Melson & Divjak - [2022] FedCFamC1F 945

Federal Circuit and Family Court of Australia
(DIVISION 1)
Melson & Divjak [2022] FedCFamC1F 945

File number: MLC 6164 of 2018

Judgment of: CARTER J

Date of judgment: 2 December 2022

Catchwords: FAMILY LAW – CHILDREN – Rice & Asplund – where there has been a sufficient change in circumstances since previous final orders were made – allocation of parental responsibility – best interests of the children – where the children have a close and loving relationship with both parents – where the mother is unable to prioritise the children’s welfare over her hostility towards the father – where the mother presents a risk of emotional harm to the children –where the mother raises sexual abuse allegations against the father but asserts the father does not present an unacceptable risk – where the mother fails to promote a meaningful relationship between the father and children – where the parties are unable to promote a positive parenting relationship – whether the children should be permitted to travel overseas.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 67ZC

Cases cited:
AMS v AIF [1999] HCA 26

Oberlin & Infeld [2021] FamCAFC 66

Rice & Asplund (1979) FLC90-725

Division: Division 1 First Instance

Number of paragraphs: 268

Date of last submissions: 8 September 2022

Date of hearing: 5 – 8 September 2022

Place: Melbourne

Counsel for the Applicant: Mr Peter Kistler

Solicitor for the Applicant: Pentana Stanton Lawyers

Counsel for the Respondent: Mr Rory McIvor

Solicitor for the Respondent: Berry Family Law

Counsel for the Independent Children's Lawyer: Mr Doug McLeod

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

MLC 6164 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS DIVJAK

Applicant

AND:
MR MELSON

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

CARTER J

DATE OF ORDER:

2 December 2022

Amended pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on 8 December 2022
THE COURT ORDERS THAT:
1.All prior parenting orders be discharged.

Parental Responsibility
2.The father have sole parental responsibility regarding the health and education of X and Y born 2017 (“the children”).
3.The father forthwith notify the mother in writing of any decision he makes in the exercise of his sole parental responsibility for the children’s health and education.
4.The parties otherwise have equal shared parental responsibility for the children.

Living Arrangements
5.The children live with the father.
6.For a period of not less than 12 weeks from the date of these orders, the children shall spend time with the mother for up to two hours, each alternate week, with such time to be professionally supervised by an agreed supervisor, and failing agreement, as nominated by the Independent Children’s Lawyer, with the mother to meet the costs of such supervision. Changeovers to take place at times, and places and in a manner as is directed by the supervisor.
7.Thereafter, and provided the mother has complied with Orders 23 and 24 herein, the children spend time with the mother as follows;
During school terms:
(a)each Wednesday from after school/kindergarten (or from 3.30 pm if a non-school day) until the commencement of school/kindergarten Thursday (or 9.00 am if a non-school day); and
(b)each alternate weekend from after school/kindergarten Friday (or from 3.30 pm if a non-school day) until the commencement of school/kindergarten Monday (or 9.00 am if a non-school day);

During school holidays:
(c)for one half of the short school term holiday periods, at times agreed in writing between the parents and failing agreement, then subject to Order 8, for the second week, from 6.00 pm on the second Saturday to the commencement of the new school term; and
(d)commencing in the 2023/2024 long summer school holidays and alternating annually thereafter from close of school until 6:00 pm on 11 January and commencing the 2024/2025 long summer school holidays and alternating annually thereafter from 6:00 pm on 11 January until 6:00 pm on 25 January.

8.For the purposes of the short school term holidays:
(a)the children’s time with the mother in the first term holidays shall include the children’s time with their mother for Easter, unless otherwise agreed; and
(b)if a Jewish holiday falls during a school term holiday period, the children’s time with the mother shall be arranged as far as practicable so that it does not coincide with the Jewish holiday.

9.The children’s time with the mother pursuant to Order 7(a) and (b) shall recommence at the beginning of the new school term in the same pattern that would have been in place had the term holiday not occurred.

Special Occasions
10.The children shall spend time with the father each year at times agreed on special occasions, and failing agreement, as follows:
(a)on Father’s Day each year from 6.00 pm on the night immediately preceding Father’s Day to the commencement of school the following day (or 9.00 am if a non-school day);
(b)for the father’s birthday if it falls on a Saturday or Sunday when the children would otherwise be with their mother pursuant to these orders, then time that weekend will conclude at 10.00 am Sunday;
(c)on the children’s birthday from 4.30 pm to 7.30 pm, if the children are otherwise in the mother’s care; and
(d)during the following Jewish Religious Festivals:
(i)Pesach (Passover);
(ii)Shavuot (Pentecost);
(iii)Sukkot (Tabernacles);
(iv)Simchat Torah;
(v)Purim;
(vi)Rosh Hashana. (New Year); and
(vii)Yom Kippur (Day of Atonement);

from one hour prior to the commencement of the festival until one hour after the conclusion of the festival.

11.The children shall spend time with the mother each year on special occasions at times agreed, and failing agreement:
(a)on Mother’s Day each year from 6.00 pm on the night immediately preceding Mother’s Day to the commencement of school the following day (or 9.00 am if a non-school day);
(b)on the mother’s birthday;
(i)if it falls on a week day when the children would otherwise not see their mother that day, from the conclusion of school to the commencement of school the next day (or 9.00 am if a non-school day), or if the birthday falls on a Friday, until one hour prior to the Jewish Sabbath;
(ii)if it falls on Saturday or Sunday on a weekend the children would otherwise be with their father, from 10.00 am Sunday until the commencement of school Monday (or 9.00 am if a non-school day).

(c)on the children’s birthday from 4.30 pm to 7.30 pm, if the children are otherwise in the father’s care (with such time in 2023 to be professionally supervised in accordance with order 6 herein); and
(d)for the following Easter religious festivals;
(i)from 10:00 am in the morning on Good Friday until 6.00 pm Easter Monday, commencing in 2023;
(ii)from 10.00 am to 6.00 pm on … (being a significant religious day) commencing in 2023;
(iii)from 10.00 am … to 6.00 pm … (to include Christmas Eve, Christmas Day, and a significant religious day), commencing in 2024; and
(iv)from 10.00 am … to 6.00 pm … (being a significant religious day), commencing in 2024.

Changeover
12.Save where changeovers take place at the children's kindergarten/school, changeovers shall take place:
(a)at the Service Station at P Street, Suburb Q, at the commencement of the mother’s time; and
(b)at the Convenience Store at B Street, Suburb C, at the conclusion of the mother’s time,

unless otherwise agreed in writing.
13.For the purposes of all changeovers:
(a)the party delivering the children shall take the children out of their vehicle (if in a vehicle) and hand them to the other party and immediately leave the changeover venue;
(b)changeover shall take place in the shop at the premises; and
(c)each party by themselves, their servants and agents are restrained from taking any audio recording and photographic image, including but not limited to photo, video, film or similar during and at changeover and from causing any other person to take such audio recording and photographic image.

Communication
14.At the expiration of the 12 week period contemplated in Order 6 herein, each parent be entitled to communicate with the children during the time that the children are with the other parent as follows:
(a)when the children are with the father, the mother is at liberty to communicate with them each Tuesday and Thursday between 5:30 pm to 6:00 pm by telephone, FaceTime, WhatsApp or similar electronic medium and the Father ensure the children are made available.
(b)when the children are with the mother, the father is at liberty to communicate with them between 5:30 pm to 6:00 pm on Sunday by telephone, FaceTime, WhatsApp or similar electronic medium and the mother ensure the children are made available.
(c)during the communication between the parent and the children, the other parent not interfere with such communication including making audible comments or providing instructions to the children in their sight, hearing or presence.

Provision of information
15.Each party be permitted to obtain copies of all kindergarten and school notices or other reports and any other communication from the children’s kindergarten or school and shall have full access to any portal.
16.Both parties are at liberty to attend any of the children's sporting events, school events, parent/teacher interviews, with the parties to arrange separate parent/teacher interviews unless otherwise agreed.
17.Each party shall forthwith advise the other parent as soon as practicable in the event any of the children suffer a significant illness or injury, and provide to the other parent the name and contact details of any treating medical or allied health professional upon whom the children attend.
18.Each party be at liberty to provide a copy of these orders to:
(a)the children's medical practitioners and/or health professionals; and
(b)such school or kindergarten as the children shall attend.

19.Each party must within 7 days advise the other of their telephone number, email address or residential address and must within 24 hours of such change advise particulars of that change.

Restraints
20.Each party by themselves, their servants and agents be restrained from denigrating or insulting the other party or the other party's family or permitting any person from denigrating or insulting the other party or the other party's family in the sight, presence or hearing of the children, including by social media, text message and other communication that the children may be able to access.
21.When in the sight, presence or hearing of the children, the mother only refer to the father by his name or by the name "Papa".
22.The parties by themselves, their servants and agents be restrained from enrolling the children in any extracurricular activities that shall impinge or infringe upon the other party's time with the children without the written consent of the other party.

Education and psychological support
23.The mother shall forthwith enrol in and complete a Post Separation Parenting course.
24.The mother shall forthwith engage with an appropriately qualified psychologist, as nominated by the Independent Children’s Lawyer, at her expense.
25.The mother shall provide to the psychologist a copy of:
(a)these reasons for judgment; and
(b)the Family Reports of Ms E dated 10 August 2020, 8 August 2021 and 24 July 2022.

Other orders
26.Should the children have any birthday party invitation or similar where such party or event shall take place when the children shall be living with the other party, then the party in receipt of the invitation must provide a copy of the invitation to the other party as soon as practicable and advise the other party in the event that the invitation shall not be in writing.
27.Upon nominating a supervisor and a psychologist as contemplated in these orders, the appointment of the Independent Children’s Lawyer is discharged.

Family Law Watchlist
28.Until further order, each of the mother Ms Divjak and Mr Melson, by themselves, their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal X and Y both born in 2017 from the Commonwealth of Australia.
29.IT IS REQUESTED THAT the Australian Federal Police give effect to this order by placing the children’s names on the Watchlist in force at all points of arrival and departure from in the Commonwealth of Australia and maintain the children’s names on the Watchlist until the court orders their removal.

