Murati & Roca
[2024] FedCFamC2F 1672
•22 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Murati & Roca [2024] FedCFamC2F 1672
File number(s): MLC 11701 of 2022 Judgment of: JUDGE A. HUMPHREYS Date of judgment: 22 November 2024 Catchwords: FAMILY LAW – PARENTING – children (aged 12 and 16) do not wish to spend time with father – acknowledged family violence by father – mother facilitated children spending time with him on an intermittent basis and not at all for extended periods – mother made major long-term decisions without consulting with father, including moving to a suburb some distance away and changing the children’s schools – children have now spent extended professionally supervised time and then unsupervised time with the father – mother does not contend children would be unsafe in father’s care – father found to have capacity to meet children’s needs, including emotional needs – mother found to lack capacity to support children’s relationship with the father, where she sees no benefit to them spending time with him – children’s expressed views incongruent with their interactions with father – finding children will benefit from relationship with father and paternal family – orders for parties to have joint decision-making responsibility – children to spend regular unsupervised time with father, arranged by agreement in consultation with the children and in default of agreement at fixed times – ancillary orders made as agreed or as determined in the children’s best interests Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 13C, 60B, 60CA, 60CC, 60CG, 61B, 61C, 61D, 61DAA, 65D, 68B
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01
Cases cited: Andrew & Delaine [2009] FamCAFC 182
Bielen & Kozma (2022) FLC 94–123; [2022] FedCFamC1A 221
French & Fetala [2014] FamCAFC 57
Hall & Hall (1979) FLC 90–713; [1979] FamCA 50
Hedlund & Hedlund (2021) FLC 94-065; [2021] FedCFamC1A 84
Lainhart & Ellinson (2023) FLC 94-166
U v U (2002) 211 CLR 23
Division: Division 2 Family Law Number of paragraphs: 236 Date of hearing: 14 - 16 October 2024 Place: Melbourne Counsel for the applicant Mr Robinson Solicitor for the applicant Tohme Lawyers Counsel for the respondent Mr Lethlean Solicitor for the respondent C & S Law ORDERS
MLC 11701 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MURATI
Applicant
AND: MS ROCA
Respondent
ORDER MADE BY:
JUDGE A. HUMPHREYS
DATE OF ORDER:
22 NOVEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders be discharged.
Decision making responsibility
2.The applicant (“father”) and respondent (“mother”) (“the parties” / “the parents”) have joint decision-making responsibility for major long-term issues relating to the children, X, born in 2008, and Y, born in 2011 (together, “the children”).
Care arrangements
3.The children live with the mother.
4.The children spend time with the father at times to be agreed by the parties in writing, in consultation with the children and consistently with the nature and quantity of time provided by this order, and failing agreement:
(a)During school term periods, the long summer school holidays in 2024/2025 and the term 1 and term 2 school holidays in 2025:
(i)Until 1 December 2024, each alternate Sunday, from 9.00 am until 5.00 pm, following the same fortnightly cycle in place at the time these orders are made;
(ii)After 1 December 2024, each alternate weekend, from 5.00 pm on Saturday until 5.00 pm on Sunday, following the same fortnightly cycle in place pursuant to order 4(a)(i);
(iii)From January 2025, each alternate weekend, from 10.00 am on Saturday to 5.00 pm on Sunday, following the same fortnightly cycle in place pursuant to order 4(a)(ii);
(iv)From the conclusion of term 1 in 2025, each alternate weekend, from the conclusion of school on Friday (or 10:00 am on a non-school day) to 5:00 pm on Sunday, following the same fortnightly cycle pursuant to order 4(a)(iii); and
(v)From the conclusion of term 2 in 2025, each alternate weekend, from the conclusion of school on Friday (or 10:00 am on a non-school day) to the commencement of school on Monday (or 10:00 am on a non-school day), following the same fortnightly cycle pursuant to order 4(a)(iv),
with time to resume each school term, following the same fortnightly cycle as if the school holidays had not occurred, unless otherwise agreed in writing;
(b)During school holiday periods:
(i)During term school holiday periods:
A.From the term 3 holidays in 2025 and thereafter in odd numbered years, for one week commencing at the conclusion of school on the last day of term; and
B.In even numbered years, for one week concluding at 10:00 am on the last Saturday of the school holidays; and
(ii)For the long summer school holidays:
A.In the 2025/2026 holidays and each alternate year thereafter, for one week, commencing at 10.00 am on the second Saturday in January; and
B.In the 2026/2027 school holidays and each alternate year thereafter, for one week commencing at 10.00 am on the first Saturday in January.
Special occasions
5.Notwithstanding any other provision of these orders, the children spend time with each of the parties for occasions of significance to them and to each of the parties at times to be agreed by the parties in writing, in consultation with the children and consistently with the nature and quantity of time provided by this order, and failing agreement:
(a)On the father’s birthday each year, with the father from 5.00 pm to 8.00 pm;
(b)On the mother’s birthday each year, with the mother from 5.00 pm to 8.00 pm;
(c)On X’s birthday, if she would not otherwise be spending time with a parent, then from 5.00 pm to 8.00 pm with that parent;
(d)On Father’s Day weekend, with the father from 5.00 pm on Saturday until 8.00 pm on Sunday;
(e)On Mother’s Day weekend, with the mother from on 5.00 pm on Saturday until 8.00 pm on Sunday;
(f)During the Orthodox Easter period:
(i)In odd numbered years:
A.With the mother from 3.00 pm on the Saturday immediately preceding Easter Sunday until 12.00 pm on Easter Sunday; and
B.With the father from 12.00 pm on Easter Sunday until 3.00 pm on Easter Monday; and
(ii)In even numbered years:
A.With the father from 3.00 pm on the Saturday immediately preceding Easter Sunday until 12.00 pm on Easter Sunday; and
B.With the mother from 12.00 pm on Easter Sunday until 3.00 pm on Easter Monday;
(g)For the Christian Christmas period, as follows:
(i)In 2024, with the father:
A.On 24 December 2024 (being Christmas Eve), from 3.00 pm until 8.00 pm; and
B.On 25 December 2024 (being Christmas Day), from 3.00 pm until 8.00 pm;
(ii)In odd numbered years:
A.With the father from 3.00 pm on 24 December until 3.00 pm on 25 December; and
B.With the mother from 3.00 pm on 25 December until 5.00 pm on 26 December (being Boxing Day); and
(iii)In even numbered years from 2026:
A.With the father from 12 noon until 3.00 pm on 24 December;
B.With the mother from 3.00 pm on 24 December until 3.00 pm on 25 December; and
C.With the father from 3.00 pm on 25 December until 5.00 pm on 26 December;
(h)For new year:
(i)On 1 January 2025, with the father from 3.00 pm until 8.00 pm;
(ii)When 31 December falls on an odd numbered year, with the mother from 2.00 pm on 31 December to 2.00 pm on 1 January and with the father from 2.00 pm on 1 January until 2.00 pm on 2 January; and
(iii)From 2026, when 31 December falls on an even numbered year, with the father from 2.00 pm on 31 December to 2.00 pm on 1 January and with the mother from 2.00 pm on 1 January until 2.00 pm on 2 January; and
(i)For the Country B Orthodox Christmas period:
(i)On 7 January 2025 (being Orthodox Christmas Day), with the father from 3.00 pm until 8.00 pm;
(ii)In even numbered years, with the mother from 5.00 pm on 6 January until 3.00 pm on 7 January and with the father from 3.00 pm on 7 January until 5.00 pm on 8 January; and
(iii)In odd numbered years from 2027, with the father from 5.00 pm on 6 January until 3.00 pm on 7 January and with the mother from 3.00 pm on 7 January until 5.00 pm on 8 January.
Telephone and electronic communication
6.Each of the parties facilitate the children communicating with the other parent by phone or video:
(a)On Wednesdays the children are in their care, between 6.00 pm and 6.30 pm or, if the children will be unavailable during that time (including if X is working), between 8.00 pm and 8.30 pm, in which case the parent with care of the children is to notify the other parent of the change in time, as soon as practicable;
(b)At such further or other times they may agree in writing; and
(c)At all other reasonable times requested by the children.
7.For the purpose of order 6, the parties each ensure the children have access to a functioning mobile telephone with internet to communicate via telephone/video and provide the children with privacy for their communication with the other parent.
Changeover
8.Unless otherwise agreed in writing, for the purpose of the children moving between the care of the parties pursuant to these orders, changeover take place at the children’s school on a school day and otherwise at C Shop located at D Street, Suburb E.
School and other activities and events and information
9.The parties each ensure that the children attend any extra-curricular, school or social activities or work shifts in which the children (or either of them) are enrolled, engaged or rostered when in their respective care where practicable and for this purpose the parties keep each other notified of all such activities, events, rosters and the like inclusive of relevant contact details.
10.The parties each be at liberty to attend school events and the extracurricular activities involving the children to which parents are usually involved.
11.To the extent that the father may not already be so authorised, the mother authorise any school the children are enrolled in to provide to the father all information concerning the children, including but not limited to photograph order forms, reports and newsletters and access to any parent communication app or tool.
Medical and health issues and information
12.The parties each keep the other advised of any medical or health issues related to the children or either of them including but not limited to providing particulars of any medication that has been prescribed to the children and ensure such medication is provided to the other party at changeover, and the name and contact details of the treating practitioner.
13.Each party forthwith notify the other of any significant injury or medical condition suffered or treatment undergone by either of the children while they are in their respective care and the parties are each authorised to liaise directly with the children’s treating medical practitioner(s), dental or other health specialist(s) in relation to the children’s health and welfare.
Communication between parties
14.Each party notify the other of any changes to their telephone numbers, email address used for the purpose of communication with the other parent or residential addresses within 24 hours of such a change.
15.IT BEING NOTED the parties have agreed they must ensure all communications between them will be strictly child focused and respectful:
(a)The parties communicate on all matters pertaining to the children using the parenting app AppClose (“the app”) save that the parties are permitted to use SMS message or phone in the case of emergencies; and
(b)Until the parties have downloaded the app, which they are required to attend to within seven days from the date of these orders, the parties are permitted to use SMS and email to communicate in relation to arrangements for the children.
Injunctions
16.Each of the mother and father, including by their servants and agents, be restrained from:
(a)Denigrating the other parent in the sight or hearing of the children, and/or from allowing anyone else to do so; and
(b)Permitting the children access or allowing the children to read any documents relating to this court proceeding or prior intervention order proceedings involving the parties.
