Katica & Katica - [2024] FedCFamC1F 137

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Katica & Katica [2024] FedCFamC1F 137

File number(s): BRC 10051 of 2014

Judgment of: HOWARD J

Date of judgment: 28 March 2024

Catchwords: FAMILY LAW – PARENTING – Where the mother seeks sole parental responsibility – Where the mother seeks a reduction in the time that the children spend with the father from five nights per fortnight to three nights per fortnight – Where the father seeks an order for equal shared parental responsibility and the father seeks sole parental responsibility in respect of certain issues – Where the father seeks an equal time order – Where there is a long history of conflict in the case – Where there are significant difficulties in relation to the communication between the parents – Where it is in the best interests of the children for the mother to have sole parental responsibility and for the children to live with the mother and spend three nights per fortnight with the father.

Legislation: Family Law Act1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 121

Cases cited:
Beckham v Desprez (2015) 55 Fam LR 310

Baghti & Baghti & Ors [2015] FamCAFC 71

Cox v Pedrana (2013) FLC 93-537

Cubbin & Cutler [2018] FamCAFC 84

Eagle & Scarlett (No 2) [2020] FamCAFC 291

Fitzwater & Fitzwater (2019) 60 Fam LR 212

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Isles & Nelissen (2022) FLC 94-092

Johanson & Johanson [2022] FedCFamC1A 74

M & M (1986) 166 CLR 69

Rice v Asplund (1979) FLC 90-725

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division: Division 1 First Instance

Number of paragraphs: 92

Date of last submission: 13 September 2023

Date of hearing: 11, 12, 13 and 14 of April 2023

Place: Brisbane

Counsel for the Applicant: Mr Dodd

Solicitor for the Applicant: Phillips Family Law

Counsel for the Respondent: Mr Coe

Solicitor for the Respondent: Omnia Legal

Counsel for the Independent Children’s Lawyer: Ms Frizelle

Solicitor for the Independent Children’s Lawyer: Legal Aid Queensland
ORDERS

BRC 10051 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS KATICA

Applicant

AND:
MR KATICA

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS ON A FINAL BASIS THAT:
1.All previous parenting Orders be discharged.

PARENTAL RESPONSIBILITY
2.The Mother have sole parental responsibility for all major long term issues in relation to X BORN 2009 and Y BORN 2012 (“the children”) which include but are not limited to:-
(a)Education (both current and future);
(b)Health, medical treatment and psychological issues (including the administration of vaccines);
(c)Religious and cultural upbringing;
(d)Names; and
(e)changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with a parent.

3.In exercising her responsibilities for decision making pursuant to Order 2 above, the Mother must, unless in the case of a medical emergency:
(a)inform the Father of any long term decision(s) to be made;
(b)take the Father’s views into account, which are to be provided by the father in one email within 72 hours of the Mother informing the Father of the decision/s to be made; and
(c)if the long term decision is in relation to either of the children’s health, advise the Father of the practitioners engaged in the children’s medical or psychological care and provide feedback on any diagnosis or treatment recommended and/or received by the children, and provide him with copies of any reports from their treating practitioners.

4.The Father have responsibility for decisions as to the children’s daily care during periods when they are in his care and the Mother have that responsibility at all other times.

LIVING ARRANGEMENTS
5.The children live with the Mother.
6.Unless otherwise agreed between the parties in writing, the children spend time with the Father as follows:
(a)During the school term, from the conclusion of school (or 5:00pm if a non-school day) on the second Friday of each new school term until the commencement of school the next Monday (or 5:00pm if Monday is a non-school day) and each alternate week thereafter (“the usual cycle”).
(b)During the school holidays, each alternate week from 5:00pm Friday to the next Friday at 5:00pm as follows:
(i)If the children are to enter into the Father’s care on the last Friday of a school term as per the usual cycle, then the children will remain in his care so that the children are in his care from the conclusion of school (or 5:00pm if a non-school day) on the last Friday of the school term until 5:00pm on Friday the following week and each alternate week thereafter in accordance with Order 6.b.;
(ii)If the children are to be with the Mother on the last Friday of a school term as per the usual cycle, then the children will remain in her care and will then enter into the Father’s care from 5:00pm on Friday of the following week, being the Friday in the first week of the school holidays, and spend time with him until 5:00pm the Friday in the week following and each alternate week thereafter in accordance with Order 6.b.

7.For the purposes of Order 6.b.:
(a)If the children are to be with the Father on the last weekend of a school holiday, the children will return to the Mother’s care at 5:00pm the day before the children’s first day of the new school term.
(b)If the school holiday period is an odd number of weeks, then for the last full calendar week of the school holidays, the children shall spend time with the parties as follows:
(i)with the Mother from 5:00pm on Monday until 5:00pm on Thursday;
(ii)with the Father from 5:00pm on Thursday until 5:00pm the day before the children’s first day of the new school term; and
(iii)with the Mother from 5:00pm the day before the children’s first day of school.

8.The preceding Orders 6 and 7 apply to both children together, unless otherwise agreed between the parties in writing.

SPECIAL OCCASIONS
CHRISTMAS
9.Notwithstanding any other Order, unless otherwise agreed between the parties in writing, the children spend time with the parties over the Christmas and Boxing Day period as follows:
(a)In odd years:
(i)with the Mother from 9:00am Christmas Eve until 11:00am on Christmas Day; and
(ii)with the Father from 11:00am Christmas Day until 5:00pm on Boxing Day.

(b)In even years:
(i)with the Father from 9:00am Christmas Eve until 11:00am on Christmas Day; and
(ii)with the Mother from 11:00am Christmas Day until 5:00pm on Boxing Day.

EASTER
10.Notwithstanding any other Order, unless otherwise agreed between the parties in writing and commencing at Easter 2025 the children shall spend time with the parties over the Easter period as follows:
(a)In odd years:
(i)with the Father from 5:00pm the Thursday before Good Friday until 5:00pm on Easter Saturday; and
(ii)with the Mother from 5:00pm on Easter Saturday until 5:00pm on Easter Monday.

(b)In even years:
(i)with the Mother from 5:00pm the Thursday before Good Friday until 5:00pm on Easter Saturday; and
(ii)with the Father from 5:00pm on Easter Saturday until 5:00pm on Easter Monday.

BIRTHDAYS
11.Notwithstanding any other Order, unless otherwise agreed between the parties in writing, the children spend time with the parent with whom they are not already in the care of on each of the children’s birthdays, as follows:
(a)if a school day, then for a period of not less than two (2) hours and in default of agreement from 4:00pm until 6:00pm; and
(b)if a non-school day (weekend, public holiday, pupil free day or school holiday) then for no less than four (4) hours and in default of agreement from 11:00am until 3:00pm.

12.The parent who has the child having a birthday in their overnight care shall have the first option to host a birthday party for the child and shall ensure that the other parent is invited to any party held by that parent.
13.Notwithstanding any other Order, unless otherwise agreed between the parties in writing, in the event that either parent’s birthday falls during a period the children are in the care of the other parent, the children spend time with the parent celebrating their birthday, as follows:
(a)if a school day, then for a period of not less than two (2) hours and in default of agreement from 4:00pm until 6:00pm; and
(b)if a non-school day (weekend, public holiday, pupil free day or school holiday) then for no less than four (4) hours and in default of agreement from 11:00am to 3:00pm.

FATHER’S DAY AND MOTHER’S DAY
14.If the children are not already in the Father’s care on the weekend of Fathers’ Day pursuant to these Orders, then the parties shall swap weekends so that the children spend time with the Father from the conclusion of school (or 5:00pm if a non-school day) on the Friday before Fathers’ Day until the commencement of school (or 5:00pm if a non-school day) the following Monday and the children then be in the Mother’s care the following weekend, with the usual cycle to resume thereafter.
15.If the children are not already in the Mother’s care on the weekend of Mothers’ Day pursuant to these Orders, then the parties shall swap weekends so that the children are in the Mother’s care from the conclusion of school (or 5:00pm if a non-school day) on the Friday before Mothers’ Day until the commencement of school (or 5:00pm if a non-school day) the following Monday and the children then spend time with the Father the following weekend from the conclusion of school (or 5:00pm if a non-school day) on Friday until the commencement of school (or 5:00pm if a non-school day) the following Monday, with the usual cycle to resume thereafter.

CHANGEOVER
16.For the purposes of these Orders, where changeover is unable to occur directly from school it shall occur by the parent the children are not in the care of at that time collecting the children from the other parent’s residence.

