Hood & Weaver - [2022] FedCFamC2F 118

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hood & Weaver [2022] FedCFamC2F 118

File number(s): NCC 1156 of 2020

Judgment of: JUDGE KEARNEY

Date of judgment: 10 February 2022

Catchwords: FAMILY LAW – Parenting – where two children of the relationship and one older maternal half-sibling were separated – high conflict parties – impact on children - sole parental responsibility to father – regular structured time with mother - appropriate restraints against denigration and to ameliorate risks of physical discipline or family violence - where educational and medical needs of children must be met – best interests of children

Legislation:
Family Law Act 1975 (Cth) ss 61DA, 60CC, 65C

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.31

Cases cited:
Aldridge & Keaton [2009] FamCAFC 229

Rice v Miller (1993) FLC 92-415

Bondelmonte v Bondelmonte [2017] HCA 8

Panera & Slidell [2017] FCCA 1573

Browne v Dunn (1893) 6 R 67

Division: Division 2 Family Law

Number of paragraphs: 249

Date of last submission/s: 3 February 2022

Date of hearing: 2-3 February 2022

Place: Newcastle

Counsel for the Applicant: Mr Murray

Solicitor for the Applicant: Intercept Law

Counsel for the Respondent: Mr Scarlett

Solicitor for the Respondent: Resolve Family Law

Counsel for the Independent Children's Lawyer: Ms Reid

Solicitor for the Independent Children's Lawyer: Strive Family Law
ORDERS

NCC 1156 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS HOOD

Applicant

AND:
MR WEAVER

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

JUDGE KEARNEY

DATE OF ORDER:

10 FEBRUARY 2021

THE COURT ORDERS THAT:
1.Pursuant to r 1.31 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 and despite r 3.02, Mr B is not a necessary party to these proceedings.
2.MR WEAVER (‘the Father’) have sole parental responsibility for the children:-
(a)X born in 2011 (‘X’);
(b)Y born in 2015 (‘Y’); and
(c)Z born in 2018 (‘Z’)

collectively referred to as ‘the children’.
3.The Father shall have responsibility for decisions as to the children’s day to day care, welfare and development during periods when they are living with him and MS HOOD (‘the Mother’) shall have that responsibility at times the children are in her care.
4.The children shall live with the Father.
5.Unless otherwise agreed in writing between the Father and the Mother, the children shall spend time with the Mother during school terms as exercised by the children as follows:-
(a)each Wednesday from 2:00pm - in relation to Z and from 3:00pm (or the conclusion of school) - in relation to X and Y; until 6:00pm commencing Wednesday 16 February 2022 PROVIDED THAT immediately upon Z commencing kindergarten, Z’s time with the mother shall coincide with her brothers’ time, that is from 3:00pm (or the conclusion of school); and
(b)each alternate weekend from Friday at 3:00pm (or the conclusion of school or day care centre respectively) until Sunday at 6:00pm commencing Friday 18 February 2022.

6.Notwithstanding any other order and unless otherwise agreed in writing between the Father and the Mother, the children will spend time with their parents during the following school holidays as exercised by children’s school/s:-
(a)During the Autumn, Winter and Spring school holidays:-
(i)in even-numbered years:-
A.with the Mother for the first half commencing at 9.00 am on the day after the children’s school term ceases and concluding at 9.00 am on the middle Saturday of the school holiday period; and
B.with the Father for the second half commencing at 9.00 am on the middle Saturday of the school holiday period and concluding at 9:00am on the last Saturday of the school holiday period.

(ii)in odd-numbered years:-
A.with the Father for the first half commencing at 9.00 am on the day after the children’s school term ceases and concluding at 9:00am on the middle Saturday of the school holiday period; and
B.with the Mother for the second half commencing at 9.00 am on the middle Saturday of the school holiday period and concluding at 9.00 am on the last Saturday of the school holiday period.

(b)During the Summer school holidays in alternating periods of seven (7) consecutive nights:-
(i)in even-numbered years:-
A.with the Mother commencing at 9:00 am on the day after the children’s school term ceases and concluding at 9:00am eight days later and alternating thereafter; and
B.with the Father commencing at 9:00am on the eighth day after the children’s school term ceases and concluding at 9:00am eight days later and alternating thereafter.

(ii)in odd-numbered years:-
A.with the Father commencing at 9:00 am on the day after the children’s school term ceases and concluding at 9:00am eight days later and alternating thereafter; and
B.with the Mother commencing at 9:00am on the eighth day after the children’s school term ceases and concluding at 9:00am eight days later and alternating thereafter

NOTING THAT subject to the calculation of time pursuant to Order 7 below, the last period of time spent by the children with either party during the Summer school holidays may be shorter than seven (7) nights.
7.To calculate time in Order 6 above, the Summer school holiday period is deemed to commence at 9.00 am on the day after the last day the children are required to attend school and concludes at 9:00am on the last Sunday before the children are required to attend school in the New Year.
8.To ascertain the resumption of school term-time spent by the children with the Mother following any of the school holiday periods, the sequence of alternating weekends shall be maintained (although not taken during school holidays) and used in calculating time in these orders.
9.Notwithstanding any other order and unless otherwise agreed in writing between the Father and the Mother, the children will spend time with their parents on the following special occasions:-
(a)Over Christmas:-
(i)in even-numbered years:-
A.with the Father from 2:00 pm on Christmas Eve until 2:00 pm on Christmas Day; and
B.with the Mother from 2:00 pm on Christmas Day until 2:00 pm on Boxing Day.

(ii)in odd-numbered years:-
A.with the Mother from 2:00 pm on Christmas Eve until 2:00 pm on Christmas Day; and
B.with the Father from 2:00 pm on Christmas Day until 2:00 pm on Boxing Day.

(b)Over Easter:-
(i)in even-numbered years:-
A.with the Father from 2:00 pm on Easter Saturday until 2:00 pm on Easter Sunday; and
B.with the Mother from 2:00 pm on Easter Sunday until 2:00 pm on Easter Monday.

(ii)in odd-numbered years:-
A.with the Mother from 2:00 pm on Easter Saturday until 2:00 pm on Easter Sunday; and
B.with the Father from 2:00 pm on Easter Sunday until 2:00 pm on Easter Monday.

(c)Over the children’s birthdays, the children will spend time with the party they do not wake up with on each child’s birthday as follows:-
(i)on a school day from the conclusion of school/day care until 6:00 pm; and
(ii)on a non-school day from 2:00 pm to 6:00 pm.

(d)Over the Mother’s Day weekend with the Mother (if they are not already spending time with the Mother) from 2:00pm on Saturday until 6.00 pm on Sunday.
(e)Over the Father’s Day weekend with the Father (if they are not already living with the Father) from 2:00pm on Saturday for the duration of the weekend.

10.To implement parenting arrangements for the children, and unless otherwise agreed in writing between the Mother and the Father, the children will be delivered to each other by the Mother and Father or their nominee, as follows:-
(a)where time with the Mother or Father commences from the conclusion of school/day care - the party with care will collect the children from school/day care centre; and
(b)otherwise, inside the McDonald’s restaurant at Suburb C.

11.Pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”), the Mother is restrained and an injunction shall issue prohibiting the Mother from:-
(a)bringing the children into contact with Mr EE, whether face-to-face, electronically or through social media platforms;
(b)permitting the children from engaging in any form of counselling or therapy or permitting any other person to so without the written consent of the Father.

12.Pursuant to s 68B of the Act, the Mother and the Father are restrained and an injunction shall issue prohibiting them from:-
(a)denigrating each other or any member of their families in the presence or hearing of the children; and
(b)permitting the children to remain in the presence or hearing of another person denigrating them; and

this restraint shall extend to social media platforms such that the Mother and the Father shall remove from their social media accounts any posts or comments denigrating the other parent or any member of their family that have been created by them and/or other persons.
13.Pursuant to s 68B of the Act, the Mother and the Father are restrained and an injunction shall issue prohibiting them from:
(a)using physical discipline upon the children;
(b)recording, photographing and/or presenting the children to police, doctors and hospitals unless the children are unwell and this restraint extends to permitting any other person doing so;
(c)relocating the children from the Region E metropolitan areas without the written consent of the other;
(d)releasing or showing any Court documents or Orders in these proceedings to any other person (including the children) unless otherwise provided herein;
(e)posting or leaving any information or material relating to the proceedings on social media platforms NOTING THAT the effect of this restraint is that by 4:30pm Friday 11 February 2022 they should remove any material that may presently be posted; and
(f)allowing the children to be exposed to family violence as defined within the Act and shall remove the children from the presence or hearing of any acts of family violence NOTING THAT to enhance the parties’ understanding of what family violence looks like, attached to these Orders is a copy of s 4AB of the Act and a screenshot from the Court’s website page Family violence and children | Federal Circuit and Family Court of Australia (fcfcoa.gov.au)

14.The Mother and the Father will notify the other as soon as reasonably practicable of any significant trauma, illness or injury suffered by the children requiring medical treatment or hospitalisation or other treatment whilst in their respective care and as soon as practicable, provide details of such illness, injury, medical treatment, or hospitalisation to the other.
15.The Mother and the Father must follow any treatment plan developed for the children by their treating specialists.
16.In the exercise of his parental responsibility, within 24 hours of the children attending on a professional to receive medical care, inclusive of medical, dental, and other therapeutic treatment, the Father shall inform the Mother of the treating professional’s name, the date of treatment, presenting ailment, details of treatment plan and any subsequent medication prescribed.
17.The Mother and the Father are permitted to provide a copy of these Orders to the children’s treating general practitioner, paediatrician, medico services or other health professionals/service providers (such as counsellors); and thereafter
(a)these Orders shall act as an irrevocable authority for the said professionals and/or service providers to:-
(i)liaise directly with the Mother and the Father, as may be requested by such party; and
(ii)provide to the Mother and the Father, information (including any reports held by them regarding any diagnosis/treatment of the children), as may be requested by such party at his/her own cost.

