Paolo & Malena - [2022] FedCFamC2F 81

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Paolo & Malena [2022] FedCFamC2F 81

File number(s): CAC 432 of 2018

Judgment of: JUDGE W J NEVILLE

Date of judgment: 3 February 2022

Catchwords: FAMILY LAW – Final Hearing – parenting – serious allegations of family violence against the Father by the Mother – where Mother contends that the Father is a risk to herself and the children – Father has at all times denied allegations – allegations of risk and family violence unsubstantiated – Court unable to make findings whether allegations occurred – where independent experts suggest that the Mother is either disingenuous and or delusional – whether children should continue in a shared care arrangement or live primarily with Father – where there is a greater risk of psychological harm posed by the Mother, favouring an increase in the Father’s parenting role as a protective measure for the children – Orders made for sole parental responsibility and that the children live with the Father and spend substantial time with the Mother.

Legislation: Evidence Act 1995 (Cth), s.140
Family Law Act 1975 (Cth), Part VII, ss.60CC, 61DA, 65DAA

Cases cited: A v A (1998) FLC 92-800
Amador v Amador (2010) 43 Fam LR 268
AMS v AIF (1999) 199 CLR 160
Collu & Rinaldo [2010] FamCAFC 53
Fox v Percy (2003) 214 CLR 118
Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102
Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422
Johnson & Page (2007) FLC 93-344
Lee v Lee (2019) 266 CLR 129
M v M (1988) 166 CLR 69
M v S (2008) 37 Fam LR 32
Mazorski v Albright (2007) 37 Fam LR 518
McCall v Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC 93-375
Sigley v Evor (2011) 44 Fam LR 439
Simmons & Kingley (2014) FLC 93-581
Vontek v Vontek [2017] FamCAFC 28

Division Division 2 Family Law

Number of paragraphs: 110

Date of last submission/s: 16 June 2021

Date of hearing: 22 & 23 April 2021

Place: Canberra

Solicitor for the Applicant: Neilan Stramandinoli Family Law

Counsel for the Applicant: Dr J Behrens

Solicitor for the Respondent: Jeanine Lloyd & Associates

Counsel for the Respondent: Dr S Leslie

Solicitor for the Independent Children's Lawyer: Legal Aid ACT
ORDERS

CAC 432 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PAOLO
Applicant

AND:
MS MALENA
Respondent

LEGAL AID ACT
Independent Children’s Lawyer

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

3 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The Applicant Father has sole parental responsibility for the children:
a.X born in 2012; and
b.Y born in 2015.

2.Notwithstanding Order 1, the Applicant Father will notify the Respondent Mother of any major long-term decisions which he is proposing to make for the children or either of them with as much notice as practicable, will invite and consider any response received from her in a timely fashion, and will notify her of the decision which he makes.
3.The parents will notify each other as soon as practicable of any medical emergency, diagnosis or treatment involving the children or either of them.
4.The Applicant Father will authorise any relevant medical practitioner to communicate with the Respondent Mother in relation to the children's medical matters.
5.The Applicant Father will authorise any school, pre-school or day care facility which the children or either of them attends to communicate with the Respondent Mother in relation to the children, and will authorise and direct any such school, pre-school or day care facility to provide to the Respondent Mother any report, photograph or other like communication, and this Order is authority to any such school, pre-school or day care facility to do the things provided for in this Order.

Live with and spend time with arrangements during school terms
6.The children will live with the Applicant Father and spend time with the Respondent Mother during school terms on a monthly basis as follows:
a.In each week except the week commencing the first Saturday of the month, from after school/pre-school/3pm on Monday until 9am or before school/pre-school on Wednesday;
b.In the week commencing the first Saturday of the month, from Saturday after the children's sports matches until 9am or before school/pre-school on Wednesday.

7.The Respondent Mother is at liberty to attend at any school events or extra-curricular activities for the children or either of them which parents are generally invited to attend.

School Holidays
Term Holidays
8.The children spend one half of the Term 1, 2 and 3 school holidays with their parents for half of all such holidays, commencing with the Applicant Father in the first half in all even-numbered years, and with the Respondent Mother in the first half in all odd-numbered years. For the purposes of this Order, the first half of the school holidays commences after school on the last day of school, and concludes at 5pm on the middle Saturday. The second half of the school holidays commences at 5pm on the middle Saturday and concludes at school on the first day of school.

Term 4/Christmas Holidays
9.During the Term 4/December/January school holiday period in 2021 the children will live in a week about pattern, commencing with the Mother in the first week, commencing the last day of the school term and concluding at 5pm on Boxing Day, and with changeover thereafter to occur at 5pm each Sunday except for the last Sunday in the school holiday period, when the children will remain with the parent in whose care they have been in that last week.
10.On Christmas Day 2021, the Mother will facilitate a Facetime/WhatsApp call with the Father at 10am.
11.From and including the Term 4/December/January school holiday period commencing 2022, the children will spend time with their parents on a 2 week: 2 week: 1 week: 1 week basis, commencing with the Father in 2022 and each alternate year thereafter and with the Mother in 2023 and each alternate year thereafter.
12.For the purposes of Order 11, the first two week block will commence on the last day of the school term, and changeover will thereafter occur on the day of the week which was the last day of the school term at 5pm, and if there are any additional days of school holidays after both parents have had a block of two weeks and a block of one week, the Father shall have the remaining time on the first occasion and each alternate occasion after that, and the Mother on the second occasion and each alternate occasion after that.

Special occasions
13.For each of the children's and parents' birthdays each year, the parent who the children are living with or spending time with on the night of those respective birthdays will facilitate a Facetime/WhatsApp call with the other parent at 10am on a non-school day and at 4pm if it is a school day, on the child's or parent's birthday.
14.Notwithstanding anything to the contrary in these Orders:
a.the children live with the Respondent Mother from 7pm on the Saturday that falls immediately before each Mother's Day until 7pm on Mother's Day; and
b.the children live with the Applicant Father from 7pm on the Saturday that falls immediately before each Father's Day until 7pm on Father's Day.

15.Notwithstanding anything to the contrary in these orders, the children will live with the Applicant Father from 9am on Good Friday until 4.30pm on Easter Monday in years ending in an odd number; and with the Respondent Mother from 9am on Good Friday until 4.30pm on Easter Monday in years ending in an even number.

Changeover
16.For the purposes of these Orders, and unless otherwise agreed in writing by the parties, changeover shall occur at the children's school or day care centre when the children are attending school/day care and at Store B in Suburb C on all other occasions. In the event the Respondent Mother does not wish to attend a face-to-face changeover with the Applicant Father, the Respondent Mother will arrange for a third party to attend changeovers on her behalf. The Applicant Father is at liberty to arrange for a third party to attend changeovers on his behalf.