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.
B.Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (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 Melson & Divjak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUSTICE CARTER
Introduction

In this matter, the court is required to determine the care arrangements for the parties’ twin children, X and Y, born in 2017 (“the children”). They are five years old.
The parties first engaged in litigation regarding the care of the children in June 2018 when the father issued proceedings. That round of proceedings resulted in final property orders by consent being made by Justice McEvoy on 17 August 2021, and then final parenting orders made by his Honour on 19 August 2021, substantially by consent (“the 2021 final orders”). Pursuant to the final orders, the parties were to have equal shared parental responsibility for the children. The children were to live with the mother and spend regular time with the father, commencing each alternate weekend for two consecutive nights and a night in the following week. That time was to increase to four consecutive nights each alternate weekend and a night in the following week.
There were also very detailed orders that provided for the children to spend specific dates and times with their father on Jewish religious days and school holidays and with their mother for significant events within their cultural calendar.
Within a month, there were issues with the implementation of those orders. In early 2022 SOCIT and the Department of Families Fairness and Housing (“the Department”) were involved following the mother making serious allegations of sexual and physical abuse being perpetrated by the father on the children, and time was suspended. Subsequent orders were made for the father’s time to be supervised. That has also not proceeded without issue.
It is very difficult to reconcile the mother’s sworn material with the case she now runs at trial. She maintains that everything she deposed in all her affidavits filed in these proceedings regarding the father’s violent and abusive behaviour towards her is true and correct. She also said she has accurately deposed as to the children’s repeated disclosures to her that their father has inserted his finger into their vaginas, and subjected them to other abuse. However, she said those matters are no longer relevant to a determination of how the children’s best interests will be met. She does not rely on those allegations, and does not assert the father poses an unacceptable risk to the children. Rather, the mother said this was a matter to which the principles in Rice & Asplund (1979) FLC90-725 (“Rice & Asplund”) apply and the 2021 final orders should remain in full force and effect.
The father, with the support of the Independent Children’s Lawyer sought that the children be placed in his primary care, and that for a period the mother’s time be professionally supervised.
Background and procedural history
The mother is 45 years old and lives with the children in the Suburb R area. She was born in Country S. She became an Australian citizen in around 2009. She is employed as a professional and is enrolled as a student but is currently not actively studying. The mother has not re-partnered. The mother has no family support in Australia, however has received occasional support from the local church and community.
The father is 57 years old. He was born in Country T. The father lives in an apartment in Suburb U, owned by his sister Ms D. However, when the children are in his care, he resides in Suburb V with the paternal grandmother, Ms G, the paternal aunt, and his adult son of a previous relationship, Mr W (“Mr W”) who is 23 years old. The father has not re-partnered. He is employed as a manager at his sister’s company.
The children are in good health and according to the parties, are trilingual, speaking English, Country O and Country AA languages. The father said the children understand limited Country AA language as it is the language he speaks with the paternal grandmother and paternal aunt. The children speak Country O language to the mother which is her native language.
It is, in my view, quite regrettable that the parties had been unable to reach an agreement to ensure the children commenced pre-school this year. They are due to begin their primary education in 2023. The parties have now agreed the children will commence at BB Pre-school to commence in 2022. It is hoped that their attendance at pre-school will assist the children with their language and social skills which the father, Child Protection and the Family Report writer have all identified as under-developed.
The parties met in late 2015. They do not agree as to when they commenced living together, with the mother asserting their cohabitation began sometime in 2016 and the father in early 2017. Nothing, in my view, turns on those dates.
The children were born in 2017. It is common ground that shortly following the children’s birth, the parties were living together.
The parties separated in 2018. The mother obtained an Intervention Order naming herself and the children as affected family members. That was made final in late 2018 for two years. Following separation, the mother declined to make the children available to spend time with the father.

