Kesselman & Brimble
[2025] FedCFamC1F 1
•24 January 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kesselman & Brimble [2025] FedCFamC1F 1
File number(s): SYC 8044 of 2021 Judgment of: BOYLE J Date of judgment: 24 January 2025 Catchwords: FAMILY LAW – PARENTING – Where children live with the mother and spend time with the father – Where father seeks an equal time week about arrangement by 2030 – Where the children’s needs are complex and require a multidisciplinary support system – Where the court finds it is in the children’s best interests for them to reside with the mother and spend time with the father – Where the father seeks that the parties have shared decision making authority and the mother seeks sole parental responsibility and decision making authority for the children – Where the court finds that the father had perpetrated family violence against the mother – Where the mother suffers from PTSD and anxiety – Where orders are made for the mother to have sole parental responsibility and decision making authority for the children. Legislation: Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CC(2), 60CC(2A), 61D(3). Cases cited: Isles & Nelissen (2022) FLC 94-042
M v M (1988) 166 CLR 69; [1988] HCA 68
Pickford & Pickford [2024] FedCFamC1A 249
Division: Division 1 First Instance Number of paragraphs: 147 Date of hearing: 15-17 October 2024 Place: Sydney Counsel for the Applicant: Ms Clifford Solicitor for the Applicant: Barkus Doolan Winning Counsel for the Respondent: Mr Hodgson Solicitor for the Respondent: O’Sullivan Legal ORDERS
SYC 8044 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KESSELMAN
Applicant
AND: MR BRIMBLE
Respondent
ORDER MADE BY:
BOYLE J
DATE OF ORDER:
24 JANUARY 2025
THE COURT NOTES THAT:
A.The following definitions apply for the purpose of these Orders:
a."X" means the parties' child X born 2015.
b."Y" means the parents' child Y born 2017.
c."children" means X and Y.
d."child" means X and/or Y.
e."Father" means Mr Brimble born 1975.
f."Mother" means Ms Kesselman born 1978.
g."parent" means either the Father and/or the Mother.
h."parents" means the Father and the Mother.
ON A FINAL BASIS THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Decision making
2.The Mother shall have parental responsibility for the children and sole decision-making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the children.
3.For the purpose of exercising parental responsibility for the children and sole decision‑making authority in respect of all decisions concerning major long-term issues as defined in section 4(1) of the Family Law Act 1975 (Cth) affecting the children, the Mother shall:
(a)Inform the Father in writing of the decision to be made;
(b)Invite written comments from the Father which the Father shall provide within 7 days unless otherwise agreed between the parties in writing;
(c)Take such comments into account when making the decision; and
(d)Inform the Father in writing of the decision.
Time during the school term
4.The children shall live with the Mother and spend time with the Father during school terms as agreed in writing and failing agreement, from after school each alternate Thursday (or 3:00pm if Thursday is a non-school day) until before school the following Monday (or 9:00am if Monday is a non-school day).
Time during the current summer school holidays
5.That Orders 3.8 to 3.10 of the Consent Orders made on 25 May 2022 by Judicial Registrar Turner remain in place until the beginning of the 2025 school year, subject to the children returning to the Mother from 9:00am on the day prior to the first day of the new school term.
Time during the summer school holidays until 2027
6.That the children shall spend time with the parents during the summer school holidays, as agreed in writing and failing agreement as follows, with changeover to occur at 3:00pm:
(a)With the Mother for the first week of the summer school holidays in even numbered years and each alternate week thereafter, and with the Mother for the second week of the summer school holidays in odd numbered years and each alternate week thereafter;
(b)With the Father for the second week of the summer school holidays in even numbered years and each alternate week thereafter and with the Father for the first week of the summer school holidays in odd numbered years and each alternate week thereafter;
(c)The time pursuant to Order 6(a) and 6(b) be suspended from 9:00am on the day prior to the first day of school for next school term, with the children to live with the Mother from 9:00am on the day prior to the first day of the new school term until the commencement of school, notwithstanding any other order.
Time during the summer school holidays from 2027
7.That the children shall spend time with the parents during the summer school holidays commencing in odd numbered years and each alternate year thereafter, as agreed in writing and failing agreement as follows with changeover to occur at 3:00pm:
(a)With the Father for the first week of the summer school holidays;
(b)With the Mother for the second week of the summer school holidays;
(c)With the Father for the third week and fourth week of the summer school holidays;
(d)With the Mother for the fifth and sixth week of the summer school holidays;
(e)In the event there are any days remaining in the school holidays following the time at Order 7(d), the children spend that time with the Father subject to Order 7(f).
(f)The time pursuant to Order 7(a) to 7(e) be suspended from 9:00am on the day prior to the first day of school for next school term, with the children to spend time with the Mother from 9:00am on the day prior to the first day of the new school term until the commencement of school, notwithstanding any other order.
Time during the summer school holidays from 2028
8.That the children shall spend time with the parents during the summer school holidays commencing in even numbered years and each alternate year thereafter, as agreed in writing and failing agreement as follows with changeover to occur at 3:00pm:
(a)With the Mother for the first week of the summer school holidays;
(b)With the Father for the second week of the summer school holidays;
(c)With the Mother for the third week and fourth week of the summer school holidays;
(d)With the Father for the fifth and sixth week of the summer school holidays;
(e)In the event there are any days remaining in the school holidays following the time at Order 8(d), the children spend that time with the Mother.
(f)The time pursuant to Order 8(a) to 8(e) be suspended from 9:00am on the day prior to the first day of school for the new school term, with the children to spend time with the Mother from 9:00am on the day prior to the first day of the new school term until the commencement of school, notwithstanding any other order.
Communication
9.Unless otherwise agreed between the parents in writing and during the school term, the Father shall have video call communication with the children each Sunday that the children are not in his care at 6:30pm, with the call to be concluded before 7.00pm, and for the purpose of this Order the Father shall initiate the call and the Mother shall cause the call to be answered and shall facilitate such video call communication occurring uninterrupted.
Medical appointments
10.The Mother shall solely attend all paediatrician and specialist appointments for the children, and if requested by the Father in writing at least 48 hours prior to the appointment commencing, the Mother shall telephone the Father during such appointments to enable him to participate in such appointments via telephone.
Restraints
11.Both parents are restrained from using physical discipline or chastisement on the children or either of them. IT IS NOTED that this does not prevent the parties utilising recommended strategies like 'deep hugs' or other reasonable physical techniques to calm the children if the children are in a state of emotional dysregulation.
Communication of Medical, Educational and Other significant information
12.Unless otherwise agreed between the parents in writing, all communications between the parents (other than in person communications) shall occur via the “Our Family Wizard” application (or such other parenting app as agreed between the parents in writing), except in the case of an emergency or regarding an urgent issue concerning the welfare or immediate changeover of the children, in which case the communication shall occur via telephone or text.
13.Both parents shall do all things and pay any monies necessary to ensure that they have access to the 'Our Family Wizard' app or any other such parenting app as agreed between the parents in writing.
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
Children's treaters
14.Unless otherwise agreed between the parents in writing, the parents shall do all things and sign all documents necessary to ensure that the children receive all non-emergency treatment for the below purposes from the following practitioners and not alternate practitioners:
(a)General Practitioner: Dr B (or other doctors at C Medical Centre if Dr B is not available);
(b)Paediatrician: Dr D;
(c)Dentist: Dr E (or other dentists at F Dental Clinic if Dr E is not available);
(d)Counsellor/social worker: Ms G, Ms H or such other practitioner at J Services as allocated/recommended for the children/parents for the period the children/parties are eligible to utilise J Services' services; and
(e)Psychologist: Dr K (or other psychologists at L Psychology if Dr K is not available (or suitable)).