COMMUNICATION
17.The children be permitted to communicate with each of their parents via telephone, text, email or video contact at all reasonable times between 6:30am and 7:30pm and for that purpose:
(a)the parent who has the children in their care shall facilitate the communication; and
(b)the other parent may reply to such communications initiated by the children between 6.30am and 7.30pm only.

18.Either parent may initiate telephone, text, email or video contact with the children when the children are not in their care between 7:00pm and 7.30pm on one occasion every three days and are restrained by injunction from initiating contact with the children at other times when the children are not in their care, unless in the case of an emergency. The parent who has the children in their care shall take reasonable steps to facilitate the communication.
19.The children be permitted to have only one communication device of each type (i.e. one mobile phone, one iPad or other tablet device, etc.) and for that purpose:
(a)such devices are to be supplied and maintained by the Mother only; and
(b)it shall be at the Mother’s sole discretion whether the children need a communication device of any particular type given their age and development at the time.

20.If the children are required to have a computer or a laptop for school, such device is to be supplied and maintained by the Mother, and the type of computer or laptop to be provided shall be at her sole discretion.
21.The children may have a computer or laptop for their sole use at the Father’s house, at the Father’s sole cost.

SCHOOLING AND EXTRA-CURRICULAR
22.The parties are restrained by injunction from enrolling or committing either child to any activity which occurs during the time that the children are with the other party pursuant to these Orders without first obtaining the other party’s consent to such an activity.
23.The parties may enrol or commit either child to an activity which occurs during the time that the children are in their care at their own cost.
24.This Order serve as an authority for both parents to be permitted to liaise directly with the children’s school to receive any notices, information, newsletters, school reports, order forms for the children’s school photographs, information about the child’s progress at school as well as parent teacher appointments, and information about extra-curricular activities involving the children.

MEDICAL
25.Unless in the case of a medical emergency, the Father is restrained by way of injunction from communicating and liaising with the children’s treating health and medical practitioners, including attending appointments with the children with such practitioners, without the Mother’s written agreement and the Mother have sole responsibility in relation to same and must keep the Father informed pursuant to Order 3 above.
26.Upon notification by the Mother pursuant to Order 3.b., the Father must adhere to any prescribed treatment regime for the children when in his care including but not limited to:
(a)following recommendations and treatment plans;
(b)facilitating the children taking any prescribed medications at the prescribed intervals and frequency;
(c)facilitating taking the children to any required appointments pursuant to the treatment regime; and
(d)any other action required to adhere with the prescribed treatment regime.

27.The Father be restrained by injunction from making any comments to the children, or within their hearing, about any views he may hold that do not positively support the children’s health or medical treatment.
28.Each party keep the other informed of changes to the children’s health while the children are in their care and as soon as practicable, notify the other parent of any medical emergency involving the children.

TRAVEL
DOMESTIC
29.Each party will provide the other with 14 days written notice of their intention to take the children outside the state of Queensland during any period the children are in that party’s care and will provide particulars of the location/s at which the children will spend time while outside the state of Queensland.

INTERNATIONAL
30.On one occasion every two calendar years, both parents be at liberty to take the children out of the Commonwealth of Australia on an overseas holiday for up to 21 nights including travel times, provided that:
(a)the parent proposing the travel (“the travelling parent”) shall give the other parent as much written notification as possible of their intention to take the children out of Australia and in any event will give not less than two (2) months’ written notice of the dates that they intend to do so;
(b)as far as practical the occasions on which the travelling parent takes the children out of Australia coincide with their school holiday periods;
(c)unless agreed to in writing, the proposed travel dates do not coincide with the time the children spend with the other parent over Christmas or Easter;
(d)the proposed travel is not to or via any country:
(i)which is not a member of the Hague Convention on the Civil Aspects of International Child Abduction;
(ii)for which elevated travel advice has been issued by the Australian Government Department of Foreign Affairs and Trade or the equivalent government department, including warnings such as “do not travel”, “reconsider your need to travel” and “exercise a high degree of caution”, unless the other parent has provided their written consent;

(e)the travelling parent takes out comprehensive travel insurance for the children for the duration of the proposed travel, including dates of departure and arrival;
(f)no less than two (2) weeks prior to the date of departure, the travelling parent shall furnish to the other parent an accurate itinerary including:
(i)the departure and return dates;
(ii)the country or countries to which the travelling parent and the children will travel;
(iii)copies of the flight tickets and flight numbers purchased for the travelling parent and the children;
(iv)copies of travel insurance policies for the children;
(v)the dates on which the travelling parent and children will arrive and depart in each country/ies throughout the travel period;
(vi)contact details for which the children can be contacted on during the period that they will be overseas; and
(vii)accommodation addresses and contact numbers.

(g)the travelling parent shall facilitate the children contacting the other parent regularly by telephone or video call during the travel period but no less frequently than once every two days.

31.In the event that either child travels with either parent to Country D, then:
(a)the travelling parent shall ensure that the child or children are available to spend reasonable time (not less than eight (8) hours) with the immediate family of the other parent, with that time to be negotiated in advance and included in the itinerary prior to travel;
(b)however, the travelling parent shall not be under any obligation to make arrangements that the children travel further from their proposed location in Country D to another location in order to spend time with the immediate family of the other parent.

PASSPORTS
32.The Mother be permitted to obtain or update passports for the children and this Order shall serve as an authority to the Australian Department of Foreign Affairs and Trade to forthwith issue an Australian passport, in the name of X BORN 2009 and/or Y BORN 2012 upon receipt of such Application/s and all other documents required by law or by the Australian Department of Foreign Affairs and Trade, from the Mother, and deliver such passport to the Mother upon the passport issuing.
33.The Father shall, within seven (7) days of receiving a request from the Mother, do all acts and things and sign all documents as may be required, including attendance at the Country D High Commission if required, in order to renew and keep current all Australian and Country D passports for the children and all other documents as required to facilitate international travel.
34.The children’s passports be held by the Mother and in the event that the children travel with the Father pursuant to Orders 30 and 31:
(a)the Mother must release the children’s passports and any other personal documents required for travel to the Father within seven (7) days prior to the commencement of travel;
(b)the Father must return the children’s passports and all other personal documents that were required for travel to the Mother immediately upon the children returning to her care after the travel and not more than seven (7) days of the children’s return to Australia.

35.The parties must do all acts and things to ensure that the children have current and valid Australian passports at all times.
36.In the event that the Father refuses, fails or neglects to execute any document necessary to apply for or renew any Australian or Country D passport for the children, or any other document as required to facilitate the children’s international travel, seven (7) days after being requested to do so, and any such refusal, failure or neglect by the Father to do so is proved by Affidavits filed and served by or on behalf of the Mother, a Registrar of the Federal Circuit and Family Court at Brisbane be and is hereby appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such document in the name of such party.

RESTRAINTS
37.Unless otherwise provided in the Orders or agreed between the parties in writing, the Mother and Father be restrained by injunction from attending at the children’s school, school events, extra-curricular activities (including regular training sessions and competitions, games and matches) and any related social events attended by the children when the children are not in their care, except for the following:
(a)school or extra-curricular performances (including Easter and Christmas assemblies), annual award ceremonies or assemblies where the children will receive an award (which parents are ordinarily invited by the school to attend);
(b)annual sport carnivals and end of season finals for sporting games;
(c)individual parent meetings with school staff (including parent/teacher interviews).

38.Each of the parties, their servants and agents be hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party;
(b)discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children (or any of them) and from permitting any other person to do so;
(c)saying unpleasant or unkind things of or about the other in the presence of or hearing of the children or permitting any other person to do so;
(d)discussing parenting disputes or personal grievances about parenting issues in the presence of or hearing of the children or permitting any other person to do so;
(e)passing information or messages for the other through the children;
(f)communicating about parenting arrangements, including the time the children are to spend with either parent, through the children, and all such discussions must be exchanged in writing, via text message or email, between the parties directly;
(g)discussing or making arrangements with the children which would require a variation to the parenting Orders, or enticing or encouraging the children to seek arrangements which would require a variation to the parenting Orders, unless such a variation has been agreed to by both parents in writing in advance of any communication in relation to such arrangements with the children.

39.Pursuant to s 68B of the Family Law Act 1975 (Cth), the Father be restrained by injunction from attending or approaching the Mother’s home unless during the specific times and for the specific purpose outlined in these Orders or during the specific times that have been agreed between the parties in writing.

OTHER
40.Pursuant to s 121 of the Family Law Act 1975 (Cth) the Independent Children’s Lawyer is authorised to and will provide to the children’s Paediatrician and/or Psychologist a copy of:
(a)This Order made 28 March 2024;
(b)These Reasons for Judgment delivered 28 March 2024; and
(c)The transcript of the oral testimony of Ms B.

