Munn & Hartman - [2022] FedCFamC1F 963

Federal Circuit and Family Court of Australia
(DIVISION 1)
Munn & Hartman [2022] FedCFamC1F 963

File number(s): PAC 3313 of 2019

Judgment of: RIETHMULLER J

Date of judgment: 6 December 2022

Catchwords: FAMILY LAW – PARENTING – High conflict between parents – One parent undermining the other’s parental authority – Suspension of time for a short period to allow resident to re-establish parental authority – No matters of principle

Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65AA, 65D, 65DA, 65DAA, 68B

Division: Division 1 First Instance

Number of paragraphs: 140

Date of hearing: 12–14 October 2022 & 20 October 2022

Place: Parramatta

Counsel for the Applicant: Mr Levick

Solicitor for the Applicant: Tonkin Drysdale Partners

Counsel for the Respondent: Mr Connor

Solicitor for the Respondent: Ark Law Lawyers

Counsel for the Independent Children’s Lawyer: Ms Hamilton

Solicitor for the Independent Children’s Lawyer: Michel & White Lawyers
ORDERS

PAC 3313 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MUNN

Applicant

AND:
MR HARTMAN

Respondent

INDEPENDENT CHILDREN’S LAWYER

order made by:

RIETHMULLER J

DATE OF ORDER:

6 December 2022

THE COURT ORDERS THAT:
1.That the mother have sole parental responsibility for the children, namely X born 2008 (“X”) and Y born 2012 (“Y”), collectively (“the children”).
2.That as soon as reasonably practicable after exercising matters of sole parental responsibility pursuant to these Orders, the mother shall notify the father of any such decisions.
3.That the children live with the mother.
4.That until Monday, 30 January 2023 the children shall spend no time with the father and all orders providing for time between the children and the father are suspended.
5.That the children spend time with the father as follows:
(a)During school terms, each alternate weekend from after school on Friday until before school on Monday within the City B area; and
(b)During school holiday periods for the first half of such periods in each even numbered year, and for the second half of such periods in each odd numbered year.

6.That for the purposes of implementing Order 5(b), the school holidays are deemed to commence at 3.00 pm on the last day of the school term, and the holidays are deemed to end at 3.00 pm on the last Friday preceding the day upon which the children are due to return to school for the new school term, and the mid-point is deemed to be 3.00 pm on the day halfway between those first and last days.
7.That Order 3 and Order 5 are suspended during the following periods:
(a)From 2.00 pm Christmas Eve until 2.00 pm Boxing Day, and during that period the children shall spend time:
(i)with the mother from 2.00 pm on Christmas Eve until 2.00 pm on Christmas Day in even numbered years, and with the father from 2.00 pm on Christmas Eve until 2.00 PM on Christmas Day in odd numbered years;
(ii)with the mother from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in odd numbered years, and with the father from 2.00 pm on Christmas Day until 2.00 pm on Boxing Day in even numbered years, commencing in 2024.

(b)From 9.00 am until 5.00 pm on each Mother’s Day and Father’s Day, and during those periods the children shall spend time with the mother on Mother’s Day and the father on Father’s Day.

8.That for the purpose of implementing changeover, changeovers shall occur at school if the changeover is to take place at the commencement of or conclusion of an ordinary school day and otherwise, at McDonald’s Family Restaurant, City B.
9.That with respect to telephone communication between each of the father and the children:
(a)The mother shall ensure the children have telephone or audio visual communication with the father each Wednesday the children are in her care, at 8.00 pm; and
(b)Unless in the case of emergency or special urgency, the father is restrained from contacting the children by telephone, audio visual communication or any other electronic means, at other times.

10.That with respect to all communication between the parties:
(a)Such communication is only permitted about matters directly relevant to the care, welfare and development of the children;
(b)All communications that are not urgent shall be conducted by way of us of a communications application, and such application shall be agreed between the parties or failing agreement, “Our Family Wizard”, and further the parties shall respond to messages logged onto that application within seven (7) days; and
(c)All communications for matters that are an emergency or involve special urgency shall be conducted by way of telephone call as between the parties.

11.That pursuant to s 68B of the Family Law Act 1975 (Cth), the father is restrained by way of injunction from:
(a)Contacting the mother except in accordance with Order 10;
(b)Placing any telephone calls with the mother on loudspeaker within the presence or hearing of the children;
(c)Recording any telephone calls with the mother or the children;
(d)Communicating with the children, or within the presence or hearing of the children, or in writing (including vis electronic means), about parenting matters, issues or arrangements (including payment of the children’s expenses);
(e)Engaging the children as messengers to communicate with the mother;
(f)Making denigrating or disparaging comments about the mother within the presence or hearing of the children, or making such comments within written communications to the children (including via electronic means) or causing or permitting the children to read such communications;
(g)Discussing these proceedings with the children (except to the extent reasonably necessary to convey the live with and time spends with Orders hereof) or matters related to these proceedings within the presence or hearing of the children, or making such remarks within written communications to the children (including via electronic means) or causing or permitting the children to read such communications;
(h)Allowing the children to be exposed to a third party making denigrating comments about the mother or making remarks about these proceedings; and
(i)Engaging any form of tracking device on electronic devices used by the children, while the children are in the mother’s care.

12.That the parties shall do all things and sign all documents as may be necessary so as to cause an Australian Passport to issue for each of the children and for the purposes of this Order:
(a)Within seven (7) days the mother shall give to the father an Application for an Australian Passport for each of the children in the form approved from time to time by the Australian Passport Office (“the Passport Applications”)
(b)Within seven (7) days of receipt of the Passport Applications, the father shall duly execute and return the Passport Applications to the mother and further, do all further things and sign all further documents as may be necessary or desirable so as to have an Australian Passport issue for each of the children; and
(c)Subject to Order 13 below, the mother is entitled to custody of any Passport issued for each of the children.

13.In the event that the father does not comply with his obligations referred to in Order 12(b), then the mother shall have sole responsibility for giving consent and making arrangements for the issue, re-issue or renewal of a Passport for each of the children.
14.That the children are permitted to travel outside the Commonwealth of Australia with the mother and the father.
15.That the mother will keep the Father promptly advised as to all matters concerning the children’s schooling, health, extra-curricular and sporting activities, and shall authorise the children’s school/s, treating health practitioners and any other organisations the children are engaged with in this regard to share all information and records with both parties.
16.That each party shall, as soon as reasonably practicable, notify the other of any medical emergency, illness or injury suffered by either of the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professional to communicate with the other party about the condition and treatment of the children.
17.That the parties are to advise the other of any change to their residential address, email address or mobile phone number within 48 hours of any change to same.

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 Munn & Hartman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
Introduction