School holidays
15.For-the purpose of these Orders, school holiday periods are defined to commence and conclude as follows, based on the school term and holiday dates applying to students at the school that X attends. Once X completes his schooling, these Orders shall apply to the school term and holiday dates applying to students at the school that Y attends:
(a)The first day of each school holiday period shall commence at the conclusion of school on the last day of each school term that students are required to attend school;
(b)The last day of each school holiday period shall be the commencement of school on the first day of each new school term that students are required to attend school;
(c)Unless otherwise specified, changeover half way through each school holiday period shall occur at 3:00pm on that day which is half way between the first day and the last day of each school holiday period calculated by nights, and in the event there are two middle days, changeover shall occur at 3:00pm on the first of those two middle days.
Term 1, 2 and 3 school holidays
16.The term time arrangements are suspended during the term 1, 2 and 3 school holiday periods (as defined by Order 15 above) and the children will spend time with the parents during the term 1, 2 and 3 school holiday periods as agreed in writing and failing agreement as follows with changeover to occur at 3:00pm:
(a)With the Father for the first half of all school holiday periods which commence at the conclusion of Terms 1, 2 and 3;
(b)With the Mother for the second half of all school holiday periods which commence at the conclusion of Terms 1, 2 and 3.
Changeover
17.That unless otherwise agreed between the parents in writing, for the purpose of changeover that does not take place at the children's school (or via the children transporting themselves home from school via public transport or other means), the Mother or her nominee shall deliver the children to the Father's residence at the commencement of his time with the children, and the Father or his nominee will deliver the children to the Mother's residence at the conclusion of his time with the children.
18.The parents are each restrained from approaching the other parent's residence without prior written consent from that other parent, unless for the purposes of changeover pursuant to these orders or as otherwise agreed between the parties in writing.
Communication During School Holidays
19.Unless otherwise agreed between the parents in writing and until 31 January 2028, during the school holiday periods the parent whom the children are not living or spending time with shall be provided with video call communication with the children each Wednesday at 6:30pm, with the calls to be concluded before 7.00pm, and for the purpose of this Order the parent who is not spending time with the children shall initiate the call, and the other parent shall cause the call to be answered and shall facilitate such video call communication occurring uninterrupted.
Special Occasions
20.That notwithstanding any other order, the children shall spend time with the parents on the following special occasions as follows:
Mother's and Father's Day
(a)The children shall spend time with the Father on Father's Day, from 9:00am to 3:00pm if not already in his care.
(b)The children shall spend time with the Mother on Mother's Day, from 9:00am to 3:00pm if not already in her care.
Birthdays
(c)On either of the children's birthdays, the children will spend time with the parent in whose care they would not otherwise be in from after school (or 3:00pm) until 7:00pm if the birthday falls on a school day, or from 9:00am to 3:00pm if the birthday falls on a weekend.
(d)On the Father's Birthday, the children will spend time with the Father if not already in his care from after school (or 3:00pm) until 7:00pm if the Father's birthday falls on a school day, or from 9:00am to 3:00pm if the Father's birthday falls on a weekend or during the school holidays.
(e)On the Mother's Birthday, the children will spend time with the Mother if not already in her care from after school (or 3:00pm) until 7:00pm if the Mother's birthday falls on a school day, or from 9:00am to 3:00pm if the Mother's birthday falls on a weekend or during the school holidays.
Passports
21.Within 7 days of either parent issuing a written request to the other for the children's (or either of the children) passports to be obtained/renewed (including Australian, Country M and/or Country N passports), both parents shall do all things, and sign all documents necessary to cause such passports to be obtained/renewed for the children (or either of the children) with the parents to equally pay any monies necessary to obtain/renew the children's passports.
Interstate Travel
22.That each parent be permitted to travel interstate with the children during any period the children are spending time with them pursuant to these Orders, provided that if the children are spending overnight time interstate the parent proposing to travel gives the other parent written notice of the travel and the name of the suburb where the children will be staying, not more than 24 hours after any bookings (flight or accommodation) are made or not less than 24 hours prior to the children's departure from New South Wales whichever occurs sooner, unless otherwise agreed between the parents in writing.
Removal of children's names from the airport watchlist
23.That Order 8 of the Orders made by the Federal Circuit and Family Court of Australia (Division 2) on 20 December 2021, which placed the children's names on the airport watchlist be discharged and it is requested that the Australian Federal Police remove the names of the children X born 2015 and Y born 2017 from the Family Law airport watchlist in force at all points of arrival and departure in the Commonwealth of Australia.
24.That forthwith the children's names be removed from the airport watchlist and the parents do all thing and sign all documents necessary to give effect to this order.
Passports
25.All of the children's passports are to be held by the Mother when the children are not traveling.
26.Subject to the conditions of these Orders as they apply to international travel being met, the Mother is to provide the children's passports to the Father within 7 days of any intended international travel by the children, and the Father shall return the children's passports to the Mother at the first changeover of the children (being the first time the children go into the Mother's care) following the children's return to the Commonwealth of Australia following any international travel.
International Travel
27.Unless otherwise agreed and subject to Order 28 below, each parent is entitled to remove the children from Australia during their time with the children pursuant to these Orders, subject to the travelling parent not less than 28 days prior to the scheduled travel, providing the non-travelling parent with the following in writing:
(a)The dates and method of travel (including flight and ship number, departure and arrival times);
(b)An itinerary showing all destinations;
(c)The details of the accommodation/s where the children will be residing including address and telephone number/s or the video call medium via which the children will be contactable on whilst travelling;
28.The parents are restrained from taking the children to any destination(s) that smartraveller.gov.au (or similar Australian Government body) has assigned a Level 3 (Reconsider your need to travel) or Level 4 (Do not travel) advice warning, unless with both parents written consent.
Communication of Medical, Educational and Other significant information
29.The parents have leave to provide the children's school/s with a copy of these Orders, and for this purpose, each parent is to copy the other parent into any correspondence they send to the children's school enclosing these Orders.
30.The parents have leave to provide Services Australia with a copy of these Orders.
31.The parents have leave to provide the children's specialist treaters with a copy of these orders, and for this purpose, each parent is to copy the other parent into any correspondence they send to the children's specialist treaters enclosing these Orders.
32.The Mother has leave to provide a copy of Dr O's report dated 16 May 2024 (attached to Dr O's Affidavit filed 29 May 2024) to her treating psychologist, Ms P.
33.Both parents will ensure they administer any medications, supplements or vitamins to the children, as prescribed or recommended by the children's medical professionals.
34.The parents shall telephone or text each other in relation to any urgent welfare/medical issues concerning the children as soon as practical.
35.Both parents shall be at liberty to visit the children should the children be admitted to hospital.
36.The parents are restrained from discussing these proceedings with the children or in the presence or hearing of the children, or from showing the children any material filed in these proceedings, and shall use their best endeavours to remove the children from the presence or hearing of any third party who is engaged in discussing these proceedings with the children or in the presence or hearing of the children, or showing the children any material filed in these proceedings
37.Both parents are restrained from denigrating the other parent or any member of the other parent's family to the children, or in the presence or hearing of the children, or by way of written or electronic communication or social media, and shall use their best endeavours to remove the children from the presence or hearing of any third party who is engaged in denigrating the other parent or any member of the other parents family.
38.Each parent shall keep the other informed of their current residential address, and mobile telephone numbers and any available email addresses and advise the other parent of any change thereto within 2 days of such change.
39.Each parent shall authorise and direct the children's school and extracurricular/sporting bodies to provide notices, information, newsletters, school reports, school photographs and any other necessary information about the children's progress to both parents.
40.Each of the parents shall authorise and direct any medical practitioner, psychologist, counsellor or therapist who has consulted with or treated the children to provide both parents with any and all information concerning the children.
