage with, the length of such sessions and/or the quantity of such sessions PROVIDED THAT if the children’s counsellor wishes to engage with the mother or a member of her family, THEN the Court would expect that such consultations shall be at the sole cost of the mother.
E.As the mother was in receipt of legal aid and in light of s 117(4)(a) of the Act, the ICL did not make an application for costs against the mother.

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

Two young girls have a loving and positive relationship with their mum and dad despite being exposed to a series of ‘road blocks’ created out of intense conflict between their parents. The dispute erupted when the mother unilaterally relocated the girls to New South Wales. The father, the ICL and the expert witness support the girls living with their father (in Victoria). The mother says the girls should stay with her (in New South Wales). Should I invite more change into the girls’ lives?
Out of respect for each person’s gender and social status, other than parties and the children, persons will be identified by their surnames and, where possible, there will be an avoidance of the use of gendered pronouns.
These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth). Unless otherwise specified, any reference to ‘the Act’ or a legislative provision shall be a reference to the Family Law Act 1975 (Cth).
The subject children (‘the girls’) are X born in 2016 and Y born in 2018.
In broad compass, the Applicant, Mr Hoffman (‘the father’) sought that he be allocated sole parental responsibility for the girls, that they live with him in Victoria and that they spend regularised time with the Respondent, Ms Hoffman (‘the mother’) during school terms and school holidays.
In summary, the mother responded to the father’s application by seeking that the girls remain living with her in Town F, that the mother and the father have equal shared parental responsibility for the girls and that the girls spend regularised time with the father during school terms and school holidays.
The Independent Children’s Lawyer was Linda McGregor (‘the ICL’) and in the main, she supported the father’s application. As such, I will loosely describe the agreed position of the father and the ICL as the collective proposal.
The evidence from the court child expert, Ms J (‘the CCE’) was also largely supportive of the girls living with the father.
Statements of facts as set out below should constitute findings of fact unless otherwise expressed.
In exercising my discretion as to the weight I should otherwise give to the family report[1] prepared by the CCE and/or her oral evidence, I was satisfied that the CCE was open to persuasion about different scenarios that were put in cross-examination. Where there were conflicts between what the CCE recorded the mother saying during the family report process and the mother’s evidence, I prefer the CCE’s evidence as being independent and contemporaneously prepared. To be clear there was at least one instance where the CCE appeared to accept the mother’s recollection of the context of statements she made about the management of her mental health and to the extent of such acceptance there was no conflict. The CCE gave thoughtful and consistent evidence except on the question of parental responsibility. On that topic I was not impressed with her expressed basis for her written opinion as to the allocation of equal shared parental responsibility[2], from which she resiled during cross-examination, preferring instead that the father be given sole parental responsibility. Other than on that topic, in giving opinions, the CCE’s analysis was clear from the identified facts/propositions put to her and there was a clear and logical pathway to the conclusion/s formed and/or expressed.
[1] References to the contents of the family report and paragraph numbers shall be identified with ‘FR’ for the family report dated 21 December 2022.
[2] See FR-213
Unfortunately there were passages of evidence from the mother which caused me alarm, either because the evidence contradicted the business records of independent third parties and/or was illogical given the context of those same business records. These will be discussed as I address the issues.
There were also conflicts in the evidence between the two protagonists to this dispute but overall I accept that they both tried their best to give an honest recollection of events and where it mattered to the determination of the issues I will give reasons why I preferred one account over another.
I have read all the evidence relied upon in the proceedings but do not propose to repeat it here. As the High Court reminds me in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62]:
62….A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
In considering this matter, I have adopted the approach set out by the Full Court in Starr & Duggan [2009] FamCAFC 115 at [38] and which was confirmed by the Full Court in Hepburn & Noble [2010] FamCAFC 111 but through the prism of the agreed list of issues formulated by the parties and the Court during the trial[3].
[3] Exhibit ‘B’
THE ISSUES
Is there an unacceptable risk of psychological and/or emotional harm to the girls (or either of them) because of the mother’s alleged incapacity to promote a meaningful relationship between the girls (or either of them) and the father?
The father submitted that the mother presented an ‘unacceptable risk of psychological harm’ to the children because of her persistent and negative views of himself and the important role he plays in the girls’ lives.
It was submitted and/or was open for me to find that this risk found expression in a multitude of behaviours[4] including the substance and presentation of the mother’s oral evidence and the unilateral decisions made by the mother including –
(a)Unilaterally re-locating from Victoria to New South Wales on more than one occasion (excluding a state-imposed sanction arising from the then COVID-19 health pandemic);
(b)In March 2021, taking the children to the doctors and the local Police upon her arrival from Victoria;
(c)Making it difficult for the girls to spend time with the father in mid-2021 and despite the orders of 9 April 2021 (‘the April 2021 Orders’);
(d)Obstructing some or all of the time the father was able to see X on her first day of school and her first school sports day;
(e)Failing to comply with court orders so that the girls did not spend time nor have FaceTime communication with their dad for about eight (8) weeks in mid-2022;
(f)In late 2022, accusing the father of ‘stealing my baby’ whilst holding Y, refusing to permit the father contact with Y post-surgery and unilaterally suspending the FaceTime order made on 10 December 2021;
(g)Being unwilling or unable to communicate co-operatively with the father when he attempted to make plans for the 2023 winter school holidays; and
(h)Being unwilling to permit the girls from having FaceTime calls with the father in their home; with that attitude appearing to change only during the course of cross‑examination;
[4] Which were countenanced during submissions either by the parties or the Court
At this juncture it is important to reflect on the legislative pathway and in particular the primary considerations; one of which the parties all agree, that is – the girls do have and will benefit from a continuation of their meaningful relationships with their parents: s 60CC(2)(a).
So with that background, I was asked to find whether the mother posed an unacceptable risk of psychological and/or emotional harm to the children: s 60CC(2)(b).
In reflecting on the Court’s role when matters of risk are raised, Judge Morley in Berys & Berys [2022] FedCFamC2F 1162 (‘Berys’) said this at [177] –
117. Rather, the task of the Court is to assess whether the evidence establishes that there is a risk to the best interests of the child. If the evidence establishes that there is such a risk, briefly expressed, the Court must:
(1) Assess whether that risk is an acceptable risk or an unacceptable risk;
(2) If it is assessed that it is an unacceptable risk, assess whether or not the risk can be mitigated by appropriate orders; and
(3) Decide what orders are proper in all the circumstances in the best interests of the child.
In the decision of McClelland DCJ in Sweet & Sweet [2022] FedCFamC2F 676 (‘Sweet’), His Honour neatly summarised the issues and unacceptable risk. At [55] His Honour said this:
55.The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
• In devising tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from abuse and the possibility of benefit to the child from parental access: see M v M (1988) 166 CLR 69 (“M v M”) at 78; B and B (1993) FLC 92-357 at 79,778.
• It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996[5]; M v M at 77.
• Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director-General, Department of Family and Community Services (NSW) v the Colt Children [2013] NSWChC 5 at [146]–[148] (‘DFCS v the Colt Children’).[6]
• The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 at 81,890-81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty, ‘Unacceptable Risk – A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
[5] Referred to as ‘A v A’
[6] Referred to as ‘DFCS v the Colt Children’
A finding of unacceptable risk need not be demonstrated according to the civil standard of proof: see Isles & Nelissen [2022] FedCFamC1A 97 (‘Isles & Nelissen’) at [6], [7], [46]-[51] and [81]. Isles & Nelissen was followed in the decision of Eastley & Eastley [2022] FedCFamC1F 101 (‘Eastley’) at [45] where the Full Court observed that a finding of unacceptable risk was open on the available evidence because the evidence demonstrated a material possibility of risk, which need not have been demonstrated according to the civil standard of proof.