The parties seek parenting orders with respect to their two children, X (“X”), born in 2008, and Y (“Y”), born in 2012.
The parties separated in September 2018 and commenced a complex shared parenting arrangement with the children moving between the parties’ residences on multiple occasions during each week. By the time of the trial, the parties had remained in a shared parenting arrangement, but had moved to a week about arrangement as a result of interim orders to that effect.
Background
The respondent father was born in Country C in 1965, as was the applicant mother, in 1973.
The father moved to Australia in 1998 and has lived in Australia since that time. The father said that he obtained tertiary degrees in City D in the 1980s. He says that he worked for a number of multinational organisations for around nine years before moving to Australia. Around nine months after he moved to Australia in 1998, he worked for E Company as a professional and later for banks as a consultant. From 2005 to 2010, he was a manager for an organisation that provided allied health services and then commenced his own business in 2010 operating an allied health agency where the father arranges service providers or clients who pay for the work directly, for which he receives an agency fee from the service provider.
The mother travelled to Australia with the father on a tourist visa in 2006, after spending some time in City F and City G. In early 2006, the mother returned to Country C before again coming to Australia in mid-2006 on a four-year work visa to commence employment as a medical specialist. The mother’s employment is in City B, a large centre in country New South Wales.
The parties married in 2005, which was arranged by others. From 2006 until 2011 or 2012, the mother lived in City B and the father in Sydney, visiting each other from time to time. There is some dispute as to whether they commenced living together in late 2011 when the mother was expecting the second child or in 2012.
It was not until after the first child was born in 2008 that the father commenced his own business, which, he says, was to enable more flexibility for travel from Sydney to City B. In 2010, the mother became a permanent resident of Australia.
The parties separated in September 2018, and commenced a complex shared parenting arrangement with the children moving between the parties’ residences every few days. In July 2019, the parties attended dispute resolution; however, no agreement was reached. Following the failed dispute resolution, the applicant mother initiated proceedings for parenting orders.
In July 2020, following an interim application in the less adversarial trial system in June 2020, the parties entered into consent orders for the children to spend week about with each parent, orders that would have the children living with the mother from after school on Monday through to the commencement of school on Thursday each week, and from 9.30am on Saturday to the commencement of school on Monday for one weekend in four.
Proposals of the Parties
The father proposes that shared care arrangement continue and that school holidays should be shared, with specific arrangements for the parents to see the children on special days if the children are not residing with them on that day. The father also seeks a number of specific orders concerning overseas travel, payment of medical expenses, extracurricular activities, education costs and communications between the parties.
Significantly, the father seeks two unusual orders. First, his proposed order 39 provided for the shared care arrangement to be “suspended when either child is distressed and asks to go to the other parent’s house, reverting back to normal orders the following week” which would have the effect of allowing him to impose a shared weeks arrangement for the care of the children at the whim of the children (or the father if they are influenced by him), undermining the parenting authority of the parties (Father’s Amended Response filed 15 July 2022). Secondly, he seeks orders that provide for the possibility of the parties no longer residing in the same location (within 50 kilometres of each other). In this eventuality, the father seeks orders that the children live with him and spend time with the mother. The orders he proposes would result in the children living with him if he were to move, even if the mother did not chose to move. In the context of this case, it is difficult not to see this form of order as a mechanism of control by the father.
The orders sought by the mother, as articulated at the end of the trial, are for her to have sole parental responsibility for the children and the children to live with her. She ultimately proposed orders providing for the children to have a period without time with the father over the Christmas school holidays this year, and thereafter to spend time with the father on alternate weekends and for half of school holidays. The mother likewise makes provision for special days, for methods of communication, etcetera. The mother also seeks orders pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) to restrain the father from contacting her other than with respect to issues arising under the orders, to restrain him from involving the children in discussions about parenting with the mother, to restrain him from making denigrating comments about the mother, and to restrain him from engaging in or utilising any form of tracking devices.
During the trial I explored the possibility of the children being placed in the father’s care as an alternative to shared care. The mother’s response was that she could not continue with shared care even if the only other option was that the children live with the father. I have no doubt from hearing her evidence that this was a difficult choice for her to make, reflecting the difficulties of co-parenting with the father. The mother’s demeanour indicated considerable reflection and regret. I had no sense that this was a ploy to improve her case. As discussed below, I am satisfied that co-parenting with the father in this case would be intolerable.
Evidence
The mother’s evidence
The mother’s perspective on the relationship of the parties and their capacity to co-parent following separation is quite different from the father’s. She sets out details of an abusive relationship with the father pressing her to give him access to her bank accounts and who was angry and yelling abuse towards her when she declined to do so. She describes verbal abuse occurring most days during the relationship, including the father calling her a “fucking idiot”, saying that she was “quite stupid”, describing her as a pig (in Country C language) and telling her that she wouldn’t be able to cope with living in Australia without him.
In the mother’s affidavit filed 12 August 2022 (“the mother’s affidavit”), she provides many clear particulars of the abuse, for example:
51. From time to time, [the father] said to me the following things or something to similar effect:
a. “Just fill up the account with money, I will do the rest”.
b. “I can live without you. I am not dependant on you. I have enough money to look after myself and I am smart enough to get the dole.”
c. “You don’t have the courage to walk out. No one will fall in love with an ugly person like you. Even your friends will leave you.”
d. “Why should I leave this house. I have a good deal in place. When I finally leave, I will get my pound of flesh.”
52. [The father] also said to me from time to time:
“I hope you understand I won’t harm you. You are the mother of my kids.”
That statement caused me worry towards the end of our cohabitation. The children were growing up and I was worried that if [the father] no longer needed me to care for young children, then he may harm me.
53. [The father] came into the bathroom while I showered from time to time and said to me:
“Look at your fat - here and here”,
and pointed to parts of my body. [The father] also said to me from time to time:
“You don’t have the right figure. Your shoulders are too broad.”
54. When I got ready in the morning, [the father] stood next to me in front of the mirror and pointed at me and then him, and said things such as:
“You are 50 and I am 40. How did you get such a young man? No wait - I am 50 and you are 40, Hmmm.”
[The father] also said to me from time to time:
“You don’t exercise, that is why you have so much fat.”
Sometimes [the father] made these remarks in the presence of the children.
(Emphasis in original)
In the mother’s affidavit, she also provided specific examples of the abusive language that she says has continued since separation, saying:
65. Since separation, [the father] has abused me at changeover and on the telephone. [The father] said to me from time to time:
a.         “You are brainless and stupid”
b.        “You are a fucking idiot”
c.         “You are stupid for not investing money”
d. “There is a line and if you cross it, I will remember and then it is double time for you”;
e.         “I think I must actively non-cooperate for you to co-operate”
(Emphasis in original)
Even as recently as 2020, the mother says that the father made spiteful comments to her:
74. In or about early 2020, [the father] said to me:
“Why are you spending your money on clothes and beauty parlour? No amount of spending will make you look beautiful, you look older than your age and you will get menopause soon.”
(Mother’s affidavit filed 12 August 2022)
(Emphasis in original)
The mother sets out that when the children were first born, she was their primary carer and, thereafter, the children’s grandmothers came to assist from time to time. In the times leading up to separation, and thereafter, the parties have had a nanny to assist in the care of their children. One of the nannies, an older woman who has worked with the family since 2012, gave impressive evidence (as discussed below).
The mother sets out in detail the reasons why she finds it very difficult to communicate with the father, saying:
141. I have found communicating with [the father] after separation stressful and exhausting. [The father] is condescending, insulting, hostile and abusive when he communicates with me.
142. It feels like a futile exercise to consult with [the father] about parenting issues and attempt to make a joint decision. I am concerned that [the father] has fixed views, and he considers his views to be superior to my own.
143. I suspected [the father] was using a tracker on [X’s] iPad. In or about 2019, the children and I travelled to [City H]. There was no signal on route. When we arrived, [the father] called me and the first thing he said was “Oh, it took you so long for you to reach [City H].”
145. I feel bullied and harassed when I receive communications from [the father]. For example, on 18 October 2019 [the father] sent me an email saying, among other things that “there’s tremendous shame in being an unequal partner whose opinion are not valued or ignored”.
147. On 28 November 2019, [the father] sent an email to [X’s] school teacher (and copied me in), to inform her that I refused to deliver [X’s] jacket to her. I was embarrassed by this email.
148. At the end of 2019, I tried to negotiate the forthcoming Christmas school holiday period with [the father]. At the time, I had proposed a change from the informal arrangements to a week about arrangement. I returned the children to [the father]’s care at changeover around this time, and he said to me:
“I am not scared of the legal letters you are sending. I enjoy it. I’m not scared of your lawyers. You started it. I will finish it”.
…
151. Following separation, [the father] used Facetime to talk to the children and at the same time, made offensive remarks to me. For example, on 2 February 2020 [the father] had a Facetime call with the children. [the father] was talking to [X] about tuition. [X] had the call on speakerphone. Then [the father] said “Your mother is a fucking idiot” and “Your mum is so stupid”. I told [X] to put her iPad away.
(Mother’s affidavit filed 12 August 2022)
(Emphasis in original)