18.For continuity of medical care, as far as is reasonably practicable, the children shall attend F Medical Practice at Suburb G, NSW for all general practitioner medical care, unless the Father informs the Mother in writing of any change.
19.The Mother and the Father are granted leave to provide a copy of the Family Report to their respective treating counsellor or psychologist and to the children’s respective treating counsellors or psychologists, if any.
20.The Father shall forthwith do all acts and things necessary to authorise any schools/day care centre attended by each of the children to send directly to/or grant access to the Mother, at the Mother’s expense:-
(a)copy/ies of each child’s school progress reports (as they become available);
(b)copy/ies of each child’s school (or day care centre) photographs, if requested and paid for by her; and
(c)copy/ies of any notice, newsletter or access to school communication apps or portals which parents would receive from the school (or day care centre) (as they become available).

21.The Mother and the Father are at liberty to attend all functions and activities at the children’s schools (or day care centre) to which parents are invited as well as any extra-curricular, community, sporting, or other activities in which the children are involved.
22.The Mother and the Father are granted leave to provide the children’s respective school/day care centre with a copy of these Orders.
23.The Mother and the Father are to:
(a)No later than 17 February 2022, contact H Families, J Families and/or K Families for the purposes of enrolling in and completing the first available ‘Circle of Security’ parenting course and they are to provide (by text message or email) a copy of the certificate of completion to each other within two (2) business days of receipt of same; and then
(b)Within seven (7) days of either of them providing to the other a certificate of completion pursuant to Order 23(a), the Mother and the Father are to contact K Families for the purpose of enrolling in and completing the first available ‘Keeping Contact’ program and to facilitate this order, the Mother and the Father are to:-
(i)do all acts and things and complete and sign all necessary documents to enrol and complete the program;
(ii)obey all reasonable directions of the program co-ordinators including the parties’ ongoing attendance until such time as the co-ordinators decide that the program is no longer of use.

24.Forthwith, the Mother and the Father will each provide to the other, their contact telephone number and email address and advise the other parent in writing of any change to same as soon as practicable or within forty-eight (48) hours of such change occurring.
25.Other than in an emergency or to communicate matters of an urgent nature or regarding delays in changeover, the Mother and the Father shall communicate regarding arrangements for the children by SMS. To that effect, the Mother and the Father shall ensure that:-
(a)their mobile telephone number is accessible to the other and not blocked;
(b)their communications to each other are reasonable and polite; and
(c)their communications are respectful of the finality of any decisions made by the other.

26.Unless otherwise specified, any reference to the Mother and Father communicating or reaching agreement “in writing” shall include but not be limited to communications via text message.
27.Pursuant to s 65DA(2) and s 62B of the Family Law 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.
28.All outstanding applications are withdrawn and dismissed.

FAMILY LAW ACT 1975 (Cth)
Section 4AB   Definition of family violence etc.
(1)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)    an assault; or
(b)    a sexual assault or other sexually abusive behaviour; or
(c)    stalking; or
(d)    repeated derogatory taunts; or
(e)    intentionally damaging or destroying property; or
(f)     intentionally causing death or injury to an animal; or
(g)    unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)    unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)     preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)     unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(3)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)    overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)    seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)    comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)    cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)    being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

Family violence and children available at: Law Act 1975 contains a range of provisions designed to protect parties and children from family violence. Section 4(1) of the Family Law Act states that abuse, in relation to a child, means:
Family violence between parents is traumatic for children and can have long lasting effects. A child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence (section 4AB).
Examples of situations that may constitute a child being exposed to family violence include (but are not limited to):
Under section 67Z of the Family Law Act, the Court must be notified if a parenting matter involves allegations of family violence or child abuse. An interested person to the proceedings must notify the Court if one of the parties to the proceedings has already committed family violence, or if there is a risk of family violence being committed by one of the parties by filing the Notice of child abuse, family violence or risk. An interested person in a proceeding is a party to the proceeding, an Independent Children’s Lawyer who represents the interest of the child in the proceeding, or a person who is not a party to the proceeding.

For more information about notifying the Court see How the Court considers safety and risk.

an assault, including a sexual assault, of the child, or

a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is an unequal power in the relationship between the child and the first person, or

causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence, or

serious neglect of the child.

overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family, or

seeing or hearing an assault of a member of the child’s family by another member of the child’s family, or

comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family, or

cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family, or

being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.

The impact of family violence on children
Extensive research confirms the devastating impact family violence can have on children's lives and their physical and emotional development. Family violence can affect children in many ways.
Babies and toddlers
School-aged children
Adolescents

Unsettled, including excessive crying, sleep issues, feeding concerns), and difficulty soothing.

Very clingy, easily startled and anxious behaviours.

Withdrawn, for example disinterested in familiar people, toys and activities.

Signs of aggressive tendencies when playing.

Delays in developmental milestones.

Behavioural issues including aggression, emotional outbursts and disobedience.

Difficulties socially interacting with others, including playing with other children.

Emotional withdrawal.

Reduced appetite/eating disorders.

Sleep disruptions, including difficulty sleeping, bedwetting and nightmares.

Mood disorders.

Learning difficulties.

Reduced school attendance.

Issues at school, including bullying, or difficulty making and maintaining friends.

Depression or anxiety.

Eating disorders, self-harm behaviours, suicidal thoughts.

Risk taking behaviours.

For more information see the Court Children’s Service factsheet Exposure to family violence and its effect on children.
Child protection orders
Child protection is prescribed in child welfare law of a state or territory, where authorities may intervene in family settings and make orders in relation to the care and protection of a child or young person due to an allegation of harm or significant risk of harm to a child. Child protection orders are different to family violence orders. They are made by a state or territory children's court when it is believed that a child is in need of protection. However, children can also be included on family violence orders made for a parent (if appropriate).
Further information on children’s courts can be found on the Australian Law Reform Commission website.
Related legislation

Australian Capital Territory: Children and Young People Act 2008

New South Wales: Children and Young Persons (Care and Protection) Act 1998

Northern Territory: Care and Protection of Children Act 2007

Queensland: Child Protection Act 1999

South Australia: Children and Young People (Safety) Act 2017

Tasmania: Children, Young Persons and their Families Act 1997

Victoria: Children, Youth and Families Act 2005

Western Australia: Children and Community Services Act 2004

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 Hood & Weaver has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE KEARNEY
INTRODUCTION