Overseas travel
17.Each of the mother and the father are permitted to travel with the children outside of the Commonwealth of Australia for a period of up to four weeks per annum with the written consent of the other and subject to the following conditions, unless otherwise agreed in writing:
(a)Travel is restricted to countries which are signatories to the 1980 Hague Convention on the Civil Aspects of International Child Abduction;
(b)The travelling parent provide no less than sixty (60) days’ prior notice in writing to the other of his/her intention to travel outside of Australia with the children;
(c)The travelling parent provide to the other a copy of the airline tickets and comprehensive itinerary which includes the departure and return dates of travel, locations of stay, together with contact details for the children during all such periods of travel; and
(d)The travelling parent facilitate video communications between the children and the other parent at reasonable times during all such periods of travel and ensure that the children speak with the other parent at least twice per week.
18.The parties sign all documents required to obtain the children’s passports, and the cost of such passports be borne by the mother.
Explanation of orders to children
19.The parties forthwith do all things to engage Ms G (or such other therapist as they may agree in writing), to explain to the children the meaning and operation of these orders as soon as practicable, with Ms G’s fee to be borne solely by the father.
Parenting coordinator
20.The parties make every reasonable attempt to exercise joint decision-making by consulting with one another via the app as to proposed decisions and merits of their points of view.
21.In the event the parties are unable to reach agreement within a reasonable timeframe on a matter relating to major long-term decisions concerning the children (or either of them), the parties jointly engage Ms G in her capacity as parenting co-ordinator on an “as needs basis” to engage with them and to assist them reach agreement as follows:
(a)Pursuant to section 13C of the Family Law Act 1975 (Cth) (“the Act”), the parties participate in the service of parenting coordination and for that purpose retain Ms G (or another parenting coordinator as agreed by the parties in writing), as parenting coordinator (“the parenting coordinator”), on a non-confidential basis to assist them on the terms provided in this order;
(b)Within seven days from the date they are unable to reach an agreement on a major long-term issue, the parties shall do all acts and things necessary to:
(i)Engage the parenting coordinator for an intake session and for one further session or as otherwise required by the parenting coordinator;
(ii)Complete the appointment of the parenting coordinator;
(iii)Authorise the parenting coordinator to talk to any health, education or other professionals relevant to the decision in question; and
(iv)Follow all reasonable directions of the parenting coordinator and make a genuine attempt to resolve the dispute between them.
22.No later than 7 days prior to the first intake session booked with the parenting coordinator, the parties or either of them provide to the parenting coordinator, copies of the following court documents:
(a)These orders;
(b)Ms G’s family report dated 11 October 2024 (“Ms G’s family report”); and
(c)The reasons for judgment delivered with these orders.
23.The costs of the parenting coordinator’s engagement pursuant to these orders be solely borne by the father.
Provision of orders
24.The parties are each authorised to provide a copy of these orders to the children’s schools and/or treating medical and allied health professionals and to provide a copy of Ms G’s family report to any psychologist or counsellor attended by the children.
25.The parties are each authorised to provide a copy of these orders and the accompanying reasons for judgment and Ms G’s family report to any psychologist or counsellor they may each attend upon for their personal support, including for assistance with the implementation of these orders.
Obligations, consequences of contravention and assistance with orders
26.Pursuant to sections 65DA(2) and 62B of the Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.
Procedural
27.All extant applications be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A. HUMPHREYS:
INTRODUCTION
This proceeding concerns the children, X (aged 16) and Y (soon to be 13).
The parties are the children’s parents. I will refer to the applicant as the father and the respondent as the mother, reflecting their relationships with the children and without intending any disrespect to them.
X and Y are teenagers with firm views that they do not wish to spend time with the father. The mother argues this is a genuine and reasonably held view for them to hold, reflecting their lived experience of the father engaging in family violence during the parties’ relationship, which ended more than five years ago. She maintains this position notwithstanding she accepts the father does not now pose a risk to the children’s safety. The mother submits orders should be made providing for her to have sole decision-making responsibility for the children, because of the father’s history of family violence towards her and the lack of communication between the parties. She seeks orders providing for the children to spend time with the father in accordance with their wishes and for some special occasions, during the day only. She acknowledges that if her proposal is accepted, it is unlikely the children will spend regular time with the father and may not spend time with him at all save for on special occasions.
The father admits he perpetrated family violence during the parties’ relationship. He acknowledges this impacted the mother and children and says he has engaged in education and therapy to recognise the effects of his prior behaviour and ensure it does not recur. He contends the children’s expressed views do not reflect their actual experience of time spent with him after separation, as reflected in many supervision reports and multiple expert reports prepared during the course of these proceedings. He argues the children’s views have been impacted by the mother’s feelings towards him and her unwillingness or incapacity to support the children’s relationship with him, and increasingly so over time. He asks the court to make orders requiring joint decision-making in relation to the children, submitting the parties are capable of communicating with one another and making joint decisions for the children, and it is safe for them to do so. He seeks structured orders providing for the children to spend time with him on an increasing basis during school term periods (ultimately five nights per fortnight), for half of school holiday periods and on special occasions, in an effort to preserve their relationships with him and provide an opportunity for those relationships to repair and develop. He acknowledges the court is generally reluctant to make orders contrary to the expressed views of a child of X’s age and it is important to provide her with some autonomy. However, he submits X’s views are so influenced by the mother and incongruent with her actual interactions with him and his family that the court should nevertheless make orders governing the time X spends with him, so that she has the opportunity to rebuild a relationship with him before reaching adulthood. Balancing these considerations, he seeks orders for the children to spend regular time with him but providing for him to accommodate X’s work and the children’s activities and social engagements.
In response to a request from my chambers ahead of the final hearing, a consolidated minute of orders sought by the parties was tendered, identifying those orders which were agreed and each party’s position in respect of issues in dispute.[1] As I conveyed to counsel, that minute highlighted the conflict in this case, identifying only two orders were at that time agreed – an order to discharge all previous parenting orders and an order referring to and annexing the court’s fact sheet accompanying all parenting orders. With counsel’s assistance, the parties reached agreement during the course of the hearing in relation to the terms of a range of what I will describe as ancillary orders. An amended joint minute was tendered during the hearing[2] and a further updated copy was tendered during closing submissions.[3] A separate joint minute was tendered following the conclusion of the hearing, providing for the final orders to be explained to the children by the expert psychologist most recently involved with the family and appointing a parenting coordinator.[4] In this way, the issues in dispute narrowed significantly during and at the conclusion of the final hearing.
[1] Exhibit A.
[2] Exhibit C.
[3] Exhibit E.
[4] Which I now mark Exhibit F.
THE ISSUES
Accordingly, the following issues now require determination:
(a)How parental responsibility for decision-making for the children is to be allocated. This requires particular consideration of:
(i)The types of major long-term decisions likely to be required for the children;
(ii)The benefit to the children of the parties’ joint involvement in decision-making about decisions of that nature;
(iii)The capacity of the parties to communicate safely and effectively, to the extent required to consult with one another and make joint decisions. This requires consideration of the mother’s allegations of family violence; and
(iv)The impact of parental conflict and disputes about decision-making on the children.
(b)What orders should be made for the children to spend time with the father? This requires particular consideration of the children’s views and needs and the parties’ capacity to meet those needs, it being acknowledged by the mother that the father does not pose a risk to the children’s safety;
(c)Should changeover occur at the parties’ homes or at C Shop, near the mother’s home?
(d)What orders should be made in relation to the children travelling internationally with the parties and in respect of the children’s passports?
(e)Are the injunctions agreed by the parties and sought by the mother appropriate for the children’s welfare? and
(f)Are all other parenting orders agreed by the parties in the children’s best interests?
THE FINAL HEARING
The final hearing was conducted in person, over three days. Both parties were represented by counsel.
Documents relied upon
The father relied on the following documents:
(a)Initiating Application filed on 19 October 2022 (sealed on 21 October 2022);
(b)His affidavit filed on 30 August 2024 (“father’s trial affidavit”) and the annexures to his trial affidavit which were tendered as exhibits; and
(c)His outline of case document (final hearing) (“case outline”), filed after hours on 7 October 2024.
The mother relied on the following documents:
(a)Amended Response to Initiating Application filed on 28 February 2024;
(b)Her affidavit filed on 30 August 2024 (“mother’s trial affidavit”) and the exhibits to that affidavit which were tendered as exhibits;
(c)Child impact report prepared by court child expert, Ms F, dated 13 April 2023 (“child impact report”);
(d)Family report prepared by regulation 7 family consultant, Dr W dated 4 December 2023 (“first family report”); and
(e)Her case outline, filed on 7 October 2024.
Both parties relied on:
(a)The affidavits of Ms G filed on:
(i)5 March 2024, annexing her report dated 23 February 2024 relating to the family’s reportable therapeutic counselling with her (“therapeutic counselling report”); and
(ii)11 October 2024, annexing her family report dated 11 October 2024 (“second family report”); and
(b)Affidavit of Ms J filed on 30 August 2024, annexing observational reports prepared by her and by Ms K, in relation to the children’s supervised time spent with the father (“supervision reports”).
BACKGROUND, RELEVANT FACTS AND PROCEDURAL HISTORY
Each of the parties deposed to the background to these proceedings from their own perspective. They also each set out the procedural history and their responses to expert reports prepared in the proceeding. I have had regard to that evidence. I provide only a summary of the background to the proceedings, focussing on events that are particularly relevant to my determination of the issues in dispute. The summary is nevertheless lengthy because the way in which the relationships between family members have developed and their responses to various interventions and expert recommendations are relevant to my determination.
The parties married and began living together in mid-2005. They separated finally in July 2019 and are divorced by way of an order made in late 2020.
X was born in 2008 and Y in 2011.
The mother was the children’s main caregiver while the father worked on a self-employed basis to support the family financially. The father gave detailed evidence about his daily routine, including sometimes picking the children up from school, helping them with their homework, taking them to activities and to visit his parents. He deposed he and the mother discussed decisions to be made in relation to the children, including medical appointments, school enrolment and extracurricular and sporting activities. He acknowledged the mother usually took the children to routine medical appointments and he attended significant medical appointments. I accept this evidence, noting the mother acknowledged the father was involved in some of these aspects of the children’s care but insisted he was involved only on a limited basis.
The mother alleges the father subjected her to various forms of family violence throughout their relationship. The father admits he grabbed the mother by the hair on one occasion in late 2014 when the children were present. He admits slamming on the brakes while arguing with the mother while in the car in mid-2019. The mother alleges the father yelled at her on numerous occasions. The father admitted raising his voice at the mother, when arguing with her. The children have described both parties participating in arguments but being distressed by the father’s behaviour in particular.[5] Y reported hearing the father yelling at the mother from their bedroom.[6] X reported that she remembered the father pushing their toys off the table angrily when they were young.[7] The father admitted complaining about the mother’s cooking on occasions, explaining he is a fussy eater. He acknowledged being cross with the mother for refusing to make herself available for sex. From the father’s admissions and the children’s accounts, it is evident he engaged in family violence, including physical violence, intimidating, and coercive and controlling behaviour, and that the children were exposed to family violence perpetrated by him against the mother. I note this at the outset of my reasons to contextualise what has subsequently occurred and the nature of the relationships in this family.