41.The mother and the father shall jointly pay for a copy of the transcript in relation to Ms B’s oral testimony.
42.In the event that either child is invited to a party or other special occasion at a time when the child is scheduled to be in the other parent’s care, the parent who received the invitation shall forthwith upon receiving such invitation, provide the other party with a copy of such invitation to enable the other party to respond to the invitation as they may choose.
43.Each party keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and provide the other parent with seven (7) days’ prior notice of any change.
44.The children’s personal documents (including birth certificates, passports or any other primary identification documents) be held by the Mother.
45.Within seven (7) days’ of these Orders, the Father must return the children’s unabridged birth certificates to the Mother.
46.Ms B be engaged to explain these Orders to the children as soon as practical following the date on which the Orders are made.

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

The applicant in this parenting matter is Ms Katica, born 1972 (“the mother”). The mother was born in City C, Country D.
The respondent is Mr Katica, born 1969 (“the father”). The father was born in Town E, Country D.
The parties commenced cohabitation in or about 2004 and married in late 2004. The parents migrated to Australia from Country D in 2007. Both parents are Australian citizens. They separated on a final basis on 9 September 2014, though they remained within the family home for five months post-separation. The father was ordered to vacate the matrimonial home on 30 January 2015.
The parties have two children together – X born 2009 and Y born 2012. The father also has an adult daughter. The children hold dual citizenship (Australian and Country D). The parents also hold dual citizenship. The parents (and the children) speak Country D Language and English in their respective homes.
Proceedings were previously commenced in this matter in November 2014 by the mother. A Family Report was completed by Ms G in February 2015 and a final order was made by consent on 6 July 2015 – which saw the parties have equal shared parental responsibility, the children live with the mother and, from January 2016, spend time with the father five nights per fortnight from Friday afternoon until Monday morning (in Week 1) and from Wednesday afternoon to Friday morning (in Week 2). The Rice v Asplund[1] issue can be readily dealt with. Many years have past since the making of the earlier orders. The children are much older. Both parents seek a variation to the earlier final parenting Orders. Circumstances have changed sufficiently and it is appropriate to deal with the matter afresh.
[1] (1979) FLC 90-725.
The mother filed an Initiating Application on 9 September 2020, with the father filing a Response on 23 October 2020. Ms B had prepared a Family Report prior to the making of the consent Orders in July 2015. When these proceedings commenced Ms B prepared a further Family Report. This Family Report was filed on 19 February 2021. Ms B prepared a memorandum to the Court that was filed on 7 April 2021 and Ms B then prepared an updated Family Report (“the third Family Report”). The third Family Report was filed on behalf of the Independent Children’s Lawyer on 2 February 2023.
The mother seeks orders for sole parental responsibility. When the trial commenced the mother sought an order that the children live with her and spend time with the father during the school term for four nights per fortnight from Thursday afternoon until Monday morning. By the time of the closing submissions the mother argued that the children should spend three nights per fortnight with the father. The mother also sought orders in relation to holiday time and various other orders.
The father seeks an order for equal shared parental responsibility but, in relation to the health of the children and in relation to medical treatment and psychological issues (involving the children) – the father sought sole parental responsibility. In relation to living arrangements – the father seeks a week about shared care arrangement.
The Independent Children’s Lawyer, in the written submissions in reply prepared by Ms Frizelle of counsel (dated 13 September 2023) seeks an order that the mother have sole parental responsibility. The ICL also seeks an order that the children live with the mother and spend three nights per fortnight with the father from afterschool Friday until before school Monday. The ICL proposes that school holiday time be split evenly between the parents.
In relation to the question of parental responsibility – each of the parents and the ICL, to the extent that orders for sole parental responsibility are sought, have made submissions requiring consultation in most instances – when a parent is exercising sole parental responsibility.
FAMILY LAW ACT 1975 (CTH)
In a parenting case such as this, the Court is required to have careful regard to the provisions of Part VII of the Family Law Act1975 (Cth) (“the Act”). Section 60CA of the Act provides:
“In deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration."
The Court is required to “consider” various matters (note s 60CC of the Act) when determining what is in the best interests of a child. The Court is not required to specifically mention every factor contained in s 60CC (Cubbin & Cutler [2018] FamCAFC 84 at [12] – [13]).
Subject to what I have to say later in these Reasons for Judgment – I have reached the conclusion that it is in the best interests of the children to continue having a meaningful relationship with both the mother and the father. How this will be achieved will become apparent through the course of these Reasons for Judgment.
At this point in time it is important to note some of the principles concerning applications under Part VII of the Act. In particular I note:
(a)There is no need for the sections and subsections within Part VII to be considered in any specific order: Cox v Pedrana (2013) FLC 93-537 at [29]–[31]; Beckham v Desprez (2015) 55 Fam LR 310 at [31].
(b)The Full Court stated in Baghti & Baghti & Ors [2015] FamCAFC 71 (“Baghti”) at [63]:
“[The Court]…is not required to make findings in relation to all of the facts put in issue by the parties. A court need only determine those facts that are necessary for the determination of the issues between the parties.”
(c)In the same decision (Baghti) the Court approved of the decision in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 (“Tatmar Pastoral”). In Tatmar Pastoral Mahoney JA stated at pp.385 – 386:
“It is not the duty of the judge to decide every matter which is raised in argument. He may decide a case in a way which does not require the determination of a particular submission: in such a case he may put it aside or, as Lord Scarman said, merely salute it in passing…”
(d)In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 (“Whisprun”) the High Court (per Gleeson CJ, McHugh and Gummow JJ) stated at [62];
“… A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.”
(e)The approach outlined in Whisprun is the approach adopted by this Court: Eagle & Scarlett (No 2) [2020] FamCAFC 291 at [103] and Johanson & Johanson [2022] FedCFamC1A 74 at [43].
There are a number of issues that need to be considered at the outset.
JANUARY 2020 – NOVEMBER 2020
Between January 2020 and November 2020, the father unilaterally decided to suspend the children’s time with him. The mother has provided the following detailed evidence in relation to this period of time. In her trial affidavit filed on 21 March 2023 – from paragraph 57 the mother states:
“57. In January 2020, [Mr Katica] made the decision, without consultation with me or providing any reasons, to cease the children's regular time with him. On 13 January 2020, a few days after I had just undergone [an operation] and was recovering from surgery, I received an email from [Mr Katica] advising that, " ... the children will not be in a position to come to me as per regular arrangements. This applies to: - the rest of January - February. I have briefed the children. I will be available for medical or general health emergencies. I will communicate further on this closer to March. Please advise via email where you have made arrangements for sleep-overs, babysitting, pick-ups, etc. by others.
58. I responded to [Mr Katica] on 20 January 2020 advising, " ... I confirm receipt of your notice that you will not care for the children as per our Consent Orders for the remainder of January and February 2020. While you have not discussed these arrangements with me to confirm my availability, I advise that the children are welcome with me during this time, as they always are during any time that you are unable or unwilling to care for them ...
59. On 19 February 2020, I received another email from [Mr Katica] advising that, " ... the children will not be in a position to come to me as per regular arrangements. This applies to March and April. I will communicate further on this closer to May. Please advise via email where you have made arrangements for sleep-overs, babysitting, pick-ups, drop-offs, general care, etc. by parties other than you.
60. On 31 May 2020, [Mr Katica] send a further email, advising, "[Ms Katica] To advise no changes my last email. [sic] Regards".
61 . From 13 January 2020 until the First Return Date on 2 November 2020:
a. [Mr Katica] suspended the children spending time with him pursuant to the Orders however, would regularly show up at the children's sporting and training events, often without notice;
b. [Mr Katica] would instigate inconsistent contact directly with the children via calls or messages;
c. [Mr Katica] communicated directly through the children, bypassing me, to make arrangements to spend time with them, further detailed below;
d. Until I commenced proceedings on 9 September 2020, [Mr Katica] ceased almost all communicating with me about parenting matters, except for:
i. advising that he would not take up his regular parenting time (as referred to above);
ii. advising that he did not consent to [Y] receiving much needed psychologist support;
iii. declining my request to meet to discuss the current issues; and
iv. corresponding about his intentions with the children during the September / October 2020 school holidays.
62. I provided full-time care for the children, while working and recovering from the […] surgery. Between April and May 2020, this care included home-schooling during COVID-19 lockdown. During this lockdown I attended to all of the children's needs including assisting them with their schoolwork and physical activities without assistance from [Mr Katica], except for his ad hoc play dates at the park, which I transported the children to as [Mr Katica] refused to pick them up from my house.
63. Between January and November 2020, I raised my concerns with [Mr Katica] about the situation by email on multiple occasions (19 February, 5 March, 3 April and 29 July 2020), including the impact that his decision was having on the children.
64. [Mr Katica] did not respond to these emails other than to notify me of his plans with the children for the September/ October 2020 school holidays. I continued to regularly send updates to [Mr Katica] via email regarding the children, including about any medical issues or appointments and their extra-curricular activities. [Mr Katica] did not acknowledge or respond to any of these emails either, except to advise that he did not provide his consent for [Y] to receive psychological support.
65. One of the main reasons I commenced these proceedings is because I was really concerned about the impact on the children of [Mr Katica] choosing not to spend regular overnight time with them.”
I accept this evidence from the mother. To the extent that there is any conflict between this evidence of the mother and the evidence of the father - I prefer the evidence of the mother.
This conduct by the father is a matter of grave concern to the Court. It is a very significant event in the lives of young children for one of their parents (in this case the father) to unilaterality decide, for his own reasons, that he would no longer care for the children during an eleven month period. In 2020 X turned 11 years old and Y turned eight years old. It must have been very distressing for the children. The father, to this day, lacks the insight to understand the detrimental impact his decision had upon the children. In paragraph 15 of his trial affidavit (filed 21 March 2023) the father states:
“15. The reason I suspended some time with the children in 2020 is because I was concerned that [Ms Katica] was going to allege false allegations of domestic violence against me.”
This explanation from the father is far from satisfactory. This episode is one of the reasons I have come to the conclusion that the father lacks insight.
In his written submissions, which comprise some 204 pages, the father has effectively maintained that the mother was to blame for his decision to unilaterally suspend the children's time with him in 2020. I reject such a submission. It is not supported by the evidence. At page 82 of his written submissions the father states, inter alia:
“8. … (b) I have testified that I did not suspend Time with the children per se, but that he nearly suspended changeovers instead. I did continue to sped leisure time with the children and I did continue to support them during their school and sports evets, which were events for which witnesses could testify to claims of violence, should they occur.”
In fact, the father did suspend the children’s regular time with him. That was the obvious effect of his decision to suspend changeovers. It does seem to be the case that he did see the children on occasions during that period of time – as dictated by the father to the mother.
In her most recent Family Report Ms B (psychologist) stated, in relation to the father’s unilateral actions in 2020 –
“160… In my opinion his parenting decision in 2020 clearly harmed the children (emotionally and psychologically) and his actions did not reflect good judgment or coparenting capacity either.”
I accept this opinion of Ms B.
The children did, on occasions, still spend some time with the father during 2020. The view that I have formed is that this was likely to cause more confusion in the minds of children as to what on earth was going on in their lives at that time.
The email sent by the father to the mother on 13 January 2020 includes confirmation by the father that he had "briefed the children" as to why the regular parenting arrangements were not going to be operating. This conduct by the father of involving young children in the conflict between the father and the mother is, again, a matter of great concern to the court. It is further evidence of the father's lack of insight.
Further evidence in relation to the father's lack of insight can be found in the mother's trial affidavit in paragraphs 66 and 67 where the mother stated:
“66. I was and remain concerned that during this time [Mr Katica] was sending messages to the children that I was to blame for the children not spending any time with him. For example:
a. On 17 January 2020, when the children returned to my care, [Y] told me that, "Dad said that you are fighting with him and that it will be good if we don't come to him";
b. On Sunday, 9 February 2020, [Mr Katica] attended [X's sports game] at school. Afterwards [Y] asked if he could go home with [Mr Katica]. I told [Y] that he could, but [Mr Katica] declined. [Y] told me afterwards that, "Dad said you said no";
c. On Sunday 16 February 2020, [Mr Katica] again attended [X's sports game] at school. Again, [Y] asked afterwards if he could go home with [Mr Katica]. I told [Y] that he could, but [Mr Katica] declined. [Y] told me afterwards that, "Dad said we can't go to him because you are arguing with him and you need to write a letter to him. I will not be able to spend time with him again if you don't write the letter''.
d. On Monday 2 March 2020, [Mr Katica] attended the children's [sports] training. After their sessions, [Mr Katica] walked over to us and [X] and I heard [Y] and [Mr Katica] have a conversation to the following effect:
[Y]: "Why can't we come to you?"
[Mr Katica]: "Because Mum wrote a letter to me that said that I am mean towards her''
[Y]: "But you are not"
[Mr Katica]: "Yes. You can come to me again if Mum writes a letter saying that I am not mean towards her."
67. [Mr Katica] admits telling the children this in his own recount to [Ms B] as recorded at paragraph 74 of the First Family Report and paragraph 8 of the Second Family Report, although his comments recorded in the Second Family Report included "a written retraction or proof', which goes beyond what I heard him say to the children.”

