Newman & Tate - [2020] FamCA 1114

FAMILY COURT OF AUSTRALIA
Newman & Tate [2020] FamCA 1114

File number(s): SYC 4869 of 2017

Judgment of: MCCLELLAND DCJ

Date of judgment: 24 December 2020

Catchwords: FAMILY LAW – PARENTING – Review of Senior Registrar’s decision – Where there is an Application before the Court to review a decision of the Senior Registrar in respect of interim parenting arrangements – Senior Registrar’s orders provide for one of the twin children to live with the father and the other twin and third child live with the mother and spend supervised time with the father – Where there is no dispute in respect to the interim arrangements for the parties’ third child – Where the parties have competing applications in respect to the interim living arrangements for the twin children – Where the child living with the father spent a period of time in Hospital subsequent to a mental health episode – Where the child living with the father has expressed strong views in respect to his propensity to self-harm if he were not to live with the father – Where the Independent Children’s Lawyer contends that a cautious approach should be taken by the Court – Consideration given to the potential risk to the children’s mental health in respect to each of the parties’ applications – Orders made for each of the children to remain living with the respective parents – Orders made for the children to spend un-supervised time with the parent with whom they do not live as agreed between the parties – Orders made for the parties to surrender their firearms.

Legislation:
Australian Constitution s 71

Family Law Act 1975 (Cth) s 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA

Evidence Act 1995 (Cth) s 140

Family Law Rules 2004 (Cth) r 18.08, 18.10.

Cases cited:
A v A (1998) FLC 92-800

B and B (1993) FLC 92-357

Banks& Banks (2015) FLC 93-637

Blinko & Blinko [2015] FamCAFC 146

Cowling v Cowling (1998) FLC 92-801

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Feiteiro & Feiteiro [2019] FamCA 647

GO v CS FC Palmerston North FAM 2003-054-000859 21 January 2005

Godfrey & Sanders (2007) 208 FLR 287

Goode and Goode (2006) FLC 93-286

Harris v Caladine (1991) 172 CLR 84

Henley & Henley [2019] FamCA 101

Johnson & Page (2007) FLC 93-344

M & S (2007) FLC 93-313

M and M (1988) FLC 91-979

Masson v Parsons (2019) 266 CLR 554

Mazorski v Albright (2007) 37 Fam LR 518

Morgan and Miles (2007) FLC 93-343

N and S (1996) FLC 92-655

Napier & Hepburn (2006) FLC 93-303

Nikolakis & Nikolakis [2010] FamCAFC 52

R & C [1993] FamCA 62.

Sigley v Evor (2011) 44 Fam LR 439

SS & AH [2010] FamCAFC 13

Tomko v Palasty (No 2) (2007) 71 NSWLR 61

The Hon John Fogarty AM titled ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249

The Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15

Number of paragraphs: 179

Date of hearing: 16 December 2020

Place: Sydney by web conference

Counsel for the Applicant: Mr Hodgson

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the Respondent: Ms Windsor

Solicitor for the Respondent: Eddy Neumann Lawyers

Counsel for the Independent Children's Lawyer: Mr Fermanis

Solicitor for the Independent Children's Lawyer: Claremont Legal
ORDERS

SYC 4869 of 2017

BETWEEN:
MR TATE

Applicant

AND:
MS NEWMAN

Respondent

CLAREMONT LEGAL

Independent Children’s Lawyer

ORDER MADE BY:

MCCLELLAND DCJ

DATE OF ORDER:

24 DECEMBER 2020

THE COURT ORDERS THAT:
1.The orders made on 4 March 2020 that the child, X born … 2005 (“X”), live with Ms Newman (“the mother”) be suspended.
2.X shall live with Mr Tate (“the father”).
3.X shall spend time with the mother as agreed between the parties.
4.The children, Y born … 2005 (“Y”) and Z born … 2008 (“Z”), shall live with the mother.
5.Y and Z shall spend time with the father as agreed between the parties.
6.The parties are granted leave to approach the Chambers of Senior Registrar Campbell for a relisting of the matter in relation to any dispute concerning the frequency or length of time that Y and Z spend with the father and/or the frequency or length of time that X spends with the mother.
7.The father is authorised to enrol X at J School in City H for the commencement of the 2021 school year.
8.Both parties are to forthwith attend the City H Local Area Police Command to surrender, to the supervising officer, such firearms as they currently have in their possession.
9.In the event that either party wishes to make an application for costs in respect to these proceedings or an earlier proceeding involving the parties, they are to, within 14 days of the date of these orders:
(a)File an updated financial statement;
(b)File and serve, including by emailing my Associate at [email protected], a summary of argument of no more than two (2) pages typed in 12-point font setting out the basis upon which they contend an order for costs should be made in their favour.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Newman & Tate has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
McClelland DCJ:
INTRODUCTION