41.Each of the parents shall ensure the other is kept informed of:
(a)Any significant medical problems, injury or illness suffered by the children, whilst in their care and any treating doctors consulted, with such notification to occur within 24 hours of such details being made available to one of the parents;
(b)Any medication that has been prescribed for the children and all details of the prescriptions and dosages to be administered to the children with such notification to occur within 24 hours; and,
(c)Any specialist medical appointments with any medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children and such notification to be provided within 48 hours of any such appointments being made.
42.Each parent is permitted to attend any of the children's school or extracurricular events to which parents are ordinarily invited to attend, however the parties are each restrained from approaching the other party at such events where reasonably practicable.
43.Both parties shall maintain current certifications in CPR and shall attend any necessary training courses or programs to ensure their certifications remain valid until both boys are medically cleared of a medical condition or have been episode-free without medication for a period of two years, whichever occurs first.
THE COURT FURTHER NOTES THAT:
B.The children hold passports or are eligible for passports for 3 nationalities Australian, Country M and Country N.
C.The time the children spend with the Father during the school term pursuant to Order 4, shall commence on the second Thursday after school recommences at the start of every new school term.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BOYLE J:
These are parenting proceedings in relation to the two children of the parties, X aged nine and Y aged seven.
The parties are in dispute about a number of matters, most significantly time arrangements between the children and their father, and whether the parties make major long term decisions about the children jointly, or whether the mother has sole decision making responsibility. The parties resolved a number of issues between them by way of consent orders.
BACKGROUND
The parties met in 2004 and commenced cohabitation in 2006 in Country M. They were married in 2010. I shall refer to the parties as the mother and father throughout these reasons with no disrespect intended.
The mother was born in Country M, and the father in Country N. In 2011, the parties commenced living in Australia. Neither party has family support in Australia.
The mother alleges the father perpetrated family violence during the relationship, including emotional and sexual abuse, and coercion and control. The father denies these allegations.
The parties separated on a final basis on 28 October 2020. Between November 2020 and November 2021, the children lived with the mother and spent time with the father. Initially time with the father was supervised, progressing to unsupervised time during the day three times a week, in accordance with an agreed parenting plan.
The mother has been treated by Dr O psychiatrist since October 2021 for Post Traumatic Stress Disorder (“PTSD”). Treatment utilises supportive psychotherapy. She has been referred to clinical psychologists for different types of therapy.
The father was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) by Dr Q in 2024. He is prescribed medication for that condition.
On 3 November 2021, the mother commenced proceedings in relation to property matters. On 9 November 2021, the father filed a Response seeking parenting orders.
On 20 December 2021, interim orders were made which provided for the children to spend time with the father each Wednesday from 3.00 pm until 7.00 pm and each alternate weekend from 9.00 am on Saturday until 3.00 pm on Sunday. That time progressed through orders of 25 May 2022. The children now spend time with their father in week one from after school on Wednesday until before school on Thursday, and in week two from after school on Thursday until 3.00 pm on Sunday.
In March 2024 consent orders were made finalising the property matter. A final hearing was listed previously on 3 July 2024, however was not reached.
THE CHILDREN
X is nine years old. He was diagnosed with a medical condition in 2019, which is managed with medication. He has not experienced any episodes of the condition since October 2019.
In early 2021, X was diagnosed with ADHD and Oppositional Defiance Disorder (“ODD”). He experiences anxiety, particularly associated with transitions. He has significant issues with emotional dysregulation. Dr D, his paediatrician, noted on 22 November 2023 in a reporting letter to the General Practitioner that X has issues with “regulating his emotions and can have very significant outbursts related to change, transition and following others”.
X is assisted by a multi-disciplinary team with a specific individual learning and behavioural plan. He receives both behavioural support and medication. There are regular reviews conducted to ensure treatment is working for him. Dr D observed “it is imperative that he continues to be supported to allow him to reach his full potential”.
Y is seven years old. He was diagnosed with the same medical condition in early 2022, which is managed with medication. He has not experienced any episodes since November 2021.
In 2023, Y was diagnosed with ADHD and ODD. He experiences anxiety and emotional dysregulation, particularly around change and transition. He is under the care of Dr D and takes medication as prescribed. In March 2023 Dr D raised that Y’s outbursts have “now got to the level of significance that there is a risk of harm due to the degree of emotional dysregulation”.
Similarly to his brother, Y is supported by a multidisciplinary team through behavioural support and medication. His needs are complex, as is meeting those needs in the school context. Support at school is critical for his progress.
Ms G has provided therapeutic assistance to the mother to manage the children’s anxiety and emotional dysregulation since 2020. She has observed both children as “quick witted boys, with the impulsivity and reactivity typical of ADHD… they also present with emotional dysregulation and a tendency to verbal and physical aggression which is typical of children who have experienced early developmental trauma”.
PROPOSALS OF THE PARTIES
The parties have provided consent orders, which will be made concurrently with these orders. They agree in summary:
(a)That the children spend one half of each school holiday period with each parent.
(b)That changeover shall occur at school, or otherwise at the father’s home at the commencement of time and the mother’s home at the conclusion of time.
(c)That the children shall spend time with the parties on Mother’s and Father’s Day and birthdays.
(d)That the children continue treatment with specified medical practitioners.
(e)That the children be removed from the Australian Federal Police Family Law Watchlist, and be permitted to travel internationally with the parents.
(f)Agreement with respect to a number of ancillary matters.
The father seeks orders that the parties have shared decision making authority for the children. He proposes that they be supported in this by a parenting co-ordinator. He proposes a gradual increase of his time with the children, with an endpoint of the children spending equal time in a week about arrangement in 2030. The father seeks a three week block period with the children during the term four school holiday periods.
The father seeks orders for electronic communication with the children on alternate Sundays. He proposes restraining the parties from enrolling the children in extracurricular activities that occur in the other parent’s time without consent.
The mother seeks orders that she have sole parental responsibility and decision making authority for the children. The mother does not support the appointment of a parenting co‑ordinator. She proposes the father attend medical appointments by telephone, as has been occurring. The father wants to attend appointments in person.
The mother seeks orders that the children live with her, and spend time with the father four nights per fortnight. She seeks orders for a gradual increase in block periods during holidays, with an endpoint of two consecutive weeks. The mother consents to the father’s proposal for electronic communication with the children, if orders are made as proposed by her with respect to time arrangements.
The mother proposes the parties communicate through the Our Family Wizard application. The father proposes their communication be via email, and text.
The mother seeks an order to restrain the parties from travelling with the children to countries that are not signatory to the Hague Convention unless agreed. This is opposed by the father.
Both parties seek a restraint on physical discipline and chastisement of the children. The mother seeks a notation that this does not prevent the parties from using physical strategies such as “deep hugs” to calm the children. The notation is opposed by the father.
DOCUMENTS RELIED UPON
The mother filed a Case Outline Document identifying the documents relied upon:
(a)Notice of Child Abuse, Family Violence or Risk filed on 10 February 2022.
(b)Parenting Questionnaire filed on 10 February 2022.
(c)Affidavit of Dr O filed on 29 May 2024.
(d)Affidavit of Ms Kesselman filed on 31 May 2024.
(e)Affidavit of Ms G filed on 31 May 2024.
The father filed a Case Outline Document identifying the documents relied upon:
(a)Amended Response filed on 14 June 2024.
(b)Affidavit of Mr Brimble filed on 14 June 2024.
(c)Affidavit of Dr Q filed on 26 June 2024.
The court was assisted by a Child Inclusive Report dated 20 April 2022 and a Family Report dated 6 February 2024, both prepared by the Single Expert Ms R. The reports were relied on by both parties. Ms R was cross-examined.
The mother and father were each cross-examined. Dr O and Ms G were cross-examined. Dr Q was not required for cross-examination.
A number of documents were tendered and marked as exhibits. I have had regard to those documents as well as the material relied upon by each of the parties.
