Mallory & Mallory - [2022] FedCFamC1F 697

Federal Circuit and Family Court of Australia
(DIVISION 1)
Mallory & Mallory [2022] FedCFamC1F 697

File number(s): MLC 4927 of 2016

Judgment of: CARTER J

Date of judgment: 14 September 2022

Catchwords: FAMILY LAW – CHILDREN – RELOCATION – where the mother seeks to relocate to Sydney – where the older children live with their father – where the older children have rejected their mother – where the younger children live with their mother – significant risks for the younger children in the father’s care – where the father’s capacity to promote and facilitate a meaningful relationship between the mother and the younger children is negligible – where there is poor parental communication – children’s involvement in the parental conflict – best interest of younger children to remain in primary care of mother – where the recommendations made by the Family Consultant are impracticable and not in the children’s best interests – competing allegations of risk – best interest of children paramount – orders made.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA

Cases cited:

A & A: Relocation Approach [2000] FamCA 751

Adamson & Adamson [2014] FamCAFC 232

AMS v AIF [1999] HCA 26

Andrew & Delaine [2009] FamCAFC 182

Bant & Clayton [2019] FamCAFC 198

Champness & Hanson [2009] FamCAFC 96

Cotton & Cotton (1983) FLC 91-330

G & C [2006] FamCA 994

H & H [2005] FamCA 805

In the Marriage of Hall [1979] FamCA 73

KB & TC [2005] FamCA 458

Loddington & Derringford (No 2) [2008] FamCA 925

Malburon & Waldlow [2013] FamCAFC 191

Mazorski & Albright [2007] FamCA 520

McCall & Clark [2009] FamCAFC 92

Moose & Moose (2008) FLC 93-375

Morgan & Miles [2007] FamCA 1230

Oberlin & Infeld [2021] FamCAFC 66

Taylor & Barker [2007] FamCA 1246

U v U [2002] HCA 36

Division: Division 1 First Instance

Number of paragraphs: 272

Date of last submissions: 15 July 2022

Date of hearing: 13 – 15 July 2022

Place: Melbourne

Counsel for the Applicant: Ms Anne-Louise Juneja

Solicitor for the Applicant: Buscombe & Madden

Counsel for the Respondent: Ms Deborah Wiener

Solicitor for the Respondent: Geelong Family Lawyers

Counsel for the Independent Children’s Lawyer: Mr Gerard Thistleton

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

MLC 4927 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MALLORY

Applicant

AND:
MS MALLORY

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

CARTER J

DATE OF ORDER:

14 September 2022

THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.

THE COURT FURTHER ORDERS BY CONSENT THAT:
Parental Responsibility for W and X
2.The father have sole parental responsibility for the children W born in 2006 (“W”) and X born in 2008 (“X”).
3.The father shall provide the mother with written advice of all long-term decisions made for the children as provided for in Order 2 herein within seven days of making any such decision.

Living Arrangements for W and X
4.W and X live with their father.
5.W and X spend time and communicate with the mother in accordance with their wishes and for the purposes of same:
(a)the Independent Children’s Lawyer shall forthwith explain these orders to W and X and the importance of maintaining a meaningful relationship with both parents; and
(b)the Father actively encourage those children to spend time and / or communicate with the Mother.

6.The mother be at liberty to liaise with W and X via letters, gifts or cards or other means and for the purpose of same, the father to provide all such correspondence to those children (where he receives those communications at first instance).

THE COURT FURTHER ORDERS THAT:
Parental Responsibility for Y and Z
7.The mother have sole parental responsibility for the children Y born in 2010 (“Y”) and Z born in 2013 (“Z”).
8.The mother shall provide the father with written advice of all long-term decisions made for the children as provided for in Order 7 herein within seven days of making any such decision.

Living Arrangements for Y and Z
9.Y and Z live with the mother.
10.The father be at liberty to liaise with Y and Z via letters, gifts and cards and for the purpose of same:
(a)all letters, gifts and cards shall be sent to Y and Z via the mother who shall determine whether they are appropriate to be provided to the children or not;
(b)all letters, gifts and cards shall be child-focused and not derogatory of the mother, the mother’s family and friends; and
(c)the communications shall not discuss the family law matters.

Restraints on the father
11.The father be restrained by injunction from:
(a)contacting Y and Z by other means including, but not limited to, telephone, video, gaming and social media;
(b)communicating with any school attended by Z or Y or communicating with any member of their school communities;
(c)communicating with any medical practitioner, psychologist or other allied health professional consulted by Z or Y; and
(d)attending any school attended by Z or Y

without the mother’s prior written agreement.
12.Y and Z spend such time with the father, and on such terms and conditions, as agreed between the parties.
13.The mother is at liberty to contact members of the paternal family to arrange time between Y and Z and their siblings and/or other members of the paternal family as agreed, and the mother is not required to seek or obtain the father’s consent to any such agreements as to time.
14.The Independent Children’s Lawyer shall forthwith explain these orders to Y and Z.

Relocation
15.The mother be permitted to relocate with Y and Z interstate to New South Wales and for the purposes of same, the mother shall provide the father with 28 days’ advance notice of the move.

THE COURT FURTHER ORDERS BY CONSENT THAT:
Parental Communication
16.The parents communicate with each other about the children in writing.
17.Each party keep the other updated as to their address, telephone numbers and email address and notify the other within 24 hours of any change to same.

Education
18.Both parents shall do all such acts and things and sign all such documents in order to request and authorise:-
(a)any school(s) at which the children attend from time to time to provide copies of all reports, notices, information, newsletters, photographs, invitations for parent / teacher interviews and any other information relating to the children to both parents at their own respective cost (if any);
(b)both parents access to the website or platform used by the children’s schools for the purpose of providing information to parents.

19.Both parents are at liberty to provide a copy of these orders to any school at which the children attend from time to time.

Medical
20.The parents shall forthwith inform the other in writing of any serious illness or injury sustained by the children whilst in their care and provide any particulars of any treatment received by the children together with the name and address of the treatment provider.
21.Both parents are at liberty to provide a copy of these orders to any medical practitioner, psychologist or allied health professional consulted by any of the children.

Restraints
22.Both parents be restrained by themselves, their servants and agents from :-
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or the other parent’s family members or friends to the children or in the presence, sight or hearing of the children;
(b)communicating about adult issues or parenting issues or contact arrangements through the children or directly with the children;
(c)interrogating the children about the other parent or the other parent’s family;
(d)physically disciplining the children;
(e)passing messages through the children;
(f)exposing the children to parental conflict; and
(g)knowingly allowing any third party to engage in conduct which is otherwise prohibited in accordance with this paragraph.

THE COURT FURTHER ORDERS THAT:
Miscellaneous
23.Following the explanation of these orders to the children as contemplated in Order 5(a) and 14 herein, the order appointing the Independent Children’s Lawyer be hereby discharged.
24.All extant applications be and are hereby dismissed.

AND THE COURT NOTES THAT:
A.Pursuant to sections 65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

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 Mallory & Mallory is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
introduction