[5] Child impact report, at [11].
[6] First family report, at [43].
[7] First family report, at [40].
The parties separated briefly in early 2008 and the mother says they separated again for two weeks in November 2014. She says each separation was precipitated by the father engaging in family violence towards her. They separated finally in mid-2019. Their final separation followed two days of arguments during which the mother says the father yelled at her, threatening to lock her out of the home and the garage, and cancelled a family trip. This evidence was not challenged and I accept it. The mother moved out of the former family home with the children and stayed with her parents, where they continued to live for approximately two years.
The mother initially did not facilitate the children spending time with the father after separation.
She applied for a family violence intervention order in mid-2019 and obtained an interim order. In mid-2019, a final intervention order was made for a period of 12 months, naming the mother and children as protected persons and the father as respondent. The order was made with the father’s consent but not admitting the allegations made against him.
The father found the breakdown of the parties’ marriage and separation from the children difficult. He wished to reconcile with the mother. In July 2019, he attended upon a general practitioner (“GP”) and obtained a referral to a psychologist, Mr L. In September 2019, he attended upon his regular GP, Dr M, who prescribed him with antidepressants and supported his ongoing attendance upon Mr L.
From late August 2019, the children began spending time with the father on alternate Sundays, supervised by his parents (“the paternal grandparents”). This continued until around March 2020.
In September and October 2019, the father sent text messages to the mother, telling her he loved her, asking to speak with her, proposing counselling, seeking to reconcile and asking “please don’t get me locked up”.[8] Those messages constituted a contravention of the intervention order then in place. After this was pointed out to her by a family dispute resolution practitioner, the mother reported the breaches to police in late 2019. The father pled guilty to contravening the order and completed a men’s behaviour change program, which he deposed he had by then commenced voluntarily. A good behaviour bond was imposed, without conviction.
[8] Annexure MRM-03 to the father’s trial affidavit.
In early 2020, the father was involved in a road rage incident. When cross-examined, he described an altercation with another driver. After both parties had been cross-examined, the mother tendered a LEAP record from subpoenaed police records[9], recording an allegation that the father also head-butted the other driver. The father was not cross-examined in relation to that allegation when he provided his account of what occurred. Accordingly, I find only that he argued with the other driver. The father pleaded guilty to charges arising from this incident and was fined without conviction. The mother became aware of this incident in early 2021. I find this would have contributed to her concern about the father’s capacity to manage his temper and safely care for the children.
[9] Exhibit D.
On 3 March 2020, the mother commenced proceedings in this court, seeking orders in relation to property and financial matters. The mother deposed the father was refusing to pay the mortgage and to pay child support. Neither party sought orders in relation to the children during the course of the property proceedings, which were finalised by way of consent orders made on 7 July 2020 (“final property orders”).
The father did not comply with the final property orders, including by failing to vacate the former family home to facilitate its sale. Further proceedings were initiated by the wife and orders were made to enforce the final orders. The father deposed:
My reason for [failing to vacate the former matrimonial home] was that I suffering from mild anxiety and mild depression caused by the marriage breakdown and from not being able to see the children
Child support arrears had accrued and were recouped by Child Support from the father’s share of the proceeds of sale of the former family home. At around this time, the father also refused to accept service of an application for divorce filed on behalf of the mother. I accept this conduct of the father would have been perceived by the mother as family violence in the form of financial abuse and coercive control, even if that was not intended by the father.
The former family home was eventually sold and upon settlement in late 2020 the father moved to live with his parents in Suburb N, where he continues to reside.
From early April 2020, the mother stopped making the children available to spend time with the father. This coincided with the financial dispute between the parties and the Covid-19 pandemic.
In mid-2020, the mother applied to extend the previous intervention order. The father deposed he did not attend at court and the order was extended in his absence.
The mother continued to not facilitate the children spending time with the father and also ceased facilitating phone and video communication. The mother says there were periods the father did not contact the children himself, including from July to November 2020 and from January to April 2021. This was not the subject of cross-examination and I accept it, given the father’s evidence he was at this time suffering from depression and given he did not commence court proceedings to seek orders for the children to spend time with him.
In December 2020, the mother requested (via the parties’ lawyers) that the father provide a report in relation to his mental health. It was in my view reasonable for her to do so given the father’s conduct, including in relation to the sale of the former family home, and his own evidence he was suffering from anxiety and depression at this time.
On 5 March 2021, the father provided reports from Dr M, dated 27 February 2021,[10] and Mr L, dated 4 March 2021.[11] Dr M reported he had seen the father on five occasions since September 2019, the father was continuing to take prescribed medication and to see Mr L, his anxiety seemed to have reduced, his mental state was quite good, and in his opinion the father did not pose any danger to the children. Mr L reported he had by that time met with the father on 13 occasions since 2019. He diagnosed the father as suffering an adjustment disorder with mixed anxiety and depressed mood, in response to his current circumstances (being protracted legal issues and not seeing the children). Mr L’s report detailed the clinical treatment provided to the father to that point and reported positive progress by the father, including to address his rigidity and stubbornness and building his acceptance and respect for the views of others. Mr L provided his opinion the father “does not pose any significant risk to his children or evidence any psychological limitations that might place children in his care at significant risk.” The father deposed his mental health improved and he ceased seeing Mr L at the end of 2021 and also stopped taking antidepressant medication in late 2021. It was not contended at the final hearing that the father’s mental health precluded him from safety caring for the children or from meeting their needs.
[10] Annexure MRM-01 to the father’s trial affidavit.
[11] Annexure MRM-02 to the father’s trial affidavit.
From May 2021 to September 2021, the children generally spent time with the father on alternate weekends, supervised by the paternal grandparents. Time was occasionally interrupted by the mother, citing Covid-19 restrictions as the reason for interruption.
The mother alleges that during the children’s time spent with the father, he “interrogated” the children, denigrated her to them and that he pressured them to stay overnight. It is apparent from her trial affidavit and her oral evidence that she was regularly speaking with the children about their time spent with the father. The mother admitted recording some of the children’s calls with him. The mother was not cross-examined in relation to the content of the children’s calls with the father recounted in her trial affidavit. I therefore accept that evidence, from which it is clear both parties were speaking with the children about the other and exposing the children to the disputes between them.
In mid-2021, the mother applied for an extension of the intervention order then in place. I accept the father’s evidence that he initially intended to contest the application but after being informed by the Magistrate a hearing date would not be fixed until around early 2022, he consented to a further order without admissions.
On Father’s Day 2021, the father asked the children how they would feel about having a step-sibling. He said he did so because he was considering entering a new relationship and wanted to gauge their feelings about this. He acknowledged in his trial affidavit he did not consider the impact of this conversation on the children. The mother then ceased making the children available to spend time with the father. In a letter dated 15 September 2021, the mother requested via her solicitors an updated psychological report from the father. In a letter dated 3 October 2022, the mother advised the father via their solicitors that his “interrogation of the child [X] on Father’s Day 2021 was the basis of the cessation of his time with the children.”[12]
[12] Annexure MRM-04 to the father’s trial affidavit.
The children subsequently did not spend time with the father until April 2023. They had only limited communication with him during this time via video and telephone. The mother alleges the father denigrated her to the children during those calls, “interrogated” them and made inappropriate comments. She deposed she did not trust the paternal grandparents to supervise the children spending time with the father given they had not intervened in relation to those improper comments. She gave unchallenged evidence the father was invited to nominate alternate supervisors but did not do so. However, she did not give evidence she had suggested alternative supervisors or conditions to facilitate the children spending time with the father. Neither party issued parenting proceedings until October 2022. In this way, both parties allowed the situation to continue whereby the children did not spend time with the father for some 19 months.
In mid-2022 the mother applied for a further extension of the intervention order then in place, seeking a third extension of the original intervention order made in 2019. The father opposed the extension. In late 2022, the mother sought (via her lawyers) the father’s consent to an extension of the intervention order for a further period of two years failing which she said she would seek a final order “until such time that each of the children turn 18 years of age”.[13] The mother ultimately withdrew her application to extend the intervention order in late 2022. She advised she did so because of comments made by the Magistrate and because of the father’s decision to commence these proceedings.[14]
[13] Annexure MRM-04 to the father’s trial affidavit.
[14] Annexure MRM-04 to the father’s trial affidavit.
In mid-2022, the mother purchased a home in Suburb O. The purchase settled in late 2022. The mother enrolled X to attend P School and Y to attend Q School. Her reasons for moving included to be closer to her work. She deposed she had been working for a relative’s company since late 2021, which operates from premises in Suburb O. She had been travelling approximately 45 minutes to and from work, relying on her parents to assist with the children’s care before and after school. The mother deposed she did not inform the father of the move as she was fearful of communicating with him. I do not accept this explanation given the mother had been communicating with the father via their lawyers at that time, including in relation to the intervention order proceedings then on foot. The mother did not consult with the father in relation to the children’s change of school. When cross-examined, the mother acknowledged that “maybe” she should have. In my view, she should have.
On 19 October 2022, the father filed an Initiating Application seeking final parenting orders, seeking (in summary) the children spend equal time with both parents, on a “week about” basis and for special occasions, along with orders providing for the sharing of information in relation to the children. On an interim basis, he sought (again, in summary) the preparation of a child inclusive report and for the children to spend time with him on alternate weekends (from Friday to Monday), overnight on intervening Wednesdays, for half of school holidays and on special occasions, together with orders providing for the sharing of information in relation to the children.
On 18 November 2022, the mother filed a Response to Initiating Application seeking the children continue to live with her and remain at the schools she had enrolled them to attend. She too sought interim orders providing for a child inclusive report and for the children then to spend professionally supervised time with the father if approved by that report. She otherwise sought (in summary and among other interim orders) for a family report to be prepared and for the father to undertake a psychological assessment, post-separation parenting and parenting education programs, along with injunctions preventing him from denigrating her to the children and from discussing the proceedings with them.
On 22 November 2022, interim orders were made by consent providing (in summary and among other things) for the children to live with the mother and to spend time with the father each alternate Saturday, for up to three hours, professionally supervised. When cross-examined, the mother agreed she would not have allowed the children to spend time with the father if not for the court proceedings. An order was made for preparation of a child impact report.
