Jenkins & Jenkins - [2025] FedCFamC1F 313

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jenkins & Jenkins [2025] FedCFamC1F 313

File number(s): SYC 337 of 2021

Judgment of: BEHRENS J

Date of judgment: 16 May 2025

Catchwords: FAMILY LAW – PARENTING – Where parents have an acrimonious relationship and poor communication – Where children have been exposed to parental conflict – Where the Mother was self-represented and had filed no updating material following a mental health hospital admission – Where the Mother's mental health is a significant and ongoing issue – Where the Mother has at times lacked insight into the needs of the children and the impact of her mental health upon the children and her parenting capacity – Where the Mother’s mental health places the children at risk of emotional and psychological harm if they remain in her primary care – Where the Mother indicated a willingness to take steps to address her mental health – Where Father has good parenting capacity and children have been in a shared care arrangement – Where orders made granting the Father sole parental responsibility and sole decision making for major long-term issues – Where orders made for children to live primarily with the Father– Where change of residence to be effected immediately – Where orders made for the children’s extended holiday time with the Mother to commence upon a psychiatrist completing a mental health assessment and report and the completion of parenting courses – Where restraints placed on both parents and certain restraints placed on the Mother in particular

Legislation:
Australian Passports Act 2005 (Cth) ss 6, 11

Family Law Act 1975 (Cth) ss 60CC, 60CG, 65Y

Cases cited: Lainhart & Ellinson (2023) FLC 94-166; (2023) Fam LR 87; [2023] FedCFamC1A 200

Division: Division 1 First Instance

Number of paragraphs: 117

Date of last submission/s: 27 April 2025

Date of hearing: 7-11 April 2025

Place: Sydney

Counsel for the Applicant: Ms Spain

Solicitor for the Applicant: Super & Super Lawyers

Solicitor for the Respondent: Litigant in Person

Solicitor for the Independent Children's Lawyer: Ms Shepherd, NLS Law
ORDERS

SYC 337 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR JENKINS

Applicant

AND:
MS JENKINS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

16 MAY 2025

THE COURT ORDERS THAT:
Prior orders
1.All previous parenting orders are discharged. Order 8 of the orders made 25 November 2024 remains in force.

Parental Responsibility
2.The Father has sole parental responsibility and sole decision making in respect of all major long-term issues for X (“X”) born 2015 and Y (“Y”) born 2019 (collectively referred to as “the children”).
3.The Father will, except in the case of any emergency:
(a)Advise the Mother in writing of his intention to make any major long-term decision in respect of the children or either of them at least seven days prior to giving effect to the decision;
(b)Advise the Mother in writing of the decision as soon as reasonably practicable after the making of the decision.

4.In the case of any emergency the Father is to advise the Mother of any major long-term decision made by him as soon as reasonably practicable.

Live With
5.The children will live with the Father.

Changeover on Friday 16 May 2025
6.Changeover will be effected by the Father collecting the children from B School at the conclusion of the school day on Friday 16 May 2025.
7.The Mother is restrained from attending B School on 16 May 2025.

Spend Time arrangements
8.The children will spend time with the Mother as follows:
(a)During NSW school terms and each alternate week from after school or 3.00 pm on Thursday until the commencement of school or 9.00 am on Monday, commencing on the first Thursday after the making of these orders.
(b)Until the Mother complies with Order 9, during the NSW school holidays in accordance with Order 8(a).
(c)Provided the Mother has complied with Order 9, during the end of term 1, 2 and 3 NSW school holidays, for nights 1-7 in these holidays with the first night being the last day of the school term preceding the holiday and with that time to commence from the conclusion of school or 3.00 pm and conclude at 3.00 pm on the last day of the 7 night period.
(d)Provided the Mother has complied with Order 9, during the end of term 4 holidays as follows:
(i)during the holidays at the end of 2025, 2026 and 2027 for nights 1-10 and 21-30 of these holidays, with time to commence at 3.00 pm on the first day and cease at 3.00 pm on the last day of each period, with the first night being the last day of term 4 and time on that day to commence from the conclusion of school or 3.00 pm.
(ii)during the end of term 4 holidays at the end of 2028 and thereafter, for nights 1-21 of these holidays, with the first night being the last day of term 4 and time on that day to commence from the conclusion of school or 3.00 pm and ending at 3.00 pm on the last day.

Treatment and Parenting Programs for the Mother
9.For the Mother’s time with the children in accordance with Orders 8(c)-(d) to commence, the Mother is to do the following acts and things:
(a)Attend upon a psychiatrist and undertake an assessment of her mental health that provides for the following:
(i)An assessment of the Mother’s mental health, any diagnoses and how these impact on her functioning.
(ii)An assessment of whether the Mother’s mental health is currently managed, what the Mother’s mental health triggers are, the Mother’s understanding of her triggers, and her ability to manage them.
(iii)The Mother’s insight into her mental health issues and capacity to address identified concerns.
(iv)Recommendations regarding any supports, services, therapeutic interventions, medications, and/or psychological/psychiatric treatment for the Mother.

(b)Provide to the psychiatrist:
(i)a copy of the Expert Reports of Dr C dated 1 October 2021, 30 January 2023 and 4 April 2025;
(ii)a copy of these Orders;
(iii)a copy of the Reasons for Judgment of Justice Behrens.

(c)Instruct and authorise the psychiatrist upon whom she attends for the purposes of the assessment to prepare a report addressing the matters in paragraph (a).
(d)Provide a copy of the report to the Father and the Father is restrained from providing a copy of the report or showing it to any person other than legal practitioners and mental health professionals who are advising him.
(e)Enrol in, undertake in a face-to-face setting, and complete a parenting after separation course with D Family Services or a Course with E Family Services and provide the Father with a copy of the certificate of completion.
(f)Complete the parenting course Tuning into Kids or the course Circle of Security.

Resumption of School Term Time
10.Following the commencement of time under Orders 8(c)-(d), the Mother’s time under Order 8(a) will recommence on the first Thursday of each school term

Special Occasions
11.Notwithstanding anything to the contrary in these Orders, the children will spend time with their parents on special occasions as follows:
(a)Unless the children are otherwise spending time with the Mother pursuant to these orders on the Mother’s Day weekend, they will spend time with the Mother on the Mother’s Day weekend in accordance with time with the children pursuant to Order 8(a) above.
(b)Unless the children are otherwise living with the Father pursuant to these orders, on the Father’s Day weekend they will continue to live with the Father on the Father’s Day weekend and will spend time with the Mother on the weekend prior to Father’s Day in accordance with time with the children pursuant to Order 8(a) above.
(c)The children will spend time with each parent on each of the children’s birthdays as agreed in writing and failing agreement, the children spend time with the parent that they are not otherwise living with on that day:
(i)if on a school day, from after school to the commencement of school the following morning (or 10.00 am if not a school day the following morning);
(ii)if not on a school day, then from 2.00 pm on the birthday to at school or 10.00 am on the following morning if it is not a school day.

(d)The children will spend time with the Father on the Father’s birthday as agreed in writing and failing agreement:
(i)if on a school day, from after school to the commencement of school the following morning (or 10.00 am if not a school day the following morning);
(ii)if not on a school day, then from 2.00 pm on the birthday to at school or 10.00 am on the following morning if it is not a school day.

(e)The children will spend time with the Mother on the Mother’s birthday in 2026, 2027 and 2028 as agreed in writing and failing agreement from 2.00 pm on her birthday until 10.00 am on the following morning and by video call from 2029 onwards AND the Court notes from 2029 onwards the children are to be with the Father for the second half of each term 4 holiday and will not spend time other than by video call with the Mother on her birthday if it coincides with that time.
(f)When Easter falls during the school term, the children will spend time with each parent for Easter as agreed in writing and failing agreement from after school or 3.00 pm if not a school day the day before Good Friday to 4.00 pm Easter Monday with the Mother in odd-numbered years and the Father in even- numbered years.
(g)When Easter and/or the first night of the Father’s religious holiday falls during the school holiday period, the school holiday order will take precedence and apply.
(h)When Easter and the first night of the Father’s religious holiday fall during the school term and clash, in odd-numbered years Easter will prevail and Order 11(f) will apply and in even numbered years the first night of the Father’s religious holiday will prevail and Order 11(k) will apply.
(i)If a child’s birthday and Father’s Day clash, the children will spend time with the Mother from 4.00 pm the day prior to Father’s Day and until 12.00 pm on Father’s Day.
(j)The children will spend time with each parent for Christmas in December 2025, 2026 and 2027 and any year after that if the Mother has not complied with Order 9 as agreed in writing and failing agreement:
(i)From 3.00 pm on 23 December to 3.00 pm Christmas Day with the mother in odd-numbered years and the Father in even-numbered years; and
(ii)From 3.00 pm Christmas Day to 3.00 pm am 27 December with the mother in even-numbered years and the Father in odd-numbered years.
(iii)From 2028 with the Father by video call.

AND the Court notes that from December 2028 subject to the Mother’s compliance with Order 9 the children are to spend time with her for the first 21 nights of each term 4 holiday and the children will not have time other than by video call with the Father at Christmas.
(k)When first night of the Father’s religious holiday falls during the school term, the children will spend time with the Father for the religious holiday each year from after school (or from 3.00 pm if a not on a school day) on the first night of the religious holiday until the commencement of school (or 10.00 am if not a school day) the following morning.
(l)The children will spend time with the Father for a religious celebration (New Year) each year from after school (or from 3.00 pm if a not on a school day) on the first night of the religious celebration until the commencement of school (or 10.00 am if not a school day) the following morning.
(m)The children will spend time with the father for a religious holy day each year from after school (or from 3.00 pm if a not on a school day) on the eve of the religious holy day until the commencement of school (or 10.00 am if not a school day) the morning after the religious holy day concludes.

Changeover
12.Unless otherwise agreed by the parents in writing or otherwise specified in these Orders changeover will take place:
(a)At the children’s schools on school days at the commencement or conclusion of the children’s school day (whichever is applicable).
(b)On school holidays, non-school days, special occasions or where the children do not attend school with the parent who has care of the children returning the children to the other parent at McDonalds Suburb F (G Street, Suburb H NSW) at the conclusion of the children’s time with them unless otherwise mutually agreed in writing;

13.Both parents are at liberty to have a person other than themselves collect the children at changeover provided that any such person is known to the children and the parent having someone other than themselves attend the particular changeover informs the other parent prior to the changeover, of the name and contact phone number of the person who will attend at changeover on that parent’s behalf.

Communication with children
14.Unless otherwise agreed in writing, both parents are at liberty to contact the children by video call on either Google App or WhatsApp (or by other electronic means as nominated by the Father in writing if those apps are no longer available) when they are in the other parent’s care, on a Wednesday and Friday with the parent with whom they are spending time with to initiate and facilitate a video call between 6.30 pm and 7.00 pm.
15.For the purposes of the children’s communication their parents, both parents will ensure they respect the children’s privacy when speaking with the other parent and not attempt to listen to, record or otherwise interfere with the children’s conversations.
16.Both parents will otherwise facilitate the children contacting the other parent at any reasonable time should the children request it.