THE LAW
Part VII of the Family Law Act 1975 (Cth) (“the Act”) deals with the making of parenting orders. Section 60CA of the Act provides that the court must regard the best interests of the child as the paramount consideration in making a parenting order. Section 60CC (2), (2A) and (3) of the Act set out a list of matters to be considered in determining what is in a child’s best interest. It is not an exhaustive list.
In considering what orders would promote the safety of the children, the authorities of M v M (1988) 166 CLR 69; [1988] HCA 68, and Isles & Nelissen (2022) FLC 94-042 are relevant to the assessment of risk. The analysis requires consideration of past conduct of the parties to assess whether there is a risk to the children in the care of either of their parents, and the magnitude of that risk. The assessment of risk is an “evidence based conclusion”.[1] The court must then consider whether that risk is capable of being mitigated by imposing restraints or conditions, and what orders would best promote the children’s safety.
[1] Isles & Nelissen (2022) FLC 94-042.
I will have regard to the other relevant matters set out under s 60CC of the Act as they arise in these reasons.
The parties are in dispute about decision making authority for the children. In determining whether to make an order under s 61D(3) of the Act, the court must consider the best interests of the children and apply the matters set out in s 60CC. That issue will be dealt with in these reasons.
ISSUES
The issues in this matter are:
·Whether or not there was family violence during the parties’ relationship.
·What orders for time would best promote the children’s safety, including whether time is each week or in a fortnightly block.
·Should the parents jointly hold parental responsibility and decision making authority, or the mother hold it solely.
·Whether a parenting co-ordinator should be engaged to assist the parties with decision making.
·What platforms should the parties use for communication.
Whether or not there was family violence during the parties’ relationship
The mother makes allegations of serious family violence that occurred during the relationship. This includes allegations of sexual, verbal, physical and emotional/psychological abuse, and coercive controlling behaviour. These are denied by the father.
It is acknowledged by both parents that the children have a good relationship with their father, which is of benefit to them and should continue. The significance of whether or not family violence occurred in this matter goes to arrangements that promote the safety primarily of the mother as a carer of the children, including with respect to her being required to consult with the father. It is relevant to, for example, should they both physically attend children’s medical appointments, how should decisions be made for the children, and the like. The father has undertaken courses to improve his understanding of family violence and parenting skills following separation.
In her affidavit the mother refers to sexual abuse occurring from the wedding night. The mother describes the father wanting sex more often than she did, and that sex became rougher over the course of the relationship. The father had sex with her after the birth of X when she was recovering from vaginal tears. It is her evidence that the father persisted despite her asking him to stop, and telling him it hurt. Rather than stopping he suggested trying a different position. He called her abusive names such as a “shitty whore” and “bitch […]”. He covered her mouth and pinched her nose so that she could not breathe. The mother’s evidence is she dissociated when this occurred.
The father is critical that there was no contemporaneous complaint made by the mother. The evidence is she told counsellors and her psychiatrist about sexual abuse by the father, after separation.
The criticism by the father includes information provided in The Notice of Child Abuse, Family Violence or Risk filed by the mother on 10 February 2022. Paragraph 17 gives options on the form of family violence experienced, so that the person completing the form can ‘tick the box’. The mother ticked “emotional/ psychological”, “sexual”, “threatening comments” and “exposure to family violence” as it relates to her. These are broadly consistent with her allegations. For the children she indicates the same, other than sexual.
Paragraph 35 of the form seeks further information - “Briefly describe what happened and when; What action (if any) was taken and by whom?”. There are details provided of specific examples of verbal abuse to the children, coercive and controlling behaviour towards her, verbal abuse to her, physical abuse of X, and that from 2015 the father placed emotional pressure on her to meet his sexual needs, and caused her to fear the relationship would end or he would become angry if she refused or did not attend to his sexual requests or expectations. Sexual assault counselling through S Hospital is referred to, and that she received $10,000 under the Victims Rights and Support Act 2013 (NSW) as a result of his conduct.
Specific allegations detailed in her affidavit, for example, of being choked, that sexual abuse started from the night of their wedding, and physical harm are not set out in the form. Counsel for the father cross examined the mother on the lack of detail provided of the allegations, as indicative the conduct alleged did not occur. I do not accept this proposition. I note the direction at paragraph 35 to “briefly describe” what happened. The reader would be aware that allegations of serious family violence inducing fear in the mother, including sexual violence, perpetrated by the father were being made. She gave evidence of feeling ashamed, and that detailing abuse was traumatizing, which limited the information she provided.
I accept that the information on the form makes clear serious allegations of family violence were being made. It also specifies agencies said to hold information relevant to the allegations, and the family, which is part of the purpose of the form.
Ms G has provided the mother with individual counselling and therapy from 2020 to 2024. She is employed by an Early Intervention and Support Service. In July 2020 the parents were referred to a T Family Services program conducted by that service by the Department of Communities and Justice (“the Department”). The Department made the referral following reports of possible significant risk of psychological harm to the children due to family violence.
She also has had six joint play therapy sessions with the mother and Y, and has spoken with school staff on several occasions. She has not met with the father nor the children individually.
Ms G met with both parents initially, and determined not to continue with joint sessions because the mother disclosed she felt unsafe in joint sessions with the father. The goal of therapy with the mother is to assist her in managing X and Y’s anxiety and emotional dysregulation at home and school. The mother has in Ms G’s view habitually used dissociation to cope with anxiety and distress, which was not assisting her ability to be assertive in managing aggressive behaviour by the boys.
The mother was referred to the U Sexual Assault Service by her counsellor at V Services after she disclosed sexual assault by the father. A report was prepared by that service following the mother’s engagement in mid-2021. The mother referred to abuse over the course of the relationship. She said the father became increasingly violent towards her if she did not appease him with sex every two to three days. This included after the birth of her children, when vaginal tearing made sex painful. The report provides details consistent with the mother’s allegations made in the course of these proceedings. It is consistent with information she provided to Dr O.
The psychological impact on her of the abuse is referred to in the U Sexual Assault Service report. It is consistent with the matters referred to by Dr O, such as sleep disturbance, PTSD, anxiety, flashbacks, dissociation and confusion around sex. This report was provided to Ms R by agreement between the parties, and correspondence attached made it clear the allegations were denied by the father.
Counsel for the father urged that the court should be cautious in accepting the mother’s allegations as she did not make a report of sexual or physical assault during the interviews with Ms R for the Child Impact report in March and April 2022.
Ms R had been provided with the report from U Sexual Assault Service and the father’s denial prior to her interviews. The report from the sexual assault service provided detail of sexual and physical abuse over the course of the relationship. Ms R agreed in cross examination that the mother may have expected Ms R knew about the allegations, because she was provided with the report. Ms R agreed she did not ask the mother about the allegations. I accept that Ms R overlooked the report and did not raise it with the parties as she should have at the time of her first assessment. The mother not raising those issues during the Child Impact Report does not support that the abuse did not occur.
Dr O and Ms R both gave evidence that relating details of traumatic events is itself traumatising. Dr O’s evidence about the way the mother reported abuse by the father to him over time, and her dissociating, is consistent with it being a traumatic experience for the mother. Dr O referred to the mother taking a while to disclose sexual assault issues to him. She came to see him for difficulties with sleep and anxiety. After a few sessions she told him about her engagement with U Sexual Assault Service. He then sought information from that service, with her consent. As Dr O noted in his evidence sexual assault issues are the most difficult matters for patients to talk about.
Dr O refers to the mother telling him about family violence perpetrated by the father during their therapeutic relationship. He referred to the information not being provided in one block, but spread out on different occasions. He could not recall when specific incidents were raised by her during sessions. He did not regard that as unusual. In his experience it can take time for patients to be ready to talk about family violence, and particularly sexual abuse. During his treatment of the mother he has had to move the discussion from difficult topics of abuse at times. This has happened when she has stopped responding during sessions, and dissociated. He moved to discussing other matters to give her an opportunity to emotionally collect herself when this occurred.
