Ortega & Collier (No 2) - [2024] FedCFamC1F 678

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ortega & Collier (No 2) [2024] FedCFamC1F 678

File number(s): SYC 6345 of 2022

Judgment of: BEHRENS J

Date of judgment: 14 October 2024

Catchwords: FAMILY LAW – PARENTING – Spend time with and progression of such time – Child experiences separation anxiety but needs more experience of the father and his household – Need to balance those matters – Prior allegations of physical discipline in the father’s household – Mother no longer seeks finding of unacceptable risk of abuse in father’s care – Lengthy period of litigation – No trust and ineffective communication between the parents – Where otherwise parents both have good parenting capacity – Where both parents seek an order for joint decision-making responsibility – Where mother seeks she be able to make certain decisions in the absence of agreement – Where such an order should be made to reduce the risk of further litigation –Where the mother seeks to change the child’s name to a hyphenated surname – Where such an order should be made – Where parents seek appointment of parenting coordinator – Where insufficient evidence as to appointment of parenting coordinator – Where orders made for time spent with father to progress – Where limited restraints are made

Legislation:
Family Law Act 1975 (Cth) ss 60CC, 60CG, 61DAA, 68B, 114(2A)

Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 10

Births Deaths and Marriages Registration Act 1995 (NSW) s 28(5)

Family Law Amendment Bill 2023 (Cth), Explanatory Memorandum

Hague Convention on the Civil Aspects of International Child Abduction

Cases cited:
A & B (No 2) [2003] FMCAfam 530

AMS v AIF (1999) 199 CLR 160; [1999] HCA 26

Beach and & Stemmler (1979) FLC 90-692

Chapman & Palmer (1978) FLC 90-510; [1978] FamCA 86

Franklyn & Franklyn [2019] FamCAFC 256

Reynolds and Sherman (2015) FLC 93-659; [2015] FamCAFC 128

Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84

U v U (2002) 211 CLR 238; [2002] HCA 36

Zachariah & Zachariah [2017] FamCA 482

Division: Division 1 First Instance

Number of paragraphs: 107

Date of last submission/s: 5 September 2024

Date of hearing: 2-5 September 2024

Place: Sydney

Senior Counsel for the Applicant: Ms Dellidis SC

Junior Counsel for the Applicant: Ms Fisken

Solicitor for the Applicant: H Drakos & Company

Counsel for the Respondent: Ms Dart

Solicitor for the Respondent: Broun Abrahams Burreket
ORDERS

SYC 6345 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR COLLIER
Applicant

AND:
MS ORTEGA

Respondent

ORDER MADE BY:

BEHRENS J

DATE OF ORDER:

14 OCTOBER 2024

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The parents, Ms Ortega (“the Mother”) and Mr Collier (“the Father”) (jointly “the parents”) have joint decision-making responsibility for major long-term issues in respect of X, born 2020 (“X”).
3.Notwithstanding Order 2, if a major long-term decision needs to be made in relation to X’s health (“the decision”), and save for and except where the decision is required to be made in an emergency:
(a)The parent seeking for the decision to be made is to notify the other parent in writing of the issue, their preference(s) in relation to the decision and the reasons for their preference;
(b)The other parent is to respond in writing within seven days of receipt of the notification provided for in Order 3(a);
(c)If the parents thereafter remain in disagreement, they are to consult with any parenting coordinator who is engaged by them at the time the decision needs to be made, with a view to the coordinator assisting the parties to reach a consensus;
(d)If the parents are unable to reach an agreement within 28 days of the notification being provided pursuant to Order 3(a), the Mother is at liberty to make the decision and is thereafter to notify the Father within seven days of the decision being made and provide him with all relevant details, including but not limited to, the name and contact details of any relevant practitioner, the dates of appointments for X and the nature of those appointments.

4.X is to be known by the name X Ortega-Collier and the Mother, by this order, is authorised to apply to the New South Wales Registrar of Births Deaths and Marriages ("the Registrar") so that the child registered as X Collier born 2020 be now registered as X Ortega-Collier.
5.Pursuant to s 28(5) of the Births Deaths and Marriages Registration Act 1995 (NSW), the Registrar register the child's name in the form specified in Order 4 herein.
6.The Mother forthwith shall serve a sealed copy of this order upon the Registrar.
7.The Mother shall pay all the costs of and associated with the changes to the child's name pursuant to Orders 4-6 above.
8.Upon the registration of X’s name as X Ortega-Collier, both parents are restrained from using a surname for X other than Ortega-Collier.
9.The parents are to do all acts and things necessary to complete X's enrolment in and attendance at C Preschool in 2025.
10.The parents are to do all acts and things necessary to enrol X at D School, to commence Kindergarten in 2026.
11.The parents are to do all acts and things necessary to confirm with E School that X's enrolment for Year 7 is to commence in 2033.
12.X shall live with the Mother.
13.X shall spend time with the Father as agreed between the parents, and failing agreement, as follows:
(a)Until 1 November 2024, on a fortnightly basis, being:
(i)In week 1 from 4.30 pm on Friday until 4.30pm on Sunday; and
(ii)In week 2 from 9.00 am to 4.00 pm on Sunday.

Stage 1 (three nights and a Thursday afternoon)
(b)From 1 November 2024 until the commencement of the term holiday at the end of Term 1 2025, on a fortnightly basis as follows:
(i)In week 1 from Friday at the conclusion of X's pre-school, or 3.00 pm if not a pre-school day, until 9.00 am on Monday;
(ii)In week 2 on Thursday from the conclusion of X’s pre-school, or 3.00 pm if not a pre-school day, until 6.30pm.

Stage 2 (four nights and a Thursday afternoon)
(c)From the commencement of the term holiday at the end of Term 1 2025 until the commencement of Term 2 2026, on a fortnightly basis as follows:
(i)In week 1 from Thursday at the conclusion of X's pre-school/school, or 3.00 pm if not a pre-school/school day, until 9.00 am on Monday;
(ii)In week 2 on Thursday from the conclusion of X's pre-school/school, or 3.00 pm if not a pre-school/school day, until 6.30 pm.

Stage 3 (five nights)
(d)From the commencement of Term 2 2026, on a fortnightly basis during school terms as follows:
(i)In week 1 from Thursday at the conclusion of X's school, or 3.00 pm if not a school day, until the commencement of school on Monday, or 9.00 am if not a school day;
(ii)In week 2 from Thursday at the conclusion of X's school, or 3.00pm if not a school day, until the commencement of X's school on Friday, or 9.00 am if not a school day.

School holidays
14.X shall spend time with the Father during NSW school holidays as agreed between the parents, and failing agreement, as follows:
(a)From the conclusion of Term 1 2025 until the commencement of Term 1 2026, the time provided for pursuant to Order 13(c)(ii) above is suspended, and X will spend an additional Monday night with the Father on the weekends that conclude during the school holidays and during which X is spending time with him pursuant to Order 13(c)(i) above, with that time to conclude at 4.00 pm on the Tuesday.
(b)Notwithstanding Order 14(a) above, if the Father’s weekend pursuant to Order 13(c)(i) coincides with the Australian and Orthodox Easter weekend in 2025:
(i)X’s time with the Father pursuant to Order 13(c)(i) is suspended that weekend; and
(ii)X shall spend time with her parents on the Easter weekend in accordance with Order 17(i) and (j) below; and
(iii)X shall spend time with the Father from 3pm on Thursday 10 April 2025 until 4.00pm on Tuesday 15 April 2025.

(c)From the conclusion of Term 1 2026, Order 13 above is suspended during NSW school holidays and X will spend time with the Father as follows:
(i)For the Term 1, 2 and 3 school holidays in 2026 in a seven-night block commencing 9.00 am on the second Saturday of the school holidays until 4.00 pm on the final Saturday of the school holidays.
(ii)For the Term 4 school holidays in 2026 in two seven-night blocks from 9.00 am on the second and fourth Saturdays until 4.00 pm on the third and fifth Saturdays.
(iii)For the Term 1, 2 and 3 school holidays from 2027 for half of those school holidays, commencing with the Mother in the first week in odd‑numbered years and with the Father in first week in even-numbered years and with changeover to occur at 4.00 pm on the second Saturday, and otherwise to be from the conclusion of school on the last day of the term and to the commencement of school on the first day of term.
(iv)For the Term 4 school holidays from the end of 2027 until 2029 on a week about (or part thereof) basis, as follows:
A.commencing from the conclusion of school on the last day of Term 4; and
B.with changeover to occur at 4.00 pm on the day that is one week later, or at school on the first day of school in the new term, if the parent’s time has commenced less than a week prior; and
C.commencing with the Mother in the first week in even-numbered years and with the Father in the first week in odd-numbered years.

(v)For the Term 4 school holidays from the end of 2029 onwards, for one half of each long summer holiday period with each of her parents, at dates and times as agreed, and failing agreement, with the Father for the first half in odd years, and with the Mother for the first half in even years. For the purposes of this order, the Term 4 school holidays are deemed to commence on the last day of the school term and conclude on the first day of the school term.

FaceTime
15.Each parent will facilitate any reasonable request by X to FaceTime or telephone the other parent.
16.During school holiday periods, from the conclusion of Term 1 in 2025:
(a)The Mother is to do all things necessary to facilitate telephone/FaceTime (or similar application) contact between X and the Father twice per week as agreed between the parties and failing agreement each Tuesday and Saturday that X is in the Mother's care at 6.30 pm.
(b)The Father is to do all things necessary to facilitate telephone/FaceTime (or similar application) contact between X and the Mother twice per week as agreed between the parties and failing agreement each Tuesday and Saturday that X is in the Father's care at 6.30 pm.