Other
17.The parents will communicate with one another in writing via the Talking Parents app (including email and text message) in relation to the arrangements for the children, and their care, welfare and development.
18.The parties will respond to the communication sent in the Talking Parents app within 24 hours of the message being sent, and will answer any reasonable question posed by the other in an appropriately detailed and business-like way.
19.Ms Malena born in 1984, her servants and/or agents are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the said children X born in 2012 and Y born in 2015 from the Commonwealth of Australia for a period of 5 years.
20.IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children's names on the Watch list for the said period, or until the Court orders its removal.
21.Neither party will denigrate the other, nor allow any other person to do so, in the presence of hearing of the children or either of them.
22.The Applicant Father is at liberty to enrol and/or maintain enrolment for the children in extra-curricular activities, and will provide the Respondent Mother with all relevant details in a timely fashion, and should those extra-curricular activities fall on days the children are due to be in the Respondent Mother's care, the Respondent Mother will ensure the children are taken to these extra-curricular events.
23.Within 14 days of the date of these Orders, or as soon as practicable thereafter, the Respondent Mother will attend upon a psychologist, and will:
a.provide the psychologist with the Family Report of Dr D, his Honour's Reasons for Judgment, and a copy of the Final Orders made in this matter;
b.continue to attend upon and comply with the recommendations of the psychologist- including any recommendation for attendance upon a psychiatrist- for as long as the psychologist recommends.;
c.upon making the initial appointment with the psychologist, notify the Applicant Father of the name and contact details for the psychologist;
d.the Respondent Mother will authorise and direct the psychologist to provide to the Father a letter indicating whether she has complied with the aspects of this Order of which the psychologist has personal knowledge, within 3 months of the date of these Orders, and each 6 months thereafter.

24.In the event the psychologist recommends that the Respondent Mother attend upon a psychiatrist, the Mother will:
a.attend as soon as practicable upon the psychiatrist;
b.comply with the recommendations of the psychiatrist;
c.upon making the initial appointment with the psychiatrist, notify the Applicant Father of the name and contact details for the psychiatrist;
d.authorise and direct the psychiatrist to provide to the Father a letter indicating whether or not she has complied with his or her recommendations, within 3 months of the date of her attending upon a psychiatrist, and each 6 months thereafter.

25.The Contravention Applications filed by the Father on 4 February 2019 and 7 May 2019 are discontinued, without admissions and without prejudice to his ability to file a further Contravention Application based on the facts alleged there in the event he alleges that the Mother is in any further breach of Orders of this Honourable Court.

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

The Respondent Mother in these parenting proceedings, which concern the two children of the relationship (nine year old X and six year old Y; either “the boys” or “the children”), made (and continues to make) extremely grave allegations against the Applicant Father. Summarised, the allegations are that, during the relationship, the Father held (a) a shotgun to the Mother’s head threatening to kill her, (b) a large kitchen knife to the Mother’s throat also threatening to kill her, and (c) drove at approximately 200 kilometres per hour with the Mother and the children in the car, threatening to kill the whole family.[1]
[1] Apart from these incidents being recorded in multiple Affidavits filed by the Mother, they were referred to on multiple occasions in the course of the hearing. See, for example, Transcript (22^nd and 23^rd April 2021) at pp.70 – 73, 75 – 83, 86 – 88, 90 – 93 and 100 – 101. Hereafter, references will be simply “T” followed by the relevant page number.
In the course of her oral evidence, the Mother also claimed that during the relationship she had been raped by the Father on more than one occasion.
The Father denied all of the Mother’s allegations.
Curiously and unfortunately, the Mother never reported or even mentioned any of these very serious allegations to any of the following: (a) her psychologist, (b) domestic violence crisis services, (c) the police, (d) the local Magistrates Court when applying for a Family Violence Order, (e) her previous lawyers,[2] or (f) either of two independent experts (psychologist, Dr E, in June 2018, and psychiatrist, Dr D, in November 2019).[3] To some of the persons mentioned, the Mother said that she did give information of the assaults and threats by the Father to them but, for reasons unknown, no such grave matters were recorded. Indeed, as noted below, a number of the Reports of the experts (personal and independent) strongly refuted the Mother’s accounts. The Mother went so far as to contend that the experts were professionally negligent in not recording, and/or consistently mis-recording what she said in the course of her consultation with them.[4]
[2] Although at times unrepresented, in the course of the litigation the Mother confirmed that she had used 10 different lawyers to act on her behalf. T 137.
[3] References to the Mother’s “non-reporting” of the allegations may be found in the following places in the Transcript: T 81 – 82, 109, 121, and 132. It should be noted however that at par.50 of Dr E’s June 2018 Report, there is a summary of these allegations. Likewise, in summary fashion, at par.8 of Dr D’s Report, there is mention of incidents involving “a gun and knives on several occasions in front of the children.”
[4] See T 114 – 115, 121.
The Mother said that she made notes of the incidents that gave rise to her allegations. Unfortunately again, neither the diary in which she said she recorded the events in question, nor the separate electronic records that also had some accounts of the said events, could be found or recovered.[5]
[5] T 109 & 153.
The Mother’s stance was perhaps neatly or conveniently recorded in the following exchange:[6]
HIS HONOUR: But are you suggesting effectively that Mr Paolo was sort of like a Jekyll and Hyde character?‑‑‑Pardon, sorry?
Are you suggesting that Mr Paolo is effectively a Jekyll and Hyde character? You know, that he appears of this kind, genial, jovial fellow in these circumstances but he completely changes character in other circumstances and that he becomes this dastardly, sinister, lethal fellow?‑‑‑Yes, your Honour. Yes.
Would you accept, though, that there’s nothing, for example, in either Dr E’s or Dr D’s reports that would support such a diagnosis of almost like a schizophrenia, that he’s this character on some times and he’s this character – a completely different character – on others? Would you accept that? That there’s nothing in either of those two expert reports that suggests that there’s any such character traits in Mr Paolo?‑‑‑From the reports?
Yes?‑‑‑Yes, your Honour.
[6] T 93.
A little later in her evidence on the second day of the trial, there was the following further exchange (emphasis added):[7]
Your concerns that Mr Paolo wants to kill you and the kids?‑‑‑Well, yes, that was right at the time.
Yes?‑‑‑Yes.
So what has happened between then and now to change your mind or do you still worry about that?‑‑‑Well, Mr Paolo does still relay some very distressing messages through the children.
So do you still worry that Mr Paolo wants to kill you and the kids?‑‑‑I think if Mr Paolo had the opportunity to come to me, yes, I think he would.
He would kill you and he would kill the kids?‑‑‑Yes.
HIS HONOUR: Why would he do that?‑‑‑Because there’s so much resentment and there’s so much anger and, obviously, from what has happened, I still believe that he is a danger to me.
And the children?‑‑‑Not so much the children but myself in particular, yes.
[7] T 126 – 127.
To the Father, to the Court experts noted, and to the Independent Children’s Lawyer (“the ICL”), the boys consistently expressed a strong desire to spend more time with the Father. As noted later in these reasons, such enthusiasm was, and is, inconsistent with the trauma the Mother alleges the children have suffered, and continue to suffer, as a result of the Father’s actions towards her, some of which (on her evidence) was committed in front of at least the older child, X.
Among many tragedies and serious anomalies in this matter was the Mother’s evidence. The Mother clearly believes that the Father has perpetrated serious, indeed appalling, violence against her, and that he continues to pose a grave risk to her, and now to a lesser degree, to the children. Apart from her own evidence, there is no other evidence to support her remarkable and troubling claims. Indeed, there is very significant, independent evidence that disproves and dispels them. The Mother presents (and has done so throughout the length of these long proceedings) as a smart, studied and finely-crafted attractive/engaging, intelligent and child-focussed person. Yet her evidence in so many respects bordered completely on the surreal. She would have the Court believe that (a) she alone knows the truth of the Father’s character, and his malevolence (towards her and the children) and deadly intent, and (b) she alone has been the source of all light and truth in the relationship and continues to be so in relation to the children. Yet not only has she never told experts and authorities over a very significant period of time what she has endured but also she has been assessed by two highly qualified and experienced experts that, for example, she is either disingenuous and or delusional in her appraisals, particularly of the Father. Were the Mother’s accounts to be believed, it has meant that the Father has been such a skilful actor over such a long period that he has beguiled and hood-winked two independent experts, the ICL, and the Court, into believing that (i) he is not a monster, (ii) he loves and cares for his children (and that the boys adore him – they love their Mother also), (iii) he has their best interests at heart, and (iv) he poses no relevant threat either to the Mother or to the children.