As enunciated by the Full Court in Bielen & Kozma [2022] FedCFamC1A 221 (‘Bielen & Kozma’) at [29]‑[30], s 43(1)(c) requires me to have regard to the ‘the need to protect the rights of children and to promote their welfare’ which invites me, when considering matters impacting upon the welfare of the child, to focus on the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being.
If the Court identifies the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 at [83] (‘Blinko’) referring to Russell & Close [1993] FamCA 62 (‘Russell & Close’).
In Napier & Hepburn [2006] FamCA 1316 (‘Napier & Hepburn’), the Full Court emphasised that it is not for the Court to find a solution which eradicates the chance of serious harm. Rather, the Court must balance the magnitude of the harm that will follow if the risk is not minimised or removed, as against a normal, healthy parent-child relationship not being permitted to flourish.
Taking each of the behaviours identified previously, the mother’s evidence was troubling.
Unilateral re-locations
The parties agreed that final separation occurred on 8 March 2021. Up to and including that occasion, the mother had (on multiple occasions) unilaterally removed the children from Victoria when the parties’ relationship broke down. There was controversy about the periods of such relocations/separations but to my mind, these disputes were not critical to resolving the issue. What was critical was the children’s lived experience and (in particular) the mother’s insight into their lived experience.
Although the mother’s counsel valiantly sought to establish that family violence was the driving force behind these decisions, on the balance of probabilities, the evidence fell short of the mark. The evidence of the parties was contested and I agree with the ICL’s submission that the evidence (such as it was) was insufficient to make the finding sought by the mother both as to the existence of family violence and as to that being the driving force behind the mother’s decisions to take the children interstate on multiple occasions.
Going back to the relocations. The mother’s oral evidence was that the father made little to no contribution as a parent during the relationship – saying things like “on a few occasions (four times) he would bathe the children” and that “he did little in raising the children”. The mother then agreed with a number of propositions such as “you did everything else?” and the father having had “no interest in the kids”. Instead my assessment of the mother’s evidence was that either the father had little to offer the children and/or herself including because he would not do the things she expected him to do causing some frustration within the relationship between the parents.
The next series of questions were mainly about the final relocation with the mother agreeing that this was a one-sided decision but defending the decision by saying that the children were “very familiar” with the location they moved to. When asked about whether it was a “big change” for the children in them no longer seeing the father, the mother’s response was a categorical “no”. When asked if during any of the periods of relocation she had brought the children down to see the father in Victoria, she said “no”. Her evidence then was that it would not have been difficult for them to be separated from the paternal family, nor distressing for them; but in a sign of some insight into their emotional needs, she did accept that they may have struggled in not having any contact with the father.
Overall I am comfortably able to find that on each occasion when the mother re-located the children, the decision was driven by her view that the father had little to offer the children, was unwilling to support her in the primary role as their carer and in that context, moving them interstate was of no great moment for them and would otherwise meet her needs. That is to say, the children would not view the final relocation in particular as a big change because she was their primary carer in circumstances where the father did little to help her with the children and by moving closer to her direct family she would be better supported. Although in cross‑examination the mother belatedly appeared to accept that the girls would have struggled in not having contact with the father, this insight certainly wasn’t there at the time, even with orders of the Court in place.
Taking the children to the doctor and the police upon her arrival in NSW in March 2021
A reading of the mother’s trial affidavit left me with the impression that having left Victoria at around 5.00pm on a day in March 2021, the first place the children were taken to after they arrived in Town F was the local medical centre (at 7.30am the next morning).[7] The mother says that the doctor removed Y’s top and observed bruising to her neck and shoulder, with the mother exhibiting photographs of the child’s head and back/shoulder[8]. Whilst the photos are not clear, even if I accept the mother’s evidence, there were no medical notes tendered that contemporaneously record the seriousness of the injuries and of any follow-up treatment that was recommended. To my eye, the photos could just as easily show childhood bumps and scrapes that young children tend to receive through day-to-day experiences of play and/or moving around their physical environment. So much was put to the mother in cross‑examination.
[7] Ms H-[173]-[175] & [178]
[8] Ms H-[179] & exhibit ‘M5’
Under cross-examination, the mother agreed that upon arrival in Town F she took the children to the doctors and then the local police station. Although not in her trial affidavit, her oral evidence was that she took these steps because the children had told her that “Daddy crashed the car”.
Why that significant piece of evidence was not in her trial affidavit is astounding and although she denied in cross-examination that she was “making it up”, given what I have just outlined, I have my doubts.
Even if the mother’s sudden departure from Melbourne was driven by (as she says) by being in fear for her life, this fear does not necessarily excuse why the mother decided to wait so long to seek medical help for Y, if indeed she truly believed the child had been in a car accident. In the face of this incongruence, I cannot accept the veracity of the mother’s belief about the car accident being the reason why she went to the doctor’s and the police. In my view, her intention in going to those places was to try and gather evidence against the father to shore up her sudden departure with the girls. Adding to my view that she (the mother) had concocted the car accident disclosure, when the father was cross-examined (which was before the mother did), this disclosure was not put to the father in cross-examination. Where he was cross‑examined about her being in fear over statements he allegedly said, he denied them.

Weighing up the evidence, I am satisfied that the mother’s actions showed once again, her proclivity for acting spontaneously on the slimmest of evidence, borne out of her strong negative views of the father. If the children were involved in a car crash, then her delay in taking them for medical treatment highlighted her poor capacity to meet their potential emotional and physical needs (which ultimately must have amounted to nothing given the lack of any evidence about ongoing treatment for Y).
For the reasons above, I am satisfied that the mother’s actions were motivated by her negative views of the father and in doing so, she exposed the children to unnecessary experiences with Y being physically examined and the children visiting a police station - both events occurring after a long car drive to get there. In other words, the mother put her need to gather evidence justifying her departure ahead of the needs of her children for medical and emotional support (if indeed that was necessary at all).
Difficulties with the girls spending time with the father in mid-2021 and despite the April 2021 Orders
It was put to the mother that on 25 April 2021 and despite an agreement settled via the parties’ lawyers, the girls did not spend time with the father between 10.00am and 2.00pm, but rather time would start at 11.30am and the father, the children and the family member supervising the visit were not to leave that family member’s residence. The mother did not recall the incident and the Orders did not place any physical restriction on where the time was spent, other than it was to occur in Region K (Town F) of New South Wales.[9]
[9] Order 3 made 9 April 2021
On 11 May 2021, the mother agreed that the girls had not spent time with the father because, using the mother’s oral evidence “[Mr L] was not available”. The father’s unchallenged evidence was that he understood “Mr L” (the maternal step-father) was content to remain the supervisor and that the first the father knew that the usual arrangement was not being followed was after he arrived in New South Wales. Whilst the mother’s decision was not strictly in contradiction to the April Orders, nonetheless the late notice she gave about Mr L not being available and apparently not nominating another family member, meant that in the circumstances of her decision, the girls did not see their father that day, even though he had travelled some 12-13 hours to New South Wales to see them.