I accept this evidence from the mother.
The father blames the mother for "the current fragmented parenting plan". His complaint in this regard is recorded by Ms B at paragraph 120 of her most recent Family Report. This is despite the fact that the parents both consented to the final Orders that were made in 2015. Further, after the discussions between the parents broke down in March 2019 in relation to the possibility of “block time" – the father insisted that the family revert to the final Orders from 2015. There is no reasonable basis for the father to assert that “the current fragmented parenting plan" is the mother's fault.
It is a further matter of concern to the Court that the father maintains that the mother suffered from mental health issues that impact upon the mother’s ability to parent the children and impact upon the mother’s ability to coparent with the father. There is no evidence to support the father’s view. The father does not have qualifications in relation to psychology or psychiatry. It is scandalous for one parent to allege that the other parent suffers from mental health issues when there is no evidence to support such an assertion. The mother has suffered from anxiety and some depression during the course of the parenting dispute with the father. This is not unusual in family law litigation. Ms B addressed these issues at paragraph 161 of her recent Family Report. In that paragraph, Ms B stated, inter alia:
"I note the mother has sought appropriate treatment and support for depression and anxiety during these proceedings and I commend her for that. The father asserts this is a sign she is mentally unwell, and cannot be trusted. I suggest her symptoms are expected and appropriate in her difficult, prolonged situation.”
I agree with the observations made by Ms B to the effect that the mother should be commended for obtaining help. The mother has obtained appropriate treatment. There is no evidence that these issues have impacted upon the mother’s parenting and nor is there any evidence that that these issues have impacted the mother's ability to coparent with the father. The main difficulty in relation to the coparenting relationship between the mother and father is the father’s attitude towards the mother. In the father’s view – the mother is a person who does not tell the truth. The father’s view is that the mother is guilty of deception and is guilty of manipulating the Court as well as manipulating health professionals. These views of the father – are not supported by the evidence. This makes the father’s negative attitude towards the mother even more concerning.
I reject the father’s assertion that the mother had somehow alienated the children from him and from the extended paternal family in Country D. In fact, the evidence reveals that the mother has persisted in promoting the children’s relationship with the father. This is apparent from Ms B’s most recent Family Report. At paragraph 162 Ms B states that both children appear to have positive relationships with both parents. The children told Ms B that they feel safe, loved and cared for by the mother and father. The mother again has to be commended for ensuring that the children’s relationship with the father remains, not only intact, but on a very good footing – notwithstanding the fact that the mother has had to withstand (for many years) the father’s criticisms of her.
Further, there is evidence, which I accept, that the mother has taken steps to ensure the children remain in contact with the paternal family in Country D.
Y'S BEHAVIOUR
There is a good deal of evidence to confirm that Y’s behaviour was concerning. This was certainly the view of the mother (whose evidence I accept) and it was also the view of Y’s school. Both children attend the H School.
The mother attended upon Dr K with Y in late 2020. The mother provided Dr K with reports that had been given to the mother by Y’s school. I accept that the mother was doing her best to obtain help to manage Y’s difficult behaviours.
The father attended upon Dr K (with Y) – by Skype video link in early 2021.
H School had written to the parents by letter dated late 2020. This letter is annexed to the mother’s trial affidavit. The school had required each parent to attend a meeting with Y’s classroom teacher. The letter of late 2020 indicates that during those meetings – the school had reinforced the "ongoing concern with [Y’s] persistent, disruptive and dysregulated behaviour."
The letter from the school went on to state that Y was not meeting the school behavioural expectations; Y’s behaviour was significantly impacting on the learning of himself and other school students; Y had made little improvement with systematic efforts to explicitly teach and reinforce expected behaviours within the school environment; if Y’s behaviour persisted the school would need to consider suspending the child or, I infer from the letter, possibly expel the child from the school; and the school also expressly stated that it was " … strongly recommended that you consult with the paediatrician and seek therapeutic intervention with a clinical or education psychologist and/or occupational therapist to support us in further understanding [Y’s] difficulties with emotional regulation and self-control of the school environment."
It was absolutely the right approach for the mother to take Y to see Dr K. Dr K is a Paediatrician and this kind of specialist doctor is the appropriate expert to consult in these situations. Dr K made a diagnosis of ADHD in respect of Y and Dr K recommended the use of medication. Dr K, in his letter dated late 2020 addressed to the general practitioner (Dr J) stated that in 2018 a detailed psychology assessment had been performed and the assessment had suggested that Y may have ADHD personality traits and some obsessive personality traits. Dr K noted that those issues were continuing and were harming Y’s school performance. In that letter Dr K stated that use of the medication may well provide substantial benefit for Y. The doctor stated that the consent of both parents would be required.
As I have noted, the father held a Skype interview with Dr K in early 2021.
It seems that the father was not willing to consent to the use of medication for Y. Accordingly, the mother filed an application and the matter went before a Senior Registrar (as he then was). The Senior Registrar made an Order on 7 April 2021 which contained the following orders:
“1. Orders 41, 42 and 47 of the Final Orders made by consent in the Federal Circuit Court of Australia on 6 July 2015 (BRC10051/2014) be discharged, with the remaining Orders to continue.
2. Notwithstanding any other Order made in relation to the children, [X] BORN […] 2009 and [Y] BORN […] 2012 (collectively “the children”):
a. [Y] attend upon and receive treatment from [Dr L] at [M Psychology] as recommended by [Dr L], or in the event that [Dr L] is unable to offer appointments in the foreseeable future, from [Ms N] at [O Psychology]; and
b. Both parties be restrained from arranging or facilitating the attendance of the children upon any other psychologist or counsellor without the prior written consent of the other parent or Court Order.
3. [Y] attend upon and receive treatment from [Dr K] as recommended by [Dr K] and:
a. [Dr K] be provided with an extract from the Family Report prepared by [Ms B] dated 3 February 2021 (“Family Report”) consisting of paragraphs 101, 109, 124, 126, 127 and 128 which contain [Ms B’s] observations and evaluation that relate to the therapeutic support, if any, that ought to be provided to [Y];
b. In the event that [Dr K] is unable or unavailable to assess or treat [Y], then another pediatrician as recommended by [Dr J], the children’s current general practitioner, shall take the role of [Dr K] provided for in this Order.
4. In relation to recommendations made by the practitioners provided for in Orders 2 and 3:
a. The Mother be entitled to provide sole parental consent to any treatment recommended by such practitioners;
b. In exercising her responsibilities for decision making pursuant to Order 4.a above, the Mother must:
i. inform the Father of any recommended treatment in writing;
ii. take the Father’s view into account, if provided within a reasonable timeframe, without being bound to follow his recommendations.”
The father provides no credible evidence to support his contention that there was some type of conspiracy at Y’s school in relation to the school’s complaints concerning Y’s behaviour and the eventual diagnosis of Y’s ADHD.
It is extremely good news that Y's behaviour has improved. This occurred after the diagnosis of ADHD and after Y commenced treatment with medication. The improvement in Y's behaviour was confirmed by the school in a letter dated late 2021 to the parents. That letter is contained at page 72 of the ICL’s tender bundle (Exhibit 2). There is also a letter from Dr K dated early 2023 addressed to the general practitioner (Dr J). Dr K states –
“Dear [Dr J],
I reviewed [Y] today with his mother, [Ms Katica]. [Y] has ADHD. Treatment with [medication] has been transformative for [Y]. He is thriving at school. His academic performance and behaviour are excellent. [Y] was disappointed to leave school today to visit me.
[Y] is taking […] the standard […] tablet in the morning on school days. The treatment is never used on weekends or holiday breaks. He tolerates the treatment well and does not describe any side effects.
[Y's] weight gain and growth are excellent.
[Y's[ treatment should continue unchanged. We will catch up either late this year or early next year.
With kind regards
Yours truly
[Dr K]”
The evidence before the Court leads the Court to conclude that the mother’s sensible attitude in obtaining medical help for Y has been very much in Y's best interests. In contrast to the mother’s sensible attitude concerning this issue – the father’s conduct was obstructive. I understand that the father would not have been keen to admit that his child (Y) had a problem. It is often the case that parents have difficulty accepting these facts. However, given the evidence of Y’s poor behaviour at the school and given how much Y’s behaviour has improved since the commencement of the medication regime prescribed by Dr K – one would hope that the father has come to realise that the mother was right to take the child to see the Paediatrician and obtain help for the child. I have not been referred to any evidence that would indicate to the Court that the father has ever acknowledged that the mother took the correct approach in relation to the treatment for Y.