These proceedings involve a parenting dispute invoking Part VII of the Family Law Act 1975 (Cth) (‘the Act’) between the Applicant, Ms Hood (‘the mother’) and the Respondent Mr Weaver (‘the father’).
There are three children who are the subject of the dispute namely:-
(a)X born in 2011 (‘X’);
(b)Y born in 2015 (‘Y’); and
(c)Z born in 2018 (‘Z’);
collectively referred to as the children.
The main issues to be determined by the Court are:-
(a)The allocation of parental responsibility;
(b)With whom the children should live either together or in separate households; and
(c)What time the children should spend with the other parent.
The genesis for the proceedings was the father’s unilateral retention of Y and Z from the mother, prompting her to institute proceedings for parenting orders including a recovery order.
For the reasons which follow in summary, I propose to largely adopt the orders sought by the father.
THE EVIDENCE
The mother read and/or relied upon the following documents:-
(a)Affidavit of Ms Hood filed 19 January 2022;
(b)Notice of Risk filed 16 April 2020;
(c)Outline of Case document filed 31 January 2022 - marked Exhibit “M-1”
(d)Proposed Minute of Order filed with leave of the court on 2 February 2022 - marked Exhibit “M-2”;
(e)One tendered document – marked Exhibit “M-3”.
The father read and/or relied upon the following documents:-
(a)Affidavit of Mr Weaver filed 19 January 2022;
(b)Affidavit of Ms L filed 17 January 2022;
(c)Affidavit of Ms M filed 17 January 2022;
(d)Proposed Final Orders filed 1 February 2022 – marked Exhibit “F-1”;
(e)Outline of Case document filed 31 January 2022 – marked Exhibit “F-2”;
(f)Various tendered documents – marked Exhibit “F-3” to Exhibit “F-13”.
The Independent Children’s Lawyer (“ICL”) read and/or relied upon the following documents:-
(a)Outline of Case document filed 31 January 2022 – marked Exhibit “ICL-1”; and
(b)Proposed Final Orders filed with leave of the court on 3 February 2022 – marked Exhibit “ICL-2”.
In addition all parties asked me to read the family report dated 29 May 2021 which I marked Exhibit “A”.
For ease of reference, I marked the father’s tender bundle for identification purposes as “MFI-1”.
Counsel for the ICL and the mother asked me to disregard or treat with great caution the evidence and opinions of the child expert (‘the child expert’) relying on either her lack of qualifications or an apprehension of bias.
Generally experts are permitted to give opinion evidence based on their “specialised knowledge”, as an exception to the opinion rule, provided the opinion is “wholly or substantially based on that knowledge”. Decisions such as Dasreef Pty Limited v Nawaf Hawchar [2011] HCA 21 and Makita (Aust) Pty Limited v Sprowles [2001] NSWCA 305 support this proposition.
When challenged about her qualifications, the child expert was clear to say that she does not have formal qualifications to make findings or opine on mental health conditions or diagnoses. In that regard, I accept the submissions of counsel so that where there is evidence opining on the cause of the mother’s observed behaviours or reported actions, I find them to be inadmissible.
The possibility of an expert having a bias in favour of a party (directly or indirectly) is a matter to be taken into account when the Court decides what weight to give the expert evidence, but it is not a ground for rejecting evidence that may be of assistance to the Court in reaching a decision: see Fagenblat v Feingold Partners Pty Ltd [2001] VSC 454 which was noted by Judge Kemp in Panera & Slidell [2017] FCCA 1573 at [19].
No submission was made to me pursuant to s135 of the Evidence Act 1995 (Cth).
In exercising my discretion as to the weight I should otherwise give to the family report and/or the oral evidence of the child expert, I was satisfied that the child expert was open to persuasion about different scenarios that were put to her in cross-examination and appropriately expressed her concern about actions taken by both the mother and the father. When giving her opinions, her analysis was clear from the identified facts/propositions put to her. There was a clear and logical pathway to the conclusion/s she formed.
As an example of what I saw as her even-handed approach to her task, paragraph 153 of the family report, says this:-
153.X’s behaviour was noted to be different when with Mr Weaver and then later with Ms Hood during observations. He was relaxed, chatty and respectful with Mr Weaver but with Ms Hood he was somewhat sarcastic, teased his siblings and there seemed to be a degree of tension between him and the others. There could be different reasons for this, including that X is fearful of being disrespectful of Mr Weaver and not of Ms Hood, or that he was upset when he arrived and still annoyed with the mother during the observation. Another reason could be that he is clear about the expectations that Mr Weaver has of his behaviour.
The above paragraph is an example of the balanced approach I found the child expert to have taken to her task. She does not make a finding one way or the other but merely summarises the observations of X in the company of each of the parents and then presents a number of hypotheses to explain the difference in behaviours.
Accordingly I reject the submissions made on this issue.
Of course, it remains open to me to consider the issue of weight to be given to the evidence, on the basis of other limitations and in that regard, I note that at paragraph 176 of the family report, the child expert acknowledges that in making her recommendations there may be “further information” that the Court may wish to consider.
BACKGROUND
The mother was born in 1987 and she is now 34 years of age. The father was born in 1991 and he is now 30 years of age.
X was born in 2011 as a result of the union of the mother and Mr B (‘Mr B’). The mother’s unchallenged evidence was that:-
(a)she and Mr B were in an “on and off” relationship between 2008 and 2011[1];
(b)her relationship with Mr B ended shortly after the mother discovered she was pregnant[2];
(c)X does not have a relationship with Mr B, having met him once when he was 10 days old[3].
[1] Affidavit of Ms Hood (‘’) at -8
[2] -9
[3] -10
In 2013, the parents commenced a relationship. X would have been two (2) years of age.
In 2015, Y was born.
In 2018, Z was born.
It is uncontroversial that during the relationship, the mother was the primary carer of all three children. I make this finding based on:-
(a)The mother and father agree that initially the mother and X lived in Suburb N and the father worked in Town O during what he describes as the “working week”[4];
(b)The father saying that after moves to Suburb P and Suburb Q, the family settled at Suburb R, by which time, Y had been born. The father then says that at the time the family lived in Suburb R, he was working in Sydney leaving at 4:00am and returning at 9:00pm[5];
(c)The mother saying that she was engaged in “casual type employment” as an allied health worker, and both agreeing that they set up a business, described by the father as ‘Company S’. The business was largely operated from home with the mother’s hours of work varying. The father says that during this time, he would return from his job at Employer T in Sydney anywhere between 5:00pm and 9:00pm, sharing bathing and dressing the children with the mother, although the father’s role is disputed by the mother[6];
[4] -13, and Affidavit of Mr Weaver (‘) at -14,15 & 42
[5] - 14-16; -18, 19, 22, 23, 42
[6] -18-20, 28, 31-32; - 42-44
The parties make cross-allegations of family violence against each other and I will return to that aspect.
The mother says the relationship ended in June 2018 with the parents continuing to live under the same roof for about another two (2) months.[7] The father says the relationship ended in about July 2018 but nothing turns on this, save to say the relationship endured for about five (5) years.[8] At the time, the father moved out of the family home in August/September 2018, and the children remained living with the mother.[9]
[7] -5
[8] -3
[9] -22-24; 38
The child expert observed that post-separation, the children lived with the mother and the father spent time with them each alternate weekend.[10] This observation was not the subject of challenge by either party and on that basis I accept that this pattern was the children’s lived experience for the majority of the time certainly up until the time the father returned to Suburb N.
[10] Family report (FR) at FR-8
In September 2019, the father says he commenced a relationship with Ms L (‘Ms L’) who was 19 years of age at the time.
The mother says that post-separation, her financial situation (and in effect, the children’s situation) became somewhat precarious. She says that the cumulative effect of decisions made by the father to either withhold child support and/or not pay rent on the family home was to essentially force her to reach out to the father for assistance.
At paragraph 65 of her affidavit, the mother says:-
65. In about March 2020 I contacted Mr Weaver as I was financially struggling to meet my bills and rent. I had $30.00 in my account and no food in the house. I asked Mr Weaver (‘the father’) for some assistance. I asked if Mr Weaver could have the children for two (2) weeks to help me out. Unfortunately, Mr Weaver then kept the children and would not return them to me. I then had to commence recovery proceedings.
She says at the time of making the request, the father had a $4,000 child support liability and the parents agreed that instead of assisting the mother financially, he would take the children for a fortnight but at the end of the time, the father refused to return the children.[11] I note in passing that the father now deposes that he is “no longer in arrears of child support.”[12]
[11] ...-67-68
[12] ...-220
The father says that at separation, he spent $5,000 to $6,000 buying the children “everything they needed.”[13] He says he paid $1,900 per month in child support and $524.48 per month in car payments.[14] He says that he will continue to pay the car payments until 28 December 2024.[15]
[13] ...-40
[14] ...-41
[15] ...-31
In terms of his employment, the father says:-
(a)From November 2019 until 6 January 2020 he was unemployed following a redundancy from Employer T;
(b)For a short period in January 2020 he worked with Employer U before being made redundant; and
(c)From January 2020 to April 2021 (or for over 15 months) he was unemployed before obtaining his current employment with Employer V on 26 April 2021.
I heard from the father that any deficit in child support payments was due to the father being unemployed. From the father’s evidence it is apparent that in September 2019 he moved back to the Region W and lived in the home of his grandmother.[16] He gives no evidence of the financial support (if any) he received as a result of this decision, but three months earlier in July 2019, with assistance from his mother, Ms M (‘Ms M’), he bought the Suburb N home as tenants in common in equal shares.[17]
[16] ...-7, 54
[17] ...-32, affidavit of Ms M (…) at 27
In addition, the unchallenged evidence from Ms M suggests that post-separation, the children’s lived experience was punctuated by them, “on several occasions, staying longer after their stay with the father until the mother could collect them on Monday, resulting in X missing school[18]. Other than as set out in Ms M’s affidavit, I cannot make any finding about why the mother was not available for their return to her, but the reality was that X’s education was being disrupted as a result.
[18] …-26
Ms M’s unchallenged evidence then supports the mother’s contention about her financial plight insofar as in December 2019, Ms M was present when the mother delivered the children to the father stating that she could not financially support them and that she was “not coping with them”[19].
[19] LW-28
There remained a contest about the father’s financial support of the children when they lived with the mother and why the mother could no longer financially support them. The mother sought I make a finding about the father’s lack of financial support being the genesis for her handing the children over to him in March 2020 and this issue was the subject of cross-examination. Similarly, the father asked that I make a finding that he did financially support the children and any financial difficulties being experienced by her were not as a result of any acts on his part.
In the absence of any independent business records, such as a history of child support payments made, the parties’ financial transaction histories and even rental statements, I am unwilling to make an adverse finding against either party regarding either the father’s financial support of the children and/or the mother’s financial difficulties.
The father’s evidence invited me to make a finding that the mother was just “not coping” with the demands of parenting the children which again was the subject of cross-examination. The evidence does not sufficiently establish this finding.
Ms M’s unchallenged evidence about X missing school on “several occasions” post-separation due to the mother’s inability to attend a changeover on the Region W was not the subject of challenge and applying the rule in Browne v Dunn (1893) 6 R 67, I make that finding.
Weighing up all the evidence, I find that the mother’s actions in reaching out to the father in late 2019 and early 2020 were appropriate. It seems to me uncontested that she made pragmatic decisions to ensure that the day-to-day financial needs of her children were met.
The father then says that “other than a few short visits” between the children and the mother, the children lived with him for about a month.[20] In summary, the father then says between January 2020 and 15 March 2020, the children spent time with him every weekend, rather than the alternate arrangement that had previously been in place.[21] The mother says the alternate weekend regime remained in place throughout.[22]
[20] ...-56-57
[21] ...-61
[22] ...-98
In any event, the children’s lived experience changed dramatically in March 2020 when by agreement, the children came into the father’s care on or about 15 March 2020. At that time, the mother says the agreement was for them to live with the father for two weeks. The father is silent on that assertion and says that he withheld Y and Z because “I had concerns about Ms Hood’s care of them.”[23] He says that at that time, X was living with the mother and she suspended all time between them.[24]
[23] ...-63
[24] ...-127
The father says that in March 2020, Ms M came to live with him to “support” him during these proceedings.[25] Although this was not the subject of cross-examination, I cannot accept that was the only reason, because at that time there were no proceedings on foot, particularly given that it was not the father who commenced proceedings but rather the mother.
[25] F-61
Exhibit “M-3” is an entry dated 30 March 2020 made by a DCJ worker about concerning behaviour displayed by X including that X had not returned home and when found by the mother, he was in a spare block nearby with friends who were smoking cigarettes and attempting to light a fire in the bush. The report observes that whilst the behaviour is concerning there was nothing to suggest X was engaging in these behaviours as well. The report goes on to say that the mother acted appropriately in physically picking up X and taking him home. Additionally, the report describes X having a …meltdown and screaming inside the home and running down the street – “I don’t want to live…Let me out I don’t want to be here”, and then smashing glass; throwing items at Ms Hood and around the home; hitting and pushing Ms Hood; grabbing a knife and while pointing it at his stomach stated he was going to stab himself; and then going upstairs to the balcony attached to Ms Hood’s room also does not meet … as Ms Hood reported that she placed his arms and hands across his chest and under his arms to stop him moving so he could not get to the balcony and then moved him inside and he began to calm down. Ms Hood has also made contact with ‘AA Psychology’ in order to get X psychological support.