On 4 June 2021, the father’s lawyer wrote to the mother’s lawyer[10] (it being common ground at the trial that in 2021 the parties did not communicate directly with each other). It was common ground that in that letter, the father complained about the unilateral restraint being imposed upon where he spent time with the girls. The mother agreed that for time to occur, “at the beginning (time occurred) at [Ms B’s] house”. My recollection was that no plausible explanation was proffered as to why this further physical restraint was imposed and there is nothing in the mother’s trial affidavit about either the existence of this additional restraint, the real or potential impact on the children that arose from it and/or the reasoning for its imposition.
[10] Exhibit ‘F5’
Weighing up the evidence (or lack thereof) I am satisfied that the mother had little regard for the effects upon the children of not spending time with the father as had been agreed between the parties and instead, was putting up another ‘road block’ between the girls and the father having regular time in each other’s company.
Obstructing some or all of the time the father was able to see X on her first day of school and her first school sports day in early 2022
The mother was cross-examined about being obstructive towards X seeing her father on her first day of school in February 2022. Paragraph 127 of the father’s affidavit is clear insofar as alleging that the mother messaged the father asking him not to come to the school again as her mother [Ms B] was doing the pick up. In cross-examination, the mother gave evidence consistent with the father’s evidence, despite something very different being put to her which was, that the mother’s message[11] (not mentioned in his affidavit) was sent sometime before that event and was intended to stop the father coming at all. Self-evidently this proposition appeared to be inconsistent with paragraph 127 above which speaks of him not coming to the school again rather than him not seeing X at all on that day.
[11] Exhibit ’F6’
Putting aside whether the father saw X at the start of her first day but not at the conclusion (as contended by the mother) or at no stage (as I understood was the father’s submission), the bottom line is the same – even though the mother knew the father had travelled interstate and X’s first day of school was a big day and a big milestone.
By way of some explanation for the mother’s actions, it became evident that at the time, the maternal grandmother Ms B, was the defendant to a family violence intervention order (‘the FVIO’) made by the Suburb M Magistrates’ Court in December 2021 for the protection of the father and there was some apprehension about a possible breach of the FVIO.
I am satisfied that in putting her interests first (whether because the only way she could collect X was via Ms B or because Ms B wanted to see X on her first day of school) the mother saw little (if any) benefit to X from whatever time the father could offer to spend with her on her first day of school (in circumstances where he did not live locally to her).
It was common ground that for similar reasons (being the existence of the FVIO) the mother messaged the father asking him to stay away from X’s first sports day. I acknowledge that the arrangements for the father to travel up to Town F (which the mother was aware of and agreed to) were outside the specified periods of time set out in the consent orders of 3 May 2022 (‘the May 2022 Orders’). However, in unilaterally changing the agreement at short notice, another road block was put in front of the benefit that X would gain from knowing that her father was watching her participate. Thankfully, and despite the mother’s late withdrawal from the agreement, the father was apparently able to secure NSW Police assistance to ensure that both he and Ms B could attend the event.[12]
[12] For ease of reference, the affidavit of Mr Hoffman shall be referred to as ‘Mr H’ with paragraphs recorded in square parenthesis. See Mr H[132]
Self-evidently, I am satisfied that the mother’s behaviour was not meant to promote the father’s relationship with X but rather was meant to impede it and was another example of her needs taking priority over the needs of X.
Failing to comply with court orders so that the girls did not spend time nor have FaceTime communication with their dad for about eight (8) weeks in mid-2022.
As a consequence of the May 2022 Orders, the father was able to have unsupervised time with the girls for extended periods including overnights. One such period was spent camping with the father, his parents and his sister also being present. Regular FaceTime communication between the girls and their dad had been imposed via Order 11 made 10 December 2021.
Following the return of the children to the mother on or about 12 June 2022, the mother says that Y made disclosures to her (and separately to her mother) which caused her to hold the view that the paternal grandfather had inappropriately touched Y’s vagina. In the absence of any written testimony from the mother, the actual disclosures (or lack thereof) form part of exhibits ‘F8’, ‘F9’ and ‘F10’.
It was common ground that in the period following the camping trip and up to about 30 June 2022, Y was interviewed and/or examined on five (5) separate occasions and notably twice by the Police (with zero disclosures made) and once by the mother’s social worker Ms E which resulted in Ms E preparing a report dated 1 July 2022 (‘the Ms E report’).
Where there was a conflict between the mother’s evidence and the Police records, I adopt the Police records because:
(a)Those records were an independent and contemporaneous account of their discussions with the mother;
(b)During her cross-examination, the mother paused for long periods of time when answering some of the questions (suggesting she was either having trouble processing the question or possibly trying to concoct a self-serving answer such as she did when divulging about the car accident disclosure;
(c)During her cross-examination her evidence was generally very vague about the circumstances related to the aftermath of the disclosures including what ought to have been significant details such as how many times she took Y to the police.
Having made this finding I accept the Police records[13] that they told the mother on 7 July 2022 that the case had been closed (although it appeared they may have formed this view on 28 June 2022) and that having interviewed Y on 28 June 2022, Police would never have informed the mother to have Y further assessed. The Police record is rightly scathing of the methodology adopted within the Ms E report and highly sceptical about its genesis (noting that the Ms E report was apparently addressed to the mother’s law firm).
[13] Exhibit ‘F9’
The conflicts between the mother’s evidence and third party accounts continues because despite it being put to the mother that the Ms E report says that the mother asked Ms E for an assessment of Y, the mother denied this, saying she would have used the word “assisting” and saying that the Police told her to get Y “counselling”. Once again the mother’s evidence is at cross-purposes with contemporaneous records from third parties and in particular what the mother says about the Police suggesting “counselling” made no sense given Exhibit ‘F9’ records the Police observing Y (two (2) days before the Ms E report) having spoken fondly of her father and her grandfather (and presenting) well (and not appearing) to have any emotional or physical signs of sexual harm or physical harm.
The mother did not communicate the disclosures to the father until over two (2) weeks later and apparently only after he had caused his lawyers to write and query why FaceTime calls had stopped. This, despite the father text messaging the mother from 14 June 2022 asking for FaceTime[14]. When she did speak to the father, the mother said in cross-examination that he did not acknowledge it and that this behaviour was concerning to her because of what Y had told her.
[14] Exhibit ‘F11’
On 6 July 2022, the mother filed an application in a proceeding seeking to stop the “spends time with” May 2022 Orders (but curiously not a restraint against the father bringing the children into contact with the paternal grandfather) and continued to prosecute that application despite being told the very next day that the Police were standing by their earlier decision to close the case.
Despite there being no evidence that the father posed a risk, it apparently did not occur to the mother (until she was cross-examined), that the girls could still communicate and spend time with the father in accordance with the May 2022 Orders; as well as being kept safe via an injunctive restraint prohibiting the father from allowing the paternal grandfather to have any contact with them.
The mother gave no evidence in her trial affidavit about the incident, no insight into the impact upon the children from her decision to unilaterally suspend the effect of either the FaceTime orders contained with the December 2021 Orders[15] nor the “spends time with” May 2022 Orders and gave no written reassurance to the Court that she would not do it all again if another allegation was made which did not directly impugn the father.
[15] Order 11 of the consent orders made 10.12.2021
I acknowledge that at one point during her cross-examination the mother reflected saying that it was “my mistake” but against the overwhelming evidence of her acting conversely, it is hard for me to accept the veracity of her belated admission. Rather, in my mind, and in the absence of any cogent explanation by her - it beggars belief that another solution besides a unilateral suspension of communication and time between the father and the girls had not occurred to the mother in circumstances where she was legally represented at the time and she now asks the Court to accept that she has, and will continue to value the relationship between the father and the girls.