On 10 December 2022, the children began spending time with the father supervised by a supervisor from R Contact Service. The time took place at S Shopping Centre, including at an activity centre. The supervisor reported the children told her they were nervous and did not want to spend time with the father, but interacted with him positively, chatting and shopping together. The children hugged and kissed the father on greeting him and on saying goodbye.
During their second period of supervised time with the father (on 24 December 2022), he facilitated a video call between the children and Y’s godmother, the paternal grandparents, paternal aunt and cousins. The father passed on gifts from them. The supervisor reported that Y thanked his paternal family and godparents by video and the children seemed excited to open their presents. Both children thanked the father for their gifts.
The children’s supervised time with the father subsequently progressed in a like manner, taking place at S Shopping Centre and an activity centre. The children consistently greeted and farewelled the father with hugs and kisses. They were observed to be hesitant at the commencement of time but then to settle in the father’s company and engage with him warmly. By way of example, during their third period of time together, the supervisor reported:
Dad asked [Y] and [X] what they wanted to do. [X] and [Y] wanted to play [a game]. We went inside [the activity centre], and Dad played [games] with [Y] and [X]. There were lots of high five's, during the game all appeared to enjoy themselves and have fun.
[…]
On our way to the shops, [X] met her friend from (previous) school, and Dad met some friends and said a quick, “Hi.” He also met someone from his Church committee and mentioned he was volunteering at Church during Christmas time.
[X] noticed her Dad's shoes didn't have shoelaces. They laughed, and [X] told her Dad that he needed new shoes.
[…]
Dad was playful with both children and gave lots of spontaneous cuddles to [Y] during the visit. [X] remembered the toys she used to have when she was younger and spoke about these. [Y] and [X] met […], [Y]'s and [X]'s best friends since kinder. They hugged and kissed each other.
[…]
Dad asked [X] and [Y] what they wanted to do for the next visit. [X] suggested going, [to play games]. Dad agreed to that and suggested buying board games to play on the next visit, or he could bring some from home.
[…]
[Y] asked his Dad for two dollars and got a bouncing ball from the vending machine. Dad asked [Y] to give it to his sister and get another one. [Y] did what Dad said, then hid the ball in his hand and played with his Dad the guessing game. There was a lot of laughter.
[…]
[…] Dad and [Y] ordered [some fast food], and [X] shared with them. We settled at the table, had lunch, and chatted.
Dad told [X] and [Y] about when he had ice cream, and after he finished, he noticed his beard was full of ice cream. [X] and [Y] laughed.
The mother agreed to the children’s next time (the fourth period of supervised time, on 21 January 2023) taking place at a sports centre as requested by the children and the supervisor reported that time went well, the children chatted with the father, smiled, high fived and hugged and kissed each other. The supervisor reported they all appeared happy and relaxed. The mother was provided feedback in relation to this visit as with the previous visits.
The father asked the supervisor for the children’s next time (their fifth period of supervised time, on 4 February 2023) to be spent with him at a park rather than a shopping centre. The mother did not agree, saying the children wanted to go to S Shopping Centre. When cross-examined the mother agreed spending time at a shopping centre was likely boring for the children and limiting of their relationship with him, yet she did not support time occurring elsewhere. I find confining the children’s time spent with the father in this way limited the nature and quality of their time together and likely the progression of their relationship.
In February 2023, the mother also refused the father’s request for the paternal grandparents to attend the sixth period of supervised time with him, to see the children. The mother agreed in her oral evidence she did not encourage the children to spend time with the paternal grandparents.
The children’s supervised time continued to progress in a like manner. The children regularly presented as reserved at the commencement of time but warmed up and engaged well with the father during their time spent together. For example, at the commencement of the seventh period of time (on 4 March 2023) X was observed crying and said she didn’t want to see the father. The supervisor reported the father greeted them gently and the children hugged and greeted him. Before long the children were reported to be chatting to the father, hugging and kissing him, smiling, dancing and sharing laughter.
At the commencement of the eighth period of time (on 18 March 2023), the supervisor reported the children and the mother were all frowning when she greeted them, the children told her they didn’t want to be there, they didn’t want to see the father and they don’t like him. The supervisor reported:
I asked if they had some good times when they see him. [X] replied, “Yes but it would be better if he wasn't here. There are things he has done in the past. He has not changed.” I asked if their father knows the things in particular that have upset them. “[X] replied again, “He has never said sorry... doesn't think he did anything.” I said I was sorry to hear that, but today needed to go ahead. That is what has been decided. I would be with then the whole time and if it became too difficult for them we would finish early.
The supervisor reported that after some time, the children once again became relaxed and playful and neither child asked to finish early. Both children hugged the father goodbye.
The family were interviewed by court child expert, Ms F, on 21 and 22 March 2023 and her child impact report was prepared, dated 13 April 2023. In summary, Ms F assessed there was unlikely to be serious risk of harm to the children if spending time with the father unsupervised. Ms F suggested that from the children’s perspectives, the main issue then plaguing them was their experience of disconcerting and dismissing parenting responses by the father and reduced sense of emotional safety in his presence. She recommended:
(a)The children would benefit from professional family counselling to make sense of their experiences and improve their relationship with the father;
(b)Family counselling would also provide an opportunity for the parties to gain further insight into the children’s emotional needs and lived experience;
(c)Consideration be given to the paternal family or an agreed family member or friend to resume supervision of the children’s time with the father in conjunction with a therapeutic pathway. In relation to ongoing professional supervision, she warned (aptly in hindsight):
[…] the setting is restrictive in terms of what the children can do with their father, which can lead to them being bored after a while. The limited experiences that the children have with their father may also compromise the strength of their relationship with their father, and either the children or the father may become unmotivated to continue to attend visits. It would be of assistance if the parents could identify alternative means of supervision that are less restrictive for the children whilst preserving their safety
(d)The children will likely benefit from individual counselling prior to proceeding with joint counselling with the father and prior to professionally supervised time ceasing;
(e)Family counselling will only be effective if both parties are genuinely invested in making improvements in the children’s relationship with the father, steered by the children’s lived experience; and
(f)Where possible, it is preferable that conversations about these proceedings, past family violence, parenting dynamics and challenges in the children’s relationship with the father occur within a therapeutic environment, guided by the family counsellor.
During the children’s ninth period of supervised time with the father (on 1 April 2023), the following interaction was reported:
While the children looked around Dad said they could go there once they stayed over his place. [X] told her Dad firmly she is not sleeping over his place. [Y] said he didn't want to either
As Dad turned to go [X] said It was just too toxic living with him we just couldn't stay
On 20 April 2023, Ms J of R Contact Service released the observation report in relation to the children’s supervised time spent with the father on 10 occasions from 10 December 2022 to 15 April 2023 (“first observation report”).[15]
[15] Annexure MSJ-02 to Ms J’s affidavit.
On 24 April 2023, orders were made by consent (“April 2023 orders”) providing (in summary) for the continuation of supervised time with the father and providing for the paternal grandparents to be included in supervised time. An order was made for the children to continue communicating with the father by telephone or video each Wednesday at 7.00 pm. He was also expressly permitted to attend school events. An order was made requiring the mother not to interfere in any way with the father’s time with the children and to “positively encourage” their time spent with him.
The April 2023 orders also required the parties to engage T Centre for the purpose of individual counselling for the children “in relation to, but not limited to, their relationship with their Father” and for the parties to engage Ms U, psychologist, for the purpose of reportable family therapeutic counselling “in relation to, but not limited to the Father’s relationship with [Y] and [X] and the extension of the children’s time with the Father to an unsupervised basis”. The orders further provided that upon the children completing a minimum of five individual sessions of therapeutic counselling (or more if recommended by the treating psychologist) the children and the father complete a minimum of five sessions of family therapy (or more if recommended) and the father’s time then progress in accordance with the recommendations made by the family therapist. The father was required to provide a letter confirming his past attendance upon a psychologist “to address the issues relating to a relationship with his children” along with showing his completion of a men’s behavioural change program and a post-separation parenting course. Interim orders were made in relation to the parties’ communication via the parenting app, AppClose, and for the sharing of information in relation to the children. Injunctions were made to safeguard the children from denigration, accessing court documents and restraining the parties from questioning or discussing with the children their future living or spend time arrangements.
A dispute then arose in relation to the children’s attendance for therapeutic counselling. The mother arranged counselling for the children as victims of family violence. She deposed that she did so having discussed the matter with Ms F when interviewed for the child impact report. Ms F was not required for cross-examination, including to challenge that aspect of the mother’s evidence. The father objected to the children attending counselling with a focus on their experience as victims of family violence. This dispute in my view highlighted the inability or unwillingness of both parties to focus on the needs of the children. By seeking the children receive counselling specifically for family violence, the mother omitted to recognise and support the key purpose of the counselling specifically stated in the April 2023 orders, being to address the children’s relationship with the father and extension of their time with him to unsupervised time. On the other hand, the father’s failure to support the counselling arranged by the mother omitted to recognise the order providing for counselling was specifically “not limited to” addressing extension of his time with the children and that part of addressing his relationship with them involved addressing their experience of being exposed to family violence prior to separation. It is unfortunate the counselling did not proceed and has not subsequently been revisited because of the rigid approach taken by both parties. The children have subsequently been reported as having a negative perception of therapeutic counselling which Ms G attributed to their over-exposure to professionals during the course of this litigation.[16]
[16] Ms G’s therapeutic counselling report, at [6(e)].
The children continued spending supervised time with the father, which was reported to have occurred in much the same way, at S Shopping Centre.
The children’s grandparents attended the 11th period of supervised time (on 29 April 2023). X told the supervisor she felt “anxious and weird seeing the grandparents and all these hugs and kisses” but when the supervisor twice asked if she would like her to ask the father to tell them to stop kissing and hugging her, if she wasn’t comfortable with that, X said it was fine.
When cross-examined about X saying she was nervous to see her cousins on a subsequent visit, the mother said there was no reason for X to feel nervous about seeing her cousins, save for what she described as “the family dynamics” following the parties’ separation. When asked if she took any responsibility for the children not maintaining their relationship with their cousins, the mother answered, “no”. However, she did not give evidence of any attempt she had made to maintain a relationship between the children and their cousins. I note X was reported to say to the supervisor that she “used to love” one of her cousins, supporting the father’s evidence the children previously shared a close relationship with their cousins.
Ahead of the 12th period of supervised time (on 13 May 2023), the mother was informed the paternal grandparents would attend for an hour. X said she did not want to see her grandparents and on this occasion, the father challenged X about behaving respectfully towards her grandparents. The supervisor took the father aside and asked him to take it easy on X. Significantly, X was again observed to settle and interact with the father warmly after this start to their time spent together and the father was observed to consult with X about seeing her grandmother. The supervisor reported:
Dad was making funny faces and talking to [X]. [X] laughed and said, “You are funny." Dad told [X], “When you are around me, you smile." [X] replied, “I'm laughing at you.” Dad said, "As long as you smile.”