Communication between parents
17.Save for in emergency situations (when the parents will communicate via phone, WhatsApp and text message) the parents will communicate with one another regarding the children via the Our Family Wizard Parenting App or APP Close, whichever is nominated by the Father.
18.The Father will set up and pay for the Our Family Wizard Parenting App or APP Close for both parents if there is a fee associated.

Change of Contact Details
19.Both parents will keep each other informed of their respective telephone numbers and notify each other immediately of any change to those contact details.
20.Both parents will keep the other informed of their current residential address and in the event that one parent intends to move, provide the other parent with 28 days’ prior notice of their change of address.

Restraints
21.Both parents are restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating each other or any other member of the household in presence or hearing of the children, or from permitting any other person to do so;
(b)discussing any issues in relation to any court proceedings to, with or in presence or hearing of the children and/or showing the children any documents relating to the family law proceedings;
(c)physically disciplining or threatening physical discipline of any of the children and exposing the children to any violence;
(d)attending an extra-curricular activity for the children or one of them that occurs in the children’s time with the other parent without the written consent of that other parent.

22.The Mother is restrained from:
(a)except as otherwise provided by these orders or with written consent from the Father, removing the children from the Father’s care, school or extra-curricular activity;
(b)enrolling the children in activities that require the children’s repeated attendance after school or on weekends without written consent of the Father;
(c)taking the children to any psychologist or counsellor without the written consent of the Father;
(d)unless the Father gives his written consent prior to any medical/health appointment, the Mother is restrained from attending medical/health appointments at the same time as, immediately before, or immediately after the children’s appointments, save for in an emergency or for an appointment with a general practitioner during the children’s time with her.

Education
23.The Father will ensure that the children will each attend B School until their completion of year 6 unless otherwise agreed in writing by the parents.
24.Both parents are entitled to attend all school events, school concerts, school sporting events, speech days, school functions, separate parent teacher interviews that allow for parental attendance or participation involving the children, whether or not these events occur during the time the children are with the parent pursuant to these orders.
25.Both parents are permitted to liaise directly with the children’s schools to obtain any information about the children’s progress at school, or information about events, or to arrange for the sending, to each of the parents, newsletters, school photos and academic report cards, and any other correspondence provided to parents directly from the school, and these Orders will be sufficient authority to authorise the release of such information to the parents.

Extra-Curricular Activities
26.The Father is to advise the Mother of any extra-curricular activities that the children are enrolled in through the parenting app.
27.The Father is to ensure that neither of the children is enrolled in more than one extra-curricular activity which occurs during the time when the children are with the Mother unless otherwise agreed.
28.The Mother will take all reasonable steps to ensure the child/children attend any extra- curricular activity in which the child/children are enrolled when the child/children are in her care during the school terms, including by providing the Father with the opportunity to take the child/children if necessary.

Medical Emergency
29.In the event of a child being admitted to hospital for emergency treatment, receiving treatment by an ambulance crew, or being taken to a hospital for urgent treatment following any accident, injury or sudden illness, the parent in whose care the child is at the time will as soon as practicable, by the best means available, notify the other parent of the following details:
(a)the name and contact details of the hospital and whether there was an admission;
(b)any treatment and/or medication prescribed for or provided to the child/children and the reasons for the same; and
(c)the prescribing or provision of such medication and/or treatment.

30.These orders act as an authority for any treating medical practitioner/health care provider associated with the children to release and provide both parents with information about the children.
31.The authority provided in Order 30 does not require any mental health professional who is treating the child to release and provide both parents with information about the children if that professional is of the view that it is not appropriate to do so.

Religion
32.The Father is at liberty to expose the children to teachings of his faith and the Mother is at liberty to expose the children to teachings of the Christian faith.
33.Notwithstanding any order to the contrary, on the weekend that each of the children are to have their religious ceremony, the children’s time with the Mother is suspended to the extent necessary to enable the children to spend time with the Father from after school or 3.00 pm on the Wednesday preceding the religious ceremony to the commencement of school or 10.00 am on the Monday following the religious ceremony.

Health
34.Except in the case of an emergency, the parents will ensure that when the children or either of them need to attend upon a general practitioner, they attend upon Dr J or if he is unavailable another general practitioner at K Health Service or other medical practice nominated by the Father in writing to the Mother.
35.Except in the case of an emergency, when the children or either of them need to attend upon a dentist, they shall attend upon such dental practice nominated by the Father in writing to the Mother.
36.Both parents will ensure that the child/ren is/are administered prescribed medication according to the script/label and will follow the directions of the relevant medical practitioner.

Passports
37.Pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) the children X (“X”) born 2015 and Y (“Y”) born in 2019 be permitted to have an Australian passport or a travel-related document (herein “an Australian travel document” as defined by s 6 of the Australian Passports Act 2005 (Cth)) and be permitted to travel internationally.
38.The Father is entitled to apply for an Australian travel document without the written consent of the Mother.
39.Any requirement for the signature or consent of the Mother is dispensed with and the Father is at liberty to do all acts and sign all documents necessary and have such authority as is necessary, pursuant to s 11(1)(b) of the Australian Passports Act 2005 (Cth) to procure a valid Australian travel document for the children without the signature or consent of the Mother, including that the Father is authorised to sign all documents on behalf of the Mother.
40.The children’s Australian travel documents will be held by the Father unless the children are travelling with the Mother pursuant to these Orders.

Overseas Travel
41.Pursuant to s 65Y of the Family Law Act 1975 (Cth), both parents are permitted to travel outside the Commonwealth of Australia with the children.
42.Both parents be permitted to travel overseas for a holiday with the children when the children are spending time with them pursuant to these orders on the following terms and conditions:
(a)The travelling parent will provide not less than 28 days’ written notice to the non-travelling parent as to the travel;
(b)The Mother must have complied with Order 9 prior to travelling overseas with the children;
(c)No fewer than 14 days prior to the travel, the travelling parent will provide to the non-travelling parent a travel itinerary including the address where the children will be staying for the duration of the holiday, the flight number(s) and the airline(s) the children will be travelling with, a copy of the children’s travel insurance, copies of the children’s return airfare and emergency contact numbers;
(d)The children have had all immunisations as recommended by the general practitioner prior to such travel;
(e)The travel take place provided that there are no Australian government directives/restrictions preventing or advising against the travel;
(f)The travelling parent shall ensure the children communicate with the non- travelling parent on Monday and Wednesday by video call.

43.In the event the Mother is the travelling parent, upon provision of the information required in the above order, the Father shall release the children’s passports to the Mother not less than seven days prior to the travel and the Mother shall return the passports to the Father within 48 hours of her return.

Provision of Documents
44.Leave is granted to the parents and their legal representatives to provide a copy of these orders to:
(a)the children’s schools;
(b)the children’s before/after school care providers;
(c)the children’s treating health practitioners.

45.Leave is granted to the Mother to provide a copy of the Expert Reports of Dr C dated 1 October 2021, 30 January 2023 and 4 April 2025 and these Reasons to:
(a)Any mental health professional who is treating her;
(b)The Mother’s general practitioner.

Costs
46.Subject to any successful application which either may make to Legal Aid New South Wales based on financial hardship, and in such timeframe as they are able to negotiate with Legal Aid New South Wales, the parents will pay one half each of the costs of the Independent Children’s Lawyer.
47.The parents are to pay the costs of Dr C’s updating report and the costs of him attending for cross-examination in equal shares.

THE COURT NOTES THAT:
A.The Father intends to continue to cause X to attend upon Ms N.