For my part, I do not accept the Mother’s evidence primarily because of the very significant weight of evidence against it. Moreover, her account of so many events was incredible – literally. Her report of so many events would require the Court to make astonishing findings against the Father that were not, and are not, credibly open on any piece of evidence – individually or cumulatively. It would also require the Court to find that the Father’s presentation and consistent narrative – over a good many years – was so contrived and misleading that he should change careers and become an actor, so convincing was he as a witness. But the Mother would not, on any aspect of the evidence, countenance that she could be wrong in any way. Her infallibility was complete and resolute in every respect.[8]
[8] See, for example, T 120.
In her typically thorough way, the ICL set out summarily, but in appropriate detail, relevant evidence of the parties and the findings she urged on the Court. In my view, her submissions were almost sufficient by themselves to determine the parenting issues that concern the children. Subject only to what follows, I agree with, accept and adopt the submissions of the ICL, which are somewhat mirrored by those filed on the Father’s behalf, whose submissions I also accept.
Indeed, while the ICL’s and the Father’s submissions addressed directly the Mother’s evidence, unsurprisingly, they each did so in slightly different ways. For example, the Father’s submissions went through specific documents contained in his Tender Bundle, which focussed particularly upon what I will call here the “threat allegations” by the Mother against the Father. These related in particular to allegations (already noted) of the threat to kill the Mother with a shotgun, on another occasion with a knife, and thirdly, by driving at great speed with the Mother and children in the car. The documents to which the Mother was taken, in my view, highlight even more graphically, how improbable and deeply unfortunate the Mother’s repeated accusations against the Father are. As stated in the Mother’s own submissions (par.4): “The Court could not, on the evidence before it, make a finding that the family violence occurred.” That is certainly, and the least, the Court could and should do here. The concession by the Mother’s Counsel regarding the extreme and diverse allegations of family violence was proper and appropriate.
In the light of what follows, I strongly prefer the Father’s evidence to that of the Mother whenever there is any inconsistency between them. As noted in the discussion of the parties’ evidence below, the long history of alleged severe family violence (including threats to kill the Mother and the children) perpetrated by the Father against the Mother (and sometimes said to have been undertaken in front of the children) was never reported by the Mother to police, to care and protection authorities, to her psychologist, to domestic violence services (“DVCS”), or to any close friend. The Father denied any and all such allegations.
Consistent with the Father’s account and contrary to the Mother’s, the children strongly want to spend more time with him. The children’s consistent disposition and reports to two highly experienced report writers support the Father’s much more irenic account of his relationship with the children (and with the Mother for the most part) and is completely inconsistent with the Mother’s account of volatility and much else set out in detail below.
The Mother is a significantly articulate and forceful personality. At times in the course of the litigation, she was self-represented. She firmly believes without the slightest doubt that the family violence she alleges actually occurred. In my view, the evidence available to the Court strongly undermines the Mother’s belief and position. On the evidence, there are clear mental health issues regarding the Mother. For example, in her 28^th November 2019 Report, psychiatrist Dr D stated (at pars.111, 400 and 402 respectively) that if the Mother “truly believed these [certain accusations regarding the use of poison on the boys] to be true they constituted persecutory delusions”, and that the Mother’s world view was “either delusional or disingenuous.”[9]
[9] The Family Reports by psychologist, Dr E, (in June 2018), and by psychiatrist, Dr D, (in November 2019) were admitted into evidence as, respectively, Exhibits A and C. Neither expert was required for cross examination. Details from these Reports are set out later in these reasons.
Regrettably and concerningly, the Mother consistently refused to acknowledge any such issues. She confirmed in her evidence that, even if the boys were stopped from spending any time with her until she obtained a mental health assessment, she said that she would refuse to undertake such an examination.
It follows from what has just been said, and what follows, that the Orders sought by the Father, with which the ICL agrees, are in the best interests of the boys, pursuant to s.60CA of the Family Law Act 1975 (Cth) (“the Act”).
Applicant’s Orders sought
1.The Applicant Father has sole parental responsibility for the children:
X born in 2012; and
Y born in 2015.
2.Notwithstanding Order 1 above, the Applicant Father will notify the Respondent Mother of any major long-term decisions which he is proposing to make for the children or either of them with as much notice as practicable, will invite and consider any response received from her in a timely fashion, and will notify her of the decision which he makes.
3.The parents will notify each other as soon as practicable of any medical emergency, diagnosis or treatment involving the children or either of them.
4.The Applicant Father will authorise any relevant medical practitioner to communicate with the Respondent Mother in relation to the children’s medical matters.
5.The Applicant Father will authorise any school, pre-school or daycare facility which the children or either of them attends to communicate with the Respondent Mother in relation to the children, and will authorise and direct any such school, pre-school or daycare facility to provide to the Respondent Mother any report, photograph or other like communication, and this Order is authority to any such school, pre-school or daycare facility to do the things provided for in this Order.
Live with and spend time with arrangements during school terms:
6.The children will live with the Applicant Father and spend time with the Respondent Mother during school terms on a monthly basis as follows:
7.In each week except the week commencing the first Saturday of the month, from after school/pre-school/3pm on Monday until 9am or before school/pre-school on Wednesday;
8.In the week commencing the first Saturday of the month, from Saturday after the children’s sports matches until 9am or before school/pre-school on Wednesday.
9.The Respondent Mother is at liberty to attend at any school events or extra-curricular activities for the children or either of them which parents are generally invited to attend.
School Holidays:
Term Holidays
10.The children spend one half of the Term 1, 2 and 3 school holidays with their parents for half of all such holidays, commencing with the Applicant Father in the first half in all even-numbered years, and with the Respondent Mother in the first half in all odd-numbered years. For the purposes of this Order, the first half of the school holidays commences after school on the last day of school, and concludes at 5pm on the middle Saturday. The second half of the school holidays commences at 5pm on the middle Saturday and concludes at school on the first day of school.
Term 4/Christmas Holidays
11.During the Term 4/December/January school holiday period in 2021 the children will live in a week about pattern, commencing with the Mother in the first week, commencing the last day of the school term and concluding at 5pm on Boxing Day, and with changeover thereafter to occur at 5pm each Sunday except for the last Sunday in the school holiday period, when the children will remain with the parent in whose care they have been in that last week.
12.On Christmas Day 2021, the Mother will facilitate a Facetime/WhatsApp call with the Father at 10am.
13.From and including the Term 4/December/January school holiday period commencing 2022, the children will spend time with their parents on a 2 week: 2 week: 1 week: 1 week basis, commencing with the Father in 2022 and each alternate year thereafter and with the Mother in 2023 and each alternate year thereafter.
14.For the purposes of Order 11, the first two week block will commence on the last day of the school term, and changeover will thereafter occur on the day of the week which was the last day of the school term at 5pm, and if there are any additional days of school holidays after both parents have had a block of two weeks and a block of one week, the Father shall have the remaining time on the first occasion and each alternate occasion after that, and the Mother on the second occasion and each alternate occasion after that.
Special occasions:
15.For each of the children’s and parents’ birthdays each year, the parent who the children are living with or spending time with on the night of those respective birthdays will facilitate a Facetime/WhatsApp call with the other parent at 10am on a non-school day and at 4pm if it is a school day, on the child’s or parent’s birthday.
16.Notwithstanding anything to the contrary in these Orders:
(a)       the children live with the Respondent Mother from 7pm on the Saturday that falls immediately before each Mother’s Day until 7pm on Mother’s Day; and
(b) the children live with the Applicant Father from 7pm on the Saturday that falls immediately before each Father’s Day until 7pm on Father’s Day.
