Merritt & Bruckner - [2022] FedCFamC1F 103

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Merritt & Bruckner [2022] FedCFamC1F 103

File number(s): ADC 1267 of 2016

Judgment of: BERMAN J

Date of judgment: 9 March 2022

Catchwords:
FAMILY LAW – CHILDREN – Parental responsibility – Where each party seeks sole parental responsibility for the children – Where the ICL supports the father having sole parental responsibility – Where the ability of the parents to communicate is limited – Where there are concerns as to the mother’s ability to support the children’s education and medical and health needs – Where the immunisation of the children is an issue – Where the best interests of the children will be best served by the father having sole parental responsibility – Orders.

FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where each party seeks that the children live with them and spend time with the other parent – Where the ICL supports the children living with the father and spending time with the mother – Where judgment was reserved and leave was then given to reopen the evidence – Where there was a change of primary care during the proceedings – Where the children currently live with the father and spend time with the mother – Where there are allegations of family violence – Where there is no evidence to suggest the children are at risk – Where the children’s school attendance and health needs are of concern – Consideration of best interests of the children – Where the children should live with the father and spend significant and substantial time with the mother – Orders.

Legislation:
Evidence Act 1995 (Cth) s 135

Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 69ZN, 69ZT, 102NA

Cases cited:
Duke-Randall & Randall [2014] FamCA 126

Harridge & Harridge [2010] FamCA 445

M v M (1988) 166 CLR 69

Vasser & Taylor-Black (2007) FLC 93-329

Division: Division 1 First Instance

Number of paragraphs: 419

Date of hearing: 20 – 24 July 2020; 10,13 and 28 August 2020; 8 September 2020; 12 – 13 April 2021; 9 – 10 June 2021; 16 – 17 September 2021 and 11 October 2021

Place: Adelaide

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: Daniel John Lawyers

Counsel for the Respondent The Respondent appeared in person

Counsel for the Independent Children’s Lawyer Ms Lindsay

Solicitor for the Independent Children’s Lawyer Shorter Legal Pty Ltd
ORDERS

ADC 1267 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR MERRITT

Applicant

AND:
MS BRUCKNER

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

9 MARCH 2022

THE COURT ORDERS:
1.That all previous orders shall be discharged.
2.That the father shall have sole parental responsibility for X born in 2012 and Y born in 2014 (collectively “the children”) provided that:
(a)The father will contact the mother in writing in connection with any long-term issues and provide his views about any major long-term issues involving the said children;
(b)The father will consult and negotiate with the mother about any such issue by written correspondence by email or by post;
(c)The parties are to make a genuine effort to come to a joint decision about any such issues;
(d)If no agreement is reached between the parties then the father shall make the final decision and advise the mother in writing of the decision about any such issue.

3.That the children shall live with the father.
4.That the children spend time with the mother as follows:
(a)During school terms from the conclusion of school on Friday (or at 3.00 pm if a non-school day) until the commencement of school on the following Wednesday (or 9.00 am if a non-school day) and each alternate period thereafter provided that the operation of this order shall be suspended during school holidays.
(b)Commencing in April 2022, during each short school holiday period for a period of seven (7) consecutive days commencing on the last day of term until 5.00 pm on the middle Saturday of the school holiday period, with the term time spending commencing on the first Friday of the school term.
(c)Commencing in the December 2022/January 2023 Christmas school holidays, on a week about basis from the conclusion of school on the last day of term until 5.00 pm on the Friday following and on a week about basis thereafter and should the holiday period be for an odd number of weeks then the last week of the school holidays should be divided in half with handover to be at 5.00 pm on the Wednesday of the final week with the father to have the children in his care and that the time that the children spend with the mother during the school term shall recommence on the first Friday of the school term.
(d)On Mother’s Day from 9.00 am until 5.00 pm provided that the mother’s time shall be suspended from 9.00 am until 5.00 pm should the children be in the care of the mother on Father’s Day.
(e)From 4.00 pm on 24 December 2022 until 4.00 pm on 25 December 2022 and during the same time in each alternate year provided that the children are in the care of the father from 4.00 pm on 25 December 2022 until 4.00 pm on 26 December 2022 and during the same time in each alternate year.
(f)From 4.00 pm on 25 December 2023 until 4.00 pm on 26 December 2023 and during the same times in each alternate year provided that the children are in the care of the father from 4.00 pm on 24 December 2023 until 4.00 pm on 25 December 2023 and during the same times in each alternate year.
(g)On the birthday of either child or the mother’s birthday as follows:
(i)If a school day from the conclusion of school until 7.30 pm;
(ii)If a non-school day from 3.00 pm until 7.00 pm provided that if the birthday of either child falls on a day when the children would not otherwise spend time in the father’s care pursuant to these orders then the times in which the children are in the care of the mother shall be suspended as follows:
(1) If a school day from the conclusion of school until 7.30 pm;
(2) If a non-school day from 3.00 pm until 7.00 pm.

(h)At such further and other times as shall be agreed between the parties in writing.

5.That if handovers do not take place to and from the children’s school and the parties are not able to agree a handover venue then in the absence of agreement handover shall take place at the Suburb O Police Station.
6.That each party shall ensure the delivery of each child at their school or schools on each day on which they are due to attend at school and on time for the commencement of the school day during any time in which they are in the care of either party.
7.That in the event that either party is delivering the children or either of them to school that the party shall deliver the child to the vicinity of the appropriate classroom and then promptly leaving within five (5) minutes of the delivery of the child or children unless with the prior written invitation and/or consent of the school.
8.That each party shall ensure the children attend any current or agreed extra-curricular activities engaged in by the children or either of them whilst in the care of either parent.
9.That other than is prescribed by these orders, the mother is restrained and an injunction granted restraining her from:
(a)Attending upon any event conducted by any school at which the children attend or causing or permitting any other person to do so other than:
(i)For parent/teacher interviews;
(ii)For sports days which involve either child;
(iii)For the end of year concert;
(iv)For any extra-curricular sporting activities in which either child is participating conducted on the school premises; or
(v)For any other school event to which the mother has been invited to attend.

10.That the parties are restrained and an injunction granted restraining each of them from:
(a)Discussing adult issues including disseminating information pertaining to these proceedings whether in the presence of the children or allowing any other third party to do so;
(b)Posting material to social media related to the within proceedings, the allegations raised in the within proceedings or the parties involved in the proceedings or causing or permitting any other person to do so;
(c)Attending within 100 metres of the residence of the other party save and except as may be agreed between the parties;
(d)Attending or contacting the other party at their place of work; and
(e)Contacting any employer or work colleague of the other party at any time other than via a legal representative for lawful purpose.

11.That each party shall communicate with the other via the AppClose App or in writing via text message or email.
12.That the father shall ensure that both children are fully immunised in accordance with the Australian Government National Immunisation Program standards and maintain the immunisation program in accordance with its protocols.
13.That each party shall forthwith inform the other of any serious illness or injury sustained by the children or a child whilst in their care.
14.That each parent shall provide the other with particulars of any medical or dental treatment required or received by the children together with the name and address of the treatment provider and/or location where the child or children is/or are a parent.
15.That each party shall provide the other with any prescription prescribed medications for the children and the other party shall administer those medications during periods when the children are living with them.
16.That both parties shall keep the other informed of their current residential address, telephone number and email contact details and shall advise of any change within seven (7) days of such change taking place.
17.That each party shall be at liberty to travel interstate with the children during their time provided that each parent shall provide the other parent with seven (7) days notice of the proposed date of travel with the following information:
(a)Flight and/or accommodation details; and
(b)Contact details in case of an emergency.

18.That the appointment of the Independent Children’s Lawyer be discharged.