Dr O referred to the mother’s improvement from treatment being up and down. At times such as between May and October 2024 her health deteriorated, with an increase of anxiety symptoms. He prescribed her a low dose of medication to assist with sleep. This is the first time he has prescribed her with medication. In his view side effects from medication and the medication not being terribly effective mitigate against use. He did so in this instance to deal with the increased symptoms in the lead up to the final hearing. The main stressor for her is reminders of the traumatic events, which includes contact with the father. When she is unwell she can dissociate, which means she struggles to be psychologically present for her children.
Dr O was clear that he found the mother to be a “truthful” patient. He has had many years of experience as a forensic psychiatrist. He looks for inconsistencies in accounts and the history given, including symptoms, when assessing his patients. He noted that making up consistent symptoms was difficult for a patient to do unless they were a psychiatrist. In his experience over hours of interviews patient’s accounts unravelled if they were not telling the truth. The mother’s history given was consistent with her symptoms. It was consistent over time. He accepted that she was truthful in her account to him. I accept his assessment.
The father has conceded slapping the mother’s buttocks at times during sex. The father tendered a survey completed by the mother, and sent to him, in the early days of their relationship. The email is dated July 2008, that is, two years prior to their marriage. The mother agrees she completed and sent the survey. He caused it to be translated from Country M language to English. There is one answer which refers to “slaps” during sex positively. The mother is candid about her preferences and attitudes to sexual contact in answering the survey questions. The father relies on this to suggest that the mother has exaggerated her complaints, and that her attitudes support that rough sex was not an issue for her.
I do not accept that reliance on the survey supports a submission that the mother has exaggerated her complaints about the father’s sexual abuse. On her evidence, sexual abuse started from their wedding night. That was two years after she sent him the survey. I accept consent given to sexual contact at one point in time does not cover all sexual contact thereafter. The mother complains the father’s conduct was persistent, including at times she did not want sex, and that he became rougher over time. None of that is minimised by a survey she sent to him in 2008.
The father has conceded poor behaviour after his medical episode in early 2019. He told the report writer:
… He said he was unpleasant regularly with [Ms Kesselman] in the words he used towards her. He said he put her down, made her feel less worthy than she was…
… towards the end of the marriage he was forceful in discussions and arguments. He said he was too insistent on making a point rather than trying to sort out a disagreement. He said these problems in the marriage did not start overnight but became more intense and frequent over the last year of the marriage.
The mother’s evidence is that following the father’s medical episode the father angered more quickly and was less patient with her and the children, particularly X. On one occasion in mid‑2020, X and Y were arguing about a toy. The father intervened, grabbed X by his arm and dragged him to his bedroom. He pushed him onto his bed and left him. A short while later X called out that he needed to use the bathroom. The father pushed X outside of his bedroom and towards the bathroom. The mother went to intervene and saw X on the floor in the corridor. He was screaming and crying. The father took X into the bathroom and prevented the mother from entering. The mother heard X screaming. She went to X and helped him to calm down and use the bathroom.
The father then insisted that X apologise to Y. The mother asked that the father also apologise to X for knocking him over. The father initially ignored her, but when she insisted said to her “No I don’t have to listen to you. I don’t have to listen to you. I did not ask for your opinion. If I had asked for your opinion, then yes, but that wasn’t the case”.
The father conceded raising his voice at the children, grabbing X by the arm, dragging him to the bedroom and accidentally pushing him over. It is the father’s evidence that he has discussed this incident with his treating professionals to develop strategies to ensure that it does not occur again.
The following day, the mother made a report to the police about the father’s conduct towards her and the children. The mother declined to proceed with an application for an ADVO as she was concerned about how the father would react. I accept that the father’s conduct towards X was serious, and the mother contacting police the day after is indictive of her concerns.
There are challenges in managing the behaviour of X and Y, who require warm, firm boundaries as Ms G indicated. The father’s capacity to parent in trying circumstances has not been observed by the mother since separation. I accept she has genuine concerns about his ability to manage difficult behaviour in the children.
The mother refers to conduct of the father during the relationship that is coercive and controlling in nature. Examples of this category of conduct are set out below.
The mother was required to respond to his messages within a certain time, keep him informed of her movements, and share her location by way of a location sharing application.
The mother refers to the father being critical of her friends and family members. The mother alleges that the father told her that frequent communication with her own mother was “very strange and childish”. He told her “You don’t need to call her so often, you are a grown up”. The mother says she distanced herself from her family as a result.
The mother alleges that the father was financially controlling throughout the relationship. When the parties moved to Australia they opened a joint account. They otherwise had separate overseas bank accounts. It is common ground that she was responsible for day-to-day expenses. She maintains the father controlled the major financial decisions for the family, including oversight of her spending. He created an excel spread sheet in mid-2011, which after an argument over her not managing the budget, he maintained. He was at times critical of purchases, such as when she purchased a suit and shoes for job interviews after completing her qualification.
Counsel for the father argued that the mother’s allegations of financial control should not be accepted. He referred to inconsistencies in her evidence, such as her denial that she controlled the finances in the relationship, when she conceded her control of day to day matters. The mother accepted that she had referred to herself as the “CFO” of the family as a joke.
The mother’s evidence is that managing day to day finances was not simply left to her. The father kept records and over saw spending. He was critical and argued with her if she spent money in a manner he did not agree. She was worried not to spend money in a way that would give rise to criticism and argument. For example, she drew money from her overseas account on a weekend away so as to not spend amounts that would be criticised by the father, whilst not spending so little as to cause questions about where the money was coming from. Her evidence exposed the thought required by her to avoid his criticism, consistent with “the key feature of coercion and control … that a person is induced … to do as the other wishes”.[2] At times he ignored her, and withdrew from her if she did not comply with his requirements.
[2] Pickford & Pickford [2024] FedCFamC1A 249
I accept the mother’s evidence that the father has engaged in family violence, which included conduct that assaulted her, was sexually abusive of her, that made her fearful and was coercive and controlling. She was detailed about matters that occurred, and clear in her evidence. She was not challenged with respect to some matters, such as being required to keep him informed of her movements. On matters where she was challenged such as the violent and abusive conduct, and financial control her evidence was compelling, in contrast to the father’s evidence. Her evidence is supported by the evidence of Dr O, who was also a compelling witness.
In 2021 the father participated in a Taking Responsibility course. His evidence is he found this confronting. He has taken steps to get parenting assistance, including attending courses such as Parenting After Separation, Tuning into Kids, Circle of Security, Managing Children’s Anxiety, Bringing Up Great Kids, Tripe P Parenting and The Happiness Trap. At the time of the hearing he was enrolled in but had not yet completed the 123 Magic Emotion Course. He has shown a willingness to consider his behaviour, and seek to change it. I accept this should assist him in managing the children into the future. Whilst this will benefit the children, it does not address the exacerbation of the mother’s PTSD symptoms in dealing with him.
What orders for time would best promote the children’s safety, including whether time is each week or in a fortnightly block
At present term time occurs in week one on Wednesday nights, and week two from Thursday to Sunday. The mother seeks that time occur from Thursday to Monday each fortnight from the beginning of term 1 in 2025. The father seeks time move immediately to Thursday to Monday, from term 1 in 2025 time occur from Wednesday to Monday, from term 1 in 2028 from Tuesday to Monday, and in alternate weeks from term 1 in 2030. Thus the parties agree that it is in the children’s interests to spend time with their father at a minimum of 4 nights each fortnight during school terms.
There are significant problems for the children in transitions referred to by the parents, and their medical and allied health support. The evidence supports that arrangements that are simple and clear for the children are likely to work best for them. School is a useful buffer for children moving from one household to another, and removes the children from stress that can occur at changeovers between their parents.