At 11.20 [X] and [Y] washed their hands and wanted to go to [the activity centre]. As Dad was paying, [Y] kicked Dad, jumped on him, and pulled Dad's beard. Dad smiled and was playful. [X] joined them and there was lots of laughter.
On our way to [the activity centre], [X] was playful with her Dad and she pulled his bag. Dad smiled and pulled [X]'s hair and they laughed. Dad asked [X] if she was okay if he called her Grandma to spend time with them in [the activity centre]. [X] said she didn't mind.
At 11.30 Grandma arrived and greeted [Y] and [X]. She watched them play and asked [X] what she wanted [for a special occasion]. [X] said she wasn't sure.
[Y] climbed on Dad's back and Dad walked around and played the games. Then Dad, [X] and [Y] [played games] and appeared to be having fun.
At 11.45 [the paternal grandmother] told the children that she was leaving, and she hugged [X] and [Y] and kissed them goodbye. [X] and [Y] hugged their Grandma.
On 14 June 2023 orders were made by consent varying the April 2023 orders, to provide for the family to attend reportable therapeutic counselling with Ms G rather than with Ms U, at the father’s expense. The parties and children subsequently attended upon Ms G, the children first seeing her in August 2023.
Supervised time continued in much the same way as it had previously, but with what I will describe as increased anxiety and resistance from the children. I find their experience and presentation at this time was very clearly impacted by the mother’s passive approach and her lack of support in respect of the ordered arrangements for the children to spend time with the father, their extended family and the pending family therapy. This was particularly evident from the 15th period of supervised time (on 24 June 2023). For example:
(a)The supervisor reported the session commenced as follows:
I met [the mother] with [X] and [Y], outside of [V Store] and greeted them. [X] seemed upset. I asked her if she was okay. [X] said," I just don't want to see my cousins [today]; I haven't seen them for years, and I feel nervous." [X] said she decided to have the first-hour shopping, then [a restaurant], and then [entertainment venue]. [X] and [Y] kissed Mum and seemed quiet.
It is apparent the mother did not say or do anything to reassure X about spending time with her cousins.
(b)The supervisor reported the following interaction:
Dad asked [X] and [Y] if they started the therapy and both children asked, “What therapy?
[X] cried and we went to the bathroom. I followed her and tried to calm her down. [X] said, “He was asking me about therapy. I'm okay. I don't need therapy and my cousin has always been rude to me and never allowed me to play with their toys, whenever we visited them. He needs to understand that I don't want him!"
It was apparent from this interaction, the mother had not informed the children the parties had agreed to attend family therapy which would involve the children, that this was a positive thing and something she supported. This resulted in X perceiving it was her who required therapy and having a negative experience while spending time with the father.
The 16th period of supervised time (on 2 July 2023) was attended by the paternal grandparents, aunt, uncle and cousins. X was reported to be nervous at the outset of that time. She said she was shivering and her teeth chattering. She told the supervisor she was not sure what her cousins would think about her. The supervisor reported the mother kissed and hugged the children and told X to calm down. It was not reported that the mother provided X with any reassurance about spending time with her cousins. Notwithstanding X’s observed anxiety at the outset, the time was reported by the supervisor to go well, without any concerns. The family shared lunch, gave X cards and gifts, and the father had organised activities for X. The family then attended the activity centre, where the children played with their cousins. The supervisor reported the children chatted with their cousins and other family members, they all engaged well together and the children seemed to have a good time playing with their cousins.
On 26 August 2023 Ms J released a second observation report in relation to the children’s supervised time spent with the father on 10 further occasions from 29 April 2023 to 19 August 2023 (“the second observation report”).[17] By that time, the children had spent 20 occasions of supervised time with the father. Ms J provided the following summary at the conclusion of the second observation report, which was not challenged by either party:
[17] Annexure MSJ-03 to Ms J’s affidavit.
Overall Time Spent between the father and children has improved and been mostly positive.
Dad will always greet the children affectionately. He will tell the children he loves them and misses them. He will encourage them and praise them.
The children appear comfortable to say what they want to do, or what they want to buy.
They chatter and share news comfortably.
They will engage their father in their activities and games.
There is very often playful banter between the father and both children. Both appear to be very relaxed and comfortable with him.
They have looked at past photos and videos together.
At times [Y] has been upset with his father of his own reasoning and at other times he appears to be following his sister's lead.
[Y] did not want his father to go to his [sports] grading, although he did appear in 2 minds about this at first.
[X] does present as confused and anxious at times, about her grandparents, her cousins and relatives, what they will think of her, how they will treat her etc
She appears embarrassed about having a Supervisor with them and if others should know this e.g shop keeper —
She was very upset with her father when he asked if she had started any therapy.
These sort of statements or questions from the father, can prove to be a setback in his relationship with his daughter. [X] has also asked why her father does not understand they don’t want him in their lives...he has never apologised...she remembers he never did anything at home... dad is just acting or pretending etc.
At the same time, she will show some affection and playfulness.
Overall [X]'s engagement with her father has been inconsistent. [Y] less so. Dad and [Y] do appear to have a close and playful relationship.
Notwithstanding this summary, the mother’s portrayal of the time spent by the children with the father during this time was wholly negative as is indicated by the following summary provided in the joint chronology:[18]
Supervisor report – second – covers 10 periods of supervised time – reveals:
•13.05.2023 after father questioning [X] as to her attitude – supervisor took father aside and told him to “take it easy on [X]”;
•27.05.2023 [X] arrived at visit crying and told supervisor that she didn’t want to see her father and grandparents and felt like she was under pressure when her father talked to her.
•24.06.2023 father asked [X] if she had started therapy and [X] became upset and left to go to bathroom crying – she told supervisor she wanted her mother to collect her and go home and [Y] told supervisor that he wasn’t allowed to see him and his sister at school and would go to jail if he would go.
02.07.2023 [X] upset at commencement of time was nervous and shivering and wanted supervisor to sit next to her – she said she couldn’t breathe and her teeth were shaking.
[18] Exhibit B.
On 30 August 2023, further interim orders were made by consent (“August 2023 orders”) discharging all previous interim orders and essentially providing for a continuation of the previous parenting arrangements, including for the family to continue attending upon Ms G reportable family therapeutic counselling. The orders recorded the parties’ agreement to adopt any recommendation made by Ms G in relation to the children receiving counselling and reiterating the mother’s obligations to provide the father with information in relation to the children and to “positively encourage” the children’s time spent with the father both over the phone and in person. An order was made permitting the mother to travel overseas with the children in similar terms as the order now sought by her on a final basis.
There was then a delay in the mother arranging for family therapy to commence. She says this is because she could not afford Ms G’s fee of $400 per session. On 22 September 2023, the father filed an enforcement application. On 18 October 2023, the mother filed an application seeking the father’s enforcement application be dismissed and he meet the full cost of Ms G’s fees. It is in my view significant the mother was meeting private legal costs, including by borrowing money from family, but did not prioritise sharing the cost of Ms G’s fees in the same way.
The children met with Ms G on 25 October 2023. The children prepared a list of “Rules for Dad” to be followed when they spend time with him. Those rules are attached to Ms G’s therapeutic report.
On 8 November 2023, orders were made by consent (“November 2023 orders”), providing for the father to meet Ms G’s fee and requiring the parties to “follow all recommendations of [Ms G] as to the nature and extent of time spent between the father and the children […] including as to the question of moving from supervised to unsupervised time.” The father’s enforcement application was withdrawn and the mother’s response dismissed. Putting to one side whether such a delegation to Ms G was appropriate, it is significant that the parties agreed to follow her recommendations.
On 6 and 10 November 2023 the family attended upon Dr W for the preparation of the first family report, dated 4 December 2023. Dr W recorded the following observations of the children’s interactions with the father:
Upon arrival, [the father] hugged and kissed the children; however, they did not reciprocate this. [The father] appeared excited to see the children and showed interest in them by asking how they were doing. [The father] was appropriate with the children; he initiated appropriate conversations with them, showing them photos of his previous vacation and discussing activities to do during their time spent together. While both children interacted appropriately with their father, they were observed to be reserved when compared to how they interacted with the mother.
The first family report recommended (in summary):
(a)If the father was assessed to pose an unacceptable risk to the children, the arrangement for supervised time then in place continue or the parents agree on an acceptable means of private supervision that is less restrictive for the children;
(b)If the father was not found to pose an unacceptable risk to the children or if he had addressed his anger management and mental health issues, an incremental plan be adopted for the children to spend unsupervised time with him. Dr W suggested they might spend unsupervised time with the father every second Saturday from 9.00 am to 5.00 pm, that could progress after six weeks to every Saturday from 9.00 am to 5.00 pm and then incorporate an overnight after a further six weeks. She suggested after three months of a single overnight with the father, they could commence spending time with the father every second weekend from Friday afternoon to Sunday afternoon;
(c)The children may attend counselling prior to and concurrent with the introduction of unsupervised time with the father for support;
(d)The father should continue engaging with his psychologist for his mental health and should attend an anger management program to assist him in learning how to manage his anger constructively. He may also benefit from attending a parenting course to be equipped with parenting skills to respond to the children’s emotional needs;
(e)The mother would also benefit from participating in counselling, to assist her in navigating the parenting dispute. Dr W considered such counselling would equip the mother with strategies to assist her in supporting X and Y’s successful transition into the father’s care if orders are made to this effect; and
(f)It may be beneficial for family counselling to continue to assist the parents and children navigating the stresses of the parenting dispute until such time as the family counsellor assesses that intervention is effective and no longer needed.
On 15 November 2023, the children attended a session with the father and Ms G, at which time they presented the father with their rules. I agree with Ms G’s assessment that those rules demonstrate a sense of confidence in the children’s relationship with the father and in sharing their opinions with him. The father spoke to the children, expressing regret for his actions. Ms G reported Y was observed to withdraw and that X presented as sceptical. She reported X said the father was “only doing this [therapy and litigation] to get us 50/50 and have sleepovers.” Ms G gave oral evidence the father asked X how she knows that and X replied, “Mum told me”. Ms G reported that at the end of the session, the children were smiling and appeared relieved.
On 16 November 2023, Ms G sent an email to the parties reading (in part) as follows:
Following the children’s meeting with [the father] yesterday […], I write to suggest that the next appointment is scheduled for mid-late January 2024.