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

The proceedings between Mr Merritt (“the father”) and Ms Bruckner (“the mother”) concern the future parenting arrangements for X born in 2012 and Y born in 2014 (collectively “the children”).
By order made 9 August 2016, an Independent Children’s Lawyer (“ICL”) was appointed to represent the interests of the children.
The hearing commenced on 20 July 2020 and after five days of evidence, the matter was adjourned part-heard to 10 August 2020. Following a further two days of evidence, on 13 August 2020 the trial was adjourned part-heard to 21 August 2020 with this date being vacated and the trial resuming on 28 August 2020. On 28 August 2020, the trial was again adjourned part-heard to 8 September 2020 on which date the evidence was concluded. Orders were made for the parties to file and serve written final submissions with judgment reserved on 15 October 2020.
Consequent upon the hearing of the father’s Application in a Case filed 19 January 2021 and the mother’s Response to an Application in a Case filed 17 February 2021, on 23 February 2021 orders were made giving leave to the parties to reopen the evidence and listing the further hearing to commence on 12 April 2021.
The mother failed to appear on the adjourned date and noting that the mother also did not appear on 13 April 2021, the hearing was further adjourned to 9 June 2021 with an order being made that the mother deliver up the children to the father, that they live with him and spend time with the mother as may be agreed or as further ordered.[1]
[1] See Merritt & Bruckner [2021] FamCA 279 and Merritt & Bruckner (No 2) [2021] FamCA 282.
The interim parenting arrangements were listed for further hearing on 12 May 2021 and on 14 May 2021, [2] the following orders were made until further order:
[2] See Merritt & Bruckner (No 3) [2021] FamCA 304.
1.        That orders 10 and 11 of orders made 13 April 2021 be discharged.
2.That the children X born in 2012 and Y born in 2014 (“the children”) live with the father.
3.        That the children live with the mother as follows:
(a)From the conclusion of school on Friday to the commencement of school on Monday commencing 14 May 2021 and each alternate weekend thereafter; and
(b)From the conclusion of school on Friday to 10.00 am on Saturday commencing 21 May 2021 and each alternate week thereafter.
4.That the handover venue for the parties when the children are not at school shall be the Suburb O Police Station or such other place as the parties may agree.
Further evidence was heard on 9 and 10 June 2021 and 16 and 17 September 2021, with final submissions heard on 11 October 2021 with judgment reserved.
For reasons that will be the subject of discussion, the father and the ICL were represented by counsel, whereas the mother appeared as a self-represented litigant. The father had also filed an application on 18 October 2019 alleging that the mother had contravened orders made on 8 November 2018. At the commencement of the final hearing, the father elected not to proceed with the Contravention Application and it was dismissed with no further order.
BACKGROUND
The father was born in 1970 and is fifty-one years of age. He is employed by a product distributor to oversee the management of various retail outlets.
The mother was born in 1974 and is forty-seven years of age. The mother is not currently in employment.
The parties commenced cohabitation in 2010 and separated on the father’s case in 2015 and on the mother’s case in 2014. The mother and the children remained in the parties’ rental accommodation until October 2015.
The parties differ as to the extent of their separate involvement with the parenting of the children and the nature of their relationship with each other.
The mother asserts that the father was financially irresponsible and following the failure of a business enterprise, exhibited behavioural and mood changes with bouts of anxiety and aggression. The mother considered that the father was controlling and coercive in his conduct towards her and became disinterested in the children, choosing to have little involvement with their day to day care.
The father concedes that the mother rendered the children’s primary care, but denies that he was aggressive or anxious towards the mother or the children, and that when he was not working, he participated fulsomely in the children’s ongoing care and development.
The father strongly argues that he had a close emotional attachment to the children and they were comfortable and happy in his presence.
It is his position that the mother was anxious about the children and sought to exclude him from their lives.
The father commenced proceedings on 8 April 2016, followed by an Amended Initiating Application filed 19 July 2016. The mother filed her Response to Initiating Application on 5 August 2016.
The interim parenting arrangements have their genesis in an order made 8 November 2018 which provided for the parties to have equal shared parental responsibility for the children; that they live with the mother and spend time with the father as follows:
(1)From the conclusion of school on Friday until the commencement of school on the following Wednesday in each alternate week;
(2)For one half of each school holiday period as may be agreed, but in default:
(a)For the second half of the short end of term holidays; and
(b)On a week about basis during the Christmas school holiday period.
The interim orders also provided for the children’s enrolment at B School and an order restraining the mother from taking the children for any consultation with Dr C, or authorising that the children undertake any surgical procedure without the written consent of the father.
The orders also provided that any purported ill health experienced by the children or either of them would not necessarily be taken to suspend the father’s time with the children.
By Amended Initiating Application filed 20 December 2019, the father sought sole parental responsibility for the children, that the children live with him and that they spend time with the mother from 10.00 am until 5.00 pm every Saturday.
The orders sought by the father were the subject of amendment in his case outline document filed in anticipation of the final hearing.
The orders sought by the father at the commencement of trial are summarised as follows:
(1)That the father have sole parental responsibility for the children provided that he shall consult with the mother in order to reach consensus as to any long-term issues.
(2)That the children live with the father.
(3)That the children spend time with the mother:
(a)Commencing 28 days after the delivery of judgment, each alternate weekend from the conclusion of school Friday until 5:00 pm Sunday (or 5:00 pm Monday should Monday be a public holiday or non-school day);
(b)For the first half of the short term school holidays from the conclusion of school on the last day of term until 5:00 pm on the middle Saturday of the school holiday period;
(c)During the Christmas school holidays from the conclusion of school on the last day of term until 5:00 pm on the Friday following and week about thereafter;
(d)On Mother’s Day from 6:00 pm on the Saturday immediately preceding Mother’s Day to the commencement of school on the following Monday provided that the mother’s time shall be suspended for a similar period to coincide with Father’s Day;
(e)From 4:00 pm on Christmas Day 2020 until 4:00pm on 26 December 2020 and each alternate year thereafter provided that the children are in the care of the father from 4:00 pm on 24 December 2020 until 4:00 pm on Christmas Day in 2020 and each alternate year thereafter;
(f)From 4:00 pm on 24 December 2021 until 4:00 pm on Christmas Day in 2021 and each alternate year thereafter, provided that the children are in the care of the father from 4:00 pm on Christmas Day in 2021 until 4:00 pm on 26 December 2021 and each alternate year thereafter;
(g)For Easter as follows:
(i)From the conclusion of school Maundy Thursday until 10:00 am Easter Sunday in 2021 and each alternate year thereafter provided that the mother’s time shall be suspended from 10:00 am Easter Sunday until the commencement of school on Tuesday or 9.00 am if a non-school day;
(ii)From 10:00 am on Easter Sunday until the commencement of school or 9:00 am if a non-school day in the year 2022 and each alternate year thereafter provided that the mother’s time shall be suspended from the conclusion of school Maundy Thursday or 6:00 pm if a non-school day until 10:00 am Easter Sunday;
(h)On the children’s birthday or the mother’s birthday as follows:
(i)If a school day from the conclusion of school until 7:30pm;
(ii)If a non-school day from 3:00pm until 7:00pm provided that if the children’s or the father’s birthday falls on a day when the children would not otherwise spend any time in his care, then the mother’s time shall be suspended as follows:
(1) If a school day from the conclusion of school until 7:30 pm;
(2) If a non-school day from 3:00 pm until 7:00 pm.
(i)At such further or other times as may be agreed between the parties.
(4)That the children spending time with the mother is conditional upon her ensuring that they attend school whilst in her care.
(5)That the mother be restrained from attending at the children’s school at any other time other than for a parent’s arranged time or occasions when parents are ordinarily invited.
(6)That the mother be restrained from contacting or approaching the father’s partner Ms F or attending at Ms F’s workplace or contacting Ms F’s employer or colleagues.
(7)That the parties be restrained and an injunction be granted restraining each of them from:
(a)Discussing adult issues with the children;
(b)Denigrating the other party to or in the presence of the children or allowing any other third party to do so; and
(c)Attending:
(i)Within 100 metres of the other parties’ residence save and except as otherwise agreed between them in writing;
(ii)Attending or contacting the other at their place of work;
(iii)Contacting any employer or work colleague of the other at any time;
(8)Handovers shall take place at the children’s school or from the OTR service station at the corner of V Street and W Street, Adelaide.
(9)That the father ensure that both children are fully immunised in accordance with the Australian Government National Immunisation Program Standards.
(10)That each party shall communicate with the other of them via a communication app, text message or email.
(11)That the parties shall ensure the children attend at their school on an each day basis and should either child be seriously unwell such that he or she is unable to attend school, then the parent shall provide the other with a medical certificate within 24 hours which states with specificity the nature of the illness from which the child suffers and the severity of that illness.
(12)That the parties shall inform each other of any serious illness or injury sustained by a child in their care.
(13)That the parties shall exchange information as to medical treatment, the contact information for any health provider for the children and shall exchange and administer any prescription medication for the children.
(14)That the parties are at liberty to attend all school functions and activities to which parents would ordinarily attend, including parent teacher interviews and extracurricular activities involving the children.
(15)That the parties keep each other informed as to their current residential address and contact details.
(16)That each party be at liberty to travel interstate with the children provided that the following information is provided to the other party:
(a)an itinerary;
(b)flight and/or accommodation details; and
(c)contact details for the duration of the holiday.

The mother sought orders as set out in her Amended Response to an Application in a Case filed 8 July 2020, summarised as follows:
(1)That the mother have sole parental responsibility for the children;
(2)That the children live with the mother;
(3)That the father spend time with the children each Saturday from 10:30 am until 4:30 pm; and
(4)That any time the children spend with the father only take place when the father is not working and is available to be primarily responsible for their care.
During the mother’s evidence, she made an application to amend the orders sought by her to now reflect the more generous orders made on 8 November 2018. By reference to the written submissions of the mother provided on 11 October 2021, she now seeks that the father’s time during school terms be limited to the period from the conclusion of school on Friday to the commencement of school on the following Monday and in each alternate weekend thereafter.
At the conclusion of the proceedings in September 2020, counsel for the ICL submitted that orders should be made in terms of a draft Minute of Order which provided for the parties to have equal shared parental responsibility for the children and that they live with the father from the conclusion of school on Friday to the commencement of school on the following Wednesday and in each alternate week thereafter, for one half of each school holiday period and on other special occasions. The children would live with the mother all other times.
The ICL proposed that each of the parties are at liberty to have the children immunised in accordance with the recommendations and guidelines of the Australian Government Department of Health National Immunisation Program.
The issue of immunisation and the preparedness of each of the parties to administer childhood vaccinations was raised during the course of the proceedings when evidence was presented that indicated the children had not received certain vaccinations. The father was keen to have the children’s childhood vaccinations brought up to date, whereas the mother opposed the father’s position and presumably that of the ICL and remains ambivalent and as yet undecided as to which vaccinations should be administered and when that should occur. Given that the issue of the children’s vaccinations had not been raised at the commencement of the proceedings, the trial was adjourned part-heard to enable evidence given by Dr P to be considered by the mother.
Final submissions were received from each of the parties and the ICL in September 2020. The submissions of the father and counsel for the ICL were made orally whereas upon the mother’s application, leave was given for her oral submissions to be supplemented by further submissions in writing.
As part of the submissions, but consistent with the position as stated by the father following the interim orders placing the children in his primary care, he sought that he have sole parental responsibility for the children, that they live with him and spend time with the mother summarised as follows:
(1)From the conclusion of school on Friday (or 3.00 pm if a non-school day) until the commencement of school on Monday (or 9.00 am if a non-school day), and each alternate weekend thereafter;
(2)Commencing in April 2022, during each short school holidays for a period of seven consecutive days; and
(3)Commencing in the December 2021/January 2022 school holidays, on a week about basis.
In addition, the father seeks that the children spend time with each parent on special occasions including Christmas, Easter, Father’s Day and Mother’s Day.
It is a point of significance in the proceedings that an order is sought that when in the mother’s care, she shall ensure that the children attend school on a regular basis.
For her part, the mother seeks sole parental responsibility for the children, that they live with her and spend time with the father as follows:
(1)Each alternate weekend from the conclusion of school Friday (or 4.00 pm on a non-school day) to the commencement of school on the following Monday (or 9.00 am if non-school day).
(2)For the second half of the school holiday period at the end of terms one, two and three from 9.00 am on the second Monday until the commencement of school on the following Monday (or 9.00 am if non-school day).
(3)In 2021 and each alternate year thereafter, for the Christmas school holiday period commencing the second Monday from 9.00 am and on each alternate week, for a total of 21 days.
(4)In 2022 and each alternate year thereafter, for the Christmas school holiday period commencing the first Monday from 9.00 am on each alternate week, for a total of 21 days.
The mother proposes that the children will spend time with each of the parties during the Christmas period each year, on special occasions including Mother’s Day, Father’s Day, the children’s birthdays and the parties’ birthdays.
Whilst the mother denies that there is any evidence which would support a finding she is non other than diligent in ensuring that the children attend school other than when they are not able to do so by reason of medical circumstances or ill health, the mother also seeks orders that reflect her concerns as to the children’s engagement with their school. The mother seeks that she be at liberty to have Y repeat year level 2 in 2022 and that each of the parties advise the other of any absence of the children from school.
The orders sought by the ICL at the conclusion of the part-heard hearing represents a significant change to the orders promoted at the conclusion of the first tranche of the proceedings in September 2020.
The ICL now seeks that the father have sole parental responsibility for the children, that the children live with the father and that they spend time with the mother summarised as follows:
(1)During school term on each alternate weekend from the conclusion of school on Friday (or 5.00 pm if non-school day) until the commencement of school on Monday (or the commencement of school on Tuesday if the Monday is non-school day);
(2)For the first half of the short end of term school holidays from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday of the school holiday period and the term time cycle week cycle shall recommence from the first Friday of the school term;
(3)During the Christmas school holidays commencing from the conclusion of school on the last day of term until 5.00 pm on the Friday following and on a week about basis thereafter and should the holiday period be for an odd number of weeks then the last week of the school holidays shall be shared with handover to be at 5.00 pm on the Wednesday of the final week with the father to have the children in his care on the last weekend of the holiday period and the school term time spending to recommence on the first weekend of the school term.
In addition, the ICL promotes orders that the children spend time with each of the parties on Mother’s and Father’s Day, over the Christmas and Easter periods and on each of the children’s birthdays.
Consistent with the father’s concern as to the ability or willingness of the mother to ensure the children regularly attend school when in her care, the ICL seeks extensive orders to ensure, as best as possible, the children’s regular school attendance.
CHRONOLOGY

…/…/1970 Date of birth of the father

…/…/1974 Date of birth of the mother

2010 Commencement of cohabitation

…/…/2012 Date of birth of X

…/…/2014 Date of birth of Y

October 2014 Date of separation of the parties on the mother’s case

April 2015 Date of separation of the parties on the father’s case

8/04/2016 Father files an Initiating Application, commencing the proceedings

19/07/2016 Father files an Amended Initiating Application

5/08/2016 Mother files a Response to Initiating Application

12/02/2018 Father files a further Amended Initiating Application

25/09/2018 The proceedings are transferred to the Family Court of Australia and the trial dates of 5, 6 and 7 December 2018 are vacated.

8/11/2018 Following argument in respect of interim orders, judgment is delivered in respect of orders that the children live with the mother and spend time with the father from Friday to Wednesday of each alternate week and half of all school holidays.