The mother has been pro-active in attempting to find ways to improve the communication of the parties. In 2020, she had her solicitors write to the father asking that communication between the parties be through their solicitors, apart from emergencies; however, as set out in the mother’s affidavit, that angered the father:
154.[The father] became angry with me after my solicitors sent this letter to his solicitors. For instance, at changeover on 8 March 2020, [the father] raised his voice and said to me in front of the children:
“I am not scared of lawyers or the police. I dare you to put in a police complaint. I am going to deny this conversation and everything else and I am going to lie about you. Do not to cross the line, [the mother]!”
(Emphasis in original)
The mother also attempted to have the father utilise a communications app on their mobile phones for the purpose of parenting communications, and had her solicitors send the father a number of letters in this regard. The father has not been prepared to participate in such an arrangement.
The mother set out in her affidavit that the father had struck X twice on the bottom, claiming that “the bottom is the safest place to hit kids”, despite the mother’s objection to hitting the children at all (Mother’s affidavit filed 12 August 2022, paragraph 181). The mother also said the father had pulled X’s hair from time to time and related an incident where she objected to him using a spatula to threaten to hit X, following which he struck her with the spatula. She also recounts another incident where the mother threatened that if the father took another step towards X (when he was chasing after her following an argument), she would go outside and call the neighbours or stop a car to tell someone. She says that he froze and then said to her, “you will regret doing that” (Mother’s affidavit filed 12 August 2022, paragraph 188). The mother recounts one further incident where X had said that she did not want to return to the father’s house as the father had taken her phone and hit her because she had texted the mother, with the father describing the child as a “traitor” (Mother’s affidavit filed 12 August 2022, paragraph 191).
Even after orders were made in 2020, the father pressed the mother not to follow the orders on the basis that the parties “don’t have to follow what the judge says”, saying that he would “not enforce anything unless [X] is happy with it” (see paragraph 198 of the mother’s affidavit for events where the parties have had significant difficulties with respect to co-parenting).
In substance, the mother’s case is that the father has enlisted the children into the parenting disputes to such an extent that their welfare is threatened, and that the way in which the father engages with the mother makes shared parenting arrangements intolerable.
The mother was cross-examined at length by counsel for the father, initially, in an attempt to establish that she had been contemplating separation for a long time as she was unhappy soon after the parties’ marriage. It is difficult to see that the circumstances of the marriage (being an arranged marriage) and the mother’s initial and ongoing unhappiness in the marriage, of themselves, are significant in determining the future parenting arrangement for the children. I had no sense that the mother had engaged in some form of long term scheme against the father: indeed, had the father not made it so difficult to co-parent it seems unlikely that the mother (a busy medical specialist) would have sought changes to the arrangements.
The mother reiterated in cross-examination that, before the week about arrangement, care for the children was, in her view, “chaotic”.
The mother accepted that, at this point in time, X wants to be living with the father, but she hadn’t yet discussed with the children her request that there be a three month break in contact, prior to establishing any new contact and living arrangement regime. She explained that she would prefer not to discuss this issue with the children, and that, in the unusual circumstances of this case, it is not appropriate to involve the children in such a decision.
When challenged as to whether she would have the capacity to care for the children, for example, if they were sick and unable to go to school, she made clear that the babysitter or her mother would be available if she required such assistance. She said she is never on call.
The mother was quite adamant that she was not the one who had engaged the children in the affairs of the parents, or parenting negotiations.
The mother was cross-examined about some earlier statements she made relating to domestic violence, as set out in the Child Responsive Program Memorandum dated 10 June 2020, where she said:
11. [Ms Munn] said that while [the father] has never been physically violent towards her he acts in a physically intimidating manner towards her by coming right up to her and leaning over her. She said that during their relationship he had been verbally abusive towards her almost daily, including in front of the children, and that [the father] continues to verbally abuse her in front of the children at changeovers. [Ms Munn] claimed that [the father] chooses to come outside at changeovers, even though the children are of an age where they do not need his assistance, so as to be able to continue to verbally abuse her.
In paragraph 68 of the mother’s affidavit, she said:
About one or two months after [Y] was born and after [the father]’s mother left to return home to [Country C], I was putting [Y] to sleep at home. [Y] was in my arms - I was cradling him. [The father] came into the room and grabbed me by my neck with one hand. I said to [the father]:
“Stop that”.
Then [the father] left the room. It didn’t hurt but it made me feel frightened and shocked. Afterwards, I felt scared about [the father] doing something else physical to me in the future. Later on, [the father] said to me:
“I was just so frustrated so I grabbed your collar, but I wouldn’t have hurt you. You are the mother of my kids.”
(Emphasis in original)
The mother explained that she found it embarrassing and shameful to mention these matters, hence the differences in version given. She said that, generally, when they argue, she stays silent until the father walks away. It seems that the father has not been physically violent to her, and to the extent that the incident just referred indicates some degree of physical violence, is difficult to make a finding on balance of probabilities that the father did, in fact, engage in such an incident as described. The mother denies that she was ever violent during the relationship.
It appears clear that X has, from time to time, involved the father in disputes with the mother and that he has effectively undermined the mother in her role as a parent during these disputes. For example, in the mother’ affidavit, she describes the following events:
223. Across the weekend of 8 to 9 August 2020, [X] mentioned a wish to do some baking and did so with my mother’s assistance. [X] expressed a wish to do more baking during the following week and I asked [X] to provide a list of ingredients she would like. I intended to take [X] shopping on 10 August but [Y] was sick. [X] had a tantrum. I told [X] that she and I could go shopping the following day or the days following. I also tried to explain to [X] that there may not be time to bake prior to the changeover into her father’s care on Friday afternoon, given her other activities and commitments.
224. [X’s] tantrum continued. [X] then call [sic] [the father] and put the call on speakerphone. I said to [X]:
“You are welcome to speak to your dad but please do so in your room and not near me on speakerphone.”
225. After spending time in her room, [X] approached me again while on a call to [the father] on speakerphone.
I said to [X]:
“It is not appropriate for conversation between me, you and your dad to be conducted this way. Please return to her room if you want to continue the call to dad.”
Then [the father] started speaking to me.
[The father] said:
“[The mother], this is just like how things happened in our relationship.”
I said:
“[The father], I am not talking to you about our relationship. I am not talking to you about [X] while she is listening.”
[The father] said:
“[The mother], you need to give [X] a definite time for shopping. Why won’t you do that. The children like shopping with you.”
I said:
“I am not talking to you about this. This conversation needs to stop.”
[X] said:
“I don’t want to stay here. I want dad to pick me up right now.”
[The father] said:
“If mum allows it, I will come and pick you up.”
I said:
“This is a tantrum. Stop interfering, [the father]. [Y] has asked to return home to me before when he has become upset, and I have allowed you to deal with it.”
[X] said:
“I am writing all this down. I am going to tell the ICL all about you mum, that you bully me because you won’t take me shopping.”
[The father] said:
“If you give me permission, I will record you allowing [X] to come to my home.”
I said:
“I don’t agree to [X] coming to your home or giving you permission to record me.”
[The father] said:
“If there is child abuse, any recording is allowed in court.”
[The father] said:
“[X], I don’t know if I can help you. If you are stressed out you can call Police or DOCS and tell them mummy is stressing you.”
226. At about that time, I experienced light-headed feelings, and fainted. A short time later I regained consciousness. My mother took me to bed to lie down. I then received a telephone call from NSW Ambulance and I advised them that I was okay.
227. A short time later [the father] called [X]. [X] approached me with the speakerphone function engaged. A conversation occurred as follows:
[The father] said:
“Are you okay?”
I said:
“Please just leave me alone.”
[The father] said:
“I called an ambulance. Why did you refuse the ambulance? Maybe you should have gone in the ambulance.”
I told [X] to end the call.
(Emphasis in original)
It is also apparent that X has come to feel entitled to private tutoring rather than that which is offered for free at the school, which is another source of the conflict between X and the mother, as described in the Family Report dated 17 September 2021 (“the Family Report”), where at paragraph 71 the Family Report writer said:
71. [X] is in year eight at [J School]. [X] reported enjoying school, saying, “I like it, it is good, I have been there for ten years”. Her favourite subjects are textiles, designing and art. She said there were no subjects she hated, but she does not like assessments. [X] said she only performs well at school because she has tuition. [X] went on to say her mother was not supportive of her accessing tuition. She explained, however that she has tuition two hours per week ($160) when in her mother’s care but “on dad’s week I have to pay for myself because Mum refuses to do it.” When asked why her dad did not pay for tuition in his week, [X] said, “because he can’t afford it.”
A number of other examples were put to the mother to suggest that there was a basis for X believing that Y is a preferred child, such as having bought furniture for Y’s bedroom rather than X’s. The mother explained that she had purchased a bed for Y after looking for two hours with him, whereas a year after discussing furniture with X, X is still on the internet choosing and designing furniture. She also explained that X doesn’t like waiting at the more modestly‑priced hair salon like Y, but wants to attend somewhere that requires appointments and is more expensive.
During cross-examination, the mother expressed she was not of the view that it was likely that the father would harm the children, as she believes his anger is directed against her. She agreed that he appears to have made no financial contributions to the children, or at least none that she is aware of.
When cross-examined by the Independent Children’s Lawyer (“ICL”), the mother explained that she did not believe it was possible for her to move from City B, as the town is not able to obtain another specialist.
The mother explained that she is concerned that the children are engaged in too many extracurricular activities, and that X often using social media late at night is a cause of conflict between her and X.
The mother reiterated that X would often pretend that she was recording her, or threatened that she would call her father when in the mother’s household. The mother explained that she was concerned that she could not force X to go to bed, and worried that if she left the house, she would be on the streets at night, travelling to the father’s house, in the belief that her father would always take her in. This undermines the capacity of the mother to place any realistic boundaries upon X’s behaviour. The mother believes that X will comply with reasonable parenting direction, if she has no option, and does not believe that she can simply turn to her father for an alternative decision. As a result, the mother thinks it is necessary, not only for the father to enforce the Court orders about parenting with the children, but to also make clear that he would not accept X returning to his home, if it is not time as provided for in the orders made. She has some concern that Y will model his behaviour as an adult on that of his father.
When in the witness box, the mother had the appearance of a person who had been worn down by the conflict over many years. Her answers were thoughtful and direct. I’m comfortably satisfied that her statement that the conflict was too great for shared parenting arrangements, even if that meant the children had to live with the father was not a ploy or ruse. It was a genuine reflection of the difficulties that she faces in co-parenting with the father, and in no way a tactical manoeuvre on her part. On the whole, I found her an impressive witness, and generally accept her evidence.
The maternal grandmother
The maternal grandmother gave evidence with the assistance of an interpreter, although it is clear that she can read and understand English quite well. She was careful in her evidence, and on occasions, clarified an interpretation given by the interpreter. Importantly, I had no sense that the use of the interpreter was to, in some way, hide behind the interpreter rather than to ensure that, when giving evidence in a second language, her evidence was precise and correct. She was challenged as to the contents of her affidavit filed 12 August 2022, where at paragraph 22 she said:
22. On about a daily basis, [the father] said to me:
“Without me, mummy, [the mother] is nothing. She can’t survive outside this house without me”.
(Emphasis in original)
The maternal grandmother reiterated that the father was always shouting at and abusing the mother, and that there was ongoing disputes about the father wanting access to the mother’s bank accounts. She denied that the mother had said she was angry about having to enter into an arranged marriage. Her demeanour when she was challenged about her evidence set out in paragraph 22 was quite striking, indicating shock that this evidence would be the subject of challenge.
The maternal grandmother presented as a very impressive witness. I have no hesitation in accepting her evidence.
The nanny
The mother called Ms K, a former nanny, to give evidence. Ms K has worked as a nanny in the household for many years, although is not there presently as she has had an operation and is recovering. Whilst older, she expressed a desire to go back to the household to help with the children. She believed she had a good relationship with the father. She said that she commenced working for the parties by going to the house on Mondays to do cleaning work for a couple of hours and that often the father would give her orders or directions. She said mostly it was the father that was home when she was there working in the household. She said that she had worked running the children around more than one day per week, and sometimes on Saturdays.
Ms K gave evidence that she heard the father raise the voice at the mother but that she had tried to keep out of their disputes. She said that she heard him raising his voice at the mother every two to three weeks and that she never heard the mother yell back at him. She observed the father to have a good relationship with the children, although talking more to X. It was put to her in cross-examination that the mother was lazy, however her view was that the mother “did pretty well” and that the mother did work a lot but “someone had to bring a pay packet in”. Having regard to her style of expression in the witness box, this was a clear rejection of the claim that the mother was lazy.
I found Ms K an impressive witness. She gave evidence in a laconic and understated fashion, as is commonly seen in witnesses from country areas. I accept her evidence.
The father’s evidence
On the father’s case, it is clear that the parties had a less than amicable relationship. He pointed out that when he was angry with the mother, he would send her emails, even at a time when they were together and “sharing the same bed”.
Whilst he said that there was no family violence “from my side towards [the mother]”, he went on to recount in his affidavit filed 16 September 2022 (“the father’s affidavit”) that he had called the mother a “fucking idiot” around four to five times, saying, “though not correct, I feel it is justified” (Father’s affidavit filed 16 September 2022, paragraph 60). He also agrees that, on one occasion, he smacked the child X on the bottom whilst at a supermarket, which he said followed her using the word “fuck”. The father alleged that the mother had struck X, saying that X had asked him to photograph her bruise, although no photograph was produced. He also says the mother had thrown or destroyed toys and wrung the child’s hand.
Importantly, the father alleges that the mother controlled X “by having rules that are living goalposts”, psychological abuse, not responding to the child’s texts, and “financial abuse” through the threat to change the child’s school, stop extracurricular tuition or not provide pocket money (Father’s affidavit filed 16 September 2022, paragraph 62). He also says that the mother had called X a “bloody idiot”. The father was particularly focused upon a claim that X receives 50 cents from the mother for vacuuming the house, which he likened to “slavery”. Whilst the father portrays the mother’s conduct as family violence, it appears that most of the matters he is referring to are in the nature of reasonable parenting boundaries. The claim that having the child do household chores is akin to “slavery” shows no insight into the importance of children participating in the tasks necessary to run a household. To liken such family arrangements to “slavery” because of the financial returns for the child helping in the household in which she lives simply treats the mother as if she is an employer who should pay wages, rather than a family member who should be assisted by, and who should encourage her children to assist her, in running the household.
The father in alleging the difficult relationship between the mother and children, included references in his affidavit to audio and video recordings, which it appears he must have obtained from the children. The recordings that were produced at trial did not bear this out.
He also expressed concerns that the mother did not sufficiently support extracurricular activities, such as sports, although even on his own case the children have been involved in a number of sports each. This claim was supported by two witnesses concerning Y’s sport attendance (who were not required for cross-examination) who identified the Y had missed some sporting events. Given the large number of activities, it is not surprising there is some tension between the parents.