The father initiated family law proceedings on 4 June 2018. In the course of those proceedings, the mother made a number of allegations against the father, asserting that the children were at risk in his care. She did not formally make any allegations of sexual abuse perpetrated by him on the children.
Orders were initially made for the father to have supervised, day time visits. The reports of the supervisors were very positive regarding the father’s interactions with the children. Further orders were made in February 2020 that further progressed the children’s time with him to three nights and a full day each alternate week.
The mother sent the father a text message on 20 January 2021 in which she said the children had complained that the father was touching their genitals, and that Y “cries in pain”. The mother also wrote that she had “multiple video recordings” of the children making such statements. Although the mother said she could not recall if she sent that text, I am satisfied that she did.
The mother sent the father a further text message on 26 January 2021 in which she wrote:-
Your interest for girls undies n [sic]
Touching their genitals (as described in past sms) is concerning
In her oral evidence, the mother initially said she could not recall whether she sent this message. She also said she did not remember writing this message, did not think she wrote this message, that it did not necessarily resemble the messages she wrote and that she did not send the message. She also said she had sent many messages to the father, and it was impossible to remember everything she wrote. For reasons set out shortly, I accept the father’s evidence that the mother sent that text message.
From April 2021, the mother withheld the children. She provided various reasons including safety issues and the impact of the COVID-19 pandemic. Time resumed in about July 2021.
As indicated, the matter was finalised substantially by consent on 19 August 2021. However, the conflict continued between the parties following the making of those orders. The father asserted the mother failed to provide the children in accordance with the orders on multiple occasions. The mother said she attended changeovers on most occasions, but the father often arrived late, or on a number of occasions he declined to take the children or did not attend changeover at all. For the reasons later set out, I prefer the father’s evidence over that given by the mother.
Soon after the orders were made, it was the father’s birthday. The final orders provided for the children to spend time with the father on his birthday. The mother did not make the children available, asserting she was required to get COVID-19 tested. Apparently, that was not correct, and after the father issued a Contravention Application, the mother agreed to make up time. The father asserted there were other breaches of the orders, with the mother for instance failing to provide the father with details of the children’s treating medical and dental practitioners.
On the very first weekend the children were to spend two nights with their father pursuant to the orders made earlier that month – the mother said that X was so fearful to spend time with the father that she defecated on her way to changeover. The mother returned home. The visit did not occur.
In around November 2021, the mother and the children attended upon Dr CC (‘Dr CC’). The mother told Dr CC that the children had disclosed their father was touching their genitals. The mother said Dr CC was dismissive of the complaints.
The mother then attended upon another doctor, Dr DD (‘Dr DD) on 22 November 2021. In Dr DD’s consultation notes which were tendered during the hearing, the mother expressed suspicion that the father was sexually abusing “one of the kids” during the father’s spend time. Dr DD wrote the “only ground” for the mother’s suspicion, is that one of the girls said “dad touch me down bellow [sic]”. In her oral evidence the mother said she was simply quoting what the children told her, that their father had been touching “their pee-pee and putting finger inside”. She also said she took the children to see Dr DD, not to accuse the father of sexual abuse, but to discuss what the children were saying with a doctor. The mother said Dr DD suggested he could refer the children to a paediatric gynaecologist – although the notes record the mother made that request twice. The mother said that was an error in Dr DD’s notes.
Dr DD’s notes also record that the mother expressed fear that previously doctors had been corrupted and bribed by her ex-husband. The mother agreed she described the father as a “…Jewish person who is very rich”.
Also in November 2021, the mother contacted the Salvation Army. The tendered documents from the Victorian Police record that contact was initiated by the mother seeking advice on how to prove whether an alleged sexual assault had occurred. In her oral evidence, the mother said she had not asked how to prove something, but did raise her concerns. Those police records say the mother reported that a child disclosed that the father had “rubbed her genitals and inserted his finger inside (mother assumes vagina)”. The mother confirmed she told the Salvation Army what the children were saying to her. She said at that time X was exhibiting problematic behaviour, including urinating and defecating in her underwear, and stuttering. She said this was abnormal and unusual for X, who she described as “more significantly affected” at that time.
A notification was made to the Department of Fairness Families and Housing (‘the Department’) concerning alleged sexual abuse between the father and the children.
The mother did not make the children available to spend time with the father on 25 November 2021. She said SOCIT had begun an investigation at that time.
First SOCIT interview – November 2021
The children were interviewed by SOCIT on 27 November 2021 regarding the allegations of sexual assault perpetrated by the father. No disclosures were made by the children to SOCIT at that interview, and no further action was taken.
Time then resumed, but not without issue.
Events of 2022
Pursuant to the 2021 final orders, the children’s weekend time with their father increased from two nights on alternate weekends, to three nights on alternate weekends commencing on 11 February 2022.
The children spent that longer time with their father on the weekend of 11 February 2022. Upon their return to their mother’s care on 14 February 2022, the children allegedly again disclosed to their mother that the father inappropriately touched them on their genitals, and that they were not cared for adequately.
The mother first formally raised these concerns and the alleged sexual abuse disclosures to the father’s solicitors in an email on 25 February 2022. She wrote:
Children were bathed, however, children are still saying the following:
-No toothpaste was used at all to brush their teeth
- No sunscreen was applied to them before going outside in a sunny, hot day and to the pool (kids are coming back to me sunburnt and already have sun damaged skin)
- Papa asks them not to tell to Mama what was happening at his home, otherwise kids won't be his anymore
-Papa asks [X] and [Y] every evening, when they are already in their beds, to show him peepee ( genitals in Eng.) and he touches them with his finger, while they (kids) are crying
- [X] and [Y] are scared of Papa
- Papa tells them that their "peepee" ( genitals in Eng.) stinks!!!
- Papa only drove through petrol station and did not stop to return [X] and [Y] to Mama
(As per the original)
The mother continued to make the children available for time with the father, but again, that was not without issue.
The father filed a further Contravention Application on 2 March 2022 setting out 28 alleged counts for determination. That application was given a return date of 25 March 2022.
The mother was served with that application on 7 March 2022.
On 18 March 2022, the mother attended at SOCIT again, wanting them to conduct a second interview of the children. According to the LEAP report the mother informed the police:
In the evening when they are put to bed, he takes their underwear off and places his fingers inside their vaginas.
…
Unable to provide a timeframe of the alleged offending other than (from when the girls were 3 years old).
The subjects are now both in a position where they will discuss the allegations (they require their [pet] to be present to do so).
The mother said she did contact the police, asking them to re-interview the children. She said she felt the children did not speak much in the first interview. It was apparent from the mother’s evidence that she regarded the first interview by SOCIT as inadequate.
Following the mother’s attendance at SOCIT on 18 March 2022, the Department received a further report with respect to the alleged disclosures made by the children.
At that time, time between the children and their father was ceased. The mother initially said that was upon the recommendation of SOCIT. In her oral evidence, however, she acknowledged SOCIT did not advise her to suspend time. She said they gave her a “clear indication” that in the circumstances it was an option available to her.
On 4 April 2022, Child Protection and SOCIT attempted an unannounced home visit at the mother’s home. When they attended at what was believed to be the mother’s address, they were informed by the occupant – an acquaintance of the mother – that she no longer resided at the address and had not done so for two and a half years. The mother maintained at trial that she had provided her current address to SOCIT and was unable to explain why they would have her old address on file. I note the police record from November 2021 referred to the mother refusing to disclose her current address to the Department.
The mother’s acquaintance provided a contact number for the mother. Child Protection and SOCIT were unsuccessful in reaching the mother until 20 April 2022. The mother advised she was not in the area and would not be returning until 30 April 2022. However, the children were then interviewed by SOCIT in nearby Suburb EE on 21 April 2022.
Child Protection were concerned the mother was being evasive. They also raised concerns in the course of their involvement that the mother was possibly coaching the children in relation to the allegations.
Second SOCIT interview – April 2022
A second police interview was arranged for the children to occur with SOCIT on 21 April 2022.
Again, no disclosures were made by the children.
The mother was again dissatisfied with the interview process. She said X told her that she did not understand all the words spoken during the interview. She also said there had been some confusion regarding when the children were referring to her father (and their maternal grandfather – who they call F, and about whom they spoke positively) or their own father (who they call Papa). That is, the interviewer may have thought the children were speaking positively about the father, when in fact they were referring to their maternal grandfather. The mother denied that she had probed the children about what they had told those interviewing them. She said the children informed her as to what they spoke about, and that is how the mother came to believe there had been some confusion about whom the children were referring to.
In her oral evidence the mother said she was concerned that SOCIT “simply gave up” after asking a simple question. She felt they should have continued longer with their questioning of the children.
Despite that SOCIT determined to take no action, the mother did not agree to time resuming in accordance with the 2021 final orders.
On 11 May 2022, the matter came before me for a case management hearing in relation to the father’s Contravention Application. At that time the children had not spent time with the father since March 2022.The mother said she had a reasonable excuse to withhold the children, given their allegations of sexual abuse, and maintained that the children were at risk of abuse if they spent unsupervised time with the father. As both parties were asserting there were fundamental issues with the 2021 final orders, it seemed a contravention hearing would be unlikely to assist the family to resolve the dispute. Accordingly, Orders were made as follows:
(a)for the children to spend supervised time with the father, with those visits to be supervised by either the paternal grandmother, the paternal aunt or Mr W;
(b)for the mother to file and serve an Initiating Application setting out with specificity the parenting orders she sought;
(c)for the father to file a Response to Initiating Application and upon doing so have leave to withdraw his Contravention Application filed 2 March 2022;
(d)for the preparation of an updated Family Report with Ms E (“Ms E”); and
(e)setting the matter down for a five day final hearing in August 2022.
Changeover – 14 May 2022
Time between the father and children resumed on 14 May 2022. The changeover was highly problematic.
The parties attended at the convenience store in City M. As best as I understand, the usual procedure to facilitate handover was that the mother would take the children out of her car and they would walk over to their father. That did not occur on 14 May 2022.
The mother said the children were distressed and frightened that morning when she drove them to changeover. The mother did not take the children out of the car. She said the children did not want to go with the father, and she told him he should take them out of the car himself.
The father took X out of the car. Y remained in the back of the car. There was then a physical tussle over X, whilst she was in the father’s arms, with the mother reaching out to her. Mr W intervened, grabbing the mother by the wrists. X was put down, and the altercation continued, with the father wanting to take the children, and the mother preventing him from doing so.
Sensibly, to end the stand-off, the father and Mr W then stepped away from the mother and her car, leaving the children with her.
It is plain that the children were upset and confused by the behaviour of their parents at this changeover. The mother agreed that she video recorded “several segments” of the changeover on her mobile phone.
I accept the father’s evidence that the mother did not encourage the children to go to the father, or try to reassure them, and that her comments and behaviours in front of the children left the children confused and upset. I also accept the father’s evidence that Y held up a piece of paper on which was written derogatory words in Country O and Country AA languages. Whilst these matters were denied by the mother, for the reasons I set out later in this judgment, I prefer the father’s evidence to that given by the mother where they give different accounts.
The mother attended at the Suburb FF Police station to report the incident. She provided them with her video footage. She asserted she was assaulted by Mr W during the changeover, whose behaviour she characterised as a violent attack on her. I understand the police also viewed the CCTV footage from the petrol station and spoke with a witness. The police did not share the mother’s concerns about the behaviour of Mr W and the father. Rather, the LEAP report records that the mother appeared to be the instigator of the poor behaviour. The report also records “nil criminality, nil offending. Nil cause for IVO”.
In her oral evidence the mother expressed dissatisfaction at the police non-action, asserting that the police disregarded her very clear recording of Mr W grabbing her wrist, and that they had formed their opinion based on the father’s statements.
Children’s interview with the Department – 16 May 2022
On 16 May 2022, the Department finally met with the children. The mother requested a Country O language interpreter be present to assist the children at that interview. Whilst meeting with Child Protection, the children did not make any disclosures. The children were described as very shy, and possibly having developmental or language delays.
Child Protection formed the impression the children seemed to be “focused on police” and made several unprompted comments about visiting police. When the children were playing with building blocks they decided to build a police station, which the report writer opined may be as a result of their repeat attendance with the mother. I note the mother in her oral evidence stated the children were “happy” at the police station, that they “wanted to go back” and “love police”.
The Child Protection practitioner noted that the “acrimonious nature of the parents’ relationship was evident within the interview with the mother”, with the mother complaining about the “drawn-out legal dispute, lack of satisfactory financial settlement and historical events”. Child Protection did not form a view that the children were at risk in their father’s care.
Orders – 17 May 2022
On 17 May 2022, the matter came before me for mention with respect to the appointment of an Independent Children’s Lawyer. The father objected to an Independent Children’s Lawyer being appointed on the basis that it would not assist the matter and the likelihood of an increase in costs and mutual allegations between the parties. I disagreed with the father’s submissions and accordingly made an order appointing same.
I also made orders that day restraining both parties, their servants and agents from video or audio recording the changeovers.
Changeover – 22 May 2022
There was a further distressing changeover on 22 May 2022.
On that day the mother was waiting inside the shop at the petrol station with the children. The parties had never exchanged the children inside the shop before. The mother said it may have been cold and that is why she went inside. In her oral evidence the mother said she arrived on time and took photos of the children, as she always does before handing them over, ostensibly to show that she provided them to the father nicely dressed and clean.
The father, accompanied by his mother, had parked his car with his mother, away from the petrol bowsers and away from the shop. The mother was not prepared to hand the children to the father inside the petrol station shop in the absence of his mother, and accordingly the father moved his car closer and his mother also came out of the car. She did not enter the shop. In her oral evidence the mother made it clear she did not regard that the grandmother was providing a sufficient level of supervision.
The changeover then occurred inside the petrol station shop. The mother said the children were crying, screaming, obviously frightened to go with the father, and were standing behind her. She said that the father was pulling the children away from her. The father said the mother stood in front of the children, blocking them from him.
As the mother remained standing in front of the children, the father was required to reach around the mother and take each child separately, taking X first. X was holding onto the mother’s jacket, which was pulled as the father sought to remove X from the mother. The mother said the pulling of her jacket made her feel “that he was choking me”. Once the father took X to the car, he came back inside the shop, and “the same scene was repeated with the handover of [Y]”.
The mother did not video the changeover. However, she took photographs of X being carried away by the father, inside the shop. X was obviously distressed, and crying and reaching out towards the mother. It is troubling that notwithstanding the orders made just five days earlier, the mother continued to take photographs. In her oral evidence the mother said “no one told [her] it was prohibited” as the orders only specified that video recordings were not allowed. Those orders also provided that the party delivering the children was to take the children out of their vehicle, hand them to the other party and immediately leave the changeover venue. It is apparent the mother did not comply with that order.