18/10/2019 Father files application for contravention of orders

10/12/2019 Orders made pursuant to section 102NA(2) of the Family Law Act 1975 (Cth)

20/12/2019 Father files a further Amended Initiating Application

8/07/2020 Mother files an amended response (via an Amended Response to an Application in a Case) setting out final orders sought
DOCUMENTS RELIED UPON

The father relies upon the following documents:
(a)Amended Initiating Application filed 20 December 2019;
(b)Affidavit of the father filed 20 December 2019;
(c)Case Outline dated 20 July 2020; and
(d)Draft Minute of Order tendered 11 October 2021.
The mother relies upon the following documents:
(a)Amended response (Amended Response to an Application in a Case) filed 8 July 2020;
(b)Trial affidavit of the mother filed 8 July 2020;
(c)Affidavit of the mother filed 19 February 2021;
(d)Affidavit of the mother filed 22 February 2021;
(e)Affidavit of the mother filed 3 June 2021; and
(f)Mother’s written submissions and Minute of Order of 11 October 2021.
The ICL relies upon the following documents:
(a)Family Assessment Report dated 24 September 2017 (“first report”);
(b)Family Assessment Report dated 24 August 2018 (“second report”); and
(c)Updated Family Report dated 16 December 2019 (“third report”).
THE EVIDENCE
At the commencement of the trial, the Court highlighted the provisions of Div 12A of the Family Law Act 1975 (Cth) (“the Act”) and in particular, whether the Court should dispense with the provisions of s 69ZT and apply the excluded parts of the Evidence Act 1995 (Cth) (“the Evidence Act”).
Neither party, nor counsel for the ICL spoke against the application of the provisions of s 69ZT of the Act.
I consider that the principles of s 69ZN of the Act would be better served by receiving the evidence of each of the parties relied upon, but exercising my discretion under s 69ZT(3) of the Act as to the weight which would be given to the evidence, particularly if it is contentious.
Neither party, nor the ICL considered it necessary to raise objections to affidavits sought to be relied upon and in circumstances where the mother appeared as a self-represented litigant and the Court was assisted by the involvement of an ICL, I did not consider the proceedings would be assisted if the Court raised objections to affidavits of evidence by the application of the family law rules and s 135 of the Evidence Act.
On 10 December 2019, orders were made pursuant to s 102NA(2) of the Act. At the time, both parties appeared as self-represented litigants.
On 5 December 2019, the father referred to orders made by Judge Cole on 25 September 2018 in the following terms:
1.Pending further Order, and without admission the parties are restrained and injunctions are granted restraining each of the them from:
a. attending at the others place of work;
b. attending within 100m of the other parties’ residence; and
c.[d]enigrating the other to any third party having an involvement with the said children.
The orders were made pursuant to s 68B of the Act.
The order has its genesis in orders made in 2016 and an order made by consent on 16 October 2017 (amended on 17 October 2017) in the following terms:
10.Each party be restrained and an injunction be granted restraining each of them from:
a.discussing the proceedings with or in the presence or hearing of the children or allowing any other person to do so;
b.denigrating or abusing the other of them or members of their family in the presence or hearing of the children or allowing any other person to do so; and
c.drinking alcohol to excess during any periods when the children are in their care by this Order.
It is conceded that the basis for the order of injunction and restraint predicated upon an assertion by each of the parties that the orders made were necessary for their separate personal protection. As a result of the father’s application, the Court considered that the mandatory ban in respect of each of the parties cross-examining the other would apply.
The father was ultimately successful in obtaining representation whereas the mother was not successful.
After a number of adjournments, the mother conceded that she was unlikely to secure representation, and in any event, it was her clear and properly considered position that she wanted to cross-examine the father.
Consideration was given by the father’s counsel and the mother to the discharge of Order 1 of Orders made 25 September 2018. Both parties sought that the Order be discharged.
Consideration was then given as to whether the circumstances surrounding the parties would invite the Court to consider whether the Court would exercise its discretion pursuant to s 102NA of the Act. Neither party sought the imposition of a ban prohibiting the father being cross-examined by the mother and in the absence of any opposition, the Order made pursuant to s 102NA of the Act was discharged.
Issues of contention between the parties
The parties each seek to have sole parental responsibility for the children. The ICL seeks that the father have sole parental responsibility. The mother’s position is that parental responsibility should sit with the parent who retains the primary care of the children.
Each of the parties seek primary care of the children.
The father considers that it is only an order of sole parental responsibility, together with the primary care of the children, that will ensure that the children properly attend school and are able to engage in curricular and extracurricular activities without the mother causing conflict.
Of particular concern to the father, is the inability of the parties to reach agreement that would ensure a consistent approach to the management of the children’s ongoing health needs. The father contends that the current situation has placed the children’s health at risk and the reluctance of the mother to attend to the children’s medical, dental and other needs, including the children’s vaccinations being brought up to date, places them at risk.
The mother seeks sole parental responsibility because she considers the father is not properly attuned to the medical and dental needs of the children.
She considers that the domestic environment proposed by the father is inappropriate, on the basis that the accommodation is inadequate for the number of occupants which include the children of the father’s current partner.
The mother highlights that by sheer dint of the number of people in the father’s home, there are water restrictions which have not allowed the children to wash daily and have caused recurrent irritated genitals, urinary tract infections and other hygiene related conditions.
The mother further submits that the father has an unhealthy relationship with alcohol and that his employment in the food and drink industry will have the likely consequence of normalising excess alcohol consumption.
The mother challenges the fitness and suitability of the father for primary care by reference to mental health issues exacerbated by bankruptcy, changes of employment and drug/alcohol issues.
The mother does not consider that the father’s relationship history augers well for the longevity of his current relationship with his partner.
The mother alleges that the father and his partner have conspired with the children’s teacher and school principal to minimise an assault on X and the mother by a teacher and to poison the school cohort and environment against the mother. The mother considers that the father’s application for primary care is motivated by a desire to reduce or extinguish his child support obligations rather than a genuine intention to support the children.
The mother does not consider the father’s current partner Ms F to be a person of high repute and that her conduct and involvement with the children is contrary to their best interests.
The mother does not accept that the family consultant is impartial and contends that she is strongly aligned with the father and has therefore suborned her professional standards in order to support the father’s application. The mother considers that the ICL has not acted fairly and is aligned with the father.
The father
The father gave evidence that he was a hospitality manager and worked 9.00 am to 5.00 pm Monday to Friday. If the children were in his care, he would be able to arrange their attendance at school.
Following an enquiry by the father, he received a preliminary report dated 3 June 2020 covering Y’s academic progress for terms one and two. Of particular relevance to the father’s case is the following extract:-
As you may know a student’s academic performance is closely linked to their attendance. In writing this letter to you Y has been absent from school for 23 days this year which equates to nearly 5 weeks, this is not including home learning due to COVID, he has also left school early on 5 occasions.
I certainly notice a difference in Y when he has been away for a period of time. When he comes back to school and in class it takes him a while to refocus on his learning, particularly his writing and his bookwork, as well as his persistence in his work.[3]
[3] “MFI-2”.
The father sought to further emphasise his concern as to the poor school attendance of the children by reference to the attendance record for Y and X at B School for the period 30 January 2020 to 3 July 2020. The father considered that the attendance records (Exhibit “3”) indicate that X was absent for 34 days and Y for 31 days and that most of the absentee days did not coincide with any period that the children were with the father.
The father further contends that the mother rarely advised him of any medical or dental procedures that affect or impact the children. Whilst it will be the subject of separate consideration, the parties were not able to agree a vaccination strategy for the children.
Some of the absences were explained by medical and dental procedures, although not all health related absences were explained by a medical certificate.
It is to be understood that the mother strongly refutes the inherent accuracy of the school attendance records generally and it is her contention that school absences should not be considered out of the ordinary or without good cause or reason.
The father considers that the mother is unable to ensure that the children properly attend school and that their absence from school adversely affected their academic advancement.
The father also ascertained from a consideration of the school records that where there was a purported illness of one of the children explaining their absence from school, no information was provided to the father.
In particular, the father was not aware of dental procedures involving the children that required a general anaesthetic to be administered.
Under cross-examination by the mother, the father agreed that he was present at some dental appointments but that these were always arranged by the mother.
It was only after orders made on 8 November 2018 that the father considers he was able to gain some information as to the children’s medical and dental care. Following a dental visit on 4 February 2019, the father considered that the children’s dental hygiene and health was compromised whilst in the mother’s care.
The mother has long held a concern as to the nature of the father’s employment as a hospitality manager. The issue of the father’s employment arrangements have been a matter of significant contention between the parties. The mother has sought details of the father’s employer and his work duties and arrangements. The father has resisted. The father contends that the mother harassed his previous employer for details concerning the father’s work arrangements.