The parties have four children, W, born in 2006 (aged 16), X born in 2008 (aged 14), Y born in 2010 (aged 11) and Z born in 2013 (aged nine). The children are all enrolled at D School, City C. W is in Year 10, X in Year nine, Y in Grade six and Z in Grade three.
The parties were engaged in litigation regarding the care of their children commencing in 2016, resulting in final orders being made on 30 August 2018 (“the 2018 final orders”), placing all four children in the mother’s care. Those orders provided for there to be a moratorium on the children’s time with their father. Judge Williams (as she was then known), who heard the original trial, was satisfied a moratorium was necessary given the findings she made regarding the father’s behaviours. Her Honour’s findings included that:
(a)the father had influenced and exacerbated the negative views that W and X had for their mother;
(b)the father’s entrenched views of the mother were unlikely to change;
(c)the father did not recognise the importance of the children’s relationships with their mother; and
(d)the father was never likely to encourage a relationship between the children and their mother.
That moratorium period was for six months in relation to W and X, and for eight weeks, or until the mother returned from Sydney, in relation to Y and Z. Accordingly, the time between the father and the older children was to resume in early 2019.
The father appealed her Honour’s decision. That appeal was heard in March 2019 and dismissed on 28 November 2019.
It is agreed that W and X did not settle in their mother’s care, and have now returned to live with their father. Z and Y have remained living with their mother, and have not spent any time with their father since mid-2021. The reasons for the current situation – and what orders would now be in the children’s best interests regarding their living arrangements – remain significantly in dispute. The parties provide very different versions of events throughout their relationship, and post separation. For the reasons to which I will turn later in this judgment, I prefer the mother’s version to that provided by the father where their recollections and evidence differs.
Events following the re-introduction of time
W and X recommenced spending time with their father in early 2019. The mother said their relationships with her deteriorated very quickly after that. She says they often refused to attend school, and were aggressive and abusive towards her.
Very shortly after time resumed, the father took the children to see Dr E (“Dr E”), his General Practitioner. Dr E has a long standing history with the family, and has been substantially supportive of the father throughout. W and X made further complaints about their mother’s care to Dr E, resulting in Child Protection becoming involved and Children’s Court proceedings being commenced. The complaints by the older children included that their mother had grabbed them, raged at them, hit them, hurt them, verbally abused them and had broken X’s arm. I note there is no medical evidence that indicated X suffered a broken arm whilst in the mother’s care.
Whilst Dr E has been very supportive of the father, he was not on affidavit, and not cross examined during these proceedings. Moreover, the letter dated 24 June 2020 he has written in support of the father, and in which he described the mother as the perpetrator of violence and that she possibly suffers from a mental illness, appears to have been drafted with direct input by the father. In all the circumstances, little weight can be attributed to any observations or comments made by Dr E.
Upon Child Protection becoming involved, notwithstanding the allegations made against the mother, they supported all four children remaining in the mother’s care. An Interim Accommodation Order was made at the Children’s Court in favour of the mother in mid-2019. All time between the children and the father was suspended.
It is apparent from the Department of Families Fairness and Housing (“the Department”) response dated 24 March 2020 that Child Protection were not of the view that the mother was an abusive or unsafe parent. Rather, the view was formed that W and X were being coached to make allegations against their mother. SOCIT also declined to take action against the mother. The mother was described by the Department as presenting as “very teary, emotional and ‘burnt out’”. The Department further recorded “[W] and [X] were observed to be hostile and aggressive towards the Mother, slamming doors and ignoring her attempts to engage with them. It was observed that [Y] and [Z] were attentive, responsive and at times physically affectionate to the Mother”. The Department at that time assessed the father as responsible for harm “due to the strong element of controlling and coercive behaviours” he demonstrated, and the impact those behaviours had on the relationship between the mother and the children.
Supervised time was subsequently introduced between the children and the father. W and X remained opposed to remaining in their mother’s care. The mother deposed that the children’s views of her were unfortunately so entrenched that they were impossible to overcome.
Ultimately, and reluctantly, the mother agreed to W and X being placed in their father’s care. They have resided with him since late 2019. The father maintained at trial that Child Protection had issues with the mother’s care of W and X, and that they found the older children needed to live in his care. He also said in his oral evidence that Child Protection found the mother’s allegations against him “to be false”. That does not appear to be reflected in the Department responses. Since that time, W and X have had virtually no contact or communication with their mother.
Y and Z remained living with their mother and spending time with the father and older siblings. Their time with him progressed to unsupervised time for short periods.
On 19 December 2019, the Department ceased their involvement with the family. Notwithstanding the significant changes that had occurred since the 2018 final orders were made, the father said he understood his time with Y and Z would then revert to the arrangements set out in those orders. That would have meant he would have the girls four nights per fortnight. The mother said her understanding was that the girls would continue to spend limited time with their father, for about two hours each week, which had been the arrangement struck in the Children’s Court proceedings.
The father had some time with the girls for Christmas, but time between the girls and their father was limited over the school holidays as the parties could not agree on appropriate arrangements. The father continued to want a return to the 2018 final orders and the mother wanted the girls to spend far more limited time with him. The mother sought to arrange Family Dispute Resolution in early 2020. The father refused to engage in that process. In his oral evidence he asserted that the mother was attempting to alienate the girls from him and their older siblings over the summer holidays.
The father then attended at the girls’ school in early 2020 wanting to collect them for what he felt was ‘his’ alternate weekend as envisaged in the 2018 final orders. The mother had not agreed to this, and an awful situation developed at the school, with the father encouraging and allowing the children to remain with him, and not directing the children to go home with their mother. The police were then called to the school and the parents escorted to their cars. The father continued to insist on taking the girls home with him, allowing both girls to get into his car and not directing them to leave his vehicle and go home with their mother. The mother agreed reluctantly to allow the father to take the girls home, to end the standoff. The father’s behaviour that day showed a significant lack of insight into the impact on the children of placing them squarely at the centre of their parents’ dispute.
There were further occasions of time in early 2020, during which time the father failed to take the girls to their gymnastics classes. The mother said the girls told her the father said she had only enrolled them in gymnastic “for free babysitting” and in order to limit his time with them. The mother said these comments impacted the girls, and they became reluctant to continue with the activity, despite that they had previously loved attending.
The father issued these proceedings on 16 March 2020.
Shortly after in 2020, the father again attended at the girls’ school without the mother’s agreement and took the children for the weekend. The mother again reluctantly agreed that the father could take the girls, in order to avoid exposing them to further parental conflict. The father did not take the girls to gymnastics that weekend either.
On 18 May 2020, orders were made for the girls to spend alternate Saturday nights in the father’s care. The matter was also transferred to the Family Court of Australia (as it then was).
After those orders were made, the mother provided the girls to the father in accordance with those orders, as well as for additional times on special occasions. She also made arrangements for the girls to spend time with their paternal grandmother and cousins on a few occasions.
Conversely, the father did not facilitate any time or communication between the mother, W and X. Nor did he provide the mother with updates as to their progress at school or generally. When the mother sent cards and presents for their birthdays in 2020, the father emailed the mother and asked her not to send correspondence or presents to the children except through him, and he will ask the children if they want the items.
On 19 November 2020, orders were made by consent inter alia for the girls to spend alternate weekends from Friday to Monday with their father, and for additional time during school holidays. Orders were also made for W to have counselling with Dr J (“Dr J”) and for X to have counselling with Mr F (“Mr F”). I understand W attended one appointment with Dr J, who subsequently said ongoing therapy was not beneficial at that time given W’s attitude towards it. The father said X was resistant to attending upon Mr F and that was ceased as well.