As I indicated to you all, including [X] and [Y], the Rules that they developed need to be in place for some time so you [the father] have a chance to show them […] that you have taken their requests seriously.
On another note, however, I was very concerned to hear [X] say that she had heard from you [the mother] that her father was ‘only doing this to get us 50/50 and to have sleepovers’.
I ask that you make this very clear to both children that you [the mother] and [the father] are working things out and that we will all be talking with the judge (as I said very clearly yesterday).
In hearing this from [X] and seeing [Y] involved as well, I am hardly surprised that they are resisting the therapy and visits. They should not be involved in the adult issues.
It was also positive that both [X] and [Y] spoke openly with you [the father] and you were able to clarify some of their questions.
[X] and [Y] looked relieved and smiling at times, and that is always a good sign.
I need you both as parents to be on the same page about this work and about what you want for your children. You both talked about similar hopes and expectations for the children, and I ask that you put your issues aside to work together about [X] and [Y].
On 23 January 2024, the children attended a second session with the father and Ms G. Ms G reported the children presented as disengaged from the process of rebuilding their relationship with the father and said (inter alia) the visits were “boring”. Ms G said the children brightened when she suggested planning a more interesting activity with the father than attending a shopping centre and they agreed this would be “more fun”.
On 3 February 2024, the father attended at X’s work. The mother alleges the father had previously asked X if she wanted him to visit her at work and she said she did not. The mother complained this was contrary to the parenting orders providing only for supervised time. She gave evidence X felt “embarrassed and pressured” by the father’s attendance at her work. However, there was no suggestion X was upset or fearful. My assessment is consistent with that of Ms G, that attending X’s work unexpectedly was a gesture by the father suggesting “thoughtlessness rather than malevolence”. The interim orders had since April made provision for the father to attend all school events and to take part in activities relating to their schooling. Accordingly, whilst ill-judged in that it was not arranged with X and the mother and not provided by the orders, the father’s attendance was not inconsistent with the spirit of the interim orders, providing for the father to be engaged in aspects of the children’s life outside of their family life.
Ms G’s therapeutic counselling report was released dated 23 February 2024. This report provided a summary of the family’s sessions with her and (in summary) provided the following expert opinions and recommendations:
(a)The mother continues to be negative and dismissive of the father;
(b)The father continues to present as mistrustful of the mother and her support of the children’s relationship with him;
(c)The children are aware of the parental acrimony;
(d)That acrimony has extended to side-taking by extended family;
(e)The family dynamics that have influenced X and Y to align with the mother presented as significant and potentially chronic;
(f)The children have been over-exposed to professionals in this litigation and so therapeutic counselling has been perceived by them as yet another coercive step taken by their father, a view that has cemented their alignment with the mother;
(g)The father does not present as a protective risk, despite his reactivity that has at times been counterproductive to rebuilding a health psychological relationship with the children. Ms G provided the example of him attending at X’s work unexpectedly;
(h)Supervision now presents as negative for the children’s relationship with the father;
(i)The children should continue to spend time with the father but in an arrangement which they can have some choice, to benefit their engagement with the process and support the father’s role. Ms G suggested an arrangement with a structure of three visits in a month for a total of 36 hours (but applied flexibly to three visits), for which the children and the father plan activities, which could proceed for two terms and then be reviewed. She suggested overnight time could be included in the 36 hours but would likely need preparation for the children. She suggested this arrangement could include agreed steps towards consistent time arrangements with the father but depend on successful reviews at nominated times, such as at the end of each school term; and
(j)The parents would benefit from the involvement of a parenting co-ordinator to manage the communication necessary for such a proposed arrangement.
The father, prematurely in my view, cancelled the supervision service, in anticipation of the children spending unsupervised time with him as recommended by Ms G. However, the mother did not agree to progress to unsupervised time, insisting the children first receive counselling, notwithstanding Ms G’s expert opinion of the effect that over-exposure to professionals has had on the children. This was consistent with the evidence of Dr W who reported that X’s previous experience with counselling in grade 6 was negative. In particular, Dr W reported that X felt that while other children were living a “normal” life, she had to engage with a psychologist during her primary school years, and that she blamed the father for this.
The children did not spend time with the father during this stalemate.
On 9 April 2024, the father filed an enforcement application, seeking the mother follow Ms G’s recommendations as required by the November 2023 orders. On 15 May 2024, the mother filed an Application in a Proceeding, seeking the order requiring the parties to follow the recommendations of Ms G be dismissed, the children attend individual counselling and that after five sessions of counselling the children begin spending time with the father – X, in accordance with her wishes, and Y each alternate Saturday for three hours. By the time those applications came before the court on 20 May 2024, there was no longer provision in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) for applications seeking enforcement of parenting orders. The mother’s Application in a Proceeding was adjourned for an interim hearing on 14 June 2024.
On 14 June 2024, following a contested interim hearing, I made interim orders (“the June 2024 orders”) providing for the children to spend unsupervised time with the father – for two consecutive Sundays for dinner, and then each alternate Sunday from 9.00 am to 5.00 pm with the father to take X to and from work if she is working during and Y to sports if he is playing.
On 15 June 2024 the children began spending unsupervised time with the father, beginning with breakfast at a venue decided on together. That this arrangement was made in lieu of the arrangement I ordered for dinner was in my view positive, demonstrating the type of consultation with the children envisaged by Ms G. The father continued to accommodate Y attending sports and the children’s requests to spend time with him at shopping centres and out for dinner, notwithstanding his own preference for the children to spend time with him in another environment.
On 2 August 2024, X experienced what the father described as “minor panic” and the mother described as a “panic attack”, while on the way to a lunch when spending time with the father. The father deposed he believed this was a result of X feeling claustrophobic while travelling in an elevator from an underground car park or thinking they were lost because the father wasn’t sure of the way. The mother deposed X phoned her from the bathroom at the restaurant, that she told X they would talk about it when the children came home and that she tried to distract X by asking how Y’s sports game was. The mother deposed X talked about her experience again when she got home. She did not give any evidence she had sought to reassure X about spending time with the father. Ms G reported only that X said the father was “not supportive” on this occasion. She did not elaborate.
Aside from what was described as X’s panic on 2 August 2024 and the children’s preference to continue spending time with him in shopping centres, the father deposed their unsupervised time together since June 2024 has gone well and he has noticed an improvement in the children’s overall comfort and enjoyment of their time spent together.
The mother does not agree supervised time has progressed well. She provided detailed accounts of what the children have told her about each occasion of unsupervised time they have spent with the father, including quoting their conversations with her. I provide the following as one example from the mother’s trial affidavit, to show the detail of her discussion with X about time spent with the father:
On 30 June 2024, the children spent time with [the father] from 9.00am to 5.00pm. [X] had a discussion with [the father] in the car on the way home from [Y]’s [sports] to the effect that [the father] said to her “I know you’re being told that I want to take you away from your mother”. [X] said she hadn’t been told anything. He then told her “it is beneficial for the kids to spend 50/50 with the parents.” [X] replied “ok if they had two good parents but not when you have one that’s not the best.” He then said is this from your knowledge or from what you have been told. [X] replied “How do I get told of what’s happened to me.” [The father] said I know what you are going through and [X] said “No you don’t, you are not us”. [Y] then said to [the father] I’m sorry you feel that way. [The father] started laughing and [X] asked why are you laughing and he said you are using my words. [X] then said at least be sorry for what you did not for how someone else feels. I have heard the children mimic [the father] between themselves using these words which they have said to me he often states to them when they have tried to speak to him about their feelings.
It is apparent from these accounts the mother has been discussing the children’s time spent with the father extensively. Having seen the mother’s presentation during the course of the final hearing and finding it likely she is unable to disguise her dislike and disapproval of the father, I find her dissatisfaction about the current arrangements and of the father’s interactions with the children has most likely been conveyed to them during these discussions.
In making this decision, I have taken into account and balance the above considerations with the following matters:
(a)The orders I make do not accord with the children’s views;
(b)The children’s ages and in particular that X is 16 and approaching adulthood, which would ordinarily see significant weight placed on her views;
(c)The challenges of making orders fixing arrangements for a child of X’s age to spend time with her parents, including as canvassed with Ms G at the final hearing; and
(d)The evidence of Dr W in the first report that:
The children may also experience loyalty binds, increased anxiety and confusion if their mother does not support their relationship with the father.
The orders I make will provide specifically for the children to spend time with the father at times to be agreed in writing, in consultation with the children, consistently with the nature and quantity of time provided by the orders. Failing agreement, the parties will be required to facilitate the children spending time with the father scheduled in accordance with the order I make, gradually increasing in duration, as follows:
(a)Initially, the children will spend time with the father during the day on alternate Sundays as they currently do;
(b)That time will increase relatively quickly, next month, to periods of 24 hours, including overnight time (Saturday afternoon to Sunday afternoon in alternate weeks). The father sought overnight time commence immediately upon the making of final orders, but I have taken into account Ms G’s oral recommendation that the children will need a lead-in time to prepare for a change in the time they spend with the father;
(c)From January 2025, the time the children spend with the father will further increase, to include more time during the day on Saturday (Saturday morning to Sunday afternoon). This is proximate to Ms G’s recommendation for blocks of 36 hours consistent and with the father’s proposal for time of this duration to commence on 29 December 2024;
(d)The time the children spend with the father will again increase further at the end of term 1 in 2025 to two nights overnight (Friday to Sunday), being just over 48 hours (more if Friday is not a school day). This is proximate to Ms G’s recommendation for the children to spend 48 hours a fortnight with the father after a period of six months; and
(e)Finally, the orders I make will see the children’s time spent with the father during school term periods increase at the end of term 2 in 2025 (mid-year) to three nights overnight (Friday to Monday).
Such an arrangement will provide for the children to continue living with the mother as they are accustomed to but will provide for them to spend increasing weekend time with the father and his family, ultimately including changeover at school so the father can engage with the children, their teachers, friends and other school families at school pick up on Fridays and drop off on Mondays. This arrangement also has the benefit of reduced interaction between the parties for changeover, reducing the children’s exposure to the tension between their parents. In arriving at this arrangement, I have taken into account Ms G’s oral evidence that the children’s time with the father should take place in a single block rather than in multiple smaller blocks, the duration of time they spend together should increase over time, and the build-up in time should be relatively quick.
I accept the evidence of Ms G the children would benefit from more nuanced orders, providing for them to have some input as to how and when they spend time with the father. However, I find that unless there is a requirement for the parties to facilitate the children spending fixed time with the father, it is unlikely the mother will encourage and support that to occur. Accordingly, I have determined to frame the orders to provide for the children to spend time with the father at times agreed by the parties in consultation with the children but with a structured arrangement of time to be implemented in default of agreement. If the children have the maturity and support of the mother to collaboratively consult with the father to make alternative arrangements, the orders provide for that. If they do not, the default position will apply.