This decision concerns an Application in a Case filed 23 November 2020 by Mr Tate (“the father”) by which the father seeks a review of a decision made by the Senior Registrar on 5 November 2020 in respect of the children, X born … 2005, Y born … 2005 and Z born … 2008 (collectively “the children”).
The parties in this matter, the father and Ms Newman (“the mother”), were married for a period of 12 years until they separated in 2016. Throughout the duration of their marriage they predominantly resided in country New South Wales and, until January 2020, the children lived in country New South Wales at their parents’ respective places of residence. In January 2020, the mother relocated to Sydney in order to take up an employment opportunity. The children travelled with the mother to Sydney despite the parties’ two (2) eldest children, X and Y (“the twins”), expressing a desire to live with their father in country New South Wales. Both X and Y expressed difficulties in settling into their new school in Sydney and both claimed that, at various stages, they had been bullied at school as a result of their rural upbringing.
The dispute came to a head in October 2020 when the twins did not return to the mother’s residence at the conclusion of the term 3 school holiday period in accordance with orders made on 4 March 2020. The twins were returned to the mother’s residence after a Contravention Application was filed by the mother. However, on the day of being returned to his mother, being 22 October 2020, X threatened an act of self-harm which resulted in his hospitalisation for mental health therapy. Subsequent to that event, the Senior Registrar made orders providing for X to live with his father and for Y and Z to live with the mother and spend time with their father, supervised by a professional service, as agreed between the parties. The father seeks to review that decision made by the Senior Registrar.
APPLICATIONS
Orders sought by the father
The father seeks that orders be made in accordance with the Minute of Order provided to the Court by email dated 16 October 2020 (marked ‘Exhibit E’ in the proceedings), as follows:
1.That the children X and Y both born … 2005 live with the Father (“the children”)
2.That Z born … 2008 live with the Mother (“the child”).
3.The parties equally share parental responsibility for the care, welfare and development of X born … 2005, Y born … 2005 and Z born … 2008.
4.The parties do all acts and things, including completing and signing all documents necessary, to re-enrol the children at J School and facilitate the children recommencing attending school at J School as soon as possible.
5.That the children shall attend J School as day boys from the commencement of Term 1 2021.
6.That pursuant to section 124 of the Child Support (Assessment) Act 1989 (Cth), the Father pay as and when they fall due:
(a)all school and tuition and boarding fees for the costs of J School;
(b)all associated educational expenses for the children’s school enrolment including uniforms, books, levies, stationery, computer costs, sports equipment, camps and excursions; and
(c)all extra-curricular expenses including ongoing club and school sporting fees, uniforms, equipment and game/match fees.
7.That when the children X and Y live in City H the children will spend time with the mother at all times as may be agreed but failing agreement as follows:
a.For one half of each NSW gazetted school holiday period following Terms 1, 2 and 3, with such time to be by agreement and failing agreement for the first half in even numbered years and the second half in odd numbered years with such time to commence and conclude at 6pm on the middle day.
b.For one half of each NSW gazetted Christmas school holiday period from 2pm on the second Saturday until 2pm the following Saturday and continuing each alternate week thereafter.
c.For one long weekend mid Term in Sydney.
d.During school term, for the first weekend of school term and every alternating weekend in City H that the mother is available and the mother is to provide the father with 2 weeks’ notice of her availability.
e.Such other time as agreed between the parties in writing.
f.That when the father and children live in City H, the mother and children communicate with each other by telephone or Skype on Monday, Wednesday and Friday between 5pm and 5:30pm, the mother to initiate the call, and that the father will ensure the mother is informed of the number on which the children can be reached.
g.At any other time when any of the children wish to telephone the mother.
h.That the children spend time with the mother on Mother’s Day in Sydney and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
8.That when the child Z lives in Sydney, the child will spend time with the father at all times as may be agreed but failing agreement as follows:
a.For one half of each NSW gazetted school holiday period following Terms 1, 2 and 3, with such time to be by agreement and failing agreement for the second half in even numbered years and the first half in odd numbered years with such time to commence and conclude at 6pm.
b.For one half of each NSW gazetted Christmas school holiday period from 2pm on the first Saturday until 2pm the following Saturday and continuing each alternate week thereafter.
c. For one long weekend mid Term in City H.
d.During school term, for every second weekend, commencing the second weekend of school term, in Sydney that the father is available, and the father is to provide the mother with 2 weeks’ notice of his availability.
e. Such other time as agreed between the parties in writing.
f.That when the child live is in Sydney, the father and child communicate with each other by telephone or Skype on Monday, Wednesday and Friday between 5:30pm and 6pm, the father to initiate the call, and that the mother will ensure the father is informed of the number on which the children can be reached and ensures she is available to receive the call.
g.At any other time when any of the children wish to telephone the father.
h.That the children spend time with the father on Father's Day in City H and that any provision for time under this order that is inconsistent with this paragraph be suspended so as to facilitate time under this paragraph.
9.To facilitate the children spending time with each parent the mother to deliver the children or child to City H and the Father is to deliver the children or child to Sydney.
10.That in relation to the child’s school in Sydney, that the mother will:
a.authorise N School to provide the father with copies of school reports, notices, other publications and any information he may request about the children;
b.keep the father informed of the child’s significant school and extra-curricular activities of which the father is at liberty to attend;
c.make the child available for collection by the father from N School if the father is in Sydney to spend time with the child;
d.advise the father of the times and location of the child’s sporting commitments so that he is able to attend should he so desire; and e. advise the school that there is equal shared parental responsibility.
11.That in relation to the children’s school in City H, that the father will:
a.authorise J School to provide the mother with copies of school reports, notices, other publications and any information she may request about the children;
b.keep the mother informed of the children's significant school and extracurricular activities of which the mother is at liberty to attend;
c. make the children available for collection by the mother from J School if the mother is in City H to spend time with the children;
d.advise the mother of the times and location of the children’s sporting commitments so that she is able to attend should she so desire; and e. advise the school that there is equal shared parental responsibility.
12.That each party inform the other as soon as practicable of any medical emergency involving the children that the parties keep each other informed of their current residential addresses, house and mobile telephone numbers and email addresses.
13.That each party do all things to enable the children to engage with S Service being the mental health program that X and Y are engaged with.
14.That the Mother’s Applications in a Case filed on 9 October 2020 be dismissed.
Orders sought by the mother
The mother seeks that orders be made in accordance with the Minute of Order provided to the Court by email dated 16 December 2020 (marked ‘Exhibit F’ in the proceedings), as follows:
1.That the children X and Y both born … 2005 and the child Z born … 2008 (“the children”) live with the Mother.
2.That the Mother have sole parental responsibility for the care, welfare and development of X born … 2005, Y born … 2005 and Z born … 2008. The Mother will take into account the wishes of the Father and will accommodate same where possible.
3.That the children attend N School, Suburb O.
4.That for the first four (4) months from the date of these Orders, the children will spend time with the Father in Sydney for a period of 8 hours from 9am to 5pm one day every fortnight and that such time be supervised by a commercial supervision provider.
5.That on the basis that the reports prepared by the commercial supervisor are positive, for the second four (4) months from the date of these Orders, the time with the Father will be in the same terms as set out in 4. above but will be on an unsupervised basis.
6.That for the third four (4) months from the date of these Orders, the time with the Father will be every alternate weekend from 9am on Saturday to 6pm the following Sunday and shall take place in City H and will be on an unsupervised basis.
7. That in relation to the children’s school in Sydney, that the Mother will:
a)authorise N School to provide the Father with copies of school reports, notices, other publications and any information he may request about the child;
b)keep the Father informed of the child’s significant school and extra-curricular activities of which the Father is at liberty to attend;
8.That the Father be permitted to communicate with the children by text message.
9.That each party inform the other as soon as practicable of any medical emergency involving the children that the parties keep each other informed of their current residential addresses, house and mobile telephone numbers and email addresses.
10.That each party do all things to enable the children to engage with T Service being the mental health program that X and Y are engaged with.
EVIDENCE
The father relied upon the following documents:
(a)Application in a Case filed 23 November 2020;
(b)Undertaking of the father filed 4 November 2020;
(c)Response to an Application in a Case filed 16 October 2020;
(d)Affidavit of the father filed 16 October 2020;
(e)Affidavit of the father filed 23 October 2020;
(f)Affidavit of the father filed 14 December 2020; and
(g)Single Expert Report of Dr C dated 19 December 2019.
The mother relied upon the following documents:
(a)Application in a Case filed 9 October 2020;
(b)Application in a Case filed 12 October 2020;
(c)Affidavit of the mother filed 12 October 2020;
(d)Affidavit of the mother filed 27 October 2020;
(e)Affidavit of the mother filed 3 November 2020;
(f)Affidavit of the mother filed 30 November 2020;
(g)Affidavit of the mother filed 15 December 2020; and
(h)Single Expert Report of Dr C dated 19 December 2019.
The following exhibits were relied upon:
(a)Child Inclusive Conference Memorandum of Ms G dated 30 October 2020 (‘Exhibit A’);
(b)Electronic court book of the mother (‘Exhibit B’);
(c)Tender bundle of the Independent Children’s Lawyer (‘Exhibit C’);
(d)Medical records of B Hospital in respect of the child X (‘Exhibit D’);
(e)Father’s Minute of Orders Sought (‘Exhibit E’);
(f)Mother’s Minute of Orders Sought (‘Exhibit F’);
APPROACH AND THE LAW – CONCEPTS AND PRINCIPLES
Nature of a review of a Registrar’s decision
Rule 18.08 of the Family Law Rules 2004 (Cth) (“the Rules”) enables a party to apply for a review of an order made by a Registrar.
Rule 18.10 of the Rules sets out the power of the Court on review which is by way of an original hearing or, in other words, proceeds by hearing de novo:
Power of court on review
(1)A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
Note:In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
(2)      The court may receive as evidence:
(a)       any affidavit or exhibit tendered in the first hearing;
(b)       any further affidavit or exhibit;
(c)       the transcript (if any) of the first hearing; or
(d)if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
These relevant rules reflect that the Family Court of Australia is a federal court exercising the judicial power of the Commonwealth pursuant to s 71 of the Constitution. In those circumstances, the delegation of powers and functions performed by the Court to a Registrar of the Court will be valid only if the exercise of that delegated jurisdiction is subject to review by a judge on all issues, including findings in respect to both relevant facts and law: see Harris v Caladine (1991) 172 CLR 84 at [85].