Special Occasions
17.Notwithstanding anything to the contrary in these orders X, shall spend time with her parents on special occasions as agreed between them and, failing agreement, as follows:
(a)On the first full weekend that X spends with her Father pursuant to Order 13(b) after Christmas Day 2024, for an additional Monday night, with X to return to the care of the Mother at 4.00pm on the Tuesday and with X’s time with the Father otherwise during the summer 2024/2025 holiday to be in accordance with Order 13(b).
(b)If X is not otherwise in the Father's care on Father's Day, she shall spend time with the Father from 9.00 am until 5.00 pm on Father's Day.
(c)If X is not otherwise in the Mother's care on Mother's Day, she shall spend time with the Mother from 9.00 am until 5.00 pm on Mother's Day.
(d)On her birthday X will spend time with the parent who does not have X in their care at the time from 9.00 am until 1.00 pm, or if her birthday is a school day, from the conclusion of school until 5.00 pm.
(e)In even-numbered years X will spend time with the Mother from 9.00 am on Christmas Eve until Christmas Day at 11.00 am and with the Father from 11.00 am on Christmas Day until 3.00 pm on Boxing Day.
(f)In odd-numbered years X will spend time with the Father from 9.00 am on Christmas Eve until Christmas Day at 11.00 am and with the Mother from 11.00 am on Christmas day until 3.00 pm on Boxing Day.
(g)Unless Orthodox Easter falls on the same weekend as Australian Easter, for Australian Easter in even-numbered years X will spend time with the Mother from 9.00 am on Good Friday to 9.00 am on Easter Sunday and with the Father from 9.00 am on Easter Sunday until 9.00 am or at school/pre-school on the following Tuesday.
(h)Unless Orthodox Easter falls on the same weekend as Australian Easter, for Australian Easter in odd-numbered years X will spend time with the Father from 9.00 am on Good Friday to 9.00 am on Easter Sunday and with the Mother from 9.00 am on Easter Sunday until 9.00 am or at school/pre-school on the following Tuesday.
(i)For the Orthodox Easter weekend in even-numbered years, X will spend time with the Father from 4.30 pm on the Friday of that weekend until 4.30 pm on the Saturday of that weekend and with the Mother from 4.30 pm on the Saturday of that weekend until 4.30 pm on the Sunday of that weekend.
(j)For Orthodox Easter weekend in odd-numbered years, X will spend time with the Mother from 4.30 pm on the Friday of that weekend until 4.30 pm on the Saturday of that weekend and with the Father from 4.30 pm on the Saturday of that weekend until 4.30 pm on the Sunday of that weekend.

Changeover
18.Unless otherwise agreed, changeover will occur at X’s pre-school/school when X is in attendance, or otherwise at the home of the parent from whose care X is changing.

Restraints
19.Unless the parents agree otherwise:
(a)Both parents are restrained from removing X outside the state of New South Wales more than once every six weeks.
(b)Both parents are restrained by injunction from insulting, criticising, belittling or otherwise denigrating the other parent and/or a member of that parent's family in the presence or hearing of X.
(c)Each parent will immediately remove X from the presence or hearing of any other person who is insulting, criticising, belittling or otherwise denigrating the other parent and/or a member of that parent’s family.

International Travel
20.From the commencement of 2027, the parents are at liberty to travel outside of Australia with X during any period when X would be living or spending time with that parent in accordance with these orders, provided that:
(a)Any proposed destination or stopover (which does not apply to in-transit destinations only) must be a country which has acceded to the Hague Convention on the Civil Aspects of International Child Abduction and is a convention country under reg 10 of the Family Law (Child Abduction Convention) Regulations 1986 (Cth);
(b)Notice in writing of the intended travel is provided to the other parent no less than six weeks prior to the intended departure date.
(c)No less than four weeks prior to the intended departure date, the travelling parent shall provide the other parent with:
(i)Copies of return tickets for X and the travelling parent;
(ii)A detailed written itinerary of the proposed travel, including details of the travelling party, the dates at all locations and destinations of travel and details of accommodation for the entire period of travel (including the name of accommodation, address, telephone and email contact details) and transportation (including the name of the airline, flight number, dates and times of flights);
(iii)An available telephone number at which communications with X can occur during the period of travel; and
(iv)A copy of travel insurance which insures X whilst travelling overseas for the highest level of cover available with the insurer.
(v)The travelling parent shall do all acts and things necessary to cause X to be vaccinated against, or complete a course of medicine/tablets to prevent, diseases from which a person may be at risk in the country or countries where X will be travelling, in accordance with the recommendations of the World Health Organisation medium to high risk of infection current at the time.

(d)At the conclusion of 2026, the parents shall execute a joint application for an Australian passport for X, and each parent shall do all acts and things, and sign all documents necessary to ensure that X maintains a current passport and each parent will share equally in the costs of obtaining the passport.
(e)The Mother shall have possession, custody and control of X's passport.
(f)Within seven days of the Father's compliance with Order 20(a)-(c)(i-iv) above, the Mother shall deliver X's passport to the Father, and the Father shall return X's passport to the Mother within three days of returning to Australia.
(g)The parent with whom X is travelling overseas shall facilitate the other parent contacting X at a reasonable time once a day as agreed, and failing agreement, between 7.30 pm and 8.30 pm in the local time zone where X is staying.

Other
21.In the event either parent proposes to take X to stay overnight outside of Sydney during a period X is otherwise spending time with them, they shall notify the other parent in writing at least two days prior to the intended travel and provide the address at which X will be staying.
22.The parents shall notify each other of any changes to their address within seven days of making such changes.
23.The parent with whom X is living/spending time with shall use their best endeavours to ensure that X attends all school-related, extracurricular and sporting activities in which she is enrolled.
24.Neither parent shall confirm X's attendance at an event which does not fall in the time X is living/spending time with them without the consent in writing of the other parent and each parent shall notify the other parent in writing of all invitations/notifications received for X to attend events that fall during time X shall be living/spending with the other parent as soon as practicable.
25.The parents shall immediately inform the other of any serious illness or injury sustained by X whilst in their care and provide particulars of any diagnosis and treatment in relation to X, together with the name and contact details of the treatment provider.
26.These orders shall be sufficient authority for each parent to obtain from X's medical practitioner, healthcare provider or counsellor any information or report regarding X's health upon request and at the cost of that parent.
27.This order authorises X's pre-school or school to give each parent information about X's education progress and other related activities including copies of any reports, photographs, certificates and awards.
28.This order authorises X's pre-school or school to inform each parent of all extra‑curricular activities which occur in X's pre-school or school including parent/teacher meetings, sporting/special events and any other activities to which the parents are invited.

Disputes in relation to the implementation of these orders
29.In the event the parents are unable to resolve a dispute regarding the implementation of these orders:
(a)If the parents have a parenting coordinator engaged, the parents will confer with the parenting coordinator with a view to reaching an agreement between themselves.

(b)If the parents are unable to reach an agreement, they will engage in family dispute resolution with a family dispute resolution practitioner to assist in resolving the dispute.
(c)The parents are to attempt to agree on who the family dispute resolution practitioner will be.
(d)If the parents cannot agree who the family dispute resolution practitioner will be:
(i)The Mother is to propose to the Father in writing a list of three family dispute resolution practitioners with details of the fees, experience and availability;
(ii)If the Father selects a family dispute resolution practitioner within seven days of being presented with the list, the parties will engage that family dispute resolution practitioner. If the Father does not select a family dispute resolution practitioner within seven days of being presented with the list, the parties shall engage the family disputes resolution practitioner nominated by the Mother.

(e)Any costs of the family dispute resolution are to be paid for equally by the parents.

THE COURT NOTES THAT:
A.The Father has agreed to enrol in, attend and complete the Circle of Security Parenting Course and the Triple P Parenting Program, noting that his evidence is that he has already completed courses. The Court is of the view that it would assist the Mother to have confidence in his parenting, and therefore assist the parents’ co-parenting relationship and X, if he was to undertake those courses as soon as possible, and provide the Mother of evidence that he has done so.
B.The parents agree with the recommendation of the Single Expert that a parenting coordinator would be of assistance to them. The parents are at liberty to engage a parenting coordinator and to make whatever arrangements for payment they can agree between themselves.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ortega & Collier has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BEHRENS J
INTRODUCTION