17. Notwithstanding anything to the contrary in these orders, the children will live with the Applicant Father from 9am on Good Friday until 4.30pm on Easter Monday in years ending in an odd number; and with the Respondent Mother from 9am on Good Friday until 4.30pm on Easter Monday in years ending in an even number.
Changeover:
18.For the purposes of these Orders, and unless otherwise agreed in writing by the parties, changeover shall occur at the children’s school or day care centre when the children are attending school/day care and at Store B in Suburb C on all other occasions. In the event the Respondent Mother does not wish to attend a face-to-face changeover with the Applicant Father, the Respondent Mother will arrange for a third party to attend changeovers on her behalf. The Applicant Father is at liberty to arrange for a third party to attend changeovers on his behalf.
Other:
19.The parents will communicate with one another in writing via the Talking Parents app (including email and text message) in relation to the arrangements for the children, and their care, welfare and development.
20.The parties will respond to the communication sent in the Talking Parents app within 24 hours of the message being sent, and will answer any reasonable question posed by the other in an appropriately detailed and business-like way.
21.Ms Malena born in 1984, her servants and/or agents are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of the said children X born in 2012 and Y born in 2015 from the Commonwealth of Australia for a period of 5 years.
AND IT IS REQUESTED that the Australian Federal Police give effect to this order by placing the names of the said children on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the children’s names on the Watchlist for the said period, or until the Court orders its removal.
22.      Neither party will denigrate the other, nor allow any other person to do so, in the presence of hearing of the children or either of them.
24.      The Applicant Father is at liberty to enrol and/or maintain enrolment for the children in extra-curricular activities, and will provide the Respondent Mother with all relevant details in a timely fashion, and should those extra-curricular activities fall on days the children are due to be in the Respondent Mother’s care, the Respondent Mother will ensure the children are taken to these extra-curricular events.
25.      Within 14 days of the date of these Orders, or as soon as practicable thereafter, the Respondent Mother will attend upon a psychologist, and will:
a.       provide the psychologist with the Family Report of Dr D, his Honour’s Reasons for Judgment, and a copy of the Final Orders made in this matter;
b.      continue to attend upon and comply with the recommendations of the psychologist- including any recommendation for attendance upon a psychiatrist- for as long as the psychologist recommends.;
c.      upon making the initial appointment with the psychologist, notify the Applicant Father of the name and contact details for the psychologist;
d.      the Respondent Mother will authorise and direct the psychologist to provide to the Father a letter indicating whether she has complied with the aspects of this Order of which the psychologist has personal knowledge, within 3 months of the date of these Orders, and each 6 months thereafter.
26.      In the event the psychologist recommends that the Respondent Mother attend upon a psychiatrist, the Mother will:
a.      attend as soon as practicable upon the psychiatrist;
b.      comply with the recommendations of the psychiatrist;
c.      upon making the initial appointment with the psychiatrist, notify the Applicant Father of the name and contact details for the psychiatrist;
d.      authorise and direct the psychiatrist to provide to the Father a letter indicating whether or not she has complied with his or her recommendations, within 3 months of the date of her attending upon a psychiatrist, and each 6 months thereafter.
27.      The Contravention Applications filed by the Father on 4 February 2019 and 7 May 2019 are discontinued, without admissions and without prejudice to his ability to file a further Contravention Application based on the facts alleged there in the event he alleges that the Mother is in any further breach of Orders of this Honourable Court.
Respondent’s Orders sought
1.That the Applicant Father and the Respondent Mother shall have equal shared parental responsibility for the children, X born in 2012 and Y born in 2015.
Care Arrangements
2.That unless otherwise agreed in writing, the children shall live with the parties on a week about basis with changeovers at F Contact Centre on Wednesdays.
3.That each parent shall facilitate a Facetime call between the children and the non-resident parent, with the call to be initiated by the resident parent, on Sundays at 6:00pm and as otherwise requested by the children.
4.That the parent with who the children are residing will facilitate a Facetime call between the children and the other parent on Christmas Day at 9:00am.
Special Occasions
5.That notwithstanding the above orders, the children shall spend time with the Mother at Christmas time in odd years and with the Father in even years, and with the Mother having the first half of the care of the children for the Summer holidays in odd years starting from the end of term 4, and the Father having the second half in even years.
School and Medical Matters
6.   Each parent shall keep the other informed of:
a. The name and contact details for each of the children's doctors, health care and other treatment providers; and
b. Any school, education facility or extra-curricular activity provider for the children.
7.The parties shall authorise any relevant medical practitioner to communicate with the other parent in relation to the children’s medical matters and this Order authorises each parent to communicate with the children's medical practitioners in relation to the children’s medical matters.
8.The parents will notify each other as soon as practicable of any medical emergency, diagnosis or treatment involving the children or either of them.
9.The parents will authorise any school, pre-school or daycare facility which the children or either of them attends to communicate with the other parent in relation to the children, and each parent will authorise and direct any such school, pre-school or daycare facility to provide to the other parent any report, photograph or other like communication, and this Order is authority to any such school, pre-school or daycare facility to do the things provided for in this Order.
10.Both parents are at liberty to attend at any school events for the children or either of them which parents are generally invited to attend and are permitted to be within 100m of each other during any such activity.
11.Each parent will notify the other within 24 hours of the event if they intend to attend any school event.
Communication
12. Theparents will communicate with one another in writing via the Talking Parents app (including email and text message) in relation to the arrangements for the children, and their care, welfare and development.
13. The parties shall respond to the communication sent in the Talking Parents app within 24 hours of the message being sent.
14. Neither party will denigrate the other, nor allow any other person to do so, in the presence of hearing of the children or either of them.
15. That the parties shall be restrained by injunction from discussing the proceedings or the contents of any documents filed in or intended for use in these proceedings to or matters relating to allegations of family violence with or in the presence or hearing of the children or any of them and from permitting any other person to do so.
16. The parents are restrained from changing the children's school without written agreement from the other parent in the Talking Parents app.
Travel
17.That neither parent shall take the children overseas without an Order of the Court.
The Applicant Father’s evidence
The Father’s oral evidence was relatively limited both in duration and scope of issues addressed. Summarised, his evidence was as follows.
The Father confirmed that since December 2019, the children have been living with the parents in a week-about arrangement. He confirmed also that his relationship with the children had continued to grow and improve over the period of time since the consent Orders of 2019.[10] This was in circumstances where, as a result of the Mother’s severe allegations against him, for some time, the Father was spending only supervised time with the boys. The Father confirmed that he was asking the Court to change the current arrangements that had been in place for more than a year and a half at the time of the trial. He said that the boys still wanted to spend more time with him notwithstanding the week-about arrangement, which he also confirmed was going relatively well. He acknowledged that if the Court acceded to his request for the boys to spend more time with him, and conversely less time with their Mother, the children would likely miss their Mother to some degree.[11]
[10] T 22.
[11] T 24.
The Father said that one of the reasons he is seeking a significant change in the living/spend time with arrangements is because the parents, on his account, cannot effectively communicate. He said that it was pretty much a “one-way street” because the Mother does not, or refuses to, engage with him regarding the welfare of the children. This is so notwithstanding the use of a “Parenting App.” Further, he confirmed that outside of his attempts to communicate with the Mother via that App, he has no communication with her.