The father says that he was the primary carer of the children throughout the marriage and portrays the mother as controlling, limiting his choice of friends and declining to give him access to her finances. It is far from clear why the father would need access to the mother’s finances in this case given that he continued to operate a business of his own, and it is not said that he was required to meet outgoings, such as a mortgage. Whilst the mother did not give him access to her accounts, she assisted him with funds (despite him having his own business) for payment of rent for a unit that the father had at Suburb L, Sydney until mid-2018. If, as he alleges, she did not approve of some of his friends, the evidence in this case does not reach the level of “preventing the [father] from making or keeping connections with his or her family, friends or culture”. It is common that spouses do not approve of all of their partner’s friends, and this causes some tension for some couples. However, some degree of matrimonial disharmony on such issues does not rise to the level of “coercive and controlling” behaviour.
Although the father levels many criticisms at the mother he says that she left the home, despite him wanting her to remain. He also remains strongly focused upon equal time between the parties for the care of the children (as he has since the separation).
The father was cross-examined at some length by counsel for the mother. Whilst he agreed that decision-making has been very difficult for the couple and that the parties would need to respect each other’s views if equal shared parental responsibility were to work, I formed the clear impression that the father would be constantly insistent upon his own views, seeing his views as the only rational options.
The father focus upon shared parental responsibility is partly motivated by questions of funds, agreeing that he had made the statement to the Family Report writer that:
37. When the father was asked why he proposed the parents equally share parental responsibility for the children when he had indicated he and the mother were unable to make joint decisions, he said, “because I don’t have the money to take them for specialist things all the time. The fact that she (the mother) can financially manage that would be good, that is the only reason.”
(Family Report dated 17 September 2021)
The father strongly disagreed with the mother’s approach to parenting with respect to making X’s pocket money conditional upon her behaviour. He said that he respected the mother’s right to approach management of X in this way but that he would not support the mother’s decisions of this type. He recounted that X saw the maternal grandmother’s arrival as “freedom from slavery” with respect to having to assist with housework. In this regard, he said that if X objects to a decision, he gives his opinion. He said that he hopes that this would lead the children to discuss the issues with the mother to hopefully change her mind.
It is difficult to understand the father’s criticism of the mother’s approach to parenting in this regard. It is not only reasonable, but important, for children to participate in the day-to-day tasks essential to living in a household. Firstly, I see no difficulties with a parent imposing reasonable consequences upon a child who does not participate in the running of the household, such as declining to provide pocket money. Secondly, even if he does not agree with the mother’s approach on this issue it is clearly within the normal range of parenting approaches and to support X rather than the mother has the effect of undermining the mother’s parenting authority. It is difficult not to see the father’s conduct in this respect as designed to undermine the mother’s parenting authority. Unfortunately, it also leads to the possibility of X growing up as a spoiled child with no respect for all of the many things that her mother provides for her, behaviour that she is likely to regret as an adult.
The father accepted that the children love the mother, although his demeanour in the witness box at this point indicated that he was not desirous of agreeing to the proposition.
The father agreed that at one point, X had described her mother as a “fucking bitch”, but said that he believed that X was justified, before going on to take some effort to point out that he did not approve of such behaviour, even though he thought it was justified in the circumstances. He then said that he did not support X generally using such a term. He engaged in a remarkable level of prevarication around this issue. The result can only have been that the child would have understood that he supported her insolent behaviour towards her mother. The inconsistency of his position is remarkable when viewed in light of him imposing corporal punishment when the child had used the phrase “fucking idiot” to him.
The father thought that equal shared parental responsibility could work, but that he might have to give up on some of his values, for example, the high value that he places upon sport and exercise for the children. When asked to reflect upon the difficulties, he said that he may have to use some “softening up words” at the start and end of conversations. He appeared to have no real insight into the difficulties.
The father maintains that he continues to operate his business, although saying that he had not done the tax return for the last year, and appeared unable to give any accurate figures. He said that he earns around $300 per week from the business, but this had the appearance of a figure he had simply plucked out of the air. Remarkably, he has not applied for social security despite the very low income that he says he receives from his business. He said he simply hadn’t gotten around to applying. It is difficult to form a view as to whether the father was earning more than he admitted, or so disorganised that he couldn’t find time to attend at Centrelink despite only having the children half of the time.
The mother provides fulsome child support of $1,776 per month (in the context of the father having rent-free use of the matrimonial home). He agreed that the mother is also paying over $20,000 per annum for school fees and the bulk of the expenses for the children. He appeared to be of the view that providing X with pocket money would be a small thing for the mother due to her earnings as a medical specialist. His evidence in this regard carried an air of entitlement to significant financial support by the mother.
The father agreed that he had called the mother a “fucking idiot” four times, but he denied that he called her stupid or a “pig”. He also denied that he had thrown an envelope at the mother at one point and that he had grabbed her around the collar.
The father agreed that the mother’s response to conflict was to go silent, although said that this did not always occur. He said that such silence causes conflict for him.
The father claimed that he was not a person who harasses with long emails. However, exhibited to the mother’s affidavit is a single-spaced email that runs for nearly three A4 pages. Whilst it is a lengthy email, I include it in full so as not to misrepresent the nature of it:
I had started this before your lawyers letters.. so I thought id finsish it... now Im done ..in the future its about the kids
Last note to you about us - after this its only about children.
This is a private note not to be used in a court of law- “Without prejudice”
Hi [Ms Munn]
Just put everything in points
Busy busy busy.. too busy to discuss and listen.... Those bonuses cost you a marriage
Your busyness at work made discussion with you difficult. That was compounded by the fact that u were not much of a talker and in the later stages of the marriage you viewed any discussion as an argument. Not listening does anger the other person.
in life u can only walk away from non-listeners when persuasion fails.. but what happens when the non- listener is your spouse?.. you can avoid the person or you can get frustrated or you can get angry.
I chose the angry path - but it was occasional and activity/very much subject related, never constant - as it was the least destructive (surprisingly yes... the other 2 would be very destructive)… but you too were an angry person very often.... but a silent anger and almost always! Those bonuses you recd for working weekends were very expensive
Comments on figure /physique
Most women don’t like a negative comment on their figure.
What if that comment were true and it was a correctable matter and a health concern of the future
At a stage you avoided me seeing you without clothes when I pointed out u were getting a stomach.
Ive read of women breaking up marriage because of a single comment... sad this is behavior that women need to change... sensitivity to a negative comment.. especially if it is true!.
(This happens…. but so do murders, holocausts and other crimes... because it happens its not acceptable.)
How different it would be if you said .. yes it is growing... guess its inevitable with age and work schedule... and inspite of a good diet by me.... This would iust lead to acceptance by the spouse .
Avoidance of a person would lead to reciprocal behavior... you avoid me I avoid you.
Sometimes it takes a child to tell the emperor/empress he/she has no clothes. Yesterday or a few days before [X’s] friend […] at the post office asked her if you were pregnant !!!!
In future id suggest don’t shoot the messenger, and listen to the message.. yes it may not be a positive message always but it is basically well intended, private and not intended to demean but to improve you say thanks and mean it.
Back to the biggest point
For any marriage to be successful there have to have commonality in the future plans
One school parent asked me why the marriage broke up.. I explained I was unhappy with you hiding your money and therefore I kept a physical distance. His response was in marriage there should be one bucket, both put in what they earn in that and both take out from that and have savings and investments from that. I was doing all the house work for nothing oh sorry for food .
you pay [Ms K] more than you ever allowed me to spend on myself ,
You must realise that no 2 people will make exact contributions.. I perfectly understand your feeling bad that you had to share your high Income with my low income. I was not happy about my low contributions and I could do nothing about it but try and take on more household jobs as compensation.. but without commonality there was no future. There was no way I was going to give up my job however meagre to do all the housework for a person who hid things.
Life is interesting and complex but it balances out ….. normally the high income earner provides and the house managing partner looks after the other persons health and well being .
Its my belief and conviction that if after much request if one person has not shared the positive things that have happenned the other person should not share the negatives.
So if a high income earner has not shared monetary success why should the other partner be caring if the high income earner has health issues. This is the rational mind speaking and the not heart.
After his health scares [Mr M] is being nice to [Ms N]...
Im fortunately spared of this as now even neither of us has to care about the others health
I do not know why u chose to be secretive about your income perhaps it is the way your father was, perhaps he didn’t do things logically and so you don’t trust males, perhaps that is what your brother does .... If that was the case your role models were not ideal. that was your insecurity not mine.
I did not marry you because u were going to be rich.. I never knew that...
Even though I m not religious the Christian vows always made sense -For better, for worse, for richer for poorer; In sickness and in health. But its not a one way street!
Some smart couples realise everyone has talents that can be put to use. My efforts at investing could have paid big dividends to the family.. but I suppose you didn’t want anything I would get some credit for. Some mothers can teach, some fathers can motivate ….. these are essential skills that are not monetized , there is no value put to it unlike a salary
Distractions
In hindsight I so badly wished that you had a boyfriend or more in your youth . If you had you would understand that loud people can be open , kind and caring, that soft people can be sly , dishonest and selfish that good can come with bad... a good wrapper does not indicate a good gift !
I would be encouraging [X] to have a boyfriend after studies or when she gets a full time job. In fact id encourage it even if she gets into a professional college it ...she would learn to judge persons better and know what destroys relationships. better the negative experience before children than after. Because younger romances and extramarital affairs have no repsonsibilltes -I.e children - they are tremendously exciting. id rather she have younger romance than an extramarital affair
When bananas are all you have had the first apple will taste delicious. The apple tempted you!!!
Sex:
If we want sex in a relationship we need to do things that make ourselves attractive...
Kindness, Humour, Trust, lightness of mood are the mood / emotional factors and then there is the physical factors ...Physical fitness including skin clarity ( not color) and muscle tone
You made no attempts at the last 2 inspite of me nudging you about it.
Your height , eye colour, hair type, skin color are things you were born with - it is wrong for me or any one to expect change in those areas... but skin clarity and muscle tone, dress sense most certainly can be improved.
I could demonstrate with 2 photos.... one of you and one of my classmate a busy dentist 8 years older than you , I recd both photo at approx. the same - but I wont send it unless u ask. Both the photos were recd a few days apart and in Dec last year
I would never feel like sexually engaging with a hurried, busy, secretive, stern faced person who has not done much for my betterment, nor treated me as an equal .... Would you ????
Ah the passage from the bible comes to mind - Do unto others as you would have them do unto you !!!. I wish you had read that !!!
Men look at bodies more than women - women at faces, words matter to women and often you see many women being scammed by one man (he says the right things but doesn’t mean it).
Men rarely get back with their ex partners.. because ex partners age and they are far from the person they were in physical looks. Men however do get very attached to spouses and the relationship/love is primarily companionate over time and not passionate like the younger years..
Men are often more devastated by a break up and Women will break up a relationship for love and passion and appreciation elsewhere when there isn’t enough in their marriage... I misjudged you and thought u were stronger. If these are weakness tendencies in the sexes it doesn’t justify them - just as men tend to be more violent than women / doesn’t mean it acceptable.
We didn’t marry young, I was 8 years older , you weren’t open and used your higher income to attempt to control. I can tell you again the first few days in the [P Region] were possibly my happiest days - kids independent, you relaxed.. after the “me accessing your phone / video” incident your mood had soured and thoughts of breaking up were in you. that was just after you wanted to make a joint 1.3 million purchase .. wow changes can happen fast.
A friend In my whats app group wrote /forwarded this message to the group
In life , we find value for each other only when we feel dependant to each other and we realise one has to depend on the other to attain anything, if we feel independent and feel one can attain everything on his / her own is wfiere we can not see value of each other
You unfortunately were not dependent on me .. at least seemingly.. but time will tell
Another friend suggested “maybe [Mr Hartman] she [Ms Munn] was expecting an apology from you to get back together... I assured him that’s absolutely not coming from my sides as the mistakes were [Ms Munn’s]... yes I can apologise for the household clutter- but that really was because I got no “me” time and the lack of a steady income which was beyond my ability... but nothing more. I did my best and have no regret. The kids however suffer.... Reduced time , reduced inheritances etc ( [Ms N] first words about her MIL seperation were - she has cause so much economic damage , 2 houses to maintain)
Once [X] and [Y] are older and busy with jobs . kids and families they will have to devote and divide their precious time between 2, 3 or 4 parental households . (3 if their partners parents are together, 4 if they are not)..going to interesting .
Ok that’s it
(Mother’s affidavit filed 12 August 2022, exhibit MM-15)
(Emphasis in original) (As per the original)
When the father was cross-examined about the email said that he regretted that it was so “misinterpreted” and accepted that “possibly she may feel hurt”.
He adhered to his views expressed to the Family Report writer that the mother is a “narcissist” (Family Report dated 17 September 2021, paragraph 29). He said that he believes that the mother needs education about nutrition and the benefits of exercise.
An example of the conduct of the father as, using his term, a “tiger dad”, is provided by the dispute he had with the sporting coach. The father had been dissatisfied with the sporting coach, providing direct feedback, as he recounted it, in an email to the mother. That email is set out in the mother’s affidavit as follows:
[Ms Munn]
Parenting can not quite be delegated . Nor to a certain degree can coaching in sports. Children need constructive feedback be it negative or positive if you are not monitoring or there is no report card at the end people/coaches will tell you that your child is doing an excellent job as long as their fees is continued. As long as there is billing time involved- everones your friend -
(including lawyers.. ha ha)
You have to demand your pound of flesh - ie performance from them
I have been observing [X] in [a sport]. Her game is 10 notches less that mediocre. I have not hesitated in telling [X] this and today I let the coach know.
The first thing you learn in [this sport] is how to hold the [equipment]. [X] does not even hold the [equipment] in the correct position
In [this sport] there is now a 30 metre rule perhaps to get rid of critical parents. It shouldn’t work that way . Criticism and feedback should be welcomed.
I went to [Mr Q] and asked him if wanted feedback which I would give [Mr R]. He had no choice so he said yes . I told him ive had about 6 coaching lesson in [Country C]- the first thing we learned on day one was
[basic technique]
[X] is doing none of it - she is having fun, with a coach who provides plenty of affirmation and minimal guidance.
[Mr Q] insists this is a problem he always had with [X] and he has been telling [X] this... [X] kept silent.. later she said he never mentioned it to her.
So would you want to give [Mr R] the feedback or do you want me to .
[X has] got a talk from me and she will get more ... at least on my days. My criticism she knows is factual and intended to make her improve.. ive given her 15 pages of my own [sporting] notes.
The younger days are for the kids to have fun - they must enjoy going there – [X is] beyond that she needs pushing,
feedback/monitoring [Mr Q] in my opinion Is just a paid appreciater not good coach - if you are in agreement ill ask for a better coach /change of coach, 2 great coaches are […] and […]- (he manages the squads)
Perhaps let me handle this on my own . Trust me this will be like [X’s] school bullying and you are welcome to subpoena all that I tell the coach / [Mr R] .. I can save you money and cc you
[Mr Hartman]
(Mother’s affidavit filed 12 August 2022, exhibit SG-48)
(As per the original)
The father is of the view that X should not just be having fun at sport, but also improving, stating that, “if she is having fun, that is good” but that she needs to follow correct techniques in playing the game.