Overall, I am satisfied that the girls had to endure another road block of eight (8) weeks of zero communication and time with the father purely because the mother was unable to focus on their emotional needs first and/or was unwilling to accept that the father could keep them safe, despite not asking him to be the subject of a restraint and indeed not even telling him of the allegations for the first two (2) weeks after they surfaced.
In late 2022, accusing the father of ‘stealing my baby’ whilst holding Y, refusing to permit the father contact with Y post-surgery and unilaterally suspending the FaceTime order made on 10 December 2021
Y was to have a medical procedure in December 2022. The family report interviews occurred on 30 November 2022. Orders made 24 November 2022 (‘the November 2022 Orders’) provided for (in effect) –
(a)X to spend a few hours with the father on 28 November 2022;
(b)both girls to spend a few hours with their dad the day before the family report interviews;
(c)X to spend time alone with the father from after-school on the day of the family report interviews until 4 December 2022;
(d)Y to not spend time with the father on the day of her surgery and then again from 1 to 4 December 2022.
On that background, there was cross-examination about related matters including informal observations by the CCE about the parents discussing arrangements post-interview for the girls to attend sports practice[16]. The mother confirmed that the CCE accurately recorded the mother as being not keen on this (the father taking the children earlier than originally planned) stating that it will mean less time for her with the children.[17]. The mother justified her reaction by saying that after the lesson it would be the first time the girls had been separated and the first time that the father would only be caring for X, as the mother was due to take Y to Sydney for the surgery. The mother did not easily accept that practically (if not strictly in accordance with the November 2022 Orders), from the children’s perspective, the suggestion put by the CCE[18] was more convenient for the girls, suggesting to me that the mother (even at trial and after having had the chance to reflect on the family report) struggled with putting the girls’ needs ahead of her own.
[16] FR-148 to 155
[17] FR-150
[18] FR-151
In any event, the mother did arrive at the sports centre and an unseemly incident occurred to which (at least) Y was exposed to. The father objected to the manner in which the mother abruptly removed Y from the centre. There was controversy about what happened next but consensus that Y (who was being carried by the mother) heard her mother accuse the father of “stealing my baby” with the father alleging the mother screamed the words out loud. The mother denied screaming but agreed she said that phrase and that as a result of whatever transpired, Y was upset and clinging to her.
Y then travelled to Sydney. The father tried to contact the mother during this time but says she did not return his calls. It was put to the mother that the father asked to visit Y in hospital post‑surgery (which to be clear was outside the terms of the November 2022 Orders). The mother agreed that she declined his request because “he had [X]”.
There being no evidence to the contrary I assume that the father complied with the November 2022 Orders and X was returned to the mother’s care on 4 December 2022.
The father says that following the sports centre incident and up until 20 December 2022, the mother refused to permit FaceTime communications between the father and the girls.[19] The mother denied this and said that she would “have to check”. In re-examination there was no further explanation or evidence from the mother, and on that basis I accept the father’s proposition that for a period of about three (3) weeks, Y had no communication with the father and X had some time and communication with him because she remained in his care whilst Y was away in Sydney. The mother defended her decision by saying that Y was recovering from surgery.
[19] Mr H-[181 k)]
Taken as a bundle, the CCE expressed concern about the psychological and/emotional impact upon Y from hearing her mother accuse the father of stealing her and then having no contact with him for the next three (3) weeks. In summary, the CCE’s evidence was that at the least, the child would have been initially upset at the conflict and then confused about why her father had not contacted her to see how she was going; or at worst, the upset Y experienced may have continued because post-surgery she viewed the lack of contact as the father “not caring” about her.
Self-evidently, for X, the impact would have been less but having said that, yet again her ability to regularly communicate with the father had been disrupted without any apparent good reason.
I am satisfied that the mother’s actions (and her lack of appropriate reflection) bring into sharp relief a deficit in her parental capacity to promote a meaningful relationship due to her overt minimisation of the father’s role in Y’s welfare and the psychological and/or emotional impact upon both girls from being exposed to her negative attitude towards him either by her words or deeds (in stopping FaceTime communications).
Being unwilling or unable to communicate co-operatively with the father when he attempted to make plans for the 2023 winter school holidays
The November 2022 Orders provided for the children to travel to Victoria to spend time with the father during the last school holiday period before the trial.
As put to the mother in cross-examination (and summarised by me now) - if there was ever a time to put your best foot forward to show that the girls living interstate was no barrier to them continuing to spend time easily with their dad then this was it, wasn’t it?
Sadly, even with the impending trial, the mother failed to ensure that all road blocks were removed. Instead, I accept the father’s evidence that for about six (6) weeks before when he thought time was to commence, he had been unable to raise a response from the mother about when time would start and how the flights would be organised. The father said that the framing of the November 2022 Orders was confusing to him and one of the reasons why he was trying to find out if the mother was on the same page as him about interpreting them. The mother did not respond at all.
With rising anxiety, the father was forced to instruct his solicitors to intervene[20] with the result being that rather than flying the girls to Melbourne, the father drove up instead. Pleasingly the parties were ultimately able to agree for the girls to fly home accompanied by the mother for the first time (saving them the long drive).
[20] Exhibit ‘ICL3’
Taking the evidence and submissions into account, I find that the mother’s behaviour (including her inability to communicate in a timely way with the father, even with the benefit of legal representation) re-affirms her disdain for the father’s role in the girls’ lives and her embedded attitude and intention to make any time he spends with the girls as difficult to facilitate as possible.
Being unwilling to permit the girls having FaceTime calls with the father in their home; with that attitude changing only during the course of cross-examination;
It was common ground that the consent orders made 10 December 2021 provided for the parties to reach agreement on the children having FaceTime communication with the father as well as specifying communication would occur three times a week (Tuesday and Thursday) with a third call on Sundays (facilitated through the paternal grandfather).

Whilst there have been periods of time when the mother has unilaterally suspended communication altogether, one aspect of the communications has been a consistent lived experience for the girls is that they are never in their own home when the calls occur.
The father expressed frustration at this because it has meant that the girls have been distracted by external factors when he is trying to talk with them, such as playing on playground equipment, engaging in extra-curricular activities, sitting in the car whilst being driven places and/or walking along outside.
In cross-examination the mother said that her home was her “safe place” and it was for that reason that she had chosen not to have the children communicate with the father in their home. My observation of the mother as a witness, was that it was only when it was put to her that her home was also the girls’ home that she started to realise the impact upon them from not being able to talk to their father in the comfort of familiar quiet surroundings.
The CCE was clear to say that by not permitting the girls to speak to their father in their home, the girls could interpret this as a sign from their mother that the father was not welcome in their home and therefore there must be something wrong with him. The CCE also said that the mother’s decision was another example of the mother unreasonably putting her needs ahead of the girls. This was because of their observed relationship with the father, it would be natural for the girls to want the opportunity of showing him their bedroom and things/activities around their home that they are proud of or would simply like to share with him.