The Father was shown a very significant number of printed out messages between the parties. Some of the messages he was shown were replicated in the Tender Bundle.[12] In my view, they showed, over a reasonable period of time, quite reasonable communication between the parties. On the face of these alone, the Father’s contention that the Mother did not respond to inquiries by him was not supported. That said, some of the “responses” were simply or directly to the effect that his inquiry should be directed to her lawyers [at the time]. Put another way, the communication evidenced by these “messages” taken from the parenting App was decidedly “spare.” Thus:[13]
And so there’s no, actually, answer required because there’s nothing. You’re just providing her with information so she knows dates and times and things?‑‑‑Yes.
Yes. So you’re sending her information and she’s acknowledging receipt of that information?‑‑‑Yes.
That’s a fair characterisation? And if this is the only method of communication that you have, if you don’t talk in person, you don’t send text messages, you don’t send emails – all of that’s correct, isn’t it?‑‑‑Yes.
No emails; no text messages; no in person. This is the method of communication?‑‑‑Yes.
[12] There was an earlier Tender Bundle that became Exhibit B. The later Tender Bundle, again from the Father, was marked for identification (MFI1). Marked sections of that Bundle were later formally tendered.
[13] T 29.
Various other issues relating to “communication” were canvassed, such as the Mother’s ongoing difficulties in getting information (on her account) from one or more of her various lawyers, or regarding the quality of sleep the boys were getting. Respectfully, and with no criticism intended, not much was gained by traversing these and similar matters. Perhaps this was simply a reflection that, as all knew at the trial (but never formally stated), the weight and moment of the evidence clearly indicated that the “main game”, so to speak, was patently on the Mother’s evidence, as well as on the assessments of the experts.
The Father maintained that he denied the Mother’s allegations of family violence, including when she sought a family violence Order in the local Magistrates Court, which was granted on a “without admissions” basis. The Father consented to this Order.[14] He was taken through a range of specific allegations. Given the gravity of them, it is as well to set them out in full, thus:[15]
[14] T 33.
[15] T 33 – 35.
At various parts of your evidence, both in your affidavit and in what you told both of the different family reporters, so Dr E and Dr D, you have categorically denied that you’ve ever behaved violently towards Ms Malena or the children; that’s correct, isn’t it?‑‑‑Yes, correct.
Yes. And you say that you’ve never acted in a way that’s controlling?‑‑‑No.
Right. So Ms Malena makes a number of allegations. I’m going to give you the opportunity just to quickly respond to each of them, because I ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ understand your overall position being that it just didn’t ‑ ‑ ‑?‑‑‑Didn’t happen.
‑ ‑ ‑ occur. Have you ever locked her and the children in the laundry?‑‑‑Never.
Have you ever threatened to drive into a pole?‑‑‑No.
You ever told her that, if she left you, you would kill her and the children?‑‑‑No.
You’ve never gone through her phone?‑‑‑No.
Have you ever gone through her phone bill to see who she had been calling?‑‑‑No.
No – not even to see how much she had been spending?‑‑‑No.
No. You’ve never asked her to tell you what she had been telling her psychologists?‑‑‑No.
No? Never threatened to kill her in her sleep?‑‑‑No.
Have you ever coerced her into performing oral sex on you?‑‑‑No.
No? You say you didn’t throw a drink on her at the wedding in 2017?‑‑‑No.
And you’ve never spoken to your parents after separation telling them how you wanted to kill her?‑‑‑No.
So that’s primarily, as I understand it, the allegations that she made in relation to the family violence, except for there’s also an incident about a knife, so I will just ask you some slightly different questions about that. Is it your understanding that, when Ms Malena says that – and I just want to understand this in relation to making sure I’ve got your evidence correctly – when Ms Malena says that you’ve threatened her with a knife, what type of knife do you understand that she is talking about, or do you not know?‑‑‑I do not know. She does make reference to a large kitchen knife.
Kitchen knife. There’s also a reference in the material to a Stanley knife as well, isn’t there?‑‑‑Yes.
Yes. Do you carry a Stanley knife for work?‑‑‑For work and it stays in the van.
It stays in the van?‑‑‑Yes.
So the Stanley knife never would have come into the house with you?‑‑‑Not my work one. But yes, no.
No. The mother says you’ve threatened her with a knife on multiple occasions in 2017, so it’s your evidence that that has never occurred?‑‑‑Never occurred.
Yes?‑‑‑No.
Have you ever had an altercation, either verbal or physical, with anybody at your workplace?‑‑‑No.
No? And you understand, don’t you, that the mother says you once threatened to throw an employee – and that employee is unnamed so I can’t give you that name – off the 10^th floor of a work site; you understand that she has made that allegation?‑‑‑Yes.
Yes. And you say that didn’t happen?‑‑‑No.
Right. You say you’ve never had a gun licence?‑‑‑Never.
Is that correct?‑‑‑No.
Have you ever owned a gun?‑‑‑No.
No? Have you ever borrowed one from ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ someone else? And have you ever held a gun ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ Mr Paolo? Never held a gun?‑‑‑No.
Have you ever threatened to say anything to her family or to have threatened her family if she left you?‑‑‑No.
No.
HIS HONOUR: And you’ve never threatened that you would make her a pair of concrete boots?‑‑‑No.
DR LESLIE: I’ve left that one out, your Honour, thank you.
So you make a submission at paragraph 17 of your affidavit that you believe that making what you say are untrue allegations against you – and this is your words – “impacts her ability to encourage my relationship with the children”; you recall putting that at paragraph 17 of your affidavit?‑‑‑Yes.
As the above section from the Transcript also makes clear, part of the Father’s case was that the Mother’s actions and attitude towards him undermined (or had either the object or potential) to undermine his relationships with the children. This was put to him directly:[16]
[16] T 36 – 37.
… you say there have been times that the children have said things to you that make you concerned that their mother is trying to undermine their relationship with you?‑‑‑Yes.
She makes the same allegations about you saying things to the children about her that are unpleasant, doesn’t she?‑‑‑Yes.
You don’t say there’s actually any problem with your relationship with the children, though, do you?‑‑‑No.
And if she’s trying to undermine your relationship with the children, fundamentally, she’s just doing a very bad job, isn’t she?‑‑‑Yes.
And the mother has made similar allegations against you since separation, hasn’t she?‑‑‑Yes.
She has made them to the police?‑‑‑Yes.
She has made them to the Magistrates Court?‑‑‑Yes.
She has made them to this court?‑‑‑Yes.
She has made them again in a subsequent FVO to the Magistrates Court?‑‑‑Yes.
Yes. And she has repeatedly made them in affidavits, including her most recent trial affidavit, hasn’t she?‑‑‑Yes. Yes.
And you say these things just didn’t happen?‑‑‑Yes.
It followed from this line of questioning that, be the allegations true or false, the Mother plainly believes them to have occurred. The Father accepted that it was a possibility that the Mother fervently believed the incidents she detailed against the Father actually occurred.[17]