In 2021, the mother agreed to the girls spending an additional night in the father’s care for his birthday. The father sent Y to school the following day but retained Z in his care. The mother collected Y from school, but the father refused to return Z to the mother, and retained her in his care.
In mid-2021, the father facilitated a phone call between Z and the mother in which Z said she wanted to live with her father.
During mid-2021, the father took Z to doctors, the police and notified V Service of his alleged concerns that Z was being abused by the mother. No action was taken by the police or by Child Protection, suggesting that nothing Z reported required any follow up. It is deeply problematic that the father subjected Z to these interviews and appointments. It must have been very distressing and confusing for her. She should have been attending school instead of being taken to various bodies to make complaints about her mother.
The father said that in the weeks leading up to these events, Z had complained about returning to the mother’s care, that she was frightened by her mother and that she had been hurt by her.
The mother’s solicitors wrote to the father on 25 May 2021 advising that Z was to be returned to her that evening at 6.00 pm and failing that, she would seek a Recovery Order. The father did not respond to that correspondence. In his oral evidence he said he did not recall that letter.
The father asserted that in mid-2021, Z refused to be collected by her mother from school, and the school then requested the father collect her, which he did. The father said he did so at the behest of the school, and that he was acting protectively by subsequently retaining Z in his care. In his oral evidence he said it did not occur to him to direct Z to go home with her mother. He also said it did not occur to him to take Z home to her mother’s house.
The parties were in court on 27 May 2021 for a Less Adversarial Hearing. The father was present at court that day, and there were some discussions regarding Z and regarding the mother’s impending Recovery Order application in the event of her non-return.
Z was not returned and the mother then issued an Application in a Proceeding seeking a Recovery Order that afternoon. The application was served on the father by email. In his oral evidence he said he could not remember whether he saw that email or not.
The Recovery Order application was listed on 28 May 2021. The father did not attend court and the order was made in his absence. The orders made that day also included suspending the father’s time with the girls. Whilst the father was absent, attempts were made by the court to contact him. In his oral evidence the father said he did not have any knowledge of a phone call from the court. The father had been on notice the application was shortly to be made and had been served with the application by email. In his oral evidence he said he was not reading his emails, and he was not taking phone calls as he was dealing with his “children’s issues”. If the father did not know of the application, it is plain that is because he was deliberately avoiding the communications to him regarding the application.
Shortly after, four uniformed police officers attended at the father’s home to execute the Recovery Order. In his oral evidence, the father said he did not allow the police in the house. He said W, X and Z were aware there were police at the door, as they could see them through the large front windows. He said he was surprised they were there, and he told the police he had the mother’s permission to have Z, but the police said it did not matter as they had the order to recover her. He said when Z came outside, she clung to his neck, with the father crouched on the ground. He said he held his arms outstretched, to show he was not holding her. He said this went on for about 40 minutes and Z would not get in the police vehicle. He said one police officer was fairly agitated and wanted to “escalate things”, and the father asked how long it would be before things were “escalated”. The neighbours came out to see what was going on. It must have been an extremely distressing and confusing situation for Z. In his oral evidence the father initially said that he was crying when the police were there taking Z away. He subsequently said maybe he did not cry at that time. Eventually, the father took Z to the police vehicle and sat in the back with her until they reached the police station. Once there, Z separated from her father, and was returned to her mother’s care. It was apparent from the father’s evidence that he played a very passive role in the day’s events – allowing Z to be distressed for a protracted period, rather than reassuring her, and calmly and authoritatively directing her to leave with the police. This showed a profound lack of insight by the father.
The father said that on his return from the police station he spoke with W and X. He said they were obviously upset and it was not a great discussion. He said “we have been treated poorly over the years”, so the children are “pretty accustomed” to this sort of situation. However he also said that this incident had a definite impact on W’s confidence around attending school, and that she fears this could happen to her at any time and she does not feel safe.
On 11 June 2021, the parties and Z participated in a Child Inclusive Conference.
On 2 July 2021, further orders were made suspending the father’s alternate weekend time and holiday time with the two younger girls, with additional orders for him to spend professionally supervised time with them instead. The father did nothing to engage any supervising service, and accordingly, has had no time with Z or Y since mid-2021. The father deposed that he did initially attempt to engage G Contact Centre, but did not put himself on the wait list. Had he done so, time could have been expected to commence there in late 2021/early 2022.
The siblings have also not spent any regular time together over the last few years. X and Y are currently at the same campus and do occasionally see each other at school. Most recently, the mother arranged time between the girls and their siblings on two dates in mid-2022, with those visits supervised by the father’s sister, Ms T.
The parties’ proposals
The father’s counsel opened his case on the basis that it was agreed that Y and Z would live with the mother and spend time with the father, progressing from initially supervised visits to alternate weekend time and an equal division of the holidays. The court was told the father also agreed to the mother having sole parental responsibility for the children in her primary care. The father deposed in his trial affidavit that he was now prepared to spend time with the girls at a supervised contact service on an interim basis.
However, during cross examination the father quickly resiled from that position. He sought instead that all four children live with him, and that he have sole parental responsibility for them. He formally proposed that the two younger children spend alternate weekends and half the holidays and some special occasions with the mother. These proposals substantially reflected the father’s proposals when interviewed for the preparation of the family report in February 2022.
Prior to delivering her closing address, counsel for the father provided the father’s proposed orders reflecting his updated position, which were marked as an exhibit. Those orders sought included that W and X spend time with the mother in accordance with their views, as well as providing for both parents to attend school functions and concerts, orders directing the parties to provide medical information to the other, mutual restraints on denigrating the other parent to the children and from physically disciplining the children as well as orders for overseas travel. Some of those orders – but not all – were proposed by both parties. In particular, the mother did not seek orders regarding travel. Nor did she propose orders that would enable the other parent to attend at the school or activities undertaken by the children when not in his or her care. Indeed, she sought the father be restrained from attending at or communicating with the girls’ schools.
The mother also provided a set of orders sought at the conclusion of the hearing. She agrees that X and W should remain living with the father, and spend time and communicate with her in accordance with their wishes. She has not come to that determination easily, but recognises that given the children’s estrangement from her there is little utility in having orders that provide otherwise. She also agrees that given the circumstances, as a matter of practicality, the father should have sole parental responsibility for the older children. She also sought that he keep her appraised of the decisions he makes in the exercise of that responsibility.
In relation to Y and Z, the mother proposes that they remain living with her, and that she have sole parental responsibility for them, with her to similarly keep the father informed. She wishes to relocate with them, to Sydney, so that she and the girls can live with her partner, Mr H (“Mr H”) in his home there. She says given the father’s manipulation of the children, and his attitude towards the mother, he cannot have unsupervised time, as he will continue to undermine her and alienate the children from her. Further, she says ongoing supervised time is neither practicable nor in the children’s best interests. It is her position that the father’s communication with Y and Z should be limited to sending cards and letters that she will vet to determine if they are appropriate before providing them to the girls, and that he should otherwise only have time as agreed between the parties. The mother also seeks a number of additional restraints around the father’s ability to communicate with the girls.
In relation to the girls seeing members of the paternal family and their older siblings, the mother said she would liaise with the paternal grandmother and aunt, as she has done on occasion to date, to make suitable arrangements. She also proposed the parties keep each other informed regarding serious illness or injury sustained by the children in their respective care and similar restraints as proposed by the father.
At the conclusion of the evidence, the Independent Children’s Lawyer supported the orders sought by the mother. Those proposed orders have also been marked as an exhibit.
The evidence
The Father
The father is 47 years old. He is currently unemployed, and is in receipt of a carer’s pension. He was previously engaged as an educator. He says he has not re-partnered. He lives with W and X in rental accommodation in Suburb K, City C. The father deposed that he has depression, but that is managed with the assistance of his GP and that he has additional support from a senior counsellor at AA Service with whom has had been engaged for about six years. He said he also has a network of family and friends to assist and support him and the children. In his oral evidence he said he suffered from low mood, rather than depression, and he was not getting joy out of life. He said he was not on any medication.
The father was not an impressive witness. He frequently took the opportunity to point out the mother’s failings rather than simply answering the question he was asked. He remained steadfast in his beliefs that the mother is responsible for emotionally and physically harming all the children, and that leaving the younger two in her care will continue to expose them to her violent and abusive parenting. He frequently gave long answers, highlighting his perceived deficits in the mother’s parenting and rejecting any possibility that he has acted other than without fault.
In his oral evidence, the father demonstrated little insight into the impact on the children of his behaviours and attitudes towards the mother. He takes almost no responsibility for the conflict, and said that at all times he believes he has acted in the children’s best interests. He was unable to countenance any suggestion that he has contributed in any meaningful way to the older children’s rejection of their mother. The only way he could identify that he had perhaps contributed to the current toxic dynamic between the older children and their mother was that as a result of him being so consistent and reliable the children were able to identify how unstable and unreliable their mother was. He was unable to entertain any nuanced view of the older children’s rejection of their mother. He was rigid and unrelenting in his criticisms and admonishment of the mother.
Additionally, the father frequently voiced that the court system was biased against him in his oral evidence, as he had also told the Family Report writer. He also asserted that the Independent Children’s Lawyer influenced Dr B to write a report that was damning of the father, and that she had been similarly influential regarding Ms L’s (“Ms L”) report. Additionally, the father maintained that the determination by Williams J in 2018 was not in the children’s best interests, and that her Honour’s conclusions that the children were exposed to his hostile views of the mother was guesswork and based on inaccurate assumptions. He said that each negative report or finding against him has formed the platform for the next negative report or finding. He said he has been deflated by the unfair treatment he has received from this court. That is, the father preferred to blame and rail against ‘the system’ as being biased against him rather than grappling with and reflecting deeply on his own behaviours, attitudes and actions.
The father maintained vigorously in his evidence that he has in no way influenced any of the children to dislike or distrust their mother. During cross examination he said there is no evidence that he has behaved in any way that has contributed to the older children’s rejection of their mother and described the allegations he had done so as “wild”. He repeatedly said he was being used as a scapegoat. He said the proposition that he did not give the older children permission to have a relationship with their mother is a “fallacy” created by the mother. He said in relation to W and X that he has followed the court orders, and encouraged the children to see their mother, when they want to. He denied that he has done or said anything that would contribute to the older children not wanting to see their mother, or that he has done or said anything that could undermine the girls’ relationships with her. That included his denials that he used the video conference calls with the girls to blame their mother for the lack of time he has with them.
I do not accept his evidence that he has done nothing to undermine the children’s relationships with their mother. If he has not deliberately done so, he has at least acted with reckless disregard for, or indifference to, the implications and impacts of his comments and behaviours.
Both the mother and Mr H report having heard him denigrate the mother to the younger children during video calls. Moreover, Y told the Family Report writer that the father frequently questioned her about the mother, saying “why is mum doing that”. She also said the father observed all court rules, “except the one that says he’s not to say bad things about mum” which Y said made her feel upset and confused.
It is apparent that during the video calls the father has questioned the children about – and at times sought to examine – cuts, bruises, scratches or injuries they might have sustained in the mother’s care. He acknowledged he did ask Z to remove a band-aid, so he could, “as a loving father”, “look at her sores”. I also note that when asked if he has told the girls during video calls that he was sorry the mother was yelling at them, and trying to stop them from talking to her, he said he probably did tell her not to yell at the children, if she was doing so. He said that there were times the mother disrupted his calls with the girls, by yelling and interfering in that communication. He said the mother should just have allowed the communication between him and children “without her creating that sort of mess”. He readily attributed any reluctance or distraction experienced by the children during these calls as being orchestrated by the mother, and said the mother’s allegations about his snide, manipulative comments to the girls were lies and fabrications. He said he would not ‘waste his time’ during his communication with the girls to talk about their mother.
In his oral evidence the father asserted that he has taken steps to encourage and promote the older children’s relationship with their mother. He said he has told them it is important that they have a relationship with her, but they have refused. He was unable to give specifics regarding conversations he has had with the children to that effect. Nor did he outline any other steps taken by him to have the children engage with their mother. Rather, he reported that his counsellor has suggested that he not ask the children often about their mother. I understood from his evidence that the children had not been prepared to receive the cards, letters or gifts forwarded by their mother. The mother said the father told her to stop sending things to the children as they were not wanted and caused the children great anxiety. The mother said she then stopped sending cards and gifts, as she did not want to distress the children, although she also wanted them to know that they are still loved by her, even if that is rejected or unwanted by them.
The father remains apparently unclear why the Department concluded that he was responsible for harm of his children. I note that his counsellor at AA Service, Mr M (“Mr M”), wrote a letter in support of the father dated mid-2021. Mr M was not on affidavit, nor made available for cross examination. In that letter it is recorded that when the father was only allowed to have supervised time with the children for a few hours each week and “he received no indication of why”. Further, that letter recorded that the father remained “unclear what the process was in [the] decision making” that resulted in W and X living with him, and Y and Z living with the mother. This suggests either the father was prepared to mislead his support worker, or he has an astonishing lack of insight. I note further that in that letter, Mr M wrote that “[X] felt very strongly about contributing to the decisions that would ultimately affect his life and his sister’s lives”. X was 11 years old at that time.
The father appeared prepared only to engage with professionals who accept his view and do not challenge him. I note Williams J in her reasons for judgment for the 2018 final orders said the father “thought that any contrary view” to his own “was simply not telling the truth”. It appears his views have not changed as he continues to reject any narrative contrary to his beliefs.
The father remained unable to engage with any explanation for W and X’s views other than blaming the mother’s poor and abusive parenting. In that regard, the father urged the court to accept the opinions of Dr J and Dr E, but to reject the opinions expressed by Child Protection, Dr B, Ms N and Ms L. In his oral evidence the father said Dr B was “clutching at straws” to try to explain the older children’s attitude towards the mother, and that the material provided to him by the Independent Children’s Lawyer and the questions that were asked were “stacked” to achieve the result of “damning” the father, to “make out” that he was influencing the children.
Dr J was not called to give evidence before me. I note that Williams J gave detailed reasons as to why she preferred the views of Dr B over those expressed by Dr J. Additionally, the mother gave insightful evidence regarding what occurred during the time Dr J was engaged that led to the mother acting differently than she ordinarily would have with the children. That included that she had not seen the children for four months prior to the first observation, and that she was extremely anxious.