Although the mother’s relief now incorporates a requirement for communication to occur in a home environment I am reminded of her antecedents including –
(a)The mother’s strong views about her home being a ‘safe place’ (away from the influence of the father);
(b)The mother acting unilaterally about fairly innocuous events such as –
·Y’s bruising and scrapes after returning from the father’s care, which resulted in photos being taken of the child and a visit to the Police as soon as she re-located them to NSW for the final time;
·Y’s comments about the paternal grandfather (and the subsequence advice from the Police) which could have had a number of interpretations but of which the mother interpreted as the worst possible scenario and as a result exposed Y to numerous interventions;
(c)The mother’s repeated unilateral (and some might say unreasonably spontaneous) acts of non-compliance with Orders (such as withholding the children from time with the father when it was the paternal grandfather who was the risk issue and withholding FaceTime calls between the girls and the father just because Y was ‘recovering’ from surgery); and
(d)The mother’s oral evidence that the children would not necessarily have been adversely affected by her decision to remove them to a location which meant that they spent very little face-to-face time with the father.
Accordingly, I have significant reservations about whether the mother will be able to maintain compliance with the order as sought by her unless there is a strong motivation to do so. In summary, on the balance of probabilities I am not satisfied that the mother’s compliance with her own proposal about where FaceTime calls occur would have any longevity because she has disregarded Orders of the Court before, she has strong negative views about the father and the role he plays in the girls’ lives and she has little insight into the impact upon them if such communication is interfered with. I have concerns that any unusual circumstance, incident or comment that could occur during the communications will cause her to act unilaterally once more, without little reflection for the impact upon the girls.
Conclusion on whether the mother poses an unacceptable risk or not?
I am asked to make a finding that the mother poses an unacceptable risk of emotional or psychological harm to the children as a result of her inability to promote a meaningful relationship between the girls and their dad.
It is a complex question because, despite all the “road blocks” (some of which I have identified above), the girls continue to have a relationship with their father that they could view as important, significant and valuable: see Mazorski & Albright [2007] FamCA 520.
So it could be argued (as it was by the mother), that given the past, and informed by the mother’s experience at the trial including the gaining of insight as a result of the testing of all the evidence (such as her change of heart about where FaceTime calls should occur), the evidence falls short of establishing that there is a material possibility of risk of harm to the children in the future – should they remain living with the mother and there are prescriptive orders about when the girls have time and communicate with the father supported by ancillary orders including injunctive and positive restraints on the mother’s behaviour.
The submissions of the ICL did not go so far as to say that the mother’s capacity to promote a meaningful relationship was so deficient as to pose an unacceptable risk, the father’s submissions did, relying heavily on some, if not all, of the circumstances identified above.
I have had cause to reflect on the legislative pathway including the objects and principles of Part VII. The High Court observed that the focus of the objects was on “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child” (bold emphasis added): see Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 at [8] (‘Masson v Parsons’).
When deciding whether to make a particular parenting order I must have regard to the best interests of the girls being the paramount consideration: see ss 60CA and 65DAA. As such, in parenting proceedings the focus should be on the effect on the child of the parties’ respective proposals: see Fairfield & Hoffman [2021] FamCAFC 151; (2021) FLC 94-045 at [71] and Bielen & Kozma at [28].
Taking account of all the evidence (including what the CCE said about the mother’s actions causing emotional and/or psychological harm) along with the competing submissions, I am satisfied that the mother does pose a material possibility of risk of harm to the girls’ psychological and/or emotional health arising from their exposure to the mother’s inability to promote a meaningful relationship between them and the father: see Isles & Nelissen at [6], [7], [46]-[51] and [81] and Eastley & Eastley at [45].
This is because of:
(a)The evidence of the CCE about the short, medium and long-term impacts upon the girls from not being able to continue to have a meaningful relationship with their father;
(b)The mother’s failure to recognise the real and/or potential adverse impacts upon the girls’ ability to enhance their relationship with the father through –
·not allowing FaceTime communication to consistently occur (despite the December 2021 Orders) and particularly after periods of trauma such as Y making a disclosure against the paternal grandfather and then enduring five separate interventions by third parties as well as Y’s experience at the sports centre followed up by her surgery the next day;
·not allowing FaceTime communication to occur in their family home so that they can have a quiet space to keep focused on their father and be able to let him see a setting which is comforting to them and which sends a message to them that the father is welcome in their home;
·unilaterally re-locating the children interstate in March 2021 and not sufficiently (in my mind) recognising how significant this change was to them insofar as missing their dad and then acting to ameliorate it;
·unilaterally withholding the girls from spending time with the father for about eight (8) weeks despite the alleged risk being about the paternal grandfather only;
·unilaterally withdrawing from communicating with the father, at the risk of court-ordered time between the girls and the father not proceeding;
(c)The mother spontaneously denigrating the father in the presence of Y by accusing him of stealing her away from the mother in circumstances where Y was then to undergo surgery following which the mother then spontaneously refused to permit Y from having any contact with the father for the two weeks following, citing her reason as Y was recovering and seemingly being unaware of what message that was sending to Y about the father’s care and concern for her welfare;
(d)The mother’s propensity to act spontaneously and assume the worst about the father (or those around him) and then act unreasonably and against the welfare of the girls by, for example –
·driving interstate and only then taking the girls to see a doctor and then the Police, all because of (apparently) allegations made earlier by them about their father crashing the car;
·exposing Y to Ms E in circumstances where the police observed (prior to the child being interviewed for the Ms E report) that the child was not showing any adverse signs of sexual or physical harm and had not recommended a further intervention;
(e)The mother putting her interests (or those of her family) above the girls’ interests in not allowing the father to demonstrate his commitment to them as their father by acting in a manner meant to restrict his access during or after significant events such as X’s first day of school, X’s first sporting carnival and Y’s surgery;
(f)The mother putting unnecessary hurdles in front of the father spending time with the girls and/or arranging to spend time with the girls such as in mid-2021 with regards to where time could be spent and then again in July 2023 when she simply failed to respond to the father’s requests to talk about arrangements for the 2023 winter school holidays; and
(g)My observation as to her minimisation or lack of any insight into the impact of her behaviours upon the girls – whether overt or covert such as moving interstate and then immediately taking them to see professionals about their welfare, accusing the father of stealing Y and not permitting the girls to speak to their dad in the comfort of their own home.
Whether the risk of harm posed by the mother can be sufficiently managed or ameliorated through injunctive orders or supervised time, (see Blinko at [83] referring to Russell & Close) is a topic I will return to later.
Finally, if I am wrong about my finding of unacceptable risk (adopting the submissions of the mother and the ICL), I will also reflect on the additional considerations, noting that in doing so I have had regard to all the additional considerations even if I only mention those that were significant in my mind in the context of the issues and the parties’ submissions: s60CC(3).
What weight should I give to the views of the girls (or either of them?)
The CCE interviewed and observed the girls during the course of preparing the family report. The CCE said that based on her interactions, it was very clear to the children that mum does not like dad. The CCE said that given their ages, the weight that could be given to the girls’ views would be limited[21] but it was clear to her that the girls are very comfortable with their parents. This evidence was unchallenged.
Are the girls at psychological or emotional risk of harm in the sole care of the maternal grandmother because of her alleged frequent abuse of alcohol and poor emotional regulation?
[21] See also FR-201
Curiously the mother did not call Ms B as her witness. Instead the ICL did and although only given short notice, Ms B dutifully attended Court to give evidence.
Although the father’s trial affidavit explored the basis for his concerns about the girls being left unattended in Ms B’s care, very little of that evidence was put to Ms B. Even the details about how Ms B came to be the defendant to the FVIO were not put.
The best I could make of Ms B’s evidence was that her recent exposure to the girls had been limited either because of the contents of the family report and/or because Ms B had been dealing with the maternal great grandmother’s recent ill-health and subsequent death interstate.