On 16 April 2020, the mother commenced parenting proceedings which sought all children live with her and spend time with the father and that, amongst other orders, a recovery order issue.
No family dispute resolution event occurred prior to institution of proceedings and the Court granted an exemption.
Five days later, the matter was before the court and the parents participated in a child dispute conference the same day.
Following that event, orders (‘the April 2020 orders’) were made separating the siblings with Y and Z to live with the father and spend time with the mother two nights each week from 9:00am Sunday to 4:00pm on Tuesday.
The effect of the April 2020 orders was that the children spent two nights together in the mother’s home and five nights apart, with Y and Z living with the father and X living with the mother.
This regime was short-lived, because on 26 May 2020, the mother withheld Y and Z from the father.[26]
[26] ...-95
The mother gives no date specific evidence about what happened in May 2020 and she was not cross-examined about it. The father relied on tendered records about the events of 24 May 2020, being Exhibits “F-6” and “F-8”. In tandem and noting that none of this material was the subject of cross-examination, the records indicate that the mother took Y to the Suburb G Police Station where Y made allegations of his father slapping him in the head and punching him in the back. She then reportedly took Y to a doctor but was unhappy with what had been recorded about her son’s presentation and finally at 10:00pm she took Y to the Suburb G Hospital to ask for him to see a child psychiatrist. The family report records that the mother asserted that the father then took Y back to the police and that Y had to tell the police that he had lied.[27]
[27] FR-19
In any event, and without court intervention, the mother returned the children to the father about two weeks later on 4 June 2020. The father then filed an interlocutory application about X.
On 3 September 2020, interlocutory orders were made by consent (‘the September 2020 orders’) for X to live with the mother and spend time with the father each week from after-school Friday to 9:00am Sunday which meant that the children spent four nights a week together, and three nights apart.
On 12 November 2020, orders were made confirming the existing regime of time between the parents and the children, but also addressing the Christmas period. A family report was also ordered. It was also noted that Mr B was X’s father but that given his lack of involvement in X’s life, the Court formed the view that he not be joined to the proceedings.
In December 2020, Mr BB (‘Mr BB’), Ms CC (‘Ms CC’) and Mr BB’s two orphaned siblings (aged 11 and 13 years) moved into the father’s home.
On 29 May 2021, the family report prepared by regulation 7 family consultant Ms DD was released.
In about July 2021, the father says that the mother commenced a relationship with Mr EE (‘Mr EE’).[28]
[28] ...-13
During September 2021, the father says that the mother reached out to him, asking for help in managing X. The father collected X late on the evening of 8 September and at 12:30am on 9 September 2021, he took X to the Suburb G Police Station.[29] The mother says that she needed help and the child expert agreed that in the circumstances, the mother acted appropriately.
[29] Exhibit “F-10” at pages 131-133
The father says that in October 2021, Mr EE sent him unsolicited Facebook messenger messages which caused him concern about the mother’s care of X. The mother says that until she saw court documents containing Mr EE’s messages, she was unaware that he had been in contact with the father. I will return to the events of September/October 2021 later in this judgment.
The father then retained X from the mother, despite the September 2020 orders affording him ongoing time with X. The father withheld Y and Z from the mother despite the April 2020 orders. To compound the situation, it was put to the father that he withheld X and Y from school between 18 and 22 October 2021.[30] X was in year 4 at Suburb G Public School and Y was in kindergarten. Rather than instituting urgent proceedings to remedy what he saw as risk issues in the mother’s household, it was in fact, the mother who once again had to bring recovery order proceedings.
[30] Exhibit F-11 at pages 168 and 169 of “MFI-1”
On 22 October 2021, I ordered that the father return the children to the mother with the existing April and September 2020 orders enlivened from 4:00pm Tuesday 26 October 2021. I appointed an independent children’s lawyer (‘the ICL’) and made orders to support the children’s time with their parents over Christmas.
On 27 October 2021 orders were made for a final hearing and by an administrative process, the trial was listed for two days commencing Wednesday 2 February 2022.
On 2 February 2022 the trial commenced and was concluded the next day.
Currently X is enrolled in Year 5 at Suburb G Public School, Y is in year 1 at Suburb G Public School and Z attends FF Early Learning Centre (‘the day care centre’) three days per week, Wednesday to Friday.[31]
[31] ... 71-73
The father continues to work for Employer V as a tradesman and travels one hour each way from his home to City GG. He says that he leaves home at 6:30pm and returns at 4:30am. He says he works full-time.
Under cross-examination the father said that when he arrives home he has a short sleep and then is awake to assist in preparing the children for the day, including taking the boys to school. He says that Ms L is employed at the day care centre in a different room to Z and that consequently she takes Z with her to day care. When he returns from the school run he says he goes to sleep and then is awake to collect the boys from school. He says that Ms L brings Z home with her. He says he is involved in getting the children washed and dressed ready for bed as well as helping with homework. He says that he and Ms L will cook meals for the family. It was apparent to me from his and Ms L’s evidence that he and Ms L work together to ensure the household routine is maintained. It was submitted by the mother (and I accept) that given his work routine and her presence for most of the time when the children are in his care, the father must rely on Ms L to assist in maintaining the children’s daily routine.
THE PROPOSALS OF THE PARTIES
In summary, exhibit “M-1” records the mother’s proposal as being that:-
(a)She have sole parental responsibility for X;
(b)The parents have equal shared parental responsibility for Y and Z;
(c)The children live with her;
(d)The children spend alternate weekends with the father from 4:00pm Friday to 4:00pm Sunday;
(e)The children spend “week-about” time with both parents over all school holidays;
(f)The changeover location be the McDonalds Restaurant at Suburb C if it doesn’t coincide with the conclusion or commencement of school or pre-school;
(g)The children spend time with each of their parents on special occasions including their birthdays, Mother’s Day and Father’s Day weekends, Christmas and Easter;
(h)The parents be restrained from exercising corporal punishment on the children or denigrating each other or their families in the presence or hearing of the children.
(i)Orders be made to facilitate the flow of information about the children between the parents and their involvement in activities involving the children.
In summary, exhibit “F-1” records the father’s proposal as being that:-
(a)He have sole parental responsibility for the children;
(b)The children live with him;
(c)The children spend alternate weekends with the mother from the conclusion of school (or 3:00pm) Friday to 6:00pm Sunday;
(d)The children spend half school holidays with both parents over the Autumn, Winter and Spring school holidays;
(e)The children spend alternating periods of time with each parent consisting of seven (7) consecutive days during the Summer school holidays;
(f)The changeover location be the McDonalds Restaurant at Suburb C if it doesn’t coincide with the conclusion or commencement of school or day care;
(g)The children spend time with each of their parents on special occasions including their birthdays, Mother’s Day and Father’s Day weekends, Easter and Christmas;
(h)The parents be restrained from engaging in various activities including but not limited to exercising physical discipline upon the children, denigrating each other or their families in the presence or hearing of the children and re-locating the children’s residence from the Sydney/Region E metropolitan areas without consent of the other parent.
(i)The mother be restrained from permitting the children to engage in counselling or therapy without the written consent of the father and ensuring the children are not exposed to family violence.
(j)Orders be made to facilitate the parents’ communication and the flow of information about the children between the parents and their involvement in activities involving the children.
(k)The parents enrol and complete two courses, noting that during oral submissions, the father’s counsel asked that it be noted that proposed order 22 include a reference to the parents’ participation and completion of a “Keeping in Contact” program.
In summary, exhibit “ICL-2” records the ICL’s proposal as being that:-
(a)The mother have sole parental responsibility for X and that he live with her;
(b)The father have sole parental responsibility for Y and Z and that they live with him;
(c)The children spend time together four nights a week but in an alternating pattern between the mother and the father from the conclusion of school (or 3:00pm) Friday until commencement of school Tuesday;
(d)The children spend half school holidays with both parents over the Autumn, Winter and Spring school holidays;
(e)The children spend alternating periods of time with each parent consisting of seven (7) consecutive days during the Summer school holidays;
(f)The changeover location be the McDonalds Restaurant at Suburb C if it doesn’t coincide with the conclusion or commencement of school or day care;
(g)The children spend time with each of their parents on special occasions including their birthdays, Mother’s Day and Father’s Day weekends and Christmas;
(h)The parents be restrained from engaging in various activities including but not limited to exercising physical discipline upon the children, denigrating each other or their families in the presence or hearing of the children, re-locating the children’s residence from the Region E metropolitan areas without consent of the other parent and ensuring the children are not exposed to family violence.
(i)The mother be restrained from permitting the children to have contact with Mr EE and engage the children in counselling or therapy without the written consent of the father and ensuring the children are not exposed to family violence.
(j)Orders be made to facilitate the parents’ communication and the flow of information about the children between the parents and their involvement in activities involving the children.
(k)The parents enrol and complete a “Circle of Security” course and “Keeping in Contact” program.
THE APPLICABLE LAW
In these proceedings, the parties invite me to make a “parenting order” (s 64B) which I can, provided I think it is “proper” to do so in light of the objects of the Act and the underpinning principles of those objects (s 60B). Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s. 60CC (2) and (3) of the Act set out the matters to which I must have regard to in doing so. This consideration of the children’s best interests is also mandated within s 65DAA of the Act.
The Act includes a rebuttable presumption that it is in a child’s best interests for the parents to have equal shared parental responsibility (s 61DA). Section 61B defines “parental responsibility” encompassing all duties, powers, responsibilities and authority conferred by law upon parents.
Section 64C permits a parenting order to be made in favour of a parent or some other person.
Section 65C prescribes who may apply for a parenting order as including either or both of a child’s parents or “any other person concerned with the care, welfare and development of the child.”
Where certain circumstances are made out, the presumption of equal shared parental responsibility does not apply, including for example instances of child abuse and family violence (s 61DA(2)). If the court finds that it is not in a child’s best interests for the parents to have equal shared parental responsibility then the presumption can be rebutted (s 61DA(4)). The presumption does not speak to the periods of time that a child should either live or spend with their parents, however how parental responsibility for a child is allocated by the Court may have a bearing on these issues.
Where an order allocates equal shared parental responsibility to a child’s parents, then the Court is obliged to consider both whether it is advisable and practical for a child to live equally with each of their parents, or alternatively, to live with one parent and spend substantial and significant time with the other parent (s 65DAA). If parental responsibility for the child is allocated in some other way, for example to someone who is not a “parent”, then how the Court exercises its discretion about a child’s care arrangements is at large, though the exercise of discretion must be in the context of the paramount consideration being the child’s best interests.
In Aldridge & Keaton [2009] FamCAFC 229 (‘Aldridge’) the Full Court held that while parenthood was a relevant fact in determining the best interests of a child, there was no presumption in favour of a parent, citing at [59], the Full Court decision of Rice v Miller (1993) FLC 92-415 that:-
…the fact of parenthood is to be regarded as an important and significant factor in considering which of the proposals best advances the welfare of the child. We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question. (My emphasis)
In Aldridge at [79] the Full Court concluded that:-
In summary, in dealing with any parenting application by a person interested in the care, welfare or development of a child, a court will determine that application applying the relevant provisions of Pt VII to determine whether making (or not making) a parenting order would be in the child’s best interests.
Having regard to Aldridge at [83], and noting that the father is not the biological father of X I must firstly determine whether the father is a person concerned with the care, welfare or development of X and secondly, what order should be made in X’s best interests.
Section 65C - Is the father a person concerned with the care, welfare and development of X such that he can make an application for parenting orders?
I heard no submissions from any party about this legal aspect of the case.
With that in mind, I have considered the evidence of both parents and the evidence of the child expert. I am satisfied that the father has played a major role in X’s life. As set out above:-
(a)the father has been having contact with X since the child was two (2) years of age;
(b)as an intact family the father has shared a home with X (whether just on weekends or otherwise) for five (5) years;
(c)post-separation and until the events of March 2020, X (along with his half-siblings) has been spending regular time with the father;
(d)when the mother has needed assistance in managing X’s behaviour, it is the father that she has turned to.
In addition, the family report records that during observations “the children all appeared happy and comfortable with Mr Weaver…there was no sign of anxiety in the interactions”[32]. The family report described the father as being X’s psychological father”[33] and that the father has been spending time with X pursuant to Orders of the court.
[32] FR-133
[33] Ibid at 150
On the basis of the above, I am satisfied that for the purposes of s 65C, the father is a person concerned with the care, welfare or development of X and is able to make an application for a parenting order.
Section 60CC - The primary considerations
Section 60CC (2)(a)
Section 60CC (2)(a) mandates that I consider the benefit of the children having a meaningful relationship with both their parents. For X this applies to the mother and Mr B and for Y and Z this applies to the mother and the father.
I have already recorded the Mother’s evidence about the nature of her relationship with Mr B. The child expert reflected on X’s views about Mr B. She recorded that X said he had never seen his biological father and that he had avoided asking the mother about it because “she might get sad.”[34] The child expert opined that in the future X was likely to be interested in who is biological father is and what to understand why he has not known him.[35] In the same report, the child expert recorded that the mother had had recent contact with Mr B but that no contact with X was pursued by Mr B.[36]
[34] FR-89
[35] FR-150
[36] FR-37 & 150
In addition, I note that on 12 November 2020, the Court formed the view that Mr B ought to not be joined to the proceedings, despite him possibly being considered a “necessary” party (see r11.01 of the Federal Circuit Court of Australia Rules 2001 (Cth) which was applicable at the time). At the time, no formal order was made in the exercise of the Court’s discretion. Given the evidence before me, I intend to address that issue within my Orders.
In considering the evidence, the notation of the Court on 12 November 2020 and the lack of submissions about this paramount consideration, I find that there is no benefit to X having a meaningful relationship with Mr B. Of course, I hasten to add, that there is no evidence of him having been given formal notice of these proceedings, so that, in my view, my finding must be limited by that fact.
In his Outline of Case document, the father recognises the benefit to the children of having a meaningful relationship with the mother. The ICL’s Outline of Case document recounted the child expert’s conclusion that “each parent (as in the mother and the father) has positive attributes and obviously loves each of the children” but until the parents were cross-examined she would reserve her view on this issue.[37] In her proposal for final orders, the ICL proposed that X live with the mother and that she be solely responsible for exercising parental responsibility about him.
[37] Exhibit “ICL-1” at page 3
Given the evidence and the submissions of the parties, I am satisfied that X has a meaningful relationship with the father and the mother and will benefit from a continuation of those relationships.
In relation to Y and Z, the father makes the same submission as he did with regards to the mother’s relationship with X.
In relation to Y and Z and the father, in her Outline of Case document, the mother submits that she is capable of and intends to promote the children’s relationship with the father, with the reference to “children” including Y and Z. Exhibit “M1” records her proposal for the children to spend regularised time with the father both during school terms and on school holidays.
I have already referred to the ICL’s Outline of Case document. In so far as Y and Z were concerned, the ICL proposed that they live with the father and spend substantial and significant time with the mother.