Similarly, the father rejects any comments made by the children if they do not fit with his narrative. For instance, in his oral evidence he said that Y’s comments that the older children had made up the allegations of abuse in their mother’s care were as a result of being pressured, manipulated or convinced by the mother to say so. Additionally, he said that Y’s positive comments to Dr B regarding the mother, and her complaints that he frequently questioned her about the mother were as a result of her being heavily influenced and manipulated. He said the mother had “worked extensively” on Y, and that Y is now “very fearful” to speak out against her mother. He was unable to explain why the girls had not told the Family Consultant what he regards as their true views, being that they want to primarily live with him.
The father readily attributed any issues or difficulties the children face to deficiencies in the mother’s care of them. For instance, he appeared to attribute Z’s bed wetting to being linked with them being in the mother’s care during the moratorium period. He also maintained in his oral evidence that she did not wet the bed at his house – or only on the first night after being with the mother – and that she would revert to bed wetting at her mother’s home. He said “the wetting in the mother’s care has to be sorted out”. In early 2021 the father spoke with a continence nurse consultant at O Health Service. The note of that conversation was tendered. It recorded that the father repeatedly criticised the mother, complained that the mother provided inadequate care, said she had lied about the bed wetting and was an unfit mother. I note the father said he did not recall having said these things.
Similarly, the father attributed Z’s psychosomatic stomach pains to her being distressed in the mother’s care. He said the pains only happen when Z is in the mother’s care. He believes the children’s struggles and difficulties escalate when they have no time with him.
Save in relation to the allegation that the mother sought to poison the children, the father unquestioningly accepted the complaints and allegations the older children made about their mother. He appeared to validate their complaints as reasonable even when they appear overblown and exaggerated. For instance, he deposed that the older children reported that their mother called them “abominable” as an example of abuse. The mother’s explanation – that she had described their behaviour as outlined at times as abominable – appeared completely plausible. Indeed, their behaviour towards her was unacceptable. The father also deposed that W was required to cook and care for her younger siblings as an example of the mother’s mistreatment. The mother said that W often refused to eat food the mother prepared, asserting that the mother may have poisoned or tampered with it somehow. The mother explained the efforts to which she had gone – involving W in supermarket trips and food choices and buying W her own utensils and crockery – in an attempt to reassure her. The mother said W enjoyed cooking and would offer the other children the food she had cooked, which the children would accept, in addition to eating the food the mother had prepared. Again, the mother’s explanation was completely plausible.
The father also appeared prepared to overstate the risks to the children in the mother’s care. For instance in his evidence the father said that when the mother had W and X in Sydney during the moratorium period, that they were kept in “lockdown”, that they expressed “multiple harm” throughout that period and that they were “fearing for their lives”. There is no evidence that the children would have any reason to fear for their lives in their mother’s care. When he was directed to explain what he meant, he acknowledged no threats to their lives had been made, and he meant the children were fearing they may take their own lives. The father appeared to minimise the gravity of his early allegation. The father’s explanation for the lack of complaints made by W and X to any teachers or services during the moratorium period was that the mother kept to her “plan” to keep the children isolated. He lamented “how does she get away with doing this?”
I note the father deposed that he “[takes] accountability” for not having pursued professionally supervised time with the younger children as ordered by the court. However, in his oral evidence the father asserted that the only thing stopping the younger two from seeing him was their mother. It is difficult to reconcile those two statements. It seems to me that in reality, the father blames the mother for time not currently occurring. That also fits with the mother’s evidence that W has told the girls that the reason time was not occurring between the girls and their father was that the mother was blocking the process. It was the father’s behaviour that led to the orders for supervised time, and it was entirely the father’s choice to not pursue that supervised time. It is disingenuous for him to blame the mother, and it is dishonest for him to say he takes accountability for not spending time with the girls when he does not. I note further that in his oral evidence he excused his failure to take up time, asserting he had a breakdown when the orders for supervised time were made, and that he was devastated by the treatment of the children by the court. He also said that if he had exercised supervised time, that would possibly have produced “another false report”, as the previous supervised time had done. The father also told the Family Report writer that he did not take up the orders for time as he considered that supervised time was not in the children’s best interests.
That he did not make arrangements to see the girls as ordered, indicates the father’s preparedness to prioritise his views and needs ahead of those of the children, and a refusal to comply with care arrangements for them that are not of his choosing. As noted by the Family Report writer Ms L, Y and Z “suffered from having no contact and are left questioning the stability of their relationship with their father”.
Similarly, the father did not respond in a child focussed manner regarding Y and Z’s toys. In mid-2021, the mother sent the father an email asking if he could provide her with the girls’ sleep comforter plush toys as they were missing them. The father refused to do so. He sent several emails setting out that the girls want to live with him and that the girls did not want to take their belongings from his home to the mother’s home as “items go missing in your care”. He questioned whether the girls really did want those items at their mother’s home, stating that “without hearing directly” from the girls he thought it “unlikely they want these items in your care” and told the mother “[p]lease consider the well-being of our children”. In one of the emails the father wrote “[i]t is unpleasant to hear from you that [Y] and [Z] have emotionally reverted in your care to need comfort from their infant plushies”. In response to the mother’s suggestion that perhaps the paternal grandmother could assist in providing the toys, the father wrote:
I will not be party to your emotional manipulation of our children. Please do not draw their loving Nan into your plots. You have damaged many relationships.
The father’s refusal to provide the toys is incomprehensible. The father maintained in his oral evidence that his responses were reasonable and appropriate. He maintained the girls had been very clear that children did not want their toys to go to their mother’s home, as “things get lost there”, and they considered those toys as “precious” and they did not want them to get lost.
The father asserted that the sibling relationships are very important to him and to the children. However, I accept the mother’s evidence that it has been difficult to obtain the father’s agreement to making arrangements so that all four children can spend time together. The father was unable to credit the mother with facilitating that time. When it was put to him that the mother had arranged for the children to spend time together recently, in the presence of his sister, he initially said that he had been the one who made those arrangements. However, when asked to produce the emails in which he had initiated the discussions about making those arrangements, he backtracked and admitted he had not initiated those arrangements. When asked subsequently if he agreed the mother had fostered the girls’ relationships with his extended family he said that was not true, and he imagined it was either his mother or sister who organised any time they had with the girls rather than it being the mother’s doing.
The father reacted negatively when Y contacted her siblings in early 2022 to try to make an arrangement to see them. The father responded by sending an email to the mother with the subject line “Children hurtful communication”. He wrote:
Please refrain from causing more harm to our children. You have just involved [Y] again to communicate with [W] and [X] regarding contact arrangements. Not only this [sic] inappropriate action, but leading our children to believe false reasons for why they are isolated from each other.
Our children need Protection from your continued harm. Child Protection will need to act for our children.
Please stop your harmful manipulation.
The mother responded that Y had messaged the children of her own accord and the mother was unaware of the communication until after the fact. This was a nasty and unnecessary overreaction by the father.
The father deposed that he acknowledges the children would benefit from having a meaningful relationship with their mother. He said he has attempted to encourage W and X to connect with their mother. However, I am not satisfied that he has done so. The father was unable to articulate how he has positively and actively actually encouraged the children. He was unable to articulate what the benefits to the children would be if they did have a relationship with her. Nor has he ever directed W or X to spend time or communicate with their mother. It was apparent that he has never admonished the older children for their extremely poor behaviour towards their mother as outlined in the reports by Dr B. Whilst he claimed in his oral evidence that he was shocked by their behaviours, he went on to say that there was not much explanation in the report as to the mother’s role in the situation. That is, he accepted wholeheartedly that the issue lay with the mother and her behaviour – and he sympathised with W and X, believing their behaviour to be understandable, rather than unacceptable.
I do not accept that he believes there is any benefit to W and X spending time or communicating with their mother. He maintains a view that they have experienced physical and emotional trauma in the mother’s care and that the children’s refusal to spend time with their mother is substantially as a result of that trauma. He deposed that [t]hese wounds have not yet been healed for [W] and [X]” and that they are currently not ready to repair their relationship with the mother. In his oral evidence the father said W and X remain very fearful of the mother. He said he is required to drive the children to and from school as they are worried they will see their mother. He said they become frightened when they see her vehicle.
As observed, the father does not acknowledge any role he has played in the destruction of those relationships. Nor does he regard the restoration of the mother/child relationships as necessary for the best interests of W and X.
The father remains of the view that similarly to W and X, Z and Y remain at risk in their mother’s care. In his oral evidence, the father described the mother as a deficient parent, unable to manage the children’s day to day tasks. He said that the mother does not get up out of bed, that the children have to make their own lunches, that the mother is neglectful and that she does not get the girls to school. In his oral evidence the father said W and X “hear” from their younger siblings that they do not want to be with their mother and that they are being harmed by her. He said that the children “are beside themselves with all this and it’s not created by me”. He said that the mother has “done damage to the children” and that she “continues to damage them by trying to make believe I’m the cause”. He said the complaints by the children have been very consistent, and it was “highly likely” that the girls were at risk in the mother’s care. He said that there is “something seriously wrong” in the mother’s treatment of the children. He said if the girls lived with him, he would facilitate time in a safe environment, being time in “smaller doses”. He said that ought not include school nights as the mother has been unable to get them to school, or attend to their medical needs.
In the circumstances, I could not be satisfied that the father genuinely wishes to facilitate a meaningful relationship between any of the children and their mother.
The Mother
The mother is 46 years old. She is self-employed. She lives with Y and Z in a three bedroom home in Suburb U, City C.
The mother was an impressive witness. She made sensible concessions, was able to admit errors in her parenting, including that she had slapped X and W some years ago, that she has raised her voice, and struggled at times with managing all four children. She said she has reflected on the criticisms levelled at her parenting by Child Protection and Dr J and that she has actively learned to improve her parenting and now does so more calmly. She has engaged with professionals to improve her parenting, undertaken parenting skills courses and reflected on her parenting practices. Indeed, the observations conducted subsequently by other professionals reflected improved parenting by the mother, and suggested safe, warm and appropriate parenting.
The mother was also able to acknowledge positives about the father and his contribution to the children. It is to her credit that the girls apparently are unaware that their father has chosen not to take up the operative orders for supervised time with them.
The mother answered questions directly, gave thoughtful, reflective answers, and provided credible and sincere explanations and responses. She impressed as an attuned and caring parent, well aware of the complex issues all four children face and genuinely motivated to find an end to the distress and trauma the parental conflict has inflicted on them. She appeared devastated that her relationships with W and X are now seemingly beyond repair, and she is genuinely and deeply concerned about their future wellbeing.
The mother conceded that the moratorium period was a very difficult time for everybody. In particular, she struggled with W and X. She said there were some good days, and it appeared they were reconnecting with their mother. For instance, at first the children both wanted to sleep in her bed with her and fought for her attention. On other days, however, the children’s attitude towards the mother was poor, and their behaviour to her was very challenging and defiant. She said on the first day, W was initially reluctant to come inside, and the mother said she remained outside with W, to watch her and give her time to grieve and accept her situation. At one point, W left the premises and ran a few doors up. Her maternal uncle followed her and took her by the arm and brought her back home. The mother denied this was done roughly, or that W was hurt in any way. The mother’s evidence sounded reasonable and plausible.
The mother described that during the time W was in her primary care, she frequently refused to go to school and would not eat properly. She also said that W did not want to leave the house on occasion, and resisted catching public transport. Whilst orders were made for W and X to attend counselling, they refused to participate. When the counsellor attended at the home, W and X hid from her. The mother was able to get W to attend the O Health Service for a few visits, before W chose to end their engagement.
The mother further conceded that when the moratorium period ended and time between the father and the older children recommenced, her relationships with both children rapidly deteriorated. She said W and X became physically aggressive and abusive towards her and fabricated incidents of family violence. In her oral evidence she described that they railed against boundaries she imposed, and that they were petulant, over-empowered and disrespectful. She said they would try to snatch and grab electronic devices from her, threaten to video any altercation, and would not listen to her directions. She said this was a very frustrating and challenging time, and she tried her best to make the children feel safe and loved, whilst also trying to manage their poor behaviours. She acknowledged that she also recorded the children at times, when their behaviour was “off the planet”. She readily conceded in her oral evidence this was a mistake and parents and children should not be getting out phones to record evidence against each other. She said W and X would report everything back to their father.
In the circumstances, the mother has had to make what she described as a heart breaking decision to relinquish W and X to the father’s care.
In relation to Z’s bed wetting, the mother said that had been an issue overnight for a number of years. She said it was not something that commenced or recommenced when she stopped seeing her father. I understand from the mother that this issue is resolving.
I accept the mother’s evidence that following the conclusion of the Children’s Court proceedings, the father continued to act in a manner that undermined her parenting and her relationships with Y and Z. She set out that he undermined the girls’ attendance at gymnastics, and turned up at school without her agreement to take them for the weekend. I accept her evidence that during video communications the father denigrated her to the children, pressured and manipulated them, telling them that she was stopping the children from being with him. I do not accept the father’s denials in relation to these allegations. These comments and behaviours reflect his deeply held beliefs. I also accept the mother’s evidence that the father often cried during these calls, and that he involved the children in the dispute by discussing changeover arrangements with them, and proposals for additional time.
I accept the mother’s evidence that the girls have reported to her that the father gets angry when he sees her at changeovers, that he cries when they leave his home after visits, and that he has told them that he can only sleep when they are all together. I note that Y also told the Family Report writer that the father cries a lot, and that her father and siblings say “bad stuff” about the mother. As already observed, I accept the mother’s evidence regarding the comments made by the father to the girls during video calls, insinuating that the children are at risk in their mother’s care and blaming her for the lack of physical contact with him.
It is apparent that the mother has also involved the girls inappropriately in the parental dispute. Z told the family report writer that her mother shows her emails the father has written, and Y reported that the mother had told her that the father had brainwashed her older siblings against her. That would be deeply distressing and confusing for the girls.
The mother said that towards the end of 2020, Z’s complaints of physical pain were getting worse and more frequent, and that she was increasingly anxious particularly following returning from her father’s home. The mother said Z also became more distant towards her over time, and blamed the mother for the separation of the sib-ship.
Conversely, the mother said that following the father’s time with the children ceasing in mid- 2021, the girls have become more settled and less anxious. She said they have been more comfortable in showing the mother love and affection. She said Z’s physical pains have decreased, although there were issues again following the children being involved in the preparation of the Family Report.