This conduct of the father concerning the diagnosis of ADHD in respect of Y – is sufficient reason alone for the Court to conclude that there will have to be an Order in favour of the mother for sole parental responsibility. There are additional factors that lead the Court to conclude that the mother should have sole parental responsibility for the children – and I will address those factors further in these reasons for judgment.
PSYCHOLOGICAL ASSISTANCE FOR X
In paragraph 240 of the mother’s trial affidavit she states –
“240. Given the challenges that [X] has faced with our divorce and living with a younger sibling who has challenging behaviour, I have always kept a close eye on how she was coping. Prior to 2020, I did not have concerns that [X] needed professional support. [X] was consistently receiving excellent feedback from her school..“
I accept this evidence from the mother.
The mother again encountered difficulties in the parenting relationship with the father – when, in November 2021, the mother sent an email to the father telling him of a tentative arrangement and seeking his consent for the child X to attend upon Ms P, a family counsellor. The father would only agree if he (the father) was the only parent to engage with X about the counselling and the father insisted that he should accompany X to the first appointment. The father was also insisting that the counselling be reportable. This was against the recommendation of Ms B. In this regard I note paragraph 124 of Ms B’s report that was filed in February 2021.
Eventually, the ICL had to intervene to ensure that the child X attended upon Ms F. Ms F is a psychologist and the counselling was on a nonreportable basis. It commenced in late 2022 – more than nine months after it was first raised by the mother. The delay in obtaining treatment for X occurred only because of the father’s obstructive conduct.
OTHER MATTERS FOR CONSIDERATION RELATING TO THE PARENTING OF THE CHILDREN
It is the case that the father appears to blame the mother for what the father describes as X’s weight problem and X’s soiling problem. However the evidence does lead the Court to conclude that the mother has acted appropriately to address those issues.
The father criticises the mother because X no longer is involved in her sport and Y is no longer playing his sport. In cross examination the father asserted that this was as a result of the mother not being “a natural athlete”. In fact, what has occurred, is that the children have expressed their desire to explore other opportunities such as being involved in other sports and activities.
It is most unfortunate that the father holds the view that he should not make any contribution to the children’s school expenses. Those expenses total approximately $30,000 per year. The father agreed to the enrolment of the children at H School. The children appear to be thriving in that environment. It is another example of the father’s lack of insight and his lack of cooperation with the mother.
The father’s view is that the parties are able to communicate and they are able to coparent. The overwhelming weight of the evidence is to the contrary. The father (as been pointed out) has been relentlessly critical of the mother.
I accept the mother’s evidence that communication by email between the parents has left the mother feeling exhausted and overwhelmed. I note the evidence of the mother at paragraphs 357 and 358 of her trial affidavit. In those paragraphs the mother states:
“357. The sheer volume of emails that [Mr Katica] sends and his expression means that it takes considerable time to read and respond. This has been exhausting and sometimes overwhelming for me over the years. It has been a significant distraction and, at times, has adversely impacted on my time with the children.
358. At times [Mr Katica] also sends me numerous emails that I consider unnecessary about day-to-day decisions or arrangements I make while the children are in my care (for which we are not required to consult with each other) and reminders or instructions to act on school correspondence, which is something that I have always been prompt at attending to without his involvement.”
I accept this evidence from the mother.
I have had regard to the evidence of both parents concerning communications between them. The mother has provided, in paragraph 356 of her trial affidavit, some examples of the email communication between the parents. The father also tendered certain communications during the course of the trial. The father argued that these communications supported his view that the level or the standard of communication was satisfactory. The level of communication is not satisfactory. I accept the evidence of the mother. The father is consistently negative in his approach towards the mother and this is apparent from his conduct and from the communication. Paragraph 356 of the mother’s trial affidavit provides the following examples of the father’s written communications with the mother. That paragraph states:
“356. Since our separation, [Mr Katica] has regularly sent me lengthy emails that are sometimes difficult to understand, as well as multiple emails about the same topics. Many of [Mr Katica's] communications have a hostile and/or condescending tone and contain inflammatory remarks, accusations, and derogatory comments about my character, integrity, motives and competence as a parent. Some of the many examples over the years in [Mr Katica's] written communications to me include:
a.   On 14 November 2016: "With respect, judgment in terms of emotional matters is not your forte ."
b.   27 February 2018: "Parents make mistakes - no doubt. That's normal. But gruesome errors that have been warned about before - and such warnings unilaterally dismissed - are not acceptable. There is little excuse for stubbornness."
c.   On 26 March 2019:
i."If you were genuinely interested in serving the best interest of the children by returning to the 5-day block arrangement - and not your own - then you would do so with immediate effect. There is no argument for any other option except your personal interest above that of the children. "
ii."I do not believe you are being sincere and I do not believe you are being honest"
iii."You need to start acting the way you talk because your words and your actions do not line up."
d.   On 20 May 2019: "I am left with no choice but to issue this strongly worded notice."
e.   On 28 October 2019: "Your response is puzzling at best, cynical at worst. And that on important matters concerning your children. You continue to reference inaccuracies and carefully selected glimpses of the turn of events to manipulate perception. It appears you cannot help yourself doing that" and "You have shown yourself to act in bad faith ".
f.    On 30 November 2020: "your observations and reports to assessors to date concerning [Y] are not recognised by me as without your own special brand of prejudice, selectivity in sharing relevant information and agenda so as to, amongst other things, attempt to deny improved changeover arrangements for the children in staying over with their father. You have served your own needs in this matter and not the needs of [Y] or [X]. "
g.   On 16 November 2021:
i. Unfortunately, I have to point out that you have not been a help for [X] around these kinds of issues and are likely not to be a help once more: you have sabotaged counselling for [X] since 2015."
ii. “I will not deny that there is a part of me that says you have done this deliberately so as to support your ongoing court action”
iii. ''Therefore, you have over many years acted deliberately and systematically to stop [X] from getting counselling I psychological support, and you have damaged her desire to do so. Forgive me for anticipating that you will want to possibly also sabotage [X's] counselling support through [Ms P] this time round through the "Supporting Children After Separation" program."”
I accept this evidence from the mother. It is further evidence of the father’s relentless criticism and negativity towards the mother. There are other examples of the father’s unreasonable approach to the coparenting of the children. I note the mother’s evidence in paragraphs 359, 360 and 361 as follows:
“359. One of the many examples of the difficulties that we have making day to day parenting arrangements is [Mr Katica] applying different standards for both of us to suit his own needs. An example was the children's school camps in [early] and [mid] 2021 respectively. On both occasions, the school had indicated that the children would arrive back to school early so parents could pick the children up early rather than the usual time of 3.00pm.
360. For [X's] school camp in [early] 2021, when I checked with [Mr Katica] if he was aware of [X's] earlier arrival, he replied on the morning […] that he was not available to pick [X] up. He followed up with an email saying that, "[s]ince [X] will arrive for pickup during school hours today … my understanding is that you will pick her up because she is in your care. Thus, she will be in your care till after 3pm at least". Given [Mr Katica's] approach, I collected [X] at the conclusion of camp and the children went to [Mr Katica] later that afternoon.
361. However, [Mr Katica's] approach was completely different for [Y's] school camp in [mid] 2021. I proposed to [Mr Katica] that I pick [Y] up early so I could also take his dirty laundry home, and that [Mr Katica] could pick [Y] up from my house on his way to get [X] from school. [Mr Katica] responded advising that he preferred to pick [Y] up himself and that he didn't consider it necessary for his laundry to be washed before the following Monday. When I responded indicating that I did not consider that to be a practical arrangement and that I would pick [Y] up as he was in my care during school hours, [Mr Katica] replied saying, '[i]t is unfortunately not appropriate to argue that way. 'After school' means 'after the school has come out'. Per definition it is when the children go home after the conclusion of the school's activities. Thus, after the conclusion of [Y's] camp, in other words when the school bus arrives at school and the children go home with their parents .. . it is 'after school'." In the end I agreed to what [Mr Katica] wanted so that the issue did not escalate, but arranged to collect [Y’s] laundry from school after [Mr Katica] and [Y] had left.”