These parenting proceedings concern four-year-old X ("X"). X will be five in 2025. For much of the time since their separation, when X was less than one year old, her parents Ms Ortega (“Ms Ortega”) and Mr Collier (“Mr Collier”) have been in litigation about parenting arrangements. In some ways, it is hard to understand how that is so. Both parents are well resourced, well supported by their extended families, and share and value a common cultural heritage. Both parents love and cherish X. They have both demonstrated their commitment to X and their willingness to make significant personal sacrifices for her. X’s mother has spent more than four years devoting herself to personally caring for X. X’s father has moved to Sydney from Brisbane and adapted his work arrangements so that X can have him close-by. As far as I can tell from the evidence they have given, neither parent gives the other credit for what they have done.
X’s parents have been unable to resolve numerous disputes about her parenting between them, such that the Court has now been required to make final parenting orders on two occasions (having decided at a Rice & Asplund (1979) FLC 90-725 (“Rice & Asplund”) hearing to allow the matter to proceed to a second final hearing), and to make or consider making interim parenting orders on several occasions. This litigation has cost both parents dearly and has undoubtedly damaged the prospects of them developing an effective co-parenting relationship. As my Reasons set out, there is no trust between the parents and almost no effective communication. Even with the conclusion of these proceedings, the litigation will not end as there are financial proceedings which were bifurcated from the parenting proceedings and are still to be determined. It appears therefore that X will continue to experience her parents in the context of the inevitable stress of litigation for some time yet.
BRIEF HISTORY
X’s parents met and commenced a relationship in about 2005. The characterisation of that relationship is not relevant, at least for the parenting aspect of the proceedings. They became engaged to marry in 2019. X was conceived that year. She was born in Sydney and lived there with her parents for the first months of her life. In 2020, Ms Ortega took X to live at Mr Collier’s house in Brisbane. In September 2020, the parents separated when Ms Ortega moved with X back to Sydney.
Parenting proceedings were commenced by Mr Collier on 22 October 2020 in the Brisbane Registry. At the final hearing in March 2021, he was seeking orders that Ms Ortega move (or return) with X to Brisbane. Following a two-day final hearing before Judge Middleton, final parenting orders were made on 26 May 2021 (“the 2021 orders”). Pursuant to the 2021 orders, the parents have equal shared parental responsibility for X, who is to live with her mother in Sydney. The 2021 orders provide for X to spend time with her father, increasing to every other weekend in Sydney, and required Ms Ortega to travel to Brisbane every six weeks to facilitate X having time with her father there. In those proceedings, it was the father’s position that he was simply unable to move to Sydney.
These latest proceedings were commenced by Ms Ortega on 9 September 2022. Initially, they were financial proceedings only. Her evidence was that at that time, she was already on notice that Mr Collier intended to reopen parenting matters. When Mr Collier responded, he joined parenting matters, seeking to have the 2021 orders discharged and new parenting orders made on the basis that, in the context of border closures associated with Covid lockdowns, he had relocated from Brisbane to Sydney in July 2021.
There was a Rice & Asplund hearing, and Mr Collier was given leave to “reopen” the parenting proceedings on 14 November 2023. Since then, Mr Collier has filed an Application in a Proceeding seeking to vary the 2021 orders on an interim basis. That Application was unsuccessful, although the order requiring Ms Ortega to travel to Brisbane with X was discharged by consent on 1 March 2024.
In the first proceedings Ms Ortega filed a Notice of Child Abuse, Family Violence or Risk on 13 November 2020 identifying Mr Collier’s rough handling of X and his stated intention to smack her if required as examples of her concerns for X’s safety and wellbeing. She also raised issues of risk with the Single Expert in those proceedings. Nonetheless, the issues in the first proceedings were not matters of risk but whether Ms Ortega should be required to return to live in Brisbane with X, and what parenting arrangements were developmentally appropriate for X (who was then just over one year old).
With respect to the current proceedings, until June 2024 neither parent had raised any issues of risk. Rather, the issues to be decided concerned what parenting arrangements were appropriate for X in light of her developmental stage and Mr Collier’s relocation to Sydney. The parents were complying with the 2021 orders, save that the order requiring Ms Ortega to travel to Brisbane had been discharged in March. X was spending time with her father each alternate weekend from Friday until Monday. The matter was progressing towards the allocation of final hearing dates. The appointment of a Single Expert to these proceedings, namely, Ms B (“Ms B”), who had provided a Family Report in the first set of proceedings, had also taken place. Ms B had received a joint letter of instruction and carried out interviews for the purposes of the Family Report on 13 May 2024.
On 23 July 2024, however, Ms Ortega filed a Notice of Child Abuse, Family Violence or Risk following her making of reports to the New South Wales Department of Communities and Justice about X in May 2024. In those reports, Ms Ortega detailed her concerns about occasions when X returned from Mr Collier’s care with bruises. Ms Ortega framed these allegations in terms of her concerns about the attitude displayed by Mr Collier and his parents towards the use of physical punishment, X’s behaviour and X having told the mother that “’Daddy hits me’” and “’I don’t want to see daddy. I’m sad to see him’” (mother’s affidavit filed 26 August 2024, paragraph 142).
The reports led to a police interview with X. NSW police obtained a provisional, and then an interim, Apprehended Domestic Violence Order (‘ADVO’) which identified X as the person in need of protection, and prevented Mr Collier from assaulting, threatening, stalking, harassing or intimidating X, and destroying or damaging any of her property or an animal in her possession. The ADVO did not suspend Mr Collier’s time with X.
Ms Ortega did not provide X for time with Mr Collier from 20 May 2024 until 12 July 2024, being the first occasion on which professionally supervised time occurred. Ms Ortega filed an Application in a Proceeding on 14 June 2024. Ms Ortega subsequently filed an Amended Application in a Proceeding on 22 July 2024, seeking that the “spend time” aspects of the 2021 orders be discharged and that X spend professionally supervised time with Mr Collier.
That Application in a Proceeding was listed before Justice Harper on 24 July 2024. On that date, the matter was bifurcated and the parenting aspect was listed for final hearing on 2 September 2024. In those circumstances, Mr Collier consented on a “without admissions” basis to orders that provided for him to have supervised time with X pending the final hearing. Such supervised time occurred on six occasions between 12 July and the final hearing.
On 24 July 2024, orders were also made for Ms B to be provided with updating documents and further joint letters of instruction so that she could take account of that material in finalising the Family Report. Ms B finalised the Family Report on 12 August 2024. Ms B recommended, broadly, that the parents share parental responsibility and that time for X with her father increase ultimately to five nights a fortnight and half of the school holidays.
Between 20 May 2024 and Fathers’ Day, being the day prior to the first day of the hearing, X only spent time with her father professionally supervised. On Father's Day 2024 – after the release of the Family Report – she spent unsupervised time with Mr Collier.
THE PARTIES’ PROPOSALS
By the time of the final hearing, Ms Ortega was no longer pressing that X’s time with Mr Collier be supervised and no longer sought a finding by the Court that X was at an unacceptable risk of abuse in her father’s care. She did seek that Mr Collier attend various courses and that Mr Collier be restrained from certain conduct. Upon the completion of these steps, Ms Ortega sought that X’s time with Mr Collier resume for three nights a fortnight as provided for in the 2021 orders, but in a split configuration, namely two nights over one weekend and a night in the other week. She sought that arrangement continue until 2027, when X will be seven and commencing Year 1 at school, and then move to a 10/4 arrangement. She sought that additional school holiday time start in 2026 and progress such that, from 2028, when X is in Year 2 at school, Mr Collier would have X for seven nights in the Term 1-3 school holidays and a week about arrangement would be in place for the Term 4 school holidays (Mother’s Outline of Case, paragraph 16).
Mr Collier's proposal was for X's time to move immediately to a three nights per fortnight arrangement, comprising two nights in week 1 and one night in week 2, and then to progress to an equal time arrangement by Term 3 2026, when X would be six years old (Father’s Outline of Case, paragraphs 7(a) and 7(e)).
Neither party was therefore adopting the recommendations of the Single Expert in the Family Report. Ms B, who has had the benefit of seeing this family in the previous proceedings as well as these ones, concluded the Family Report by recommending as follows (p.31– 33):
(a)The parents share responsibility for decision making in relation to [X’s] parenting, including her health and education.
(b)The parents continue to use a parenting app for communication about [X].
(c)A parenting co-ordinator be appointed for a period of 12 to 18 months to assist the parties to implement the Orders. I recommend a PC experienced practitioner […].
(d)[X] lives with her mother, and has time with her father on a gradually increasing basis as follows,
From September 2024 until 1 January 2025 (4 years of age)
i.From 3pm Friday until 9am Monday, each alternate weekend, to be collected from and delivered back to the mother’s residence, or from childcare or kindergarten if she is attending.
ii.Each Wednesday, for a period of 4 hours to enable [X] to engage in a regular activity with her father on a weekly basis, particularly before she is engaging in a formal learning program.
iii.One Facetime call each week with the other parent, unless an additional call is requested by the child.
For holidays in 2024
iv.During December 2024, for 1 additional overnight to be added to the usual 3 overnight on one occasion around the Christmas period, (4 overnight) provided that the usual alternate weekend pattern otherwise continues.
From January 2025 until 2 January 2026 (5 years of age)
v.From 2.45pm Thursday until 9am Monday, to be collected from and delivered back to the mother, or from childcare or kindergarten if she is attending.
vi.Each Wednesday or Tuesday (or whatever midweek day is agreed), for a period of 4 hours to enable [X] to engage in a regular activity with her father on a weekly basis, particularly before she is engaging in a formal learning program.
vii.One Facetime call each week with the other parent, unless an additional call is requested by the child.
viii. For 2025 Holidays
ix.On 3 occasions during the midyear holiday periods of the 2025 year, to coincide with school holidays, for a period of 5 consecutive overnights, apart from the December 2025/January 2026 holidays when she could have 2 periods of 5 days, given that it is a 6-week period, provided that the usual alternate weekend pattern otherwise continues.
From 1 January 2026 until 1 January 2027 (6 years of age)
x.From 2.45pm Wednesday until 8.30am Monday, to be collected from school and delivered to school.
xi.Each alternate Wednesday, for a period of 3 hours to enable [X] to engage in a regular activity with her father on weekly basis i.e. from 2.45pm to be collected from school and returned to the mother at 5.45pm.
xii.One Facetime call each week with the other parent, unless an additional call is requested by the child.
xiii. For the 2026 holidays
xiv.On 3 midyear holidays, for 7 overnights during the NSW school holidays, apart from the December 2026/January 2027 holidays when she could have 2 periods of 7 days, given that it is a 6-week period, provided that the remained [sic] of the school holidays time is spent with the mother.
xv.From the 2027 school holidays, for equal time with each parent during holiday periods commencing Easter 2027.
As I set out below, Ms B slightly modified her recommendations in oral evidence.
To their credit, both parents modified their positions having heard the oral evidence of Ms B, and, prior to submissions, filed Minutes in Court which reflected their modified proposals. Mr Collier’s final proposed Minute is Annexure A to these Reasons. Ms Ortega’s final proposed Minute is Annexure B. Counsel for Ms Ortega clarified that, notwithstanding that Minute, her client’s position was that “Stage 1” was not conditional on Mr Collier’s compliance with Orders 33.1 and 34.1 (enrolment in parenting courses).
There was agreement between the parents as to a number of what might be called ancillary matters. I have made Orders 9-11, 15, 17(b)-(d), 18, 20 (subject to the date of commencement) and 22-29 (with minor modifications to the parents’ proposed wording) because there was agreement between them that the substance of the orders should be made and I am satisfied that they are in X’s best interests. In relation to Order 29, the mother proposed she nominate three Family Dispute Resolution practitioners and the father proposed he do this. I have simply had to choose one. Both parents sought a communication order in similar terms to Order 16, save that the mother would have it commence only when week about holiday time commences and the father would have it commence from 2025. Given X will not spend time with the father each alternate week in the school holidays for 2025, I am satisfied the orders sought by him is in X’s best interests because it will enable X to facetime him during that week she does not spend face to face time with him. I set out below my reasons for making the balance of the orders.
At the conclusion of the hearing, I gave counsel for Ms Ortega leave to make an oral application for interim orders pending the making of these orders. That was in circumstances where: the 2021 orders had not been discharged and would therefore otherwise be required to be complied with; there had been a significant period during which X had spent only daytime with her father (and for all but the last occasion professionally supervised); and where Ms B had recommended in her oral evidence a “wind back” of time for a period of about two months to enable a more gentle re-introduction of time for X than an immediate reintroduction of three nights a fortnight would provide for her. The parents were unable to agree what interim arrangements were appropriate for X and I ordered that, until I was able to deliver my judgment, X spend time with her father on a fortnightly basis, being in week 1 from Friday 4.30 pm until Sunday at 4.30 pm, commencing Friday 6 September 2024; and in week 2 from 9.00 am to 4.00 pm on Thursday.
ISSUES TO BE DETERMINED
The issues I am required to decide narrowed to the following as a result of the parents’ modified positions by the conclusion of the hearing:
(1)Major long-term decision-making:
Whether I should make an order that, notwithstanding the parents agree that they are to have joint responsibility for making major long-term decisions for X, Ms Ortega is able to make certain decisions for X herself, having gone through a process of consultation with Mr Collier. For the reasons set out below, I will make an order that, in respect of major long-term health issues only, Ms Ortega will have that ability.
(2)Time:
(a)Five nights or six:
Whether time during school terms should progress to five nights a fortnight (as Ms Ortega seeks), or six nights a fortnight (as Mr Collier seeks). For the reasons set out below, I have decided that time will progress to five nights a fortnight.
(b)The pace at which that time should progress and how that time should be configured:
For the reasons set out below, I have decided that time should, from 1 November 2024, return to the three nights a fortnight provided for in the 2021 orders, remain as such until X has finished her first term of pre-school in 2025 and then progress to four nights a fortnight. The four nights a fortnight arrangement should then remain in place for a year, with time then progressing to five nights a fortnight.
(c)School holiday time:
With respect to school holidays, the issues I am required to decide are when school holiday time should commence, what the final stage should be, and the manner of progression to the final stage. It is agreed between the parents that school holiday time will progress to week about, although Mr Collier would have a final stage of half of the long school holidays from 2029/2030 onwards. For the reasons set out below, I have decided that an additional night should be added to X’s extended weekend time with her father during 2025 school holidays, with seven-night blocks to commence in 2026 and equal time during school holidays to commence in 2027, but on a week about basis over the long summer holidays until 2029 when it will progress to half of the long summer holidays.
(d)Special occasions:
I am also required to decide what orders should be made for Christmas and Easter. For the reasons set out below I have made orders which “split” those special occasions between the parents and which include time at Orthodox and Australian Easter.
(3)Change of name:
Whether Ms Ortega should be permitted to change X’s surname from Collier to Ortega‑Collier. For the reasons set out below I have decided that X should be known as X Ortega-Collier and I have made the relevant orders sought by Ms Ortega.
(4)Restraints and other orders:
What orders restraining the parents I should make. I have decided to make minimal restraints and deal with this issue at paragraphs [101]–[104] below. I am also required to decide at what stage the parents should be able to travel overseas with X. For the reasons set out below I have decided that should be from 2027, when X is seven.
EVIDENCE