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

These are parenting proceedings. They concern X, aged nine, and Y, aged five. X’s and Y’s parents are Mr Jenkins and Ms Jenkins. They separated in 2020 when Y was very young. Mr Jenkins commenced parenting and property proceedings on 20 January 2021. The property proceedings settled over the three days allocated for the previous final hearing in October 2024. The parenting proceedings were not reached at that time, and were heard by me over five days.
X and Y currently live with Ms Jenkins. X is spending time with Mr Jenkins six nights a fortnight and Y four nights a fortnight (in two two-night blocks while X is also spending time with Mr Jenkins). Their parents agree that the children being in different spend time arrangements is not in their best interests and both seek a “block time” arrangement.
Until February of this year, Mr Jenkins was seeking that the children’s time with him progress to equal time and that the parents share responsibility for making major long-term decisions for the children. Ms Jenkins was seeking that she have sole parental responsibility for the children, and that they live primarily with her and spend time with Mr Jenkins four nights a fortnight and half of the school holidays.
On 12 February 2025, Mr Jenkins filed a Further Amended Initiating Application seeking that he have sole responsibility for major long-term decision making in respect of the children, and that the children live primarily with him and spend time with Ms Jenkins four nights a fortnight and half the school holidays. This was in circumstances where, in the late morning of a date in late 2024, X called “000” for his mother, who was found by NSW Ambulance staff lying in bed, alert but not oriented and having a panic attack. The children told ambulance officers that their mother had been in bed since the previous evening and had not provided them with breakfast. The children were collected by the maternal grandmother, who contacted Mr Jenkins. Mr Jenkins took the children into his care. Ms Jenkins was admitted to L Hospital, where she remained for some days. On her discharge, she did not feel able to immediately resume the care of the children, and they remained in the care of Mr Jenkins until 7 November 2024, when the usual care arrangements resumed.
X told his long-term psychologist Ms N that when he called the ambulance for Ms Jenkins, he felt worried and thought his mum was dead, and that he worried that if Y had been there without him, Ms Jenkins might have died because Y didn’t know how to call “000”.
Following the events of late 2024, X has written concerning notes indicative of suicidal ideation and has told Ms N of his anxiety, distress and sadness in relation to that night, and in relation to his parents’ relationship. In early March of this year, X vomited from anxiety because his parents were together at a medical appointment for him.
THE EVIDENCE AND PROCEDURAL MATTERS
The single expert in this matter is Dr C. The single expert first saw the family in July 2021 and has prepared three reports in this matter, the most recent dated 4 April 2025 (“Dr C’s third report”). He therefore has seen the children and the parents very recently, and has also been able to take a longitudinal view of the matter. He was an impressive witness, and I have confidence in his evidence. He expressed a very clear recommendation that the children should live primarily with Mr Jenkins and that he should have sole parental decision making responsibility for them, and that the change of residence should occur within weeks. Ms Jenkins did not participate in some aspects of the assessment for Dr C’s third report and had not given her consent for Dr C to speak with her psychologist, the children’s school or X’s psychologist. She was, however, interviewed and observed with the children.
Ms Jenkins represented herself at the final hearing. Directions had been made for her to file updating affidavit material, but she had not done so. She relied on her affidavit filed 3 September 2024, which I received into evidence without its annexures/exhibits and a Financial Statement filed 13 February 2025 (the costs of the expert are an issue in the proceedings).
Mr Jenkins relied on his trial affidavit filed 3 September 2024 and his updating affidavit filed 21 February 2025, which I received into evidence without their annexures/exhibits.
Neither parent called any additional witness. Both parents were cross examined – Mr Jenkins first by the Independent Children’s Lawyer (“ICL”) and then by Ms Jenkins. Ms Jenkins was cross-examined by counsel for Mr Jenkins and then the ICL. Both parents and the ICL tendered documents.
The children’s interests were represented by an experienced ICL. She had only filed a Notice of Address for Service on 31 March 2025, but was nonetheless able to meet with the children on 5 April 2025 and participate very helpfully in the final hearing. At the conclusion of Dr C’s evidence, the ICL indicated that she would be seeking orders broadly in line with the orders sought by Mr Jenkins, with the addition of orders in relation to the children’s time with Ms Jenkins being conditional on her taking certain steps. On the final day of the hearing, I was provided with a Minute of Orders sought by both the ICL and Mr Jenkins.
The orders which Ms Jenkins sought were at times unclear. On the final day of the proceedings, she provided an amended Minute of Orders Sought, being a Third Amended Response to Initiating Application. Subsequently, along with her written submissions, she provided a Fourth Amended Response to Initiating Application (which was unfiled) (“the Fourth Amended Response”). That Fourth Amended Response is annexed to these Reasons as Annexure A. It contained some further minor amendments to the orders sought, some additional orders in relation to the children’s medical care, and some additional orders in relation to costs. That Fourth Amended Response also sought some further property orders, including that she retain a property which is to be sold pursuant to final property consent orders entered into in October 2024. There is no application on foot which would allow me to consider making proposed orders 61-63 or 65-68, and I have not done so. I have otherwise considered the orders sought by Ms Jenkins in the Fourth Amended Response.
Counsel for Mr Jenkins and the ICL made oral submissions at the conclusion of the final hearing. Ms Jenkins made brief oral submissions which focused on orders for the children to spend time with her for her birthday (which falls at a time likely to “interrupt” the children’s holiday time with Mr Jenkins). I gave her leave to file written submissions to supplement those oral submissions. On 25 April 2025, Ms Jenkins emailed my Chambers with her written submissions, which, rather than addressing (by reference to the evidence) why the orders she sought were in the children’s best interests (as I had explained to her she needed to do), instead addressed in detail the substance and drafting of the final orders sought by Mr Jenkins and the ICL and sought some alternate drafting. She made no submission of any substance as to why the children should remain living primarily with her. Submissions in reply were filed by Mr Jenkins, and Ms Jenkins then emailed further submissions in reply to my Associate, notwithstanding no order had been made for those to be filed. I have, nonetheless, had regard to both sets of Ms Jenkins’ written submissions, subject to what follows.
Other difficulties with Ms Jenkins’ written submissions include:
(1)She sought to rely on further documents, notwithstanding that, as I had explained to her on the final day of the hearing, the evidence in the matter was closed. There was no application to reopen. I have not had regard to those documents.
(2)She referred me to an affidavit which was not in evidence, and to a Notice of Risk filed some years ago (which does not constitute evidence). I have not had regard to those documents.
(3)She made submissions about which there was no evidence – including, for example, about arrangements at Christmas 2024 and Easter 2025. I have not had regard to those submissions.
(4)She made submissions which were not grounded in the evidence – for example, by referring to “an abusive ex-husband whose abuse has increased in its aggressiveness over the last five years” and making the submission that “[Mr Jenkins] has continually demonstrated a need to show control, power, and dominance at all times”.
I have considered Ms Jenkins’ submissions so far as they refer to evidence which was before me when the evidence closed on the final day of the hearing. In my Reasons, I have not addressed each of the matters of critique and proposed redrafting which Ms Jenkins raises in relation to the orders sought by the ICL and Mr Jenkins (many of which relate to relatively minor issues including timing and, for example, a different McDonalds for changeover), but I have addressed the more significant matters which might impact on the children’s best interests.
ISSUES
The overwhelming issue in this matter is the impact, if any, of Ms Jenkins’ mental health on the children’s safety, on her parental capacity and on her ability to meet the children’s needs. An additional set of issues relates to the parlous state of the parents’ relationship, their complete inability to communicate, and the impact of this state of affairs on the children and upon the children – X in particular.
For the reasons set out below, I make orders, with some minor amendments, in accordance with the joint minute of the ICL and Mr Jenkins, save that I order that the children’s time with Ms Jenkins during school terms (and during the school holidays until Ms Jenkins complies with various steps) be for four nights a fortnight (Thursday to Monday), rather than three.
MS JENKINS' MENTAL HEALTH
Ms Jenkins gave very limited evidence about her mental health and, in particular, had not filed an updating affidavit in relation to her admission to hospital in late 2024, and the aftermath of that admission. The evidence which related to Ms Jenkins’ mental health was therefore primarily contained in documents produced under subpoena which were tendered, the reports and oral evidence of Dr C, and the evidence Ms Jenkins gave under cross-examination.
Tendered documents
Ms Jenkins’ hospital admission in late 2024 in relation to her mental health was not her first such admission. She had a previous emergency department admission for mental health reasons in late 2022. On that occasion, her counsellor called an ambulance when Ms Jenkins “slumped to the floor” during a session. She was taken to L Hospital. Ms Jenkins was discharged the following day. Later that same month, Ms Jenkins self-presented to an Emergency Department after seeking assistance from services due to “emotional collapse and suicidal ideation”, but was not admitted. The documents record that there were “not sufficient grounds to detain her” on this occasion.
Ms Jenkins engaged in follow up appointments with M Health Service during late 2022, including psychiatry reviews. Documents produced show that she was prescribed Mirtazapine, would follow up with her psychologist and potentially with a psychiatrist. It was noted that she “does not have a GP and needs to rectify this. Advised she can access MHCP through a GP” and “[a]s such unable to transfer care to GP.” Documents in relation to these follow up appointments include references to persistent depressive disorder, Cluster B personality structure/style, chronically low mood and multiple/ongoing psychosocial stressors.
Documents produced by the Ambulance Service of NSW recorded two “000” calls in late 2024. The first call was at 11.42 am was by Ms Jenkins and the records provide “[s]tates she cant (sic) function & has thoughts to harm herself – FM not communicating on the phone – stated she is home alone – nil weapons or firearms” and then it is noted that at 11.49 am “INFT has terminated the call – she has got her breathing under control but still crying – there is a very young child at the location with the INFT – INFT wouldnt (sic) confirm childs (sic) name/age”. Subsequently, [X] called “000”. The ambulance officers record:
NSWPF on scene, greeted by two kids, pt lying … laterally in bed, alert but not orientated, flushed, tachypnoeic, diaphorectic, panic attack … Pts has 2 young kids … who state pt has been in bed since last night, state pt has not gotten up this morning, kids have been up by themselves, only eaten some olives & oreos.
Ms Jenkins was then transported to hospital.
Documents produced in relation to Ms Jenkins’ admission on this occasion record her being “selectively/variably mute”, not engaging and expressing feelings of helplessness. Reference is made to “[b]ackground of MDD and cluster B traits”. She is also recorded as saying she is “[n]ot sure she can cope at home” and “[f]eels she cannot cope with looking after her children.” She is recorded as feeling “[h]opeless and helpless”, “[u]nable to think of the future” and “[f]eels guilty and that she is a burden on others”. She is recorded as having “[f]leeting suicidal ideas”, “[d]oes not want to die, but would like her anguish to end” and “[n]o plan or intent.”
Dr C’s reports
In his third report, Dr C opined in relation to Ms Jenkins’ mental health as follows (emphasis in original):
(1)Whilst Ms Jenkins was noted as “largely succeeding in interacting with the children”, this was immediately followed by the observation that she had a “listless/lethargic air to her affect, and at times looked ‘serenely’ at the children yet appeared remote at the same time”.
(2)When observed with the children, Ms Jenkins “seemed quite passive at times” and did not offer many comments in relation to the children’s “somewhat un-contained behaviour”.
(3)Whilst Ms Jenkins was engaging with the children, she was observed to be doing so in a “detached” way and, other than on one occasion to prevent Y from stepping on a box containing a board game, “barely moved from the floor”.
(4)During her interview with Dr C for the purpose of the third report, Ms Jenkins “generally came across as hostile and provided almost entirely monosyllabic [answers] unless asked to elaborate on her responses, which she almost seemed loathe to do”. She was also noted to exude an “extraordinarily flat” affect and responsivity which was inappropriate to the interview situation.
(5)When observed with the children she “exhibited flat affect” and “seemed to struggle to engage with” with children at times;
(6)The “listlessness” observed by Dr C “is likely to be something with which she struggles on a day-to-day basis”;
(7)When her “psychological state gets overwhelming, behaviour such as that reported during her [L Hospital] hospital admission in late 2024 … whereby she was non-responsive for several days, and her lack of responsivity to paramedic staff … is observed”;
(8)Ms Jenkins told Dr C that the once-daily 20 milligram dose of Lexapro medication, which had been prescribed by L Hospital staff in late 2024, had been helpful, and when pressed as to why, had advised that “it had led to a change in her mood”;
(9)In relation to her attendance upon her psychologist Ms O, Ms Jenkins first stated that, at that time, it was “’difficult to quantify’” what was helpful, and then when pressed, elaborated that she had found it helpful to identify “’what I’m going through and the seriousness of it’” – presumably referring to the ongoing family law proceedings;
(10)With respect to the family law proceedings, Ms Jenkins was observed to paint a picture “all about the impact of the proceedings on her” and had “little insight … into the impact of her mental health on the children”, including not being able to offer any thoughts about the children’s experience of calling (in X’s case) or witnessing the calling of (in Y’s case) an ambulance for their mother. Dr C also expressed concern in relation to “a level of denial” by Ms Jenkins in relation to her mental health.
(11)Dr C expressed concerns that, other than some self-reported benefits from her prescription medication Lexapro, Ms Jenkins’ mental health “appears to have remained largely treatment-resistant”. Dr C opined that factors including long-term unemployment, which is linked with poor mental health outcomes, “are likely to exacerbate the problem”.