Accordingly, my task is not one of ascertaining whether, in the making of the Order, there was an error on the part of the Registrar. The review of a Registrar’s determination is an original hearing in the sense that error does not need to be established: see Feiteiro & Feiteiro [2019] FamCA 647 referring to Henley & Henley [2019] FamCA 101 at [7]. Thus, the review is taken to mean a re-examination of the matter afresh: see Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at 71 [43].
Approach to interim parenting proceedings involving application for relocation of children
This Court has, on a number of occasions, acknowledged the difficulties of determining cases concerning the potential relocation of a parent and a child in interim proceedings.
In Morgan and Miles (2007) FLC 93-343 (“Morgan”) at 81,870 [84], Boland J said:
The cases demonstrate that sensibly Judges recognised that these very difficult cases, often with far reaching consequences for the child, required the full investigation which can only occur at a final hearing, or now by issues being identified and determined in a Less Adversarial Trial as contemplated in Div 12A of Pt VII [of the Family Law Act 1975 (Cth)].
The decision of the Full Court in Goode and Goode (2006) FLC 93-286 (“Goode”) usefully sets out the approach which should be taken in considering an application for relocation orders on an interim basis. At 80,903 [81]–[82], under the subheading “How should interim proceedings be conducted?”, the Full Court said:
81.In making interim decisions the Court will still often be faced with conflicting facts, little helpful evidence and disputes between the parents as to what constitutes the best interests of the child. However, the legislative pathway must be followed.
82.      In an interim case that would involve the following:
(a)       identifying the competing proposals of the parties;
(b)       identifying the issues in dispute in the interim hearing;
(c)       identifying any agreed or uncontested relevant facts;
(d)considering the matters in s 60CC [of the Family Law Act 1975 (Cth)] that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s 61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child's best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(h)if equal time is found not to be in the child's best interests, considering making an order that the child spend substantial and significant time as defined in s 6SDAA(3) with the parents, unless contrary to the child's best interests as a result of consideration of one or more of the matters in s 60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s 60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.
In Cowling v Cowling (1998) FLC 92-801 (“Cowling”) at 85,006 [18], the Full Court said, “… The issue for determination at an interim hearing involves a consideration of what orders should be made to properly regulate the position of the children pending the final determination of the matter”.
Part VII of the Family Law Act 1975 (Cth) (“the Act”) sets out the relevant statutory provisions applicable to proceedings in relation to children. Section 60B of the Act sets out the objects and principles of Pt VII. These are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Significantly, in Masson v Parsons (2019) 266 CLR 554 at 565 [8], in their joint judgment, their Honours Kiefel CJ, Bell, Gageler, Keane, Nettle, and Gordon JJ gave emphasis to the fact that:
Subdivision B of Div 1 of Pt VII [of the Act], which is headed “[o]bject, principles and outline”, provides, inter alia, in s 60B(1) that the objects of Pt VII include “ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child”
(Emphasis in original)
More generally, the Act makes clear that, in exercising its jurisdiction, the Court has a responsibility to “protect the rights of children and to promote their welfare” (Emphasis added): see s 43(1)(c) of the Act. Those rights include:
·The right “to know and be cared for by both their parents”: s 60B(2)(a) of the Act;
·The right “to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives)”: s 60B(2)(b) of the Act; and
·The right to “maintain personal relations and direct contact with both parents on a regular basis”: s 60CC(3)(e) of the Act.
Section 60B(4) of the Act provides that an additional object of Pt VII “is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989”. In GO v CS FC Palmerston North FAM 2003-054-000859 21 January 2005 at [38], it was noted that:
…cases have generally referred to Article 9.3 of the Convention which provides “states parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests”. Article 9 cannot however, be looked at in isolation by reason of interactions with Articles 7 & 18 of the Convention. The UNICEF "Implementation Handbook for the Convention on the Rights of the Child" 2002 Edition states at page 250 that “This [Article 9.3] together with Article 7 (Child's Right to Know and be Cared for by Parents) and Article 18, implies that the law should presume that, unless it is proved to the contrary, the continued involvement of both parents in the child's life is in his or her best interests”.
INTERIM PARENTING ORDERS
Competing proposals of the parties
The parties’ competing proposals are contained in their respective Applications which have been set out above.
Parties’ contentions and agreed or objectively verifiable facts
The following relevant background summarises the parties’ respective contentions and agreed or objectively verifiable facts.
On … 1974, the father was born. He is currently aged 46 years.
On … 1978, the mother was born. She is currently aged 42 years.
In early 2003, the parties commenced a relationship and, in September 2003, they commenced cohabitating.
On … 2004, the parties married.
On … 2005, the twins were born. They are currently aged 15 years.
On … 2008, the parties’ child Z was born. He is currently aged 12 years.
During the course of the parties’ relationship, they relocated several times within the State of New South Wales however, predominantly resided in the local government area of K Town, which is a rural region proximate to City H. Prior to the parties’ separation, the parties were residing in L Town.
In October 2016, the parties separated. Since separation, the father has resided on his family’s farm property at Suburb M in the City H region while the mother and the children continued to reside in L Town.
The father states that, following the parties’ separation, the mother did not facilitate the children spending time with the father on a regular basis.
On 31 July 2017, the father commenced proceedings in the Family Court of Australia after having not seen the children for approximately two (2) months.
On 21 September 2017, interim consent orders were made providing for the children to live with the mother and spend time with the father on a graduating basis.
In 2018, the twins commenced high school at J School in City H.
In mid-2018, the mother and the children moved into rental accommodation in City H.
On 4 September 2018, orders were made transferring the proceedings to the Federal Circuit Court of Australia.
On 19 July 2019, the mother filed an Amended Response to Initiating Application seeking orders that would allow her to relocate with the children to the “northern suburbs of Sydney” and enrol the children in N School in Suburb O.
On 27 August 2019, orders were made by consent for Dr C to prepare a single expert report and for the cost of that report to be paid by the mother.
On 20 December 2019, a copy of Dr C’s Single Expert Report dated 19 December 2019 was released to the parties.
The father contends that, from 11 January 2020 to 18 January 2020, the children were in his care and, during this period, the children stated, in response to a question by the father, that they “want to stay in City H and keep going to [J School]”. The father also states that he was introduced to Y’s girlfriend, who resides in City H, while the children were spending time with the father in January 2020.
The father sets out evidence that, in late-January 2020, that the mother had unilaterally relocated with the children to Sydney and enrolled them in N School.
On 4 March 2020, interim parenting orders were made by Judge Smith which provided for the mother to relocate to Sydney and enrol the children in N School and for the children to spend time with the father as agreed or, failing agreement, during school holiday periods and one (1) weekend during school terms in City H and every second weekend in Sydney subject to the father’s availability.
The father contends that the children have displayed behavioural problems while attending N School, including being involved in physical altercations and not completing homework, and attests to the children attributing the behaviour to the culture at N School. The father also contends that the children have informed him that there is a “drug culture” at the school.
The mother provides evidence that, between 16 and 18 July 2020, X exchanged text messages with a friend of the father, Ms P, that she contends were inappropriate. The mother expresses concern regarding Ms P’s presence while the children are in City H with the father and her communication with the children, which includes text messages regarding the purchase and consumption of alcohol. The mother further states that Ms P has a history of mental health problems.
On 18 September 2020, in response to his enquiries, the father received a letter from the Principal at J School stating:
I can advise that J School has places available for Day Students enrolled in Year 9, 2020.
I understand that this request is made as Y and X are looking at returning to City H and continuing their education at J School. J School would be pleased to discuss enrolment options further as both Y and X were well-respected by staff and their peers.
On 24 September 2020, orders were made transferring the proceedings back to the Family Court of Australia.
On 26 September 2020, the father collected Y and Z from the mother in accordance with their scheduled spend-time arrangements and travelled with them to City H. As X was suffering a viral infection and admitted to a hospital, he did not join the other two children in City H until the next day.
The father contends that, during this period in which the children spent time with the father, the twins expressed to him that they did not like living in Sydney and attending N School.
iN October 2020, the following text messages were exchanged between Z and the mother:
[Z]: Dad wants us to stay for longer
[THE MOTHER]: No can do – we have a party people
Over tomorrow night with a cake for the boys bday. You need to be back at 6pm tomorrow.
[Z]: We want to stay for dads birthday
[THE MOTHER]: I will sort it out with dad directly.
The mother states that, following the above exchange, Z informed her that he was told to write that by the father and that the father was “trying to guilt [the children] into staying”.
On that same day, the following text messages were exchanged between the father and the mother:
[THE FATHER]: Could we please have a little consideration please. Last weekend was far from ideal and the boys missed out on Father’s Day as well.
[THE MOTHER]: … It’s too late to change agreed arrangement . We already have plans for Saturday night with the boys. please ensure boys back tomorrow at 6pm. I’d appreciate in future any proposed changes to be discussed with me first rather than through the boys. With regards to Father’s Day – you didn’t make any arrangements to see them…
On the next day, the father returned Z to the mother. The mother contends that the father dropped Z to her residence in Suburb F approximately two (2) hours early while the mother was not home and did not notify the mother. She contends that she attempted to contact the twins however, those attempts were not successful.
The father attests to a conversation between himself and Z during which Z informed the father that he loves N School and has “heaps of friends there” and, as such, wished to remain with the mother “even though it means he will not be living with his two elder brothers” who, according to the father, were “adamant that they were not returning to Sydney”. The father states:
I was very concerned with both X and Ys [sic] mental health if I went against their strong views of not wanting to return to Sydney. X has said to words to the effect:
“Dad if you make me go back I will just run away and I would just catch the train back to City H and Y would be right beside me”.
On … October 2020, the mother sent a text message to the father stating, inter alia, that the twins “must be returned to [her] by 10am Wednesday at the latest or [she would] commence legal proceedings”.
On 9 October 2020, the mother filed an urgent Application in a Case seeking a recovery order that would provide for the father to return the twins to the mother.
On 12 October 2020, the mother filed a Contravention Application stating that the father breached Order 8 of the orders made in the Federal Circuit Court on 4 March 2020 by failing to return the twins to the mother on 26 September 2020.
On 16 October 2020, the father filed a Response to an Application in a Case seeking that the twins live with the father and attend J School.
On 20 October 2020, orders were made which dismissed the father’s Response to an Application in a Case filed 16 October 2020 and required the father to return the twins to the mother by 4.00 pm on 22 October 2020.
On 22 October 2020, the father returned the twins to the mother. While the father was staying at his sister’s residence in Suburb Q, the mother contacted the father requesting that he attend her residence and speak with the twins. The father received a text message from Ms P stating, “Y said X [sic] tried to kill himself”.
The mother sets out her evidence in respect to the incident as follows.
Following a conversation between the mother and X, during which X indicated his displeasure in having to live in Sydney and attend N School, X removed a bed sheet from his bed and threw it over a ceiling fan. In response to X’s conduct, the mother contends that she said to him words to the effect, “This is ridiculous, stop being silly and take that down, you’ll break the fan”, after which the mother contends that X took the sheet down and sat in the lounge room. The mother states that, at approximately 8.40 pm, she watched X settle down. The mother sets out a conversation with the maternal grandmother in which she opined that she thought the incidence “was planned”.
The father states that he immediately contacted the police to attend the mother’s premises upon receiving the text message from Ms P. The attending police officers arranged for X to be transported by ambulance to B Hospital (“the Hospital”). There is some dispute between the parties regarding the nature of the communication between X and the police and attending paramedics. The father asserts the following in respect of the incident:
Prior to [X being taken to B Hospital] the mother said words to the effect “this is ludicrous this is all unecessary [sic]”. I followed the ambulance and I have stayed with X since he was brought to the hospital. Whilst I was at the hospital X said words to the effect “Mum said to me she would rather I was dead than go back to you”.
I will subsequently set out greater detail of the police reports and clinical notes regarding the events which occurred on 22 October 2020 and X’s subsequent admission to hospital.
On 23 October 2020, X was discharged into the mother’s care as a result of the Orders of the Court that were current at that time. The discharge summary states:
Last night X had an argument with his mum in the setting of a complex social situation with interpersonal conflict between his parents who are separated and ongoing legal conflict regarding custody. During this argument X expressed suicidal ideation. His bother [sic] became concerned and phoned the children’s father who subsequently called police and ambulance.
X was assessed by medical staff overnight and no acute medical issues were identified.
X was assessed by mental health staff overnight who found that X was at low risk from a psychiatric perspective and a plan for community follow up was established.
Given X’s assertion that he wished to be discharged into dad’s care against current court orders, he was kept in the emergency department overnight for involvement of social work today.
Upon urgent request by the Independent Children’s Lawyer, on 23 October 2020, the matter was heard by Senior Registrar Campbell. Orders were made for the parties and the children to attend a Child Inclusive Conference with a Family Consultant on 28 October 2020.
On 24 October 2020, X and the mother had a conversation during which the mother clarified that she did not believe that the children were safe with the father due to lack of parental supervision on the farm. It was temporarily agreed that the mother would offer, to the father, to accede to the twins boarding at J School if the father or the paternal grandfather meet the expense of such however, according to the mother, X later accused her of only being content with such an arrangement as she was aware that the father would not be able to afford the expense of boarding.