Mr Collier relied on his trial affidavit filed 26 August 2024. I did not admit the annexures to that affidavit into evidence, but required that any document relied on be individually tendered. A proof of evidence containing some evidence in chief in reply to Ms Ortega’s affidavit and by way of update was adopted by him and admitted into evidence and marked Exhibit F1. Mr Collier was cross examined by counsel for Ms Ortega. He also relied on an affidavit of his father filed 26 August 2024. The paternal grandfather was not required for cross examination.
Ms Ortega was the only witness in her case, and relied on her trial affidavit filed 26 August 2024 without its annexures. She was cross examined by counsel for Mr Collier.
Numerous documents were tendered and received into evidence. A list of the Exhibits is Annexure C to these Reasons.
The Court received into evidence the Family Report of Ms B. Ms B had also prepared a Family Report in the Brisbane proceedings and that earlier report was received into evidence and marked Exhibit F8. The Reasons for Judgment of Judge Middleton in the Brisbane proceedings were also received into evidence, although no submissions were made as to what I should draw from those Reasons.
RELEVANT LAW (PARENTING ORDERS)
X’s best interests are the paramount consideration for me in making parenting orders.
In working out what is in X’s best interests I am required to have regard to the considerations in s 60CC of the Family Law Act 1975 (Cth) (“the Act”).
X is not an Aboriginal or Torres Strait Islander child so the considerations that apply to such children are not extracted below.
FAMILY LAW ACT 1975 (CTH) S 60CC
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a)       consider the matters set out in subsection (2); and
(b)       …
General considerations
(2)For the purposes of paragraph (1)(a), the court must consider the following matters:
(a)what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)        the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)       any views expressed by the child;
(c)the developmental, psychological, emotional and cultural needs of the child;
(d)the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)the benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)anything else that is relevant to the particular circumstances of the child.
(2A)In considering the matters set out in paragraph (2)(a), the court must include consideration of:
(a)any history of family violence, abuse or neglect involving the child or a person caring for the child (whether or not the person had parental responsibility for the child); and
(b)any family violence order that applies or has applied to the child or a member of the child’s family.
FAMILY LAW ACT 1975 (CTH) S 60CG
I am also required to apply s 60CG of the Act, which provides as follows:
60CG Court to consider risk of family violence
(1)In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order:
(a) is consistent with any family violence order; and
(b)does not expose a person to an unacceptable risk of family violence.
(2)For the purposes of paragraph (1)(b), the court may include in the order any safeguards that it considers necessary for the safety of those affected by the order.
ANALYSIS OF THE EVIDENCE BY REFERENCE TO THE BEST INTERESTS CONSIDERATIONS
Safety
Physical (and related aspects of) safety
When this matter was listed for final hearing on 24 July 2024, the question of X’s physical safety in the care of her father was a significant part of the dispute between her parents. Ms Ortega sought that X’s time be professionally supervised, on the basis that any other arrangement would involve an unacceptable risk to X of physical abuse by Mr Collier or in his care.
By the time of the final hearing, Ms Ortega was no longer seeking that the Court assess X to be at unacceptable risk in the care of her father, provided at least that restraints be put in place and Mr Collier undertake parenting courses. Her affidavit contained evidence about the circumstances in which her concerns about X had arisen, including observing bruises on X and having X make various statements to her. According to Ms Ortega, it was those matters that led her to make a report to the New South Wales Department of Communities and Justice, which in turn led to the police interview of X. While Ms Ortega gave oral evidence at trial that she still had “concerns” about X in the care of her father, it was not part of her case (and hence was not put to Mr Collier, nor to his father who was also on affidavit) that X had been physically disciplined or physically harmed in the care of Mr Collier.
Understandably, on behalf of Mr Collier a finding was sought that he had not used physical discipline against X or, in the alternative, that neither he nor his parents had caused bruising to X. In his affidavit, he denied having used physical discipline against X or allowing anyone else to do so and gave detailed evidence about the time immediately preceding each occasion on which Ms Ortega reported that X had said that there had been physical discipline and/or on which Ms Ortega observed bruises on X (father’s affidavit filed 26 August 2024, paragraphs 119-120, 125-126, 134-162, 164-210). For example, in relation to Ms Ortega’s allegation that she had observed two bruises on X’s bottom whilst bathing her on 27 March 2023 and that X had stated “Daddy and [grandfather] did it” when questioned by the mother (mother’s affidavit filed 14 June 2024, paragraph 69), Mr Collier conceded that X may have sustained a “minor bruise” during her “particularly active weekend” with him on 24-27 March 2023, which had included visits to an animal sanctuary and catch-ups with family and friends, and denied that either he or the paternal grandfather had used physical discipline towards X or otherwise acted in a manner to intentionally cause the bruising (father’s affidavit filed 26 August 2024, paragraphs 170-171, 173). The paternal grandfather also gave evidence in which he denied having used physical discipline against X; denied that X’s paternal grandmother had used physical discipline against X; and stated that he had not observed X’s father physically disciplining her (affidavit of Mr F filed 26 August 2024, paragraphs 4, 33-35). The paternal grandfather also deposed that with respect to 12 July 2022, when X reportedly told Ms Ortega “[Grandfather], Daddy, [grandmother] they hit you”, and 23 October 2022, when X was alleged to have stated “[Grandmother] went bang bang”, neither he nor the paternal grandmother had been in X’s company during the respective preceding weekends (affidavit of Mr F filed 26 August 2024, paragraph 35(a)-(b)).
Other evidence before me of relevance to this issue were:
(1)the video of the police interview with X (Exhibit F9);
(2)a summary of that interview and other documents forming part of the NSW Police records (Exhibit F10);
(3)the interim ADVO (Exhibit M16);
(4)the Application for the provisional ADVO setting out the circumstances in which it was sought by NSW Police (Exhibit M15); and
(5)photographs of bruising on X between the dates of 10 February 2022 and 6 May 2024 (Exhibit M14).
Ms B gave evidence that, subsequent to her finalising the Family Report, she was provided with the video of X’s interview with NSW Police. She confirmed in oral evidence that she had watched it several times and prepared notes (which were tendered). I was told from the bar table that she had emailed the solicitors to the effect that, having watched the video, she did not change her recommendations. No email was tendered and that evidence was not taken from her. Nonetheless, it was clear from Ms B’s evidence that she remained of the view that there was no risk to X in her father’s care.
In circumstances where Ms Ortega did not seek a finding of unacceptable risk, but did seek to address in evidence what she contended was the reasonableness of her previous position, the only matters in relation to physical discipline about which Mr Collier was cross examined were the following:
(1)A conversation between himself and the maternal grandmother in August 2020, in which he was reported to have stated “’I will smack [X] if I think punishment is necessary’” and “’I’m the father. I can do what I want’” (mother’s affidavit filed 26 August 2024, paragraph 86)). Mr Collier did not make reference to this conversation in his affidavit evidence. However, in evidence in chief contained in a proof of evidence, which he adopted and which became Exhibit F1, he gave evidence that “I deny that I said anything about smacking [X]” (paragraph 13). It was put to him (Transcript 2 September 2024, p.39 line 25 to p.40 line 35, and p.42 lines 15–35 ) that that evidence was inconsistent with the evidence he gave in the previous proceedings as recorded in the transcript thereof (the relevant page of which became Exhibit M2), namely, that the conversation did occur but he had not in fact smacked X and was not making a threat to that effect. At times during his oral evidence, Mr Collier vacillated as to whether the conversation had taken place at all. However, he ultimately maintained that his recollections of this conversation in both proceedings reflected what he had read in Ms Ortega’s affidavit, and that his statements about physically disciplining X were attempts to relate to the maternal grandmother about “her family upbringing”. I was left with the impression that Mr Collier was not being completely forthright in his evidence about this conversation. I accept that the conversation deposed to by Ms Ortega did occur.
(2)As to Ms Ortega’s proposal that he be restrained from physically disciplining X, Mr Collier stated that he would only accede to this on the basis that the Court also restrain Ms Ortega from engaging in such behaviour. Mr Collier contended that restraints framed in this way would be of benefit to X as “there may be other third‑parties on both sides of the family that [X] is in contact with” (Transcript 3 September 2024, p.113 line 5).
To make a positive finding of fact, I need to feel actual persuasion of that fact. I am not prepared to make a finding either way in relation to the question whether Mr Collier or his parents have used physical discipline against X or smacked her, notwithstanding Mr Collier’s and his father’s unchallenged evidence that they did not do so. This is because: I am satisfied that X has said things both to her mother and to police which indicate there may have been some physical discipline or smacking used against her; the police were sufficiently persuaded after the interview to apply for the provisional ADVO (albeit with limited conditions); and because of what I have said above about Mr Collier’s evidence about the conversation in August 2020.
I am, however, satisfied and find that X has not been physically harmed by Mr Collier nor by any person while X is in his care, and that the bruises which Ms Ortega photographed are likely the result of normal childhood bumps and scrapes. Some of those photographs were inconsistent with having been deliberately caused by smacking or the like, including the photograph (Exhibit M14) of a small round bruise on X’s chest. The others are entirely consistent with minor accidental injuries.
I am required, when assessing safety, to take into account a past history of family violence and any family violence orders made. There is a provisional ADVO in place for the protection of X, with the one condition that Mr Collier must not assault, threaten, stalk, harass or intimidate X, or destroy or damage any property that belongs to or is in the possession of X. That was applied for by police following an interview with X in which she indicated that her father was “mean” and would make her cry when he hit her “everywhere” when she stayed with him at his house.
Notwithstanding the matters referred to in paragraph 39 above, I am satisfied that there is no unacceptable risk to X arising from the use of physical discipline in Mr Collier’s household, and that she is safe in the care of Mr Collier, whether or not I make the restraints sought by Ms Ortega and whether or not I require Mr Collier to undertake further parenting courses.
Emotional and psychological safety
To the extent that it is not otherwise clear on a plain reading of the legislation, the Explanatory Memorandum to the provisions of the Family Law Amendment Bill 2023 (Cth), which introduced the new s 60CC(2), confirms that the words “other harm” allow me to consider issues such as inter-parental conflict when considering X’s safety. There are safety concerns for X associated with the likely impact on her of ongoing disputes between her parents, and the risk that there will be further litigation. Such further litigation would be a tragedy for X and her parents.
The communication between the parents is very ineffective. Ms Ortega’s early emails to Mr Collier (for example, the email on 12 February 2022 which became Exhibit F12) were lengthy and accusatory and it is not surprising that he became defensive and was not as fulsome as required for good communication. Ms Ortega gave evidence, and I accept, that she learnt at a parenting course about the principles of better communication and has implemented them since. Nonetheless, Mr Collier has continued to be defensive and to communicate minimally with Ms Ortega. For example, in early January 2024, X returned from her father’s care with blood in her eye. Mr Collier gave evidence that he had taken X to see the wife of his friend – the friend being a doctor and his wife being a pharmacist – and that this consultation reassured him that there was no reason for concern. Even when asked by Ms Ortega, he did not communicate what steps he had taken, and this resulted in her taking X to the hospital, a GP being unavailable that day.
I was particularly puzzled by Mr Collier’s evidence to the effect that there had been no conflict between him and Ms Ortega, which he gave when cross examined about paragraph 35 of his affidavit filed 26 August 2024, in which he had deposed “I hold increasing concerns that, as [X] becomes older, she’s becoming more acutely aware of the parental conflict between her mother and I” (Transcript 2 September 2024, p.35 line 30 to p.38 line 45 ). Mr Collier initially indicated that his oral evidence that there had been no conflict with the mother pertained to X not having witnessed himself and Ms Ortega talking together, for example, at meetings at X’s school (Transcript 2 September 2024, p.37 lines 25– 35). Upon agreeing with the proposition that conflict meant “disputes” and “disagreements”, Mr Collier then denied that interactions of this nature had taken place with Ms Ortega with respect to the introduction of formula, the types of food with which X should be provided and whether she should be offered dairy products (Transcript 2 September 2024, p.38 lines 5–45). In fact, Mr Collier denied that conversations with Ms Ortega about these topics had occurred at all, let alone been characterised by conflict (Transcript 2 September 2024, p.38 lines 35–45). His evidence on this issue, as well as his evidence that, in his view, the way to improve communication between the parents – in addition to him responding to all emails and text messages – was for them to talk about X face to face and attend health appointments together, showed a significant lack of insight into the state of the parents’ relationship and how almost continuous litigation has impacted their ability to meet and communicate in the way he suggested.
I am mildly troubled by Mr Collier’s response and attitude towards Ms Ortega’s decision to limit X’s intake of dairy, in circumstances where she says she has observed X to have a sensitivity to dairy and where she herself has a dairy intolerance. Mr Collier’s position was he gave X dairy in his house on the basis that an allergist, Dr G, had found X did not have allergies and had recommended to the parents in December 2020 that X have a diet across all food groups. Dr G’s report was admitted into evidence and marked Exhibit F3. Ms Ortega’s evidence was that she believes X has a sensitivity (but not an allergy) to dairy which manifests in various ways, including diarrhea. She therefore elects not to feed X dairy. She raised this issue with Mr Collier a number of times, including by email on 27 January 2023 (this email and Mr Collier’s response became Exhibit M7). Mr Collier responded by suggesting that they go together for a medical and dental check-up, stating:
“[w]e can discuss any dietary concerns you have. I or my family have not noticed anything untoward, [X] eats and enjoys all food groups. Specialist [Dr G] didn’t find any allergies or concerns when testing [X] in December 2020. We can also return to [Dr G].”
Mr Collier in oral evidence said that after the parents had a joint appointment with Dr G, he contacted Dr G again for some further advice and was told to give X a wide range of foods. While Mr Collier did propose a way to resolve this issue between the parents, I am mildly troubled that he has not taken on board the concerns which Ms Ortega held and continues to hold in relation to this issue, and instead has chosen to challenge her. Mr Collier seems simply to disbelieve Ms Ortega when she says she has observed X to have an upset tummy after intake of dairy. It is difficult to understand why he would think Ms Ortega would lie about such a matter. This is one everyday example of disputes between the parents in relation to health issues, and an example of them prioritising “being right” over the development of a cooperative parenting relationship and consistency for X. Another example is Mr Collier’s failure to respond in any way to an email (Exhibit M5) sent by Ms Ortega on 23 February 2023 raising her concerns about a friend of the father’s bathing X. He had a perfectly reassuring explanation for what occurred (the men were bathing their children together) – but it was one he did not give to Ms Ortega – choosing instead to ignore her email.
Ms Ortega has also demonstrated this kind of behaviour, for example, by continuing doggedly to send breast milk for X up until May of this year, notwithstanding her evidence that it is not used.
The parents have also had disputes about whether X has presented with nappy rash, her responses to consuming dairy and her receiving breastmilk. For example, Ms Ortega deposed that on 7 February 2022, being the date of X’s first overnight time with Mr Collier pursuant to the 2021 orders, Mr Collier had advised her, upon being handed a cooler bag of breastmilk that X “… ‘doesn’t have the expressed breastmilk with me. She prefers other things I give her’” (mother’s affidavit filed 26 August 2024, paragraph 53). While these are not major long-term issues, they along with the matters I refer to above, give me reason to find that it is unlikely that if there is any major long-term health issue, the parties will be able readily to resolve it between themselves.
Views
X is only four years old. To Ms B, X stated “I don’t want to see Daddy. I only want Mummy”, though Ms Ortega advised Ms B that X was referring to breast milk, which she does not receive at her father’s house (Family Report, paragraph 155). However, at a point early in her interactions with Ms B, X did state “I don’t like Daddy” in response to reassurances that she would not have to separate from her mother or be alone with Ms B if she so wished (Family Report, paragraph 148). It was noted that throughout her time with Ms B and her mother, X was anxious at the prospect of seeing her father and when the time came to see her father, began to protest and cling to her mother despite Ms Ortega’s appropriate reassurances. (Family Report, paragraphs 149, 154, 160, 161). To the police, X expressed that she did not enjoy staying at her father’s house due to boredom and because her father was “very mean”.