I accept the mother’s evidence that she understands the importance of maintaining the sibling relationships, and that she has endeavoured to facilitate visits between them, as well as ensuring the girls see other members of the father’s family. She has arranged time on special occasions, as well as arranging ad hoc catch-ups and outings. I also accept her evidence that the father has been somewhat interfering in her attempts to make arrangements directly with the father’s family. The mother said that when she has attempted to make arrangements with him, rather than through family members, he has been difficult and denigrating towards her.
The mother very much wishes to move to Sydney and live with Mr H. I am satisfied that she has given deep and careful consideration to her proposals to relocate, and for the girls’ communication with their father be by cards and gifts only. She has also thought carefully about the impact it will have on the girls and is mindful they will most likely need additional support from her – and professionals – to manage that change. She has considered what schools may be appropriate in the area and which would best meet the girls’ needs. Mr H’s house is a four bedroom home, and the girls would need to share a bedroom until larger accommodation was obtained. The mother said she would be able to continue to work from home in Sydney, running her own business.
Having had the opportunity of hearing evidence from both the mother and Mr H I am satisfied that theirs is a loving and committed relationship, which they would like to strengthen through marriage and cohabitation. The mother also said she will feel happier and safer in Sydney, living with Mr H, and that this will in turn reflect positively on the girls. She said even if she lives in Sydney she will return to Melbourne with the girls regularly, to visit family here. She has done her best to ensure the girls have spent time with their siblings and with other members of the paternal family, although it has been difficult at times to secure the father’s cooperation. She said she will continue to facilitate those relationships.
Mr H
Mr H attended remotely to give his evidence by way of Microsoft Teams from his home in Sydney. There were no technical issues with the giving of his evidence, and I am satisfied I was well able to hear and assess his evidence via that platform.
Mr H has three children of his own. Ms Q is aged 18 and lives primarily with him. P and R are aged 16 and 11 respectively. Mr H shares the care of his younger children with his former partner. Mr H and the mother both say his children get along well with the girls, and that they have formed friendships with each other, having holidayed together on several occasions. Ms Q has also travelled to Melbourne with Mr H on a number of occasions. Mr H and the mother also say that the girls are developing a warm relationship with him.
The mother is well supported by Mr H. He was a most impressive witness, giving insightful and child focussed answers. He was able to articulate his concerns regarding the parenting dynamic between the parties respectfully and calmly. It was apparent that he too has carefully considered the options for the girls, the mother, himself and his children. He is well aware of the difficulties the girls are likely to experience upon their relocation, and appeared motivated and committed to ensuring he provide the mother and the girls with the support and assistance they will require following their move. He also appeared to be well aware of – and sensitive to – the complexity of the situation for the girls, their mother and siblings, as well as the work that is required to enable the children to simply be able to enjoy their childhood.
I accept Mr H’s evidence that he has heard the father undermining the mother to the children, questioning the girls in an angry tone and telling them that their mother is doing the wrong thing. I also accept his evidence that the mother has been disciplined in how she talks to the girls about their father and their siblings. He said she encourages them to speak with him, and she speaks positively about W and X.
I also accept that the mother and Mr H are deeply committed to each other, and that Mr H is a significant source of support and comfort to the mother. They began their relationship in late 2020, and wish to marry following their engagement earlier this year. Even if the move is not permitted, Mr H said he and the mother will do all they can to maintain their relationship. He acknowledged both he and the mother would be deeply disappointed if the mother had to remain in Victoria, but that they would find a way to navigate that.
Dr B
Dr B provided Family Reports for this family in November 2017 and April 2018 for the previous proceedings. He was engaged again and completed a reported dated 17 November 2020. W and X did not participate in interviews for that report. According to correspondence between the Independent Children’s Lawyer and Dr E, the older children felt scared and distressed at having to meet with Dr B.
In the November 2020 report, Dr B recorded that the father’s presentation did not differ significantly from his presentation in 2017 and 2018. He said the father remained convinced that the mother could not cope with the children, that she had been verbally and physically aggressive to the older children, traumatising them. Dr B described the father as:
…wholly critical of [the mother] and completely accepting of everything that he had been told by the children about their time with their mother. Even when pressed about the possibility that [W] and [X] may have amplified, or misrepresented, or completely falsified their grievances against the mother, he was unwavering. He remarked, “I believe, I fully believe my children”….
As noted, these observations of the father and his attitudes and beliefs mirrors his presentation before me.
The younger children and parties were interviewed by Dr B in October 2020. At that time, the girls were spending time with their father on alternate weekends, for two nights. At interview, Y (who was then 10) said she wanted to live equally between each of her parents. Y corroborated her mother’s assertions that W and X’s behaviour when in her care was highly problematic, and that they had made false accusations of her abusing them. Z (who was then seven) similarly confirmed her older siblings had engaged in extreme and aggressive behaviour towards their mother. She also confirmed that her father often asked them to converse with him in private, away from their mother. Z said she missed her older siblings and sought additional time with the father.
Dr B concluded that there was no reasonable likelihood that the father would change his attitude towards the mother. He said the father appeared to have played a pivotal role in reinforcing and exacerbating W and X’s rejection of their mother. He described them as being “pathologically, disproportionately, resistant” towards their mother, “and the situation is now irrecoverable”. He opined that there was a risk that the younger children would also come to reject their mother.
At that time, Dr B recommended the girls spend alternate weekends with their father, with a small increase of one night a fortnight, from Friday to Monday. He recommended that as striking a balance between affording the girls more time with their father and siblings, and not too much time in his care, so as to mitigate against the risk that they too would come to reject their mother. He said:
It is, indeed, regrettable that these children cannot spend more time in the care of [the father], as they themselves seek, however the entirely noxious conditions within this family, which have placed [W] and [X] on a concerning life trajectory, mean that some level of protection needs to be availed to the younger two children.
Dr B was not required for cross examination. Accordingly, whilst the father rejects the conclusions reached and observations made by Dr B, there was no real challenge to them.
Dr B’s observations and conclusions reflect and mirror the observations and conclusions I also draw regarding this family. However, I do not form the view that the recommendations made by Dr B at that time are in the best interests of Y and Z. I note in particular that those recommendations pre-dated the circumstances that led to the Recovery Order. Additionally, the mother at that time was not contemplating moving to Sydney. Moreover, whilst the girls’ time with their father was increased in accordance with Dr B’s recommendations, it has not provided the children with any relief from the relentless parental conflict. Indeed, Z’s attitude towards her mother deteriorated following that increase in time.
Child Inclusive Memorandum
The parties and Z were interviewed by Family Consultant Ms N (“Ms N”) on 11 June 2021. This was just seven months after Dr B had provided his updated report. It is notable that when interviewed by Ms N, Z was unable to identify any positives about her mother, and only wanted to see her “very occasionally”. The Family Consultant noted that Z presented as glum and appeared distracted during the interview. She said, without prompting “[you] want to know why I want my living arrangement to change”. Z reported further that she felt scared and unsafe in the mother’s care, but was unable to explain why she felt that way. She could not elaborate as to why she did not feel safe, beyond saying that her mother raised her voice a lot, and sometimes “hurts me”. Z was unable to explain what she meant by that comment and appeared to avoid answering the question. She said she was most recently hurt in the last couple of days, but she told the Family Consultant that she could not remember what happened. Notably, when Z was asked about other matters, she was able to answer.
Z also reported that her father is really fun, and that being in his care made her happier. She appeared to identify her psychosomatic aches as being tied to not seeing her father, asserting she did not experience pain when she is with him. Notably Z’s three wishes were to live with her father, for him to be happy, and for her to be happy. She told the Family Consultant that she knew her father was not happy, that he misses her a lot and that he cries.
Ms N was puzzled that Z could not provide any examples or details of alleged concerns. She observed that Z’s comments appeared “rehearsed or repeated” and that her stridently negative attitude towards the mother, and the concerns she raised about her did not appear congruent with her emotional affect at interview. She recommended that little weight be given to Z’s views, as her presentation raised questions as to how Z had arrived at beliefs. I note that in his oral evidence the father described Z as being “brave” when she made these complaints to Ms N, after having been “taken away” from him.
Ms N recommended that the girls’ time with their father be supervised.
Ms N was not required for cross examination.
I share the concerns raised by Ms N as to the genesis for Z’s statements regarding her feelings about her mother’s home and care. It is troubling that just seven months after spending slightly increased time in the father’s household that Z was struggling to identify positives regarding her mother, and instead was making unparticularised complaints about her. It is also troubling that Z appeared concerned about – and potentially burdened by - her father’s unhappiness.
Family Report
Court Child Expert, Ms L (“Ms L”) wrote a report dated 1 March 2022. In preparation for that report, she interviewed the parents by Microsoft Teams on 18 February 2022, and then conducted face to face interviews with Z and Y, and observations with their parents on 21 February 2022.
Ms L did not interview W and X, as it was asserted that any interview would adversely impact their mental health.
Ms L described that the father at interview maintained the mother continued to subject Z and Y to abuse and they were fearful of her. He claimed the mother suffered from personality disorder and schizophrenia.
Ms L formed the view that the father demonstrated limited insight or accountability in relation to his behaviours and the impact this had on the children. Rather, he described that the court, the Independent Children’s Lawyer and other agencies had aligned themselves with the mother, and said the court is “highly biased” towards the mother. He said the mother was wanting to move “purely to isolate the kids”. He said she treated the children as “accessories” and that they were not safe in her care. He said the mother pits Y and Z against each other, and that as a result of the mother having isolated the children from him, Z had become increasingly depressed. Notably, the father was unable to acknowledge that as a result of his failure to engage with the children’s contact centre, he had contributed to Z’s sadness.
The father told Ms L the mother had coerced the court into ordering supervised time and that professionally supervised visits were not in the children’s best interests. He also said he was willing to sacrifice anything for the wellbeing of his children. However, that did not seemingly extend to him complying with orders for supervised time.
Ms L said the father:
…demonstrated a clear lack of insight and accountability regarding his behaviours and how they had impacted the children. He refused to acknowledge his part in the parental conflict, and was fixated on blaming [the mother] and external organisations for the current situation…
Given his ongoing lack of accountability, combined with his historic pattern of behaviour, the writer remains concerned that [the father] has limited capacity to support [Y] and [Z] in having a meaningful relationship with [the mother].
The father presented in a similar way at trial.
In relation to the mother, Ms L said she answered questions directly, and was able to acknowledge having engaged in poor parenting towards the children some time ago. The mother expressed concern for the children’s emotional safety whilst in their father’s care as he openly denigrated her in front of them. The mother also said the father suffered from narcissistic personality traits. The mother reported that the girls appeared more settled and relaxed following their time with their father having ceased, and that Z’s bed wetting and psychosomatic pain had similarly settled and reduced.
Ms L said further that whilst the girls were becoming increasingly independent, they still relied heavily of the safety and security of home and on their primary carers. She said they look to their parents as role models, to guide them regarding the formation of relationships. She opined that the girls’ desire to co-sleep with the mother, and Z’s ongoing nocturnal enuresis:
…may be symptoms of the pressure and resulting anxiety the children are experiencing due to their parents’ toxic relationship and the alienation and estrangements process that have engulfed the family. It must be confusing and emotionally and cognitively difficult for [Z] and [Y] to conceptualise and understand their older siblings’ apparent animosity and contempt for their loved mother.
Ms L did not support a relocation to Sydney for the girls. She did acknowledge the mother would likely feel happier and more content if she moved. That in turn, she said, may benefit the girls to have their mother happier and more relaxed. However, she said the girls’ need for stability and security would be compromised by the move. Ms L said she was concerned that the girls’ emotional and mental health would be impacted negatively by such a significant change which they may not have the resilience to manage.
Ms L was also concerned that a relocation would ensure the ongoing rupture of the sibling relationships and that the girls would likely have little to no contact with their older siblings if they moved.
Ms L recommended Y and Z remain living with the mother. She said time with the father could be alternate weekends if the court determined there were not significant risks for the girls in their father’s care. Alternatively, if the court was of the view that the father had limited capacity to support the children in having positive relationships with both parents, Ms L suggested the girls’ time with the father would need to be professionally supervised. She recommended the girls spend time with their older siblings and that they attend ongoing therapeutic support to assist them to navigate the parental conflict and the anxieties that created for them. She supported an order that the mother have sole parental responsibility for the younger girls and the father for the older children.
Ms L was required for cross examination. She was physically present at court. She gave her evidence in a straightforward and direct manner.
In her oral evidence, Ms L acknowledged that the girls have a close and loving relationship with their father. She also said they need routine, consistency and stability, and that they presented with some anxious traits. She again expressed her view that a relocation would be disruptive for the girls and she did not support that occurring.
Ms L agreed it was important and beneficial for the girls to observe modelled behaviour of a loving and respectful relationship. She also acknowledged that a parent who feels emotionally supported will parent better than one who feels unsupported. She said it would be positive for the girls to see their mother happy, and living in a healthy and functioning relationship. She said those benefits have to be balanced against the benefits to the girls in living closer to their father and paternal family in Victoria.
I note the father expressed some concern that Ms L was unduly influenced by the Independent Children’s Lawyer against him. That appeared to have been a view he formed as a result of Ms L and the Independent Children’s Lawyer having engaged in a phone call discussion and email communication. Ms L said her communications with the Independent Children’s Lawyer had been limited and were substantially regarding procedural matters, as would be fairly standard in all matters. I accept that the nature of any communications was straightforward and regarding practicalities and that no influence was sought to be exerted – or was in fact exerted – by the Independent Children’s Lawyer on Ms L.
Ms L maintained her view that given the risk the father would continue to engage in behaviours that would cause the girls to reject their mother, only professionally supervised time could be recommended. In her oral evidence, Ms L said she had not thought of the practicalities of such a recommendation – in terms of whether ongoing supervision could be provided in reality – but made that recommendation based on the need to protect the girls from the likely consequence of their father’s influence. Ms L said she took into account that the girls dearly love their father and would suffer substantial grief and loss if they did not have ongoing contact with him. She said in her oral evidence that monthly professional supervision could be beneficial for the children, with the supervision being in place to ensure he does not denigrate the mother to the children and try to influence them away from her. She said she could not recommend time progressing to unsupervised visits in the future.
The Court is under no obligation to accept the recommendations of a Family Consultant. Whilst Ms L’s report was very helpful to the court, for the reasons set out herein, I have formed a different opinion as to how the children’s best interests will be met in this matter.
The relevant legal principles
When making parenting orders, I must consider the objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”), as set out in s 60B. I must have regard to the provisions of s 60CC of the Act in determining the children’s best interests. I must also consider the provisions of s 61DA of the Act and parental responsibility.