From her answers, it was evident to me that Ms B remains distrustful of the paternal grandfather and clearly still considers he poses a risk of sexual harm to at least Y, noting that this risk has been entirely discounted by the mother who chose not to cross-examine Mr Hoffman at all and instead I accepted the contents of his affidavit without any challenge.
It was also apparent that, at least in the past, Ms B has been a source of support for the mother because during that difficult time, on one occasion Ms B said she had rung the police on behalf of her daughter.
I say this despite preferring (over the mother’s denials) the contents of various third party business documents that recorded adverse disclosures the mother had made about Ms B and her relationship with her. This preference is on two bases –
·firstly the business records were made contemporaneously from a non-partisan source (including adverse comments about Ms B contained in reports by Ms E to other practitioners in 2019[22]); and
·secondly because in my estimation of the mother’s evidence, she is not adverse to giving self-serving evidence that she perceives helps her case (such as when she told the Court that the Police informed her to get counselling for Y despite them previously recording that Y was exhibiting no symptoms of distress that would otherwise warrant such advice being given in the first place).
[22] Exhibit ‘F13’
This incongruity arises because none of those adverse disclosures were put to Ms B. Although I accept the accuracy of the third party business records over the mother’s vehement denials, there is little I can do with that finding because none of the allegations made by the father or contained within those documents was actually put to the one person who could answer them from first-hand knowledge. In other words, and relying on s 69ZT(3), there is little weight I can give to those records.
I will return to Ms B’s involvement when formulating my orders, particularly insofar as their facilitation. In the meantime, and self-evidently from the discourse between myself and counsel for the father during closing submissions, the evidence does not permit me to make any adverse findings directly against Ms B.
What will be the impact upon the children (or either of them) if they were to live with the father in Melbourne and spend time with the mother that amounts to something less than substantial and significant?
In the context of this issue, it is important to record that at no point did the mother say she would return to live geographically close to where the father lived and that she had limited finances with which to pay for travel and/or accommodation. It seemed to me that in summary, what the mother was saying was that despite conceding she did have family in the Melbourne area she was unable to visit or stay with the girls in Victoria and that any time they spent with her could only practically occur in NSW. In making these observations I record that the mother’s relief did not have a proposal in the alternative to the girls living with her.[23]
[23] Exhibit ‘M8’
To my mind, it was common ground as between the father, the ICL and the CCE that the girls would likely suffer grief at moving away to live with the father but that, either by dint of their personalities and/or with the support of the father and a treating professional, the girls would adapt in time.
The CCE said that young children need a space where they can talk about their feelings and not feel that what they say will be the wrong answer. The CCE said that her view of the children’s lived experience with the mother was that by the mother’s actions (such as the periods when FaceTime communication was ceased by the mother and/or those communications not being allowed at home), the message being sent to the girls was that the father was not welcome in their home and this would make it difficult for them to talk about him at home because of how clear the mother’s actions had been to them.
Conversely, there was no evidence before me that the father had engaged in similar behaviours or was at risk in doing so (including around issues of the girls communicating with the mother). The only blemish (so to speak) was what the CCE observed of both parents engaging inappropriately in front of the children.[24] I heard during the oral testimony of one of the parties that the children did not show signs of any upset about the interaction. So to be clear, there was no evidence that the current meaningful relationship the girls currently enjoy with the mother will be undermined by the father.
[24] FR-148 to 154
Having said that, I accept that their relationships may change given they will no longer see or spend as much time in the mother’s care but as observed by Justice Kay, sitting as the Full Court, the Act aspires to the promotion of a meaningful relationship not an optimal one: Godfrey & Sanders [2007] FamCA 102 at [36].
The CCE confirmed her recommendation that the girls should live with the father, even if that meant them being geographically distant to the mother (meaning they would experience a significant change in their current living arrangements). In summary, both from her oral and written evidence, the CCE’s opinion was based on various circumstances including:
(a)The superior parenting capacity she observed in the father as opposed to when the mother was caring for the children as part of the family report process[25];
(b)The mother’s behaviours and actions which in combination caused the CCE to hold concerns that the mother will continue to try to prevent the children having a relationship with Mr Hoffman (the father) and the extended paternal family[26].
(c)The mother appearing to have a hyper-focus which detracts from her capacity to focus on the children’s needs such as –
·not travelling back and forth unnecessarily to attend sports lessons after the family report interviews had concluded; with the CCE noting that the mother appeared focussed on other matters such as what the Orders said and/or the usual routine whereby she took the girls to sports[27]; and
·the benefit to be gained by the girls spending extra time with the father and instead speaking of how any additional time between the girls and the father would mean less time for her[28].
[25] FR-156 to 169 and 185 to 187 and 211
[26] FR-205
[27] FR-192 and 193
[28] FR-193
The evidence of Mr Hoffman was accepted into evidence unchallenged. Having read that affidavit, I formed a view that the girls’ immediate paternal family are close to each other both emotionally and geographically. The emotional connection they have with the girls is so strong that on at least one occasion, the paternal aunt and both paternal grandparents (along with the father) have made the roughly 2000km round trip just to spend a short period of time with the girls and since 2021 the paternal grandparents have travelled to NSW to support the father in his interstate journeys. On Mr Hoffman’s evidence I am satisfied that the paternal family will be very supportive of the girls’ emotional needs and of the difficulties that may flow from their transition. As for being untested on a day-to-day level, Mr Hoffman’s unchallenged evidence left me in no doubt that the father will have the attuned support of two retirees with time on their hands and a capacity to meet a request from their son to (for example) ferry the girls around at short notice such as to school or extra-curricular activities or babysit the girls.

The mother’s proposal for holiday time is broadly consistent with the collective proposal although she (sensibly in my view) does not ask him to be constrained by geography during the shorter holidays. As such, the mother’s holiday time proposal is reasonably practicable.
Are the parents able to equally exercise all the duties, powers, responsibilities and authority in the making of major long-term decisions for the welfare of the girls? If the answer is ‘no’ – who should have parental responsibility for the girls and what (if any) notification should the other parent receive?
The mother’s proposal was for the parties to have equal shared parental responsibility which is consistent with the rebuttable presumption: s 61DA(1). The collective proposal was for the father to have sole parental responsibility based on the Court making a finding that it would not be in the best interests of the girls for their parents to have equal shared parental responsibility: s 61DA(4).
The circumstances of this case satisfy me that it is not in the best interests of the girls to allocate equal shared parental responsibility. Why? Because the parties have very poor communication and little to no trust about each other’s decisions which leads to the girls being at risk of exposure to conflict. For example, even on something as innocuous (but serious) as Y’s medical procedure, there was conflict which exposed Y firstly to the mother accusing her father of stealing her but then her not being able to communicate with the father post-surgery because the mother said she was in recovery. This poor communication extended to conflicts between what the mother says she has communicated to others and what their business records or expert evidence records. A summary of these miscommunications include:
(a)conflicts between what the mother’s treators recorded the mother’s background and relationship with Ms B was like and what the mother recalls;
(b)conflicts between what the police recorded telling (or not telling) the mother and what she recalls (which had some repercussions for Y); and
(c)conflicts between what the CCE recorded the mother as saying and what she recalls telling the CCE.
In addition, I had regard to the CCE’s oral evidence which supported the father having sole parental responsibility (despite what the family report had recorded). This change of opinion was based on new information provided to the CCE including the events post-family report interviews including at the sports centre and post-surgery as well as the father’s difficulties in trying to engage with the mother to arrange the last school holiday time.