It is difficult to understand why the mother let the children stand behind her when the father approached her. I am satisfied she did nothing to proactively make this a smooth changeover for the children, or encourage them to leave happily with their father. Rather, by positioning herself as she did, between the father and the children, she inflamed the situation, and caused the children to become considerably distressed.
It is also difficult to understand why she did not take the children outside the petrol shop to the father’s car, to calm and reassure the children, rather than letting this distressing scene play out in public.
The mother then attended at the police again. According to the LEAP report, the mother told the police she was in fear of the father because of his aggression during changeovers. The police initially sought an Intervention Order on the mother’s behalf, against the father, with there being some suggestion that it was the father who had been pulling the mother’s jacket and choking her. In her oral evidence the mother conceded that the father was not pulling on her jacket, but that it was the children. She said she understood that only after seeing the photographs and CCTV footage. I note the LEAP report records that there is “no tangible evidence to suggest FV” and “nil grounds for an IVO”.
The Child Protection practitioner spoke with the police informant regarding this changeover incident. The DFFH response records that the worker was informed that the police had reviewed the CCTV footage, and would be revoking the IVO application. The mother’s reports were regarded as “not factual”, with the father remaining calm and passive and the mother filming the incident on her phone.
The mother did not provide the children for time on several occasions following this incident.
Father’s interview with the Department – 24 May 2022
The father was interviewed by Child Protection on 24 May 2022. He denied the allegations of abuse and violence. Child Protection described he remained child focused throughout his interview, and they said they held no concerns for the children in their father’s care. However, they said the ongoing acrimonious relationship and exposure to police involvement did raise concerns about the children’s psychological wellbeing.
Procedural history
The mother filed an Initiating Application on 25 May 2022 seeking inter alia the children live with her and spend supervised time with the father. The mother also sought to travel with the children to Country O for six weeks each year.
The father filed a Response on 1 June 2022, seeking inter alia, sole parental responsibility and that the children live with him and spend supervised time with the mother until she has completed an anger management course, a GG Organisation program, and post separation program. After that, he proposed the children’s time with the mother could progress to three night weekends, plus another overnight in the alternate week, together with a sharing of some holidays and arrangements for special occasions.
The matter was originally set down for final hearing commencing on 29 August 2022 for five days. However, in the week preceding final hearing, the children tested positive to COVID-19. Shortly thereafter on 25 August 2022, the mother tested positive to COVID-19 and the hearing could not proceed on 29 August 2022. The proceedings were then adjourned to 5 September 2022, where it proceeded in person for four days.
On 7 September 2022, the third day of the trial, the parties were able to come to an agreement as to the children’s enrolment and attendance at kindergarten for Term Four 2022.
At the end of the final hearing on 8 September 2022, I also made orders by consent essentially reinstating 2021 final orders and recommencing time between the children and their father.
The issues to be determined
After dealing with the issue of Rice & Asplund, the significant issues I need to determine include:
(a)the allocation of parental responsibility;
(b)the living arrangements for the children;
(c)whether the mother presents a risk of emotional harm to the children; and
(d)whether the children should be permitted to travel overseas with the mother.
Rice & Asplund
As I have already indicated, counsel for the mother asserted that the rule in Rice & Asplund applies. Counsel for the mother was content for me to deal with this issue in this judgment rather than making a determination at the commencement of the proceedings. Of course, in those circumstances the “evils” which the principle is intended to overcome have already substantially come to pass.
I note the assertion this was a matter to which the principles in Rice & Asplund applied was only raised days before the hearing before me commenced. Prior to that time, both parties were asserting the circumstances for the children had changed to the extent that a reconsideration of the parenting matters was required.
It is, in my view, obvious that there has been a sufficient change in circumstances since the making of the 2021 final orders that justify the matter be re-litigated. Those changes include:
(a)the mother has made allegations of repeated sexual abuse perpetrated by the father on the children;
(b)as a result of the allegations of abuse the children have been subjected to repeated interviews by the police and Child Protection;
(c)the mother suspended the father’s time with the children following the making of the final orders, asserting that they are at risk in his care. Supervised time was then subsequently introduced;
(d)until just weeks before this final hearing the mother was pursuing a case that the father presented an unacceptable risk to the children, and his time with them should remain supervised for the next few years. She recently abandoned that position, and now asserts he does not present an unacceptable risk; and
(e)the highly distressing and turbulent scenes at the changeovers in May 2022.
Additionally, I note that the father’s case is that the mother’s allegations are entirely without foundation, and that as a result of her unshakeable, and erroneous beliefs, she presents an unacceptable risk to the children’s wellbeing should they remain in her primary care.
It is abundantly clear these are significant and material changes to the circumstances that existed at the time the 2021 final orders were made. As indicated, I am readily satisfied those changed circumstances and events are sufficient to provoke a new inquiry.
The evidence
Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities.
It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it.
As I have already indicated, the trial proceeded in person.
At the final hearing the mother was assisted by a Country O language interpreter. The mother answered all questions in English and occasionally used the assistance of the interpreter to clarify any questions or words she was unsure of.
The mother relied on two affidavits filed on her behalf of 3 September 2022. The longer of those was a heavily redacted version of her first trial affidavit that had been filed on 3 August 2022. The father objected to the mother being permitted to rely on the shorter of those affidavits. I determined at the outset of the trial that the mother could rely on that affidavit.
The father relied on his affidavit filed 11 August 2022. He also relied on affidavits from his sister, Ms D, and his son Mr W filed on 11 August 2022. Their evidence was not subject to challenge.
The Mother
As observed, the mother’s case is quite perplexing.
In the previous proceedings, it is apparent the mother made various allegations regarding the children’s safety in the father’s care. Those complaints by her were used to justify her decision, at various times to suspend the children’s contact with their father. Initially following the parties’ separation, the mother withheld the children from spending time with their father. She withheld them again in early 2020, following orders being made increasing the children’s time with their father. Time then did not occur for approximately four months and the children were restricted to spending time with their father via video conferencing. The mother asserted inter alia, that the health of the father and his mother was poor and prevented them from providing a safe environment. Time was reinstated in July 2020, although that was not without issue. I note that at interview in 2020 with Ms E, the mother expressed disappointment that the children’s time with their father had been reinstated despite the safety concerns the mother had raised.
Despite the allegations as to abuse and neglect made by the mother, the 2021 final orders which provided for the children to spend substantial and significant time with their father were largely made by consent.
Fairly promptly after those orders were made, the mother again raised serious concerns about physical and sexual abuse, and risks to the children in the father’s household. Once again the mother withheld the children.
In relation to the allegations made in this round of proceedings, the mother deposed to allegations of physical, psychological and verbal abuse at length in her affidavit in what was her trial affidavit sworn by her and filed on 3 August 2022. That affidavit was filed together with an Amended Initiating Application. In that application, the mother proposed the children have supervised time with the father until 2025.
A Case Outline was filed on the mother’s behalf on 26 August 2022. The chronology in that case outline refers to the children making disclosures of “inappropriate touching” by the father in November 2021. It also outlined the summary of legal issues as including whether the father poses an unacceptable risk of harm to the children.
As indicated, the trial did not commence on 29 August 2022 due to the mother’s ill health.
On 3 September 2022, there was another version of the mother’s trial affidavit filed, which purported to redact substantial parts of the mother’s earlier filed trial affidavit. In particular, that included striking out a number of paragraphs regarding the father’s alleged violence to the mother, the references to sexual abuse of the children, and other concerns regarding the father’s ability to provide safe and appropriate care. I was informed by counsel for the mother those parts were redacted, as the mother no longer wished to rely on that evidence. I understood from the mother’s counsel that that further parts of the mother’s material would have been redacted by the mother, but he had effectively ‘run out of time’ to finish getting instructions in that regard.
A second Outline of Case was filed on 3 September 2022. In that outline, the mother indicated she relied on what she described as her “redacted affidavit” as well as an “additional affidavit” filed contemporaneously. The chronology in that outline does not include reference to the children’s asserted disclosures. Additionally, that chronology does not identify issues of risk as being a matter for determination.
The mother’s explanation for her changed position was bewildering.
The mother was not an impressive witness. She was often evasive, verbose and non-responsive to the questions asked. She made few concessions and rejected any narrative contrary to her own beliefs. She gave artful answers, not quite answering what was asked, and carefully avoiding making any direct allegations. Throughout her evidence, the mother ‘stuck to a script’; that she was doing all she could to promote the development of the children’s relationship with their father. Additionally, she maintained whilst everything she deposed in her affidavit material was correct, and she had faithfully reported what the children told her, those matters were no longer relevant and she did not rely on them.
The mother’s memory appeared quite selective. If she was being asked questions on a topic that perhaps reflected poorly on her, she prevaricated. For instance, when confronted with the SMS’s from early 2021, she said that she could not recall whether those were sent by her or not, or they did not seem like messages she may have sent. Similarly, when she was being pressed regarding the arrangements she allegedly made for the children to commence kindergarten or play group at her church, she was vague and non-committal as to when they actually started, or how often they have attended.
Conversely, she was able to recall quite precisely the dates she took the children for interviews with SOCIT, her interactions with Child Protection, the details of conversations she said took place with Ms E, specific court events and hearings, and the events of various changeovers.
The allegations deposed to by the mother in her original trial affidavit filed 3 August 2022, and which she redacted from her later filed trial affidavit include:
(a)that the father subjected the mother to violence and abuse, including slapping her, shoving her, squeezing her and choking her, with the abuse starting immediately following the birth of the children;
(b)that the father subjected her to ongoing verbal abuse;
(c)that the father has sent photographs of the children naked to an unrelated adult man;
(d)that the children have returned from the father’s care with injuries;
(e)that the children have told her the father has inserted his fingers inside their genitals, causing them considerable pain and distress; and
(f)that the father subjects the children to severe punishments, including hitting them on the head, making them stand for protracted periods in the corner and force feeding them.
In her oral evidence, the mother maintained what she deposed was true and accurate but that these matters are not relevant to a consideration of the children’s best interests.
In the affidavit filed 3 August 2022, the mother also said that as a result of the father’s behaviours, she had seen obvious and severe changes in the children. She said they were experiencing involuntary urination and defecation, that X had started to stutter, that the children had become scared of the dark and did not want to visit their father. This part was not redacted from the mother’s affidavit filed 3 September 2022. She said these “symptoms” reduced when the children’s time with the father ceased. In her oral evidence, the mother said that the children’s inability to control their urination and defecation were triggered by something that must be connected to the abuse.
In the affidavit filed 3 August 2022 the mother also deposed that the father does not attend to the children’s basic hygiene requirements, and that he had intentionally damaged their clothes by deliberately cutting and tearing them before returning them to the mother. These paragraphs were in part redacted from the mother’s trial affidavit filed on 3 September 2022. However, in her oral evidence the mother said that the father had previously returned the children dirty and unbathed and with un-brushed teeth. She confirmed the father had deliberately damaged the children’s clothes. She said initially he cut their clothes with scissors. She said she could tell they were cut with scissors as the holes were regularly shaped. She said after she sent him a text message asking him to stop, the holes in the clothing were torn instead of cut. She knew this because the holes became more irregularly shaped, and the children told her the father was using his hands to tear the clothes. The mother said that occurred on many occasions.
In relation to the allegations of “inappropriate touching”, the mother deposed in the affidavit filed 3 August 2022 that the children have told her on various occasions that the father has touched their genitals, “putting his finger inside and causing considerable pain”. She said the children have described that this happens “often”, when they are in bed, and that it is done to X more than Y. She said the children said this was frightening for them, and that X would be crying and screaming, with Y hiding under her blanket. These parts of the mother’s affidavit filed 3 August 2022 were redacted from her subsequently filed trial affidavit.
In her affidavit filed 3 August 2022, the mother deposed that time needed to continue to be supervised by members of the father’s family “until such time that children reach an age where they are able to clearly and confidently explain in their own words any concerns or issues that they have”. She further deposed that time should be reduced as the father has often “opted against spending time with the children”. The mother redacted these parts in her subsequently filed trial affidavit.
When she was cross examined about the father’s abusive behaviours, the mother said the children told a convincing and consistent story that their father had put his finger in their “pee pee” which caused her to be worried and scared. She said she had accurately described the behaviours of the children that she observed and their resistance to spending time with the father. She said she did not question the children, but that they sometimes cried and complained and would “volunteer information” to her. Further in response to questions from counsel for the Independent Children’s Lawyer the mother said that between late 2021 and until her letter of 25 February 2022 the children raised the issue of digital penetration by their father on at least ten separate occasions. The mother said the first time X raised the issue, she was crying and complaining her “pee pee” was hurting because the father was “touching her” and putting his “finger inside”. She said each child confirmed the other’s statements, including that this was happening to X, and that Y was in her bed, with her head under the blanket, hiding whilst X was being “touched”. The mother said the children also reported this happened to Y, and that it happened to both of the girls on more than one occasion each.
The mother acknowledged that until a few days before the trial commenced, she was seeking orders that the father’s time with the children be supervised. However, at trial, and despite the serious allegations she made, she said that was no longer her position. The mother’s explanation was puzzling. She said she understood she did not have “further evidence” to support her concerns and so her trial affidavit had been redacted. She said paragraphs had been crossed out of the affidavit as they were no longer relevant now she was seeking to return to the 2021 final orders. She said she understood that an affidavit and orders sought needed to be “aligned” and that her redacted affidavit was now aligned with the orders she sought.
That did not mean, however, that she accepted the children had not been abused. The mother was quite evasive when questioned whether she believed the father had sexually abused the children. In her oral evidence, the mother said she had previously sought supervised time, not out of her “belief” that the children were being abused, but out of “fear” that they were or had been. When asked if she continued to have that fear, she said “I’m a mother” and “I always worry about my children”. When pressed, the mother said that the father had been very careful since receiving her letter of 25 February 2022. She said since then that the father’s behaviour and that of his family improved, so she did not currently fear he would behave “the way he behaved” as set out in her un-redacted affidavit.
The mother was careful to say she was not accusing the father of sexual abuse, and that she was only reporting what the children told her. She also said that the information about the abuse came to her from “two sources”, and “independently”, including some descriptions that were “quite dramatic”, and accordingly she had no doubt that something had occurred. She later acknowledged her “two sources” were the two children.