I accept this evidence from the mother. It is, yet again, examples of the father’s conduct which makes coparenting very difficult.
The mother’s trial affidavit is replete with examples of the father’s difficult conduct in relation to parenting.
The mother was an impressive witness. On the other hand, the father left the Court with the impression that he lacks insight in relation to his conduct. He did not seem to appreciate that his voluminous communication was a form of harassment. The wording used by him in his communications with the mother is condescending. As I have stated earlier, he appears to have been relentlessly negative of the mother and relentlessly critical of her. There is no credible evidence that the mother has deliberately misled any professional or the Court – as is alleged by the father.
The conclusion I have reached is that the manner in which the father has communicated with the mother does amount to family violence. The father’s communication is condescending; the father’s communication is critical of the mother; the father’s communication is negative towards the mother; the father’s conduct and his communication lead the Court to the inevitable conclusion that he should be described as obstructionist. In circumstances where communication of this kind is voluminous and relentless (as in this case) it leads the Court to conclude that the father has engaged in family violence towards the mother. The father does not appreciate that coercive control and family violence has occurred. The father only seems to equate family violence to the presence of physical violence.
In addition, the father has exposed the children to the dispute between the parents. This is on his own admission. As I have noted earlier the father “briefed” the children in relation to why it was that the father was not going to comply with the earlier parenting Order during the period of time between January and November 2020. I have no doubt whatsoever that the father has continued to speak to the children in relation to adult issues and to seek to influence the children. This is not child focussed behaviour by the father. The father lacks insight.
It is well settled in decisions of the High Court of Australia such as M & M (1986) 166 CLR 69 and decisions of the Full Court of this Court (including, most recently, Isles & Nelissen (2022) FLC 94-092 (“Nelissen”)) 2022 – that the Court is required to (amongst other things) assess future risks of harm to the children. The decision in Nelissen relied heavily upon a previous decision of Austin J in Fitzwater & Fitzwater (2019) 60 Fam LR 212 where his Honour stated, inter alia:
“133. In civil proceedings, s 140(1) of the Evidence Act provides the “case of a party” must be found proven if the court is satisfied of its proof on the balance of probabilities. For that purpose, the “case of a party” is defined (in the Dictionary to the Evidence Act) to mean “the facts in issue in respect of which the party bears the legal burden of proof”. The substantive law determines where the legal burden of proof falls in respect of facts in issue.
134. It must be borne in mind that proceedings in respect of children under Part VII of the Act, while civil in nature, are not disputes inter partes in the ordinary sense of that expression because the court is not enforcing a parental right to custody or access (M v M at 76; ZP v PS (1994) 181 CLR 639 at 647). The paramount consideration in Part VII proceedings is the child’s best interests (ss 60CA, 65AA of the Act). Unlike in other forms of civil litigation, no party bears an onus of proving the factual elements of a common law, equitable, or statutory cause of action to justify an entitlement to remedy. Rather, each party adduces evidence and propounds a suite of orders which he or she contends meets the child’s best interests, which gives the proceedings a different character (CDJ v VAJ at 188-189). The resultant orders represent the court’s discretionary judgment about how the child’s interests will be best served and, due to the sheer breadth of the discretion, two judges may, with complete integrity and upon the same material, come to differing conclusions (CDJ v VAJ at 231).
135. The conclusion reached by a court in Part VII proceedings, as reflected in the decrees it makes, is still premised upon proof of relevant facts and circumstances by evidence, but the law draws a distinction between proof of historical facts and the prediction of future possibilities. In determining what did or did not happen in the past, a court decides on the balance of probabilities, but not when hypothesising about future possibilities (Malec v J.C. Hutton Pty Ltd (1990) 169 CLR 638 (“Malec”)).
136. In Malec, Brennan and Dawson JJ said (at 639-640):
…facts of that [historical] kind are ascertained for the purposes of civil litigation on the balance of probabilities…the ascertainment of [future] earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history…the court must form an estimate of the likelihood that the possibility will occur…
…
…To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation…
and Deane, Gaudron and McHugh JJ said (at 643):
…The future may be predicted and the hypothetical may be conjectured… Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring…
137. The High Court was there referring to the prediction of a plaintiff’s income earning capacity in the context of quantifying personal injury damages, but the principle has been applied just as aptly to predictions about the risk of harm to children in this jurisdiction (see Oswald & Karrington (2016) FLC 93-726 at [60]; Bant & Clayton (2015) 53 Fam LR 621 at [99], [107], [171], [172]). Such application of principle is consistent with M v M.
138. The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events, the contemplation of risk entails the foresight of possible harm. It is an oddity to expect that the mere possibility of future harm can or should be proven as a probability, as has been implied before (Potter and Potter (2007) FLC 93-326 at [110], [129]). Risks of harm must be heeded even if they are improbable eventualities.
139. Speaking of the risk of some future occurrence is just another way of expressing the chance of it happening. The concept of chance lies along a continuum, encompassing all outcomes which lie in the range between highly probable and remotely possible, assuming the polar extremes of certainty are ignored. In the current context, the higher the chance of the children’s sexual abuse, the greater the risk of their physical or psychological harm. At some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable.”
It is abundantly clear to the Court that, in the past, the father has involved the children in the parenting dispute and discussed with the children adult issues that he ought not to have discussed. It is also clear to the Court that the father has, in the past, refused to provide his consent in relation to health treatment for the children – including Y’s diagnosis and treatment for ADHD and X’s attendance upon psychologists in a non-reportable setting. The risk that the father will continue to be obstructive in relation to the parenting of the children is very high. In my assessment, the father’s negative attitude towards the mother is not likely to change in the future. The father lacks insight. These are all risks for the children that I have taken into account.
THE ADDITIONAL CONSIDERATIONS IN S 60 CC(3)
I note that the children have expressed views in relation to living in a week about shared care arrangement with the parents. Unfortunately, the view that I have formed is that these views are very likely strongly influenced by the father. For the reasons that are contained herein – I am not of the view that a week about shared care arrangement is in the best interests of these children. In considering this issue I have indeed taken into account the maturity of these children and their level of understanding. The view that I have formed is that the father is such a strong character that it is highly likely that his influence upon the children has impacted the children’s views and wishes as expressed in relation to the living arrangements (s 60CC(3)(a)).
I accept that each of the parents has a loving relationship with the children. The difficulty is that the father is not child focussed – and he does not have insight into his lack of child focus (s 60CC(3)(b)).
In general, each parent has taken the opportunity to communicate and spend time with the children – except for the very extended period of time where the father voluntarily absented himself from the lives of the children by refusing to see the children on a regular basis in accordance with the Orders made. The father’s conduct in this regard was inappropriate, not child focussed and without proper justification (s 60CC(3)(c)).
In the temporal sense – each parent has fulfilled their obligations to maintain the children (s 60CC(3)(ca)) – except that the father has refused to contribute towards the payment of the school fees for the children.
In the event that the arrangements are changed in respect of the children – I consider it will be a positive outcome for the children to have block time with each parent. The disjointed approach leads to too many changeovers and given the nature of the relationship between the parents – this is only making things, in my view, harder for the children. The nature of the relationship between the parents is, primarily, because of the father’s negative approach towards the mother as outlined extensively in these reasons.
There are no particular practical difficulties or expenses relating to the communication between the children and the parents (s 60CC(3)(e)).
I am completely satisfied that the mother has the capacity to provide for the needs of the children – including their emotional and intellectual needs. In relation to the emotional needs of the children – I am not satisfied that the father fully appreciates the impact upon the children of some of his conduct. This would include the period of time where the father unilaterally absented himself from spending regular time with the children in 2020.
I have already provided reasons in relation to most of the other subsections in s 60CC(3). This includes the findings made by the Court concerning family violence. In this regard I note the evidence of Ms B contained in paragraph 192 of her recent Family Report. As will be seen from these Reasons for Judgment – the father has adopted a very difficult attitude towards the mother and towards the process of coparenting. The view that I have formed is (as already stated) the father has engaged in what has been described by Ms B (in paragraph 192 of her recent report) as coercive controlling family violence. The Court has come to the same conclusion.
SECTION 60CC(3)(M)
As noted, both parents want to move to block time. This is supported by Ms B. Ms B recommended (in paragraph 200 of her most recent report) that during school term the children live primarily with the mother and spend four nights per fortnight with the father from Thursday after school to before school Monday. Ms B gave further evidence during the course of the trial and I will refer to this shortly.
The father wanted a week about arrangement – which I find difficult to comprehend noting that his attitude towards the mother has been so overwhelmingly negative. The father’s criticisms of the mother are such that the Court is surprised that the father would consider that the mother is a good enough parent to care for the children in a week about arrangement. Be that as it may – the father seeks a week about arrangement. But I have come to the conclusion that equal time is not possible in this case because of the lack of cooperation shown by the father towards the mother. I accept that, in all parenting situations, some blame will rest with both parents. But the weight of the evidence indicates that it is the father’s conduct and his attitude towards the mother which are the main problems for this family.
The mother seeks an order that the children live with her and spend three nights per fortnight with the father. In fact, I do note that was what the mother told Ms B in the most recent Family Report.
At the commencement of the trial the view of the ICL was that the children should live primarily with the mother and spend four nights per fortnight with the father. By the time of the written submissions in reply (13 September 2023) – the ICL’s position had changed. The ICL agreed with the approach submitted on behalf of the mother, namely, that the children should only spend three nights per fortnight with the father during school term. In the oral testimony of Ms B she was asked certain questions by counsel for the mother. Ms B stated that the father’s opinions about the mother and his beliefs about her conduct form part of an “entrenched belief system”.[2]
[2] Transcript 14 April 2023, page 261, line 24.
In particular, the evidence of Ms B relating to the father’s “entrenched belief system” includes:
(a)That the mental health issues experienced by the mother impact upon the mother’s capacity to care for the children;
(b)That the diagnosis that was undertaken by Dr K of Y for ADHD came about because of some manipulative behaviour by the mother (possibly also involving the school);
(c)That the mother has not properly addressed X’s hygiene issues;
(d)That the mother failed to obtain appropriate psychological counselling for X; and
(e)That the mother has not only manipulated medical practitioners but has also manipulated the Court through deception and lies to various judicial officers.[3]
[3] Note pages 260 and 261 of the transcript of 14 April 2023.
I accept that evidence of Ms B.
It is also the opinion of Ms B that the conflict between the parents and the children’s exposure to the conflict will not lessen in the event that there was an equal time order. Indeed, in the event of an equal time order the children will be exposed more and more to the father’s entrenched belief system and views.[4]
[4] Note page 262 of the transcript of 14 April 2023.
Further, I accept the opinion of Ms B that there is a need to limit the children’s exposure to conflict and this can be achieved by living primarily with the mother and implementing a block time order. From page 263 of the transcript on 14 April 2023 Ms B was asked for her opinion in the event that the Court made certain findings. If the Court was to find that:
(1)The father is not child focussed and this has been evidenced by (amongst other things) suddenly stopping regular time with the children between January and November 2020;
(2)The father has involved the children in the dispute between the parents;
(3)The father has views that can be described as anti-diagnosis, anti-treatment and anti-vaccination;
(4)The father undermines the mother’s parental authority and the children’s relationship with the mother by his behaviours;
(5)The father engages in coercive controlling behaviour by the use of voluminous condescending, threatening or intimidating correspondence.
Ms B was then asked:
“Mr Dodd: If the court makes those findings, then you would accept, wouldn’t you, that one alternative for these arrangements for the children is to, in fact, limit further their time with their father from the four nights a fortnight that you propose?
[Ms B]: Yes.
Mr Dodd: Because your concern would be on the basis of those findings, that there is a significant risk to these children and indeed the greatest risk to these children in this case that they will be further exposed to the conflict between the parents. Yes?
[Ms B]: Yes, that’s accurate.”
Later in her oral testimony from page 345 of the transcript of 14 April 2023, I note the following evidence of Ms B stated:
“His Honour: … [Ms B], if the court were to make some or all of the findings listed earlier in cross-examination by Mr Dodd, then the court could consider taking an approach that would see the time arrangements less than four nights a fortnight, which is what you’ve currently recommended? Is that really what your opinion is?
[Ms B]: Yes, your Honour. If – certainly if all five were found to be the case, then I would have concerns about the children’s level of exposure to ongoing – I’m not sure how to summarise, but ongoing animosity or – or denigration or conflicting worlds in their parents.
His Honour: And if all five were found, what would be your opinion in relation to the time arrangements? Can you state one now or not?
[Ms B]: My – my view would be that the children certainly value their time with both parents, and they value meaningful time, but they also have a need to be protected from adverse experience. And I would anticipate that every other weekend might appropriate. Less than that, I’m concerned that the children would simply miss the father too much, and it may have negative consequences if they believe he has been hard done by, for example. So there is merit in considering less time, if that also means reducing exposure to potential adverse behaviour. But again, it’s to be balanced with the children’s wishes to have meaningful time with the father as well.”
All of the five findings that were put in cross examination to Ms B have been made by the Court. Several of the five crucial findings have been referred to more than once and the following is not an exhaustive list:
(1)Finding number one – see paragraphs 19 and 61;
(2)Finding number two – see paragraph 63;
(3)Finding number three – see paragraphs 43, 44, 63 and 87;
(4)Finding number four – see paragraphs 63 and 83; and
(5)Finding number five - see paragraphs 60 and 71.
The written opinion of Ms B was that the children spend four nights per fortnight with the father. In her oral testimony Ms B said that in the event that the Court were to make the five findings referred to, Ms B’s opinion is that there is merit in considering less time with the father – that is, less than four nights per fortnight. Ms B referred to “every other weekend”. I agree with Ms B’s opinion. There is merit in making a final order whereby the children spend time with the father from after school Friday until before school Monday every second weekend. It is an order that is in the best interests of the children. I am very mindful of the ages of the children and their expressed wishes. But the conflict has been so entrenched and the father’s conduct has been so difficult, confrontational, obstructive and uncooperative that it is in the best interests of the children to reduce the children’s time with the father (during school term) to three nights per fortnight. This will reduce the children’s exposure to the father’s views and beliefs – particularly the father’s negative views about the mother. This will also reduce the children’s exposure to the conflict between the parents because it has been the father who has involved the children in the conflict. There will be less changeovers than the current arrangement. This is also in the best interests of the children.
As I have stated, both the mother and the ICL began the trial on the basis that the children would spend four nights per fortnight with the father. The father did not agree with that. The father sought an equal time arrangement. The relationship between the parents is one of high conflict. The fact that there may be some examples of correspondence or communication that do not indicate high conflict is neither here nor there. The overwhelming weight of the evidence leads the Court to conclude that it is a high conflict situation. The communication between the parents is characterised by the father’s criticisms of the mother and the mother’s parenting.