The feedback to the coach was also delivered to the coach by email, provided by the mother in her affidavit as follows:
Hello [Mr R]
I was observing [X] and [Y’s] game last Tue ...
What I saw was disappointing – [X] was never [following technique] .. just having fun ! And this is after years and years of [this sport].
Fun is important but I do thing it incumbent on [Mr Q] to point out and pull up the kids. [Mr Q] says he has told [X] this and [X] denies this .
Need a tougher coach .
[Y] is yet young and uncertain of his like for [this sport]- so we want him to like the game so not too lough on him but do point out techniques to both
Ill discuss with my ex wife and talk to you about squad and kids progress
Regard
[Mr Hartman]
(Mother’s affidavit filed 12 August 2022, exhibit SG-49)
(As per the original)
The father’s recounted this issue to the Family Report writer, who said:
63. In terms of preferences for the children’s activities based on gender, the father said, “society has its own bias. You want women to be attractive but you want them to be healthy and strong. I encouraged them to have strong bones but I might not be encouraging her ([X]) to be androgynous in her looks or to be a weightlifter, it will affect her life. If she does it, that will be her choice, I love all sports. I did tell my daughter, not too much into [a certain sport], but up to you.” The father went on to say, “I am against my daughter at her current [sport]. She is enjoying it with her coach, he is not doing a lot of techniques and is not pushing her. There is another coach who is stricter and tougher and he does a great job with the children but [the mother] won’t change. [The mother] is hands off and she does not know what is happening. I can see that guy. I had a little strong discussion with the owner of the academy and they finally agree with me. It is not social, the aim is for skill and technique, the reason for coaching is avoid injury, to learn to hit better, for better technique. She is enjoying [the sport] but I am for getting her to another level.”
(Family Report dated 17 September 2021)
The child is not competing in high level competition sport. The attitude of the father appears to be out of all proportion to a situation where a child is simply having sport lessons as an extra-curricular activity.
The father was asked about whether he thought that X’s definition of a “narcissist”, as given to the Family Report writer, was correct. The Family Report writer recounted:
83. When asked about things she enjoyed doing with her mother, [X] said “I don’t do anything with mum.” [X] was asked for an example of when she had done something enjoyable with her mum and said she could not recall any occasions. [X] went on to say, “I hate my mum, she is a narcissist, she is controlling.” When asked what being a narcissist meant, [X] said she had done her research and commented, “they will feel upset if someone leaves them but if they leave someone that is fine. They are just a bad person. She will favourtise. She says I don’t compare you but she does.” [X] said when she talks to her father about the mother being a narcissist, “he says, yep she is a narcissist. When I have googled him and showed him stuff (about narcissists) he thinks the same thing as me. Me and dad are very similar except for reading. We both know what mum does is not fair. I have seen her be rude to other people, we have lost friendships because of her.”
(Family Report dated 17 September 2021)
The father agreed that X’s definition was wrong but denied that she obtained the definition from him. He, nonetheless, maintained that the mother is a “narcissist”.
He was also asked about his opinion of the mother’s strengths, as recounted by the Family Report writer:
30. When asked about strengths of the mother, the father spoke about the mother indulging the children financially but stated he was not in favour of this and that he had made the children “unlearn what they are learning with her” when they are in his care. When it was noted he had not identified any strengths of the mother in his statement, the father said, “this is a period of stress so I find I am being negative.” When again asked if he was able to identify any strengths of the mother, the father said, “she has the ability to sleep, she can sleep long hours which I can’t which keeps her functional.”
(Family Report dated 17 September 2021)
The father said that he had revised his opinion and formed the view that one of the mother’s strengths was her “financial capacity”. It is remarkable that this is the only positive he could find for the mother. It is also striking that the father continues to seek shared care with her despite being unable to articulate any strengths on her part beyond her financial capacity.
The father was also asked about the mother’s comment to the Family Report writer, where she said:
56. The mother believes the father does not have any boundaries with the children, such as no bedtime and unlimited access to electronic devices. The mother said the father has high expectations of the children from both academic and sporting perspectives and can place a great deal of pressure on them in this regard. The mother said the father has views about which activities which will most contribute to physical attractiveness of each child which is different depending on gender. The mother believes the father denigrates her constantly to the children and places loyalty demands on the children.
(Family Report dated 17 September 2021)
The father said that there is a bed time for Y, which Y complies with. He said that there was not a bed time for X as he believed that her teacher had said to leave her alone without a fixed bed time as she has a lot of school work stress. Not only does he not enforce a bed time for X, but he does not take her phone or iPad so she has access to those devices all of the time. I am not persuaded that a child of X’s age should not have a reasonable bed time.
The father was asked about examples of him undermining the mother’s authority with X, for example, as outlined by the Family Report writer:
57. The mother said she tries to implement age-appropriate consequences and boundaries with [X] and when [X] does not agree she ([X]) involves the father. The mother said the father then actively becomes involved in the dispute, supporting [X’s] position thus undermining the decision she has made. The mother said the father had recently picked [X] up after an argument between her and [X] which was against the mother’s expressed wishes. The mother said it is all but impossible to manage [X’s] behaviour when the father intervenes in such a way.
(Family Report dated 17 September 2021)
The father said that X sees him as more reasonable and, therefore, goes to him when there are disputes. He then rhetorically asked why the mother was not able to handle the situation. However, he pointed out that, in his view, he is not always on X’s side.
In August 2020, X attended at the mother’s house upset after school when she was due to be in the care of the father. The mother calmed her down and returned her to the father’s home. This incident is set out in the mother’s affidavit as follows:
201.On 3 August 2020, [X] turned up at my home upset after school. She was due to be in [the father]’s care. I calmed her down and returned her to [the father]’s home. [The father] sent me a text message at 4.34pm that stated”
“[The mother] I am letting you know that I intend to record some or all all interactions between [X] and you that I witness.. purely to use as evidence in a court of law.” I responded to [the father] at 5.00pm by text message advising “[The father], I do not consent with you recording my conversations with [X]. I feel both of us should try our best to comply with the court orders.”
(Mother’s affidavit filed 12 August 2022, paragraph 201)
(Emphasis in original)
X rang the mother numerous times, threatening to ride her pushbike from the father’s house to the mother’s house, which the mother said she ought not do because she was concerned that it was dangerous. She also told the father the same thing when he telephoned her. The mother also received a phone call from X using the video function on her phone, which led her to believe that X was recording the call.
Later that afternoon, the father pressed the mother to return to partial week arrangements rather than the week about in the court orders. The mother asked the father to stop calling and to stop X calling and asking for changes to the arrangements that had been put in place by the court order. Nonetheless, X arrived at the mother’s house shortly before 6 o’clock on her bicycle even though it was dark at that point.
When viewing this incident as a whole, it tells strongly against the father being prepared to act as a parent and interact on a reasonable level for co-parenting with the mother.
Whilst the father appears to have recorded the mother on numerous occasions, he said that his last recording was a year ago because he is “just tired”. It seems more likely that the father tired of making recordings as he was not able to obtain evidence that confirmed his criticisms of the mother.
The father had, earlier in the proceedings, sought to have X give evidence and recounted that he was told by his lawyer that his lawyer would withdraw if he pressed his lawyer to make such an application. It appears that he had not reflected upon the consequences of such an application and, importantly, that it may have led to X being cross-examined in this dispute. I note that, at least on the evidence before me at trial, the application had no prospects of succeeding and that the lawyer was right to refuse to make such a hopeless application.
Counsel for the ICL provided the father with an opportunity to give examples of when he supported or advocated for the approach taken by the mother, to which he said that, with respect to an extra-curricular activity, he had told X that it was, “up to your mum”, and that when X wanted morning training for sport, he had told her that it was not possible for her mother to do it.
When questioned by counsel for the ICL with respect to his recordings, he said that he had told X he was recording interactions of them for Court proceedings, although accepting that it was inappropriate to involve X in discussions about the Court proceedings. Although, he then said that he would record conversations again if his lawyer so recommended. His views seem to be simply rules based and without insight into how such conduct affects family relationships.
The Family Report writer asked each parent about mental health issues, recounting that:
67. The father spoke at length about his belief the mother has narcissistic behaviour but commented it is hard to diagnose a narcissistic personality disorder. When asked what behaviour indicated narcissism by the mother, the father said the mother had wanted [an expensive] car and also wanted a specific style of house (two story) which was not practical for when people get older. He described this behaviour as irrational and not logical.
68. The mother said she did not know if the father would qualify for a diagnosis in relation to his mental health but she described personality traits which were of concern to her. This included superiority, grandiosity and a lack of empathy for others, believing it is appropriate to be critical.
(Family Report dated 17 September 2021)