Ms G has been assisting the mother in managing the boys’ behaviour since 2020. The behaviours include verbal and physical aggression, and sleep disturbance. These problems are more significant after changeovers from the father to the mother. In her view this is not uncommon when children return to the carer to whom they are more securely attached, and their behaviour can deteriorate.
Ms G assists the mother to implement firm boundaries with the children, as a strategy to manage their behaviour. Counsel for the father suggests that the mother may be exaggerating the difficulties. Ms G has 30 years’ experience of testing the credibility and consistency of what clients say to her. She has met with the children’s schools. The mother in her view is an accurate and credible historian. I accept her evidence.
Neither parent seeks to retain time each week as in the current “split” arrangement. I accept this is consistent with concerns for the children transitioning between different environments. This is despite Ms R’s evidence that it could be retained. I accept the parent’s assessment on this matter.
The children were both enthusiastic when speaking with Ms R at the prospect of four nights a fortnight with their father. Although their views at their age and maturity are not determinative, four nights would be consistent with their views. Ms R supported additional time between the children and the father, recommending that time progress to five nights a fortnight in the report. When cross examined by Counsel for the mother she agreed that the mother’s view that she could support four not five nights a week was significant: “the mother’s health is fundamental to the future of the children”. This supports time arrangements of four nights each fortnight.
Ms R was concerned that speculating about time progressing in the future in the manner sought by the father had “too many ifs and buts”. Her opinion was firmly that the children needed an opportunity to be supported over school time and non school time by each of their parents, but that a goal of equal time can maintain acrimony between parents.
I accept that a four night block each fortnight allows the children the opportunity to experience both of their parents during school days and non school days. That is important for them. It is easy for the children to understand what is happening, and utilises school as a buffer for changeover. The mother can manage it, which is of significance given the issues of her PTSD, and anxiety. Her parenting of the children needs to be supported, as it is critical to the children’s wellbeing.
The parties have agreed to share school holidays equally. They do not agree how the summer holidays should be divided to achieve that.
Y is currently seven years old. Extending holiday time to a longer period absent his mother needs to be done commensurate with his capacity to cope given his age and needs. The mother regards that as possible from the 2027/2028 holidays for two weeks in a block. Ms R’s evidence with respect to increasing time over school holidays is that she hoped it would ultimately reach a three week block after a transition of shorter periods. She was, however, concerned about the level of anxiety in the children and the mother, and the impact of that on them.
The mother gave evidence that the children were highly emotionally dysregulated and difficult to manage on return from a block period with the father during school holidays prior to the hearing. She referred to the problems of getting them to settle for the start of the school term. It is not in the children’s interests if they are not able to cope at school.
I accept that the hope expressed by Ms R needs to be grounded in reality for the children. Whether the children’s emotional dysregulation and anxiety becomes more or less as they mature is not known. The father’s capacity to manage their dysregulated behaviour and anxiety over a longer period is not known. It is important for the children’s well being that the mother is able to cope with arrangements. In these circumstances I do not propose making orders for time arrangements to go beyond blocks of two weeks. This balances the benefit of longer holiday periods with their father, against those unknowns.
The parents both have extended family living in Europe. Both wish for the children to experience their home cultures in Country M and Country N, and to have an opportunity to spend time with extended family. I accept that the parents can make arrangements for changeovers to occur in Europe over a holiday period, should they both agree to do so. A two week block provides the opportunity for an extended holiday with each parent, whilst limiting the risk of emotional dysregulation and anxiety in the children. I accept this arrangement is more likely to promote the children’s safety.
The mother seeks a restraint on the children travelling to non Hague convention countries. There is no evidence that either parent is a flight risk. The evidence does not support the need for the restraint. The orders agreed include an order for the parties to heed warnings as issued by the Australian Government through the Smart Traveller website.
In terms of communication between the children and their parents the mother concedes that should be as sought by the father, should orders for term times be as she sought. I am making those orders, so there is now no controversy with respect to communication. There is an issue over whether the orders should remain in effect or conclude in January 2028. I propose leaving the orders without a conclusion date. It is a fixed time for communication to occur. Once the children are old enough to have their own devices they may choose to communicate at different times, subject to their access to devices.
Should the parents jointly hold parental responsibility and decision making authority, or the mother hold it solely
Both children are assisted by a multidisciplinary team for medical and behavioural support. They are both prescribed medication, which will no doubt be changed and updated to meet their needs. There are ongoing decisions required for these children across a range of areas.
To date the mother has been the parent who has made medical and allied health appointments. By agreement she has been responsible for filling the scripts prescribed for the children. She provides medication to the father. The father is usually dialled into medical appointments by the mother. Through this method they both have input, and hear the medical advice provided. They both agree these arrangements have worked for the children. The parties have agreed in the consent orders to various medical and allied health practitioners for the children.
Shortly prior to the hearing the father attended an appointment for X with the paediatrician in person, without advising the mother in advance. The appointment was before the end of the school day. The children were due to be in his care. He had not made arrangements for Y to attend after school care, nor for someone else to collect him. Consequently the father had to leave the appointment prior to the conclusion to pick Y up.
The mother did not expect the father to be there. On her evidence this made her flustered and stressed, and she did not engage as she would usually with the paediatrician. She was also worried about arrangements for Y, and whether the father would be late to collect him.
The mother forgot to raise matters with the paediatrician, such as a letter from him needed to ensure the school has funding for the support required for Y in 2025. The father did not raise this during the appointment; such matters are organised by the mother. In the mother’s experience, which the evidence supports, the paediatrician is not responsive to communication outside of appointments. Despite requests, the letter has not been provided, which places in jeopardy Y’s support at school.
This example demonstrates the importance of the mother not being put in situations where she has to deal with the father face to face. Dr O’s report notes:
… any contact and specifically face to face contact is highly undesirable and is very harmful to the well being of [Ms Kesselman] as it causes an occurrence of severe PTSD symptoms, thereby impairing her function. The face-to-face contact would the worst form of continued re-exposure to the causative element of her PTSD.
I accept that it is not reasonable to require the mother to engage with the father in a way that triggers her PTSD symptoms. It is adverse to her mental health, and it causes poor outcomes for the children. Both parents need to provide information about the children to the children’s treaters, and receive medical information. The parents have been doing so successfully by the father joining appointments by telephone. I will make orders that he continue to attend appointments for the children by this method.
Prior to the litigation commencing there were disputes over which primary school X should attend. In 2019 the father proposed that they submit applications for X to attend three schools. X sat an entrance test for one of the schools, which did not secure a place. He was accepted into one of the schools to start in 2021. He was not enrolled there. The father proposed that X attend a private school in Region W in 2020. Neither party proposes living in Region W. X was ultimately enrolled at the public primary school local to the mother, which he attends.
There is a dispute about which high school the children should attend. At the time of the hearing X was in year four. Arrangements will need to be made well in advance of the start of high school to ensure appropriate supports are in place given his special needs. X will need to know well in advance what is happening for him, as this will assist assuage his anxiety about the transition.
The father’s preference is for a private school. He proposes meeting three quarters of the costs, and the mother meeting one quarter. He has not provided evidence about the total likely cost. Whether ‘costs’ refers to tuition fees, or includes other expenses such as uniforms, shoes, a laptop or tablet and the like is not clear on his proposal. He agreed in cross examination that private school education for high school would cost between $165,000 and $243,000 for each child. His proposal about school fees is contrary to the terms of the Binding Child Support Agreement entered on 5 December 2023. There is no proposal by him to vary that agreement. I am concerned that the father’s proposal for private schools will cause further dispute between the parents.
The mother prefers a public school for the children, and does not want to contribute to the costs of private school fees. She regards public schools as more likely to meet the children’s special needs.
Only through teasing out the father’s proposals in cross examination did a number of issues become clear. He has been unemployed since being made redundant in mid-2020. He has applied for a number of positions unsuccessfully. His evidence is he has found securing employment more challenging than he expected. He has considered purchasing a number of different enterprises, and researched a number of different options to inform his consideration. He has not proceeded with any of those ventures.