In my view, quite properly the CCE resiled from her stated position in the family report (the basis for which I have already criticised) and supported the father having sole parental responsibility.
The evidence demonstrates that the mother is the common denominator in the communication difficulties that may plague future decision-making about the girls. Why would it be in the girls’ best interests to risk exposing them to that in the future by requiring the parents to keep trying where in the past their communication has broken down and resulted in conflict (see for example Y’s surgery)?
The father has shown that he is willing to try and communicate with the mother (see for example his efforts leading up to the 2023 winter school holidays) and given her long history of making unilateral decisions about the girls, the mother would likely have a view about any decision he may need to make.
Accordingly, the collective proposal for him to give the mother the ability to provide feedback is seen by me as both practical and an acknowledgment of her interest in the girls. To enhance the flow of information between the parents which will support the welfare and best interests of the girls, all proposals sought various positive and prohibitive restraints and to varying degrees I am satisfied that these should be made so as to reduce the potential for more parental conflict in the future.
With whom should the girls live?
The High Court previously considered the issue of relocation in AMS v AIF [1999] HCA 26 (‘AMS v AIF’) where at [47] and [191] the High Court rejected the proposition that a parent needed to demonstrate “compelling reasons” for the relocation of a child’s residence. Uniquely in this matter, depending on whose submissions (and the evidence upon which they are based), one could argue that each party is seeking to-locate the children. Nonetheless, the same principles apply.
Weighing up the parties’ competing proposals, the evidence and taking into account the legislative pathway and my adverse findings against the mother, I am satisfied that it is in the girls’ best interests to live with the father. My view would be the same whether the father stayed where he lives now or he moved closer to where the mother lives (something which he expressly eschewed in any event).
I acknowledge this means significant change for the girls, not only in who is their primary carer but in where they live and their access to the mother and her family as a consequence.
The mother’s proposal simply did not sufficiently ameliorate the risks posed by her (unacceptable or otherwise) because:-
(a)she has a demonstrated history of ignoring court orders meaning that any prohibitive or positive restraints I could have put in place to try and quarantine the girls from her negative views about the father and the consequent deterioration in their meaningful relationship with him would be largely ineffective;
(b)the only way that I can be certain she would comply with orders meant to preserve the girls’ meaningful relationship with their father must be ones where she can see that her interests (to have time or communicate with the girls) are secured; and
(c)even if I accepted that she would comply with Orders about time and communication without further road blocks, her ‘term time’ proposal was not reasonably practicable and doomed to fail.
As for the collective proposal, it had the best interests of the girls at the forefront because:-
(a)It secured their meaningful relationship with the father, through them living with him;
(b)It secured their meaningful relationship with the mother because there was no evidence that the father would do anything other than to promote it; and
(c)There is no evidence that the father would do anything but comply with orders.
Mandatory and prohibitory injunctions can be made by me for the welfare of a child that affect the parties: s 68B. To facilitate the girls’ transition and to ensure they are not re-located again by the mother, various prohibitive and positive injunctions have been made. To ensure all affected third parties are aware of these restraints, I will order that a copy of the Orders will be immediately sent after publication to Town F Public School to ensure that X is not exposed to any inappropriate and/or spontaneous behaviours which the mother has in the past been prone to exhibit at times of stress. Similarly, given the past support offered by Ms B, I have included a restraint on the mother from asking others (which may include Ms B) to be an agent for her. The duration of the restraint upon the mother is to curb against the girls being exposed to the mother in circumstances where she has in the past demonstrated poor emotional regulation. It will also give the father and the children’s educators ‘space’ to formulate a child-focussed farewell for the girls from their familiar surroundings and peers without the pressure or anxiety of an unexpected arrival by the mother or her agents.
There was insufficient evidence to make the injunctive restraints against the mother regarding her leaving the girls in the sole care of Ms B and I am not satisfied that is in the best interests of the girls and/or reasonably practicable to force the mother to stay in Melbourne if arrangements are not made for them to fly. Why shouldn’t I let the mother make those decisions, as indeed the father has done in the past, by driving the girls interstate for the purposes of a short holiday[40].
With the girls to live with the father in Melbourne, what time should they spend with the mother – equal, substantial and significant or something else and will the time be reasonably practicable?
[40] Mr H-[154 b)]
For the reasons given earlier, including amongst other things the tyranny of distance between the parties, there was no proposal for “equal time” or “substantial and significant time” as defined (s 65DAA(3)) that could be reasonably practicable to facilitate: s 65DAA(5) particularly in circumstances where the mother was adamant that she was not returning to Melbourne either to live or to spend time with the girls on any sort of consistent basis. Having made that consideration, the allocation of less than ‘substantial and significant’ time to one parent is ‘at large’.
With a slight re-phrasing of the form of order, the ‘term time’ proposed by the father and the ICL (should the mother not return to Melbourne) could be reasonably practicable if the mother chooses and if not, then I am satisfied that her relationship with the girls will still be intact because of the holiday time she will have with the girls and the father’s capacity to promote the relationship in the meantime (including through FaceTime communication). To avoid excessive travelling during ‘term time’ a geographical restraint will be imposed and in my view this restraint is necessary because of the mother’s demonstrated inability to prioritise the needs of the girls’ (to not spend hours in a car travelling) over her own.
Given the collective proposal included the prospect of the mother returning to a geographically close location to where the girls’ live and to avoid the proceedings returning to Court if that eventuated, I have made alternative Orders to accommodate that possibility. Reflecting on s 65DAA, whilst the change in geography (amongst other factors set out within that section) would make it reasonably practicable for significant and substantial time (which I will order), and even if I were satisfied that there are other orders I could make to possibly ameliorate the risks posed by the mother - the level of parental conflict, poor parental communication and the mother’s impaired capacity to see benefit in the girls’ relationship with the father would not make in their best interests to order equal time between such conflicted households. In the event the mother decides to relocate, and although I would prefer not to impinge on her freedom of movement, given her poor insight, I have nominated a geographical area to ensure the girls’ needs not to have to travel excessively between households are prioritised over other needs that the mother may otherwise have prioritised ahead of the girls’ interests.
School holiday time will be divided roughly equally to maximise the benefit the girls will have from spending time with each of their parents (and their extended families) during those times. In addition, both parties agreed to the girls being able to spend time overseas with them and this will be accommodated within the Orders.
I have framed the school holiday time as prescriptively as I can (including how flights will be arranged) to avoid doubt and conflict between the parties and I recognise that this may mean that the holidays are not strictly equally divided. In doing so I have weighed up and prefer the avoidance of poor communication and possible conflict (such as what happened at the start of the 2023 winter school holidays) over leaving it up to the parties to work out what an equal distribution of holiday time looks like.
Depending on where the mother may live, the order I intend to make about the girls spending time with each of their parents for various special occasions may or may not be reasonably practicable to her. However, given Mr Hoffman’s evidence about the distances the father and the paternal grandparents were prepared to travel to spend time on at least one special occasion, I thought it appropriate to afford the girls the same opportunity with their mother. If the mother chooses not to take up the opportunity afforded by this Order because it is not reasonably practicable then I would not be critical of her decision.
What arrangements should be made for the girls to communicate electronically or by telephone with each of their parents?