The father’s definition of a “narcissist” is that of a person with a strong sense of self entitlement who thinks of themselves first. This is a very long way from the criteria for narcissism as a psychiatric disorder. For example, nothing in the father’s evidence indicates that the mother has a grandiose sense of self-importance, nor that she has a preoccupation with fantasies of success or brilliance, nor that she has exhibited a belief that she is special or unique (beyond what would ordinarily be expected from a person with a reasonable degree of self-respect). There is no evidence to indicate she has an excessive need for admiration or a sense of entitlement, nor willingness to exploit others for personal gain. The behaviours the father recounted to the Family Report writer represent entirely normal aspirations of many members of the community. I am not in any way persuaded that the mother demonstrates behaviours that would arguably require assessment by a psychiatrist on the basis of falling within a criteria for a mental health disorder. I reject the proposition that the mother is a “narcissist”, and indeed also reject the implications from a more populist use of the terms that she is either selfish, self-centred or manipulative. Incredibly, the father nonetheless sees the mother as, in his words, “a loaf of bread with a slice missing”.
The father maintains that he is seeking a shared care arrangement by way of partial weeks because X is unable to cope with a whole week with the mother due to stress, and that he wants the relationship between X and the mother to be good. Having regard to the lack of boundaries that X appears to have experienced with the father, and the mother’s attempts to impose reasonable boundaries, it is not surprising that X would find life difficult at her mother’s house.
Surprisingly, despite recommendations in the family report with respect to parenting courses and counselling, the father has not engaged in either.
I generally found the father a less than satisfactory witness. My impression of the father in the witness box was that he was very self-centred, uncompromising and lacking in insight as to the effects of his behaviour upon others. His claims to have examples of many pleasant or respectful emails were not supported by the production of the alleged emails. Similarly his claims of other recordings of the parties did not lead to them being produced. I could not help but have the sense that his entire focus is simply to create outstanding children (he even describes himself as a “tiger dad”), and that he saw the mother as no more than the source of the funds for his project. To the extent that his evidence conflicts with that of the mother or her witnesses I do not accept his evidence. Having seen the father in the witness box, I have no hesitation in accepting the mother’s position that, effectively, it would be intolerable for her to continue in a shared parenting arrangement with him.
The paternal grandmother
The paternal grandmother gave evidence, using an interpreter. Unfortunately, her evidence had to be by video as she was not in Australia. She said that the father had asked her for an affidavit but that she had written it herself. Given her need for an interpreter, and both her and the father’s inability to produce the original version of the statement she said she produced, it appears to me to be likely that the affidavit was prepared by the father rather than her. It was difficult to assess her evidence due to the extensive interactions with the interpreter. She said that the mother was short-tempered, shouted, was moody, and on one occasion slapped the father. I did not find the paternal grandmother to be impressive as a witness and I am not prepared to place weight upon her testimony.
The Family Report writer
The Family Report writer provided a lengthy report reaching the following conclusions:
EVALUATION
100. It is positive that both parents present as very focused on assisting the children to achieve their full potential and it is the writer’s view that each parent has the potential to bring unique and positive experiences to the children’s lives. Further to this, both parents present as being able to provide for the children’s day-to-day needs. It is of concern, however, that the parents are not able to work effectively together around the children’s needs and that each parent alleges that [X] is at risk of emotional harm in the other household.
101. Regarding alleged emotional harm for [X] in the mother’s household, the father blames the mother for the high conflict alleging it is instigated by the mother because she does not appropriately attend to [X’s] needs such as paying for her tuition, not paying for clothes she wants and/or not getting groceries [X] wants to purchase at a certain time. The mother accepts there is conflict between herself and [X] and asserts it is associated with normal adolescent behaviour where [X] is focused on her own needs being met, which conflicts with the mother trying to implement age-appropriate boundaries and consequences. The mother asserts the father is emotionally harming [X] by joining with [X] in antipathy towards her and undermining her decision making and relationship with [X].
102. On the information available the writer is of the view that the boundaries (financial and otherwise) and consequences the mother has been attempting to implement with [X] are both appropriate and reasonable. Further to this, the father provided recordings to the Court which support the mother remaining calm and rational even when under considerable pressure from [X]. Given this, the father’s support of [X] in terms of agreeing with her and actively intervening (for example by picking her up from the mother’s home) is of concern and demonstrates a lack of insight on the father’s behalf. Specifically, the father’s approach is one which is acting to deepen the divide between [X] and her mother, as opposed to supporting the mother’s attempts to implement age-appropriate boundaries and consequences.
103. The interview with [X] raises particular concern regarding the father influencing [X’s] views in relation to her mother. This is evident in the content of [X’s] interview mirroring much of the father’s interview, such as providing the same example as the father of the mother being “irrational”, [X] stating she and the father discuss the mother’s “narcissistic” behaviour and [X] blaming the mother for forcing her to pay for tutoring, when in fact it is the father who is requiring [X] to do so as it is during [X’s] time with him. The father’s success in influencing [X] is evident in [X] stating she hates her mother and there is nothing she enjoys doing with her mother which is a response which is not congruent with the reported extent of conflict between [X] and her mother.
104. Whilst the father was polite and cooperative with the writer, this assessment has identified concerns that the father presents as having rigid views, lacks empathy for others and has stereotyped roles regarding femininity/masculinity and physical appearance. These beliefs are evident in the father’s statements to the writer and also in the email correspondence with the mother. The father is very open about his approach in this regard and presents as having no insight or remorse regarding how his behaviour may impact on others, preferring to blame others for being overly sensitive if they are offended or if they feel emotionally distressed by his behaviour towards them. This style of interacting is of concern in relation to the father’s ability to engage in co-parenting in a respectful and appropriate manner noting the email communication provided to the writer supports the father has a tendency to communicate with the mother in a manner which is likely to be perceived by the mother as patronising and highly critical. It is also of concern with regard to his parenting approach given empathy, flexibility and a child focus are cornerstones of appropriate parenting approaches.
105. The mother presented as having some struggles to manage the dynamic associated with [X] being in the adolescent stage of development, however, presented as being reflective about her own parenting and the need to be flexible and to adapt to changing circumstances. Importantly, the mother has insight into [X’s] emotional needs and the importance of continuing to implement boundaries and consequences even under trying circumstances. The mother also has an approach to co-parenting which is designed to minimise conflict where possible. Whilst it is not suggested the mother should pay for [X’s] tutoring, it is noted that if this were to occur in the interim until a final decision was made in relation to parenting arrangements, it would act to reduce conflict and thus would reflect a child focused approach.
106. Both parents openly conceded there is no productive communication between them and that the co-parenting arrangement is characterised by disharmony and dispute. Both parents provided the writer with a myriad of examples as to the disputes and disagreements which have occurred with regard to co-parenting, opining that they were reasonable, child focused and flexible but the other parent was unreasonable, not child focused and inflexible. Both said there had never been a time when they had been able to effectively co-operate around the children’s needs. The conflict between the parents is entrenched and there is no information available to suggest that there is likely to be any marked change in this dynamic into the future. Accordingly, it does not appear appropriate for parental responsibility to be shared..
107. Given that shared parental responsibility is not appropriate it would follow that it is not in the best interests of the children to live in an equal time arrangement. Therefore, in considering the circumstances in both of the households the mother appears to be best placed to meet the children’s emotional needs in the longer term and accordingly it is recommended the children live with her.
108. If the Court supports the children living with the mother, the Court will need to consider the extent of time the children spend with the father. This is a complex consideration given the children clearly have a very positive relationship with the father, but limitations have been identified regarding the father’s approach to parenting and coparenting which the children need to be protected from. Unfortunately, given the father has stated his unwillingness to shift his behaviour to a more child focused approach, the only means available to protect the children is to reduce the amount of time they are exposed to his behaviour. The writer acknowledges that a reduction in time for the children with their father is likely to be very distressing for the children in the short term, but sees no alternative given it is considered such an arrangement will provide the children with the greatest opportunity for increased stability in the medium to longer term.
RECOMMENDATIONS
109. It is recommended the mother have sole parental responsibility for the children.
110. It is recommended that the children live with the mother.
111. It is recommended the children spend each alternate weekend with the father (Friday to Monday) but the orders may need to be revisited if the father does not comply with orders relating to the children’s time with the mother.
112. The parents may benefit from intervention designed to improve their co-parenting relationship such as that provided by [S Services].
(Family Report dated 17 September 2021)