X’s expressions of these views are inconsistent with the happy way she met and engaged with her father during supervised visits (Supervision reports from H Contact Service for the contact which occurred in 2024 became Exhibits F6 and F7).
Ms B opined that X was experiencing difficulties reconciling her personal experiences of her father (which were positive) with her mother’s anxiety and attitude towards Mr Collier, and that this is an explanation for the incongruence in her reactions towards Mr Collier and the prospect of seeing him. To this end, Ms B observed that X is essentially forced to live “in two different realities”, and that it is possible X’s reluctance to go to spend time with her father reflects her desire to stop the confusion she experiences (Transcript 4 September 2024, p. 266 lines 10–20). Whilst Ms B noted that X “sounds like she’s as happy as anything” once in her father’s care, she opined that X, knowing of her mother’s view that the father will hurt her, may simply find it easier to remain in her mother’s care (Transcript 4 September 2024, p.266 lines 15–20).
In the face of: the incongruency between the supervision reports and X’s views as expressed to Ms B and police; the expert evidence referred to above; and X’s young age, I do not place any weight on X’s views – indeed I was not invited to do so.
Unsurprisingly, given her young age, there was no evidence about any views X has about any of the other issues which I must decide. In relation to X’s name, Ms Ortega gave the following evidence at paragraph 221 of her trial affidavit “I attempt not to use my surname with any frequency in front of [X], with the intention that [X] not be made aware, until she is a little older, that we have different names. However, she has taken to saying ‘I am [X Ortega]’”. Rather than relevant as the expression of a view, this evidence suggests that X may be confused with a surname that does not include her mother’s surname. This is one of the matters, dealt with further below, which I consider in my decision to order that X be known as X Ortega‑Collier.
X’s developmental, psychological, emotional and cultural needs
X is not yet attending formal schooling or daycare. Ms Ortega cares for her personally, tailoring her part-time work hours as a professional in her father’s business around that care. She has some assistance from her mother and sister. Ms Ortega gave oral evidence that, apart from times X has spent with her father, the longest time X has been away from her mother is during the hearing of this matter. X will attend pre-school in 2025 on Wednesdays and Thursdays with the possibility of a third day on Friday. She will commence primary school in 2026.
Ms Ortega gave evidence that when X was spending time with her father pursuant to the 2021 orders, she would become “anxious and very attached” both before and after the visits, and would take “the best part of the week” after returning to the mother’s care to settle down, during which time she would exhibit behaviours including nail biting, teeth grinding and physical aggression towards the mother (mother’s affidavit filed 26 August 2024 at paragraphs 69-70). According to Ms Ortega, X’s dysregulated behaviour would be “heightened” when her time with her father occurred in Brisbane (mother’s affidavit filed 26 August 2024 at paragraph 71). Ms Ortega also deposed that X had a tendency “to seek out breastfeeding more frequently” prior to and in the aftermath of her weekends with her father, particularly in respect of the Brisbane visits, and that her night time routine would become prolonged and characterised by comfort-seeking behaviour (mother’s affidavit filed 26 August 2024 at paragraphs 43, 72). I accept that X has shown anxious behaviour in her mother’s care after spending time with Mr Collier.
Ms B identified that – assuming the Court accepts Ms Ortega’s evidence in relation to X’s behaviour on return from her father, and having regard to what Ms B herself observed – X suffers from separation anxiety. In the presence of her mother, X was observed to be “needy” and seeking close physical proximity, “as if there was something that she needed protection from” (Transcript 5 September 2024, p.302 lines 20–25). Ms B opined that such behaviour related to the separation involved when X would spend time with her father. In oral evidence she retracted her evidence that X has an “anxious attachment” with her mother and indicated that, rather, she was of the opinion that X suffers from separation anxiety. I accept that evidence.
In oral evidence, Ms B was uncritical of Ms Ortega’s approach to parenting X, including the fact that X co-sleeps with her and is still breastfed, opining that “… a lot of families do co‑sleep … and it doesn’t mean that the child’s not going to grow up into an independent young person”, and that although it is “more common” for children have ceased breastfeeding at X’s age, her continuation of this practice is evidence of the “very special” relationship between X and her mother, such that it was too simplistic, from this fact alone, to characterise their relationship as co-dependent (Transcript 4 September 2024, p. 268 lines 25–40). I accept that evidence.
Ms B opined that the way to deal with X’s separation anxiety is for changes to X’s arrangements to progress relatively slowly, such that X can adjust. I accept that evidence and it is the reason why I have made orders progressing time (including holiday time) more slowly than Mr Collier seeks- although not as slowly as Ms Ortega seeks.
The capacity of each of the parents to meet X’s needs
Apart from their inability to develop a cooperative parenting relationship, including their inability to communicate effectively with each other, I am satisfied that both parents have good capacity to meet X’s needs.
I have referred to the fact that both parents have shown themselves willing to make considerable personal sacrifices for X. This demonstrates their commitment to her and their capacity to meet her needs.
The supervision reports which became Exhibits F6 and F7 are evidence of Mr Collier’s emotionally attuned, loving and careful approach to the care of X and of her love for and enjoyment of her time with him. Ms Ortega gave evidence that these reports provided her with some comfort, although she was reluctant when giving oral evidence to concede that they showed parental capacity outside of the limited context of supervision.
I was invited to make various criticisms of Ms Ortega and her capacity to meet X’s needs. Some criticism was made of Ms Ortega’s questioning, during preparation for the hearing, of whether Mr Collier had genuinely moved to Sydney or remained living primarily in Brisbane and was commuting to Sydney as and when required. That criticism of Ms Ortega was also implied by Ms B. I can make no criticism of Ms Ortega in this regard, in circumstances where the first set of proceedings had been conducted by Mr Collier on the basis that there was simply no option for him to relocate to Sydney. He had sought an order in those proceedings that Ms Ortega be required to move to Brisbane. Orders had been made on the basis he would remain in Brisbane. As it turns out, he was able to move to Sydney a very short time later – albeit in the unusual circumstances of the Covid lockdowns and border closures. Had the litigation been conducted on the basis that it was possible for him to move to Sydney and that he would do so if he could, these further proceedings and all their associated costs and stress might have been avoided. Ms Ortega’s questioning of whether there had in fact been a move and attitude towards to the move itself, if it had in fact occurred, is therefore understandable. This does not detract from the fact that Mr Collier’s decision to move to Sydney is to his credit in that it demonstrates his commitment to X.
Criticism was also sought to be made of Ms Ortega’s approach to her concerns that X was being physically harmed by her father and/or his parents. In particular, it was put to her that she was disingenuous in expressing concerns in circumstances where she had not previously done so, notwithstanding she first noticed a bruise on X on 10 February 2022 (mother’s affidavit filed 26 August 2024, paragraph 79). Ms Ortega provided cogent evidence about these matters and that was not shaken in cross examination. Her approach must be seen in light of the conversation, which I accept occurred in 2020 prior to separation, to the effect that Mr Collier regarded physical discipline as appropriate (mother’s affidavit filed 26 August 2024, paragraph 86), as well as an understandable lack of trust given the limited opportunity which she had to see Mr Collier as a parent during their relationship and what she observed of X’s behaviour. Ms Ortega had attempted on a number of occasions to clarify with Mr Collier how X’s bruises might have occurred and received inadequate responses from him. For example, on 15 July 2022 she emailed Mr Collier about a bruise on X’s bottom which Mr Collier had not mentioned at changeover. She specifically asked “[c]ould you please let me know how this happened as she’s never had a bruise on her bottom before”. Mr Collier responded “[h]i [Ms Ortega], I don’t know, she’s a happy, normal very active child and runs and falls over. Thanks” (this email exchange was Exhibit M11). A more helpful response would have included information about whether he had observed the bruise himself and what specifically may have caused it.
Ms Ortega gave evidence about an “escalation” in her concerns in mid-2024, for reasons including X returning from her father’s care with bruises, saying concerning things, and exhibiting changed behaviour. In all the circumstances, it was not unreasonable for Ms Ortega to report her concerns to the Department of Communities and Justice. It was not unreasonable for her to require time be supervised while an investigation took place. Importantly, she has reasonably adjusted her position as further material has become available to her, including the supervision reports, the police interview with X, the Family Report of Ms B and the subsequent confirmation by Ms B that, having viewed the police interview, her recommendations remained unchanged. Ms Ortega has not sought a finding that physical discipline occurred, nor a conclusion that X is at an unacceptable risk of harm. She gave honest evidence that she still has concerns.