Dr C noted that Ms Jenkins did not complete a Personality Assessment Inventory (“PAI”) as part of the interview process, and opined that such data could have provided further insight into the state of Ms Jenkins’ mental health. This is particularly so where medical reports had raised the possibility that Ms Jenkins was suffering from depression, “’severe depression’” and had been exhibiting “Cluster B personality traits”, but Dr C had noted the existence of behaviours, such as Ms Jenkins choosing not to respond to paramedics in late 2024 and an occasion in 2022 where Ms Jenkins “’slid to the floor’” following an interview by L Hospital staff, which were suggestive of “a behavioural under-pinning as opposed to depression or a panic attack”.
Notes produced by Ms N showed that X identified that Ms Jenkins “gets angry”, “gets sad”, “can’t get out of bed”, “has good times” and gets “frustrated”.
Dr C opined as to the impact of Ms Jenkins’ mental health on the children as follows:
(1)“[X] would begin to assume a sense of responsibility for the mother’s mental well-being”;
(2)X was put in an “extraordinary situation” in having to call “000” for Ms Jenkins in late 2024. Having listened to the recording, Dr C opined that X’s behaviour showed evidence of “parentification” in that X remained calm and referred to looking after his little brother as if he was used to doing these things;
(3)“[X] has become very conscious of the mother’s state of mind at all times, and such vigilance, over time, can create a degree of pressure that can derail development resulting in setbacks in achievements already made”;
(4)In his reticence at interview, X may be “intentionally imitating some of the behaviour displayed by [Ms Jenkins]”, raising “questions as to what behaviour is being modelled to him by [Ms Jenkins] when in her care”;
(5)“[X’s] attachment style to Ms Jenkins appears anxious-ambivalent in nature” and “[c]hildren with non-secure attachment styles to their parents are especially aware of the parental state of mind, and [X’s] emotional state risks becoming quite entangled with that of the mother”;
(6)Dr C noted that the behaviour exhibited by Ms Jenkins, as witnessed by X when calling an ambulance for his mother, “appears to have left quite an impression on him to the degree he engages in something similar himself”;
(7)In the context of discussing the importance of Ms Jenkins speaking to the children about the events of late 2024 and their experiences during that period, Dr C noted that it was not surprising that the children had not themselves spoken to Ms Jenkins about that time “for fear of what they, especially [X], have created in their own minds – namely that Ms Jenkins could not keep going even for the sake of the children”;
(8)Having regard to the behaviour displayed by Ms Jenkins in the presence of health professionals, including not responding to paramedics and sliding “’to the floor’” at the conclusion of an interview with L Hospital staff in 2022, Dr C speculated that in the absence of further assessment of Ms Jenkins’ mental health, there remains a possibility that X and Y may be exposed to “unhelpful, maladaptive behaviours” whilst in Ms Jenkins’ care.
Under cross-examination by the ICL, Dr C gave the following further evidence:
(1)Ms Jenkins was unable to understand the impact of her mental health on X and that “creates a sense that their needs are secondary if considered at all”. The impacts of such behaviour would include reductions in the children’s self-confidence, ability to seek help, trust and could “derail” their development.
(2)While X was unlikely to act on suicidal thoughts at his age, the risk would become greater as he reaches adolescence when impulses are harder to control.
(3)During middle childhood, where X is now, is important for children to master a variety of skills that prepare them for adolescence.
(4)X is “acutely aware” of his mother’s depressive mood. It is in the children’s best interests that they do not have to navigate their mother’s mental health.
(5)It is important that X and Y have quality, meaningful time with their mother, even if it is not as much time as with their father.
(6)That Ms Jenkins’ current work with her psychologist has very limited value other than providing her with a place to express her frustration.
(7)He recommends that the children live primarily with the father.
(8)His concerns for Y in the care of the mother are similar to those for X – namely, the risks that Y’s emotional and psychological needs will not be so easily recognised and responded to by Ms Jenkins, and that she will struggle with sound judgment and responding to challenging behaviour appropriately rather than by “over-responding” or being harsh.
(9)He expressed concern that X’s emotional state is at risk of becoming “entangled” with that of Ms Jenkins.
(10)The incident where X called the ambulance for his mother was traumatic for him. And, given all the issues X is facing, he is still experiencing trauma.
(11)Emotional harm is often the most pernicious form of harm for children and these children are at risk of experiencing emotional harm.
Ms Jenkins’ evidence under cross-examination
Ms Jenkins was cross-examined about why she had not filed an updating affidavit regarding the events that have occurred since her last affidavit was filed in September 2024. She gave evidence that the process of drafting an affidavit was “extremely traumatic”, that she was unable to do it, and every time she sat down to do it she “had a physical reaction to reading the material, responding to it, having to relive the events that have happened”. She gave evidence that when she asked X to call “000”, she had tried to call an ambulance and emergency services had hung up on her. She gave evidence that she “felt like I couldn’t function”, that she felt “drained of everything”, “catatonic”, had “less than nothing left”, and did not speak to ambulance staff because she was “beyond sheer exhaustion”.
Various aspects of the tendered documents referred to above were put to her and she did not challenge their accuracy.
She gave evidence that she had been on Lexapro during the period 2014-2021, but had come off it at one stage, and had been taking a higher dose at another stage. In answer to questions from the ICL, she gave evidence that she had unilaterally stopped taking Lexapro prior to her admission to hospital in late 2024, and that it had been recommended by a doctor at the hospital that she recommence taking it. She gave evidence that she had done so, and that she had recently renewed her script. Her current dose of Lexapro is 20 milligrams a day, taken in the morning. She does not experience any side effects. She gave evidence that she is “fully aware” that she should not come off Lexapro in the near future.
She gave evidence that she has a current diagnosis of depression and believes that she has depression, but that she has not had a specific conversation with her psychologist Ms O about that diagnosis and does not have a treatment plan. She said that she mostly uses the appointments with her psychologist to “download” what has been happening. According to notes taken by Ms O regarding a psychology session in August 2024, Ms Jenkins had told her that a psychiatrist had spoken to her about possible borderline personality disorder. A record of the appointment includes the entry “[d]id see a psychiatrist who reportedly thought she may have borderline personality disorder, not spent much time with them to assess. Doesn’t believe so.” During cross-examination by the ICL, Ms Jenkins did not recall having discussed borderline personality disorder with Ms O, and instead gave evidence that she “didn’t have the psychiatrist tell me that, I only read about it”. Ms Jenkins went on to tell the Court that she does not think she has traits of borderline personality disorder or borderline personality disorder at all, and that this condition had not been raised with her by Ms O or other experts she has consulted, including a psychiatrist.
Ms Jenkins was asked by the ICL what her “triggers” for depression were and she gave evidence that they were dealing with Mr Jenkins “about anything” and “circumstances” with her mother and her sister.
In interviews with Dr C, she had been unable to identify the impact on the children of the late 2024 incident other than stating that she believed the children had been “worried”, and then proceeding to observe that since that time, she “had not seen significant change in ‘my children’s behaviour’”. During cross-examination, she could acknowledge there was an impact on the children from seeing her in that state, and on X from calling the ambulance, and that he would have been very scared. She was able to accept that the children would know when she was happy and when she was sad, but showed no insight into the extent to which the children would be attuned to her emotions.
Ms Jenkins gave evidence that she had found little assistance from professionals over the years. She had “gelled with” a previous psychologist who had died. She did not find her current psychologist helpful, other than for the purpose of downloading in relation to the father and the family law proceedings. She agreed that she had not had a conversation with her psychologist about her diagnosis of depression, did not have a treatment plan, and has not discussed her “triggers” with her psychologist.
Ms Jenkins was observed in cross-examination at times to have difficulty placing herself in the position of others. She was unable for some time to answer a question about whether Mr Jenkins would have been worried about the children when they entered her care following her hospital admission, and ultimately said she “couldn’t tell you”. She did not accept that it would have alleviated some of Mr Jenkins’ concerns if he had known what assistance she was receiving after her release from hospital and after the children’s return to her care. She was unable to clearly answer a question about whether the children would miss Mr Jenkins desperately if the 12/2 arrangement she had just proposed was made.
In response to questions from counsel for Mr Jenkins, she gave evidence that she had concerns about her mental health after the conclusion of the proceedings – although she sought to explain this by reference to her anticipation of what she described as Mr Jenkins’ “deliberate antagonistic behaviour” and her concerns about “continuing to experience the trauma”.
In answer to questions from counsel for Mr Jenkins, she acknowledged that she does not have a regular general practitioner – although she had recently seen a new general practitioner for a Lexapro script, and she indicated her intention that that general practitioner be her regular one.
In answer to questions from the ICL, she gave evidence that she is now feeling better than she was around the time of her hospital admission in late 2024 and its aftermath.
To her credit, by the conclusion of the final hearing Ms Jenkins acknowledged that she needed further and better help with her mental health, and needed to participate in parenting courses.
Mr Jenkins’ mental health
In her updating interviews with Dr C, Ms Jenkins had identified concerns that neither she nor Dr C had documents relating to Mr Jenkins’ mental health. She made submissions that there was an unfairness in the process, in that the Court does not have before it documents relating to Mr Jenkins’ mental health, as it does for her.
Mr Jenkins gave evidence that he started seeing a psychologist late in 2024 because he was finding it hard to sleep, had a lot on his mind and had a bit of anxiety. He said that he thought it would be good for the children if he was “in good shape”. He conceded that he had not disclosed this to Ms Jenkins. He did disclose his attendance upon a psychologist to Dr C, who formed the view that he did not need to speak with Mr Jenkins’ psychologist. Notably, Mr Jenkins had given his consent to Dr C to speak to his treating psychologist. Ms Jenkins had refused to give such authority. She said that she so refused as a matter of “fairness”.
Ms Jenkins’ implication that Mr Jenkins’ mental health required investigation along with hers showed significant lack of insight into the history of her mental health, its manifestations, and the impact of such manifestations upon her parenting and on the children.
THE PARENTS’ RELATIONSHIP
The parents’ main trial affidavits, prepared at a time when Mr Jenkins was seeking equal time and shared parental responsibility and Ms Jenkins was seeking primary care and sole parental responsibility, were replete with evidence about the history of parenting since separation, and the difficulties between them. The parents now agree that they cannot share parental responsibility and that a shared care arrangement is not in the children’s best interests. The main issue has become which parent is best placed to provide primary care for the children and to have sole parental responsibility – having regard, in particular, to Ms Jenkins’ mental health and its implications for the children’s safety and her parenting capacity. In those circumstances, it is not necessary for me to make findings about the detail of what occurred or which parent is most “at fault” on each (or even most) occasions.
In his third report, Dr C described the “level of animosity between the parents” as “striking” and opined that it “appears no less marked than when last assessed”.
The parents have had (and continue to have) disputes or poor communication about numerous matters in relation to the children’s care, welfare and development, including:
(1)X’s food intolerances and his diet;
(2)X’s nighttime enuresis;
(3)Y’s eyesight problems;
(4)Y’s dental work;
(5)Whether X and Y should have a religious ceremony;
(6)Which schools the children should attend;
(7)Which extra-curricular activities the children should participate in, and when;
(8)Which kind of school-based religious education the children should participate in;
(9)Birthday parties for X.
Ms Jenkins has at times significantly delayed making or executing decisions which have needed to be made for the children. For example, she had not signed the necessary paperwork for Y to be enrolled at B School (which X attends) in 2025 by the end of November 2024, and I had to make orders requiring her to do so. Even then, for reasons which are not at all clear to me, she did not do so, and pursuant to those orders Mr Jenkins was ultimately able to unilaterally enrol Y.
Mr and Ms Jenkins do not communicate directly at all – even to the extent that they do not say “hello” or give each other any other greeting at changeover. In late May 2024, in the context of Ms Jenkins having ceased all communications with Mr Jenkins since 1 May 2024, Mr Jenkins’ lawyers wrote to Ms Jenkins’ then-solicitors requesting that instructions be sought from Ms Jenkins as to what she envisioned be the method of communication between the parents about X and Y. The letter indicated that, amongst other suggestions already made by Mr Jenkins, he had sought that the parents exchange “a basic ‘hello’ and ‘goodbye’” at changeovers, and that Ms Jenkins had not agreed to this request. There was no response to this letter, and Mr Jenkins apparently did not feel it appropriate to nevertheless simply greet Ms Jenkins. Notwithstanding that X told his psychologist Ms N that “his parents saying hi to each other would make things a bit easier”, Ms Jenkins did not agree under cross-examination that this was something she could do.
The relationship and communication between the parents is so poor that, when Mr Jenkins found a note that X wrote in January 2025 that read “I want to die because my life is to (sic) hard”, he did not feel able to communicate that fact to Ms Jenkins, and she found out about it when he filed an affidavit in these proceedings. Mr Jenkins gave evidence that he was concerned that Ms Jenkins would question X excessively. He also gave the following evidence when cross-examined by Ms Jenkins:
… over the last five years, the communication between us has not been such that I have been able to bring to your attention anything, because I feel being part of this litigation that we can’t have a normal channel of communication and that everything is a trap, everything is quite cryptic and I have not been comfortable raising anything based on the quite … harassing emails, so no, I have not been able to ask you or relay comments from [X], because again I am also fearing that when he is – and this is in my affidavit several times – that he feels that this constant questioning of him, just like what I talked about with the note in his diary, is too much for a young boy. He said what he said, and that’s what I go off. I have not been able to raise that with you.
Ms Jenkins assigns negative motivations to much of Mr Jenkins’ conduct. For example, when asking Mr Jenkins questions about having a birthday party for X every year, she accused him of “leveraging [X].” In November 2022, she was recorded in a Mental Health Progress Note by P Health Service staff as having referred to Mr Jenkins as “an animal” and “worse than Ivan Milat”. During cross-examination, she agreed that she had made such comments and when asked whether she still had those views, she answered by saying “for me, the experience I had with [Mr Jenkins] has been exceptionally personal”. When redirected to answer the question that had been put to her, she then took a very long time before ultimately answering “no” at a very low volume. There is nothing in her evidence that persuades me she has changed her views about Mr Jenkins. She unfairly accused Mr Jenkins of deliberately selecting extra-curricular activities for X which reflected Mr Jenkins’ interests, rather than her own, and of only agreeing to X’s participation in extra-curricular activities when the final hearing came close. She also implied that Mr Jenkins had only sought psychological assistance after he became aware that she was self-represented and would have difficulty issuing a subpoena for his records. She attempted to challenge Mr Jenkins’ commitment to his faith. None of these positions was a fair reflection of the evidence.
Most troublingly, she admitted under cross examination that she asked Ms N to tell X, in a way which was critical of Mr Jenkins, about his father’s conduct in relation to the organisation of his birthday in 2021. In November 2021, she also had to be redirected by X’s school counsellor when she kept referring to differences between her and Mr Jenkins, rather than focusing on X’s welfare. She also admitted that, notwithstanding Dr C’s evidence that it was good for the children to have photos of their other parent in their bedrooms, she had knowingly removed X’s photo of his father from his room.
Her written submissions are full of rude, antagonistic and unwarranted comments about Mr Jenkins. For example, in opposition to an order proposed by the ICL and Mr Jenkins that the parents provide the children privacy when they are speaking with their other parent, Ms Jenkins wrote:
Please remove this Order. [Mr Jenkins] is always the one hanging about when the children are talking to me. In April 2022 I directed the boys to speaking (sic) to [Mr Jenkins] in their bedroom only, and [Mr Jenkins] sent me an email at the time acknowledging this. He then complained in his June 2022 affidavit read by [Dr C] that he did not get any privacy when speaking with the boys. A complete contradiction to his April 2022 correspondence with me and utter twaddle. [Mr Jenkins'] Order would’ve been more believable if he’d ever shown any genuineness and complied with things he was suggesting from the time he’d suggested them, rather than just waiting for the Court to make an Order he can lord over me.
There are many other examples, including an extraordinary set of submissions in relation to the proposed order that the parties communicate using an app, which I reject.