On the basis of the above evidence and submissions, I am satisfied that Y and Z have a meaningful relationship with the mother and the father and will benefit from a continuation of those relationships.
Section 60CC (2)(b)
Section 60CC (2)(b) mandates that I consider the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
None of the parties asked me to make findings based on unacceptable risk but rather addressed their concerns about each household through s 68B restraints and ongoing education via a number of parenting courses/programs.
From the mother’s perspective, and despite her evidence, her written submission was that “family violence is not of a (sic) concern for the court regarding the children”[38].
[38] Exhibit M-2 at 4
The issue of family violence was explored during the trial. In summary the evidence included that:-
(a)On at least three occasions during 2013 the mother’s evidence was that the father pushed the mother over and held her down, hurting her back;[39]
[39] ...-42
(b)On other unspecified occasions, the mother says the father had pushed her;[40]
[40] ...-43
(c)Whilst the parents were in bed, the mother said that the father accused her of having an affair and raised his arm as if to punch her. The mother flinched and left the bedroom. The father came out to the lounge room where the mother was and cocked his arm as if to punch her, saying words to the effect of “Remember, I didn’t try to hit you”[41].
(d)There was evidence that the parents had a verbal altercation, the mother swore at the father and ended up throwing his Xbox over the balcony of their home in retaliation because he had thrown items associated with her business over the balcony;[42]
(e)After a verbal altercation, the mother had slapped the father once because he had frightened her and the children. She said that she then dragged him by the arm out of the family home;[43]
(f)During the relationship, the father says on multiple occasions, the mother slapped the father across the face during arguments;[44]
(g)About six months after the father moved out of the family home, the mother’s evidence was that the father entered the family home without her consent and removed various items belonging to him, her and the children.[45] Under cross-examination she rejected the proposition that the father had accessed the home with his key, that he was still listed on the tenancy agreement and that he only removed items belonging to him.
(h)On an unspecified date pre-dating the institution of these proceedings, during a changeover, the father threatened to kill the mother if she ever stopped him from seeing the children.[46] Under cross examination, the father denied this event.
(i)The mother’s evidence was that her laptop was “stolen” from the family home and on 15 October 2021 she had made a report to NSW Police. She says that a tracking app installed on the device indicated that it was at the father’s home and the Police were still investigating the incident.[47] The Police report that the mother was quite vague in explaining how the father may have entered the home in the absence of visible damage to the home and their follow-up enquiries record the father being interviewed and denying he had the mother’s lap-top and the mother making a further complaint on 20 October 2021 about being unable to lock her front door lock due to it being “fiddled with” although that later complaint was neither investigated further by the police nor the subject of any evidence before me.
(j)Late last year, the NSW Police received various reports from both the mother and Mr EE which suggested the relationship had degenerated into acts of family violence including through the inappropriate use of carriage services.[48] The reports suggest that both parties had been victims of the other’s behaviours. In her written evidence in these proceedings the mother said little about her relationship with Mr EE. In the absence of Mr EE making himself available to give evidence for anyone in these proceedings and the submissions of counsel for both the mother and the father, I am reluctant to place much weight on any tendered records, messages or statements he may have made to either parent and/or third parties.
(k)On 25 November 2021, the tendered Police record shows a family violence order (‘ADVO’) was issued for 12 months nominating the mother as the person in need of protection.[49] The evidence was that Mr EE was the defendant. I was not given a copy of the ADVO but it appeared from the subpoenaed material to contain the first standard condition which essentially requires Mr EE to be of good behaviour to the mother but does not constrain him continuing to speak and meet with her.
(l)Under cross-examination from the ICL, the mother admitted that the Wednesday before the trial, she had gone camping with Mr EE and the three children. She said that whilst they were asleep in their tent, X had come in and curled up to sleep at the bottom of their inflatable mattress. She said that the other children had remained in the other tent. The mother said during the night Mr EE had rolled onto her and she had tried to push him off her. At about 3:00am, Mr EE had been half awake and accused her of “punching him in the face”. The mother said that Mr EE had also told her to “fuck off” and conceded that he told X the same thing. Her evidence was that X could have heard what was said between the adults but it was dark and so he would not have been able to see anything. She categorically denied that she had punched Mr EE and that he must have been mistaken about her actions in trying to push him off her while he was asleep. The mother’s presentation during the giving of this evidence did not suggest that she felt threatened by what happened. It was unclear how X felt and in particular whether he was “fearful” which could, in tandem with what he thought he saw or heard, constitute an act of family violence (s4AB of the Act).
[41] ...-44
[42] ...-47, ...-24
[43] ...-46, FR-12
[44] ...-24
[45] ...-50-52
[46] ...-177, 178
[47] ...-54, Exhibit “F-13” COPS event (pages 185-186 of “MFI-1”)
[48] Exhibit “F-13”, COPS event of 05.11.2021 (pages 180-182 of “MFI-1”and COPS event of 23.10.2021 (pages 183-184 of “MFI-1”
[49] Exhibit “F-13”, entry dated 25.11.2021 (see page 179 of “MFI-1”)
I consistently heard and read evidence that accorded with the parents’ relationship being described as “toxic”.
No family violence orders exist between the parents but there is one between the mother and Mr EE.
The family report described the mother and father’s allegations of family violence towards each other and that the children have told the mother that the father and Ms L have hit each other.[50] During cross-examination some of these allegations about the father and Ms L were explored but in the face of their presentation and complete denials and there being no independent business records to the contrary, the evidence was insufficient for me to make a finding.
[50] FR-12 - 18
On the evidence before me, I am satisfied that both parents have engaged in historical family violence towards each other, sometimes exposing the children to it. In my view, the evidence established that the children are in need of protection from exposure to family violence in both parents’ households.
Surprisingly, given her evidence, the mother did not seek any orders addressing this issue. The father and the ICL sought (in effect) that the parents be restrained from exposing the children to family violence and the ICL sought a restraint upon the children coming into contact with Mr EE.
Given my findings, I intend to injunct the parties from exposing the children to family violence and to explicitly embed within the orders what family violence looks like so they are not under any misapprehension about their obligations to their children in this regard.
There is a current ADVO protecting the mother from Mr EE. Given the mother’s evidence on what happened on the camping trip I am unable to conclude that X was exposed to family violence on that occasion.
The ICL sought a restraint against the mother bringing the children into contact with Mr EE and the mother’s counsel submitted that the Court accept her oral evidence that since the events of the Wednesday before the trial, she would not have anything further to do with him. For these reasons I intend to restrain the mother in terms consistent with the ICL’s proposal because it adopts a precautionary approach and appears to be practical as the mother does not intend to have anything more to do with Mr EE.
There was an allegation recorded by me above that Y alleged his father had punched him. No one contended that such an act would fall into the category of physical discipline. The father denied the allegation.
There was evidence from the parents and the child expert about all of the children being subjected to physical discipline which may cross the line into physical abuse.
Punishing a child using physical force upon them is an assault. Having said that, the law acknowledges that it is lawful for a parent to discipline a child using force by defining circumstances in which a defence of lawful correction of children may be raised as a defence to criminal charges: see s 61AA of the Crimes Act 1900 (NSW).
The most compelling evidence was X’s recollection to the child expert that both his parents had smacked him, with the mother using a wooden spoon and the father smacking him on the bottom or missing and hitting his leg instead[51]. X said that the father last smacked him two weeks before the interviews which occurred 30 April 2021. X says that his father smacks Y and Z but not very often and that his mother smacks him and his siblings more often than the father. X’s impression of the smacking was that it was an effective form of discipline for him, telling the child expert that “no, it’s working for me” and that he is “not naughty for a couple of days” after being smacked[52].
[51] FR-86
[52] supra
Both parents said that they had used physical discipline during the relationship.
The mother said that since reading the family report, she had stopped smacking X. In cross-examination, the father categorically denied smacking any of the children after the parents separated in 2018. Ms L said that she had not seen the father smack any of the children, although the weight I can give to her evidence must be limited given that she works outside the household and because of this, at the very least, she must not always be present when the father has one or more of the children in his care.
When the child expert was asked about the veracity of X’s statements to her, her view (based on her observations of X) was that he was telling her the truth and this included his recollection of being smacked by the father two weeks before the interview. She agreed that it was of concern that the father denied X’s recollection of his father’s use of physical discipline post-separation.
Weighing up the competing evidence, I find that the father has engaged in physical discipline of all the children since separation. The mother made a concession about smacking X and accordingly I make that finding too.
There was insufficient evidence for me to make a finding that a child/children had been abused or were at risk of being abused in a manner that would not otherwise fall within the category of physical discipline.
All parties sought a restraint against the parents exercising corporal punishment/physical discipline of the children.
For the reasons above, I am satisfied that there is a risk of the children being exposed to or the subject of physical abuse and in order to protect the children from risk of harm, both parents should be restrained from inflicting physical discipline upon the children.
There was evidence of the mother’s concern that either one or more the children had been sexually abused whilst in the care of the father and/or were the subject of neglect due to poor hygiene practices. Since separation, the mother had, on more than one occasion had Y and Z medically examined.
In her affidavit, the mother said that Z had been taken to the Suburb G Hospital twice with no evidence of sexual interference being observed by the medical staff. The mother had been prescribed ointment/cream to assist with the rash/redness to her labia and vagina.[53]
[53] ...-176
In her affidavit, the mother said that she had taken Y to the hospital after observing his penis to be red and sore. No evidence of sexual interference was reported and the mother was given advice on how to treat what she described as “hygiene issues”[54].
[54] ...-163
The father denies any allegations of sexual abuse of Y or Z and worries about the psychological harm to the children from the mother’s actions and future responses to the children’s physical presentation when coming into her care.
Both in her affidavit at paragraph 164 and in cross-examination, the mother expressed some concern that whilst in the care of their father, Y and Z may have been the victim of inappropriate behaviour of a sexual nature and could be in the future. Despite this, the mother’s proposal is for the three children to have unsupervised time with the father for periods of time extending from three to seven consecutive days. Self-evidently, the mother’s evidence and her proposal are inconsistent and I place little weight on her evidence of risk of harm about this issue and do not make any finding in that regard.
All parties proposed a restraint injuncting the parents from exposing the children to denigratory comments about the parents and their families. In addition, the father and the ICL sought to restrain the parents from unnecessarily taking the children to various authorities unless they were unwell. For the reasons above, I am satisfied that there is a risk of psychological harm to the children arising from the mother’s ongoing concern that the father poses a risk of sexual harm to the children. For that reason I intend to make injunctions consistent with the proposals described above.
Child’s best interests - The additional considerations
Section 60CC (3)(a)
X is 10 years of age and has started Year 6 at Suburb G Public School.
From the parents’ cross-examination, an impression was gained by me of a child who thought being “fair” was important. From the father’s evidence it appeared that in the father’s mind, this explained why X had alleged to the child expert that the father had recently smacked him - so as to balance out his reports of being smacked by the mother.
In a frank manner the mother said this:-
X has expressed to me that he would like to spend week about with his psychological father Mr Weaver and myself. This comes from X’s innate sense of fairness and he does not think that it is fair he spends 2 days per week with Mr Weaver and the children spend more time than he does.[55]
[55] ...-130
Generally speaking, parents know their children best, and my sense of the mother and the father’s evidence in combination, was that X loves both his parents and does not want to disappoint or unnecessarily hurt the feelings of either of them.
X was observed by the child expert to be “easily engaged in conversation” and had a good understanding of why he was being interviewed.[56] It is in evidence that X has some vulnerabilities due to past diagnoses which as at March 2019 saw him diagnosed with attention deficit hyperactivity disorder (‘ADHD’), oppositional defiant disorder (‘ODD’) as well as the curiously worded “stressful life circumstances”[57].
[56] FR-78 & 79
[57] Exhibit F-12, Letter from Dr LL, consulting paediatrician dated 13.12.2021 (see page 171 of “MFI-1”)
The mother says that from time to time, X can act out and has behavioural issues. She says that he has attended upon psychologist Mr JJ at KK Mental Health Suburb G[58]. Exhibit “F-7” is a Final Report from Mr JJ dated 22 July 2020 in which it is reported that X has attended six sessions and that his symptoms have
“improved significantly…X appears emotionally stable and requires short term counselling. I recommend further treatment and provide psychological treatment for another 6 months”.
[58] ...-116, 121
From the mother’s evidence and in tandem with Exhibit “F-7”; it seems that despite his psychologist recommending a further treatment plan of six months, X stopped seeing his psychologist about six months ago (or July 2020).[59]
[59] ...-121
In summary, the family report records X as getting on “okay” with the parents and getting on better with Ms L.[60] In cross-examination, when exploring issues within the father’s household, the child expert said that X had reflected that Ms L was “one of the nicest people caring for them.”
[60] FR-83
I heard that X has told both the child expert and the ICL that he wants to live equally with both the parents.[61]
[61] FR-87
In cross-examination, the child expert said that by not having the same living arrangements as his siblings, X’s “sense of self” was at risk of being adversely affected. She reported that he said, “I want the same as my siblings”. This is consistent with what the mother says at paragraph 130 of her trial affidavit and as referred to above.
The child expert concluded that her impression of X was that he didn’t feel so good about himself and that having a different arrangement to his siblings could make him feel like he was a “bad person” and “not as good”. She rejected the proposition put to her by the ICL that by being in a different regime, he might feel “superior” to his siblings. The child expert also rejected the proposition put to her by the ICL that in expressing a desire to spend equal time with the parents he was acting out of a need to be protective of his siblings, but acknowledged that X does have a “very strong connection with those children”.
The mother and the father have both given either written or oral evidence about X’s capacity to exaggerate situations he has experienced[62] which upon reflection would suggest that in tandem with his vulnerabilities, I should be careful about how much weight I place on his expressed views.
[62] ...-140
In Bondelmonte v Bondelmonte [2017] HCA 8, the High Court observed at [43]:
43. Section 60CC (3)(a), whether or not read in conjunction with other provisions in Pt VII, neither expressly nor impliedly requires the court to seek the views of a child. It requires the views which have been “expressed” by a child be considered. The term “consider” imports an obligation to give proper, genuine and realistic consideration but this cannot affect or alter the terms of the provision so as to require a child’s views to be ascertained.
I have considered X’s views. Weighing up the consistent evidence of his parents about X’s desire to be “fair”, and noting X’s past diagnoses, his age and maturity (informed by his propensity to exaggerate and the child expert’s evidence of the underlying genesis for X’s expressed views), I have decided to act cautiously in assessing the weight to be given to his views.
It seems to me, as I flagged with the ICL during closing submissions, that the parents have placed some weight on the importance of keeping all three children together. This approach is consistent (in part) with X’s view.
For this reason I have placed some weight on part of X’s expressions, noting that on one hand his desire to move with his siblings between households is consistent with his strong connection to them and his “sense of self” and on the other hand, his desire for equal time may well simply be a reflection on his perception of being “fair” towards two people he loves.
Y is six (6) years of age and is in Year 1 at Suburb G Public School. Y is reported to have said to the child expert that he “lives with his father and his mother and … he misses ‘both of them’”[63] when he is not with them.
[63] FR-99