I note further the observations made by the Family Report writer that the girls presented as “social and polite children, who were relatively well adjusted and kind”. This is to be contrasted to W and X who appear to be significantly struggling in their father’s household.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and their parents, and any other characteristics of the children the Court thinks relevant
I have already canvassed the matter relevant to this consideration.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
I have already covered the matters relevant to this consideration at length. It is my view that the mother has demonstrated an appropriate attitude to the children and the responsibilities of parenthood. I am also satisfied that the father’s attitude to the responsibilities of parenthood falls well short in regard to his ability to promote and foster the children’s relationships with their mother. I note further that when the police executed the Recovery Order and collected Z, the father failed to act in an assertive and reassuring manner. Instead, he remained passive and allowed Z to remain highly distressed and confused for a protracted period.
Any family violence involving the children or a member of their family, and if a family violence order applies or has applied, any relevant inferences that can be drawn from the order
As already set out in these reasons, the father asserted that the mother subjected himself and the older children to violence and abuse. He maintained the mother also mistreats the younger children. As will be plain, I do not accept the father’s evidence in this regard.
Conversely I do accept the mother’s evidence that the father has subjected the children to controlling behaviours, and that his behaviours and attitudes towards the mother has irreparably damaged the relationship between the mother and the older children, causing them serious psychological harm. He has demonstrated no insight into his behaviours or the impact it has on the children.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
It is clear these proceedings need to end. The battle over all four children has been drawn out and no doubt marred their childhoods and adolescence.
Consideration of the advantages and disadvantages
Consideration must be given to each of the proposed arrangements of the parties and the advantages and disadvantages of those proposals. I am, of course, not bound by those proposals.
If the mother is permitted to move to Sydney with Z and Y, that will make it very difficult for the girls to spend time with their father on a practical level. Indeed the mother is not seeking orders for time – but asserts the father should be permitted only to send letters, gifts and cards, to be vetted first by the mother. Accordingly, from the girls’ perspective, this will substantially curtail their relationship with their father. I have already noted the likely distress and grief this will cause them.
A relocation will also make it significantly more difficult for the siblings to spend time together. I note also that W and X may be significantly impacted by orders that allow their sisters to move interstate. Ms L opined that in the event of a relocation, Y and Z “would have little to no contact with their older siblings”. However, I am heartened by the mother’s attempts to facilitate communication and physical time between the girls and their siblings as well as members of the paternal family. I anticipate she will continue to make arrangements to facilitate those contacts even if she is residing interstate with the girls.
Whilst a move would make it more difficult for the siblings to spend time together, it could also provide W and X some relief to know that their mother is physically far from them. I note the father said W’s fear of her mother and feelings of being unsafe and insecure at school may be ameliorated if the mother was living in Sydney. Accordingly, it may be that the mother’s move could have a positive impact on W’s school attendance and on her mental health generally.
A move would require the girls to leave their current school where they have attended throughout their schooling lives. It would require them to move to a new school and a new community. They would have to make new friends. These are substantial and significant changes for them, in circumstances where they have already experienced much upheaval and change. Ms L was concerned the children may not have the resilience to manage such a significant change. Accordingly, this was a significant factor considered by the Family Report writer that mitigated against supporting the mother’s relocation application. I note that X and Y are currently attending the same campus, and occasionally see each other at school. If Y moves interstate, those opportunities to see her brother at school will obviously be lost.
Conversely, if I make the orders sought by the mother and permit her to move to Sydney with the girls, there are a number of advantages to that. The mother will be moving to live with her partner, in what appears to be a loving and committed relationship. She will feel happier and safe, more supported and stable. In addition to living with her partner, the mother will have family support from an aunt and uncle, and a number of cousins who all live in and around Sydney.
I note the observations of Ms L that Z and Y are at a critical developmental age, and developing a growing desire for independence and separate identities. However, Ms L went on to say:
[d]espite their increasing independence, children of this age still rely heavily on the safety and security of home, and need their primary care givers to provide comfort and stability. [Z] and [Y] are also likely to be looking to their parents as guides regarding how to create relationships, and are easily influenced by their care givers, who act as role models in their lives.
Accordingly, a safe and secure home life, with a supported and happy primary carer continues to provide a significant foundation for the girls as they mature.
If the girls relocate with their mother and their relationship with their father is curtailed as she proposes, they will have respite from the intense and relentless parental conflict. They will be protected from having their relationship with their mother eroded. I note the long term risks outlined by Dr B in his second Family Report regarding children who have unreasonably rejected a parent. The orders proposed by the mother would protect the younger children from rejecting her and the likely consequences of that.
The girls would also have the benefit of seeing their mother in a loving and functioning adult relationship. As noted by Ms L, the girls will look to their parents as guides in relation to creating relationships for themselves.
As observed, a move will subject the girls to significant upheaval and removal from their school and social lives. In terms of supporting the girls to manage a relocation, I am confident both their mother and Mr H are child focussed adults, able to deal sensitively with the girls’ needs and difficulties. The girls also have a positive relationship with Mr H and his children, particularly with Q.
Alternatively, if the children are placed in the father’s primary care, they will be able to live with their siblings from whom they have been somewhat estranged for the past few years. They will have the opportunity to reconnect with their father, with whom they have spent no physical time for over 12 months.
However, for the reasons I have already outlined, I am of the view that it is highly likely that the girls will come reject their mother as their older siblings have. The father’s view of the mother is that she is a deficient parent, that she has harmed the older siblings and that the she poses a risk to the younger children. That view is apparently shared by W and X. It is unlikely that the girls would be able to seamlessly move between their parents’ households and have the opportunity to know and be cared for by both parents given that conflict and hostility. To that end, I note Ms L’s concerns that:
[i]t must be confusing and emotionally and cognitively difficult for [Z] and [Y] to conceptualise and understand their older siblings’ apparent animosity and contempt for their loved mother.
If the mother remains in Melbourne with the girls, there would also be further opportunities for the girls’ relationship with their mother to be undermined that would be harder to exploit if the girls were living interstate from their father. For instance, if one of the girls was dissatisfied with a boundary imposed by the mother, it would be more difficult for that child to ‘vote with their feet’ or make arrangements for the father to collect them, if separated physically from their father. I note Z’s comment that she moved into her father’s care in mid-2021 after an argument with her mother. Living interstate from the father would make a repeat of that situation less likely.
If the girls remain in Melbourne in their mother’s care, that would make time between the children and their father and/or siblings more practicable. However, unless that time was professionally supervised, the girls’ relationships with their mother would be at risk. That is, to protect the girls’ relationship with their mother, orders would need to be made for ongoing professionally supervised time. In those circumstances, either the mother would be required to remain living in Melbourne, separate from her partner, to facilitate limited supervised time, or the father would need to travel to Sydney to exercise supervised time. The undesirability of ongoing supervision is well known, and this court has long discussed the difficulties associated with ordering long-term, ongoing supervised contact.
Orders to be made
At the outset of the proceedings the parties provided a consolidated minute which I was told reflected what was agreed, and what was not agreed. However, the parties’ proposals at the conclusion of the hearing were different. The father provided a minute of orders sought which were marked as an exhibit. Similarly, the mother and Independent Children’s Lawyer provided a joint minute of orders sought which was similarly marked.
It appears that the parties are in agreement in relation to some orders – with each seeking substantially similar orders regarding communicating with each other in writing, providing information to the other about medical emergencies, access to information about the children’s education, and various restraints. Accordingly, those orders are made by consent.
In relation to the balance of the orders, I could not be satisfied that the father’s proposals would be in the children’s best interests. Whilst he proposed all four siblings would live together, I have no confidence that Z and Y would be able to retain a relationship with their mother. It will be plain from these reasons that I have significant concerns regarding the father’s communication with the girls, and the impact it will likely have on their relationships with their mother. The impact on the older children of the ongoing parental discord and conflict is immense. W in particular appears to be struggling socially, academically and emotionally. Neither W nor X have been able to navigate maintaining a relationship with both of their parents. The level of their rejection of the mother – and asserted ongoing fear and distress regarding her – is well beyond what could be expected even if the father’s version of the past was correct. W’s poor mental health and significantly compromised functioning is deeply troubling. The father’s attitude towards the mother and his behaviours which undermine the mother to the children remain unabated. It seems to me overwhelmingly likely that if the father was to have time with the girls that was not professionally supervised, they too would come to reject their mother.
I am satisfied that the best interests of the children are met by the proposals advanced by the mother and the Independent Children’s Lawyer. That is:
(a)the father have sole parental responsibility for W and X;
(b)W and X shall live with him and spend time with the mother in accordance with their wishes;
(c)the mother be at liberty to send W and X cards, letters and gifts;
(d)Z and Y shall with their mother, who shall be permitted to relocate to Sydney with them;
(e)the mother shall have sole parental responsibility for Z and Y;
(f)any gifts, cards or letters from the father to the girls shall be forwarded via the mother and she may decline to pass on that material if she is of the view that it would not be appropriate to provide same;
(g)time will otherwise be on such terms and conditions as agreed between the parties; and
(h)the father is otherwise to be restrained from contacting the girls. That includes the additional restraints sought by the mother and the Independent Children’s Lawyer restricting the father from contacting the girls’ schools, attending at their schools or contacting their medical and allied health practitioners without the mother’s consent.
Essentially, the proposals advanced by the mother and the Independent Children’s Lawyer provide for no time between Y, Z and their father, save as is agreed between the parties. Communication will be restricted only to card, gifts and letters, to be vetted by the mother. I am satisfied that the mother will provide to the girls communication if such communication is appropriate and child focussed.
I accept that Z and Y will feel a significant sense of grief and loss as a result of having no set ongoing contact with their father. I accept that they love him and that love is very much reciprocated. However, I have significant concerns regarding the benefit to the children of having a relationship with him, particularly given that time with the father would need to remain supervised in order to preserve the girls’ relationship with their mother.
Whether orders for no set time are in the children’s best interests
Cases in which one parent seeks an order that there be no time between the children and the other parent are very serious. Such an order ought only be made if the situation is dire. Additionally, all other options and alternatives should be explored – and orders as sought by the mother and the Independent Children’s Lawyer are really those of last resort. It does seem to me that all other options have been explored. Attempts to repair W and X’s relationships with their mother have failed. A moratorium on time has failed. The Children’s Court have been involved. The father has had ample opportunity to reflect on the comments made by various professionals and this court regarding his attitudes and behaviours and make changes. He has not done so and his behaviour and attitude endures.
I accept that the consequences for Y and Z in the loss of their relationship with their father is likely to be profound. I am satisfied in this case that there are no safeguards that can be practically, or reasonably implemented to reduce or ameliorate the risk to the girls.
Whether orders for ongoing supervision are in the children’s best interests
As described by the Full Court in Bant & Clayton [2019] FamCAFC 198, it is well acknowledged that “an order requiring a child’s time to be subject to indefinite supervision is undesirable even though it might be warranted” in certain circumstances, and the court is generally discouraged from making such orders.
In the decision of Moose & Moose (2008) FLC 93-375 at 82,641, Boland J referred to the decision of May J in Fitzpatrick & Fitzpatrick (2005) FLC 93-227 in which her Honour;
… having found that the evidence in the case “objectively viewed reveals the potential for an unacceptable risk to the children if contact with the father is not supervised…”, then referred to the difficulty associated with long term supervised contact and said “the necessity for contact to be supervised apparently indefinitely leads to the need to finely balance what is in the children’s best interests”. Her Honour then explained “[w]hilst supervised contact in this case will protect the children from any potential physical harm, the effect on their emotional well-being cannot be ignored”. (See also W & W[Abuse allegations: unacceptable risk] (2005) FLC 93-235, (2005) 34 Fam LR 129 at paragraph 114).
The practical difficulties arising from an order of indeterminate supervision were further discussed in the Full Court decision of Champness & Hanson [2009] FamCAFC 96 at [219]. In that decision Thackray, O’Ryan and Benjamin JJ acknowledged that:
The Full court has expressed concern about the absence of some kind of review mechanism when orders are made for long-term supervised contact. Part of the concern, expressed in cases such as H v K [2001] FamCA 687, is that the parties are left with "no mechanism for moving forward" and that the parent seeking to remove the supervision requirement will have difficulty in meeting the "changed circumstances" test in Rice v Asplund (1979) FLC 90-725.
It is clear that whilst an order for indefinite supervision is discouraged, the court can make an order for it in appropriate circumstances. I note the observations of the Full Court in Malburon & Waldlow [2013] FamCAFC 191 it which their Honours said if the court considered ongoing supervised time was appropriate, “it is necessary for cogent reasons to be advanced to justify such an order”. However, in this difficult and complex matter, I am satisfied that the girls’ best interest will not be promoted by an order for ongoing supervision.
Firstly, there was no evidence before me regarding who could provide ongoing contact, where that would occur, or the frequency of it. Supervision services generally only provide regular supervised time for short periods, of around six months or so. If ongoing “identity” contact is provided, that usually involves four to six visits each year. The father is not in paid employment and it is unlikely he would be able to meet the costs of private supervision to arrange more visits.
I could not make orders that a member of the father’s family supervise. There is no evidence that any family member of friend is even available to supervise, or that they would know what would be required of them.
Moreover, I have to consider the mother’s proposals – which includes relocation to Sydney. Any order for ongoing supervised time would require the mother to remain in Victoria to facilitate that limited time. If she was living in Sydney, an order for ongoing supervised time would require either:
(a)the mother to incur significant costs of returning to Victoria to do so, or
(b)the father to incur those costs to travel to Sydney for supervised time.
There was no evidence before me as to the mother’s financial capacity to meet the costs of regularly bringing the girls down to Victoria. There was no proposal by the father to contribute to the costs of any such travel. The father through his counsel in closing advised his financial capacity to travel to Sydney to exercise supervised time was limited.
It is also notable that whilst there have been orders for supervised time on foot since July 2021, the father has elected not to engage with any supervised service. Whilst through counsel at closings the father said he would comply with orders for supervised time, his failure to do so for the last 12 months raises concerns as to the father’s commitment to time, if it is not on his terms.
Given my findings regarding the father’s entrenched attitude towards the mother, it is difficult to see how time between Y and Z and their father could progress to unsupervised time without seriously risking their relationships with her. Accordingly, this is not a case where I could confidently provide a date for supervised time to end and unsupervised time to commence.
No requirement that the court adopt the family report recommendations