The father gave evidence that he had significant flexibility in his work arrangements and did not consider that his employment obligations would adversely impact upon his ability to take on the primary care of the children.
The father gave evidence of his current accommodation arrangements and of his relationship with Ms F.
The mother presents with ongoing animosity towards Ms F and considers that both Ms F and the father present as an ongoing risk to the children. The mother contends that both the father and Ms F consume alcohol to excess and when intoxicated are incapable of looking after the children but of more significant moment, are physically aggressive with them.
The father acknowledged that there had been some health issues affecting the children and in particular that X has presented over time with a persistent urinary tract infection and Y with an upper respiratory tract infection.
In January 2019, the father acknowledges that Y presented with a penial discharge and a sore penis.
The mother asserted that both the father and Ms F were either negligent in their care of the children or were indifferent to the children’s medical complaints.
The father’s response was that he was aware of the various medical conditions affecting the children and that at all times he attended to the children’s health needs.
On 25 April 2019, whilst in the care of the father and Ms F, X fell off her scooter and was taken to hospital. It is possible that X may have suffered a concussion and experienced a momentary loss of consciousness. X spent approximately four hours in hospital before she was discharged.
The father was asked why he did not attend the hospital immediately nor contact the mother as a matter of urgency.
The father’s response was that the first priority was to ensure that X received appropriate medical treatment in case there was a more serious problem. The father contends that there was not and determined that the mother would not be immediately informed in circumstances where the parties’ level of conflict was high and to do so would only further inflame what was already a highly dysfunctional parental relationship.
Exhibit “9” sets out text message communications between the parties consequent upon the father’s advice that X had been checked out at the hospital after falling over on her scooter. The father’s advice was that there was nothing to worry about and there was no diagnosis of concussion or other injury. The exchange between the parties is aggressive.
Counsel for the ICL highlighted that there had been significant issues in 2019 when the father attended the children’s school at the commencement of their time with him.
On one occasion the mother had attended with a number of her family members.
The children were distressed at the confrontation between the parties and their family members and there have been a number of occasions when the school principal has been involved in a conflicted handover.
The father complained that the mother openly denigrates him in the presence of the children.
The issue was relevant in that the father was asked to consider the basis for X’s initial reluctance to transition into his care.
Consequent upon orders made 13 April 2021 that required the mother to deliver the children to the father whereupon they would live with him and spend time with the mother as may be agreed or as further ordered and the decision to reopen the proceedings, the father gave further evidence on 10 June 2021.
The father confirmed that he and Ms F still remained at the same address and that his employment arrangements had not changed.
The father remained concerned with the level of the children’s absenteeism up to their transition into his care following orders made 13 April 2021.
The father did not see the children from 27 November 2020 until February 2021.
The children came into the father’s primary care on 14 April 2021. His evidence is that there were no difficulties and whilst X did not attend school for a week arising from a dry cough, it is the father’s observation that the children settled in well and without incident in his care.
There did not appear to be any exacerbation on underlying health issues impacting upon the children, however, the father was aware that the medical practice that the father intended to utilise for X had been instructed by the mother not to see her.
The father also tendered what he understood to be extracts from the mother’s Facebook site in or about March 2021. The tenor of the Facebook posts are to the effect that the father is a bad father and cannot tell the truth, that the children’s school principal Mr M is a liar and that my conduct as the trial judge was dishonest such that orders made, placing the children in the primary care of the father, have placed the children at risk.
It could not be said that the father is blameless in terms of exhibiting conduct that was either intended to or was likely to inflame the poor and dysfunctional relationship between the parties.
On 14 April 2021, the father advised BB Services that the care arrangements for the children had changed and that they were now in his care. As a result, his then ongoing child support was reduced to zero. The father did not take steps to let the mother initially see the children and facilitated only one telephone call between the mother and the children to coincide with Mother’s Day.
The father did refer to an incident raised by the mother wherein she alleges that on 20 March 2021, the father placed the children but in particular Y at risk of being drowned. The father’s version was that the children were swimming in a neighbour’s pool. The father was present. The children were playing with each other and Y tried to get on top of X’s shoulders whilst they were trying to get a ball. Y apparently went under the water and when he surfaced he was crying.
The father denied that the children were at any risk and in any event he was present and observing the children at all times.
The father decided that he would enrol the children in swimming lessons and the initial assessment of the instructor was that the children were not at an acceptable stage.
The children’s involvement with their school is a pivotal issue in the proceedings.
The father’s evidence is that the children have been attending school with much improved frequency and regularity, that they appear to be progressing well academically and socially and that he considers he has a good relationship with the school principal Mr M, other teachers and the school staff generally.
The mother
The mother relied upon numerous affidavits filed both in respect of the substantive hearings and in response to the interim orders which resulted in the children being delivered up into the primary care of the father.
The mother’s position is summarised in her written submission document filed 15 October 2021.
The mother relies on her trial affidavit filed 7 July 2020, her attached book of documents of some several hundred pages, subsequently filed affidavits together with the exhibits tendered during the trial from 20 July 2020 to the conclusion of the reopened proceedings in June 2021.
The mother remains concerned that the Court would place weight upon a report prepared by Ms H following the joint instructions of the parties and the order of Judge Cole of 16 July 2018. The report was published by Ms H on 24 August 2018. The mother is concerned that any reliance upon the report would be unfair and potentially prejudicial to her. The mother asserts that she has not given consent to the report being relied upon and that in any event, Ms H did not admit that she had a potential conflict of interest in that the father and Ms H shared a mutual friend.
The mother also considers that there has been an “error in law at trial”[4] arising from her assessment that the father’s counsel did not appear to be prepared and sought leave to rely upon the evidence of Dr P, concerning the medical history of the children and whether any good reason existed for the children not to receive routine vaccinations as and when recommended.
[4] Written submissions of the mother filed 15 October 2021, page 2.
A continuing theme throughout the mother’s case was to allege that the ICL was not impartial but rather was supportive of the orders sought by the father for reasons other than merit. In particular, the mother was disparaging of the purported misconduct of the ICL in calling Mr M, the children’s school principal, to give evidence.
The mother contends that she was affectively ambushed by the evidence of Mr M, in circumstances where he did not file an affidavit and she did not have an opportunity to adequately respond to his evidence.
The mother does not concede that there is any relevant history of school absenteeism that can be connected to the children’s time with her.
The mother accepts that the parties have not been able to engage in effective communication in respect of the children’s health. The mother is consistent in her criticism that the father is dismissive of the children’s ill health and will often send the children either to school or return them to the mother in an unwell state.
The parties are not agreed as to parental responsibility. The mother seeks sole parental responsibility but insists that she will support the children’s relationship with the father. The difficulty she sees is that the father has a history of alleged non-compliance with orders and unless they are drafted with precision, he will “continue his coercively [sic] control and manipulation over the [m]other”.[5]
[5] Ibid, page 4.
The mother continues to allege a history of family violence, neglect and the children being placed at risk. A risk factor is her view that the father’s current accommodation, comprising Ms F and her three children, constitutes overcrowding and provides an unhealthy environment which either contributes to the children’s ill health or is a direct cause.
Moreover, the mother says that the children return to her care following their time with the father dishevelled, often unwell and consistently complaining that the father is quick to temper and that they want to leave the father’s home and return to the mother’s primary care.
The mother was keen to highlight discrepancies in the father’s evidence. As is apparent from the evidence, there was significant focus on the children’s education, their attendance at school and the interaction of each of the parties with the school staff and administration.
The father alleged that the mother enlisted the help of members of her family to attend at the children’s school and either intimidate the father or make it difficult for him to effect an orderly collection of the children.
The mother was critical of the father’s knowledge of the school facilities in that she challenged his evidence that the children’s school comprised of a nurses clinic.
There was an incident in April 2019 where the father asserted that the mother and members of her family attended at the school to intimidate him.
The mother denied the basis of the father’s contention and gave evidence of her concern that it was X’s first day back after having attended hospital following the scooter incident.
It is apparent from the mother’s evidence, that the school principal Ms Q considered the possibility of an unpleasant incident that was likely to occur at the end of the school day when the father was to attend and pick up the children given the mother had foreshadowed she intended to collect the children at an earlier time.
The mother conceded that she has had “unusual situations with the school”.[6] There was an incident involving the mother and X’s teacher which necessitated the involvement by Ms Q.
[6] Transcript 23 July 2020, p.6 line 25.
As anticipated, there was a confrontation between the parties. The mother denies that the involvement by her sister and father in any way exacerbated the likelihood of a confrontation in the presence of the children.
The mother’s evidence is that when she and her family members would not relinquish the care of the children to the father, he became aggressive and threatening. The mother’s contention is that the father is quick to temper, has anger management issues and that his behaviour at the school was consistent with her allegation that he had perpetrated family violence throughout their relationship.
It is a reasonable consideration that the incident in 2019 should now be considered far removed from the present circumstances. I am not able to make a finding on the balance of probabilities as to what happened at school in July 2019. Whilst there could be some criticism of the father’s conduct in seeking to pick up the children from school on the day in question, it is apparent that the mother’s conduct was egregious in that her attendance, and the involvement of members of her family, was likely to lead to an unpleasant and distressing confrontation for the children.
In cross-examination the mother accepted that the school incident occurred in April and not July 2019.
The father’s counsel established that there were orders made on 8 November 2018 which were in place in April and July 2019.
The mother was asked to consider an enrolment application completed by her for X’s attendance at B School. On inspection, the mother accepted that she did not include details of the father either as a primary parent or as an emergency contact. The mother chose to include the contact details for her sister.
The purpose of the enquiry by counsel was to provide a foundation for the assertion that the mother was intent on selecting X’s school and was not prepared to accept or invite involvement by the father. The mother denied the assertion and explained that the father did not want to involve himself in the process because he did not want to have any financial involvement with the children’s schooling.
Exhibit “13” comprises the enrolment form. The mother conceded that the enrolment application bears her signature and that under the heading “other parent/guardian/carer not residing at the same address as the student” there are no details relating to the father included.
The mother’s explanation for the omission on X’s enrolment form is her view that unless she has permission from someone, in this case the father, to include their personal details she does not do that. The mother’s explanation is ill-conceived and readily allows a finding that the mother’s consistent position has been to exclude the father from the children’s educational arrangements and was deliberate in her completion of X’s enrolment form to exclude any reference to the father.
An ongoing concern of the mother is that either the father does not recognise or accept that the children have serious health considerations or if he does, he is not prepared to attend to them. It appears that as early as 2016, the mother expressed her concern that the father did not appreciate the serious medical conditions experienced by the children and that his negligence or lack of diligence was a factor in her preparedness to comply with Court orders that the children spend time with him.
Relevant to the evidence of Dr P, exhibit “16” which comprises his report dated 14 January 2016 was shown to the mother for her comment and consideration.
The document refers to Y’s medical history including respiratory conditions.
The mother accepted that Dr P’s report considered the various conditions that impacted Y including middle ear infections, upper respiratory tract and gastrointestinal infections, post rotaviral infections, gastro-oesophageal reflux reactions, reported reactions to immunisation and recurrent spasmodic croup.
The mother broadly agreed with Dr P’s assessment of Y consequent upon his examination of them but also considered that some of the matters he raised required a second opinion.
Dr P’s report recommended that Y should receive ongoing immunisation.
The immunisation history for each of the children as at 23 July 2020 was that their separate immunisation statuses were not up to date. X should have received Diphtheria Tetanus Pertussis and Polio immunisations. Y should have received Measles Mumps Rubella, Meningococcal C, Varicella, Diphtheria Tetanus Pertussis and Polio immunisations.
When challenged by counsel as to why the children had not received up to date immunisations, the mother’s response was that the immunisations were not compulsory and that she considered that to do so might well produce an adverse health outcome.
When asked directly, the mother’s position was that Y should not be vaccinated and that he was a lot healthier without further vaccinations.
The mother conceded that she did not receive medical advice to the effect that the vaccinations would be adverse to the children’s health. Specifically, when asked about Polio, the mother conceded that she had not received advice that Y should not be vaccinated.
The following exchange took place with the mother:
[His Honour:] So is this the position: that you have asked, and you have not received any advice from any medical practitioner as to the advantages or disadvantages of vaccination as against non-vaccination?
[The mother:]   --- I have discussed it with the – with the GPs before, yes.
[His Honour:] But your position is that they haven’t – they have been reluctant, as far as you’re aware – they’ve been reluctant to give you a definitive position about that?
[The mother:]   --- No. No. They have told me there’s risks involved with vaccinating. It’s not just a risk with not having a polio vaccination.
[His Honour:] A medical practitioner has advised you not to have Y vaccinated for polio? Is that what your positon is?
[The mother:]   --- Not specifically.
[His Honour:] I’m assuming that your decision is based upon the medical advice that you have received?
[The mother:]   --- Yes. It’s – it’s – it’s a ---
[His Honour:] I’m not sure why this is so hard?
[The mother:]   --- It’s – it’s – it’s a ---
[His Honour:] I’m trying to get to the bottom of it?
[The mother:]   --- Yes, it’s a well-informed decision, your Honour. You can look in – you can ---
[His Honour:] Well, yes, but you’re saying it’s “well-informed”. Then it’s informed by something, and it would seem to me that the beginning, the middle and the end of the story is - in terms of information, would come – would be medical information. It would come from a ---?
[The mother:]   --- Correct, we just ---
[His Honour:] --- medical practitioner, and no better person than Y’s doctor, who is aware of his ---?
[The mother:]   --- Well, they’re aware of his ---
[His Honour:] --- his circumstances? ---
[The mother:]   --- rotavirus vaccine, and hospitalisation where his bowel turned inside out and he – it was life-threatening. He was four months old. [7]
[7] Transcript 23 July 2020, p.38 line 33 to p.39 line 15.
The mother agreed that there had been no discussion as to whether Y should be vaccinated in respect of Diphtheria Tetanus Pertussis or Polio.
The mother was asked about recent dental treatment for the children that required a general anaesthetic to be administered. The topic of importance was the extent to which the mother had given notice to the father of the treatment, and in particular, that the treatment would involve a general anaesthetic.
The mother’s evidence was that she did not have direct communication with the father but allegedly left a voicemail.
It appears that the dental treatment administered involved the capping of a tooth. It is likely that the procedure was minor and in any event the mother did not consider that the father needed to be informed.
She justified her behaviour in not informing the father by reference to his conduct in not giving her sufficient notice of X being hospitalised when in his care.
Whilst it is difficult to form a concluded position as to the extent to which the mother did or did not seek to keep the father informed of the more significant health issues impacting upon the children, her evidence was sufficiently unreliable in that it underpinned the contention between the parties that the mistrust between them is not confined but rather adversely impacts upon the health needs of the children.