At one point, when asked again if she believed the children had been abused, she said she had no doubt the children were accurately describing events that had occurred to them. However, she later said did not know whether what the children told her was true. She also said it was impossible for her to say that he did not abuse the children. She said if it is true, he is a “very deviant individual” and would pose a very significant risk to the children. Later again she said she believed the children were describing a traumatic event and that she did not doubt that what the children reported was true, that the abuse occurred, and that it occurred on more than one occasion. She said she “had a look” on the outside, presumably of the children’s genitals, but could not see any blood or bleeding.
When asked if the mother accepted that the children made no disclosures to the police, she said the police were “very nice” but that they did not sufficiently pursue questioning the children and “gave up” too early. When asked if the mother accepted Child Protection’s assessment that they have no protective concerns for the children in the father’s care, the mother gave an oblique answer, and said she “accepted” her amended affidavit.
The mother’s explanation for her case moving away from one of unacceptable risk (as it was on 3 August 2022) to her current position that the father does not pose an unacceptable risk as at 5 September 2022 when the trial began was unconvincing. She said she now supported the children having unsupervised visits and did not currently regard the children as being in immediate danger. She said the father had been “very careful” since she reported his behaviour earlier this year. She described that the father was “smart enough” not to engage in any harmful behaviours in the context of court proceedings. She said since February 2022 the girls had stopped talking about “the incidents of touching” which led her to believe those incidents were no longer occurring. She said the children had made no more complaints since that time, and that the father was not treating them like he had previously.
I note that in the material filed on 26 August 2022 the mother’s case was still apparently focussed on issues of unacceptable risk. The mother said that was the position “in writing” in late August 2022, but that did not necessarily reflect her true position at that time, as her communication with her lawyers was impacted by her illness and isolation as she and the children had COVID-19. She also said that her affidavit filed on 29 August 2022 – which again referred at length to allegations of abuse and risk in the father’s household – was an affidavit in reply. She said in that affidavit she was referring to “what was happening in the past”, and was not asserting these issues were ongoing. A cursory glance at that affidavit does not support the mother’s assertions in this regard. For instance, at paragraph 19 of that affidavit the mother deposed:
I have become increasingly distressed and concerned about the children’s safety when in care of the Respondent, after hearing repeatedly from both children on multiple occasions about the incidents, as described in paragraphs 80 – 98 of my Main Affidavit.
Those paragraphs refer to allegations of abuse. That strongly suggests the mother’s concerns about the children were current as at the time that affidavit was sworn and filed.
The mother maintained that she did not have a sudden revelation that the father did not present an unacceptable risk. She said she came to that conclusion over several weeks or days as she “observed what was happening” and “observed improvements”. She repeated that her position in relation to the question of unacceptable risk had “changed over time”, that this was a “process” and she had gradually gained personal insights and understanding to arrive at her current position. She did not articulate what insights or understanding she may have gained.
The mother’s position is deeply incongruous. She maintained at trial that she believes the children’s statements. It is difficult to accept that she genuinely believes her daughters have repeatedly been digitally penetrated by the father, and yet he does not pose an unacceptable risk. If she does not genuinely believe that the children have been sexually assaulted by the father, it is extremely troubling that the mother has reported what she has described as the children’s “disclosures” to the police, and medical practitioners, resulting in the children being interviewed by authorities on multiple occasions. It is also troubling that the mother has made comments in front of the children that suggest that they are at risk in his care. The mother’s lack of insight regarding the effect on the children of these interviews and her comments was disconcerting.
In addition to her allegations of abuse perpetrated on the children, the mother has other complaints about the father. She has at times expressed a view that the father has subjected her to surveillance and control. For instance, the Family Consultant referred in her report of August 2021 to the mother believing the father was stalking her, and may have linked to a GPS device on her smartphone to monitor her movements. She has also suggested he bribed the supervisor to provide a positive supervision report. In relation to her claims that medical professionals did not properly investigate her allegations that the children were being abused, in her oral evidence the mother said “…Jews are protecting each other”. There is no evidence to support any of these suspicions.
The mother further asserted that the father’s household, comprised of the father, his mother, his sister and Mr W was “unhealthy”. She spoke of each of them with considerable disdain.
In her oral evidence, the mother conceded that in a previous affidavit she had referred to the father’s relationship with his sister as “incestuous”. She said she was quoting the father, and “just stating what I heard”. When asked if she believed the father and his sister had a sexual relationship, she said “I don’t know”. It is clear from Ms E’s first report in August 2020 that this was a matter the mother had raised at that time, as well. This is an offensive comment to make, and utterly without foundation.
In her affidavit filed 3 August 2022 the mother asserted that Mr W was undisciplined and focused on partying. Whilst those complaints were redacted from her later affidavit, in her oral evidence the mother could not concede Mr W had a positive influence on the children.
The mother described the paternal grandmother as “domineering and harsh” who has “never shown any pleasant behaviour towards me”. In her 3 August 2022 affidavit, the mother deposed the grandmother suffered from multiple conditions that made her an unsuitable supervisor or babysitter. She said the children have received multiple injuries when left in the care of the grandmother. These assertions were in part redacted in her affidavit filed 3 September 2022.
However, in her oral evidence the mother maintained that there were deficits in the care the paternal grandmother provided to the children. She said she had heard the grandmother had medical issues relating to pain and mobility. She conceded the children had not complained that their grandmother had physically abused them, but she said she did stamp her feet and shout and yell at them. She said the children were scared of that behaviour. The mother’s complaints about the grandmother’s asserted incapacity to be able to care appropriately for the children are long standing, with similar complaints being made in that regard to Ms E at interview in August 2020.
In her oral evidence, the mother said she did not regard that the children had formed a bond with either their paternal grandmother or aunt. She said the children report to her that the paternal grandmother smells, and they do not like to kiss her. It is apparent that the mother does not correct the children when they are rude about their grandmother. Rather she explained that the paternal family like to eat certain foods, and the unpleasant smell of those foods is perhaps captured in the grandmother’s hair or clothes. It was implicit in her evidence that these are unpalatable foods the mother would not cook in her household.
In her oral evidence the mother outlined her concerns for the children’s safety in the father’s home to include:
(a)the children being injured or drowned in the pool that is not properly protected;
(b)that the paternal grandmother is unable to properly care for the children;
(c)that Mr W exhibits aggressive behaviours; and
(d)that the aunt is cold and disinterested in the children, and ignores them.
In her oral evidence, the mother said these were all just the “facts” about how the father’s family operated and behaved.
The pool fencing issue was dealt with by McEvoy J. He was satisfied at the time the final orders were made that the fence was adequate and compliant. There was nothing in the mother’s material that indicated she had any new information about the fence that post-dated the making of his Honour’s orders. Accordingly, I am not satisfied there is any basis for me to reconsider this issue.
It is notable that the mother takes issue with a number of authorities and professionals engaged with the family, where their views do not align with hers. For instance where Child Protection, SOCIT, the police records or Ms E’s reports differed from the mother’s evidence, she maintained she was correct, and the other records were wrong. She said Ms E “heavily misquoted” her. She has described Child Protection workers as unresponsive and hard to reach. She complained that neither SOCIT nor Child Protection properly investigated the abuse allegations. The mother was dissatisfied with the response of both Dr CC and Dr DD. The mother has also conflicted with a professional supervisor, who she suggested had been paid off, or bribed by the father to provide a favourable report for him. She has similarly suggested the father has been able to influence other report writers. The mother also suggested that she was suspicious that the father’s lawyer had some “channels” in SOCIT, which enabled the father’s solicitor to be provided with information about their investigation. These paragraphs were also subsequently redacted in her affidavit filed 3 September 2022. There is no evidence to support these allegations beyond the mother’s assertions.
The mother appeared to take little responsibility for the parental conflict. In relation to the 14 May 2022 attempted changeover, in her oral evidence the mother maintained that the father and Mr W had behaved poorly, and she had acted appropriately. She could not perceive how trying to hug or touch X when she was in the father’s arms could have amplified the tension. She insisted that as “my baby was crying” it was apt that she tried to hug and kiss her. Similarly, she could not identify any behaviours by her that could have reduced the children’s distress at the changeover on 22 May 2022. Instead, she complained that she was not allowed to comfort “my child” at that time. She could not fathom any reason the children may have been crying or complaining about going to their father’s home other than they are scared of the father and uncomfortable about spending time with him.
I do not accept the mother’s evidence that she takes positive steps to actively encourage or reassure the children about spending time with their father. Rather, I accept the father’s evidence that at multiple changeovers the mother has discouraged the children. She has also complained to the father – and others – about allegations of violence and abuse in the children’s presence. At changeovers, she has positioned herself and the children in a way that makes changeovers physically difficult. She has failed to manage her own emotions at changeovers, and drawn out the transitions, inflaming the children’s distress.
It is plain that the mother’s long standing and fixed view of the father and his family is unrelentingly negative. She gave little indication that she regarded the children as benefitting from spending time with the father or his family. At best the mother was able to concede that since the supervised visits had been implemented there had been some improvement in the interactions between the children and the paternal family.
The mother appeared to have little insight into how her behaviour caused the children distress or contributed to the parties’ conflict. She did not express any concern or remorse that the children’s relationship with their father had once again been interrupted She remained adamant she had done all she could, at all times, to support the children’s relationship with their father to the best of her ability.
The Father
At the outset of the hearing the father proposed inter alia:
(a)that he have sole parental responsibility for the children;
(b)for the children to live with him;
(c)for the mother to enrol and complete an anger management course, Tuning into Kids program and post-separation parenting program (‘the courses’);
(d)that pending the completion of the courses, the mother spend professionally supervised time with the children each alternate Sunday from 10.00 am until 5.00 pm; and
(e)that the mother’s time with the children progress to unsupervised time each alternate weekend six months after the completion of the courses.
The Independent Children’s Lawyer supported the father’s proposed orders. At the conclusion of the proceedings, it was suggested that the mother’s supervised time could run for a period of around three months, to provide time for the mother to complete a parenting course, and engage with an appropriately qualified psychologist. Additionally, that would provide the children with the opportunity to settle into their father’s care, without it being undermined by the mother.
The father was an impressive witness. He appeared to give authentic, straightforward and candid evidence. He also impressed as insightful into the children’s needs. He also appeared able to prioritise the children’s needs over his own. For instance, he had readily consented to orders for supervised time with the children earlier this year. Whilst he denied the necessity for supervision, he said it was absolutely preferable that he see the children under supervision than not see them at all.
The father strenuously denied each and every allegation levelled at him by the mother including the allegations of violence, abuse and sexual abuse.
In terms of his ability to care for the children outside kindergarten/school hours, the father stated that he can work various flexible hours around the needs of the children. He said he generally works from 9.00 am to 4.30 pm. The father deposed that in the event of an unforeseen circumstance where he is unable to collect the children, Mr W has offered to assist if necessary. He said much of his job is regarding logistics, which he is able to undertake from home. He denied that he is required to work long hours, or has to be available 24 hours. He was readily able to explain his day to day commitments and employment requirements, and how these would be managed to fit in with his responsibilities to the children if they were in his primary care.
The father lives in a three bedroom unit owned by his sister. He said he can live there, with the children, on a permanent basis. He said whilst the children can each have their own bedroom there, he intends for them to continue sharing a bedroom until they no longer want to do so. He proposed that if the children move into his primary care, he would initially stay at his mother’s home, as the children are very familiar with that home. He would move into his home once the children are settled and comfortable in his care.
The father spends a lot of time at his mother’s home when he currently has the children. That home he said is a large, four bedroom home also well set up for the children.
The father said the children have a close and loving relationship with him, his mother, his sister and their older brother.
As indicated, I accept the father’s evidence that mother undermines his and his mother’s relationship with the girls. He said at changeovers the mother has said in front of the children that he was not to touch the children’s “pee pee”. He said the mother also accused his mother of hitting the children, and repeatedly made statements to that effect in front of the children. The father also deposed that in early 2022 the children said their mother told them that the father had put his fingers into their genitals. The father said the children have told him on several other occasions that the mother told them he was doing this to them. He was not challenged in relation to this evidence.
The father said following the orders for time to resume in 2022, the mother has not actively or positively encouraged the children to come with him. He said she is frequently late to changeovers. He said the mother’s hostile, derogatory and unco-operative approach at changeovers has impacted the children, who have experienced the changeovers as distressing. The father said that initially when the children transition into his care, they can be upset, or reserved and shy, but will warm up quite quickly. He said their demeanour changes once they are away from the mother. He said the children thoroughly enjoy their time with him and his family.
The father acknowledged the children have a close and loving bond with their mother. He also acknowledged that the orders he sought would be a significant change for the children, who he agreed were sensitive children. He understood it may take the children time to adjust to living with him. He said he would ensure the children were supported by him and his family in making the transition into his care. He said he would seek professional assistance from a child psychologist if that appeared to be warranted. He said he had already spoken with his general practitioner about attending for a referral to an appropriate child psychologist if the children were placed in his care.
The father said whilst the mother has deliberately, and maliciously sought to interfere with his relationship with the girls, he has actively ensured he has not denigrated the mother to the children. Rather, he said he has encouraged the children to have a relationship with their mother, and would continue to do so. He explained that he and Mr W’s mother were able to work co-operatively, and shield Mr W from the adult issues, and he would keep trying to find a way to work cooperatively with the mother. He said if he tried to undermine the children’s relationship with their mother that would not be beneficial for the children.
It was clear during the giving of his evidence that the father found the allegations about sexual abuse, and the negative comments the mother makes about his family deeply upsetting and distressing. However, he did not express any anger or outrage at the mother. Rather, the father was able to remain insightful and child focused, acknowledging this case is “not about me”. This is consistent with the observations made by Ms E in the August 2020 Family Report, where she noted the father expressed his frustration then at the mother’s attempts to prevent him maintaining a relationship with the children, but did not denigrate her. Indeed Ms E noted that the father:-
…spoke about her warmly, highlighted her intelligence, and made allowances for her behaviours.
I note that despite the mother’s persistent allegations against him and his family, Ms E noted at the time of her second report in August 2021 that the father continued to be positive regarding the mother.
The father’s witnesses
The father’s sister and son filed affidavits in support of the father. They were not required for cross examination. Accordingly, their affidavits are unchallenged.