In this case, I have made the difficult decision that the girls’ best interests will be met by living with their mother, in Sydney, and having no set orders for time or communication with their father, beyond letters, cards and gifts, to be vetted first by the mother. That is notwithstanding the recommendations of Ms L, who did not support an order for relocation. She also proposed ongoing supervision, on a fortnightly basis. As outlined, that is not an order that can practically be made.
Whilst the insights of Ms L as set out in her Family Report were certainly helpful in my determination of this matter, a Family Report is only one part of a myriad of evidence that I am required to take into account. The Full Court of the Family Court of Australia in Andrew & Delaine [2009] FamCAFC 182 endorsed the view taken by the Full Court in In the Marriage of Hall [1979] FamCA 73 at [24], where their Honours held:
In view of the comments in this case as to the weight to be given to a Family Report, we feel it may be helpful to make certain observations which we stress are of a general nature.
(a) There is no magic in a Family Report. A Judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping the role of the court or that the Judge is abdicating his responsibilities…;
(b) Family Reports are meant to be, and almost invariably are, valuable and relevant material to assist a Judge in forming his ultimate conclusions. When those views coincide with the judgment of the court, it is not because they have been accepted automatically but because the Judge has found them consistent with the rest of the body of evidence before him.
(c) While the counsellor's views will normally have weight with the court because of his expertise and experience, the counsellor does not usually have the same opportunity as the trial Judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination, and make findings of fact based on evidence before the court which might not have been available to the counsellor.
(d) Hence, the counsellor's assessment of the parties may often be based upon facts which the counsellor has accepted but which turn out to be wrong; or favourable or unfavourable views formed by the counsellor from interviewing the parties without the opportunity to test in depth the credit of persons who may in court, and under cross-examination, or in the face of evidence of other witnesses, prove to be of a different character from that which the counsellor has accepted.
(e) Sometimes the Family Report will necessarily be neutral. While the court will be assisted by a positive view, there will be many cases where the counsellor, quite properly, will conclude that the child's welfare will be equally well served, or, regrettably in some cases, equally ill served by either party.
(f) Whether the report contains a positive recommendation, or whether it be neutral; whether the report is accepted by the Judge or whether it is not; the report will still serve the court well and assist the court's investigation. A counsellor, therefore, need not be disturbed if a recommendation is not accepted because the court has had the advantage of much more material and much more examination in depth than was available to the counsellor.
Certainly, the report and the evidence of Ms L have been of great assistance to the court. Additionally, many of the observations Ms L made are consistent with the views I have formed myself.
However, I had the significant benefit of hearing the evidence being tested, and of observing the parties, and Mr H in court and under cross examination. Having had that opportunity, I have formed a different view as to how the best interests of Y and Z will be met. In particular I do not share the concerns of the family consultant that Y and Z will not manage a change. Whilst I acknowledge the change would be significant for them, and that they will feel a profound sense of loss and grief, the mother and Mr H impressed as child focussed and sensitive care givers, who would be readily able to support and assist the children in managing the relocation. I also acknowledge Ms L’s concerns about the rupture to the sibling relationships. However, I am satisfied the mother will continue to return to Melbourne to visit her own family from time to time, and that she will ensure she makes the girls available to spend time with their older siblings, and other members of the paternal family, as she has continued to do over the last year.
I also note that whilst Ms L recommended ongoing supervised contact, she had not appreciated that there was no evidence that any supervised contact services would offer the family regular, ongoing supervised contact as envisaged by her. As already noted, it is understood that a children’s contact service at best could provide what is sometimes referred to as “identity contact”. That is usually limited to a handful of visits each year. I was not provided with any evidence that more extensive or frequent supervised time could be afforded to this family by any supervised contact provider. Additionally, neither parent is able to fund private supervision on an ongoing basis. Accordingly, the recommendations made by Ms L are not recommendations that could, as a matter of practicality, be made.
Whilst I accept, as outlined, that a move to Sydney is a very significant change for the girls – and one that may significantly disrupt their sense of stability – my view is that the advantages outweigh the disadvantages of such a move. Moreover, I am satisfied that the mother, together with Mr H, will ensure the girls are well supported to manage that change. Furthermore, I am satisfied the mother will endeavour to support and facilitate the girls’ relationships with their siblings and extended paternal family, although that will not be without issue.
Freedom of movement
Whilst the children’s best interests are the paramount consideration, they are not the sole consideration. It is settled authority that parents have a right of freedom of mobility, but that right “…must defer to the expressed paramount consideration, the welfare of the child if that were to be adversely affected by a movement of a parent”, pursuant to the High Court’s decision in U v U.
In AMS, Kirby J said at [145]:
One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents.
His Honour also said that the Court is not obliged to ignore parent’s legitimate interests and desires, and cannot view the children’s best interests “…in the abstract, separate from the circumstances of the parent with whom the child resides.”
In U v U, Kirby J went onto say further at [146]:
Courts, exercising such discretions, should not ignore the disproportionate burden typically cast upon women by their being effectively immobilised as the custodial/residence parent.
I note the mother’s deeply held desire to relocate to live with Mr H. I accept that she is worried about her future, and envisages a more positive life for herself and the girls if they are able to move. It was apparent from the mother’s presentation during the hearing that she is a vulnerable and emotionally worn woman, with limited resilience. Whilst there is no evidence that her unhappiness will impair her parenting capacity, there is no requirement that she must establish such a negative impact on her parenting capacity before a relocation can be ordered (see H & H [2005] FamCA 805 at [41]).
I accept the mother is likely to be unhappy, isolated and frustrated if she is “effectively immobilised” and required to remain in Melbourne, particularly in circumstances where I am satisfied the father’s time with the girls would have to be professionally supervised. That is, she would be having to remain in Victoria – where she does not wish to be – and separated from her partner, to facilitate professionally supervised time. It is not difficult to anticipate the mother’s distress and unhappiness at being unable to live interstate with her partner so that a handful of supervised visits each year can be arranged. If she was permitted to live interstate, but had to bring the girls four to six times each year to Victoria to facilitate supervised visits, that would impose a substantial burden on the mother, financially and time-wise. As such, it would significantly interfere with her life. As already noted, there was no evidence she could afford such frequent travel, and no offer by the father to assist with that financially.
Orders for the girls’ time with their siblings and other family members
In relation to orders for time between the girls and the paternal family, the mother has requested that I make orders enabling her to contact the father’s family directly, and make arrangements with them. The father opposed that order, saying he wanted all arrangements to be made via him.
Given the lack of parental cooperation, I do not see the benefit to the children in requiring the mother to liaise with the father first, and then waiting for him to liaise with his family and revert back to the mother regarding Y and Z spending time with their grandmother, aunt, cousins or siblings. It strikes me as an attempt to manage and control the mother and the children in her care. The mother has been able to make arrangements with members of the father’s family in the past, and I am confident she will continue to do so. Regrettably, in my view, this is the best that can be done to safely foster and maintain those relationships.
Additional orders sought by the father
The father sought an order that both parents be permitted to attend all school events normally attended by parents, and that each parent can attend any extra curricula activities for the children that fall when the children are in that parent’s care. His proposed order noted that “special events such as Concerts” could be attended by either parent irrespective of where the children were staying at the time of that event.
Given the father’s own evidence about the impact on W and X when they sight the mother at the school, it is difficult to understand how he proposes the order he seeks permitting both parents to attend all “special events such as Concerts”. Given the findings that I have made, and the orders I am making, I cannot see the benefit to the children in such an order. According to the father, W and X would be extremely distressed and uncomfortable to see the mother at any school event or extra curricula activity. Given that I have determined Y and Z’s time with their father needs to be significantly restricted, and in light of the father’s behaviour that has required police attendance at his home and at the children’s schools, such an order is, in my view, fraught.
I am also not of the view that the father’s proposed orders for travel are in the children’s best interest. It is unclear to me why either parent would need to notify the other when they are travelling within Australia. In relation to the proposed orders for overseas travel, there was simply no evidence before me that either parent had any short, or long term, international travel planned. Accordingly, I decline to make the orders sought in this regard.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding two hundred and seventy-two (272) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 14 September 2022