The mother alleges that on 24 July 2018, both she and X were assaulted by X’s class teacher, Ms R. The nature of the alleged assault was that Ms R had dug her fingernail into the mother’s hand. The mother made a formal complaint to the police which necessitated intervention by Ms Q in her capacity as principal of X’s school.
Ms Q provided a Prohibition Notice to the mother that effectively banned her attendance at school for a period of four weeks.
Consequent upon the mother receiving the Prohibition Notice, a protocol was put in place so that the children could be collected from school by members of the mother’s family.
The mother was trenchant in her denial that there was any proper basis for the Prohibition Notice to be issued and further considered that the motivation for the issue of the Prohibition Notice was to cover up the egregious conduct of X’s teacher. The mother’s stated position is adequately summarised in the following exchange:
[Counsel:]       The question was, was there a protocol put in place --- ?---
[The mother:]   --- that she has no right to – to – to let my children go to school without any more disruption of what she was causing, I arranged for my family to drop the – the kids off and pick them up. She further tried to control me in other regards that I told her she had no legal right to do that, especially when she was making something up and heard she was actually covering up for the teacher that your client had actually been filling her in and denigrating me to her, and had actually ---
[Counsel:]       Sir ---
[The mother:]   She had no right to actually restrain my daughter when I went to the school to pick her up.
[Counsel:]Sir, whilst ---
[The mother:]   She should actually be charged. [8]
[8] Transcript 23 July 2020, p.57 lines 15 – 30.
Exhibit “20” comprises an email from the Assessment Resolution Officer of the Department of Education, advising the mother that the communication restrictions imposed would remain in place until the end of term four, 2019.
The mother considered that the conduct of X’s teacher was such that X suffered trauma. The mother considered that X was so devastated by the incident that serious consideration should be given to removing X from her then current school to a different primary school. The mother agreed that she had taken X to a different primary school to pick up the necessary enrolment forms. The mother’s evidence was that the father was complicit in exacerbating X’s trauma because he had forced the child to return to her classroom with Ms R, her class teacher.
It is uncontroversial that on 25 April 2019, X had fallen off her scooter after colliding with a metal pole. It is possible that the child’s head may have come into contact with the pole and there may have been a period of loss of consciousness.
Ms F took the child to the emergency department at Z Medical Centre.
There is an issue between the parties as to the extent of information provided by the father to the mother of X’s admission. Exhibit “9” comprises text message exchanges between the parties and the Z Medical Centre’s notes of X’s admission.
As matters transpired, the child was observed for a relatively short period of time and was not considered to have suffered from concussion or any physical injury.
The mother did not consider that Ms F had a legal right to take the child to the hospital.
The mother agreed that her concern as to Ms F’s involvement was the catalyst for a complaint to be made both to the practices of the Z Medical Centre in allowing a child to be admitted by a person who is not the legal guardian but also a formal complaint was made in respect of Ms F’s involvement. The detail of the complaint against Ms F was that she abused her position as a health professional in the hospital to enable X’s admission without informing the hospital that X was not Ms F’s daughter.
When pressed, the mother conceded that it was proper for Ms F to take the child to the hospital but considered she was deliberate in her non-disclosure of her relationship with X.
A further example of the issues arising from the mother’s concern at what she considers is the inappropriate involvement of Ms F in the care of the children, arises from the extent to which the police have attended at the father’s home to conduct a welfare check.
The mother did not challenge the father’s various reports of what he considered to be the mother’s unnecessary use of police to undertake a welfare check but denied that she was the notifier.
The mother’s response was that she believed there were many people who were concerned about the welfare of the children when in the care of the father and Ms F.
To counter the father’s assertion that the mother or her agents had inappropriately involved the police, she asserted that the police had attended at her home on many occasions and that the children were scared as a result. The mother’s contention is that the father and/or Ms F had caused the police to attend.
When challenged, the mother was unconvincing when given an opportunity to set out either the dates or even the number of occasions that she alleges the police had attended her home. The mother considered that there may have been one occasion in 2020, possibly three occasions in 2019 and one or two occasions in 2018.
When asked why the mother believed that the father and/or Ms F were behind the police attendance, she responded that she recognised an attending police officer as a school friend and had been told by her of the notifier’s identity.
The area was further muddied by the mother seeking a subtle change in her response by way of a concession that there may have been an occasion or occasions that she did instigate a police check.
The mother’s evidence was unconvincing and both she and to a lesser extent the father appeared to have little understanding of the potential for an adverse outcome by the children seeing police intervention.
The intensity of the mistrust between the parties was also highlighted by the mother’s consideration of what appeared to be a series of text messages as between the parties. On initial inspection, the mother commented that they may not be a complete set of text messages passing between the parties and that it was possible the father had changed or altered the content of the text messages for his own purpose.
The more important consideration is that text messaging comprises the only viable method of communication between the parties. To the extent that the particular tranche of messages related to the children’s health, the adverse implication for the children arises from the parties’ inability to communicate irrespective of which form or format is utilised.
The mother was trenchant in her criticism of Ms H, in particular in relation to her observations of the children in the presence of the father, Ms F and subsequently the mother.
The mother formed the view that Ms H was dishonest and for reasons that are not clear, that she was prepared to misrepresent the reality of the children’s poor presentation in preference for her opinion that there existed a beneficial emotional attachment between the children, their father and Ms F.
Paragraph 41 of Ms H’s third report provides a summary of the children’s interaction with the father as follows:
all the children’s time with their father (and similarly, Ms F) was positive and enjoyable to observe. Shared play was engaged, with the children appearing happy, relaxed and playful in their father’s and Ms F’s care.
Whilst the mother was not present and cannot reasonably be expected to comment on the observation, because she considered Ms H to be dishonest, the mother was not prepared to accept that the children have a good relationship with their father.
Counsel put to the mother the observations of Ms H of her involvement with the children at paragraph 43 of the third report:
In contrast, significant concerns were raised as a result of the observations of the mother’s time with the children. Rather than this time being focused on shared play and positive interaction, 15 of the 20 minutes were spent with Ms Bruckner continually either questioning the children about her concerns for them or, equally, X spontaneously providing this information to her mother.
In attempting to put into context why the mother did not consider the observations of Ms H to be a fair reflection of her relationship with the children, the mother’s following response is informative:
[Counsel]:       So you’re saying that that’s not a fair reflection of ---?
[The mother]:   --- No, definitely not.
[Counsel]:       --- your time with the children?
[The mother]:   --- She has been very, very dishonest. So the children hadn’t seen me. X was actually not well when she saw me, and they couldn’t wait to tell me what was going on in their father’s care. Ms [H] actually made me wait outside on a bench. The children were quite – quite anxious when they came out to the bench, wondering why she had undermined me in front of my children. And they had all stood around the door waiting for me to arrive, giving them the impression that something was wrong with me. Ms [H] has ---
[Counsel]:       Well, let’s --- ? ---
[The mother]:   --- has not conducted her appointments very honestly. [9]
[9] Transcript 24 July 2020, p.163 lines 8 – 18.
Counsel for the ICL questioned the mother as to the children’s immunisation history. As is apparent from the mother’s strong objection to the evidence of Dr P, she considers that given the underlying health issues affecting the children, the ongoing immunisation of the children should not be considered as being without risk.
The mother referred to Y having a life threatening episode following a Rotavirus vaccination. The mother’s evidence was that Y needed emergency surgery.
The mother was taken through a history of emails exchanged between the parties which highlight the increasing conflict between them. Following the incident at the children’s school in April 2019, the father sent an email to the mother on 16 April 2019 which included the following remarks:
Your selfish actions to keep them from this are wrong and you will need to explain to them and the judge why you did this. You need to move on and stop thinking of your selfish vindictive needs and think about the kids. If you cause another scene at school on the 29^th by trying to interfere with our time i will involve the police….again.[10]
(As per the original)
[10] Father’s Book of Documents, Document 4, page 9.
The mother’s evidence confirmed that irrespective of which party was at fault, the conflict of the parties extended to aspects of the parenting arrangements for the children and in particular in terms of the health, the time spending arrangements during school term and during school holidays.
Exhibit “26” comprises a letter from Dr T, X’s ear, nose and throat surgeon, to the mother dated 7 August 2018. The letter has relevance to the mother’s ongoing concern as to what she considers is the inappropriate involvement of Ms F with the children.
The mother formed the view that Ms F was seeking that medical information concerning X be forwarded to her by Dr T.
The mother relied upon the letter as corroboration of her fear and concern that in some way the father had abrogated his responsibility for the children’s health in favour of Ms F.
Upon closer inspection, the letter does not corroborate the mother’s concerns. The content of the letter is self-explanatory:
…
As per your request we are documenting that on the 31^st July 2018 we had contact from the partner of X’s biological father, to ask how he could go about getting information about his daughter’s recent appointments and ENT health.
We advised his partner that we were unable to give her any information at all and advised that the contact must come from the father. No further information was provided at that time, but we explained that information about X’s health can be provided to X’s father if he makes contact.
…[11]
[11] Exhibit “26”.
The mother’s concerns were further amplified in a letter from her solicitors to the father’s solicitors dated 28 September 2018, advising that they considered:
… that it is inappropriate for him to delegate his parental responsibilities to his girlfriend, who does not legally or morally have any standing or right to involve herself in such matters.
In addition, Ms F is a health professional and such behaviour is likely to be a breach of The health professional Code of Conduct (enclosed for your reference).
…[12]
(Original emphasis)
[12] Exhibit “26”.
The topic of the children’s attendance at school and the mother’s relationship with the school staff and administration was canvassed with counsel for the ICL. Whilst the mother conceded that she had a dysfunctional relationship with the children’s previous school principal Ms Q, her evidence was that she now had a good relationship with the children’s teachers and in relation to the then new school principal Mr M, the mother considered that he was kind and that she had a good relationship with him.
The mother considered the content of the children’s interim school reports for semester one, 2020 which comprised exhibit “27”. The document reveals that for semester one X was absent for 33 whole days and 12 partial days with Y being absent for 32 whole days and 17 partial days.
The mother’s explanation for what appears to be a high level of absenteeism for the period covered by the interim reports was that both children had been quite unwell with respiratory issues and that there were also COVID-19 considerations.
Evidence of the family consultant
By orders made 24 July 2017, 16 July 2018 and 5 July 2019, Ms H, in her capacity as a Regulation 7 Family Consultant, prepared Family Assessment Reports dated 24 September 2017 (“the first report”), 24 August 2018 (“the second report”) and 16 December 2019 (“the third report”).
The first report was prepared following a partial report prepared by Ms S which only involved the father. Ms S was not called and did not feature in the proceedings other than the mother’s clearly expressed dissatisfaction at Ms S’s involvement.
Upon initial interview, Ms H did not consider that either party presented as malicious or manipulative but did observe that the mother was clearly anxious and keen for Ms H to understand her view that the father was inconsistent and disingenuous in terms of the time that the children should spend with him.
Somewhat prophetically, Ms H recorded the mother’s uncertainty at the ability of the parties to work towards an effective co-parenting relationship following their separation.
Allegations of family violence were raised by the mother and in particular that over and above circumstances where the father had been unnecessarily physical towards her, the father’s conduct was emotionally abusive to her and the children.
For his part, the father asserted that the mother’s anxiety was at times florid and had the effect of restricting his ability to interact freely with the children.
The mother’s concern in respect of the father’s conduct related to a perceived history of alcohol abuse and the potential for the children to be at risk in his care, particularly if he was intoxicated.
The mother was recorded as expressing a concern that the father was not able to provide a safe environment, age appropriate accommodation and apprehended there would be adverse consequences from the children being introduced to the father’s then new partner, Ms F.
As at the date of the first assessment by Ms H, the proposals of the parties were significantly different to the final orders sought by each of the parties in the current proceedings.
The father was prepared to concede that the children should reside in the mother’s primary care and spend each alternate weekend, one night in the intervening week and half the school holidays with him. The mother’s proposal was uncertain but she was not able to contemplate the children spending overnight time with the father.
In observation, the children appeared happy and content in the mother’s care and were easily able to transition to the father. Despite some adverse remarks by X that she preferred to spend her time with the mother rather than the father, when observed together Ms H recorded that:
52.… X in particular continued to share physical affection with her father, sitting on his lap, and telling him how much she loved him. This appeared natural and familiar for all.
Y expressed a similar level of affection and attachment for each of the parties.
Ms H considered that the mother presented as a loving and dedicated mother but could not see conduct or presentation of the children that would provide corroboration for the mother’s view that the father was controlling, manipulative or aggressive with the children in terms of physical discipline.
Ms H considered that on an interim basis, the parties should share parental responsibility for the children and that they should live with the mother and spend limited time with the father, with the children’s overnight time with him to build up once Y commenced school.
The second family report noted that the conflict between the parties appeared to have escalated and whilst various court orders had gradually increased the father’s time with the children, neither party had lessened their concerns as to the other party’s behaviour.
Ms H was also faced with the father’s allegation and observations by the Court of the children’s lack of attendance at school and kindergarten.
The issue of the alleged absenteeism of the children from kindergarten and school was a focus of the then recently appointed ICL.
In her second report, Ms H records a summary of the ICL’s enquiries with X’s school principal:
15.The ICL consulted with X’s school principal who raised concerns about the mother’s conduct 24 July 2018. The mother was said to have attended the school and removed X from school for the purpose of attending a medical appointment. This being after X arrived earlier that day at school in the father’s care, happy and without any signs of illness. The mother was said to have been verbally abusive to the teacher and subsequently banned for 4 weeks, only allowed to enter the school grounds to attend the office for the purpose of drop off and pick up during that period of time. The mother then failed to bring X to school the following day, claiming X was traumatised by the teacher’s assault against her. The school denies any wrong doing by the teacher and raised serious concerns about the mother’s conduct given she also falsely defamed the teacher to other members of the school community.
Ms H recorded that the mother considered X’s school was biased towards the father and that X’s teacher had assaulted her. The mother made reports to the Police, the Department of Education and the Teacher’s Registration Board. The mother considered that X was fearful to return to school.
As an explanation for the children’s absenteeism, the mother considered that as a result of the children spending time with the father, they presented as being fatigued and unwell. The mother considered that the father’s accommodation was not suitable and was conducive to exacerbating the children’s underlying health conditions, in particular their respiratory limitations.
The children were again observed in the presence of the mother and the father.
Ms H recorded that the children appeared to be happy, playful and relaxed with each of the parties and there was no evidence of the children expressing or displaying anxiety in relation to either of the parties or Ms F.
Despite the mother’s allegations as to the risk that the children but in particular X were experiencing in the father’s care, Ms H recorded that X raised no criticism of the father and the evidence from the children’s school and kindergarten did not suggest that the children presented with any concern after having spent time with the father.