During her cross examination, Ms B, having been told that Ms Ortega had ongoing concerns about Mr Collier’s behaviour towards X, agreed with the proposition that there was a “significant need” for X to spend time with Mr Collier as a “counterbalance” to the potential subsistence of Ms Ortega’s views about Mr Collier (Transcript 5 September 2024, p.291 lines 30–35). She also observed that although X is receptive to Ms Ortega’s views about Mr Collier, whether intentionally expressed to X or otherwise, it is possible for these views to “gradually be changed through the child’s own experience”, and that to this end, it would be to X’s benefit for Ms Ortega to support her in pursuing a positive relationship with her father (Transcript 5 September 2024, p.291 line 45 to p.292 line 5). I accept this evidence. It is one of the reasons why I have progressed time for X with her father more quickly than Ms Ortega seeks.
X’s parents share the same cultural background and I am satisfied that they are both able to, and are, meeting her cultural needs by allowing her to experience and share in all aspects of that culture that are important to them.
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so
Under either parent’s proposal, X will be able to benefit from relationships with both her parents and from her loving and involved extended paternal and maternal families.
At one stage during her oral evidence, Ms B indicated she was not confident that a time would come where X, when at the mother’s household, would feel that her relationship with her father was supported (Transcript 5 September 2024, p. 310 line 10). This contrasted with Ms B’s earlier observation that there was no suggestion that X, when in her father’s presence, felt she had to obscure her love for her mother, and her agreement with the suggestion, put to her during cross-examination, that Mr Collier provided greater support for X’s relationship with her mother (Transcript 4 September 2024, p.266 line 40 to p.267 line 5). In those circumstances, it was her evidence that X’s time with Mr Collier needed to progress to five nights a fortnight, so that X has significant time with her own significant experiences of Mr Collier and his household, which can provide a balance against Ms Ortega’s negative view of Mr Collier and his household (Transcript 5 September 2024, p. 291 line 30 to p.292 line 5 and p.310 lines 10–15) . I accept Ms B’s evidence. Ultimately, and to her credit, Ms Ortega consented to a progression to a 9/5 arrangement- although not until Term 2 2027. Ms B’s evidence on this matter is one of the reasons why I have progressed time more quickly than Ms Ortega seeks.
RESOLUTION OF ISSUES AND ORDERS TO BE MADE
Responsibility for major long-term decision-making
The parents agree that there should be an order that they are jointly responsible for making major long-term decisions for X. I am satisfied that such an order is in X’s best interests.
Ms B recommended that the parents share parental responsibility and, when asked about the lack of cooperation between the parents, opined that the parents had not tried hard enough to build that cooperation. I agree that is the case, but, irrespective of fault, I am concerned to avoid the situation where there is a disagreement over a health issue between the parents which may involve an extensive dispute and may only be able to be resolved by further litigation.
Given the findings I have made above at paragraphs 42–47 and my general findings about the state of the parents’ relationship and their lack of ability to cooperate, I am satisfied that it is in X’s best interests for there to be a mechanism for decision-making in relation to health in the absence of agreement between her parents. I will therefore make the order sought by Ms Ortega that there be a mechanism for consultation about major long-term medical decisions for X, but that Ms Ortega will ultimately be able to make decisions for her in the event the parents cannot agree. Ms Ortega has been dedicated and diligent in her care of X, including in relation to medical matters, and can be trusted to make decisions which are in X’s best interests. She will be required to provide Mr Collier with details of the decisions that she makes pursuant to this mechanism.
The parents both sought an order in relation to appointments with specialised medical practitioners. Such an order may cause confusion, given that the making of such appointments may be a decision about a major long-term medical issue for X and that Order 3 covers those circumstances. Other orders made by consent entitle both parents to obtain medical information and I am satisfied that those orders are sufficient to meet X’s best interests and I do not make the order sought in relation to specialist medical appointments.
Ms Ortega sought that this dispute resolution mechanism extend to making major long-term educational decisions for X. The parents did, after a long period of disputation, reach an agreement about when X would start school and the schools which she would attend, including high school. Both seek orders embodying that agreement and, in those circumstances, I find that the prospect of disputes over major long-term education decisions is minimal. For that reason, and also because of the benefit to X of having both of her parents’ input into educational decisions, I decline to make an order enabling Ms Ortega to make such decisions absent agreement between the parents.
Time
By the conclusion of the hearing, the major dispute between the parties was not the amount of time X would ultimately have with her father (with Ms Ortega proposing five nights and Mr Collier proposing six), but rather how quickly that time would increase and how it would be configured.
Significant in my decision about the progression and configuration are the following:
(1)Ms B’s evidence that X suffers from separation anxiety and that changes should therefore occur quite slowly, with the stage of progression past the three-night arrangement (that is, the four-night arrangement) remaining in place for 12 months;
(2)Ms B’s evidence of the need to balance this graduated progression of time with X’s need for more time with her father and experience of his household;
(3)Ms B’s oral evidence that there is benefit to progressions occurring either towards the end of one school year or after a term of the new one (Transcript 5 September 2024, p.293 line 45 to p.294 line 5);
(4)That it is desirable to minimise changeovers and that, where possible, they occur to and from school;
(5)That Ms B expressed a preference for overnight time to be in one block a fortnight because it is less disruptive to X but also that both parents have proposed a “split arrangement”;
(6)That there is benefit in the final arrangement being such that X is with her father on the same night each week (but for one overnight in one week and four overnights in the other).
There is a need to balance moving slowly so as to address X’s separation anxiety with the need for X to experience more time with her father and in his household. In those circumstances the orders I have made progress more quickly than Ms Ortega proposes, but less quickly than Mr Collier’s proposal.
On an interim basis, I ordered that X recommence overnight time with Mr Collier, but that it be for two nights a fortnight (rather than the previous three), and a day in the other week. Ms B recommended that arrangement remain in place for a period of perhaps two months and then return to the three nights arrangement. The interim arrangement commenced on 6 September 2024, and I order that the arrangement remain in place until 1 November 2024, to accord with the recommendation of Ms B. Because of Ms B’s evidence that it would be preferable to do so, I have made the next stage three nights in one block, rather than a “split” arrangement. That also ensures that X has a full weekend with Mr Collier, as well as time in the “off week”. That is stage 1 of the spend time orders.
X will start pre-school in 2025 and that will be her first experience of being in care without her mother present. It will be a big change for her. She will attend pre-school on Wednesdays and Thursdays, with the possibility of adding a Friday at some stage. In those circumstances, I will make orders which progress time to four nights a fortnight after X has completed a term at pre‑school. I have kept this in one block because of Ms B’s evidence that this arrangement will be easier for X. She will continue to have “after school” time in the other week. That is stage 2 of the spend time orders.
That arrangement will then remain in place for 12 months. At the end of Term 1 2026, when X has been at Kindergarten for a term, the final stage will commence, being a 9/5 arrangement in two blocks to accommodate both parents’ preferences for overnight time in both weeks. It also has the benefit that X will be in the care of Mr Collier each Thursday night in term time.
This final stage will be a 9/5 arrangement in school terms, rather than an 8/6 arrangement as Mr Collier seeks. That is consistent with the recommendation of Ms B, who resisted in cross examination the proposition that, because of X’s exposure to differing interpretations of her father’s behaviour, her time with him ought to be premised on the notion of “a maximum exposure” (Transcript 5 September 2024, p. 292 lines 20–30). While Ms B was clear that X’s time with Mr Collier should progress to five nights a fortnight, she did not recommend a progression beyond that (Transcript 5 September 2024, p.310 lines 5–15). Apart from the recommendation of Ms B, a significant part of my decision not to progress time beyond five nights during school terms are the findings I have made in relation to the parties’ poor co‑parenting relationship and communication, and what I assess as the limited prospects of that improving. A 9/5 arrangement provides X with appropriate access to, and experience of, her father and his household, while requiring a little less coordination and cooperation than a 8/6 or equal time arrangement would.