The animosity which Ms Jenkins has towards Ms Jenkins is impacting the children. Dr C opined that: “[o]f particular concern is the feedback from the oldest child, [X], who spoke of vomiting as a result of the stress attached to his parents being in the same room, and which occurred at a recent GP appointment”. Dr C described this as “in my experience, an extraordinary position for a child to be in, and speaks to an experience that I fear would worsen if things remain as they are in terms of parental conflict”. In relation to Y, while he “currently appears less affected by the acrimonious state of the parental relationship” and “does not appear to be exhibiting many unexpected emotional difficulties overall”, “[n]o argument can be made at this stage that problems would not develop in this domain in the event the nature of the parental relationship remains as it is”.
APPLICATION OF THE “BEST INTERESTS” CONSIDERATIONS
When making parenting orders, X’s and Y’s best interests are the paramount consideration. In working out what is in their best interests, I am required to have regard to the matters in s 60CC of the Family Law Act 1975 (Cth) (“the Act”). As neither X nor Y are Aboriginal or Torres Strait Islander children, the matters that apply only to such children are not extracted below.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) …
General considerations
(2) For the purposes of paragraph (1)(a), the court must consider the following matters:
(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i) the child; and
(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);
(b) any views expressed by the child;
(c) the developmental, psychological, emotional and cultural needs of the child;
(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e) the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f) anything else that is relevant to the particular circumstances of the child.
(2A) In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a) any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b) any family violence order that applies or has applied to the child or a member of the child’s family.
I am also required to apply s 60CG of the Act which provides:
(1) In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b) does not expose a person to an unacceptable risk of family violence.
(2) For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
Safety
Dr C was quite clear in his opinion that the children would not be safe from emotional or psychological harm under an arrangement where they are in the primary care of their mother. He referred to the impacts on them of Ms Jenkins’ mental health which are summarised above. I accept his evidence.
In addition to the incident when X had to call an ambulance for Ms Jenkins, there have been other serious incidents involving X while in the care of Ms Jenkins. In particular, prior to separation there were two incidents on the same day in October 2019 where Ms Jenkins assaulted X. On the morning of 15 October 2019, Ms Jenkins picked X up by his wrist and threw him approximately 1.5 metres across the room, causing him to land on a wooden train set. Ms Jenkins confirmed in oral evidence that she then proceeded to leave X in his bedroom in a distraught state. Later that day, Ms Jenkins entered the X’s bedroom whilst he was playing with toys on his bed and, in response to X dropping a toy on the floor, hit X across the top of his head. At the time of these incidents, X was four years old. In cross-examination, Ms Jenkins confirmed that she had engaged in this conduct.
In early 2023, Mr Jenkins went to the police in circumstances where Y was due to come into his care, and this attendance upon the police resulted in him providing details about the October 2019 incidents involving X. Mr Jenkins deposed that he had attended the police because he did not know of Y’s whereabouts and had only raised the events of 15 October 2019 in response to a question by police regarding whether there had been any previous instances of domestic violence by Ms Jenkins against X or Y, and that he had shown the in-house video of the incident to police when asked if he had any evidence of Ms Jenkins’ conduct. As a consequence, Ms Jenkins was charged with assault of X, pleaded guilty, and an Apprehended Domestic Violence Order (“ADVO”) for the protection of X was made on police application. Ms Jenkins cross examined Mr Jenkins on the basis that he had gone to the police station in early 2023 not because he was concerned for Y, but in order to report her to police, some four years after the October 2019 incident had occurred. The police record was tendered and, following a description of the events of 15 October 2019, states:
[t]his (sic) incidents were captured on a [in-house] Video Camera used by both [Ms Jenkins and Mr Jenkins] as a baby monitor camera. The [in-house] Camera was placed above a wall-hanging mirror where the recording was automatically saved and later downloaded by [Mr Jenkins]. [Mr Jenkins] attended [Suburb Q] Police Station [in early] 2023 to report the above incident. A written statement and the video recording was obtained by police from [Mr Jenkins].
Under cross-examination, Mr Jenkins was unable to offer an explanation as to why the police had not written in the COPS record that his attendance at the police station, at least initially, was for the purpose of ascertaining Y’s whereabouts. Nothing turns on this controversy – particularly in circumstances where Mr Jenkins has not used what occurred in a high-handed or punitive way; he did not, for example, seek primary care of the children until very recently.
It is not in dispute that on X’s fourth birthday (also in 2019), Ms Jenkins did not speak to X throughout the day and refused to wish him a happy birthday, informing Mr Jenkins that she had taken this course of action because X was “’in trouble’”. During cross-examination, Ms Jenkins also admitted to having made the “mistake” of telling X, when he has approached her in the night to advise he is unable to sleep, that “if he can’t sleep in his bed, where would he like to sleep, and if he would like to sleep outside”, though she gave evidence “that hasn’t happened for some time”. Ms N’s notes of her session with X dated 20 November 2023 indicate that he has told her of such comments being made to him by Ms Jenkins.
There was also an incident on 15 August 2021. Mr Jenkins was outside the front door of the former matrimonial home. In cross-examination, Mr Jenkins conceded that there was a discrepancy between his 3 September 2024 affidavit, in which he had deposed at paragraph 245 that he was able to “see [Ms Jenkins] straddling [X] with her legs on the floor and grabbing him with her hands on both of his upper arms so that he couldn’t move”, and a letter from his solicitor to Ms Jenkins which stated that Mr Jenkins was able to hear, but not see, the incident. Both parties were in agreement that Ms Jenkins had been holding X by the arms in the hallway of the former marital home, and that both X and Ms Jenkins were on the floor. In cross-examination, Ms Jenkins initially indicated that she could not recall whether or not she had straddled X, stating “I might have been”, but later, in response to an unrelated question, resiled from her previous position and stated “I don’t think I was straddling him. No I wasn’t. I wasn’t. I was holding his arms trying to get him to stop throwing himself back on the floor”. I am unable to make any findings about what occurred on this occasion.
Following the 2019 incidents, Mr Jenkins has agreed for X and Y to remain in Ms Jenkins’ primary care – from 2023, until it recently expired, with the protection of the ADVO. I am satisfied that, for the children, the primary risk is to their emotional and psychological safety, rather than their physical safety.
In some of her submissions, Ms Jenkins makes reference to emotional and financial abuse as well as coercive and controlling behaviour she alleges Mr Jenkins used against her, but there was almost no evidence to support any such finding. Her trial affidavit does not contain evidence which would allow me to conclude that Mr Jenkins has used family violence against Ms Jenkins. She told Dr C that she was ‘“still up against violence and abuse’ that she had been going through since the separation” but is not recorded as having provided any details. Documents tendered in Mr Jenkins’ case in relation to Ms Jenkins’ mental health also record her telling professionals in 2022 and 2024 about emotional and psychological abuse in the relationship and about what she says is the continuation of “absolute and total control” by Mr Jenkins, but that appears to be general venting in the context of mental health difficulties. Ms Jenkins uses extreme language – for example, telling a psychiatrist that the single expert “seems to think my ex is a messiah”. To his credit, Mr Jenkins has taken an appropriate approach to the parenting proceedings in that, notwithstanding the assault by Ms Jenkins on X in 2019 and the making of the ADVO for his protection, he only sought to progress arrangements to equal time when the children were of an appropriate age, and only sought primary care when Ms Jenkins’ and X’s mental health deteriorated.
The children will also continue to be harmed by exposure to their parents’ conflict, and it is important, therefore, that orders are made which minimise that exposure.
Issues of safety in this matter overlap with issues of parental capacity – and I refer to them further below.
Views
As noted in Dr C’s third report, neither of the children expressed any views to Dr C:
Neither child appeared to express a clear view about living arrangements as they stand, or any possible changes thereto (or other significant matters). Both parents appear to rely quite heavily on what [X] (in particular) tells them about the other parent/living with the other parent, and [X’s] extreme sensitivity to the parental relationship would likely mean that he, in particular, is communicating to the parents what he believes they want to hear. This may not be exclusively the case, but the extremity of his reactions to such stress concerning the parents suggests that his likely pre-occupation with the parental relationship means his views are heavily coloured by the same. [Y] may, for a variety of reasons, be less sensitive to the state of the parental relationship, but he nonetheless does not appear to have any views about living arrangements.
To his psychologist, X is recorded as having said on 24 February 2025 that he “wishes the custody arrangement was more equal” but also expressed difficulty adjusting to living in two homes.
In oral evidence, Dr C opined that he expected that X would be “quite relieved” to have a change in living arrangements such that he lived with Mr Jenkins.
Capacity to meet the children’s needs
X, in particular, has some very significant needs. Both of his parents acknowledged that they have serious concerns for his mental health and that he is quite a vulnerable child.
In his affidavit filed 21 February 2025, Mr Jenkins deposed as follows in relation to X (at paragraphs 20-21):
20. Since [late] 2024 [X] usually before bed will sometimes go to my computer and type a few lines on it for me to read. This is his way of expressing his feelings that he struggles to say verbally. Some of [the] things he has written are distressing and he needs ongoing psychological support to mitigate the damage to him. Recent examples of what [X] has expressed include:
a.2 November 2024 “Dadda, I don’t even deserve to be here anymore”
b.6 November 2024 – “Dad, I wasn’t ever even meant to be born anyway”
c.17 November 2024 – “Dadda, I shouldn’t even be alive”
d.30 November 2024 – “Dad, I’m scared Mum is making me change schools and I hate it. I never want to change. Please Dadda”.
21. Most recently on 25 January 2025, [X] wrote the note below which brought me to tears.
Mr Jenkins inserted an image of a piece of paper, on which was written in a child’s handwriting “I want to die because my life is to (sic) hard”.
X needs to be provided with access to appropriate professionals to assist him. He needs consistent parenting focused on his needs. He needs to be as free as possible from worry about his parents. Y is not so troubled at this stage, but Dr C also has concerns for him.
In notes produced by Ms N, X is recorded as saying positive things about both his mother and father and his time with them, but has also communicated the following:
(1)When asked to draw “a loss that he has many feeling about”, there is written in an adult’s handwriting (which appears to be a transcription of X’s somewhat illegible handwriting on the same page) “when I don’t do what mum tells me to do, she screams at me” (this entry is undated)
(2)When answering a question on a worksheet which reads “what I don’t like about time spent with Mom”, there is written “screaming at me when I can’t sleep. Go outside. Then I go to bed” (this worksheet is undated, though X is noted to make a similar comment during his session with Ms N on 20 November 2023).
(3)“Mum not as angry as she used to be” (10 April 2024).
(4)“Too many rules: mum took my toys away a month ago & all I can do is read. I have foul manners. She feeds me food I don’t like…Feels like she doesn’t care about me” (10 February 2025).
Ms Jenkins’ capacity
As set out above, Ms Jenkins’ capacity to meet the children’s (and particularly X’s) needs is significantly compromised by her mental health difficulties, and her lack of insight into the impact of those difficulties on the children. A large part of her cross-examination and submissions focused on issues which were of marginal significance in terms of the children’s best interests – including her own birthday, birthday parties for X, X’s participation in extra-curricular activities, Mr Jenkins’ failure to disclose to her that he began seeing a psychologist late last year, and whether or not X has a sucrose intolerance. She even sought to draw a connection between X’s difficulties and Mr Jenkins’ lack of agreement to X’s participation in various extra-curricular activities. These matters demonstrate her limited insight into the situation and into the matters affecting the children’s needs.
She gave evidence that she had not spoken with X’s psychologist Ms N about how X was faring, nor about whether and how to have a conversation with him about what occurred in late 2024. When asked why she had not done so, Ms Jenkins gave evidence that she was told she would need to book an appointment and that she didn’t have the money to do so. She also gave evidence that in late 2024, she had attended X’s school for the purpose of taking him to his scheduled appointment with Ms N, but ultimately had not done so, having had a conversation with X in which she asked him whether he wanted to attend his appointment with Ms N and why he was attending this counselling session when he had undertaken one the week prior. When asked during cross examination if she was of the view that it was for X to determine whether or not he received counselling on a particular day, Ms Jenkins responded:
I asked [X] why we were going when we’d been last week. That was a question I had already asked [Mr Jenkins] through his solicitor and received no response. No, I shouldn’t be having to ask this information of my son. I should be getting it from the father, I made enquiries of the father and I got no response.
She then struggled to answer a question as to whether she believed that attending the counselling appointment scheduled for 13 November 2024 and speaking to Ms N on that day would have assisted X in processing the events of late 2024, and posited that she “can’t be certain” and that X had indicated to her that he had not found talking to Ms N “helpful”. She gave evidence that, were she granted sole decision making responsibility with respect to the children, “there is a possibility” that she would terminate X’s involvement with Ms N, and would make inquiries as to what other supports may be appropriate for X.
Ms Jenkins gave evidence that she did not put in place any plan to help alleviate X’s worry about her and any worries that he might have to call an ambulance for her again.
Ms Jenkins gave evidence that she did the Triple P parenting program online last year, but could not provide a certificate of completion. She could not recall any details of the program at all. I am not satisfied that she completed that program. She gave evidence that she has not undertaken a parenting after separation course, but that she had an appointment with D Family Services the week following the proceedings “to see when that intake could be.” She agreed with the ICL that she needs to complete parenting courses.
Ms Jenkins has continued to feed X foods with lactose, notwithstanding he has been identified to have indicators of a lactose intolerance and that his father limits his lactose intake.
Ms Jenkins gave evidence that she has told X to sleep outside when he has come to her unable to sleep. She expressed regret for that. She also said that she took away his toys when he has not paid attention or responded appropriately to her instructions. She denied that she has told him he has “foul manners”, nor that she makes him eat food that he dislikes as a form of punishment. I am not able to make findings about whether those things occurred. Significantly, though, X has told Ms N that “it feels like she doesn’t care about me” and has reported other details to Ms N which cause me to conclude that Ms Jenkins has struggled to understand and provide X with the support he needs, particularly in light of the events of late 2024 and the aftermath.
Ms Jenkins gave evidence that she intends to move some distance from where she currently lives, and to enrol the children in “whichever [school] I end up in the catchment for”. She did not appear to acknowledge that this would be a considerable upheaval for the children. In contrast, notwithstanding he was seeking orders for sole parental responsibility and decision making, Mr Jenkins consented to an order that the children remain at their current school. Ms Jenkins identified her father as a source of support for her. Her father was not on affidavit. She gave evidence that she is not speaking with her mother at the moment, had limited contact with her last year, and that the children spend time with their maternal grandmother through Mr Jenkins. She also gave evidence that the circumstances with her mother are a “trigger” for her in relation to depression. Documents in relation to her 2022 hospital admission record her expressing difficulties in her relationships with her mother and sister. Ms Jenkins’ father and mother live together in Region R – which is where Ms Jenkins gave evidence she intends to move. It was not clear to me how her father can support her in circumstances where she has no contact with her mother, with whom he lives. I am not satisfied that Ms Jenkins has any significant source of support to assist her to meet the children’s needs.