Section 60CC(2) of the Act sets out the two primary considerations I must consider being:
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect children from harm.
Meaningful relationship
Whilst the word “meaningful” is not defined in the legislation, case law makes it plain that it is synonymous with “significant” and “important”. It does not mean “optimal”.
In my view, it is not in doubt that the children will benefit from having an ongoing and meaningful relationship with both parents. A significant issue in this case is whether the children will be able to maintain a meaningful relationship with their father if they remain living with their mother.
Counsel for the father emphasised the risks to the children if they remain in their mother’s primary care, including the very real risks they will form an erroneous belief that they have been sexually abused by him, that they are unsafe in his care, that they should be frightened of him, and that he and his family do not really care for the children. In turn that could result in the children rejecting their father, and experiencing the profound consequences that may flow from such rejection. The children’s distress at some changeovers, and their hesitancy when initially with him and his family suggest those processes may already be underway. I share those concerns.
I do not have concerns that the father would not promote and support the children’s relationship with their mother if they are primarily in his care. The father appeared to understand the importance of the children having a meaningful relationship with each of the parents. There is no evidence that he has sought to interfere with or damage the children’s relationships with their mother. Accordingly, in the event the children were in the primary care of the father, it seems to me more likely that he will promote and support the children continuing to have a meaningful relationship with their mother.
Risk issues
In the unusual circumstances of this case, the mother appears to maintain the children have “disclosed” sexual abuse being perpetrated upon them by the father on multiple occasions, yet says that is not a matter that is relevant in determining the children’s best interests. Indeed, counsel for the mother deliberately declined to ask any questions of the father regarding the allegations of abuse and violence. Accordingly, it seems to me, the father’s denials of same are effectively unchallenged by the mother. Counsel for the Independent Children’s Lawyer did cross examine the father about the allegations, and he maintained his strenuous denials that there was any truth in the allegations.
I have had the opportunity of hearing extended evidence from both parties, and the benefit of information from Victoria Police, the Department, as well as Ms E’s Family Reports.
I note that the mother’s allegations regarding the asserted “disclosures” are lacking in detail and specificity as to when the alleged touching occurred and what is said to have occurred, as well as lacking significant details around the context in which the alleged disclosures are said to have been made. As indicated, I note the mother’s counsel, presumably on instruction, declined to question the father about any of the allegations. Additionally, it is difficult to reconcile the mother having a genuine belief regarding the allegations with her position at trial.
Taking all the evidence into account, I reject all allegations that the father has inappropriately touched the children. Further, in all the circumstances, I am not satisfied that the father presents an unacceptable risk to the children moving forward.
However, I am very concerned that the children are at risk of significant emotional harm should they remain primarily in their mother’s care. It may be that the mother has deliberately concocted the allegations of sexual abuse against the father. Alternatively, it may be that in the context of a highly acrimonious family dispute, the mother has coached the children – perhaps unknowingly – to make comments suggestive of abuse. I note that Child Protection formed a view that the mother may have coached the children.
The mother has repeated the allegations to multiple entities (at least two general practitioners, a social worker, the Salvation Army, SOCIT and the Department). She has arranged or sought to arrange a number of interventions for the children including:
(a)recording the children allegedly making disclosures;
(b)seeking that they be subjected to a gynaecological examination;
(c)subjecting them to two separate police interviews;
(d)subjecting them to an interview with Child Protection; and
(e)suspending their time with their father and then requiring that time to be supervised.
In my view, the evidence supports a finding that should the children remain living primarily with the mother, they children are at risk of being influenced to believe they are in danger whilst in their father’s care, whatever the genesis of the allegations. This would likely have a profound influence on the children’s sense of safety, on their relationship with their father and on their general psychological functioning. I note that the mother’s allegations against the father have apparently escalated. It is unsatisfactory for the mother to now seek to ‘side-step’ her allegations, and the interruptions they have caused to the father/child relationships, and assert those allegations are no longer relevant. They are relevant. They reflect on the mother, on her entrenched hostility towards the father, on her inability to encourage and foster the children’s relationship with the father and his family, and on her capacity to parent these two young children.
Additional considerations
Any views expressed by the children and any factors (such as their maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
The children are very young, and their language skills are under-developed. They have not expressed any views in this matter to which the Court could give weight.
The nature of the children’s relationships with each of their parents and other significant persons in their lives
The children have a close and loving relationship with both of their parents. I accept the father’s evidence that the children have close and loving relationships with the other members of the paternal family who have been involved in their lives.
The extent to which the children’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the children, to spend time and to communicate with the children
I am satisfied that both parents have sought to participate in making decisions regarding the children, and to spend time and communicate with them.
The extent to which each of the children’s parents have fulfilled or failed to fulfil their obligations to maintain the children
I understand the father pays child support and the mother currently meets all additional expenses for the children.
As best I understand the mother’s evidence, the father earns substantially more in reality than he claims, he is a very wealthy man, but is not willing to assist her financially with the care of the children.
Whilst the mother implied the father should be paying more for the support of the children than he is assessed to pay, there was no focus on this issue at trial. There was no meaningful evidence adduced to support a finding that either parent is not fulfilling their obligations to maintain the children.
The likely effect of a change in the children’s circumstances, including the likely effect of a separation from a parent or other significant persons in their lives
The children have been primarily cared for by their mother throughout their lives. However, I do not agree with the mother’s position that moving the children into the father’s primary care would cause the children “permanent psychological damage” and have a “life-long negative impact” on them. Certainly I accept that moving into their father’s primary care would be a significant – and challenging – change for them. However, the father has also been significantly involved in their care, with orders providing for the children to spend significant and substantial time at various times, although that has not been without interruption.
As Ms E articulated, the children would find the transition difficult. Nevertheless, I am satisfied that the father, with the support of his family, will ensure the children are emotionally well supported to manage the transition into his care. He impressed as an attuned parent, ready and willing to engage professional supports if needed, to assist the children.
Ms E said that the children now starting kindergarten will provide an important support network for them. She said next year, they would then be integrated into school, with peer groups. This would provide further supports and stability for the children.
I note that at the conclusion of the hearing before me, the 2021 final orders were to be reinstated. Those orders provide for the children to spend three nights on alternate weekends with their father, and an evening in the other week. This seems to me to provide an effective stepping stone for the children to transition into their father’s care.
The practical difficulty and expense associated with the children spending time and communicating with a parent, and whether that difficulty substantially affects the children’s right to maintaining personal relations and direct contact with both parents on a regular basis
There are no practical difficulties or expenses that affect the children’s ability to spend time or communicate with each parent.
The capacity of the children’s parents and any other significant person to provide for their needs, including their emotional and intellectual needs
Each of the parties are able to meet the children’s physical needs.
In relation to the children’s educational needs, it is concerning that there was no agreement for the children to be enrolled in kindergarten until the conclusion of the evidence before me. This is particularly concerning given the concerns raised by Child Protection and Ms E regarding the children’s social and verbal development.
The mother said she had arranged for some attendances at her church playgroup, but was somewhat vague about the children’s attendance there. She said pre-school had not been arranged as the father did not agree to meet the costs of the children attending a private long-day kindergarten program. I note that the mother has been employed since early 2022, earning approximately $165,000 per annum. Accordingly, her failure to ensure the children’s attendance at a four year old kindergarten program on a costs basis is difficult to understand.
I have significant concerns about the mother’s ability to meet the children’s emotional needs. At times she has supported the children’s relationship with their father, and ensured they have attended consistently to spend time with him. However, at other times she has actively undermined, obstructed and disrupted those relationships. On occasion, the mother has withheld the children alleging neglect and safety concerns in his care. On other occasions, she withheld the children asserting concerns regarding COVID-19. I note the father’s evidence, which I accept, that the mother has also frequently been late to changeovers, or not attended at all. At times, this impacted on the father’s – and the children’s – ability to participate in significant religious and cultural events in their community.
More recently, the mother’s claims have escalated to include allegations of sexual abuse. The pursuit of these allegations by the mother have resulted in the children being taken to medical practitioners, and being interviewed twice by SOCIT and also by Child Protection.
The mother’s behaviour at the changeovers in May 2022 was deeply problematic, and demonstrated an inability to manage her own emotions and prioritise the children’s needs. The mother’s pursuit of the sexual abuse allegations, and late abandonment of assertions of ongoing risk further add to my concerns about the mother’s capacity to maturely and appropriately meet the children’s psychological needs. The mother’s lack of insight into her role in the conflict is also troubling.
I am also concerned about the mother’s ability to promote and facilitate the children’s relationship with their father and his family. As outlined, in her evidence she repeatedly made gratuitous remarks demeaning and denigrating the father, his mother, his sister and his son.
Conversely, I do not have significant concerns about the father’s capacity to meet the emotional children’s needs. I am satisfied the father has predominantly remained child focussed in these proceedings. His ability to manage the children appropriately has been observed by various professionals both in this round and the previous round of proceedings, including by Ms HH, JJ Contact Centre and Ms E. They all describe the father as engaging warmly, appropriately and affectionately with the children, as well as being attentive to their needs and safety. In addition, the father has the support of his mother, his sister and his son, all of whom are well known to the children and care for them deeply.
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
As set out the mother is of Country O background. She attends church, and at least during the parties’ relationship, she identified as Jewish.
The father’s family is from Country AA. He is of the Jewish faith, and is observant of the traditions and celebrations of his faith.
The children are able to experience a diverse range of enriching cultural and religious events in the care of each of their parents.
If the children are Aboriginal or Torres Strait Islander children
This is not a relevant consideration.
Attitude to the child, and to the responsibility of parenthood demonstrated by each of the child’s parents
The matters relevant to this consideration have already been canvassed at length in these reasons. It will be plain that I have concerns regarding the mother’s attitude towards the responsibilities of parenthood in some key respects.
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
Both parents assert the other was verbally and physically aggressive. As indicated, prior to the mother’s redacted trial affidavit, the mother’s material filed in these proceedings asserted serious and chronic physical, emotional, verbal and sexual violence perpetrated against her and the children by the father.
The mother does not resile from her allegations. However, she asserted the allegations are not relevant to my determination as to the children’s best interests.
In circumstances where the father was not cross examined in relation to the mother’s allegations, she said the matters were not relevant and the father denied all the allegations, I put no weight on the mother’s allegations.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
Given the history of this matter I have significant concerns that if the children remain primarily living in the mother’s care, further allegations may be made by her against the father, resulting in the children’s relationship with him once again being disrupted. If that occurred, there would likely be further proceedings. As indicated, orders providing for equal shared parental responsibility will also be fraught.
It is preferable to make orders that are the least likely to lead to further proceedings. The parties have been engaged in litigation since June 2018. Almost throughout the children’s lives their parents have been embroiled in legal proceedings regarding their care, welfare and development. This needs to come to an end.
Orders to be made
Weighing all the evidence, I am satisfied the children’s best interests will be met by living primarily with their father, and that he have sole parental responsibility for issues regarding their health and education. I have already set out why the parties in this matter cannot exercise equal shared parental responsibility. In circumstances where the father will have primary care of the children pursuant to my orders, it is obviously appropriate that he be the parent with parental responsibility.
Living arrangements for the children
In all the circumstances, I have little confidence that if the children remain living in the mother’s primary care, the conflict between these parents will abate. The mother did not demonstrate any genuine insight into the importance for the children to have a relationship with both of their parents. She did not impress as having any real regard for the role the father plays, nor any real regard for the children’s relationships with other members of the paternal family. She has exposed the children to her highly negative views of the father and his family, and demonstrated no insight into the impact on the children of her doing so.
The children’s relationship with their father has been disrupted on several occasions as a result of various allegations made by the mother and levelled at the father. Those allegations appear to have become more extreme, with the allegations made in these proceedings including sexual abuse. The mother also continues to raise historical allegations. I have real concerns that if the children remain living in the mother’s primary care, further allegations will be made, and the children’s relationship with their father, and their extended paternal family will be interrupted again. As outlined, the children are beginning to display behaviours that indicate their psychological wellbeing is being impacted by their exposure to their mother’s ongoing hostile attitude to their father.
Whilst changing into the father’s care will be a significant step for the children, I am satisfied the benefits that will flow to the children in living in his primary care outweigh the impact the change will have on the children. In my view, the court needs to act protectively, to minimise the children’s exposure to the parental dispute, and to their mother’s attitudes and beliefs about their father and extended paternal family given the impact on the children’s psychological wellbeing, and their relationships with him and his family. Further, I am confident that the father will ensure the impact of the transition is minimised, and that he will do all he can to support the children to adapt and adjust to living primarily with him. I am also confident that the father will take positive steps to support the children’s relationship with their mother whilst living primarily with him.
The mother’s descriptions of the children’s distress and anguish exhibited in 2021 and earlier this year when transitioning into the father’s care is deeply troubling. I note in the mother’s care, she says at times the children have experienced incontinence and encopresis when faced with the prospect of spending time with the father. I further note the children’s reluctance to separate from their mother when Ms E prepared her third report in July 2022. These matters suggests that the children are beginning to be psychologically impacted by the ongoing dispute and continued exposure to their mother’s unrelentingly negative view of the father.