The mother returned to the topic of the former principal Ms Q. It is not in dispute that the mother and Ms Q were in regular disagreement. In particular, it was upon Ms Q’s instigation that the mother was the subject of a communication order.
Mr M agreed that he had spoken to Ms Q but had also received information from teachers and other school staff.
Mr M did not accept that he had formed an adverse opinion of the mother and it was his intention, to the best of his ability, to work cooperatively with the school population, families and the community.
It was apparent from the mother’s questioning of Mr M that she felt she had been victimised by the school, including the children’s teachers, as a result of the father’s continued denigration of her.
The following exchange highlights the issue:
[His Honour]: --- but the evidence that I’ve received from Mr M is that he has invested significant extra time in attempting to answer your questions, to answer your emails ---
[The mother]:   Because the children were taken from me, your Honour.
[His Honour]: --- even over a long period of time ---
[The mother]:   I had no contact.
[His Honour]: --- and even to the point where it became, he considers, rightly or wrongly, an onerous obligation and out of all proportion to that which occurs with other parents in the school.
[The mother]:   Well, it was unfortunate, your Honour, that I had no ---
[His Honour]: Now, that is the evidence that I’ve heard, so ---
[The mother]:   That’s unfortunate, your Honour, that I had no contact and had no other option, Mr M, to check on my child’s attendance, check on their issues, find out where they were academically. I think that, as you are aware, your Honour, in the 18 November 2018 orders it states that I have equal shared parental responsibility. Now, why would it be onerous, because obviously I hadn’t seen the children for a period of time, that I’m corresponding? Obviously I don’t want to do that, but ---
[His Honour]: We’re talking about 2020.
[The mother]:   We’re talking ---
[His Honour]: Weren’t the children with you in 2020? [20]
[20] Transcript 9 June 2021, p.105 lines 13 – 43.
Ultimately, and in order to advance the proceedings, the following proposition was put to Mr M:
[His Honour]: Ms Q. Thank you. Armed with the information from Ms Q, how did you determine in early 2020 to react to Ms Bruckner?
[Witness]:--- I like a clean slate, new principal, new school. I think I should be able to work with everyone so I just went into it that I wanted it to work for the children, the family, the staff. That’s how I go in and try and keep it working. [21]
[21] Transcript 9 June 2021, p.107 lines 14 – 18.
Whilst restrained and with an obvious intent to be courteous and not further inflame the mother’s mistrust of the school, Mr M was firm in his denial that any of the teaching staff who had provided information to him concerning difficult and fractious interaction with the mother were likely unjustified in their assessment.
The issue for Mr M was not the potential for there to be disagreement between a teacher and the mother but rather the manner in which the mother appeared to prosecute her complaint.
The evidence of Mr M supports a finding that the teachers and school administration who came in contact with the mother were intimidated by her. Again, the issue is not whether there is a valid complaint but a concern that the mother’s conduct was unrelenting and demanded excessive school time in response.
Mr M summarised his position as follows:
[The mother]:   But if you were ---? ---
[Witness]:--- and after a while, it wears people down because they want to be able to work with you and your children, but to me, everything doesn’t have to be a big issue, but I – not meaning that in a derogatory way, I mean, I’ve worked long enough with parents to know that we have got to just … solve – have minimal small issues, lots of great times. It seems like, you know, for these people – I’m not talking about myself, I’m talking about people which are putting incident reports, it has probably been going on for a long time – the last four or five years, there’s probably a collection since the kids have been at school. [22]
[22] Transcript 9 June 2021, p.118 lines 27 – 34.
A more egregious enquiry by the mother centred upon her belief that the ICL and/or her counsel either entered into a conspiracy with Mr M to support the father or that Mr M “felt under pressure by either of those two persons and that you simply did something that potentially now you regret doing, namely, handing documents over”.[23]
[23] Transcript 9 June 2021 p.121, lines 36 – 39.
Mr M rejected that he was in some way in the thrall of either the ICL or her counsel.
The mother’s concern as to the purportedly favourable treatment by the ICL and her counsel towards the father was raised with Mr M. Despite the mother pressing Mr M to confirm her belief that the ICL and her counsel were creating conflict at the school in order to support the father’s case, there is not a scintilla of evidence to support the contention.
I accept without reservation the rejection by Mr M of the proposition that he worked in concert with the ICL and her counsel to undermine the mother’s case.
The mother was concerned that in the year 3/4 composite class X struggled. The concern extended to an assertion by the mother that X had been the subject of bullying and that there were certain students at the school that were supervised at recess and lunch because they experienced aggressive behaviour by other students.
Mr M was firm in his evidence that X’s school teacher was “a fabulous teacher that kept open communication with you and tried to do everything possible to make sure it was a good year.”[24]
[24] Transcript 9 June 2021, p.132 lines 44 – 45.
Mr M was aware of a student that had pushed the children and whilst he was not physically present during the purported altercation, he maintained his assessment of the incident as conveyed to the matter as being minor with the subject child being placed in “time out” and X and Y not appearing to be distressed and happy to resume their school yard play.
As a result of the continued challenge by the mother to the denial by the relevant teacher that the children were being bullied, Mr M complained that the mother had referred to him and to other teachers as “dishonest”.[25] The allegation was made in an email. The mother admitted that whilst she didn’t call Mr M a liar, she did consider that he and other members of staff were dishonest.
[25] Transcript 9 June 2021, p.136 line 25.
Again, the assertion of dishonesty appears to stem from the mother’s view that the children were the subject of many bullying incidents and were in some way either covered up by members of the school staff or that there was some reason why they were not prepared to readily admit that the children were at risk.
Mr M’s evidence was given in a frank and forthright manner. He impressed as a highly qualified and skilled educator. Contrary to the mother’s assertion, there was no evidence that would enable a finding that Mr M was either dishonest or conspiratorial with either the father, the ICL or her counsel with the intention of thwarting the parenting orders sought by the mother.
Mr M should be considered as a reliable witness and where his evidence is in conflict with that of the mother, his evidence should be preferred.
PRINCIPLES RELATING TO PARENTING
I consider it necessary that I adopt an approach that considers the practical reality of the separate parenting proposals of the parties. I bring to account the considerations of the primary and additional factors in s 60CC of the Act that are applicable to the circumstances of each case.
Section 60CA of the Act requires that I have the best interests of the child as the paramount consideration. The best interest test is to be considered by the application of the objects of s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act.
I propose to adopt the following approach:
(1)Give consideration to the separate proposals put by each of the parties as they were identified to the Court;
(2)Have regard to the objects expressed in s 60B(1) of the Act and the underlying principles in s 60B(2) of the Act;
(3)Have regard to the provisions of s 60CC of the Act in order to determine in each case what is in the child’s best interests;
(4)Have regard to the primary considerations under s 60CC(2) of the Act, namely the benefit to the child of having a meaningful relationship with both of the child’s parents and the need to protect the child from physical or psychological harm, if applicable;
(5)Have regard to the additional considerations under s 60CC(3) of the Act;
(6)The evidence adduced by each of the parties in respect of the particular considerations pursuant to ss 60CC(2) and (3) of the Act are to be considered, and if more weight is to be given to one or more of the matters raised then it must be the subject of delineation or comment.
PARENTING CONSIDERATIONS
Meaningful relationship
The parties are not agreed as to the extent of their separate parental responsibility for the children. Each party seeks sole parental responsibility. The father’s application in respect of same is supported by the ICL.
The proceedings are complex and have been on foot since 2016. Neither party concedes that the other should have the children’s primary care however, each party concedes that it is important for the children to have a meaningful relationship with each of them and in terms of the broad thrust of the separate parenting proposals of the parties, on the basis that primary care of the children is retained, each proposes each alternate weekend from the conclusion of school Friday to the commencement of school on Monday and one half of school holidays provided that on the mother’s case, the father’s care of the children will not exceed seven days.
The ICL broadly supports the father’s parenting orders.
It is of relevance that the original orders sought by the ICL on 8 September 2020 provided for the children to live primarily with the mother, subject to them living with the father from the conclusion of school on Friday to the commencement of school on the following Wednesday, namely five days per fortnight and one half of school holidays.
The current interim arrangements provide for the children to live with the father and spend four nights per fortnight with the mother.
It is an observation open on the evidence that whilst each party seeks a different outcome, the interim orders have served to maintain a meaningful relationship between the children and each of the parties.
Having regard to the parenting proposals of the parties and a lessening of the litigation conflict, it is proper to make a finding that each of the parties consider it important that the children maintain a substantial relationship with each of them.
Orders do not need to be considered as optimal but rather should enable each of the parties to maintain an important, substantial and parentally involved relationship with the children.
I consider that the orders sought by each of the parties and as promoted by the ICL would maintain a meaningful relationship. However, the history of the children’s primary care with the mother and then since June 2021 in the primary care of the father supports a more expansive order for the parent who does not retain primary care.
The father considers that the extended period the mother withheld the children substantiates a finding that the mother has historically attempted to fracture and disrupt the children’s relationship with him. Equally, I acknowledge the mother’s concerns that the father was not transparent in the extent of his work related duties and obligations and in particular, the extent to which the children, when in his care are parented by Ms F.
Are the children at risk?
The mother contends that during the course of their relationship the father perpetrated physical violence upon her. The mother does not resile from her allegation that the father’s aggressive and intimidating behaviour constitutes family violence.
In Vasser & Taylor-Black (2007) FLC 93-329 at [51], the Full Court considered that the High Court decision in M v M (1988) 166 CLR 69 had become the “touchstone” of the principles to be applied in cases of asserted unacceptable risk of any kind.
In Harridge & Harridge [2010] FamCA 445 at [73], Murphy J adopted the following list of enquires with respect to the risk assessment and analysis:
…
(1)      What harmful outcome is potentially present in this situation?
(2)      What is the probability of this outcome coming about?
(3)      What risks are probable in this situation in the short, medium and long term?
(4)      What are the factors that could increase or decrease the risks that is probable?
(5)What measures are available whose deployment could mitigate the risks that are probable?
(B. Mahendra, ‘Psychiatric Risk Assessment in Family and Child Law’ (2008) 38 Family Law 569).
The mother asserts that the aggressive behaviour of the father during the course of the relationship continued post-separation by what she alleges were degrading comments and threats that unless the mother agreed to the father’s requests for time, it would be used against the mother in the litigation.
It is difficult to understand the broad context of the allegations of the mother against the background of her orders promoting significant and substantial time.
The mother considers that the father has been dishonest in misrepresenting the extent of time that he attends his employment therefore requiring Ms F to care for the children.
There is also a contention between them as to the extent to which the children’s health is either promoted or adversely affected when in the care of each of them.
The mother also considers that there is a pattern of injuries being sustained by the children upon their return to her care.
In particular, an egregious incident occurred when the mother photographed X’s genitals and forwarded same to the father whose response was to consider that the mother had inappropriately involved the child in the parental dispute.
The mother also asserts that the father has struggled with post-traumatic stress disorder and that he has embarked upon a strategy to cause the children’s teachers and school staff to be wary of the mother and make it difficult for her to attend the school and interact with the children’s teachers and other parents.
Whilst at one point the mother raised the spectre of the children being placed at risk of sexual abuse by the father, that was not a matter that was ultimately pursued.
I do not consider that there is any evidence which suggests the children are at risk of sexual abuse by either of the parties.
The evidence also supports a finding that each of the parties are able to provide for the physical needs of the children. They are not the subject of neglect in either parties’ household and whilst the various school reports tendered into evidence provide assistance in other aspects of the children’s lives, there is nothing to support a finding that the children have been neglected.
The father does assert that the children are at risk of psychological harm arising from the mother’s intense dislike and mistrust of the father and Ms F. Moreover, a significant aspect of the proceedings is the issue of the extent to which the mother is able to engage with the children’s schooling, whether she had caused the children to have an unnecessary level of absenteeism and the extent to which her fixed views on how the children’s health should be managed were likely to impact them.
Whilst the mother rails against the recommendations and evidence of Ms H as to the relationship the children have with father and Ms F, there is no evidence that supports her concerns.
The evidence of Ms H is such that despite the mother’s protestations to the contrary, the children have a close emotional attachment to the father.
In terms of the broad thrust of the orders sought by each of the parties and the ICL, together with the latitude that is available to me in the broad exercise of my discretion, I do not consider that there is any evidence to support a finding that the father inflicted either physical or sexual abuse upon either of the children or that the father was the perpetrator of family violence either towards the mother or the children.
The more significant risk was the extent to which the mother was capable of supporting the children’s relationship with the father and her inability to limit the extent of her conflict with other parties including Ms F, the children’s school teachers and school staff.
Wishes of the children
The children are prepared to spend time with each of the parties. Despite the mother’s assertions, there is no evidence that supports a finding other than that the children are happy and safe in their father’s care. Ms H highlighted that there was a strong relationship between the children and their father and observed interaction was consistent with their being an existing good relationship rather than the mother’s contention that suggests the children would be fearful of the father.
Over and above matters contained in the three family reports, there is little other evidence that provides a significant insight into the wishes of the children.
The evidence does support there being no lack of willingness for the children to transition between the parties.
The nature and relationship of the children with each of their parents and other persons
The family consultant considered that the children were well bonded to each of the parties but did not support the mother’s contention that their primary attachment was with her and that there was little or no emotional attachment with the father.
The family consultant observed that the children were happy and emotionally engaged with the father and Ms F whereas in an observation with the mother, X appeared to be sad and presented with a flat affect. A concern of Ms H, expressed in earlier reports, was the extent to which X appeared to be strongly aligned with the mother, presenting as being adverse to the father but when observed together, there was no reluctance, reticence or fear evident in X’s interaction with him.
The mother considers that the father and in particular Ms F place the children at risk and that the children have a poor relationship with her.
The mother is determined in her view that the environment created by the father and Ms F is inappropriate and potentially unsafe for the children. The mother remains concerned that Ms F is engaged in the care of the children and that she has placed the children at risk, to the extent where she alleges Y was nearly drowned and Ms F was supportive of the father assaulting the children.
There is no evidence to support the mother’s concerns whereas there is evidence that confirms the observations of Ms H that Ms F was a person who cares for the children and is a responsible, significant adult in their lives.
Whilst the mother may well have a concern that in some way Ms F seeks to supplant her as a mother figure in the children’s lives, there is no evidence that supports such a contention.
There was much evidence concerning X’s hospital admission following a fall whilst in the father’s care with Ms F taking the child to the hospital.
I am not able to make a finding that Ms F acted inappropriately or sought to misrepresent her relationship with the children. Ms F holds qualifications as a health professional and the evidence is that she is a responsible adult without any demonstrable malice towards the mother.
The likely effect of any changes in the children’s circumstances
Consequent upon interim orders made in April 2021, the children transitioned from the primary care of the mother to that of the father.
The circumstances which underpinned the interim orders were based upon a significant period of time that the mother kept the children from seeing the father pursuant to the interim orders and a continued focus on the level of absenteeism by the children when in the mother’s care.