I had an opportunity to observe the father’s evidence in the witness box. As I have stated throughout these reasons – the father lacks insight. Taking into account the findings I have made (including concerning the father’s attitude towards the mother and his involvement of the children in the dispute) I have come to the conclusion that notwithstanding the children’s views, the best interests of the children will be served by reducing the amount of time that the children spend with the father. That time will be reduced to three nights per fortnight.
SECTION 61DA
It will be apparent from these Reasons for Judgment that the presumption of equal shared parental responsibility has been rebutted. There is evidence of family violence. This has been outlined in the Reasons for Judgment and relates to a large extent to the father’s relentless criticisms and coercive controlling behaviour or attempted coercive controlling behaviour by the father of the mother. The nature of the father’s communications with the mother is a matter of great concern for the Court and I have referred to this aspect of the case in these reasons. The father is relentlessly critical of the mother. Equal shared parental responsibility simply will not work.
The father’s conduct does indicate that he has a strong tendency to avoid obtaining medical diagnoses and treatment in relation to any of the children’s particular health issues (I am thinking here primarily about Y’s ADHD and X’s psychological issues).
SECTION 65DAA
There is not going to be any order for equal shared parental responsibility and hence the Court is not required to consider s 65DAA. For completeness, if I were considering s 65DAA, the conclusion I have reached is that equal time between the parents simply is not in the best interests of these children. That is apparent from the Reasons for Judgment. Furthermore, it is not reasonably practical. The manner in which the father communicates with the mother and the negative view held by the father about the mother means that all of the myriad of decisions that need to be made between parents in an equal shared care arrangement would simply not be possible in this case. It would put the mother under unbearable strain and pressure.
As to substantial and significant time – it seems to me that will be the net result of an order whereby the children spend time with the father from after school Friday to before school Monday. I note in particular s 65DAA(3) and it seems to me that fortnightly time with the father from after school Friday to before school Monday does come within the definition of substantial and significant time. Such an outcome is in the best interests of the children and is reasonably practical. Even if I am wrong in relation to my view of the definition (of substantial and significant time) – that will not change my view in relation to the appropriate orders. The orders that the Court will make accord with the opinion of Ms B as further explained by her in her oral testimony. The orders to be made reflect the Reasons for Judgment.
CONCLUSION
In many respects this case is about risk. The risk to the children is further exposure to the conflict between the parents – in the event that the children spend too much time living in the household of the father. The father lacks insight. He cannot see that he has done anything wrong or said anything wrong – in his communication with the mother or in relation to his parenting of the children. He does not understand that he has exposed the children to the conflict and because he does not understand that – he does not know how to limit the children’s exposure to the conflict – particularly when they are in his care. The only way that the Court can therefore ameliorate the risk of harm to the children (in this case being a risk of psychological and emotional harm) is to limit the children’s time with the father to three nights per fortnight from after school Friday to before school Monday. In my view the orders sought by the mother are appropriate. The orders reflect the Reasons for Judgment and the orders particularly take into account the findings made by the Court including the findings relating to the high level of conflict between the parents and the father’s lack of insight in relation to many issues. The orders also take into account the fact that there will be an order for sole parental responsibility. The ICL agrees with the main thrust of the orders proposed by the mother – especially in relation to the spending time arrangements with the father and the order for sole parental responsibility in favour of the mother. The proposal for half holidays is in the best interests of the children. I do not agree that it is appropriate to make an order requiring the father to attend counselling. I would hope that the father, having read these Reasons for Judgment, takes the initiative himself but I will not require him to do so by order of the Court. I agree with the ICL’s proposal that a copy of the final orders, the Reasons for Judgment and the transcript of the oral evidence of Ms B should be provided to the children’s paediatrician (if any) and psychologist (if any). Appropriate leave will be given pursuant to s 121 of the Act. I note that judgment is being delivered and the final orders are being made today, 28 March 2024. Today is Holy Thursday – that is, the Thursday before Good Friday referred to in Order 10. In the best interests of the children – whatever arrangement has been made for this Easter long weekend should remain in place and Order 10 shall become effective from Easter 2025.
Both the father and the ICL were on notice as to the suite of orders proposed by the mother in her written submissions. Reference can be made to the mother’s Case Outline filed on 4 April 2023. In addition, it was very apparent during the course of the trial and particularly in relation to the cross examination of Ms B by the mother’s counsel (Mr Dodd), that the mother was proposing that the father’s time be reduced to three nights per fortnight. I have considered the submissions of both parties and the ICL. It is not necessary for the Court to provide any further reasons in relation to the precise wording of each and every order.
If there is to be an application for costs – such an application will need to be filed separately.