It is notable that the children do not experience the same levels of distress in their father’s household. It is also notable that the father is able to ensure the children transition swiftly and comfortably back into their mother’s care at the conclusion of their time with him. That was observed by Ms E as well. Together with the very positive observations made throughout these proceedings by various professionals as to the ability of the father to engage and interact with the children, these matters give me significant comfort that the father will manage the children’s emotional wellbeing when they are placed in his primary care.
Children’s time with the mother
In terms of the children’s time with the mother, I was urged by counsel for the father and the Independent Children’s Lawyer to act cautiously. One option was to require the children’s time be supervised, for a period of three months. That would allow time for the mother to undertake various courses and commence engaging with a counsellor to gain insight and understanding as to her beliefs and attitudes and the impact on the children of her exposure to them of those beliefs and attitudes prior to her time with the children progressing. Additionally, that period would give the children some time to recalibrate and successfully transition into the father’s care.
I agree with the submissions made by counsel for the father that without some period of limited, supervised time, the court could not be confident the mother would not undermine the children’s ability to settle into the father’s care.
Accordingly, the children’s time with their mother will be subject to supervision for the first 12 weeks from the date of these orders. That will provide some protection from the children against comments made or behaviours exhibited by the mother which might otherwise interfere with the children’s transition into the father’s primary care.
Thereafter, the children will spend one weeknight and each alternate weekend in their mother’s care, with changeovers wherever practicable to occur at school. That will minimise the need for the parties to effect changeovers between themselves, which has clearly been fraught at times. Additionally, providing for the mother to have the second week in school term holidays, will further reduce the capacity of the parties to conflict at a changeover, and limit the likelihood of an over-holding. I note that is subject to the children being with the relevant parent for particular religious celebrations.
In relation to the long summer holidays, I note that the 2021 final orders provided, by consent, for the children to spend those holidays with each parent on a nine/five basis in 2023, and on a week about basis in 2024. The orders sought by the father now provide for the children to spend longer periods of block time with each of their parents over that holiday, dividing the holidays in two longer blocks. Whilst this matter did not receive explicit attention in the matter before me, I have concerns about the risk of the children being exposed to conflict and tension if they are exchanged between their parents on a weekly basis during the long summer holidays. As noted, changeovers have at times been tense and uncomfortable – and there are multiple allegations made of parties attending late, or not attending at all, as well as allegations that the children have been resistant to transitioning. In my view, it is in the children’s best interests that the number of possibly conflictual changeovers is minimised. Additionally, the longer block periods would provide each parent with an opportunity to spend a protracted period with the children, which could include travelling with them. Accordingly, I will make the orders proposed by the father.
In terms of changeovers that do not occur at school I was not provided with any evidence or submissions as to why the current arrangements - with a sharing of the driving - should change. Accordingly, changeovers shall take place at the petrol station in Suburb Q when the children are moving into their mother’s care, and at the Suburb C convenience store when the children are being returned to their father. To ensure a smooth transition, I will also make orders regarding the mechanics of those changeovers. This will include restraints on either party, their servants and agents from photographing, videotaping or recording during changeovers. These arrangements will commence once supervised time has ended.
Special occasions
There was no evidence meaningfully adduced in relation to the arrangements for the children to spend special occasions with each parent. In those circumstances it seems there is little basis to substantially alter the orders that were made partially by the court and partially by consent, or not opposed, in 2021. As already noted, there is no tangible evidence that the children are struggling to manage their parents’ different cultural and faith practices. Rather, Ms E has expressed that exposure to different cultural and religious beliefs and practices may well enrich the children. Accordingly, the orders for these special occasions will remain substantially as they were in the 2021 final orders.
I do note, however, that there seems little utility to me in making orders providing for the children to spend time with the father on his birthday during the week, given the children will either see him in the morning or afternoon of his birthday.
I appreciate that making provision for the children to spend various special occasions will require the parties to exchange the children between themselves to facilitate these orders. It is hoped the parties will manage their behaviours at these exchanges, so that the children can continue to experience the traditions and heritage of both of their parents. If these transitions do not occur smoothly, and a return to court becomes necessary, it may be that the court will take a different view as to the best interests of the children in sharing these events with each of their parents.
Treatment and courses for the mother
Regarding the orders sought requiring the mother to attend upon various courses, and to attend upon a psychologist, I note that such orders generally need to be tethered to a parenting order. Otherwise, as observed by the Full Court in Oberlin & Infeld [2021] FamCAFC 66 (“Oberlin”) the only source of power for such an order would be s67ZC of the Act, being orders relating to the welfare of children.
As observed by Gaudron J in AMS v AIF [1999] HCA 26 at [85]-[87], the power of the court to exercise its welfare power and place limits on a parent’s conduct is restricted only to what is necessary for the welfare of the child. It is not a supervisory power. I cannot use it to manage the day to day affairs of a parent.
The Full Court in Oberlin made similar observations that the limits of the power pursuant to s67ZC is not entirely unconfined.
It seems to me in the particular circumstances of this case, this is a matter in which it is necessary that the mother be required to undertake a post separation parenting course, and to engage with an appropriately qualified psychologist, as nominated by the Independent Children’s Lawyer to ensure the children’s wellbeing. I note in particular the nature of the allegations made, the potential impact of those allegations on the children’s sense of safety and security, and the impact on them as a result of experiencing disruptions to, and the undermining of their relationship with their father. Without appropriate support and guidance it seems unlikely the mother will understand the reasons behind the orders that I am making, or gain the insight required to alter her behaviours and attitudes. I understand her views may remain entrenched despite the opportunity to carefully reflect. However, after the expiration of the supervised visits, time should progress to unsupervised, regardless. By that time the children should be well settled in the father’s care, and the transition process will be more difficult to undermine.
The psychologist would need to have a copy of the Family Reports prepared by Ms E and these reasons, to be best placed to assist the mother.
Travel
The mother wishes to travel to Country O to visit her father who lives there. She says her father is unable to fly, as he suffered previously from a medical condition. He was also involved in an accident in late 2020 which injured his leg. She has been unable to see her father since the parties travelled there with the children in 2018.
The mother said the children have regularly communicated with their maternal grandfather and have a connection with him, despite only meeting him once in 2018.
Country O is a signatory to the Hague Child Abduction Convention, and the convention entered into force between Australia and Country O in the 1990s.
The mother said she has no intention of moving to live in Country O. She said the unemployment rate is high, the average incomes are low and the cost of living is also very high. The mother has a career in Australia as a professional at a company in Melbourne. She said she has recently purchase a property in Suburb Q. She did not offer any security should she be permitted to travel.
Whilst the children would no doubt find the travel emotionally and culturally enriching, I have real concerns that if the mother were permitted to travel with the children outside Australia, she could determine to retain them in another country. A significant part of my disquiet arises from her perplexing position that the father has repeatedly sexually abused the children, yet she simultaneously maintains he poses no risk to them. I formed a view during the mother’s evidence that she remains of the view that the father is an unworthy parent, and that her position that he did not pose an unacceptable risk at court was adopted tactically, out of concern that she could lose residence of the children. It does not, it appears, reflect her true belief. Additionally, the orders I am making for the children to live primarily with the father, being orders with which the mother will be most dissatisfied, further increases the likelihood of the mother refusing to return to Australia should she be permitted to leave with the children.
In the circumstances, I am satisfied it would be premature to permit the mother to travel outside Australia with the children. I am of the view that the children’s interests at this stage are more powerfully met by having a protracted period of time allowing them to settle into their father’s care.
Additional orders to be made
The father sought an additional order that the mother only refer to the father by name or “Papa”. There was a lot of evidence before me regarding this vexed issue and indeed there was a similar order made by the court in the 2021 final orders. I am satisfied it is appropriate that this order be made, so that the children are not confused about this issue.
I note that there were other orders in the 2021 final orders that I am not replicating. Those orders include, for instance, restraints on the parties taking the children to treating practitioners without the prior consent of the other. Given the order I am making regarding the allocation of sole parental responsibility for health, those and similar orders are redundant. I am also not requiring each parent to take children to parties or similar events that fall within their time. Each party must keep each other informed as to any invitations but it will be up to the parent with the care of the children on the relevant day to decide whether or not the children will attend.
There were further orders by consent in the 2021 final orders that I have included in my orders. A number of those matters were not the subject of formal submissions before me, but appear to be sensible orders to reduce the potential areas of dispute moving forward. Indeed, as the mother proposed the 2021 final orders should continue in full force and effect, where the father has also sought those orders in these proceedings, I have made those orders.
I have also included a Family Law Watchlist order. Again, that order was made by the court in the previous orders, and expressed as remaining in place until further order. Given the flight risk issues I have outlined, in my view it is appropriate that a Watchlist order remain in full force and effect in this matter.
I have also included orders for the children to communicate with their other parent by telephone or video communication. I do not regard that order to be controversial, and it seems common sense that such young children may wish to ‘touch base’ with their other parent.
The 2021 final orders included that the parties keep each other advised of their contact numbers, email addresses and residential address, save that the mother merely needed to provide the suburb rather than the particulars of her address. I do not regard the evidence as supporting an order that would preclude the father from knowing the address at which the children are living when with their mother. It seems to me appropriate that each party knows the residential address of the other – and where they will be housing the children.
I note the father sought an order restraining the mother from coming within 10 metres of his home or workplace. I am not minded to make such an order. There was no evidence that would support an order to that effect. If there are issues in this regard it is a matter that can be more properly dealt with in the State courts. I have, however, included orders restraining each other from denigrating or insulting the other parent or family member to the children. It will be plain from my reasons why such an order is necessary.
For all of the foregoing reasons, I make the orders as are set out.