During a verbal exchange between X and the mother, X became agitated and requested the mother to take him to the Hospital. The mother sets out that exchange and suggests that X was attempting to “bait” her. The mother states that, while driving X to the Hospital, X filmed the mother and tried to compel the mother to admit to using profane language towards him.
While at the Hospital, X was assessed by a Mental Assessment Nurse after disclosing that he was “having suicidal thoughts”. The father attended the Hospital and he and X stayed while the mother went home and informed Y and Z that X would be staying in the Paediatric Ward for five (5) nights. The mother contacted the Hospital multiple times during X’s stay to check on his condition. The mother contends that, while the father permitted his family to visit X in the Hospital, the same courtesy was not provided to the mother’s family.
On 28 October 2020, the parties and the children attended a Child Inclusive Conference with Ms G. On 30 October 2020, Ms G released a Memorandum in respect of the conference (“CIC Memo”) (marked ‘Exhibit A’ in the proceedings).
Relevant details of the observations, findings and recommendations contained in the CIC Memo will be set out in greater detail below.
On 5 November 2020, Senior Registrar Campbell made interim parenting orders providing for X to live with the father while Y and Z live with the mother and spend supervised time with the father.
Since 7 November 2020, X has been residing with the father in City H. The father contends that he has not been able to enrol X as a student at J School. In that respect, the father’s solicitor received a letter from the Principal at J School stating:
The School was provided with Orders dated 4 March 2020 which state that the ‘children be enrolled at N School Sydney’.
Given the Orders dated 5 November 2020 specifically state that X shall live with his father, the School is seeking advice as to whether [the father] can now enrol X as a student at J School.
The mother was made aware that, by text message received from N School, X has not been attending school since he commenced residing with the father. The father states that he submitted a request to the Principal of N School for X to be permitted to engage in remote learning via online facilities however, his request was not acceded to.
On 11 November 2020, the father’s solicitor sent a letter to the mother’s solicitor advising that X’s mobile phone account, which the mother had provided, had been cut off and that the father had arranged for X to be allocated a new phone number. The mother contends that she contacted the service provider in respect of the mobile phone account that she had provided to X and was informed that that the phone number was still active.
On 17 November 2020, X attended a session with a psychologist, Mr R. The father states that X has been attending sessions with Mr R on a weekly basis. He contends that he had made arrangements for Y to attend those sessions with X however, as a result of Y residing in Sydney, this has not occurred.
On the weekend of 22 November 2020, the father contends that the mother travelled with Y to City H in order to allow Y to spend time with his girlfriend and did not attempt to make arrangements for the twins to spend time together.
On 23 November 2020, the father filed an Application in a Case seeking a review of the orders made by the Senior Registrar on 5 November 2020.
The father contends that, on 11 December 2020, X informed him that the mother had attempted to contact him on a daily basis and was “abusive in her calls”. He further attests to communicating with Y “about every second day”. The mother contends, however, that she has not had any contact with X. The mother further contends that, since X commenced living with the father in City H, Y and Z have not had any contact with X nor the father.
Relevant legal principles
Presumption of equal shared parental responsibility
Section 61DA of the Act provides:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note:The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
In these interim proceedings, it is not possible to make findings of fact in respect to the contentions of the parties, including that each has engaged in conduct that would constitute family violence as defined in s 4AB of the Act. In those circumstances, it is not appropriate for the presumption of equal shared parental responsibility to apply at this stage of the proceedings.
Accordingly, the pathway set out in s 65DAA of the Act for the determination as to whether the children should spend equal or substantial and significant time with a parent does not apply.
The Court is, therefore, at large in making orders that it considers to be in the best interests of the children in the context of the issues raised in these interim proceedings.
Determining what is in the best interests of the child
Section 60CA of the Act provides that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the child as the paramount consideration. This is also confirmed in s 65DAA of the Act.
Section 60CC of the Act sets out the list of matters that the Court must consider in determining what is in the child’s best interests. The primary considerations set out in s 60CC(2) of the Act are, as follows:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In balancing these considerations, s 60CC(2A) of the Act requires the Court to give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence: s 60CC(2)(b) of the Act.
In Banks& Banks (2015) FLC 93-637 at 80,116 [48] –[50], the Full Court outlined a practical approach to applying the considerations set out in s 60CC of the Act, in interim proceedings, in the following terms:
48.It should also be said that in parenting proceedings as in all civil litigation, it will be the issues that are joined that will dictate which s 60CC factors are relevant. By their nature, interim proceedings should be confined to those issues which, in the best interests of the children, require determination prior to a proper determination at trial…
49.… there is a risk that in discussing every s 60CC factor, the judicial officer may lose sight of the forest for the trees. It is also important to stress here that the requirement to “consider” each factor does not mean each must be discussed, especially where the evidence leads inexorably to a particular conclusion: SCVG & KLD (2014) FLC 93-582.
50.When it is obvious that the findings made as to some of the s 60CC factors will be determinative of the child’s best interests on an interim basis, it is a sterile and unnecessary exercise to address other factors. Moreover, it will be a sterile exercise to determine whether or not particular facts are disputed if they are relevant only to one of the non-determinative s 60CC considerations. Properly understood, we do not interpret what was said in Goode as meaning that in an interim case, each and every fact must be characterised as disputed or not; and that each s 60CC factor must be traversed where it is obvious on the facts and issues joined that there are only one or two decisive factors.
Meaningful relationship
In Sigley v Evor (2011) 44 Fam LR 439 (“Sigley v Evor”) at 463 [132], the Full Court, quoting Brown J in Mazorski v Albright (2007) 37 Fam LR 518, confirmed that the concept of a meaningful relationship is one which is “important, significant and valuable to the child”.
It is important to appreciate that the legislative requirement is for the Court to consider making an order to promote the child having a “meaningful” rather than “optimal” relationship with both parents: see Sigley v Evor at 474 [182] referring to Godfrey & Sanders (2007) 208 FLR 287 (“Godfrey”) at 298 [33] and [36]. In other words, a relationship may be less than optimal but nonetheless meaningful: see Godfrey at 298 [36]. Moreover, the consideration of how a “meaningful relationship” is defined needs to be determined in the circumstances of each case: see Godfrey at 298 [33]; M & S (2007) FLC 93-313 at 81,386.
Unacceptable risk
In interim proceedings, it is difficult to identify an unacceptable risk and determine whether reasonable safeguards could mitigate against that risk. In Cowling at 85,006 [18], the Full Court said, in respect to interim proceedings:
… Such proceedings are an abridged process where the scope of the inquiry is necessarily significantly curtailed. As a consequence, the Court needs to exercise considerable caution against being drawn into matters properly dealt with in the trial process. Ordinarily, at interim hearings, the Court should not be drawn into issues of fact or matters relating to the merits of the substantive cases of each of the parties.
Despite the limitations on the Court’s ability to make findings in respect to controversial facts, the Court is not relieved of its obligation to consider risk. In that respect, in SS & AH [2010] FamCAFC 13 (“SS & AH”) at [100], the majority of the Full Court (Boland and Thackray JJ) said:
… Apart from relying upon the uncontroversial or agreed facts, a judge will sometimes have little alternative than to weigh the probabilities of competing claims and the likely impact on children in the event that a controversial assertion is acted upon or rejected. It is not always feasible when dealing with the immediate welfare of children simply to ignore an assertion because its accuracy has been put in issue.
It is to be observed that the reference in SS & AH to “probabilities” does not mean that the Court must find the probable existence of an unacceptable risk of harm before implementing measures to protect a child from that risk. It is clear that, in assessing whether there is a risk that something may happen, “possibilities” are a legitimate basis for finding that there is such a risk, as long as there is a proper basis for those “possibilities”.
The task of determining whether an unacceptable risk, in terms of s 60CC(2)(b) of the Act, exists is assisted by having regard to the following principles:
·Per Mand M (1988) FLC 91-979 (“M and M”) at 77,081:
In devising these tests to determine whether unacceptable risk exists, the Courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from…abuse and the possibility of benefit to the child from parental access.
See also B and B (1993) FLC 92-357 at 79,778.
·It is now well established that “unacceptable risk” does not arise solely in respect of allegations of physical or sexual abuse. The “test” of “unacceptable risk” also requires assessments of risk of future physical and emotional harm: see A v A (1998) FLC 92-800 at 84,996; M and M at 77,081.
·Such an unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved: see Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[149].
·Determining the issue of risk essentially involves applying a risk matrix whereby it is necessary to assess the potential seriousness of the harm in the context of the probability of its occurrence. That is, there is an obligation on a trial judge to evaluate, not only the extent, magnitude and nature of the harm that might befall the child if there is a future act of abuse or harmful conduct, but also to evaluate the prospect or probability of such an act or conduct occurring that would cause such harm to the child: see N and S (1996) FLC 92-655 at 82,713 (Fogarty J) cited with approval in Napier & Hepburn (2006) FLC 93-303 and in Nikolakis & Nikolakis [2010] FamCAFC 52 at [95]–[96].
·The components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or some only of which are proved to that standard: see Johnson & Page (2007) FLC 93-344 (“Johnson & Page”) at 81,890–81,891 endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM titled ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249.
·While each factor establishing risk need not be proved to the standard of s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact, “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction”: see the Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15.
·Having identified the existence of an unacceptable risk, it is then necessary for the Court to assess whether that risk “is able to be sufficiently managed or ameliorated”: see Blinko & Blinko [2015] FamCAFC 146 (“Blinko”) at [83] referring to R & C [1993] FamCA 62.
Additional considerations
Section 60CC(3) of the Act sets out additional considerations in determining what is in the children’s best interests. These considerations are as follows:
·Sub-section (3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views;
·Sub-section (3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child;
·Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child;
·Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
·Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living;
·Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
·Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs;
·Sub-section (3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant;
·Sub-section (3)(h) – issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander;
·Sub-section (3)(i) – the attitude to the child, and parental responsibilities, by each of the child’s parents;
·Sub-section (3)(j) – any family violence involving a child or a member of the child’s family;
·Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
·Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
·Sub-section (3)(m) – any other facts or circumstances the Court considers relevant consideration
Consideration
In arriving at my decision, I have had regard to all of the considerations set out in s 60CC of the Act. Under the immediately following subheading, I will set out those considerations which I regard to be of sufficient relevance such that they have impacted upon the decision that I make in this matter.
Meaningful relationship
While these are interim proceedings, neither party appeared to take issue with the assessment by the Single Expert. Both parents acknowledge that it is in the interests of the children to have a meaningful relationship with both parents. At paragraphs 152–154 of her Single Expert Report, Dr C stated:
152.There are numerous benefits to the children in having a meaningful relationship with each of their parents. In my view, each of the parents give the children different and complimentary relationships. The children love both parents, enjoy spending time with each of the parents and generally want to have both parents to be involved in their lives.
153.With respect to [the father], the benefits to the children having a meaningful relationship with him, include the children feel loved by their father and connected to him and they share common interests in sports and outdoors activities. In my view, [the father’s] parenting style appears to be more laisses faire and less focussed on structure and that at times this has been difficult for the children to manage in their day-to-day lives.
154.With respect to [the mother], the benefits to the children having a meaningful relationship with her include that the children feel loved by her and connected to her and they also enjoy spending time with her in the outdoors. In my view, [the mother]’s parenting approach offers the children stability and organisation and that this is reassuring for the children. Children benefit from a routine and in my view, [the mother] is the parent who is most likely to offer the children routine and stability.
Risk of harm
As I will set out below, the most significant issue in this matter is the children’s mental health. While the mother has concerns regarding the physical safety of the children when staying with the father on his farm in City H, New South Wales, I respectfully agree with the submission of the Independent Children’s Lawyer that those concerns pale in significance in the context of the potentially profound psychological risk to the children as a result of the parental conflict in this matter.
Potential risk of physical harm