I formed the impression that in part, an explanation for the boys’ lateness or non-attendance was because she was struggling with the technology that all families have had to grapple with during the various COVID-19 lockdowns. She said that she was committed to working with the teachers and turning this situation around.
Because of her evidence, I asked the family report writer whether it made a difference from a child’s perspective if a late attendance was physical or digital and was told it did not.
To his discredit, the father did not have anything to say in his affidavit about the boys’ complete absence from school between 18 and 22 October 2021 which resulted in orders being made by me on 22 October 2021 for the previous parenting arrangements to re-commence.
Under cross-examination he reluctantly conceded that he must have told the school staff that the reason for Y not being at school was due to his fear that the mother would remove him (see Exhibit “F-11 at page 169 of “MFI-1”). The mother’s counsel properly submitted that this was illogical given the effect of the April 2020 orders and that it showed poor insight on the father’s part. The expert agreed that it was of concern that the father made the decision he did.
In submissions, the mother’s counsel reflected on the numbers recounted at Exhibit “F-11” which showed X having partial absences of 110 and whole absences of 174 days between 13 July 2019 and 13 December 2021, although I have not forgotten that at least five of those whole day absences were due to the father’s inappropriate actions in October 2021.
Similarly counsel reminded me of what Exhibit “F-11” said about Y having 17 partial absences and 43 whole absences during 2021, and again I note that at least five of those days were attributable to the father.
Nonetheless, during these periods, X lived with the mother for the majority of the school days and Y lived with the mother on Mondays and Tuesdays since the April 2020 Orders were made. Other than the week in October 2021, there were no submissions made to the effect that any of the other recorded absences were due to the father. Rather, and in particular for Y, the evidence was that there was a consistent pattern of the absences falling on Mondays or Tuesdays (when Y was in the mother’s care).
In summary then, at times since separation, both parents have failed in their capacity to fulfil the intellectual needs of X and Y.
However, the consistent and enduring pattern of either whole or late attendances of X and Y at school on days when they were under the care of the mother, combined with the mother’s evidence of having struggled to get the children on-time during lockdowns and the reported observations from school staff about the father’s capacity to get Y to school on time and his engagement with the communication tool, causes me to find that the father has the greater capacity to meet the boys’ intellectual needs.
In the absence of any evidence to the contrary, I am satisfied that when the time comes, the father will have the capacity to also meet Z’s intellectual needs.
Insofar as having the capacity to meet the children’s emotional needs, I observed during submissions that X is clearly a vulnerable child. He has no current diagnosis but it appears that the mother recognises that he has some challenging behaviours which at times have caused her to ring the father for help. In cross-examination she accepted that in the past X had a knife and she had rung the father because she was concerned about her and Z’s safety. She was frank in her assessment of her son’s behaviour last year and to her credit on this occasion she once again rang the father for help. The expert agreed that the mother’s actions on both occasions were appropriate.
I was taken to an observation made by DR LL in his report dated 4 March 2019[107] when X’s behaviour in the waiting room was described as “oppositional”. In 2019, X was given a diagnosis including ODD but it seems other than sessions with a psychologist that ended mid-last year X has not engaged with any sufficiently qualified treators since that time. In that context, and noting the mother’s description of her son’s not “uncommon” explosive behaviour, it is of concern that the psychological recommendation for X to continue with short-term counselling in the form of psychological treatment for another six months[108] was not secured for X.
[107] See Exhibit “F-12” page 172 of “MFI-1”
[108] Exhibit “F-7”
In weighing up the capacity of the parents, I am mindful of what the mother said in her affidavit about events of late last year when she said that her son was very strong and when he hits her it hurts and further that his explosive behaviour is not uncommon. Her evidence in cross-examination was to the effect that X’s behaviour had settled somewhat, however I remain unconvinced that she has the capacity to manage his behaviours in the future and that, as she has done in the past, she will call upon the father to help. This will then, as it has in the past, lead to inconsistency and uncertainty for the children.
I saw no evidence of that risk in the father’s household and evidently, neither does the mother because it is to him that she turns to for support.
The capacity of the parents to provide for the needs of Y and Z did not loom large either in the evidence or in submissions.
After weighing up the evidence, I find that the father has a greater capacity to provide for the emotional needs of the children.
Section 60CC (3)(g)
Other than to explore the impact upon Z of being separated from either parent during the school week, none of the parties submitted this was a material consideration. To the extent that Z’s maturity and development are relevant, I note the child expert evidence included that there are many milestones for Z to tackle in the coming years and it was important that her care be consistent.[109]
[109] FR-161
Section 60CC (3)(h)
This factor was not identified by any of the parties as being significant.
Section 60CC (3)(i)
To a degree, the mother and father’s attitude towards the responsibilities of parenthood have already been discussed.
In addition, and taking a broad brush approach, it is evident to me that the parents have at times, if not on a continuing basis, shown a poor attitude towards each other as parents.
By way of one example, the mother appears to continue to harbour concerns about Y and Z being at risk of inappropriate sexual behaviours in the father’s care yet proposes unsupervised time.
The father was cross-examined about events recorded within Exhibit “F-9”[110] about the mother alleging the father had told her that “I have stuck enough shit in his head (she believes he was referring to Y) to make him hate you” and the mother observing that Y was slow to come towards her at the handover when these statement was made. The father denied making those comments.
[110] Exhibit “F-9” at page 108 of “MFI-1”
As the mother’s counsel properly submitted, the father was incapable of saying anything positive about the mother or her role as a parent.
On the basis of the evidence and submission, I find that the parents have demonstrated a poor attitude towards the responsibilities of parenthood, particularly insofar as towards each other.
Nonetheless, there was no persuasive evidence to demonstrate that the parents’ attitudes about each other have so far impinged upon the meaningful relationships they share with the children. The highest the evidence gets is the mother asserting that X takes time to settle after returning from his father’s home, but it is apparent to me that X has acted out against the mother when not spending time with the father in March 2020 as referred to above and that it may be that any adverse behaviours are attributable to his wish to live with his siblings at all times. An issue to which I have already referred.
Section 60CC (3)(j), (k)
There is evidence that historically the mother and father have engaged in family violence and that the mother is protected from Mr EE by a family violence order. I have already made findings to support restraints that arise from these circumstances and for that reason I don’t intend to explore it further.
Section 60CC (3)(l)
I have had regard to the submissions of the parties and to the recommendations of the expert.
At times, both parties have failed to comply with orders of the court. The mother withheld the children in May 2020 (although the mother did ultimately return the children without court intervention) and the father in September/October 2021.
The expert sees the father’s household has offering more consistency than the mother’s. I am reminded of the mother’s history of needing help from the father to manage X and given the lack of any treatment plan, a real risk of future litigation should she be unable to manage X’s difficult behaviours in the future.
The other problem is the evidence about the mother being unable to ensure the boys turn up to school on time, if at all. If that were to continue with all three children in her household, then it is likely that the matter would return to court. I see no evidence of that being of significant concern in the father’s household, in circumstances where it appears his poor actions occurred over the space of one week.
There is a risk that fresh proceedings will be instituted upon the occurrence of some perceived crisis or failure to comply with an Order, but in my view, there is less chance for that to occur if the children primarily live with the father and he holds sole parental responsibility.
Section 60CC (3)(m)
I have carefully considered the evidence and submissions about what was described as the potentially “chaotic” circumstances of the father’s household. I heard that the BB family is due to leave by the end of the year. I heard no evidence of the children being adversely affected by the sharing of their home with the BB family. On that basis I am unable to make any particular finding about the father’s household.
There are various provisions within section 60CC which do not apply to the father because he is not the parent of X. One option is to go through those circumstances, as they apply to the father and X under a consideration of s60CC (3)(m) of the Act. No one addressed me on that particular issue.
Rather than pointing that out at each stage and then having to address some of those considerations here, given that the three children share the same households and treat the mother and the father as their parents, I have referred to both the mother and father in my above considerations irrespective of their biological connection to the children.
CONCLUSION
Pursuant to s.61DA of the Act when asked to make a parenting order, I am required to apply a presumption that it is in a child’s best interests that the parents have equal shared parental responsibility, absent a finding that one of the parents has engaged in abuse of the child or family violence. The father is not the parent of X. Mr B is, but I have already made certain findings about him that would dissuade me from considering him in the allocation of parental responsibility. In support of that concluded view, I will order that Mr B is not a necessary party to the proceedings.
The presumption can also be rebutted if I consider that to apply the presumption would not be in the best interests of the child/ren.
The father and ICL submit that sole parental responsibility should be allocated to whoever the children are living with. The mother says that she be afforded sole parental responsibility for X and that she and the father be afforded equal shared parental responsibility for Y and Z.
I have made findings about each party having engaged in historical family violence.
In addition, and by way of one example only, the child expert reflected on the inability of the parents to come together and find a solution to Z’s skin condition, preferring to follow the different diagnosis (ring work/eczema) that each of them received. She recommended that the parent who has most of the children’s care should have sole parental responsibility.[111] The mother says that despite having some optimism that she and the father could get along, this was now starting to wane.[112]
[111] FR-171
[112] ...-215
The expert recommends that the father be afforded sole parental responsibility.[113]
[113] FR-181
In my view, the conflict between the parents is too pronounced. The evidence and findings rebuts the presumption where it applies (s61DA (2)(b), (4)).
One party should have sole parental responsibility for the children, which should be the party with whom the children primarily lives.
I am satisfied that it is in the best interests of all the children that the presumption be rebutted and that the father be allocated sole responsibility for the children.
Given an order for equal shared parental responsibility cannot be made, s 65DAA of the Act is not enlivened. In any event, none of the parties advocated for an “equal time” residential order.
The children should live primarily with the father. The reasons for that conclusion may be summarised as follows:
(a)the child expert and the parents agree that all three children should be together rather than live in two separate households;
(b)there is risk of physical discipline in the father’s household (as there is in the mother’s) but all parties submitted this could be ameliorated through an appropriate restraint;
(c)there is no evidence of a current risk of family violence in the father’s household and any future risk posed in either household can be ameliorated through appropriate restraints;
(d)despite the parent’s poor attitude towards each other, the children continue to have a meaningful relationship with each of them and each party sought an appropriate restraint to prohibit them from exposure to their parents’ negative attitudes about each other;
(e)the mother tends to neglect the boys’ education, which is an influential consideration when the children need the intellectual development, life skills and social support they derive from regular school attendance; and
(f)in the child expert’s view, which is accepted as being correct for a variety of valid reasons she gave, the children will more likely experience consistency and structure in the father’s home and that this was most important for Z over the next three to five years and would ensure that X begins to attend school every day.
The risk of placing all three children in the mother’s household is that she will become overwhelmed by the added responsibility of ensuring that both boys attend school on time and complete their school tasks, in circumstances where her evidence is that X displays difficult behaviours in her home which in the past have caused disruption to the household and her being hurt. In addition, the child expert was clear to say that given Z’s future milestones it was important that her care be consistent.
Obviously, the reversal of X’s residence with the mother after years of primary residence with her may cause him some emotional disturbance. His younger siblings appear to have adjusted to the change, albeit they have not had the same experience as X. The child expert said all the children were comfortable in the father’s care and X, like his siblings, may just as easily cope with the change in his primary residence. I am heartened in that view by the mother’s acknowledgement of the bond between them given her decision to contact the father at times when X has been highly agitated and aggressive.
Insofar as the children’s future arrangements with the mother, she made no written proposal about the time the children should spend with her if they instead lived with the father. In submissions, counsel subtly appeared to suggest that if the Court was not in favour of the mother’s proposal, then the Court may wish to favour the proposal of the ICL.
The ICL proposed that X live with the mother and spend four consecutive nights with the father each fortnight and half school holidays. She also proposed that Y and Z live with the father and spend four consecutive nights with the mother each fortnight and half school holidays. Various orders were sought in support of the children spending time with each of their parents on special occasions throughout the year.
The father’s position mirrored what the mother had sought should the children live with her and spend time with the father, that is - each alternate weekend from after-school (or 3:00pm) Friday to 6:00pm Sunday. Insofar as school holidays and special occasions were concerned, to a large extent each party’s proposals were consistent.
The child expert said that the children should spend time with the mother on alternate weekends consistent with the father’s proposal. In cross-examination, when exploring the ICL’s proposal, the child expert could see merit (particularly for Z) in the mother spending time with Z from 2:00pm one day in the school week and then picking up the boys from school and spending time with all of them until 6:00pm. She supported the children spending time with each parent for half the school holidays.
On balance, the children should spend time with the mother on alternate weekends and for one afternoon each school week, together with time on special occasions and half the school holidays. The weekend time will commence from after-school Friday and conclude on Sunday afternoons. That will keep the beginning of each school day clear so as to enhance the stability of the children’s routine. Sunday afternoon returns will enable the father to settle the children in sufficient time for the resumption of school on Monday.
Changeovers will occur at the McDonald’s restaurant at Suburb C or at the children’s places of education, both of which are easily reached by the parties.
No provision is made for the children to communicate with the mother. No such orders were sought by any of the parties. Any communication between the children and the mother, over the telephone or via the internet, will be at the father’s discretion.
The mother is restrained from bringing the children into contact with Mr EE and permitting the children to engage in any form of counselling or therapy. These were orders sought by the ICL and supported by the father. For the reasons already given I am satisfied that both orders are in the children’s best interests and are practicable and/or will support the allocation of sole parental responsibility to the father.
The parents are restrained from denigrating each other or permitting the children to remain in the presence of someone doing so.
Given the findings of physical discipline that could fall in the category of physical abuse, the parents are restrained from using physical discipline upon the children. This was a restraint was in effect, mutually sought by all the parties.
In light of both parents’ tendency to take the children to independent agencies to have the children’s allegations or presentations recorded, it is appropriate that the parents be restrained from recording, photographing or taking the children to various agencies unless the children are unwell. This restraint was supported by both the father and the ICL.
The father has sole parental responsibility. The regime of time that the children spend with the mother is premised on the children’s residence being within proximity to the mother. The father and ICL both sought a restraint albeit with the inclusion of the Sydney metropolitan area. Particularly in light of the duration of the mid-week time the children shall spend with the mother during the school terms, it is appropriate that I restrain the mother and the father from relocating the children from the Region E metropolitan areas without the written consent of the other.
The parents remain in high conflict. When reviewing the child expert’s evidence, I was left with the impression that the parents need “strong” orders to provide a clear structure around how they exercise their roles as parents and to avoid the children being exposed to their conflict. The mother and father are restrained from releasing or showing any Court documents to any other person including the children unless otherwise provided for in these orders. They are restrained from posting or leaving information or material relating to the proceedings on social media and have until 4:30pm tomorrow to remove any material that may be presently posted.