The mother seeks that the children return to her primary care. The father is concerned that if that occurs, the mother will not promote and support the children’s relationship with him, will continue to be adverse to Ms F’s involvement with the children, will continue to engage the children in unnecessary medical examination and observation and would likely return the children to significant periods of absenteeism at school and that they would be embroiled in the mother’s conflict with the school principal, school staff and the Education Department.
The evidence of Mr M is persuasive. He presented as a witness of truth and was keen to assist and accommodate the mother’s requests for information and proper parent/teacher dialogue. His concern however was that the mother had taken an unnecessarily aggressive stance towards the school, resulting in teachers becoming anxious, overwhelmed by ongoing requests for information and either fearful of or refusing to engage with the mother.
The mother’s conduct was such that she was the subject of a Prohibition Notice, restricting and placing a condition on her ability to communicate with the school.
I accept Mr M’s evidence that the mother’s conduct in demanding extensive information was outside of that which would ordinarily be expected in terms of the parameters of communication between a school, its teachers and parents.
Mr M’s evidence was that her conduct was intimidating to school staff and teachers. The matter did not establish otherwise.
Whilst substantial evidence was presented as to the issue of the children’s absenteeism, I do not consider that there is benefit to be gained by the forensic dissection of each and every entry relating to whether the children attended school, did not attend or were late. The complexity of the exercise allows for reasonable error and omission.
I do consider that the evidence supports the finding that the predominant periods of either absenteeism or late attendance took place in the mother’s care. It may be that she has explanations based upon the children’s health, COVID-19 related circumstances and other factors but the reports relating to the children’s academic achievement in 2020 and the first part of 2021, highlights the need to ensure that as far as is possible, the children attend school. The summaries and comments of the children’s teachers all reflect that continuing absenteeism is likely to restrict and restrain the children’s academic development.
The mother cross-examined Mr M for an extensive period of time. Her questions were unnecessarily detailed and were aggressive in their presentation, to the extent that on a number of occasions Mr M was advised that he was not required to provide an answer.
Whilst Mr M did the best he could to present as even handed in his interaction with the mother, I am no able to find that the mother has any ability to engage with the school on a civil basis.
The evidence of Mr M was that there had been no conflict with the father since the children transitioned to his primary care. Mr M’s evidence on the topic was corroborative of the father ensuring that the children attend school regularly and that his involvement with the school was not redolent with confrontation, complaint and threats of further complaint or censure.
The practical difficulty and experience of the children spending time with each of the parties
The father remains in employment in the hospitality industry. Whilst ordinarily, the employment of each of the parties would be of no moment in the proceedings, in this case, the father’s employment has been of significant focus.
The father was reluctant to provide precise details of his employment. His concern was that the mother had made separate and independent contact with former employers.
It appears that the focus of the mother’s enquiries was to ascertain the father’s work arrangements in order to establish the extent to which Ms F was in substantial care of the children rather than the father. A secondary concern of the mother related to her view that the father was not disclosing his true income in order to pay a lesser amount of child support.
There is no evidence to support the mother’s contention and concerns. I am satisfied that the evidence of the father and of Ms F should be accepted as to the parenting roles of each of them in respect of the children’s care. I have found that Ms F does not present as a risk to the children if they are in her care.
The mother is not currently employed however, she has significant support from her extended family and the father raises no complaint in respect of her accommodation or ability to provide financially for the needs of the children.
Over and above these issues, it could not be said that the separate proposals of the parties are either impracticable or not able to be achieved.
Further litigation
The parties have been before the Court since 2016. The expense for each of them has been significant and there is clear evidence that the parties are both litigation weary. If the children are returned to the primary care of the mother I am not confident, on the evidence, that she will be able to promote the children’s relationship with the father. There was no recognition by her that even though she denied the allegation that the children were significantly absent from school when in her primary care, she did not indicate that there needed to be any change in her management of the children. Moreover, there was no evidence to suggest that she would be able to better promote the children’s education without an exacerbation for the already strained relationship that she has with Mr M, the children’s teachers and school staff.
I am more confident of the father’s ability to promote the children’s relationship with the mother. It must be remembered that the initial position of the father is that the mother should retain primary care. It was as a result of the mother’s conduct and her inability to reconcile her differences with the father, Ms F, the children’s school and other health professionals that appears to have underpinned the father’s decision to seek primary care.
Whilst the Court cannot be confident that the proposed orders will bring an end to the litigation, it is more likely that the father is able to recognise that the children should have a relationship with each of the parties and if they remain in his primary care, with the mother.
PARENTAL RESPONSIBILITY
Parental responsibility is to be informed by what is in the best interests of the children.
Each of the parties seek sole parental responsibility. The ICL supports the father’s application even though initially the ICL supported equal shared parental responsibility.
The evidence does not support a finding that there is any lessening of hostility between the parties nor that the mother is prepared to communicate more readily with the father and to make allowances that would bring a level of flexibility to the lives of the children in terms of their engagement with each of them.
Unfortunately, the children’s best interests are likely to be served by putting in place detailed orders rather than what would be a more benign outcome which would be that the children are able to observe the parties reaching a consensus.
The ability of the parties to communicate whilst not extinct is highly limited. The areas of principle concern relate to the responsibility for the children’s medical health and their education.
In respect of the latter, the evidence of Mr M and as presented by the ICL as to the children’s absenteeism from school and remarks contained in their school reports, enable a finding that the mother is not able to support the children’s education and when challenged, reacts and engages in aggressive dialogue.
The issue of the children’s health is highlighted by the inability of the parties to agree the ongoing immunisation for the children.
In the children’s early years they had been immunised however, the mother formed the view that they presented with significant underlying health issues which would be exacerbated and in some cases, potentially life threatening if they were immunised.
The mother did not present any evidence to support her contention. The father called Dr P. The mother considered that Dr P’s evidence should be either excluded or disregarded on the basis that he did not provide an affidavit and as such she did not have an opportunity to consider the evidence that he was giving.
The mother’s position was that immunisation was never an issue until it was raised by the father. She contends that he did so in order to claim subsidy through the Government and that other than some perceived financial gain, the father has no genuine interest in the children’s health.
The evidence of Dr P was clear and given his expertise and experience in the area, the Court is left in little doubt that the children’s health would be significantly at risk if they did not receive immunisations according to the appropriate guidelines.
Dr P’s evidence was also compelling in his statement that even if the mother’s assessment of the children’s underlying health considerations were correct, without immunisation the children may well be placed at greater risk.
To the extent the mother considers that the evidence of Dr P was not honest and was untruthful, such a submission is rejected.
The decision to immunise falls under the scope of parental responsibility (See Duke-Randall & Randall [2014] FamCA 126.)
A decision in respect of immunisation of children concerns a major long-term issue.
The issue of vaccination is nonetheless to be decided upon a question of evidence. I am not able to take judicial notice of what might be considered obvious or apparent medical support for wide spread immunisation.
In the present case, the evidence of Dr P is compelling.
The issue of immunisation is not the only dispute concerning the health of the children. The mother’s belief that the children suffer from significant and ongoing respiratory complaints seems to have underpinned her decision in respect of the extent to which the children should attend school.
No evidence was presented by the mother to support the broad parameters of the children’s health or that immunisation generally or a particular type of vaccine in particular would present as a health consideration.
This is not a case where the Court can have confidence that as a result of the conclusion of the proceedings each of the parties will reflect upon their conduct and likely ameliorate their behaviour. There is no evidence or assertion on behalf of the mother that she supports ongoing immunisation for the children.
The position of the ICL initially was that each of the parties should have the ability to immunise the children or not as the case may be however, in final submissions, the ICL seeks to leave the decision to immunise to the father, subject to four weeks’ notice being given to the mother.
I consider that the father has been able to adequately care for the children in terms of their health. The father is able to provide appropriately for their care and financial support.
The evidence of Ms H and the strong support of the ICL was such that the father’s proposal that he have sole parental responsibility is compelling.
The parties have limited scope to communicate and there are significant concerns as to the mother’s ability to promote and support the children’s education and their appropriate medical and health needs. Those circumstances requires a finding that the children’s interests would be best served by the father retaining sole parental responsibility.
CONCLUSION
The evidence supports a finding that the children’s interests would be best served by remaining in the primary care of the father.
He seeks orders that the children should live with him and spend three nights per fortnight and half school holidays with the mother. In broad, that is promoted by the ICL.
I am not satisfied however that such an outcome would represent the best way forward. At present, the children spend four nights per fortnight with the mother and there is nothing to justify a reduction in that time.
I do not ignore that the children were in the primary care of the mother prior to their transition to the father’s care in April 2021.
I am aware of the mother’s circumstances and in particular the support that the extended family provide to the mother.
It is true that there is evidence which suggests the mother’s extended family are not kindly disposed to the father, but that does not detract from the benefit that the children will have of continued interaction with the extended family of each of the parties.
The significant areas of contention between the parties has been the children’s education and proper focus on their medical and dental health needs.
If those matters are now able to be dealt with by the father, significant areas of contention are likely to be removed. That is not to suggest that the mother will hereafter be satisfied with the father’s ability to care for the children but absent those matters there is good reason to consider that the mother’s care should be substantive and substantial. As such, I consider it within my discretion, based upon the evidence presented, that the children should live with the father and spend from the conclusion of school on Friday to the commencement of school on the following Wednesday and each alternate week thereafter with the mother.
An area of contention has been the manner in which school holidays should be divided between the parties and the interrelationship between the children’s time with the parties during school term time and during school holiday time.
I propose to order that the children spend time with the mother for the first half of the short school term holidays from the conclusion of school on the last day of term until 5.00 pm on the middle Saturday of the school holiday period, with the time the children spend with the mother to resume on the first Friday of the school term.
The parties are agreed as to the time the children should spend in their care across the Christmas school holiday period. The parties and the ICL seek that the children spend time with each of the parties during Christmas school holidays on a week about basis.
The ICL and the mother are in broad agreement that the children should spend time with the parties over the Christmas period from 24 December to 26 December in each year. The only significant difference between the parties is that the mother seeks that the children’s time with each party shall commence at 3.00 pm whereas the ICL seeks a commencement time being 4.00 pm. The father proposes 24 December to 26 December and 26 December to 28 December in alternating years.
I propose to fall in with the orders sought by the ICL given that it is confined to a more limited period and will interfere with the Christmas holiday period to a lesser degree.
The parties are not agreed as to the arrangements for the children to spend time with each of them over the Easter period.
The parties and the ICL seek that the Easter periods be shared. I will make orders as prepared by the mother.
In circumstances where the parties have difficulty in communicating with each other and the overlay of time spent across special occasions have been problematic, I consider that there is no advantage to the children in detailed orders in respect of the Easter period. I propose to make no order in respect of the Easter period.
The ICL proposes that the children spend time with each of the parties on either of their birthdays or the children’s birthday from the conclusion of school until 7.30 pm and if not a school day from 3.00 pm until 7.00 pm. The orders sought by the mother and the ICL are similar and I will make orders as proposed by the ICL.
The ICL seeks orders that will regulate the involvement of each of the parties with the children’s school.
I do not consider that it is necessary for there to be an order that the mother shall ensure the delivery of each child at their school or schools. The children remain in the primary care of the father for eight of ten school days each fortnight.
The father seeks an order that should the children miss two occasions of school in succession without medical certificates being provided to the father and the school, that the mother’s time with the children shall be suspended.
I consider that such an order would be unnecessary and unlikely to be able to be enforced without further litigation.
I consider that given the focus on the children’s poor attendance record at school, each of the parties are alive to the issues and the need for the children to attend school on a regular basis unless circumstances dictate otherwise. The order for the father to have sole parental responsibility includes issues relating to the health and education of the children.
There is some merit in the orders sought by the ICL that unless invited to remain for an extended period, either party, upon delivering a child or children to the vicinity of the appropriate classroom, will leave within five minutes of delivery.
Each of the parties seeks detailed injunctive orders pursuant to s 68B of the Act.
There is merit in the orders sought by each of the parties seeking to restrain each of the parties from attending at the other party’s residence or their place of employment.
I propose to fall in with orders sought by the ICL seeking to restrain the parties from posting material relating to current proceedings to social media, and regulating the arrangements for appropriate and civil communication between the parties and the exchange of information, in particular as to the medical needs of the children.
The orders sought by the father and the ICL provide for each party to be at liberty to travel interstate with the children. Whilst the father seeks that the travelling party provide twenty one day’s notice of any proposed travel together with an itinerary, flight and accommodation details and contact details, the more truncated orders sought by the ICL are to be preferred.
The parties agreed in closing submissions as to the handover arrangements if not conducted at the children’s school being at the Suburb O Police Station.
I make orders as appear at the commencement of these reasons.