Cryptocurrency investments are currently his sole source of financial support. Attached to his affidavit is a screenshot of “one of [his] cryptocurrency wallets as at 13 June 2024”, which refers to cryptocurrency to the value of $608,543.35. That was the only evidence of his financial position in his evidence in chief. He was not aware of the current value of the cryptocurrency, and agreed the value of cryptocurrency was volatile. During re-examination he gave evidence of total cryptocurrency investments of USD $2.2 million.
I accept that the father’s proposal for private schools is not well considered. He has been unemployed for four years and living off investments. It would not be in the interests of either X or Y to start at a high school they cannot continue due to costs.
In March 2024 the mother proposed three public schools. Until filing his affidavit, the father had not engaged with the options proposed by the mother.
The father’s proposal is that there be discussions with X’s year six teachers to assist the parents in deciding which high school will best meet his needs. Discussions would take place during the school year. This proposal demonstrates a lack of understanding of X’s particular needs for school support, what is required to put that support in place, and X’s need for certainty. The decision will need to be made significantly earlier than half way through his last year of primary school to meet those needs.
If the parties cannot agree on the school, and they have joint decision making responsibility, it is foreseeable an application may be required for the court to decide. This would not assist X’s transition to high school because it would entail uncertainty, significant cost, and stress to X and both the parents.
Y’s surgery highlights the difficulty of the parties sharing parental responsibility and decision making. The father in his affidavit asserted that the mother failed to include him in the children’s schooling and medical matters, using this surgery as an example. His affidavit sets out that he was never informed of the details of the surgery, which took place without his knowledge or consent. In particular he stated:
[In mid] 2021, [Ms Kesselman] retrospectively informed me that she had booked [Y] into […] surgery for [11 days later], without my knowledge. Alhough I had only been provided with 11 days notice, we engaged in discussions around this, as I had some concerns and sought further information and opinions… [Ms Kesselman] did not provide me with the details of the surgery that she had unilaterally booked and only replied at 3PM on [the day of the surgery], when she informed me that the surgery had already been performed.
(As per original)
The mother annexed to her affidavit communication between the parties on this topic. The father emailed the mother in mid-2021 confirming advice given by the mother by telephone following the appointment with the specialist that morning. The father had not attended the appointment. The mother responded that evening with a very detailed email setting out the advice received from specialists. She attached a brochure provided by the specialist. She corrected some information in the father’s email, and acknowledged the difficulties of providing information effectively on the run as she had been during the phone call. The medical advice she related was not to delay surgery because Y had symptoms for three months. His functioning was worse than it was two months before, when it was already not good. She advised that the earliest date for surgery was 11 days later, and she had pre-booked the date that day.
The mother again emailed the father a few days later, seeking his opinion. The father emailed the same evening that he was very hesitant about the operation: there had been two previous operations; there is a risk from general anaesthetic. He suggested thinking calmly before rushing into anything, and noted he would have preferred a second opinion but getting one urgently was not an option. He asked for the mother’s opinion.
The mother replied within an hour. She set out the rationale for her support for the operation. She suggested the father could call the specialist to discuss his concerns. She confirmed it would be difficult to get a second opinion, but that he could do so. She noted she would meet the costs related to the operation and post operative treatment if that was a problem.
The mother emailed again the following day asking for the father’s view. At 8.48 pm the next day the father replied:
I have remained constructive from the beginning, while being assertive because this is a decision that cannot be taken lightly.
It’s very sad we can’t have a constructive discussion on an important subject, in this case [Y’s] health.
I suggest we go through the lawyers and start again from the beginning.
The mother responded promptly and politely that evening. She noted that she had given her opinion, but he had not. He had not provided information to allow her to understand his concerns. She asked whether he would consult the specialist and/or organise a second opinion, and asked “and if not, why not?”. She also suggested he speak to Y’s general practitioner.
The father replied at 8.45 pm. He noted:
When you repeated the facts and what you want to happen as an outcome I felt neither listened to nor understood. I also realized that it raised the feelings that I have with the deadlock on calls because at no time did I feel listened to…I'm not taking this decision for [Y] lightly at all, and what makes me hesitate is solely [Y’s] well-being… I'm still convinced that we need to go and see another specialist and I think [Dr B] can help us expedite the process and I'm happy to organize everything too.
He indicated he had not decided yes or no. He suggested to the mother that they remain “civil, constructive and not aggressive” in their communication. It was a way of insinuating the mother was being aggressive. This sits with the mother’s describing to Ms R at the child impact interviews “there will always be something he blames her for”. Having regard to the mother’s communication it was civil, constructive and not aggressive.
The mother responded the following day at 12.59 pm. She dealt with matters that she perceived the father may have not understood. She clarified her observation of Y’s health issues, and the impact of the problems on his sleep. The father responded to various matters saying “if you’re very sure of the decision on your side, I won’t object, even if I would have suggested a second opinion as I said earlier”. There was a further brief exchange where the mother sent a letter from the specialist to the father.
On the following day at 12.29 pm the mother expressed her opinion that the operation should occur, and provided the basis for that decision. She confirmed his advice that he did not object to Y having the operation if she was sure, and she was. The father emailed the next day at 8.23 pm asking the time of the surgery, and referring to the COVID-19 restrictions in place at the time, which included that one parent only could attend. He asked if he could keep X during the surgery. The mother replied on the day of the surgery at 3.13 pm with the results of the surgery, she outlined the post operative care and told the father that he was correct regarding COVID-19 restrictions.
I have included the detail of the parties’ correspondence to demonstrate firstly, that the father’s affidavit misrepresents what occurred. The mother did not fail to include him in receiving information about medical matters, nor in participating in decision making. She provided him with all information that she had, including her opinion on what should happen, and the reasons for it. She requested his opinion. She suggested ways he could obtain further medical advice to assist him make a decision. He did not always respond promptly, given the urgency of the decision required. The urgency was not created by the mother, but by the availability of the surgery, and concerns that Y’s condition was deteriorating faster than either parent had been aware. The mother in her communication was civil, business like, and focused on the problem at hand. When the father inserted his feelings and relationship issues into the discussions, she kept the focus on Y’s needs.
The father did not take steps, other than through google, to get further information to assist him form an opinion on Y’s operation. This was despite the mother suggesting avenues for that to occur. Ultimately he left the decision to her, which she appropriately determined.
This example exposes some of the difficulties in the mother being required to come to long terms decisions in the children’s interests with the father. For these children there will be many decisions that need to be made on the information available, in a timely manner. The mother has demonstrated her capacity to do so. The father has not.
Dr Q met with the father in March and April 2024, and provided a report on 25 June 2024 at the request of the father’s solicitors. He diagnosed the father with ADHD. The father was prescribed medication.
The report containing the father’s diagnosis dated March 2024 provides a history of symptoms the father was experiencing:
Struggles with everything. Procrastinates a lot. Can’t finish any task. Tends to hyperfocus… Unable to focus. Doing 101 things at a time. Distractable. Poor attention and concentration. Mmeory defic with short term. Impuslive. Was impatient. Indecisive. Can’t sit still. Squirms with hands and feet. Tends to zone out. Scatted brain…
(As per original)
The father’s affidavit does not address the symptoms he was experiencing, nor the impact of those symptoms on his parenting capacity. The father did not report his experience of any of the symptoms to Ms R, nor that he was seeking a diagnosis. The information did not form part of her assessment, nor the recommendations that were made, as the report on the father’s diagnosis was provided subsequently.
The father’s evidence is scant as to whether his treatment for ADHD has improved any or all of the reported symptoms. The report of Dr Q indicates that the father “overall claims good subjective improvement”, but no detail is provided.