Whilst the father seeks to spend more time with the children, and in the family report and her oral evidence Ms G supported the children ultimately spending five nights a fortnight with the father, I do not find that to be in their best interests taking into account the following matters in particular:
(a)The orders I make will be a significant change for the children. They are likely to find it difficult to adjust to living between two homes, particularly given their ages;
(b)The following expert evidence of Dr W in the first family report as to the benefit of the children of supporting their secure base with the mother:
[…] it is important for the children’s sense of emotional security for their relationship with the mother, who is their primary parent and ‘secure base’ to be maintained. If this relationship is disrupted, [X] and [Y] are likely to experience confusion, stress and anxiety, as well as trust issues among other things. This may impact their learning, social development and the strength of their relationship with their parents.
(c)The parties lack the cooperative parenting relationship I consider is required for the children to easily transition back and forth between their care more than once a fortnight or to support the children sharing their time between two households in a substantial way;
(d)The distance between the father’s home and the children’s home (presumably also X’s work, the children’s activities and friends), being a drive of approximately 40 minutes each way and more in heavy traffic; and
(e)The father lives with his parents. Whilst I don’t consider this is a problem for the children spending weekend and holiday time with the father and offers the children benefits, I am unable to assess at this point how that arrangement will work if the children were to spend longer periods of time with the father during school terms.
The parties agreed to an order they would each ensure the children attend extra-curricular, school or social activities at times they are in their care. I have amended this provision to provide also for the children’s rostered work commitments, which the father agreed to accommodate for X when she spends time with him. I have also included a caveat to this provision, inserting the words “where practicable” recognising it may not always be possible for the parties to facilitate social and other activities arranged for the children at times they are in their care – for example, in the case of conflicting commitments.
I have taken into account that X may not always spend time with the father at the same time as Y, given her work and social commitments and that she will soon be an adult. Whilst I find it would be in the children’s best interests if they continued to spend time with the father together, I also find it is in Y’s best interests to spend time with the father, even if X does not, and even if not supported by the mother. I note particularly the following evidence of Ms G when cross-examined by counsel for the mother:
Counsel: At this stage, tenuous as it is, do you want to comment upon that and what effect it might have on [Y] if his sister decides not to go to time with the father, and he’s away from his sister?
[Ms G]: Given [Y]’s age and his developmental individuation process, at any rate, and given that I would assume that moving towards spending time, overnight time, in the father’s home would be something that was very carefully and well supported, I think that [Y] would be able to manage. He would protest, and that has been the theme for these children, that they’ve protested, but if both parents were able to be actively supportive, and given that there would be a paternal extended family around as well, I think that [Y] would manage.
I then asked Ms G what if the mother wasn’t supportive and she answered:
That would add to the anxiety for the – by the children, and it would certainly add to the anxiety for [Y]. I see [Y] as more psychologically resilient than [X]. He seems less of feeling overwhelmed with anxiety and more of the more energising emotions of hatred. And so, I think that he would be able to manage that too.
As already mentioned, the orders I make will provide for the children to begin spending overnight time with the father relatively quickly, in December 2024. In making this order, I have taken into account the oral evidence of Ms G in response to questioning by counsel for the mother:
Counsel: Now, the proposal that’s put by the father, your report has about a six-monthly period before overnights are considered, and the father’s position seems to be just to get into it straightaway. Now, there’s a difference – and so, I want you to just comment on that – is there anything in your consideration that has acceded to that as a timeframe proposal to start overnight straightaway in the next week or so?
[Ms G]: I would be concerned about the next week or so, your Honour. I think the children need to be supported and prepared to do that, but with the knowledge that this would certainly be occurring.
I have taken this evidence into account but have determined it is in the children’s best interests for there to be only a short lead-in to them spending overnight time with the father. I am concerned they will otherwise experience anxiety over an extended period before spending time with the father during which time they are likely to be adversely impacted by the mother’s own anxiety rather than supported by her.
On 16 October 2024, I made interim orders upon the oral application of the father at the conclusion of the hearing for the children to spend additional time with him pending judgment for a number of special occasions in December 2024 and January 2025, in case I was unable to deliver my judgment this year. I will make orders for the children to spend time with the father for those special occasions, consistently with those interim orders, given the children may have already been informed of those orders and the parties may have already made plans around them.
I otherwise find it is in the children’s best interests to spend time with the father for special occasions, and through him with their paternal family. The mother sought orders for the children to spend time with the father for only a small number of special occasions, during the day, in alternate years. The father sought the children share their time with both parents on a larger number of special occasions, including overnight. For the same reasons I find it is in the children’s best interest to spend regular, increasing overnight time with the father (namely to provide them an opportunity to have him involved in all aspects of their life and to develop a close and nurturing relationship with him), I also find it is in their interests to share occasions of special significance with him, including overnight.
The children celebrate both Christian and Orthodox Christmas and I find it is appropriate for them to share those occasions with both sides of their family, including to see the different ways in which the parties and their families may celebrate those occasions. This will add to the richness of their childhood experiences and provide an opportunity for them to develop relationships with their extended paternal family as they have been able to enjoy with their maternal relatives.
On Y’s birthday, I have made provision for the children to spend time with the father from 12 noon until 3.00 pm (for lunch). In years the children do not stay with him overnight. I will then provide for the children’s time with each party to commence at 3.00 pm rather than 5.00 pm as proposed by the father, fitting with the time I have set for Y’s birthday with the father and providing 24 hours until changeover at 3.00pm the following day.
I will also make provision for the children to spend time with both parties on X’s birthday, and likely to fall during school holidays. In particular, I will provide for them to spend three hours in the evening for dinner with whichever parent they would not otherwise see on that day.
I have otherwise generally adopted the times proposed by the father for special occasions given the mother did not propose an alternative to the children spending time with the father other than during the day.
The father sought orders providing for the children to spend time with each of the parties on each of Ms AA and Y’s name day but did not give evidence about the significance of those occasions or specify times for the children to spend particular time with them on those days. I note they are likely to fall during school term periods when the children have other commitments. Accordingly, I will not make specific provision for those days. It will be open to the parties to do so by agreement in consultation with the children.
Ms G did not make recommendations in relation to school holiday time. She was not asked questions about it. I will provide for the children to begin spending school holiday time with the father, beyond the time they regularly spend with him during alternate weekends, from the term 3 school holidays in 2025 for one week during each school term holiday period and during the long summer school holidays. This will provide time for the children to settle into spending increasing time with the father on alternate weekends and then to discuss with him and plan how they would like to spend their holiday time with him. I do not find it is in the children’s best interests to spend longer than one week during the long summer school holidays with the father, anticipating they will likely find it difficult being away from the mother for extended periods of time, at least initially. I find one week at a time is appropriate and will be manageable for the children, in terms of the length of time they will be away from the mother, given Ms G’s recommendation that they ultimately spend time with the father for five nights each fortnight. I find one week is sufficient for the children to experience extended holiday time with the father and his family and to travel with him. If the children enjoy that time it is open to the parties to agree, in consultation with the children, for an extension of that arrangement over time.
Changeover
The father seeks changeover take place at school and otherwise at the parties’ homes. The mother conceded when cross-examined there is a benefit to the children of changeover taking place at the parties’ homes. Nevertheless, as foreshadowed at the final hearing, I do not intend to make an order providing for changeover at the parties’ homes, as I am concerned that will make the mother feel apprehensive given the family violence she has been subjected to in the past and her feelings towards the father. I find it likely if the mother is apprehensive about changeover that is likely to in turn have an adverse impact on the children’s experience of changeover and spending time with the father. Accordingly, I will make an order providing for changeover to occur at C Shop, at D Street, Suburb E as proposed by the mother. I appreciate this will place a heavier burden of travel on the father but I find this changeover arrangement is likely to enhance the children’s experience of spending time with the father and is therefore in their best interests.
Communication
Ms G recommends the children continue to communicate at least once a week with each parent when they are in the care of the other parent. The father sought an order providing for this communication to occur each Wednesday between 8.00 pm and 8.30 pm and that the parents each provide the children with a phone and privacy for the purpose of that communication. The mother did not oppose the making of that order, save that she proposed the communication occur earlier, between 6.00 pm and 6.30 pm. The father submitted via his counsel the earlier time is problematic when X is working. I will therefore make an order for the communication to occur within the timeframe proposed by the mother, save for when the children have commitments (including work for X) in which case it is to occur at the time proposed by the father, with appropriate notification to be given.
It is apparent from the mother’s trial affidavit that the children’s conversations with the father are subject to scrutiny by her. Their calls have at times been recorded. I find this is likely to impact the children’s experience of communication with the father. Accordingly, the order I make will include a requirement for the children to be provided privacy when communicating with the other parent as proposed by the father. I will also frame the order so that each parent is required to facilitate and encourage the ordered communication.
I will also provide in the order I make for communication to be facilitated at all other reasonable times requested by the children and at such further or other times as may be agreed by the parties in writing, which will allow them to accommodate other commitments of the children by agreement.
Decision-making responsibility
I confirm the mother seeks an order providing that she have sole decision-making responsibility in relation to the children. Aside from the agreed orders providing for the sharing of and access to information in relation to the children, primarily related to their medical care and education, she does not seek orders requiring her to consult with the father or even inform him of decisions she makes for the children. She does not give any evidence indicating her intention to do so. In her case outline, the mother points to her role as primary carer to the children in support of an order for her to have decision-making responsibility and to what she describes as the father’s lack of anger management and/or control and committing family violence in support of her position that the parties cannot communicate effectively.
The father seeks an order for joint decision-making responsibility. He submits he does not pose any risk to the mother’s safety and they are capable of communicating with one another and making joint decisions. He submits it is only the mother’s unwillingness to do so that has prevented them from doing so to date.
Section 61C of the Act provides that each of the parents of a child has parental responsibility for the child. This is the case despite any changes in the parents’ relationship, including their separation. Parental responsibility is defined by section 61B as meaning all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Interim orders have not been made altering this position. Since separation the mother has exercised her parental responsibility for the children without consulting with the father, including deciding to move with the children and to change their schools.
Section 61D(3), as now in effect, provides that if a parenting order deals with the allocation of responsibility for making decisions about major long-term issues in relation to a child, that order may provide for joint or sole decision-making in relation to all or specified major long-term issues.
Major long-term issues in relation to a child are defined in section 4(1) of the Act as follows:
major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
To avoid doubt, a decision by a parent of a child to form a relationship with a new partner is not, of itself, a major long-term issue in relation to the child. However, the decision will involve a major long-term issue if, for example, the relationship with the new partner involves the parent moving to another area and the move will make it significantly more difficult for the child to spend time with the other parent.