Before addressing that profound risk to the children’s mental health, I note that the Single Expert Report of Dr C conveniently summarises, at paragraph 155, the mother’s concerns, as follows:
155. [The mother] raises concerns about the children’s safety in their father’s care in that he prioritises farm work and his relationship with his own father over the children, he has a poor driving record, and he exposes the children to potentially unsafe environments such as exposure to chemicals, wildlife, and rifles. [The mother’s] concern about [the father] prioritising his farm work appears valid as he appears to have difficulty in managing his parental responsibilities and needs of the children as well as well as his responsibilities towards the farm. This has been an ongoing source of conflict between the parents in the relationship and led to [the father] becoming estranged from his own father. It was significant that [the father] was unable to focus on the children’s needs for the two days of the interview process in Sydney without attending to farm work duties. It also appears that [the father] travels long distances with the children when they are in his care for the purpose of work and this does not necessarily mean that the children are spending meaningful time with their father when they are in his care. There are incidences in [the father’s] Police records to indicate traffic infringements in 2004 and 2008, however this does not appear to be a significant recent issue.
The mother further alleges that the father does not properly supervise the children when they are on the farm. This includes, according to the mother, the father permitting the children to ride motorbikes and, in one instance, Y suffering an injury when he was riding a motorcycle without a helmet on a public road. It is not possible, in these interim proceedings, to make findings in respect to the mother’s allegations of inadequate supervision of the children on the part of the father when they are on the farm.
Comparatively, the father contends that there is a risk to the children if orders are made for them to remain living with the mother as a result of the real possibility that the children may not comply with the orders and may seek to return from Sydney to their father’s home in City H. In that respect, reference was made to paragraph 99 of the CIC Memo, where it is stated:
However, it is acknowledged that, if the Orders are different to the children’s expressed views, it is likely to cause them some emotional distress and it is possible that Y and X would not follow the Orders if they were different to their expressed views.
The Independent Children’s Lawyer noted, however, that, in considering this element of risk, the Court could reasonably infer that, if Y intended to self-relocate, contrary to the orders of the Court, he would have attempted to do so by now. I respectfully agree that is a relevant consideration in determining the risk of Y attempting to self-relocate.
The mother also attaches to her Affidavit communication between the twins and a young woman who is said to be 23 years of age which the mother contends is an unhealthy relationship. Specifically, the mother contends that the young woman has mental health and personal issues that are beyond the maturity of the twins to understand. In that respect, the mother refers to a Facebook post of the young woman in which she posts a picture of injuries to her face which she contends were the result of domestic violence.
Comparatively, counsel for the father contends that there is inadequate information before the Court to enable me to conclude anything about the personal circumstances of the young woman or whether the twins’ relationship with her presents a risk to them. I respectfully agree with counsel for the father that, in circumstances where I am not in a position to make findings of fact in interim proceedings, I am unable to make that finding.
The mother further referred to communication between Y and a friend in which they had spoken of going hunting for foxes on a Saturday night.
The mother further refers to paragraph 53 of the CIC Memo where the Family Consultant states:
X said that his mother own[s] two firearms and that he knows where the key is to the gun safe which makes him feel worried due to his poor mental health and poor decision making skills. He said that it is illegal that he knows where the keys to the gun safe are kept.
The mother denies that she currently possesses any firearms.
I respectfully agree with counsel for the mother that the children’s access to firearms in circumstances of their mental fragility presents an unacceptable risk to them. In those circumstances, I will make an order requiring both parties, to the extent that they retain firearms in their possession, attend the City H Local Area Police Command to surrender those firearms to the supervising officer on duty at the time that they attend the police station.
The mother further refers to communication between Y and a friend in which the friend makes reference to meeting Y and bringing “some munches”. The mother infers from that reference that the children intended to smoke marijuana with a consequent anticipation that they would become hungry after doing so. I acknowledge that circumstance as a possibility, however, that possibility is not one that presents an unacceptable risk that impacts upon the decision which I make in this matter.
The mother further makes reference to communication between Y and another one of his friends in which he attaches to electronic communication a photograph of a bucket containing cans and bottles of alcohol. However, counsel for the father notes a reference in the CIC Memo at paragraph 57 which states, “Concerning drug and alcohol use, X said he has not used drugs and he has tried a sip of his mum’s wine”. Further, reference is made to the CIC Memo, at paragraph 72, which recorded that:
Concerning drug and alcohol use, Y said, “I have had sips of alcohol and maybe been a little bit tipsy,” whilst he was not in the care of either parent, but he took the alcohol from [the mother’s] home.
The mother contends that this presents a risk to the children in circumstances where the father has a history of inadequately supervising the children. I respectfully agree with the contentions of the mother that it is unsafe and inappropriate for the children, at their current ages, to have access to alcohol. However, again, it is not possible to make a finding in these interim proceedings that they have consumed alcohol as a result of inadequate supervision on the part of the father.
Potential risk to the children’s mental health
By far the most significant issue in these proceedings is what the mother has described as a threatened act of self-harm on the part of X on 22 October 2020, such event being characterised by the father as an attempted act of suicide.
Counsel for the father referred to paragraph 18 of the CIC Memo, whereby Ms G states:
… [The mother] said that X was emotionally “pleading” to be allowed to go to his father’s home. She said that X escalated and began to say, “you don’t love me”, “my kids won’t have a grandmother” and “you wouldn’t care if I killed myself” and then proceeded to throw a sheet up on the ceiling fan, which [the mother] considered was X testing her boundaries. She said she told X not to be silly.
Notes made by a Police Officer attending on the evening of 22 October 2020, in their record dated 23 October 2020, record:
[X] stated that he hadn’t self harmed and made a threat in the heat of the moment because he received information if he could demonstrate that residing with the [mother] would be detrimental to his health and may work to alter the custody arrangements opposed by the family law court and allow him to live with his father. Police did not see any injuries to suggest he attempted to hang himself.
Police spoke with the [witness Y] and asked if he saw anything, and the [witness Y] stated he only saw the [X] crying on and off since they arrived home at 4:30 pm. A short time later the ambulance arrived and [X] was taken outside to the paramedics. The paramedics had a chat with [X] and discussed whether or not he would like to go to the hospital and speak with someone. [X] said he would like to go to the hospital to get help. [X] voluntarily went to the B Hospital with the ambulance with nill issues.
Progress notes made on 23 October 2020 by a social worker, on 24 October 2020 by a registered nurse and on 25 October 2020 by a psychiatry registrar, during the course of X’s stay at the Hospital, record:
He vehemently den[ied] any suicidal thought plan or intent.
Progress notes made on 23 October 2020 during the course of X’s stay at the Hospital by a social worker further record:
He vehemently denied any suicidal thought/plan/intent during assessment and stated that his threats were throw away comments that he didn’t mean. He stated he had no wishes to harm himself, others or to take his own life but he did want to stay with his father and he did not want to return to the care of his mother.
Further progress notes made on 23 October 2020 by a psychiatry registrar, during the course of X’s stay at the Hospital, further record:
X now states that it was a spur of the moment comment that he did not mean. He has no wishes to harm himself, others, or take his own life.
Referring to that evidence, the mother contends that it is an overstatement to conclude that X attempted to commit suicide and that, in those circumstances, the Court should have regard to the recommendations of Dr C in her Single Expert Report, where she stated at paragraph 171:
171. I do not recommend that X live in the primary care of [the father] if Y and Z were to relocate to Sydney, as [the father] finds it difficult balancing parental responsibilities with farming responsibilities, he is not as attuned to the children as their mother is, and I do not support the separation of the children, as this would potentially adversely affect their relationship.
The Independent Children’s Lawyer contends, however, that in the context of the potential catastrophic consequence of X attempting to self-harm and, further, in the absence of the Court having, at this stage, the benefit of evidence of a psychologist, psychiatrist, or social scientist to assist the Court in determining the extent of that risk, the Court should, in these interim proceedings, take a cautious approach. I respectfully agree with that submission.
In that respect, the Independent Children’s Lawyer referred to clinical psychiatrist notes from the Hospital made on 2 November 2020 (marked Exhibit D in the proceedings) including where it is stated:
[X] denies any suicidal ideas or intent today but says he feels anxious re the impending court decision.
I asked him if he would have any suicidal ideas on Wednesday if the court decides he should return to live with his mother
And he said he would have suicidal thoughts if this occurred.
(As per original)
The clinical nurse consultant notes dated 24 October 2020 (included in Exhibit D) further record:
This patient is a 15year old with low Symptoms of less than 1 week which has worsened in the last 2 3 days.This has occurred in the context of family court/custody battles. and has been complicated by his family dynamics especially the acrimonious separation of his parents. Patient is vulnerable at this time due to on going unresolved family issues and patient wanting to be with his Father against the Family court decision. I would hypothesize that the distorted life transition, parental separation and on going custody issues are perpetuating patient anxiety and low mood. I expect the management may be complicated/compromised by parental disagreement transference/splitting
Provisional diagnosis;
Low mood in the context of family court issues/ carers(parents) induced stress and low mood
(As per original)
The mother refers to that extract as being an indication that the child’s mental health actually deteriorated during the period of time that he was in hospital. It is acknowledged that, during that time, the father was staying with him including sleeping in the same room as the child. The mother points to this deterioration in X’s mental health as evidence that potentially implicates the father in having made comments to X that further involved X in the parental dispute. The Court is not, in these interim proceedings, in a position to make a determination of the accuracy or otherwise of such a serious accusation.
The mother contends that, with appropriate therapeutic assistance and away from the influence of the father, X would cope with an outcome that required him to live with the mother and his two brothers and spend time with the father.
Comparatively, counsel for the father referred to evidence suggesting the possibility of X self-harming if he was compelled to live with his mother.
In that respect, counsel for the father referred to paragraph 56 of the CIC Memo whereby Ms G states:
56.Concerning his current mental health status, X rated that, on a scale of one to 10 (one being very poor), he said “I feel like my mental health is pretty bad at the moment. I am a one”. X indicated that he does not have a current plan to harm or end his life but that “I think about it [suicide] a lot”. X said that he has not formally been diagnosed with any mental health problems
Counsel for the father further referred to an entry in the progress notes made by the Hospital on 25 October 2020 in which it is stated:
Describes year long history of low mood, lack of energy, motivation, insomnia, anhedonia
1 week history of suicidality with thoughts of hanging himself all in the context of wanting to live with his father despite courts ordering him to live with his mother.
One previous hanging attempt on thursday prior to first [emergency department] presentation, his mother interrupted him
Counsel for the father also referred to an entry made by the Hospital on 26 October 2020 by the psychiatry team which reports:
Patient reports a worsening of his mood and prominent anxiety with intermitten chest pain and difficulty breathing while staying with his mother from early this year. States he does not have these issues with low mood or physical symptoms while staying with his father Reports more recent worsening of intermittent suicidal ideation.
States he has had a “little but” of suicidal ideation while he has been staying with his mother but denies any previous suicide attempts until recently.
Reports intermittently he punches walls due to feeling anxious. Reports “feeling like I have no control” and states “I’m just worried I've been saying the same thing for a year" and “I feel like nothing will ever happen”
…
expressing prominent fears re. returning to live with mother and currently feeling unsafe future oriented expressing strong desire to live with father current suicidal ideation with some intent but no plan
Consistent with that entry are further entries made by Hospital clinicians in the progress notes which opined that X is experiencing a “situational crisis with suicidality”. On 26 October 2020, a further entry states that, “X is not to be left alone if father leaves room nursing staff to stay with him”. Further, on 2 November 2020, reiterating that opinion, a further entry states, “X must continue to have constant supervision by his father ie show not be left alone”.
Potential risk of the children being the subject to inappropriate influence
Both the mother and the Independent Children’s Lawyer contend that there is an unacceptable risk that if Z and Y are in the unsupervised care of the father they will be subject to inappropriate influence on the part of the father pressuring them to take sides in the parental dispute. In that respect, reference is made to notes made by a Police Officer attending on the evening of 22 October 2020, in their record dated 23 October 2020, as referred to above.
Police asked [X] how he was feeling and what had occurred tonight, [X] stated that he hadn’t self harmed and made a threat in the heat of the moment because he received information if he could demonstrate that residing with the [mother] would be detrimental to his health and may work to alter the custody arrangements opposed by the family law court and allow him to live with his father. Police did not see any injuries to suggest he attempted to hang himself.
That statement is hearsay record of X’s statement to police of a hearsay statement which X contended was made to him by a third person. Clearly, the nature of that statement limits the weight that can be given to it. However, in these interim proceedings, as I have indicated, I am unable to make findings of fact. Specifically, neither of the parties has been called to give oral evidence. That will occur at final hearing and will provide the opportunity for each party to be cross-examined. In these interim proceedings, taking a cautious approach, I accept that there is a real possibility that the father said words to the effect of those reported by X in that statement to police which I have cited immediately above. I further accept that, if similar statements were made in the future, such statements would place the children at an unacceptable risk of emotional and psychological harm in that it would unreasonably involve them in the parental conflict. If it is the case that such a statement has been made to X, the consequence of that statement is self-evident by the events which occurred on 22 October 2020 where, at the very least, X threatened to self-harm.
In respect to this issue, the Independent Children’s Lawyer made the following submission:
The concern which then emerges is that if your Honour, in the context of these interim proceedings, has a concern about how X has self-placed, forms the view that he has in light of what – especially what he reported to the police about being told about raising allegations to, in my words, leverage an outcome. The father is said to have told him about, well, attaining a particular age and you have certain rights.
The court would certainly have some concerns about what the father would do if he had, for want of a better phrase, Y spending unfettered time with him. The risk to – the risk that emerges would be that Y would lose, in all likelihood – lose a relationship with his mother, and I – that can be said – that submission can be made because it’s happened with X. The risk to Y is that in all likelihood he will lose an important relationship with his younger sibling. That submission can be made because it has happened with – between X and his younger sibling. That would no doubt have an impact on an already fragile family unit which is marred by a high and disturbing level of parental conflict.
(Transcript 16 December 2020, p.59–60 lines 42–9)
Contrary to the submission that the father has inappropriately engaged the children in the parental conflict, counsel for the father referred to the CIC Memo, whereby Ms G, at paragraph 80, reported Z’s view of his father as follows:
80. Z described his father as “caring and very objectively focused”. When asked what he meant by that comment, Z said that he father seems to be “trying to reach the best situation for him [the father]”. Z indicated that he feels as if [the father] “is always busy” and that he would like [the father] “to have more time for family stuff” such as playing board games with him.
Ms G records Z’s express wish “that he live with his mother in Sydney and spend time with his father in City H during school holidays and additional time as agreed by the parents”. Outside of the school holidays, Z expressed the view that he would like to spend time with the father “every third weekend’ as he did not want to miss his weekend extracurricular activities or be delayed in being able to finish his schoolwork”.
Taking a cautious approach in these interim proceedings, as relevant authorities of this Court tell me I must do, I respectfully agree with the Independent Children’s Lawyer that, while I am conducting these proceedings as a rehearing, the orders made by the Senior Registrar are appropriate and that I should make orders in similar terms save that, for reasons which I will explain, I am satisfied that the risk can be sufficiently ameliorated by a requirement that the time that Y and Z spend with the father be agreed between the parties. This will give the mother an opportunity to assess the children’s demeanour and emotional state after each visit. In those circumstances, I do not propose to require the time to be supervised.
Additional considerations
Sub-sections (3)(a) and (3)(b)– any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views, and the nature of the relationship of the child with each of the child’s parents and other persons, including any grandparent or other relative of the child.