Ms Jenkins did give some evidence in answer to questions by the ICL in which she recognised that she needed to work on aspects of her parenting. She admitted there were “parenting moments I’m not proud of” – including telling X to sleep outside when he couldn’t get to sleep. To her credit, she acknowledged that it “wouldn’t be unreasonable” to draw the conclusion that her mental health condition has had an impact on her parenting. She also acknowledged that Dr C’s opinion that little insight is evident into the impact of her mental health on the children is “not an unreasonable conclusion to draw.”
Mr Jenkins’ capacity
I am satisfied that Mr Jenkins has good capacity to meet the children’s needs. He has been interviewed by Dr C, observed with the children and assessed. Dr C confirmed to the ICL that he has no concerns in relation to Mr Jenkins’ parenting capacity.
No doubt Mr Jenkins has played a part in the animosity which characterises his relationship with Ms Jenkins, but, given the history of the matter, it is understandable that he has given up trying to communicate with her.
Mr Jenkins has also engaged with Ms S, a social worker, in relation to parenting coaching (the V Family Services program). Dr C interviewed Ms S and she described Mr Jenkins as “conscientious and exhibiting curiosity and good insight into the challenges of parenting” and otherwise described his attitudes to parenting in positive terms. Mr Jenkins gave evidence under cross-examination of some of the things that he has learnt with Ms S, and I am satisfied that he is genuinely engaging with her.
Mr Jenkins has enrolled X in and ensured his attendance at various extra-curricular activities. In cross examination by the ICL, Mr Jenkins described the need to be positive and reassuring with X and to encourage him to talk about things, rather than bottle them up.
Since the parties’ separation, Mr Jenkins has undertaken numerous parenting courses, namely, Bringing Up Great Kids (completed on 11 November 2021), Circle of Security (completed on 7 December 2021), and on 22 September 2021 he participated in an interactive program for separated parents run by T Family Services. Mr Jenkins was able to depose to the skills he has learnt from completing such programs, including how to listen to X and Y, how to make them feel safe, and the importance of ensuring the children know that they are loved by both he and Ms Jenkins. As referred to above, Mr Jenkins is also currently undertaking the V Family Services program with social worker Ms S.
I am satisfied that Mr Jenkins is the parent more likely to be accommodating of finding ways to resolve issues in dispute between the parents. For example, he gave evidence that he would be prepared to sit down with the children’s school principal to try to negotiate the children’s school-based religious education – a matter in respect of which there has been a “stalemate” for X over the last four years. Mr Jenkins has proposed means of resolving some of the multiple disputes between the parents, with many of those proposals not receiving a response by or on behalf of Ms Jenkins. For example, he gave evidence that, when it looked as though Y would require day surgery for cataracts, he wrote a “heart-felt” and “olive branch” email to Ms Jenkins asking that they agree to put aside their differences. He received no response. Similarly, there was no response to a letter from Mr Jenkins’ lawyers in May 2024 to the effect that Mr Jenkins had sought to “normalise” interactions with Ms Jenkins in front of the children, and to that end had sought that the parents exchange basic courtesies at changeover, but this suggestion had been refused by Ms Jenkins. When asked why she could not agree to such a proposal, notwithstanding that she agreed such interactions would be good for the children she said that correspondence with Mr Jenkins since the parties’ divorce had been “wildly incorrect” and that she had “felt disrespected” by such communications. When pressed as to whether she could see past these feelings to exchange courtesies with Mr Jenkins at changeovers for the sake of the children, Ms Jenkins answered “when there … is a relationship with domestic violence in it, it isn’t necessarily safe for that to happen. That is a relationship we have” and “the opportunities that would be offered to [Mr Jenkins] by verbally communicating with him, I feel would be very detrimental to my safety”. She speculated that “once this is all over”, being the family law proceedings, exchanging greetings “is certainly something that can be explored” Having regard to the benefits to the children of the parents saying “hello” and “goodbye” at changeover and X’s wish as expressed to Ms N that they do so, this represented an unreasonable and self-focused response.
Mr Jenkins reflected in cross-examination that he should have approached Ms Jenkins when X starting writing concerning notes, and that he would do that now. He gave evidence that he was prepared to consider Ms Jenkins’ proposals in relation to decisions he has to make for the children – and sought an order requiring him to do so, until the conclusion of the final hearing, when the ICL sought there be no such requirement and when the potential for such arrangements to cause ongoing difficulties was plain on the evidence.
In late 2023 to early 2024, Mr Jenkins initiated sending weekly email updates to Ms Jenkins about the boys. Ms Jenkins did not engage, and so Mr Jenkins “decided to revert to email as required”.
Further, Mr Jenkins has been the parent who has largely engaged the children with professionals – including by ensuring X’s attendance upon his long-term treating psychologist, Ms N. X has been attending psychology sessions with Ms N for at least four years. Of concern to me was Ms Jenkins’ evidence that she would consider changing X’s psychologist – notwithstanding Dr C’s recommendation that X continue with Ms N, and the evidence that X has opened up to Ms N and has been assisted by her over a long period of time. Ms Jenkins gave evidence that she would “make inquiries” and “speak with [X]” in order to determine whether Ms N is a “good fit” for X. She gave evidence that she is “not certain of how much [X] is processing at [Ms N’s]”.
Mr Jenkins gave evidence that he intended to ensure X continues to attend upon Ms N and has consented to a notation to that effect. He has also obtained professional advice in respect of X’s food intolerances and night-time enuresis – both of which remain issues for him. Various plans to address the nocturnal enuresis have not been implemented consistently across the households, for example, Mr Jenkins’ plan to use an alarm in respect of the enuresis was not implemented by Ms Jenkins. He gave evidence that, consistently with the advice of Ms N, he intends to look into further medical approaches if X’s nocturnal enuresis persists after he turns 11.
Mr Jenkins’ pattern of responses to the PAI showed a high level of defensiveness, rendering the profile created unreliable. Dr C opined that this does not relate to Mr Jenkins’ perceptions of himself as a parent, and told the Court that he was not concerned about this matter in relation Mr Jenkins’ parenting.
There were aspects of Mr Jenkins’ conduct during the litigation that give some cause for concern – including failing to talk with Ms Jenkins about her “discipline” of the children, taking the children to the police station after X reported having his fingers shut in a door by Ms Jenkins, and not discussing X’s concerning notes with her. He recognised under cross- examination that he had not approached some of these matters as he would now have wished. His approach has to be seen in the light of the extreme difficulties in communicating effectively with Ms Jenkins over many years – difficulties which I find are largely (but not entirely) the responsibility of Ms Jenkins.
Relationship with parents and others
Dr C opined as to the importance of the children maintaining a relationship with both of their parents. He was satisfied that the children would maintain a relationship with Ms Jenkins under arrangements where they spend time with her every second weekend. I am satisfied that Mr Jenkins will facilitate the children’s relationship with their mother. Until recently, he has sought orders that the children live equally between their parents. During Ms Jenkins’ hospitalisation in late 2024 and its aftermath, he encouraged and facilitated communication between the children and Ms Jenkins. He has agreed to additional time for the children with their mother – including for an extra two nights prior to her birthday next year. His proposal recognises the continuing importance of the children having a relationship with their mother.
Ms Jenkins has difficult relationships with her mother and sister, and it is Mr Jenkins who facilitates the children’s time with their maternal grandmother. I am satisfied that they are more likely to maintain extended family relationships if they live with Mr Jenkins rather than Ms Jenkins.
Other matters
It is a very significant step to order a change of residence from the parent who has been the children’s primary carer and particularly so in circumstances where the children were very young (in Y’s case, born the year before) when their parents separated. Dr C opined that, based on his observations of X with Ms Jenkins, he now has an anxious-ambivalent attachment with Ms Jenkins and that has the potential to affect his relationships in later life. There was no evidence about the nature of Y’s attachment with Ms Jenkins.
I am satisfied, having regard to the matters set out above, that the usual benefits of young children continuing to live with their primary carer are outweighed by other factors in this matter and, in particular, the emotional and psychological risks to them in the primary care of Ms Jenkins.
ORDERS
For the reasons set out above, I am satisfied that the children’s best interests will be served by them immediately moving to live primarily with Mr Jenkins. Dr C was asked by the ICL about whether such a change of residence should be gradual or immediate. He opined that, although he would normally recommend a gradual change, in this matter he was so concerned for the children that he recommended it be immediate. I accept that recommendation.
The parents agree that I should not order that they share responsibility for making major long-term parenting decisions, and Dr C opined that Mr Jenkins should have sole decision making responsibility for the children. Given the children will live primarily with Mr Jenkins, he will have sole responsibility for making major long-term decisions for them. I make orders as sought by the ICL and Mr Jenkins for Mr Jenkins to notify Ms Jenkins about decisions he is proposing to make. I am satisfied that a requirement that Mr Jenkins consult Ms Jenkins (as was originally proposed by the father) would be a recipe for further unproductive conflict. Ms Jenkins gave evidence she could not trust Mr Jenkins to give her correct information. Tellingly, she sought an order that “the Father provide a statutory declaration each and every time he requires the Mother’s signature declaring that he has not omitted ANY information, including but not limited to all information requested by the Mother, in relation to the document requiring signature”. Her lack of trust in Mr Jenkins’ ability to provide her with all relevant information was also evident during her cross-examination of Dr C when, in the context of asking about sole decision making authority in circumstances where the parties have historically had poor communication and Mr Jenkins failed to advise her about X’s suicidal ideation, she expressed concerns that Mr Jenkins would not be “forthcoming” and “forthright” in providing her with information about the children so as to enable her to provide fully-informed input to the decision making process. Whilst Dr C gave evidence that it was his opinion that Mr Jenkins had made the incorrect decision in not telling Ms Jenkins about X’s concerning note, he indicated that were orders to be made providing for Mr Jenkins to have sole decision making authority in respect of the children, Mr Jenkins “appears motivated to make decisions in the best interests of the children. I’m not unduly concerned about that”.
Having made the decision to entrust Mr Jenkins with sole parental responsibility for the children, I will not make the orders sought by Ms Jenkins in relation to Y’s attendance on a psychologist, X’s attendance on a dietitian and upon Dr U for his nocturnal enuresis and a Child Behaviour Specialist. I am satisfied on the evidence that Mr Jenkins can be trusted to make appropriate medical decisions for the children. If he makes a major long-term decision for the children or either of them, he is required to advise Ms Jenkins.
I am satisfied that it is in the children’s best interests to spend an extended weekend each fortnight with Ms Jenkins. Initially, Mr Jenkins was seeking that the children spend four nights with Ms Jenkins, but by the conclusion of the evidence he was seeking that this period be three nights, as was the ICL. Ms Jenkins gave evidence that, given the impossibility of shared parenting, she thought an 11/3 or even a 12/2 arrangement would be preferable – even if I made an order that the children live with Mr Jenkins. She gave evidence that “clearly the weekdays and … communal time, activities” are “extremely problematic”. Ultimately, however, she sought a 10/4 (Thursday to Monday) arrangement in her favour. Dr C indicated that three or four nights a fortnight with Ms Jenkins would be appropriate. Whether I order three nights or four, it will be a very significant change for the children, who will almost certainly miss their mother during the intervening period. Four nights commencing on a Thursday will provide them with an additional night with their mother and time will be focused on the end of the school week and the weekend, which is likely to be a time of less stressful parenting. Such an order is therefore marginally preferable to an order for three nights, even if Ms Jenkins does move and there is a significant commute for the children from school to her home. Notwithstanding Ms Jenkins’ written submissions, I am satisfied that it is appropriate that changeovers occur from school (or 3.00 pm if a non-school day) and to school (or 9.00 am if a non-school day).
To her credit, by the conclusion of the hearing Ms Jenkins acknowledged that she needed to obtain better and different treatment for her mental health. I have made the orders sought by the ICL and Mr Jenkins to the effect that the children’s extended holiday time with Ms Jenkins will not commence until she has undertaken such steps and parenting courses. Those steps will ameliorate the risks to their emotional and psychological wellbeing that the children currently face with respect to spending extended time with their mother. Having regard to submissions made by the ICL as to the time required to enrol in and complete the parenting courses, the steps should be able to be completed within about six to eight months, so likely by the summer holiday at the end of this year the children’s holiday time with Ms Jenkins will be able to recommence. She has sought orders, as have the ICL and Mr Jenkins, that she be able to provide Dr C’s reports to her treating mental health professionals. I have made those orders. It will also be of assistance for her treating mental health professionals also to have these Reasons and the orders.
The orders I have made require Ms Jenkins to attend upon a psychiatrist and obtain a report, in order for the children’s extended holiday time with her to commence. In her written submissions, Ms Jenkins took issue with the relevant professional being a psychiatrist and sought an order that she be able to attend on either a psychiatrist or a psychologist. She does not have a clear diagnosis in relation to her mental health difficulties, with various possibilities, including “Cluster B personality traits”, “borderline personality disorder” and “serious depression” being identified by various different professionals. Ms Jenkins has not had assessment and treatment from a psychiatrist, other than when she has been in crisis or in the aftermath of a crisis. She told her psychologist Ms O that the psychiatrist who thought she may have borderline personality disorder did not spent much time with her to assess whether or not that is the case, and then in cross-examination expressed the view that she does not have any traits of borderline personality disorder. She has in recent times used her psychology sessions with Ms O largely to “vent.” In these circumstances, I have made the order sought by the ICL and the father for Ms Jenkins to attend upon and obtain a report from a psychiatrist as one of the conditions of her time progressing.
While the progression of time cannot be contingent on the substance of the report (Lainhart & Ellinson (2023) FLC 94-166 at [27]-[33]), the provision of a psychiatrist’s report to Mr Jenkins will enable him to satisfy himself that the conditions for the progression of time have been met, and to have information which will assist him to make appropriate decisions for the children. Similarly, there needs to be a mechanism for Mr Jenkins to be satisfied that Ms Jenkins has completed the ordered parenting courses so that time can progress. To protect Ms Jenkins’s privacy, Mr Jenkins is restrained from providing a copy of the report or showing it to anyone other than legal practitioners advising him and mental health professionals from whom he seeks advice.
I have made the “special occasion” orders sought by the ICL and Mr Jenkins, save that I have ordered that, if the children miss a weekend with their mother on the Father’s Day weekend, that will be “made up” the previous weekend. That is in circumstances where the children’s time with Ms Jenkins is now largely confined to weekends, and where they should not go for an extended period of time without seeing her – as would occur if they missed a regular weekend with her. I am satisfied that it is in the children’s best interests that they be able to celebrate religious festivals with their father, and otherwise to spend time with their parents in accordance with the orders on special occasions.
By her written submissions (but not her Fourth Amended Response), Ms Jenkins seeks an order that the children spend time with her on the weekends of her team’s AFL home games which do not otherwise fall on her weekends. I do not have any evidence about how often that might be and I am already making orders for a significant number of special occasions which will interrupt the regular pattern of time. I therefore decline to make an additional order about those weekends.
Once Ms Jenkins has complied with the requirements of Order 9, the children’s regular school holiday time with her will commence.
Ms Jenkins holds very strong views about the children being with her on her birthday each year. Such time is appropriately accommodated until the children start blocks of holiday time, when each parent is likely to want to take them away for up to three weeks (provided, with respect to Ms Jenkins, that she has complied with the requirements of Order 9). Ms Jenkins’ wish to spend time with the children on her birthday is understandable, but her concern about this matter is more parent-focused than child-focused and should not hold sway when weighed against the benefits of the children being able to have a three week uninterrupted holiday with each parent when they are old enough. I reject Ms Jenkins’ oral and written submissions that such orders do not teach the children the appropriate respect for their parent. The children will be able to have an early celebration with her before going into their father’s care. In the December 2028/January 2029 block and ongoing, they will have had a 21-day block with her, including Christmas Day. I have made orders which require that Mr Jenkins facilitate a video call with the children on Ms Jenkins’ birthday.