[17] T 38 & 40.
The Father confirmed that (a) he can only control the time with the boys when they are with him, and (b) it was (in my words) to minimise the risk to the children being exposed to the Mother’s [ongoing] inaccurate if not delusional claims against the Father that he sought their time with her to be reduced. In his words, “to lessen the blow”.
Working with relatively little or modest material, the Mother’s Counsel pressed the Father about the strength of the Mother who continues to facilitate the children’s time with the man she believes to be something of a monster who has perpetrated gross acts of violence against her.[18] He readily agreed that the children loved their Mother, that she loves and cares for them, and that they have a strong bond with her.[19]
[18] See T 40.
[19] T 41.
The Father confirmed that, thus far, there had been no discussion with the Mother regarding what secondary school the boys would attend. This was in the context, among other things, where, on an earlier occasion the Mother had unilaterally, and without prior notice to the Father, changed X’s school. This occurred, the Mother said, to deal with an issue of bullying about which the principal of the school at the time had no knowledge.
There was much discussion, rarely very productive, about issues concerning hand-over – who would/could attend and the like. I do not need to canvass this material save to note that there was – unsurprisingly – a difference in the views of the parents as to whether the children coped (or even liked) using the contact centre for changeovers. This issue and related matters were also traversed briefly with the ICL – again which I need not detail further here.[20]
[20] Among other places, see T 57 – 58.
The Father confirmed that the boys have a close and affectionate relationship with the paternal Grandparents, which was recorded in the Reports of Dr E and Dr D.[21]
[21] T 62.
Mr Paolo’s evidence was straight-forward and uncomplicated. He was a genial, under-stated witness with no discernible “agenda”. He was child-focussed. I have no reason to doubt his evidence. I accept his denials of the grave allegations levelled against him by the Mother. Among other things, his evidence was strongly supported by the Reports from Dr E and Dr D.
The Respondent Mother’s evidence
The Mother’s oral evidence was rather more complex, convoluted and relevantly more challenging than was the Father’s. A regular feature in family law litigation readily on display here was a witness (here the Mother most particularly) not answering the question asked and otherwise giving a response that simply confirmed her earlier Affidavit evidence. As summarily as possible, it was as follows.
An early area of contest and general difficulty regarding the Mother’s evidence concerned her allegation that the Father had attempted (and or threatened) to kill her (on different occasions) with a shotgun, and at a different time, with a large kitchen knife. A couple of examples from her evidence is instructive on multiple levels, thus:[22]
[22] T 70 – 71. The shotgun incident was said to have taken place in May 2017. See T 75.
… you wouldn’t be asking the court to make orders for equal shared parental responsibility and equal time if it was true that – and this is at paragraph 89(l) of the mother’s trial affidavit – it was true that Mr Paolo put a shotgun to your head and said, “I will kill you like a pig.” You wouldn’t be asking the court to make those orders if that was true, would you?‑‑‑Yes.
HIS HONOUR:   Why?‑‑‑No. I’m sorry. No. Sorry.
Sorry. You’re now saying no?‑‑‑Sorry, can you re-ask the question?
DR BEHRENS:   Yes?‑‑‑Sorry.
You wouldn’t be asking the court to make orders for equal shared parental responsibility and equal time if it was true that Mr Paolo put a shotgun to your head and said, “I will kill you like a pig”?‑‑‑He did put a shotgun to my head.
HIS HONOUR:   No, sorry, that’s not the question. Just try and listen to the question and answer yes or no if you can.
DR BEHRENS:    You wouldn’t be asking the court to make orders for equal shared parental responsibility and equal time if it was true that Mr Paolo put a shotgun to your head and said, “I will kill you like a pig”, would you?‑‑‑No.
So are you saying that it’s not true now that Mr Paolo put a shotgun to your head and said, “I will kill you like a pig”?‑‑‑No. It’s true that he did put a shotgun to my head.
Well, so that bit is true, you’re saying?‑‑‑Yes.
And you’re also saying it’s true that you’re asking for an order for equal shared parental responsibility and equal time?‑‑‑Yes.
And I’m putting it to you quite directly that those two things are totally inconsistent. You agree or disagree?‑‑‑Disagree.
HIS HONOUR:   Why?‑‑‑Because the children have been spending time for the last year and a half in the separate care – the family violence was on myself and the children. Now that we are separated, and even though it’s not the best of the situation, um that was the past and that happened to me. And just changing it now from what it has been is not going to alleviate the fact that that actually happened in our household.
DR BEHRENS:   Ms Malena, if someone had done that to you or to any other person, that person should be in jail; do you agree?‑‑‑Yes, of course.
And that person should certainly not see their children; do you agree?‑‑‑Yes. I do agree.
And so by coming to this court and saying you want orders for equal time and equal shared parental responsibility, I put it to you that what flows from that is that you must not believe that Mr Paolo put a shotgun to your head and said, “I will kill you like a pig.” You must not believe that?‑‑‑No, I disagree.
So you do believe that? You do believe that Mr Paolo put a shotgun to your head and said, “I will kill you like a pig”?‑‑‑Yes, I do. Yes.
HIS HONOUR:   And you also heard the father’s evidence earlier today that he doesn’t own and has never owned a gun or pistol of any sort; yes?‑‑‑Yes.
But you say that he just happened to have a shotgun?‑‑‑Yes.
That he went and got it, did he, or did he just have it lying around or ‑ ‑ ‑?‑‑‑Yes. He did. I didn’t know where it came from. All I know it was in my home.
DR BEHRENS:   I’m going to be asking you in some detail about these allegations and what you have and haven’t reported and showing you various documents covering a period of time. Just for the moment, though, I want to put three other propositions to you. You wouldn’t be asking the court to make these orders if Mr Paolo had raised a large kitchen knife to your throat on several occasions in the kitchen in front of the children saying, “It would be nice to slice you up, piece of shit.” That’s paragraph 97 of the mother’s trial affidavit, your Honour. Again, you wouldn’t be asking the court to make orders for equal shared parental responsibility and equal time if that was true, would you?‑‑‑Mmm.
No? Is that what you said?‑‑‑Can you ask the question again, please?
It’s exactly the same as the last one, except I substituted the shotgun example with this example. Mr Paolo had raised a large kitchen knife to your throat on several occasions in the kitchen in front of the children, saying, “It would be nice to slice you up, you piece of shit.” Paragraph 97 of your trial affidavit. If that was true, or if you believed it was true, you wouldn’t be seeking the orders you’re seeking now, would you? Again, someone who did that should be in jail and they should never see their children; do you agree?‑‑‑Yes, I do agree.
And is that where you think Mr Paolo should be?‑‑‑I do think that’s where he should be.