At paragraph 99 of her CIC Memo, Ms G notes that:
99. Despite Y and X expressing clear views of wanting to live their father, it is likely that their relationships with their mother will continue to deteriorate and be irreparably damaged if they are not spending frequent and consistent time with their mother. The Family Consultant considers that only some weight be placed on Y and X’s expressed views due to the complexities and allegations in this matter. However, it is acknowledged that, if the Orders are different to the children’s expressed views, it is likely to cause them some emotional distress and it is possible that Y and X would not follow the Orders if they were different to their expressed views.
However, in assessing the children’s views, at paragraph 87 of her CIC Memo, Ms G said:
87. Parental conflict: The Family Consultant is concerned that the children have been involved in the high parental conflict which seems to have negatively impacted X’s and Y’s relationships with their mother and Z’s relationship with his father. It is possible that the X and Y have aligned themselves with [the father] for a multitude of reasons. For example, it is common for children at Y’s and X’s stage of development to align themselves with the parent of the same sex/gender, the parent with whom they share common interests, and the parent who has less restrictive boundaries/rules and offer them more autonomy. However, it is also possible that, if [the mother’s] allegations are accurate, Y’s and X’s perception of their mother has been covertly negatively influence by [the father] which could also be possible for Z’s relationship with [the father], if [the father’s] allegations are accurate.
At paragraph 14 of his Affidavit filed 14 December 2020, the father states:
14. Subsequent to the visit by the mother and Y to City H, Y has contacted me by telephone and has discussed his schooling and his separation from his brother as he has said that he misses his twin very much. Our contact occurs about every second day.
During the course of the proceedings, the mother questioned whether Y had in fact had such communication with the father as she had checked the telephone records of Y and there was no indication of the said calls. Counsel for the father, however, stated that the communication had been by way of a software application called “Snapchat” which did not retain a record of the communication.
It is not possible to resolve that factual controversy in these interim proceedings.
The views of Z are reported in paragraphs 84 and 85 of the CICI Memo, as follows:
84. It is Z’s expressed view that he live with his mother in Sydney and spend time with his father in City H during the school holidays and additional time as agreed by the parents. Z frequently indicated that he wanted his parents to come to a decision about his future parenting arrangement. He said that he did not want to have to stipulate how much time he would like to spend with his father as he wanted his parenting arrangement to be “what is best for both of them [the mother and the father]” or “whatever is easier for both parents”. However, Z said that, if he were to spend time with his father outside of the school holidays, he would like to be “every third weekend” as he did not want to miss his weekend extracurricular activities or be delayed in being able to finish his schoolwork.
85. Z said that he would be fine if he and his parenting arrangement was different to his brothers but that he would want to ensure he still would spend time with his brothers.
The views of Y are reported at paragraph 73 in the CIC Memo, as follows:
73. It is Y’s expressed view that he would like to live with his father in City H and spend time with his mother for half of the school holidays. He said that he does not want additional time with his mother during the school term weekends. Y said that he would like to live in City H as that is where his friends are and the schools in City H offer agricultural subjects which is his area of interest. Y said “It wouldn’t be that bad if me and Z were living separately… we are very different kids and have different interests”. Y said that, if the Judge made Orders for him to remain in Sydney, he would be “upset and sad and it would be really hard for me”.
In the circumstances of this case, I give limited weight to the views expressed by the children.
Sub-section (3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity, to participate in making decisions about major long-term issues in relation to the child, to spend time with the child, and to communicate with the child.
It is not, in these interim proceedings, possible to make findings of fact. However, I have noted the opinion of the Single Expert, Dr C, in her Single Expert Report at paragraphs 162–163 which are as follows:
162. [The mother] acknowledged that she sought medical clearance from [the father] post separation due to her concerns about his behaviour. [The father] would have perceived this as [the mother] enforcing restrictions on his relationship with the children and as a rejection of his relationship with the children.
163. From affidavit material and from the interview with [the father], it appears that there have been incidences where he has misguidedly accused [the mother] of: excluding him from the children’s significant events, such as the children’s Confirmation, when there are text messages from [the mother] advising him of this event; not informing him in due course about details pertaining to children’s travel details with their mother, when there is written communication by legal representatives advising of these details; and not passing on school information to him as he believes that it [the mother’s] responsibility to advise him, when he is free to contact the children’s school and request he placed on the school mailing list and kept informed about school information.
Sub-section (3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
In respect to this consideration, the Single Expert states, at paragraph 164, in her Report:
164. Both parents maintain financial responsibility for the children, however the source of income is coming from their respective parents as neither parent is currently employed. [The mother] reports that she has attempted to find employment in City H since February 2019 and has been unsuccessful. [The father] reports that he is currently unemployed due to him not having machinery to undertake his previous role. He blames [the mother] for this as he perceives her to be responsible for taking away his livelihood with the insurance money from the vehicle accident. In speaking with the paternal grandfather, there appears to be machinery that [the father] can utilise in order to perform some employment duties, although I do acknowledge that the truck is not as large as what he had previously. Nevertheless, there does appear to be opportunities for [the father] to work using his father’s machinery.
It is not possible to resolve that factual controversy between the parties in these interim proceedings.
Sub-section (3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents, any other child or other person (including any grandparent or other relative) with whom the child has been living.
In her Report, at paragraphs 166–167, the Single Expert opines:
166. There are various factors to consider in a relocation matter, which include considering: whether the relocation will affect the emotional, physical or developmental needs of the children; whether the relocation will allow a realistic opportunity for parenting time with each parent; whether there is prospective advantage of the relocation for improving the general quality of life for the parent who has the children in their primary care or for the children; the children’s adjustment to home, school and community; the mental health of all individuals involved; the potential effect of the relocation on the children’s stability; the psychological resources of the parent with primary residence; the children’s strengths and vulnerabilities; the degree of conflict between the parents; the geographical distance between the two homes; whether a change in the children’s primary residency is in the children’s best interest; balancing all three children’s competing needs and views; and the likelihood that the parent with whom the children will reside with after the relocation will comply with parenting Orders.
167. Given the geographical distance between Sydney and City H, it is apparent that the family has the ability to travel and does travel long distances on a regular basis. In this matter, the children’s time with their father will unlikely be reduced to school holiday time as there is scope for travel on weekends. This is due to the family being accustomed to driving long distances for the purpose of maintaining family connections in Sydney and for work interstate.
X has returned to live with the father in the period subsequent to his discharge from the Hospital in early November 2020. In one sense, he is returning to what was the status quo for him prior to January 2020 when his mother relocated with the children to Sydney. He is not, however, regrettably, spending time with the mother or his two brothers.
Both Y and Z have been living in Sydney with the mother since January 2020. Both have been attending school in Sydney. It is not proposed that Z relocate to City H to live with his father and neither party is proposing a change in circumstances for Z.
While Y expresses a desire to return to live with the father in City H, it would result in some discontinuity of his current schooling arrangements in circumstances where he will be commencing Year 10 at the beginning of the 2021 school term.
It is, despite X’s expressed desire, relevant that these children have already experienced a major move from City H to Sydney in January 2020 and, while it is not a primary consideration, authorities confirm that it is not desirable for there to be multiple changes in children’s residence particularly at a stage prior to final hearing which is anticipated will take place during 2021. In that respect, as noted, in Morgan at 81,865 [55], Boland J stated:
Whilst such a move may [being a relocation of a child’s residence], after exploring all relevant factors, be found to be in the child’s best interests, those interests can only be determined by examination of the relevant factors in the structured exercise of discretion required by the legislation.
Sub-section (3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There have been, and clearly will continue to be, practical difficulties in the children seeing both of the parties in circumstances where one party resides in City H and the other party resides in Sydney. However, both parties and the children are accustomed to travelling relatively long distances by car and the practical difficulties associated with travel between City H and Sydney is not a major factor in the decision that I make in this matter. As previously indicated, by far the most significant issue is the issue of emotional and psychological risk to the children.
Sub-section (3)(f) – the capacity of each of the child's parents, and any other person, to provide for the needs of the child, including emotional and intellectual needs.
In her Report, the Single Expert opined, at paragraphs 174–175 in respect to this issue as follows:
174. The children appear to be aware of the negative attitude between the parents. They have also noted negativity from their mother towards their father. It would be important that, in the future, the parents refrain from talking negatively about the other, as it is detrimental to children’s emotional wellbeing, and can impact on the children’s ability to build and maintain a positive image of themselves.
175. [The mother] instigated Y and X seeking counselling, although this was without the knowledge or consent of [the father]. [The mother] is the parent who is most available to provide for the children’s emotional needs as [the father] appears to find it difficult balancing parental responsibilities with farming responsibilities. As previously stated, [the mother] offers the children stability and routine. [The father] has been involved in the children’s sporting activities and the sport is a common interest for the children and their father.
The father does not accept the Single Expert’s characterisation of the mother having superior parenting capacity. Clearly, this will be an issue to be considered by the primary judge after a final hearing.
Sub-section (3)(g), (3)(h) and (3)(i)– the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and either of the child’s parents and any other characteristics of the child that the Court thinks relevant; issues pertaining to the culture of the child if the child is Aboriginal or a Torres Strait Islander; and the attitude to the child, and parental responsibilities, by each of the child’s parents;
The mother contends that the father has acted irresponsibly in contacting Y and Z by electronic means. The mother’s concerns in that respect were communicated by an email from her solicitors to the legal representatives for the father.
Comparatively, at paragraph 15 of his Affidavit filed 14 December 2020, the father states:
15. X only informed me on 11 December 2020 that his mother attempts on a daily basis using other mobile numbers other than her own to contact him however, is abusive in her calls. X now hangs up when such calls come through. This has been particularly distressing for X as he attempts to establish himself back in City H.
Each party’s concerns regarding the other parent trying to contact the child or children in their care has not, however, influenced the decision that I make in these interim proceedings. In particular, I note that the orders made by the Senior Registrar do not place a prohibition on either parent contacting any of the children.
The father’s reference to X having a period of time to re-establish himself in City H is, however, something that I will have regard to in respect to the orders I make in these proceedings.
The father contends that the mother has been irresponsible in taking Y to City H in order to visit his girlfriend, who lives in City H, without making arrangements for Y to also visit his brother X who is now living with the father. That outcome is more reflective of the nature of the extent of parental conflict and, once again, has not impacted the decision I make in these interim proceedings.
More generally, however, I respectfully agree with the submission by counsel for the father that, in this matter, there is a “very high level of parental failure to be able to cooperate”. While these are interim proceedings, the evidence is sufficient to enable the Court to conclude that this level of parental conflict has had a profound detrimental effect on the mental health of X and has an unacceptable risk of adversely impacting upon the mental health of Y and Z, if it continues.
The mother contends that the father has been irresponsible in creating a situation where the parties’ children are entitled to determine where they live. In that respect, the mother attaches to her Affidavit a text message from the father to X in which the father states, “When you turn 15 is all that matters … And after that it’s your choice”. In the context of events which have occurred, communication of that nature to the children is of significant concern to the Court.
The mother contends that the father provided Y with a mobile phone and that phone contained sexually explicit messages. The father denies that those messages were on the phone when it was provided to Y. In these interim proceedings, it is not possible to determine whether or not those images were on the father’s phone when it was provided to Y and whether the father was aware that those images were contained on the phone. Accordingly, I do not regard this issue as being relevant to the determination that I make in these interim proceedings. That is not to say, of course, that the issue may be a live issue at the final hearing of this matter.
More generally, at paragraph 176 of her Report, the Single Expert states:
176. [The father] has a passive approach to parenting and, as already noted, finds it difficult balancing parental responsibilities with farming responsibilities. [The mother] is organised and proactive in her parenting approach and this is most likely to lead to better outcomes for the children’s mental health and sense of security and more likely to be able to keep the father informed of things pertaining to the children.
Once again, the father does not concede that the mother has a superior approach to parenting responsibilities and this will again be a significant issue that the primary judge will be required to consider at final hearing.
Sub-section (3)(j) – any family violence involving a child or a member of the child’s family
Both parties make significant allegations that the other has engaged in family violence. Those allegations are summarised in the CIC Memo, at paragraphs 8–13, as follows:
8. [The father] alleged that, pre-separation, [the mother] threatened to stab him; pushed him; pressured him to engage in sexual activity; threw household items out of anger; socially isolated him; went through his phone; gave him ultimatums; constantly threatened to withhold the children; controlled the finances; criticised his appearance; yelled in close proximity to his face; denigrated him; attempted to ruin his reputation; and spoke to him in a derogatory manner.
9. [The father] alleged that, post-separation, [the mother] made false allegations about him; instigated family conflict with extended family members; yelled at him; used her friends to threaten and intimidate him; monitored his movements; made intimidating facial expression and gestures toward him; “drained the bank accounts”; withheld the children from him; and used the Court system to control him.
10. [The father] said that, approximately three years ago, [the mother] got a gun license and has firearms which are reportedly in Mr U’s (maternal uncle to the children) possession. He said he is worried for his safety due to firearms being in Mr U’s possession as he is “ex-army and [is perhaps] a little bit mentally unstable”.
11. [The mother] alleged that, pre-separation, [the father] pressured her to engage in sexual activity; disclosed intimate details about her to friends and family; threatened to kill the dogs; gave her the silent treatment for up to three months at a time; put her down; criticised her body; and spoke to her in a derogatory manner.
12. [The mother] alleged that, post-separation, [the father] involved the children in the parental conflict; had the paternal grandfather monitor her movements; intimidated her; blocked her car in; contravened parenting Orders; made false allegations about her in the Family Report interview; accused her of infidelity; attempted to have her fired; possibly stole items from her property; misinformed the Child Support Agency and Court of his income/employment status; purposely delayed the financial settlement; purposely made the joint businesses lose money; does not contribute to cost associated with raising the children; and does not pay child support.
13. [The mother] said that she does not have any firearms registered in her name and does not have any firearms on her property. In terms of [the father] having access to firearms, [the mother] said that she is “not worried that he would shoot me” or himself but that, due to the current escalation of the matters which are before the Court, she is not sure if [the father] could be at risk of harming himself if he were to feel mentally unwell. [The mother] said that [the father’s] allegedly worrisome behaviour has escalated over the last month and is worried that [the father] “is becoming desperate because [whenever] the Court makes new Orders for the children’s time with me, he amps it up”.