The relationship between the parents is such that changeover at a neutral location and, if the parents wish, through a nominated third person known to the children, is likely to reduce the risk that the children are exposed to conflict or tension at changeovers. In making orders, I have taken into account the desirability of avoiding face to face changeovers where possible.
I have made orders for the parents to facilitate video calls between the children and their other parent. This will enable each parent to “check in” with the children – that will be particularly important while the children are young and when Ms Jenkins’ mental health is unstable. It is appropriate that those calls are able to take place in private without the other parent listening in.
Communication between the parents is fraught and has been almost entirely by email. Mr Jenkins has asked that Ms Jenkins only communicate with him via one email address. She has not complied with that request – meaning that not only has Mr Jenkins received multiple emails from her, but he has received these emails to numerous email addresses. He gave evidence about receiving a flurry of emails over a short period in relation to X’s extra-curricular activities after interim orders had been made requiring the parents to agree to extra-curricular activities.
Mr Jenkins has made various attempts to engage Ms Jenkins in using a parenting app to communicate – to the extent that he has established an account and paid for one. Ms Jenkins’ suspicions about such apps (including that communication will somehow be controlled by an “administrator” and that being able to see when a parent has read a message amounts to something like tracking) are unwarranted, and the use of such an app will have the benefits of ensuring communications about the children are in one place, and that the parents can control the notifications. I have therefore made the orders in relation to communication between the parents as sought by the ICL and Mr Jenkins. It is also appropriate that both parents keep each other informed about their residential address and contact details.
I have made orders restraining both parents from engaging in forms of damaging behaviour. Ms Jenkins has from time to time (most recently in December last year) recorded Mr Jenkins – neither parent should do that without the other’s permission, but this is not a matter which sufficiently affects the children such that I am willing to make an order about it. Further, as Ms Jenkins points out in her written submissions, there is a risk of an accidental breach of such an order occurring if the children and both parents are at an event which either is recording. There are some particular restraints on Ms Jenkins which recognise that Mr Jenkins will have the primary care of the children and responsibility for making major long-term decisions for them. I reject Ms Jenkins’ submission that “[t]hese restraints are onerous, punitive, and have more to do with [Mr Jenkins’] insecurities and extraordinary need for control, rather than about the children” and the other submissions she makes in relation to these orders. The restraints also avoid the children being exposed to parental tension and conflict arising from both parents attending medical appointments, extra-curricular activities and the like. I am satisfied, given X’s reaction to having both his parents together in his presence as recently as March of this year, and the parlous state of the parents’ relationship, that it is in the children’s best interests to make orders that ensure that the parents do not attend extra-curricular activities for the children at the same time. No party sought an order that there be a restriction upon both parents attending school events, and by the orders they will be able to do so – although parent-teacher interviews will need to be separate. Given the limited time the children will be spending with Ms Jenkins during school terms, it is appropriate that, as the ICL and Mr Jenkins seek, Mr Jenkins be restrained from enrolling the children in more than one weekend extra-curricular activity during their time with their mother unless otherwise agreed. That activity is likely to be a team sport and it is appropriate that I order that Ms Jenkins provide Mr Jenkins the opportunity to take the children to that activity if she is unable to do so.
To his credit, Mr Jenkins has agreed to an order that the children continue to attend B School until their completion of year 6, unless otherwise agreed in writing by the parents. Such continuing attendance will provide much-needed stability for the children at a time of significant change in their lives. As the parent with sole responsibility for making major long-term decisions for the children, it will be for Mr Jenkins to decide which high school/s the children are to attend. The ICL and Mr Jenkins sought orders about payment of high school fees (if any). That is a matter which is appropriately dealt with through the child support system and/or any contractual arrangements between any school and the parents. I decline to make the order sought. I also decline to limit the schools in which Mr Jenkins can enrol the children, to specify that Mr Jenkins must enrol the children in Ethics classes at school (as opposed to religious education), or to specify which medical practitioners the children must attend upon – as Ms Jenkins sought in her written submissions. Such orders would inappropriately fetter Mr Jenkins’ ability to exercise sole decision making responsibility for the children and/or are not supported by any evidence.
At issue during the final hearing was whether the children should be able to participate in a religious ceremony and related preparations and celebrations. During their relationship, the parents agreed that the children would be exposed both to Mr Jenkins' faith and Ms Jenkins' Christian faith. They agreed that they would baptise the children in a Christian faith if that was necessary for them to attend any religious school their parents preferred for them. Mr Jenkins described the children as “half […]”. Ms Jenkins’ position in relation to a religious ceremony was not always clear during the final hearing – although she questioned Mr Jenkins on the basis that the children should be able to make their own decisions when they are 18 years old and subsequently gave evidence that she wanted them to make decisions about baptism, holy communion and so on when they are 18. Mr Jenkins gave evidence that a religious ceremony must occur at or around a child’s birthday. He also gave evidence that he has joined a reform community, which does not require the children to relinquish all other faiths upon their religious ceremony. He also gave evidence that he could arrange a religious ceremony for the children without Ms Jenkins’ consent.
At the conclusion of the hearing, Ms Jenkins indicated she was prepared to consider the children participating in a religious ceremony and no longer sought that Mr Jenkins be restrained in that regard. I am not satisfied that the parents would be able to have productive and effective discussions about that matter, and so I have made orders which will leave the decision to Mr Jenkins as the parent entrusted with sole parental responsibility and sole decision making in respect of major long-term decisions for the children. Order 33 provides for the children to be with him on the weekends that the religious ceremonies and celebrations are to occur. Mr Jenkins has consented to an order that Ms Jenkins is at liberty to expose the children to teachings of the Christian faith.
I have made orders which ensure that Mr Jenkins is able to nominate the children’s general practitioner and dentist. It is desirable that the children attend upon the one general practitioner and dentist and, given the difficulties the parents have had in reaching agreement about so many matters, it is appropriate to give decision making about who those practitioners should be to Mr Jenkins – who has sole parental responsibility and decision making for the children.
Ms Jenkins has at times significantly delayed in making decisions for the children, including in signing the paperwork for Y to be enrolled at B School, and it is therefore appropriate that Mr Jenkins be able to obtain passports for them without Ms Jenkins’ consent. Both parents will be able to travel with the children during the children’s time with them, subject to compliance with standard requirements.
There is a dispute between the parents as to the payment of Dr C’s costs of preparing his third report. An order was made on 25 November 2024 for those costs to be paid in equal shares. I accept that there were some additional costs as a result of Ms Jenkins’ delays. I am not satisfied, however, that it is appropriate to separately identify those costs and make Ms Jenkins solely responsible for them, particularly in circumstances where Ms Jenkins is not currently in paid employment. The order that the parents pay half of Dr C’s costs remains in force, and I also order that the parties pay Dr C’s costs of attending for cross-examination in equal shares.
Ms Jenkins does not agree to pay half of the ICL’s costs. Final property orders have been made by consent in this matter and they will see Ms Jenkins receive a significant sum from the net sale proceeds of the property where she now resides. I was told that process has been delayed. I am not able to make any findings about who is at fault in that process. Ms Jenkins is at liberty to make an application to NSW Legal Aid in relation to financial hardship. If that is not successful, then the parents will pay the costs of the ICL in equal shares.