There were similar exchanges regarding the Mother’s allegation that the Father drove at over 200 kilometres per hour with the children and her in the car while threatening to kill the whole family.[23]
[23] See T 72.
The Mother was asked about the matters set out in Dr D’s Report to the effect that the Mother had a long history of mental health difficulties, and Dr D’s assessment that the Mother’s serious assertions about the Father indicated that she was either disingenuous or delusional. The Mother denied all of these matters.[24]
[24] T 73 – 74.
The Mother was asked to explain how she could reconcile, on the one hand, the severe allegations against the Father, which acts she remained adamant the Father had actually committed against her, and on the other, still basically making the children available to spend time with the Father. The Mother’s responses were as follows (emphasis added):[25]
[25] T 74 – 75.
And, again, if those things actually happened, including some of them in your children’s presence or involving a threat to your children, how can you possibly contemplate an order for equal time or indeed any time for Mr Paolo with the children?‑‑‑Because there was a period of time where there were supervised visits and time where it gradually obviously progressed.
So, what, that means we forget about everything ‑ ‑ ‑?‑‑‑No.
‑ ‑ ‑ all these terrible things he did?‑‑‑No.
You say he did. No? Well, can you explain it? Because I’m sure his Honour is baffled and I certainly am?‑‑‑Well, unfortunately living in domestic violence, it’s actually hard when you’re isolated and scared for your life each and every day and you try to make things work and support each other. But obviously you’re scared for your life, that’s why.
How does that explain why you’re seeking the orders that you’re seeking that you ‑ ‑ ‑?‑‑‑Well it’s not that I’m seeking – obviously as time has progressed and I have put submissions forward in regards to our parenting we’ve – for the last year or so, you know, the children have expressed that they want to spend equal time with each other. So, moving forward, obviously in the interests of the children and we’ve got – I’ve got my violence order in place that keeps the safety on myself. It’s just moving forward.
It’s moving forward. And forgetting about or trying to put behind you that the father of your children put a shotgun to your head and said, “I will kill you, you pig”?‑‑‑It’s not forgetting. It’s moving forward. Because I’m alive and I’m here and I got out when I could. And I saved myself and my children at that time.
I might take you back because you said that you got some assistance just before you separated from Mr Paolo. Some assistance to escape from the domestic violence; is that right?‑‑‑Yes. That’s correct.
And you went to – who did you get assistance from?‑‑‑It was one of the – obviously on the phone line. My psychologist actually referred me on due to the conversations that we had. And then it was the contact – the client contact when you ring through.
So, what, was that the Domestic Violence Crisis Service?‑‑‑Yes.
Yes. So you had a good relationship with your psychologist, you felt you could tell her things?‑‑‑Yes.
The Mother confirmed that her psychologist at this time was Ms G, whom she trusted, and with whom she would have shared these terrible incidents. Curiously and unfortunately, the psychologist recorded no such grave events. By reference to the psychologist’s clinical notes from the time, the following exchange should be noted (emphasis added):[26]
[26] T 76 – 78. The clinical notes in question here are dated 19^th October 2017.
And you will see that she is talking with you about your family situation. You will see that you reported to her:
Ms Malena described a difficult family situation particularly involving her husband’s mother. She reported that after years of the mother-in-law being over-involved in their family life and taking no notice of Ms Malena’s preference in care for the two young children, particularly the oldest, disharmony has grown….
And then if you turn over the page, you were asked to talk about your intimate relationships:
Things have deteriorated in the marriage because of the situation described above. She reported her husband as being saying ‘This is toxic, I can’t live with you anymore if you don’t change’. Wants to know how to make it better.
And then summary of the case on the next page, so 258. Can you look at the next page 258? This is where they seem to be summarising the situation:
Problems with Ms Malena’s extended family of in-laws are creating difficulties in her relationship with her husband and to a lesser extent with her children, especially her oldest son.
Okay. So you can see there that that’s your first session with the psychologist. And you haven’t said anything, have you, about any violence towards you by Mr Paolo, have you?‑‑‑We briefly spoke about it, I don’t know why it’s not in her notes.
So you briefly spoke about having a shotgun put to your head, did you? Did you tell her about that at the first appointment?‑‑‑No, that wasn’t at the first appointment.
Okay. When did you tell her about that? Just have a look through the notes and see where you can find it? Are you up to session 4? So session 4 is on page 262. Can you see at the bottom of that page it says:
Ms Malena has made reports of a situation at home that she feels threatened although there never has been any actual physical violence towards her or the children.
Remember saying that? Session 5, nothing about a gun or anything else really significant there. Can you see anything in the notes where you make reference to any one of those three allegations that I have referred to so far?‑‑‑In session 2.
What do you say there?‑‑‑Where she – that’s that I disagree with that comment where she says:
Ms Malena reported that she may be at risk of violence or harm, verbal and emotional, from her partner and his family. She denied any history ‑ ‑ ‑
Any history of physical violence?‑‑‑
…violence. However reported that her partner sometimes stands over her and can be very verbally abusive at times.
Well that’s ‑ ‑ ‑?‑‑‑And she put me in touch with the domestic violence service ‑ ‑ ‑
Yes, yes. We will talk ‑ ‑ ‑?‑‑‑Yes.
About them in a second. Yes. So that doesn’t involve any disclosure of any of those things that I’ve put to you there, does it?‑‑‑No, she hasn’t disclosed that here. And that – and here she also we made contact with the domestic violence support and that’s where we also organised an emergency bag.
So you’re saying, are you, do you seriously believe that if you had told Ms G any of those three things that I put to you at the beginning, that she would have not written them down specifically?‑‑‑I can’t comment on her notes.
So, what, you say you did tell her about those things?‑‑‑Yes, I did tell her about those things.
You told her – so you told her you had a shotgun held to your head, did you?‑‑‑Yes, I did.
You told her that Mr Paolo had raised a large kitchen knife to your throat in front of the children and said:
It will be nice to slice you up, you piece of shit.
?‑‑‑Yes, I did.
You told her that?‑‑‑Yes.
And you told her that once Mr Paolo had driven at over 200 kilometres an hour with you and the children in the car and said, “I will kill you all”, did you tell her that?‑‑‑Yes, I did tell her that.
And for some reason she just hasn’t written those things down?‑‑‑Yes.
Did you get a visit from care and protection after that at any time?‑‑‑No, I didn’t.
So we can assume then, I suppose, that Ms G didn’t make any report to care and protection about issues of safety for the children? You didn’t hear anything about a care and protection ‑ ‑ ‑?‑‑‑No, I didn’t hear anything about that, no.
Investigation?‑‑‑She was very frightened for me.
She was very frightened for you, was she?‑‑‑Yes.