I certify that the preceding ninety-two (92) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Howard.
Associate:
Dated: 28 March 2024

File number(s):	BRC 10051 of 2014
Judgment of:	HOWARD J
Date of judgment:	28 March 2024
Catchwords:	FAMILY LAW – PARENTING – Where the mother seeks sole parental responsibility – Where the mother seeks a reduction in the time that the children spend with the father from five nights per fortnight to three nights per fortnight – Where the father seeks an order for equal shared parental responsibility and the father seeks sole parental responsibility in respect of certain issues – Where the father seeks an equal time order – Where there is a long history of conflict in the case – Where there are significant difficulties in relation to the communication between the parents – Where it is in the best interests of the children for the mother to have sole parental responsibility and for the children to live with the mother and spend three nights per fortnight with the father.
Legislation:	Family Law Act1975 (Cth) ss 60CA, 60CC, 61DA, 65DAA, 121
Cases cited:	Beckham v Desprez (2015) 55 Fam LR 310 Baghti & Baghti & Ors [2015] FamCAFC 71 Cox v Pedrana (2013) FLC 93-537 Cubbin & Cutler [2018] FamCAFC 84 Eagle & Scarlett (No 2) [2020] FamCAFC 291 Fitzwater & Fitzwater (2019) 60 Fam LR 212 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Isles & Nelissen (2022) FLC 94-092 Johanson & Johanson [2022] FedCFamC1A 74 M & M (1986) 166 CLR 69 Rice v Asplund (1979) FLC 90-725 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
Division:	Division 1 First Instance
Number of paragraphs:	92
Date of last submission:	13 September 2023
Date of hearing:	11, 12, 13 and 14 of April 2023
Place:	Brisbane
Counsel for the Applicant:	Mr Dodd
Solicitor for the Applicant:	Phillips Family Law
Counsel for the Respondent:	Mr Coe
Solicitor for the Respondent:	Omnia Legal
Counsel for the Independent Children’s Lawyer:	Ms Frizelle
Solicitor for the Independent Children’s Lawyer:	Legal Aid Queensland

BRC 10051 of 2014
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS KATICA Applicant
AND:	MR KATICA Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOWARD J
DATE OF ORDER:	28 MARCH 2024