The orders I will make for school holiday time almost entirely reflect the recommendations of Ms B and I am satisfied they reflect a developmentally appropriate, graduated approach to enable X to have blocks of holiday time with her father but not be separated from her mother for too long, too early. There will be one extended weekend after Christmas this year, and additional school holiday time will start after X has had a term at pre-school.
I have made a special order in relation to the holiday at the end of Term 1 2025 because that will coincide with Easter (Orthodox and Australian Easter being on the same weekend in 2025), and X’s first extended holiday period with her father should not be interrupted by time with her mother over Easter. For that reason, if her weekend with her father coincides with Easter in 2025, X will instead spend the first weekend of the school holidays with her father.
Holiday time will progress such that, by 2027, school holiday time with be equal. I have considered whether the orders should provide for holiday time to stay at week about over the summer holiday period. It will be in X’s best interests to be able to have more extended time with each of her parents over the summer holiday period at some stage- including to enable them to take her overseas if they wish to do so. It may be difficult for the parents to agree to vary the ordered arrangements in that way. By the summer holiday at the end of 2029 X will be nine, nearly 10, and I am satisfied will cope with a more extended period of time away from each of her parents. For that reason I have progressed summer school holiday time to large blocks from that summer holiday- as Mr Collier seeks.
In relation to special occasion time the most significant difference between the parties was whether Christmas and Australian Easter should be divided between the parents, such that X has time with each of them on those special occasions (as Ms Ortega seeks), or should be alternated (as Mr Collier seeks), and whether there should be special orders dealing with Orthodox Easter (as Ms Ortega seeks) or not (as Mr Collier seeks). There was no expert evidence on that issue and no relevant submissions were made.
In circumstances where both extended families celebrate and value their Country J culture and Orthodox Easter, I accept that it is in X’s interests to be able to share Orthodox Easter with both sides of her family and so have made orders which provide for “special occasion” time at both Orthodox and Australian Easter in the event they occur on different weekends.
I have considered that much of Mr Collier’s extended family live in Brisbane and that it is reasonable for him to want to be able to take X to spend each alternate Christmas with them. I have also considered that he does have extended family living in Sydney and his parents and brother and his brother’s family travel to Sydney from time to time, so an extended family Christmas in Sydney is possible. I also accept that it would be a very significant change for X not to spend any time on Christmas Day or at Easter with her mother even each alternate year. The orders sought by Ms Ortega also have the benefit that the short periods of time (one or two nights) involved will not interrupt too significantly the holiday time with the other parent that may coincide with the special occasions. If Mr Collier’s orders sought in relation to Easter are made, that would involve a period of three nights potentially interrupting the other parent’s holiday time at the end of first term.
Change of name
It is generally accepted that an order allowing a parent to change a child’s name is a parenting order, and requires the application of the best interests considerations in s 60CC to the extent that they are relevant to that particular issue, although best interests is not the sole consideration for the Court (Reynolds & Sherman (2015) FLC 93-659 “Reynolds & Sherman”)).
The early cases were largely concerned with the situation where a mother had commenced using a surname for the child which was the surname of the children’s step-father. The classic exposition of the law on the question of a change to a child’s surname in this context is Chapman & Palmer (1978) FLC 90-510. That case concerned an application to restrain the mother from using a surname for the children other than the father’s. The Court emphasised (at p. 15) that the welfare of the child (as the principle was then expressed) is the paramount consideration. At 19, the Court summarised the factors to which regard should be had as:
“[t]he short and long term effects of any change in the child’s surname”; “[a]ny embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control [as it then was]”; “any confusion of identity which may arise for the child if his or her name is changed or is not changed”; “[t]he effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage”; “[t]he effect of frequent or random changes in name”.
In a similar context, the following further matters were identified as relevant in Beach & Stemmler (1979) FLC 90-692 at 78,693:
The advantages both in the short term and in the long term which will accrue to the children if their name remains as it is now [;] The contact that the husband has had and is likely to have in the future with the children[;] The degree of identification that the children now have with their father[;] The degree of identification which the children have now with their mother and their stepfather[;] The degree of identification which the children will have with the child that is about to be born to their mother and any likely confusion in the future in their father’s surname is restored[;] The desire of the father that the original name be restored[.]
In more recent cases, courts have considered the question of whether a child’s surname should be changed to include the mother’s surname. Those cases include A & B (No 2) [2003] FMCAfam 530 (“A & B”); Reynolds & Sherman, and Zachariah & Zachariah [2017] FamCA 482 (“Zachariah”).
In A & B, the mother applied for the child, who had the father’s surname, to have a hyphenated surname which included her own surname. The mother’s application was successful, with the Court finding that the hyphenated surname reflected the reality of the child’s life living with the mother and having an ongoing relationship with the father. The circumstances of the child’s life were different from those which existed at the time of the child’s birth, when the parents had consented to the child having the father’s surname. The Court found it was in the best interests of the child to have a surname which reflected their parentage, and it was noted that to refuse either parent’s name could be interpreted as a statement that one of the names was inferior.
A similar application was involved in Zachariah. The child’s surname was registered as the father’s at birth, and the mother was also using the father’s surname at that time. The Court allowed the change of name to a hyphenated surname. The Court noted at [14] that “parents should not necessarily be bound to agreements made prior to separation, especially where it is appropriate for the name to be changed”. The father’s concern that, were the child’s surname to be hyphenated, his surname would fall out of use over time was dismissed on the basis that the parents had agreed to an injunction restraining them from using any other name for the child (at [19]).
Each case will turn on its own facts. Here, neither party gave more than brief evidence as to the issue of the change of X’s name. Mr Collier’s evidence was as follows:
27. I oppose [Ms Ortega’s] application for a change of name. I seek that [X’s] name remain “[X Collier]”. At or around [X’s] birth, [Ms Ortega] and I had several discussions as to what to name [X]. [Ms Ortega] and I agreed that [Ms Ortega] would select [X’s] first and middle name, chosing [sic] names important to the maternal family […], and that [X] would have the surname, [Collier].
28. I believe that the addition of [Ortega] to [X’s] surname to create an overly long and cumbersome name for [X], that is likely to create challenges particularly as many forms have limits as to the amounts of characters that can be added as names. I am concerned that [Ms Ortega] will ultimately cause the name [Collier] to be omitted, particularly given the cumbersome nature of the hyphenated surname proposed.
29. [X] knows that she is a member of both the [Collier] family and [Ortega] family, and I do not consider the request for a change of name to be child-focussed.
In oral evidence, Mr Collier first indicated that an injunction restraining the parties from using any other surname than Ortega-Collier would not reassure him that Ms Ortega would refrain from using the name Ortega to the exclusion of Collier. Ultimately, he changed that evidence and accepted that an injunction would serve that purpose.
Ms Ortega’s evidence at paragraphs 218-223 of her affidavit filed 26 August 2024 was:
218. I seek an order that [X’s] surname be [Ortega-Collier].
219. [Mr Collier] and I separated when [X] was [less than one year] old. She has only known a life of separated parents.
220. [Mr Collier] uses both [X’s] first and last name when referring to her in my hearing or in written correspondence in relation to her. At changeover he calls out to her, “[X Collier]!”. He did the same at the Single Expert report interviews, calling out “[X Collier]! [X Collier]!” repeatedly, when he saw her. If I sent an email with “[X]” in the title, he almost always changes the title for the response to be “[X Collier]”.
221. I attempt not to use my surname with any frequency in front of [X], with the intention that [X] not be made aware, until she is a little older, that we have different names. However, she has taken to saying “I am [X Ortega]”.
222. My hope and intention is that it is a powerful message to [X] if she shares both our names, that she is from two families that love her. I do not think that is achieved to the same extent by [Ms B’s] suggestion at Paragraph 203 of her report where she opines “it may be worth considering that ‘[Ortega]’ be added as an additional middle name, rather than having a very long and cumbersome hyphenated last name” especially in circumstances where [Ms B] did not discuss this issue with me. [X] knows other children with hyphenated last names and I have no concern that she will think this is anything other than normal.
223. An Order being made in relation to the change of [X’s] surname will also resolve a major long-term decision between [Mr Collier] and I.
When Ms B’s suggestion, as contained at paragraph 203 of the Family Report, that the name Ortega be incorporated as an additional middle name rather than a surname, was put to Ms Ortega, she expressed the view that having Ortega as a surname would “make a difference” to X’s perception of how much she is loved by her maternal and paternal sides of the family (Transcript 4 September 2024, p.254 line 40 to p.255 line 5).
The only specific s 60CC factors which are relevant to my decision in relation to the change of X’s name are X’s needs, and X’s views.
In relation to her needs, I accept that X may experience embarrassment or confusion if she has a surname which does not include her mother’s surname, particularly in circumstances where she has always been in the primary care of Ms Ortega and will continue to be. Ms Ortega’s evidence is to the effect that there is some confusion already. There is no evidence of X’s views other than that evidence. Mr Collier has raised the fact that, if hyphenated, X’s name will be long and cumbersome. I have considered that matter but also the fact that, in multicultural Australian society, long and purportedly complicated surnames are common.
If X’s name is to be changed, now is a good time for that to happen. She is not yet in formal schooling, and will commence that schooling in 2025. She will be able to be enrolled in pre‑school and then school with her hyphenated surname and will not face the potential embarrassment of a change during her schooling years.
Parents’ interests are relevant to some extent given that “[w]hile the children’s interests are paramount, their interests are not the sole determinant of parenting orders under Part VII …” (Franklyn & Franklyn [2019] FamCAFC 256 at [28] citing AMS v AIF (1999) 199 CLR 160 at 207, 225, 230 and U v U (2002) 211 CLR 238 at 282). Parents’ interests must give way if inconsistent with X’s best interests. The “change of name” case law summarised above indicates that, notwithstanding it is not a “best interests” factor, the parents’ previous agreement as to X’s surname is relevant to my decision. That agreement was reached in a context where the parents were engaged to be married. There is no evidence to suggest that during their relationship, at the time the parties became engaged or at any point during their short engagement, Ms Ortega had intended to take Mr Collier’s surname, nor that any discussion took place between the parties regarding X’s name in the lead-up to her baptism into the Orthodox church (father’s affidavit filed 26 August 2024, paragraphs 44-45, 269; mother’s affidavit filed 26 August 2024, paragraph 4). Mr Collier deposed that around the time of X’s birth, he and Ms Ortega reached an agreement that she would choose X’s first and middle names, both being significant names within the maternal family, and that X would bear Mr Collier’s surname only (father’s affidavit filed 26 August 2024, paragraph 28). This evidence was not contradicted by Ms Ortega in her oral or affidavit evidence. When asked in the course of cross examination whether the absence, during the course of the first proceedings, of an application to change X’s surname was due to her belief at that time that it was “best” for X’s surname to remain as Collier, Ms Ortega indicated “it’s not something that I actually turned my mind to, at that point in time” (Transcript 4 September 2024, p.252 lines 5–35). Ms Ortega indicated that, in anticipation of her filing an application in these proceedings to change X’s name, there had been no discussions with Mr Collier about this topic (Transcript 4 September 2024, p.252 line 45 to p.253 line 5). I do not attach significant weight to an agreement which was predicated on assumptions (that the parents would be married) and which ultimately did not reflect reality.
In contemporary Australian society, Ms Ortega has a reasonable interest in having her surname included in X’s surname, just as Mr Collier has a reasonable interest in X’s surname containing Collier. The hyphenated surname accommodates both of those reasonable interests and cannot negatively impact X’s relationships with her parents. Ms B suggested consideration of Ortega as one of X’s middle names. Middle names are rarely used, and I do not regard the inclusion of Ortega as a middle name for X as addressing the issues considered here, nor do I accept, as Mr Collier would have me do, that the inclusion of X’s middle name meets Ms Ortega’s interests in the matter.
I am satisfied that allowing Ms Ortega to change X’s surname is consistent with X’s best interests and is otherwise an appropriate order to make. It would not be in X’s best interests for either parent to use a different surname from the one to which it is changed and for that reason, and to provide reassurance to Mr Collier in particular, I injunct the parents from using any other surname for X than her new hyphenated surname once that new hyphenated surname is registered.
Restraints and other orders
Ms Ortega sought an order that Mr Collier undertake parenting courses as a way of mitigating any risk. Mr Collier gave evidence that he had undertaken a Parenting Orders Program over six weeks in 2021, a Circle of Security program in 2021 and another parenting course. To his credit, he gave evidence that he was prepared to undertake further courses. He was not willing to consent to an order that he do so. Mr Collier undertaking such courses and providing Ms Ortega with evidence of this is likely to provide her with some reassurance and may assist with the matter going forward. However, because Mr Collier has already undertaken relevant courses, and because of my assessment of his parenting capacity, and my assessment that there is no unacceptable risk to X in his care, I am not prepared to make an order to that effect. I have made a notation.
Mr Collier was prepared to consent to a restraint on him using physical discipline against X or allowing anyone else to do so, but only if that was mutual. Ms Ortega did not consent to a mutual order. Both parents’ positions are reflective of their entrenched inability to agree. In particular, I would have thought that there was nothing to be “lost” by Ms Ortega in agreeing to a mutual order. There is in place the provisional ADVO which restrains Mr Collier from the relevant conduct. I am satisfied that, given the ADVO was applied for by police and not Ms Ortega, s 114(2A) of the Act does not prevent me from making the restraints sought by Ms Ortega. However, I am not satisfied that it is appropriate to make an injunction under s 68B of the Act for the personal protection of X in circumstances where I am satisfied that she is not at unacceptable risk of harm in Mr Collier’s care.
Ms Ortega seeks that, unless the parents agree otherwise, international travel not occur until X is age nine. Mr Collier instead seeks that international travel occurs from the commencement of 2027, when X will be about to turn seven. Given that, under my orders, X will be spending extended holiday time with Mr Collier from the conclusion of Term 1 2025 for half school holidays from Term 1 2027, it is consistent with X’s best interests for her parents to be able to take her on international holidays during her time with them from the commencement of 2027, as Mr Collier seeks. I make that order. Apart from the date of commencement, the parents agree as to the form of the international travel and passport orders and I make the orders sought by them. I am not satisfied on the evidence that an order restricting unaccompanied travel for X beyond what the airlines permit is appropriate. I am satisfied that both parents will make decisions about X’s travel which are appropriate for her and which take account of any particular needs she has at the time.
The parents agree that X needs stability and security and to spend most of her time, including her weekend time, in the Sydney area. They both seek restraints which would limit certain travel for X to once every six weeks. Ms Ortega says the limitation should be on travel for X outside a 150-kilometre radius of Sydney. Mr Collier sees that the limitation should be on travelling outside New South Wales. Ms Ortega’s major concern has been that X should not travel to Brisbane more than once every six weeks. The restraint posed by Mr Collier meets that concern. There is no reason why Mr Collier should not be able to take X to, for example, Newcastle, more frequently than once every six weeks. I am making (and Ms Ortega is seeking) parenting orders which will entrust Mr Collier with the care of X. In those circumstances I am not prepared to “micromanage” his parenting by restricting X’s travel by more than is consented to. I am not satisfied that the restraint sought by Ms Ortega is required by X’s best interests and I therefore will make the more limited restraint in the form sought by Mr Collier. For the same reasons, I do not make Order 37 as sought by the mother or what were described as Orders 20 [sic] (b) or 20 [sic] (c) as sought by the father- namely that the parents be restrained from “Interrogating [X] about the child’s time with the other parent” or “Discussing these proceedings and/or parental matters with or in the presence or hearing of [X]”.