In evidence, the Family Report writer noted that the children have a warm and loving relationship with the father and she expressed some concern that if the orders sought by the mother were put in place, X would be resentful towards the mother. She believed that the mother’s proposal would be difficult for the children, particularly as X is currently looking to arrange her world to support her needs in circumstances where the father has a very relaxed approach to parenting, and the mother is attempting to put boundaries in place which the father is undermining.
The Family Report writer expressed the view that the father saying that the mother is a “narcissist” not only impacts upon X directly, but also undermines her relationship with the mother and involves her in the dispute.
When asked for her views if the Court were to find that the father’s behaviours were deliberate and/or the product of a lack of insight, but nonetheless would be unrelenting, the Family Report writer thought that less transitions would be preferable. She considered that shared parenting would heighten the stress of decision-making all the time, particularly in circumstances where it seems unlikely that both parents could be pleased by the decision.
The possibility of splitting the siblings was explored by the Family Report writer, who was of the view that the arrangements should try to promote the siblings remaining together as much as possible as the sibling attachment is the longest attachment they are likely to have in life.
The Family Report writer was of the view that the mother is the most able parent to meet the children’s emotional needs and that she remains of the view that the children should live with the mother and spend time with the father.
The Family Report writer explained that she was of the view that there was entrenched conflict in this case and provided detailed examples of X’s clear involvement in the Family Report, saying:
83. When asked about things she enjoyed doing with her mother, [X] said “I don’t do anything with mum.” [X] was asked for an example of when she had done something enjoyable with her mum and said she could not recall any occasions. [X] went on to say, “I hate my mum, she is a narcissist, she is controlling.” When asked what being a narcissist meant, [X] said she had done her research and commented, “they will feel upset if someone leaves them but if they leave someone that is fine. They are just a bad person. She will favourtise. She says I don’t compare you but she does.” [X] said when she talks to her father about the mother being a narcissist, “he says, yep she is a narcissist. When I have googled him and showed him stuff (about narcissists) he thinks the same thing as me. Me and dad are very similar except for reading. We both know what mum does is not fair. I have seen her be rude to other people, we have lost friendships because of her.”
84. [X] also said, “she (the mother) was the controlling one (in the parental relationship), she controls the money and everything, I remember someone told me, when they were going to buy a house together, she would pay for half of it, put it in a fund and dad was like yep and then she said I will be the trustee and it would be in her name and not dads. She would limit the stuff he could do, like she would not let him see any friends or anything, he could not go out with her permission.”
The Family Report writer maintained her view that the children would be best living with the mother and expressed strong opposition to them living with the father, pointing in particular to the father’s self-reported behaviours which placed X in a difficult position with respect to her parents and undermined the role of the mother.
The Family Report writer was asked about the possibility of a moratorium on contact to the father if the children are placed with the mother in order to break the cycles and allow them to settle in the mother’s care. She noted that this would be likely to cause distress to the children, although a break in the arrangements may be necessary to enable them to settle in. The Family Report writer believed that it would be necessary for this to be away from City B to be effective. She reiterated her view that the children need a break and some peace and calmness in their lives, but also identified the risk of resentment by the children if there was a break in their time with the father.
The Family Report writer was of the view that the father would not change his approach and that this must be taken into account in considering appropriate arrangements. The Family Report writer considered that there were no particularly good arrangements left open in this case.
When cross-examined on behalf of the father, she reiterated her views as set out in the Family Report that the “parents may benefit from intervention designed to improve their co-parenting relationship such as that provided by [S Services]” (Family Report dated 17 September 2021, paragraph 112). However, she stated that ideally, this would have been done before a final hearing to determine whether it could reshape the behaviours of the parties, and that counselling of this type would require intensive one-on-one work.
The Family Report writer also noted that if the current situation continues, X may come to resent the father in the long term. The Family Report writer’s evidence was impressive and I have no hesitation in accepting it.
SUBMISSIONS
At the end of the case, counsel for the ICL submitted that co-parenting was ineffective in this case, pointing to the propensity of X to telephone her father during disputes with the mother, the tiresome at times offensive emails and texts, and the issues concerning tutoring and sport and finances. The ICL submitted that the Court should conclude that the father had been verbally abusive of the mother, yelling and describing her as a “fucking idiot”.
The ICL pointed to the father’s obvious incapacity to restrain himself from taking steps to undermine the mother and effectively denigrate her, pointing to his recording of the mother, which was clearly adverse to any reasonable parenting relationship, his demeaning comments describing the mother as a “narcissist” or “a loaf of bread with a slice missing”, his inability to identify anything more than the most perfunctory items that are positive about the mother, directing the child to ask the mother about time when clearly this is a matter that should be negotiated between the parents, the bicycle incident, and the father’s statements that he could not force X to go to the mother’s house.
The ICL, at the end of the trial, also supported a moratorium in the terms that the mother had put forward. Ultimately, the ICL supported the orders sought by the mother.
I accept the ICL’s submissions.
Counsel for the father relied particularly heavily upon the affidavit evidence of two witnesses who were not required for cross-examination, Ms T and Ms U, reading extensively from their affidavits in his address. Unfortunately, little evidence was given as to what was described as an “incident” involving the younger child (Y) and Ms T’s child, as alluded to in paragraph 15 of Ms T’s affidavit filed 7 September 2021, and the mother was not cross-examined about the proposition counsel sought to draw from the affidavits, namely, that the mother did not ensure the Y’s regular participation in his sporting activities. It is also difficult to draw strong inferences from this evidence, given that the issue of attendance of Y at sport is relatively minor in the scheme of the case as a whole. I accept that there have been occasions where the mother has not ensured Y’s attendance at sport, however in the context of the large number of activities it is difficult to see this as a significant issue in the proceedings.
Counsel for the father also made submissions concerning whether or not the mother had been wanting to separate from the father for a long time and that the marriage was unhappy. Many parents persist with unhappy marriages for a variety of reasons, not least of which is to protect their children from the anguish of parental separations. I am not persuaded that there is any real significance in this issue in the context of determining the current parenting arrangements that are appropriate for the children.
Counsel suggested that the mother’s position of retreating and becoming silent in arguments should be considered to fall within the rubric of “family violence” as defined in s 4AB of the Act. Whilst I would not rule out the possibility that in unusual circumstances non-engagement by a spouse, such as declining to participate in a discussion may amount “behaviour by a person that coerces or controls” – it would be very unusual: see s 4AB(1) of the Act. Spouses argue from time to time and upset each other, however the coverage of s 4AB of the Act is not such as to require the impossible ideal of perfectly calm behaviour, rather to constrain violent, threatening, coercive or controlling behaviour. I am not persuaded that the mother’s non-engagement in disputes with the father can be seen in any sense as an aspect of family violence in this case, particularly when one has regard to the example in s 4AB(2) of the Act. Indeed, one must ask: what else was the mother to do if overwhelmed by emotion in an argument? I also reject the suggestion that the mother engaged in family violence as a result of refusing to share her bank accounts with the father. In s 4AB(2)(g) of the Act an example of the type of behaviour that may result in coercive or controlling behaviour is given as “unreasonably denying the family member the financial autonomy that he or she would otherwise have had”. In this case, however, the father sets out impressive qualifications, and a history of running his own business. There is nothing to indicate that the mother denied the father the financial autonomy he “would otherwise have had” as he continued to operate his own business.
Ultimately, the father submitted that his preferred position was not to change the current arrangements, despite the fact that, on the evidence as a whole, they are unrealistic. That the father would persist with this position, despite seeing all of the evidence at the trial, again demonstrates his lack of insight into the difficulties. The father’s secondary position remained that if there were to be a change, the children should live with the father. If there were to be a moratorium on the father’s time, it was submitted that it should only be over the school holidays.
Counsel for the mother pointed to the fact that the affidavits of Ms T and Ms U relate to matters that the mother was not cross-examined about when, in substance whether or not the mother had not taken the child to sport from time to time, seems a minor matter in the context of the other matters discussed in evidence.
Counsel for the mother pointed to the fact that there did not appear to be any real challenge to the mother’s evidence as set out in paragraphs 202 to 253 of her affidavit filed 12 August 2022 with respect to the father involving the children in the conflict, nor did the father appear to see any real problem with having recorded various conversations. Counsel also pointed to the fact that one could observe the mother physically withdrawing slightly and becoming more quiet when cross-examined about violence, relying upon matters confirming her evidence that she backed away from conflict, as set out in her affidavit. As counsel pointed out, the mother appeared open and honest when she explained that she could not see how ongoing shared care arrangement could work.
Counsel for the mother addressed the difficult question of X’s conduct and the difficulties that there have been between X and the mother, pointing out that on two occasions X had left the father to go to the mother’s house and that the father had effectively enlisted X in supporting his request for shared time using partial weeks. Counsel also pointed to the fact that, ultimately, X appeared to comply with her parents’ directions once she no longer had other options. It is also notable that X appears to be doing well at school and not having behavioural difficulties at school, and, therefore, must be capable of complying with reasonable requests and staying within boundaries, at least in the school environment.
Counsel for the mother referred to the dynamics around money and the way in which the father appears to approach that issue and the attitudes that are now being displayed by X, at least, with respect to demands of money from the mother.
Counsel accepted that the proposal of the mother could fail but argued that it was appropriate to put in place the mother’s orders as to do nothing is a significant downside, given the arrangements to date and the poor role model that the father presents for the children.
THE STATUTORY PROVISIONS
Children’s issues are determined in accordance with Pt VII of the Family Law Act 1975 (Cth). The objects and principles of Pt VII are set out in s 60B of the Act. The Court has power to “make such parenting order as it thinks proper”: see s 65D of the Act. Whilst s 65D of the Act is in broad terms, the best interests of the children are the paramount consideration: s 60CA and s 65AA of the Act. In order to determine the best interests of the children it is necessary to turn to s 60CC of the Act. It is convenient to commence with the secondary considerations before turning to the primary considerations.
The children have both expressed views to the Family Report writer that must be carefully considered. X appears to have a conflictual relationship with her mother, the Family Report writer saying:
85. [X] told the writer, “I want to do three and a half days, three and a half days and if I don’t get that I want to be with Dad the full time, because I can’t stand to be with mum.” When asked why this was the best, [X] said it would mean that she would not have to move items between the houses all the time for extra curricular activities. She said it would also mean she got to see both of her grandmothers frequently. [X] also stated, “we miss our dad and we sometimes miss our mum. If I argue with Mum, like every second day, now I am trapped there for the whole week and she does not forgive and forget.”
86. [X] said if the Judge ordered week about or for her to live primarily with her mother, “I don’t want to do it, one hundred percent I will not stay with my mum full time, I would rather go with my friend. If we did one week, one week it would be so hard. If [Y] said he wants to be full time I don’t think he does, he wants to be with them both. I don’t want to lose my brother. I want to live with my brother but I cannot stay with my mum full time.”
87. During her interview with the writer on 13 September 2021 [X] reiterated her previously stated views. Again, the primary theme was about money with her stridently expressing the view the mother is “controlling financially”. [X] complained about the mother making her pay half to replace her headphones (approximately $50 new) which were not working as they went through the washing machine. [X] also complained the mother would not give her $7 to contribute to a teacher’s gift. [X] asked when the Court would decide about making the mother pay for her tuition as she is running out of money and won’t be able to continue to pay herself. When asked whether she thought it was reasonable for her father to pay for her tuition since it was in his week, [X] said, “no because she (the mother) has more money.” [X] asked when the Court would resolve the parenting dispute and the payment of her tuition. It was explained to [X] the Court was unlikely to make a quick decision about payment for her tuition and the writer explained they were unaware of any final hearing date. [X] said, “Can you ask them to do it quicker. Can you beg on my behalf for her to pay for tuition?”
(Family Report dated 17 September 2022)
The views of X are important, particularly given her age. However, these views must also be seen in the context of the family dynamics operating in this case. As the report writer pointed out:
88. [X’s] views are consistent with her adolescent stage of development where she is focused on arranging the world to meet her own needs, with her perception being she is more readily able to do this in the father’s care. A child of [X’s] age should ordinarily have considerable weight given to their view. The writer is concerned, however, that [X’s] have been directly influenced by the father’s interaction with [X]. Accordingly, it is considered the Court should take great care when considering the weight to be given to [X’s] views.
(Family Report dated 17 September 2022)
Y’s views were also recounted by the Family Report writer:
95. [Y] said he thought there were benefits of his Dad’s preference of three and a half days with each parent and week about. He said he used to think the three and a half days with each parent would be better but now he is happy with the week about arrangement.
96. During his interview on 13 September 2021 in the father’s household, the writer started talking to [Y] about his [sport] lessons (which were coming up that night) before [Y] interrupted and said, “can I tell you something” and went on to say although he had previously expressed a preference for week about, he actually wanted “three days, three days.” [Y] said he thought this would be better “because it is easier for both parents” and so the children do not have to move items between the homes.
97. [Y’s] views are consistent with him having positive relationships with both parents and his developmental stage where it is likely to be important to him to be fair to both parents. Given [Y’s] age his views should be given some weight, however care should not be given complete weight as he does not have sufficient maturity to consider all of the medium and longer term ramifications of his preferences.
(Family Report dated 17 September 2022)
I am persuaded that the children are heavily influenced by the father in their expression of preferences. I am not persuaded that the children have a real sense of the difficulties of the parental conflict. The children have positive relationships with the father.
The relationship of Y with the mother appears positive. Typical for his age range he seeks an arrangement that provides time with both parents. X’s relationship with the mother is conflictual. That X has a conflictual relationship with her mother is unsurprising given her age and the conduct of the father. Whether X is not past an age where the mother can again exert reasonable parental authority is a difficult question as it will be resisted by X. That relationship will likely continue to deteriorate if she lives with the father.
The children have positive relationships with their grandparents.
This is not a case where it could be said that one parent has failed to participate in decision making about the children, spend time with them or communicate with them.
In this case the mother has clearly fulfilled her obligations to maintain the children. The father cares for them, however provides little financial support. On the state of the evidence it is difficult to know what level of income the father generates from his business so I make no criticism of the father’s level of financial support of the children.
If orders are made as requested by the mother and the ICL, it will result in a suspension of the father’s time for the 2022 Christmas school holiday period, and then revert to the father having week-end time. This is a significant reduction in the time the children will have with the father. It carries the potential of having the children to live with in the mother’s household with appropriate parenting boundaries and to minimise the impact of the father’s undermining behaviours. However, the orders carry a real risk that the arrangement may not bring the hoped for benefits. If the arrangements are not successful the likely consequence is that the relationship between X and the mother would be worsened.