It is not possible to make a determination in respect to each party’s respective allegations that the other has perpetrated acts of family violence upon them. Clearly, that will be a significant matter to be considered at the final hearing of this case.
Sub-section (3)(k) – any family violence order that applies or has applied involving the child or a member of the child’s family and if applicable, taking into account a number of stated matters;
The Court has not been made aware of any relevant family violence order.
Sub-section (3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
These are interim proceedings and there is every prospect that this matter will proceed to a final hearing in circumstances where both parties are seeking orders for the twins to live with them. In the event of either party being successful in their application, in the case of X, this would involve X relocating from where he currently lives in City H to Sydney and, in the case of Y, it would involve Y moving from his current place of residence in Sydney to City H.
Sub-section (3)(m) – any other facts or circumstances the Court considers relevant consideration
A significant issue in these proceedings is whether the father should be given permission to enrol X in J School in City H. In circumstances where I propose to make orders for X to remain living with the father in City H, it is appropriate that the father be given authority to enrol X in that school.
EVALUATION AND ORDERS
Both parents are in agreement that Z should continue to live with the mother and spend time with the father.
The major controversy between the parties concerns where the twins should live. By far the most significant issue to determine in these proceedings is whether the children would be at an unacceptable risk in the care of the other parent.
The mother acknowledges that there is a potential risk of X being distressed in the event of orders being made for him to relocate from his current place of residence with the father in City H to live with the mother and his two brothers in Sydney. The mother contends, however, that, with appropriate therapeutic intervention, that could be achieved without causing long-term psychological harm to X.
While the evidence suggests that X’s conduct on 22 October 2020 may have been a cry for help and may have not been an actual attempt of suicide, the fact that he was kept in the Hospital for several days after that event and prior to the child inclusive conference, together with the fact that there are several instances where the child’s treating clinicians have recorded their concern regarding the child’s ongoing mental health and the potential for self-harm, it would be unsafe to place X in a situation where he may contemplate self-harm. In that respect, X has stated that he would consider self-harming if orders are made for him to return to live with his mother.
I respectfully agree with the submission of the Independent Children’s Lawyer that it would be unsafe for the Court to make such an order in circumstances where the Court does not have the assistance of evidence from an appropriate expert, being a psychologist, psychiatrist, or social scientist, to assess the extent of the risk of X self-harming in those circumstances.
Having made a determination that there is an unacceptable risk of X self-harming if orders are made for him to live with the mother, I propose taking a cautious approach by making an order that X shall live with the father. I will, however, make an additional order that X spend time with the mother and his brothers as agreed between the parties consistent with the advice of X’s treating mental health clinicians.
I have, in this decision, referred to evidence that the father has made statements to the children to the effect that they are entitled to make their own decision as to where they live. This is in circumstances where the children have told the father that they wish to live with him in City H. In parenting proceedings, the Court is empowered to have regard to hearsay evidence. This includes the police notes recording the statement made to them by X on the evening of 22 October 2020 which recorded that X stated that he had threatened self-harm “in the heat of the moment because he received information if he could demonstrate that residing with the [mother] would be detrimental to his health and may work to alter the custody arrangements opposed by the Family Law Court and allow him to live with his father”. It is to be acknowledged that the father has not been questioned in respect to that assertion, however, there remains a reasonable possibility that a statement, to that effect, was made by the father to X. In light of that possibility, there is an unacceptable risk that the father will make similar statements to Y and possibly to Z.
As against the possibility of the father making those statements was the mother’s open offer, as expressed during the course of the proceedings, that she would be prepared to consent to orders for Y to live with his father on the condition that the twins attended J School as boarders. Counsel for the mother confirmed that, in those circumstances, the mother would agree to both of the children living with the father over the weekend. No suggestion was made that this time needed to be supervised.
Having regard to the totality of evidence presented, including the substance of the mother’s offer, I am satisfied that adequate protection to Y and possibly Z, being the subject of potential improper influence by the father, can be obtained by a requirement that Y and Z shall spend time with the father as agreed between the parties. This is in circumstances where the mother will be in a position to assess any alteration in the disposition of Y and Z after they have spent time with the father. In those circumstances, I do not intend to include an additional order that the time Y and Z spend with the father needs to be supervised by a commercial supervision service.
The Senior Registrar has indicated a preparedness to provide ongoing assistance to the parties should that be required, including providing for the parties to have leave to approach his Chambers to relist the matter in relation to any dispute concerning the frequency or length of time that Y and Z spend with the father. I propose modifying that order such that the liberty extends to the time that X spends with the mother.
For reasons which I have set out in this decision, there is an unacceptable risk to the children being exposed to firearms and I will make an order requiring both parents to surrender any firearms they have in their possession to the City H Local Area Police command.
I will make a further order authorising the father to enrol X at J School at City H.
I would encourage the parties to reach an agreement for the children to be able to contact each other, at least by electronic means, on Christmas day. I will not, however, in the context of the complexity of this matter, make orders for that to be a mandatory obligation on the part of the parties.
Accordingly, I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding one hundred and seventy-nine (179) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland.
Associate:
Dated: 24 December 2020