Ms G noted her concerns about the parent’s capacity to share parental responsibility and decision making. She has observed them over a two year period to “struggle to make joint decisions around medication, times for contact phone calls, arrangements for the boys activities and payment of expenses”. Her evidence did not support orders for shared parental responsibility and decision making.
The father has sought that “deep hugs” not be used for the children. Ms R described “deep hugs” as a strategy used to contain children who have outbursts such as these children experience. The person is behind the child, and hugs them closely often using a cushion. She acknowledged there was some controversy around use of the strategy, but that she did not regard it as harmful. Ms G was not asked her view about this, and no issue has been raised on the evidence with the children’s paediatrician.
I accept that the mother is receptive to medical and allied health advice. I accept that she has found the strategy useful and there is no evidence of any adverse impact on either child. I do not propose limiting use of this technique.
The evidence, including the examples set out above, demonstrates a significant difficultly in the parties being able to consult with each other to come to a joint decision on major long term issues for the children. Decisions need to be made for the children that are timely, responsive and serve their best interests. I accept that the father has difficulties in doing so. The extent to which that difficulty is contributed to by his having ADHD is unclear on the evidence. The father’s evidence is that his therapist had assisted him to better understand his behaviours and develop better strategies. The extent this has assisted his decision making capacity is unclear.
I accept Dr O’s evidence that exposure to the father exacerbates the mother’s PTSD symptoms. He noted that communicating in writing reduces the impact of contact with the father on her. Minimising her exposure to the father assists her long term recovery, as well as day to day functioning. I accept that orders that promote her mental health are in the children’s interests, because she will be more available and present for the children. In the circumstances of the findings made on the father perpetrating family violence, and the mother’s PTSD, requiring her to consult with the father would not be safe for her.
I accept that the particular needs of these children will require many decisions to be made about their health care, allied health support, and educational needs into the future. These parents are not able to consult with each other to make a genuine effort to come to a joint decision in the children’s best interests. Further litigation to resolve a dispute such as schooling would not be in the children’s interests. As Ms R put it in oral evidence “no court and no litigation is a good outcome”.
I accept that the mother has been proactive, thorough and consistent when it comes to ensuring that appropriate major long-term decisions are made for the children. She is across what is required to meet the children’s needs. She makes good decisions for the children’s health and education. The father does not disagree with the decisions she has made. I accept that it is in the children’s best interests that she have sole parental responsibility and decision making authority. She has provided the father with detailed information about decisions in the past, and I accept will do so in the future. Both parents need to understand the children’s health needs, and the best ways to support them.
The father has sought an order that neither parent enrol the children in extracurricular activities that occur outside their time without the consent of the other parent. Team sports usually require weekend attendance at games, and training during the week during the season. There is no complaint by either parent about activities the other has engaged the children in. Given the lack of evidence that there is an issue to be determined, I do not propose making the order sought.
Whether a parenting co-ordinator should be engaged to assist the parties with decision making
Orders for the appointment of a parenting co-ordinator have been sought by the father to assist the parents make decisions about the children. The co-ordinator provides parents with a forum to discuss matters, essentially as a mediator. The co-ordinator may assist the parents resolve conflicts, develop communication and implement orders made. Using a parenting co-ordinator provides a process to assist parents make decisions for children, and strengthen their parenting relationship. I accept that this can be helpful for many parents.
These parents have engaged in contentious litigation requiring judicial determination. They have had disputes over many matters relating to health and education for their children. The children have special needs, who require many timely decisions to be made about their health, treatment and education. As indicated I propose making orders for the mother to have sole parental responsibility and decision making responsibility.
The father’s draft orders for a parenting co-ordinator highlight some obvious difficulties. Firstly, the parents have to agree on a co-ordinator. They are equally responsible for the cost. That person and the expense is not known. The proposed orders specify the parents can refer to the parenting co-ordinator any disputes about parenting responsibilities or arrangements where they cannot agree. It is foreseeable that there may be a dispute about which matters are referred to the parenting co-ordinator.
The parenting co-ordinator’s role is not to adjudicate the dispute. Their role is to give the parents a process by which they can reach agreement, and guidelines. On the father’s orders the co-ordinator may issue recommendations, or proposed protocols, with reasons to assist the parents implement the orders. These parties have already required judicial determination of disputes. I am concerned that imposing such a process may cause greater disputation and increase the possibility of further litigation.
During cross-examination, Ms R’s view was that a trauma informed parenting co-ordinator is the only type that would work. She noted such a person would be very expensive. In her view without a parenting co-ordinator the only option would be for the mother to have sole parental responsibility.
In the context of the findings I have made about family violence perpetrated by the father, the orders sought by him risk furthering the mother feeling controlled by the father. One parent can refer matters to the parenting co-ordinator, necessitating engagement by the other parent. The mother’s PTSD symptoms are triggered by exposure to the father, which is anathema to the best interests of the children.
Dr O was supportive of a parenting co-ordinator if that meant the mother could avoid communicating with the father. I am making orders that give her sole parental responsibility and decision making, and the use of a parenting application for communication on matters relating to the children for the reasons set out below. This minimises the level of communication required between the parties, and gives the mother more control over when she engages in communication with the father.
Ms G was in my view hesitant in supporting the appointment of a parenting co-ordinator. As she put it, it is hard to minimise the grey in parenting decisions.
Taking into account the evidence of the parents’ difficulties in decision making referred to by Ms G, and evidenced by the examples of school decisions, and the operation, I do not accept that a parenting coordinator would assist the parties in reaching timely decisions to benefit their children. Nor do I accept that it would help with their communication. The evidence supports minimising communicating between the parties, and keeping it to writing where possible.
What platforms should the parties use for communication
The parties have entered into a Binding Child Support Agreement. They both use the Our Family Wizard application for communication about financial matters related to that agreement. There is no additional expense in using that application for other purposes.
The father seeks that they use text messages and emails outside the application for communication about non-financial matters, as they have done to date. He argues that it works well. He uses the google calendar for the children’s events, appointments and the like. That calendar is available to both parties.
The father was concerned that messages about the children may get lost in other communication about financial matters if the application is used. It is difficult to understand this argument, given emails would arrive into an inbox containing emails about a variety of other matters.
The mother seeks that Our Family Wizard be used for all communication. She argues Our Family Wizard provides one platform, so there is a clear record of communication between the parties. There is a calendar function, so that the children’s events and appointments can be entered. This has the benefit of all information about the children being in one place.
Dr O’s evidence is the mother’s PTSD response is triggered by communication or contact with the father. Her symptoms include negative self perception, negative mood states, feelings of shame, hypervigilance, exaggerated startle response, concentration problems, sleep disturbance and dissociation. I accept that any of the symptoms could have a negative impact on her parenting capacity. These children both have extensive special needs. They need their mother to be able to focus on their needs.
The mother regards using Our Family Wizard as helpful for her. It allows her the opportunity to control when she communicates with the father, to “gather her wits” as Dr O put it, before she deals with messages.
I accept that giving her control over when she sees and deals with messages from the father, outside of an emergency, is helpful in managing her symptoms. This accords with her evidence and that of Dr O.
The father prefers the google calendar function. However, he is familiar with Our Family Wizard and will be able to utilise a shared calendar. I find that the inconvenience to the father of changing communication platforms is minimal. The benefit to the mother of communication which does not trigger PTSD symptoms is more significant than what is a minor inconvenience to the father. It is concerning that following Dr O’s evidence the father persisted in his position.
Our Family Wizard App has an additional advantage that all information about the children is accessible by the parents in one place, rather than spread between texts and emails. I order that the parties use Our Family Wizard to communicate in relation to parenting matters.
CONCLUSION
The parties have resolved some issues by consent orders, and otherwise I will make orders that finalise the dispute. As is clear from these reasons, further litigation would not be helpful for the children.
I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Boyle. Associate:
Dated: 24 January 2025
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