As I have accepted that it would be intolerable to force the mother to continue shared care (and the orders in that regard appear to be drawn in a way that would facilitate controlling behaviour by the father) the only other realistic option is to place one or both children with the father. This would, in my view, inevitably lead to a worsened relationship between X and the mother, although perhaps not quite so quickly as may occur if orders placing X with the mother break down. If the care arrangements following placing the children with the mother break down, this appears to be little worse than the outcome of placing them with the father. If placing the children with the mother succeeds it is a far better outcome for the children in the long run.
There appear to be no practical difficulties with the children spending time with or communicating with each parent in this case as the parents live close to each other. The difficulties lie in the conduct of the father with respect to the mother and the parenting arrangements. I am satisfied that the children would retain good relationships with the father even if his time were reduced to that proposed by the mother.
I have set out above details relating to the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and the parents.
I am not persuaded that the father’s criticisms of the mother are justified. I am persuaded that the father’s interactions with the mother are demeaning and abusive. I am satisfied that he undermines her parental authority and imposes no real boundaries upon the children. I am also satisfied that his conduct is quite manipulative and demonstrates no respect for the mother to the children. His conduct in having X make recordings of the mother sets a terrible example for the children. His focus upon body image, particularly the comments about the mother, is inappropriate: remarkably he is critical of the mother, yet on their appearances in the witness box I would not describe either as outside the normal range of body size, nor was the father any thinner than the mother.
The father exhibits poor attitudes to the responsibility of parenting. The mother sets reasonable boundaries and attempts to avoid conflict with the father. Significantly, the mother does not undermine the father’s parenting authority, as is evidenced from the incident where X went to the mother’s house on her bicycle. Having regard to the interactions between the parents it is clear that they would be unable to effectively share parental responsibility.
There is a number of matters that could fall within the definition of family violence, ranging from smacking the children to the complex dynamics of the current relationship of the parents. I accept (as the mother does) that the children are not now at risk of physical violence at the hands of the father. I am not persuaded that there is any risk of physical violence by the mother. I reject the father’s claims that the mother’s conduct amounted to family violence, either with respect to finances, or withdrawing from and not engaging with him. I am satisfied that the father’s conduct in recording conversations and enlisting or supporting X to do likewise was for the purpose of coercing or controlling the mother. I am persuaded that the conduct was such that in the context of this case it comes within the definition in s 4AB of the Act. Whilst I generally prefer the mother’s evidence, the incident of physical violence she outlines was not evidence given consistently. Given the nature of the evidence, whilst I favour the mother’s version, I am not satisfied as to what occurred in this incident to the requisite standard so as to make a finding of fact.
I note that orders for the children to live with the father are orders least likely to lead to further proceedings as I am satisfied that the mother would not set out to undermine the effect of orders. I am not so persuaded that the father will not set out to undermine the orders if the children are to live with the mother. As a result orders for the children to live with the mother are not the orders “least likely to lead to the institution of further proceedings”.
Turning then to the primary considerations, I am satisfied that on the mother’s proposal the children will continue to have a meaningful relationship with the father. Indeed, on the mother’s proposal that relationship will likely become one of a better quality than it is at present with the father so focused upon undermining the mother. On the father’s proposal it seem likely that the relationship with the mother will become less meaningful and eventually move toward the father’s view of the mother as being merely a good financial provider.
In this case there is a need to protect X from the continued exposure to family violence by being involved in the interactions she has with the mother where recordings are made and the father undermining the mother’s authority in attempts to control the mother. I am not persuaded that there is any risk of the children suffering “physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” in the care of the mother.
As I am satisfied that the father has engaged in family violence, the presumption in s 65DA of Act does not apply. Even if I am in error in finding that there was family violence, having regard to the whole of the evidence and the factors set out in s 60CC of the Act I am well satisfied that shared parental responsibility for the parents is not in the best interests of the children, and thus the presumption in s 65DA of Act would be rebutted in any event. As a result the considerations in s 65DAA of the Act are not engaged. Even if those considerations were required I am satisfied that it would not be in the children’s best interests for there to be orders for time as contemplated in s 65DAA of the Act.
Stepping back and considering the matter as a whole, I am persuaded that the children’s best interests are served by orders in the form sought by the mother, and that such orders are the appropriate orders under s 65D of Act. As submissions were not directed to the minutia of the orders sought by the mother, and there is nothing remarkable therein I do not traverse each order, save to note that I am satisfied that a period where the children have no time with the father is a necessary start to the changed arrangements in order to allow the mother a period to re-establish her relationship with the children as a parent with parental authority and that injunctions are required as sought, to provide the mother with some level of protection against the likely ongoing manipulation of the children by the father.
I therefore make orders accordingly.

I certify that the preceding one hundred and forty (140) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller.
Associate:
Dated: 6 December 2022

File number(s):	PAC 3313 of 2019
Judgment of:	RIETHMULLER J
Date of judgment:	6 December 2022
Catchwords:	FAMILY LAW – PARENTING – High conflict between parents – One parent undermining the other’s parental authority – Suspension of time for a short period to allow resident to re-establish parental authority – No matters of principle
Legislation:	Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65AA, 65D, 65DA, 65DAA, 68B
Division:	Division 1 First Instance
Number of paragraphs:	140
Date of hearing:	12–14 October 2022 & 20 October 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Levick
Solicitor for the Applicant:	Tonkin Drysdale Partners
Counsel for the Respondent:	Mr Connor
Solicitor for the Respondent:	Ark Law Lawyers
Counsel for the Independent Children’s Lawyer:	Ms Hamilton
Solicitor for the Independent Children’s Lawyer:	Michel & White Lawyers

PAC 3313 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MUNN Applicant
AND:	MR HARTMAN Respondent
INDEPENDENT CHILDREN’S LAWYER

order made by:	RIETHMULLER J
DATE OF ORDER:	6 December 2022