I have made findings that both parents have engaged in family violence and in those circumstances it is appropriate to restrain them from allowing the children to be exposed to family violence. To assist them to understand what “family violence” looks like, there are attachments to the orders which include the legislative definition of the term and information from the Court’s website.
The children will be spending time in each household. X and Y are scheduled to see a paediatrician in March 2022 and Z’s day care teacher observed there may be an issue with Z’s hearing[114] causing the child expert to recommend that Z see a speech pathologist. To ensure that all the children’s medical needs are properly addressed:-
(a)the mother and father are to keep other informed of any significant trauma, illness or injury suffered by the children that requires medical treatment or hospitalisation or other treatment that occurs when the children are in their respective care;
(b)the mother and father are to follow any treatment plan developed for the children; and
(c)given the father has sole parental responsibility, he is to give the mother details of the children’s medical treatment including any treatment plan. To be clear, such medical treatment deals with circumstances that would not otherwise fall under the category of the children having experienced a significant trauma, illness or injury which is dealt with separately.
[114] FR-160
To support the parents being able to remain informed about the children’s medical needs they are permitted to provide these Orders to the children’s medical treators, with such treators able to liaise with the mother and father, noting that this does not impinge on the father’s decision-making capacity pursuant to him having sole parental responsibility for the children.
The father sought, and the ICL supported that as far as reasonably practicable the children continue to attend F Medical Practice unless the father informs the mother of any change. To support the children’s continuity of care, an order is made to that effect.
The father sought, and the ICL supported the parents being able to provide a copy of the family report to their respective treating counsellor or psychologist and to the children’s treating counsellors or psychologists and an order is made to support the parents and the children’s psychological needs in the future.
To ensure the mother has access to the children’s education service providers so as to enhance the children’s educational outcomes when they are being cared for by her, the father is to authorise those service providers to send directly to the mother or provide her with access to the children’s school reports (as applicable), the children’s school photographs and any notices sent out. This is particularly important given the mother’s evidence that she has had no access to Z’s day care records. In addition, the parents are at liberty to attend all functions and activities at school (or day care) to which parents are ordinarily invited along with any extra-curricular activities involving the children. to support this process, the parents are permitted to provide a copy of the orders to the children’s school / day care centre.
The child expert recommended that the parents would benefit from attending the ‘Circle of Security’ course and then the ‘Keeping in Contact’ program and orders are made because the Court anticipates that the children will benefit from the parents’ exposure to this expert education.
The parties are required to keep one another informed of their current contact telephone number and email address.
Orders are made to give structure to the manner in which the mother and the father are to communicate with each other.
For the reasons above, I am satisfied that the Orders I have made are in the bests interests of the children.