File number(s):	MLC 4927 of 2016
Judgment of:	CARTER J
Date of judgment:	14 September 2022
Catchwords:	FAMILY LAW – CHILDREN – RELOCATION – where the mother seeks to relocate to Sydney – where the older children live with their father – where the older children have rejected their mother – where the younger children live with their mother – significant risks for the younger children in the father’s care – where the father’s capacity to promote and facilitate a meaningful relationship between the mother and the younger children is negligible – where there is poor parental communication – children’s involvement in the parental conflict – best interest of younger children to remain in primary care of mother – where the recommendations made by the Family Consultant are impracticable and not in the children’s best interests – competing allegations of risk – best interest of children paramount – orders made.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA
Cases cited:	A & A: Relocation Approach [2000] FamCA 751 Adamson & Adamson [2014] FamCAFC 232 AMS v AIF [1999] HCA 26 Andrew & Delaine [2009] FamCAFC 182 Bant & Clayton [2019] FamCAFC 198 Champness & Hanson [2009] FamCAFC 96 Cotton & Cotton (1983) FLC 91-330 G & C [2006] FamCA 994 H & H [2005] FamCA 805 In the Marriage of Hall [1979] FamCA 73 KB & TC [2005] FamCA 458 Loddington & Derringford (No 2) [2008] FamCA 925 Malburon & Waldlow [2013] FamCAFC 191 Mazorski & Albright [2007] FamCA 520 McCall & Clark [2009] FamCAFC 92 Moose & Moose (2008) FLC 93-375 Morgan & Miles [2007] FamCA 1230 Oberlin & Infeld [2021] FamCAFC 66 Taylor & Barker [2007] FamCA 1246 U v U [2002] HCA 36
Division:	Division 1 First Instance
Number of paragraphs:	272
Date of last submissions:	15 July 2022
Date of hearing:	13 – 15 July 2022
Place:	Melbourne
Counsel for the Applicant:	Ms Anne-Louise Juneja
Solicitor for the Applicant:	Buscombe & Madden
Counsel for the Respondent:	Ms Deborah Wiener
Solicitor for the Respondent:	Geelong Family Lawyers
Counsel for the Independent Children’s Lawyer:	Mr Gerard Thistleton
Solicitor for the Independent Children’s Lawyer:	Victoria Legal Aid

MLC 4927 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MALLORY Applicant
AND:	MS MALLORY Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	CARTER J
DATE OF ORDER:	14 September 2022