Ms B recommended that the parties engage a parenting coordinator. Both parents gave evidence that they believed they would benefit from a parenting coordinator. I had no evidence before me about what costs may be involved. The parents could not agree on how fees for the parenting coordinator should be paid, nor who should nominate the three possible coordinators from which the other would select one. Ms Ortega gave evidence that she could not afford to contribute and sought that Mr Collier pay all the costs. Mr Collier ultimately sought that Ms Ortega pay 25 per cent of the costs, making the submission that a requirement to contribute would encourage Ms Ortega to engage with the process. I directed the parties to file financial statements within seven days of the conclusion of the final hearing. That direction was not complied with. In any case, in circumstances where the evidence is that both parties have the assistance of their extended families, particularly with legal fees, it is unlikely that those financial statements would assist me to determine this issue.
For the reasons set out in paragraph 106 above I have decided I have insufficient evidence before me to make an order for the appointment of a parenting coordinator. I will make notations recording the parties’ agreement that they would benefit from one. It is certainly my view that a parenting coordinator may be of assistance.

I certify that the preceding one hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Behrens.
Associate:
Dated: 14 October 2024
ANNEXURE A
[Annexure omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)].
ANNEXURE B
[Annexure omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)].
ANNEXURE C
[Annexure omitted to comply with Part XIVB of the Family Law Act 1975 (Cth)].

File number(s):	SYC 6345 of 2022
Judgment of:	BEHRENS J
Date of judgment:	14 October 2024
Catchwords:	FAMILY LAW – PARENTING – Spend time with and progression of such time – Child experiences separation anxiety but needs more experience of the father and his household – Need to balance those matters – Prior allegations of physical discipline in the father’s household – Mother no longer seeks finding of unacceptable risk of abuse in father’s care – Lengthy period of litigation – No trust and ineffective communication between the parents – Where otherwise parents both have good parenting capacity – Where both parents seek an order for joint decision-making responsibility – Where mother seeks she be able to make certain decisions in the absence of agreement – Where such an order should be made to reduce the risk of further litigation –Where the mother seeks to change the child’s name to a hyphenated surname – Where such an order should be made – Where parents seek appointment of parenting coordinator – Where insufficient evidence as to appointment of parenting coordinator – Where orders made for time spent with father to progress – Where limited restraints are made
Legislation:	Family Law Act 1975 (Cth) ss 60CC, 60CG, 61DAA, 68B, 114(2A) Family Law (Child Abduction Convention) Regulations 1986 (Cth) reg 10 Births Deaths and Marriages Registration Act 1995 (NSW) s 28(5) Family Law Amendment Bill 2023 (Cth), Explanatory Memorandum Hague Convention on the Civil Aspects of International Child Abduction
Cases cited:	A & B (No 2) [2003] FMCAfam 530 AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Beach and & Stemmler (1979) FLC 90-692 Chapman & Palmer (1978) FLC 90-510; [1978] FamCA 86 Franklyn & Franklyn [2019] FamCAFC 256 Reynolds and Sherman (2015) FLC 93-659; [2015] FamCAFC 128 Rice & Asplund (1979) FLC 90-725; [1978] FamCA 84 U v U (2002) 211 CLR 238; [2002] HCA 36 Zachariah & Zachariah [2017] FamCA 482
Division:	Division 1 First Instance
Number of paragraphs:	107
Date of last submission/s:	5 September 2024
Date of hearing:	2-5 September 2024
Place:	Sydney
Senior Counsel for the Applicant:	Ms Dellidis SC
Junior Counsel for the Applicant:	Ms Fisken
Solicitor for the Applicant:	H Drakos & Company
Counsel for the Respondent:	Ms Dart
Solicitor for the Respondent:	Broun Abrahams Burreket

SYC 6345 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR COLLIER Applicant
AND:	MS ORTEGA Respondent

ORDER MADE BY:	BEHRENS J
DATE OF ORDER:	14 OCTOBER 2024