I certify that the preceding one hundred and seventeen (117) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens.
Associate:
Dated: 16 May 2025
ANNEXURE
Note: the annexures have been omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)

File number(s):	SYC 337 of 2021
Judgment of:	BEHRENS J
Date of judgment:	16 May 2025
Catchwords:	FAMILY LAW – PARENTING – Where parents have an acrimonious relationship and poor communication – Where children have been exposed to parental conflict – Where the Mother was self-represented and had filed no updating material following a mental health hospital admission – Where the Mother's mental health is a significant and ongoing issue – Where the Mother has at times lacked insight into the needs of the children and the impact of her mental health upon the children and her parenting capacity – Where the Mother’s mental health places the children at risk of emotional and psychological harm if they remain in her primary care – Where the Mother indicated a willingness to take steps to address her mental health – Where Father has good parenting capacity and children have been in a shared care arrangement – Where orders made granting the Father sole parental responsibility and sole decision making for major long-term issues – Where orders made for children to live primarily with the Father– Where change of residence to be effected immediately – Where orders made for the children’s extended holiday time with the Mother to commence upon a psychiatrist completing a mental health assessment and report and the completion of parenting courses – Where restraints placed on both parents and certain restraints placed on the Mother in particular
Legislation:	Australian Passports Act 2005 (Cth) ss 6, 11 Family Law Act 1975 (Cth) ss 60CC, 60CG, 65Y
Cases cited:	Lainhart & Ellinson (2023) FLC 94-166; (2023) Fam LR 87; [2023] FedCFamC1A 200
Division:	Division 1 First Instance
Number of paragraphs:	117
Date of last submission/s:	27 April 2025
Date of hearing:	7-11 April 2025
Place:	Sydney
Counsel for the Applicant:	Ms Spain
Solicitor for the Applicant:	Super & Super Lawyers
Solicitor for the Respondent:	Litigant in Person
Solicitor for the Independent Children's Lawyer:	Ms Shepherd, NLS Law

SYC 337 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR JENKINS Applicant
AND:	MS JENKINS Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	BEHRENS J
DATE OF ORDER:	16 MAY 2025