Section 61DAA requires that if a parenting order provides for joint decision-making in relation to all or specified major long-term issues in relation to a child, then, except to the extent the order otherwise specifies, the order is taken to require each of those persons to consult with one another in relation to each such decision and to make a genuine effort to come to a joint decision.
There is no longer any presumption in relation to the allocation of parental responsibility and the court’s focus is to be on the needs and best interests of the individual child.
Both children are now at secondary school. They moved with the mother to live in Suburb E in late 2022 to live in her preferred location, near her work and her sister. There is no evidence the mother intends to move from that area.
There was no evidence the children have medical conditions such that regular medical decisions of a major long-term nature are anticipated. Ms G has recommended individual psychological therapy might be considered for X on the basis of her reports of generalised anxiety, in which case she recommends both parents be equally involved, and any treating professional be permitted to read her report. Given X previously blamed the father for her attendance at counselling in primary school and the family’s attendance at family therapy with Ms G, I agree both parents should be involved in the decision for her to attend further counselling and involved in that counselling.
The parties share the children’s Orthodox faith.
Neither parent has proposed changing the children’s names.
Accordingly, it is unlikely any major long-term issues will require decisions, unless the children’s education needs change or they experience health issues.
I accept the evidence of Dr W in the first family report about the parties’ co-parenting relationship at the time of her report, which is consistent with my assessment of the evidence and which I find has not changed significantly:
The co-parenting relationship is problematic. The parents have negative attitudes and are highly mistrustful of each other. [The father] reported making attempts to communicate, which [the mother] did not reciprocate. [The mother’s] reported experiences of family violence compound her unwillingness to communicate with [the father] about [X] and [Y]’s parenting needs.
This was consistent with Ms G’s oral evidence that the parties’ capacity to improve effective communication is relatively limited, her observation they were not able to hold mature and capable communication with one other throughout the therapeutic process with her, and her assessment that it would be very difficult for them to reach agreement on some of the big issues for the children. I note however her opinion that the use of a parenting coordinator could be very helpful to facilitate the communication between the parties necessary to facilitate joint decision-making, providing structure and boundaries to their communication.
When cross-examined about decision-making for the children, the father expressed confidence the mother will make decisions that are in the children’s best interests. Accordingly, I find it is unlikely the father will obstruct the making of reasonable decisions in relation to the children if he is consulted by the mother and provided with information about decisions to be made for them.
I acknowledge the mother will find it difficult to communicate with the father given her past experience of family violence perpetrated by the father and her fixed attitude towards him. However, she did not adduce evidence of any attempt she has made to communicate with the father and to consult with him in respect of major long-term decisions about the children since separation, from which I can assess it is not practicable or in the children’s best interests for that to occur. Aside from her past experience of family violence, she has not raised any recent or current safety concerns that cause me to be concerned for her safety, including her psychological or emotional safety by being required to communicate and consult with the father. She did not for example adduce evidence from a treating or other expert to support that communicating with the father would be detrimental to her psychological or emotional health rather than uncomfortable or difficult for her. She is adamant she does not have anxiety although I find she likely is anxious about the children spending time with the father. The parties have previously reached an agreement to use a parenting communication app, AppClose, to communicate in relation to the children as recommended by Dr W in the first family report. This has been provided for in the April 2023 and August 2023 orders. Dr W suggested this form of communication may make the parents more accountable for how they communicate with each other. The mother does not allege the father has communicated with her using that tool or otherwise in an inappropriate manner since those interim orders were made. The parties have agreed to a like order being made on a final basis.
The parties also reached agreement at the conclusion of the hearing on a form of order providing for the appointment of Ms G or another agreed professional, in the role of parenting coordinator, to assist them with decision-making in relation to the children should they encounter any difficulties in that regard. This is a positive step and I will make that order.[26]
[26] Save that I will not include the proposed provision in the order recording that the parties’ parenting arrangements are set out in orders of the court, as that will be apparent from the orders themselves.
Having regard to all of the matters traversed in my reasons and the above matters in particular, I find it is in the children’s best interests for the parties to have joint decision-making responsibility about major long-term issues affecting the children notwithstanding their poor co-parenting relationship. I find the children would benefit from both parents having input in such decisions and knowing that both parents wish to be and will be involved in those decisions. I accept this runs the risk of further disputes and litigation but I assess that risk to be low and outweighed by the benefits to the children for the reasons I have outlined.
International travel
The mother seeks an order that she be permitted to travel overseas with the children with the consent of the father subject to travel being confined to countries in respect to which the 1980 Hague Convention on the Civil Aspects of International Child Abduction is in force with Australia and the provision of specified information. She also seeks an order the father not withhold his consent unreasonably to the children travelling with her. The father does not oppose the making of that order but seeks the children also have the opportunity to travel overseas with him on the same conditions.
The mother opposed the children travelling overseas with the father, not because of any expressed concern he will not return them to Australia, but because she opposes them spending time with him other than in accordance with their wishes and opposes them spending overnight time with him. When cross-examined, she said that if the children wanted to travel overseas with the father, it would not be a problem, and an order could therefore be made in like terms in respect of the children travelling overseas with him.
I find the children would benefit from being able to travel overseas with the father once they have been spending regular time with him. I encourage him to consult with the children and ensure they feel comfortable with any travel he arranges to maximise the prospects of it being enjoyable and a positive experience for them.
I do not consider it appropriate to make an order restraining the parties from unreasonably withholding their consent to the children travelling overseas with the other parent as was proposed by the mother in respect of her travel with the children. Such an order is likely to result in disputes as to whether consent is withheld reasonably or unreasonably. I acknowledge an order for international travel that relies on the consent of the parties may result in further litigation. However, in the absence of evidence of travel plans and further time to see how the children’s relationship with the father develops, if it is appropriate for their time with him to be interrupted by extended international travel with the mother, and if they are comfortable travelling with the father, I find it is in the children’s best interests for the parties to consider any proposal for overseas travel in the context of the proposal and the children’s circumstances at the relevant time.
Injunctions
To make an injunction pursuant to section 68B of the Act in relation to the children, I am required to be satisfied that it is appropriate for their welfare. Section 68B is informed by the best interests of the child but not governed by the paramountcy principle.[27] The Full Court in Bielen & Kozma[28] observed there is no definition of the “welfare” of the child in the Act and expressed the view that consideration of matters impacting upon the welfare of a child “necessarily involves focusing upon the immediate, medium and long-term impact of proposed orders upon the child’s physical, emotional and psychological safety, security and well-being”.
[27] Hedlund & Hedlund (2021) FLC 94-065 citing previous authorities with approval.
[28] Bielen & Kozma (2022) FLC 94–123; [2022] FedCFamC1A 221 at [30].
I am satisfied the agreed injunctions to safeguard the children from denigration of the other parent and access to documents about this court proceeding and previous intervention order proceedings involving the parties are appropriate for their welfare. I do not find it appropriate to make an order restraining the parties from showing the children documents relating to “any other court proceeding” being too broad a category of documents and not supported by the evidence.
The mother also seeks an injunction restraining the parties from questioning the children about or discussing with them their future living or spend time arrangements. I am not persuaded such an order is appropriate for the children’s welfare, finding it will be important for the parties to discuss the children’s future care arrangements with them for the purpose of the consultation provided by the orders I make and to support the children to adjust to the orders.
Explanation of orders to children
Ms G agreed the children would benefit from a person other than the parents explaining the final orders I make to the children. Accepting her recommendation, the parties agreed at the conclusion of the hearing to an order requiring them to forthwith do all things to engage Ms G (or such other therapist as they may agree in writing), to explain to the children the meaning and operation of the final orders as soon as practicable, with those costs to be borne by the father.
I find such an order to be in the children’s best interests, so that they understand the dispute between their parents has been resolved and the court has found it is safe and in their best interests to spend time with the father and their paternal family. I ask that the children be informed I have taken into account their views and have made orders providing them with the opportunity to have some input into the particular details of time they spend with the father by way of consultation with him if they are able to do that with sufficient maturity but that if that is not possible, their parents are required to implement the schedule of time set by the orders.
Therapeutic support
Ms G recommended in the second family report that both parties undertake psychological therapy. Ideally, they would follow this recommendation for the benefit of the children. However, neither party sought an order that the children’s time spent with the other be conditional upon them attending counselling. I referred earlier in my reasons to the mother’s attitude towards attending recommended counselling. I note in event, the Full Court’s observations in Lainhart & Ellinson[29] that:
Courts must take the litigants as they find them when determining causes of action under Pt VII of the Act. Courts are not, and cannot operate like, therapeutic agencies, using litigation as the vehicle to meddle by making aspirational directions about how litigants should improve their parenting capacity in the hope of enhancing their children’s familial experiences.
[29] (2023) FLC 94-166 at [29].
The orders I make are made on the basis of how each party presented at the time of the final hearing and not predicated on there being any change in their attitudes or parenting capacity.
I expect the mother will find it difficult to accept the orders I make given her strong negative feelings about the father and her belief that there is no benefit to the children of spending time with him. The father will likely be disappointed that my orders do not provide for the children to spend more extensive time with him. Regardless of how they might feel about the orders I make, the parties are required to follow the orders. The expert evidence is clear that it is in the children’s best interests for them to support the children spending time with the father and for the children to be safeguarded against the parties’ negative feelings towards one another.
The parties’ obligations arising from the orders, the consequences for non-compliance and services that can assist them to understand their parental responsibilities and adjust to and follow the court orders are set out in the information sheet which will be annexed to the final orders. I encourage them to each seek professional support from a psychologist or counsellor to support them to adjust to these orders including to support them to support the children to adjust to the orders. I will make an order authorising the parties to provide a copy of the final orders, my reasons and the second family report to any psychologist or counsellor they may each attend upon for this purpose.
Other orders
I otherwise find the agreed orders put forward by the parties in relation to access to and sharing of information and other ancillary issues are in the best interests of the children and will make orders in those terms with minor amendments to ensure the parties’ obligations pursuant to those orders are clear.
Discharge of previous orders
Rule 5.01 of the Rules provides that upon the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect. I will nevertheless make an order confirming this is the case, so it is clear for the parties and to any third party (such as the children’s school) who may have been provided with copies of interim orders made in the proceeding.
CONCLUSION
For all of the above reasons, I am satisfied the orders set out at the commencement of these reasons are in the best interests of the children and make orders in those terms.
I certify that the preceding two hundred and thirty-six (236) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A. Humphreys. Associate:
Dated: 22 November 2024
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