I certify that the preceding two hundred and sixty-eight (268) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Carter.
Associate:
Dated: 2 December 2022

File number:	MLC 6164 of 2018
Judgment of:	CARTER J
Date of judgment:	2 December 2022
Catchwords:	FAMILY LAW – CHILDREN – Rice & Asplund – where there has been a sufficient change in circumstances since previous final orders were made – allocation of parental responsibility – best interests of the children – where the children have a close and loving relationship with both parents – where the mother is unable to prioritise the children’s welfare over her hostility towards the father – where the mother presents a risk of emotional harm to the children –where the mother raises sexual abuse allegations against the father but asserts the father does not present an unacceptable risk – where the mother fails to promote a meaningful relationship between the father and children – where the parties are unable to promote a positive parenting relationship – whether the children should be permitted to travel overseas.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 60B, 60CC, 61DA, 65DAA, 67ZC
Cases cited:	AMS v AIF [1999] HCA 26 Oberlin & Infeld [2021] FamCAFC 66 Rice & Asplund (1979) FLC90-725
Division:	Division 1 First Instance
Number of paragraphs:	268
Date of last submissions:	8 September 2022
Date of hearing:	5 – 8 September 2022
Place:	Melbourne
Counsel for the Applicant:	Mr Peter Kistler
Solicitor for the Applicant:	Pentana Stanton Lawyers
Counsel for the Respondent:	Mr Rory McIvor
Solicitor for the Respondent:	Berry Family Law
Counsel for the Independent Children's Lawyer:	Mr Doug McLeod
Solicitor for the Independent Children's Lawyer:	Victoria Legal Aid

MLC 6164 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS DIVJAK Applicant
AND:	MR MELSON Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	CARTER J
DATE OF ORDER:	2 December 2022