I certify that the preceding two hundred and forty-nine (249) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Kearney.
Associate:
Dated: 10 February 2022

File number(s):	NCC 1156 of 2020
Judgment of:	JUDGE KEARNEY
Date of judgment:	10 February 2022
Catchwords:	FAMILY LAW – Parenting – where two children of the relationship and one older maternal half-sibling were separated – high conflict parties – impact on children - sole parental responsibility to father – regular structured time with mother - appropriate restraints against denigration and to ameliorate risks of physical discipline or family violence - where educational and medical needs of children must be met – best interests of children
Legislation:	Family Law Act 1975 (Cth) ss 61DA, 60CC, 65C Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 1.31
Cases cited:	Aldridge & Keaton [2009] FamCAFC 229 Rice v Miller (1993) FLC 92-415 Bondelmonte v Bondelmonte [2017] HCA 8 Panera & Slidell [2017] FCCA 1573 Browne v Dunn (1893) 6 R 67
Division:	Division 2 Family Law
Number of paragraphs:	249
Date of last submission/s:	3 February 2022
Date of hearing:	2-3 February 2022
Place:	Newcastle
Counsel for the Applicant:	Mr Murray
Solicitor for the Applicant:	Intercept Law
Counsel for the Respondent:	Mr Scarlett
Solicitor for the Respondent:	Resolve Family Law
Counsel for the Independent Children's Lawyer:	Ms Reid
Solicitor for the Independent Children's Lawyer:	Strive Family Law

NCC 1156 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS HOOD Applicant
AND:	MR WEAVER Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	JUDGE KEARNEY
DATE OF ORDER:	10 FEBRUARY 2021