I certify that the preceding four hundred and nineteen (419) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.
Associate:
Dated: 9 March 2022

File number(s):	ADC 1267 of 2016
Judgment of:	BERMAN J
Date of judgment:	9 March 2022
Catchwords:	FAMILY LAW – CHILDREN – Parental responsibility – Where each party seeks sole parental responsibility for the children – Where the ICL supports the father having sole parental responsibility – Where the ability of the parents to communicate is limited – Where there are concerns as to the mother’s ability to support the children’s education and medical and health needs – Where the immunisation of the children is an issue – Where the best interests of the children will be best served by the father having sole parental responsibility – Orders. FAMILY LAW – CHILDREN – With whom a child lives and spends time with – Where each party seeks that the children live with them and spend time with the other parent – Where the ICL supports the children living with the father and spending time with the mother – Where judgment was reserved and leave was then given to reopen the evidence – Where there was a change of primary care during the proceedings – Where the children currently live with the father and spend time with the mother – Where there are allegations of family violence – Where there is no evidence to suggest the children are at risk – Where the children’s school attendance and health needs are of concern – Consideration of best interests of the children – Where the children should live with the father and spend significant and substantial time with the mother – Orders.
Legislation:	Evidence Act 1995 (Cth) s 135 Family Law Act 1975 (Cth) ss 60B(1), 60B(2), 60CA, 60CC(2), 60CC(3), 69ZN, 69ZT, 102NA
Cases cited:	Duke-Randall & Randall [2014] FamCA 126 Harridge & Harridge [2010] FamCA 445 M v M (1988) 166 CLR 69 Vasser & Taylor-Black (2007) FLC 93-329
Division:	Division 1 First Instance
Number of paragraphs:	419
Date of hearing:	20 – 24 July 2020; 10,13 and 28 August 2020; 8 September 2020; 12 – 13 April 2021; 9 – 10 June 2021; 16 – 17 September 2021 and 11 October 2021
Place:	Adelaide
Counsel for the Applicant:	Mr Roberts
Solicitor for the Applicant:	Daniel John Lawyers
Counsel for the Respondent	The Respondent appeared in person
Counsel for the Independent Children’s Lawyer	Ms Lindsay
Solicitor for the Independent Children’s Lawyer	Shorter Legal Pty Ltd

ADC 1267 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR MERRITT Applicant
AND:	MS BRUCKNER Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	9 MARCH 2022

…/…/1970	Date of birth of the father
…/…/1974	Date of birth of the mother
2010	Commencement of cohabitation
…/…/2012	Date of birth of X
…/…/2014	Date of birth of Y
October 2014	Date of separation of the parties on the mother’s case
April 2015	Date of separation of the parties on the father’s case
8/04/2016	Father files an Initiating Application, commencing the proceedings
19/07/2016	Father files an Amended Initiating Application
5/08/2016	Mother files a Response to Initiating Application
12/02/2018	Father files a further Amended Initiating Application
25/09/2018	The proceedings are transferred to the Family Court of Australia and the trial dates of 5, 6 and 7 December 2018 are vacated.
8/11/2018	Following argument in respect of interim orders, judgment is delivered in respect of orders that the children live with the mother and spend time with the father from Friday to Wednesday of each alternate week and half of all school holidays.
18/10/2019	Father files application for contravention of orders
10/12/2019	Orders made pursuant to section 102NA(2) of the Family Law Act 1975 (Cth)
20/12/2019	Father files a further Amended Initiating Application
8/07/2020	Mother files an amended response (via an Amended Response to an Application in a Case) setting out final orders sought