File number(s):	SYC 4869 of 2017
Judgment of:	MCCLELLAND DCJ
Date of judgment:	24 December 2020
Catchwords:	FAMILY LAW – PARENTING – Review of Senior Registrar’s decision – Where there is an Application before the Court to review a decision of the Senior Registrar in respect of interim parenting arrangements – Senior Registrar’s orders provide for one of the twin children to live with the father and the other twin and third child live with the mother and spend supervised time with the father – Where there is no dispute in respect to the interim arrangements for the parties’ third child – Where the parties have competing applications in respect to the interim living arrangements for the twin children – Where the child living with the father spent a period of time in Hospital subsequent to a mental health episode – Where the child living with the father has expressed strong views in respect to his propensity to self-harm if he were not to live with the father – Where the Independent Children’s Lawyer contends that a cautious approach should be taken by the Court – Consideration given to the potential risk to the children’s mental health in respect to each of the parties’ applications – Orders made for each of the children to remain living with the respective parents – Orders made for the children to spend un-supervised time with the parent with whom they do not live as agreed between the parties – Orders made for the parties to surrender their firearms.
Legislation:	Australian Constitution s 71 Family Law Act 1975 (Cth) s 4AB, 43(1)(c), 60B, 60CA, 60CC, 61DA, 65DAA Evidence Act 1995 (Cth) s 140 Family Law Rules 2004 (Cth) r 18.08, 18.10.
Cases cited:	A v A (1998) FLC 92-800 B and B (1993) FLC 92-357 Banks& Banks (2015) FLC 93-637 Blinko & Blinko [2015] FamCAFC 146 Cowling v Cowling (1998) FLC 92-801 Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 Feiteiro & Feiteiro [2019] FamCA 647 GO v CS FC Palmerston North FAM 2003-054-000859 21 January 2005 Godfrey & Sanders (2007) 208 FLR 287 Goode and Goode (2006) FLC 93-286 Harris v Caladine (1991) 172 CLR 84 Henley & Henley [2019] FamCA 101 Johnson & Page (2007) FLC 93-344 M & S (2007) FLC 93-313 M and M (1988) FLC 91-979 Masson v Parsons (2019) 266 CLR 554 Mazorski v Albright (2007) 37 Fam LR 518 Morgan and Miles (2007) FLC 93-343 N and S (1996) FLC 92-655 Napier & Hepburn (2006) FLC 93-303 Nikolakis & Nikolakis [2010] FamCAFC 52 R & C [1993] FamCA 62. Sigley v Evor (2011) 44 Fam LR 439 SS & AH [2010] FamCAFC 13 Tomko v Palasty (No 2) (2007) 71 NSWLR 61 The Hon John Fogarty AM titled ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249 The Hon Richard Chisholm ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, (Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010) 15
Number of paragraphs:	179
Date of hearing:	16 December 2020
Place:	Sydney by web conference
Counsel for the Applicant:	Mr Hodgson
Solicitor for the Applicant:	Mills Oakley Lawyers
Counsel for the Respondent:	Ms Windsor
Solicitor for the Respondent:	Eddy Neumann Lawyers
Counsel for the Independent Children's Lawyer:	Mr Fermanis
Solicitor for the Independent Children's Lawyer:	Claremont Legal

SYC 4869 of 2017
BETWEEN:	MR TATE Applicant
AND:	MS NEWMAN Respondent
CLAREMONT LEGAL Independent Children’s Lawyer

ORDER MADE BY:	MCCLELLAND DCJ
DATE OF ORDER:	24 DECEMBER 2020