Given the CCE’s evidence about the children’s developmental stage and lack of awareness about what ‘time’ really looks like, regular communication with the parent they are not otherwise living with or spending time with is important. The mother sought communication three times a week, the collective proposal was for a continuation of the existing regime albeit the mother would be the one speaking with the girls.
To-date the twice weekly calls have been challenging for the parties to consistently maintain. I don’t want to set them up for failure because if that happens then there is a real potential for the girls to be left disappointed if an expected call does not occur and/or them being potentially exposed to parental conflict when the disadvantaged parent tries to reach out directly to the other to complain about no access or to change the arrangements.
Accordingly I am satisfied that the collective proposal appropriately balances the risks of failure (in not increasing the frequency from two to three calls per week) whilst ensuring consistency (because the mother will be motivated to make the calls given the girls do not live with her and the father must consider he can accommodate the girls into their daily routine given that he supports it).
CONCLUSION – PARENTING ORDERS
For the reasons that follow, I have largely adopted the terms of exhibit ‘ICL 5’ with some tweaking of the format to reflect exhibit ‘M8’.
If the parties have complied with the November 2022 Orders, then the girls are already spending time with the father this week and he will not be working so that he can comfortably comply with any reasonable request by the ICL for the girls to (perhaps) travel to an agreed location so that the ICL can explain the orders to the girls, as recommended by the CCE. Given the transition ahead, I expect that where possible, this conversation should occur before the girls move to Melbourne. To assist the transition process I will also order that the Registry’s Senior Court Child Expert be given a copy of the Orders so that if any of the girls’ educational providers require support in managing the change in the girls’ circumstances in a child‑focussed manner, they will have access to independent advice from an experienced and qualified person.
Whilst I accept that the mother will be upset by the girls no longer living with her, I am satisfied that she has the capacity to implement the time I will order the girls to spend with her, because insofar as ‘term time’ is concerned, the orders leave it entirely at her discretion about whether she is able to travel down to Melbourne for the weekend or not. If she decides to relocate back then that eventuality is also canvassed within the Orders and is her decision alone. In addition, in making the necessary adjustments to her future circumstances, the mother has the support of her family (including Ms B should she wish to reach out) and her brother and sister-in-law (who already support her through the provision of accommodation).
The mother is entitled to her freedom of movement where it does not adversely affect the girls’ welfare[41].
[41]See U v U at [262] and AMS v AIF, Kirby J at [111], [144], [145]
I have found that if the girls remain living with the mother interstate, then their welfare will be adversely affected because the girls will, on the balance of probabilities, have limited prospects of retaining the meaningful relationship they have with the father and even if the mother and the girls returned to Melbourne, the same concern endures because the mother will manipulate (for example simply not respond to requests from the father to organise school holiday time), act spontaneously on the slimmest of evidence (for example not permitting the girls to have any contact or communication with the father after Y’s alleged disclosure without thinking of a less intrusive alternative such as restricting the girls’ access to Mr Hoffman) and/or simply not comply with Orders that she sees bring no benefit to her needs (which includes the girls living with her).
If however, the girls live with the father, then whether the mother lives in Town F or returns to Melbourne, there is an incentive for her to comply with orders about time and communication because even if the mother struggles (as she has in the past) to put the girls’ needs first, her primary motivation from past actions is likely to endure in the future because both sets of needs will be met – hers’ in having as much contact with the girls as possible, and the girls’ in being able to have a consistent regime of contact with their parents.
It is a balancing act and I am satisfied that the risks posed in the mother’s household outweigh the somewhat untested nature of the change in circumstances offered by father.
Everyone asked me to make notations about the mother’s mental health. She is an adult and able to make decisions about herself as she sees fit. There was no evidence to support why the notations were in the best interests of the girls and I will not make them.
If I did not make an order as sought by any of the parties, it is because the evidence was not there to support it. Conversely these reasons may not have traversed all the ancillary orders sought because their functionality and purpose is obvious from the framing of them, or they were either adopted by all parties or the parties were in principle agreed about them.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of the girls.
THE APPLICABLE LAW, ANALYSIS & CONCLUSION – COSTS
The ICL made an application for the father to pay one-half of the ICL’s costs quantified at $4,053.50[42]. No application was made against the mother because she is legally aided and the application would be doomed to fail: s 117(4)(a).
[42] exhibit ‘ICL2’
In exercising my discretion I must have regard to s 117 which sets out the Court’s jurisdiction insofar as costs are concerned including a rebuttable principle that each party should bear their own costs.
The father opposed the making of a costs order on the basis of financial hardship: s 117(4)(b). The ICL made cursory submissions in support of the application but properly recognised the financial hardship that a costs order would bring to the father if indeed parenting orders were made as sought within the collective proposal.
I agree with the submissions of the ICL and the father that it would not be just for me to make any costs order against the father because it will cause him (and consequently the girls) financial hardship. The father has limited means, limited assets and is about to embark on setting up a permanent home for the girls in Melbourne and all the associated costs in doing so such as education and extra-curricular expenses, not to mention additional food and utility expenditure.
Given the girls’ history, the last thing they need is a financially distressed father trying to make ends meet whilst complying with a costs order. It would not be just and accordingly I will dismiss the ICL’s costs application.
For all of the reasons explained above, orders as set out at the forefront of these Reasons for Judgment will be made.

I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 9 August 2023

File number(s):	MLC 2840 of 2021
Judgment of:	JUDGE KEARNEY
Date of judgment:	9 August 2023
Catchwords:	FAMILY LAW – parenting – where one parent unilaterally relocated interstate with two pre-school children two years ago – consistent road blocks from intense parental conflict - demonstrated inability to promote a meaningful relationship with the other parent in the interim – repeated unilateral acts of non-compliance with interim Orders – parenting capacity impaired in prioritising children’s emotional needs - change of residence – children to return to live with father – regularised time with mother if remains interstate – best interests of children
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	AMS v AIF [1999] HCA 26 Berys & Berys [2022] FedCFamC2F 1162 Bielen & Kozma [2022] FedCFamC1A 221 Blinko & Blinko [2015] FamCAFC 146 Eastley & Eastley [2022] FedCFamC1F 101 Fairfield & Hoffman [2021] FamCAFC 151; (2021) FLC 94-045 Godfrey & Sanders [2007] FamCA 102 Hepburn & Noble [2010] FamCAFC 111 Isles & Nelissen [2022] FedCFamC1A 97 Koen & Biondi [2023] FedCFamC1A 89 Masson v Parsons [2019] HCA 21; (2019) 266 CLR 554 Mazorski & Albright [2007] FamCA 520 MRR v GRR (2010) 240 CLR 461 Napier & Hepburn [2006] FamCA 1316 Russell & Close [1993] FamCA 62 Sayer & Radcliffe (2012) 48 Fam LR 298 Starr & Duggan [2009] FamCAFC 115 Sweet & Sweet [2022] FedCFamC2F 676 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 2 Family Law
Number of paragraphs:	179
Date of hearing:	17-19 July 2023
Place:	Heard in Forster; delivered in Newcastle
Counsel for the Applicant:	Ms Van Oosterom
Solicitor for the Applicant:	Pearce Webster Dugdales
Counsel for the Respondent:	Ms Court
Solicitor for the Respondent:	Greg Tyler & Associates
Solicitor for the Independent Children's Lawyer:	Ms McGregor (Solicitor Advocate) McGregor Family Law

MLC 2840 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HOFFMAN Applicant
AND:	MS HOFFMAN Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE KEARNEY
DATE OF ORDER:	9 AUGUST 2023