There were similar discussions regarding other serious events not recorded by the Mother’s psychologist at the time, which I do not need to detail.[27] Likewise, the Mother confirmed that when her psychologist, Ms G, referred her to the Domestic Violence Crisis Service, whom she consulted just over the phone, those discussions included (a) the Mother referring to the serious allegations against the Father (e.g. threatening the Mother with a shotgun, a large knife, and driving at very high speed), but (b) no such matters were recorded in the notes from that service.[28]
[27] See, for example, T 79 – 80.
[28] T 80 – 82.
The Mother agreed that she would have put such extreme events in her Application for a Family Violence Order (“FVO”) in early 2018, but no such events were recorded in that Application. She said that she told her lawyer at the time about them.[29] The transcript from the proceeding for the FVO was available and sections of it were put to the Mother. There was a reference to a gun in that matter but nothing relating to events of the kind alleged here.[30]
[29] T 83.
[30] T 83 – 84.
The Mother was next taken to the original documents filed on her behalf in this Court in the current proceeding, the Notice of Risk in particular. There was no reference to the three grave incidents (i.e shot gun, large knife, and excessive speed driving) in that Notice of Risk, which one should have reasonably expected to see recorded.[31] The first time there was any mention of these incidents was in submissions filed by the Mother on 4^th July 2018.
[31] T 85 – 86.
Properly and fairly, the Mother was confronted directly with the lack of record of her allegations by so many persons who would have, and should have, noted – indeed highlighted – the Mother’s extreme claims:[32]
And I don’t know whether you’re lying or whether you really believe it and it’s going to be very hard for his Honour to figure that out. But those documents simply do not support any of those three allegations. And, I would say, others that you have made. Do you accept that?‑‑‑No.
[32] T 87.
The Mother confirmed that she had no other person on Affidavit to support her claims and contentions.[33]
[33] T 90.
The Mother further contended that the so-called “nesting arrangement” for the children immediately post-separation (whereby the children remained in one residence and the parents moved in and out of it) was something that was forced upon her by the Father. Indeed, she said that she was “threatened” by the Father into agreeing to it.[34]
[34] T 90 & 109. At T 112, the Mother confirmed that she never told anyone about the alleged threats by the Father to force her into the “nesting arrangement” for the boys.
Again the Mother was taken to a range of messages passing between the parents that were collected in the Father’s Tender Bundle. On their face, those messages did not indicate any threats at all, and in fact, they were not only perfectly apposite but positively polite and engaging. The dissonance between the claims and the Mother’s responses in Court are clear from many places including the following:[35]
[35] T 91 – 92.
And will you agree with me that those text messages are totally inconsistent with your evidence that this was an arrangement you had been forced into against you will and in which you felt very unsafe? Do you accept that from me?‑‑‑No, I don’t.
Okay. .....
HIS HONOUR:   So how are they not inconsistent? Because the messages seem to be light, engaging, no obvious difficulties?‑‑‑They’re light but – well because obviously I was scared at that time and I didn’t know what way out I had and I was obviously trying to make things work for the children.
DR BEHRENS:   So you were scared at that time but you left your tiny children, because they were pretty tiny then, with their father for a week at a time, including going to Sydney, nonetheless; is that right?‑‑‑That was a special occasion because my cousins came from overseas.
So you weren’t scared because it was a special occasion?‑‑‑I was scared.
So you went to Sydney but you were scared? Were you scared that Mr Paolo would do something to the children? You’re either lying or you’re deluded, Ms Malena. And ‑ ‑ ‑
HIS HONOUR:   Sorry. Was there an answer to the question that was posed? That you were scared but you still left the kids with their father?‑‑‑Yes.
You don’t see there’s any mutual inconsistency there?‑‑‑No, I don’t think so.
Why?‑‑‑Why?
Yes?‑‑‑Because at the time I was scared and I didn’t know what to do.
The text messages don’t sound of someone who’s scared?‑‑‑Well, because I was trying to diffuse the situation because things – there was a lot of animosity at the time between Mr Paolo and myself.
But there’s no suggestion, is there, that he has ever harmed or ever – during the relationship or post the relationship – that he had ever hurt the children, is there? You say that the problems were basically just as between the parents; yes?‑‑‑Yes, there was. And then also with the children when he would get extra aggressive, he would be aggressive towards the children. But I was usually the buffer in between.
DR BEHRENS:   And in fact you also say that the children were there when he held the knife to your throat and that they were in the car when he drove 200 kilometres threatening to kill you. So you do say there was violence towards the children, don’t you?‑‑‑Well, yes.
I want to put this to you and I don’t know quite how you’re going to answer the question and it may involve perhaps you taking these text messages home with you overnight, or something like that, but if you read those text messages from 12 January 2017 until that begging message on 28 February 2018, I would suggest to you that they can be characterised by loving, considerate, kind messages both from you to Mr Paolo and from Mr Paolo to you. There is not a single swear word in there. Just I don’t expect you to accept that without looking at them. But would that surprise you if that was the case, given how you have characterised the way he communicated with you?‑‑‑Well, no, because he – behind closed doors that’s the way he communicated to me on the phone, not through writing obviously.
A number of the SMS messages between the parents were read to the Mother. All of them were very friendly; none of them were threatening. Then followed this important series of responses from the Mother, some of which were noted earlier in these reasons:[36]
I’m asking you about when you say he held a shotgun to your head. You said it was in May?‑‑‑Yes.
If you look at all those messages for May there’s not a single one that suggests anything other than a loving, supportive husband and a loving, supportive wife. Do you agree with me?‑‑‑Yes, I was a loving, supporting wife.
HIS HONOUR: But are you suggesting effectively that Mr Paolo was sort of like a Jekyll and Hyde character?‑‑‑Pardon, sorry?
Are you suggesting that Mr Paolo is effectively a Jekyll and Hyde character? You know, that he appears of this kind, genial, jovial fellow in these circumstances but he completely changes character in other circumstances and that he becomes this dastardly, sinister, lethal fellow?‑‑‑Yes, your Honour. Yes.
Would you accept, though, that there’s nothing, for example, in either Dr E’s or Dr D’s reports that would support such a diagnosis of almost like a schizophrenia, that he’s this character on some times and he’s this character – a completely different character – on others? Would you accept that? That there’s nothing in either of those two expert reports that suggests that there’s any such character traits in Mr Paolo?‑‑‑From the reports?
Yes?‑‑‑Yes, your Honour.
[36] T 93.
The Mother took home overnight during the trial the printed out copies of the SMS messages about which she was questioned the previous day. She was resolute in her insistence that the messages did not indicate the true nature and character of the Father. Thus:[37]
[37] T 100 – 101.
And yesterday I put it to you that those text messages reflect nothing other than communications between a loving, caring and supportive wife and a lovely, caring and supportive husband. Having had a look at the text messages, do you now agree with me?‑‑‑No, I don’t agree with you.
Okay. So can you tell his Honour why not?‑‑‑Because as I mentioned yesterday, I am supportive but during these toxic domestic violence relationships, obviously, there is an obligation and – to diffuse and to obviously respond in a certain way to satisfy the other person that is obviously demanding, that is demeaning, and that is obviously looking at every move you make and how you respond to them, to see whether or not you love them or care for them in that sense. So, yes, I am supportive.
And I think you said that yesterday. Yes, the text messages show you as a loving, caring, supportive wife. I put it to you now quite clearly that the text messages show that Mr Paolo was a loving, caring and supportive husband. The text messages?‑‑‑Yes, via – yes, the text messages.
So you can see that the text messages show that?‑‑‑But the actions speak differently.
Okay. But you say that something was going on behind the scenes that we can’t see in those text messages?‑‑‑Yes, absolutely.
And why would Mr Paolo – he was only communicating with you, wasn’t he? Why would he have an interest in portraying himself in a way different from how he was in text messages with you?‑‑‑Because that is the way Mr Paolo behaved. One minute it was loving and caring, the next minute it was aggravated and violent. It just depended on his mood.
Well, you didn’t really answer my question but I think you’ve agreed with me that the whole of those text messages – which are the text messages in 2016, up to the beginning of 2017 – in not one of those text messages do we see Mr Paolo being as you described him then. Do you agree with that?‑‑‑I do agree with that but ‑ ‑ ‑
So ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ in the same ‑ ‑ ‑
So ‑ ‑ ‑?‑‑‑But, no, no, in the same token ‑ ‑ ‑
No. No, you have answered my question. I will now ask you another question. So how can it possibly be the case that Mr Paolo is being this, if you like, Jekyll and Hyde character when every single text message shows that he is not?‑‑‑Well, that’s just through text message. Behind closed doors, it’s a different story, and that’s how ‑ ‑ ‑
So again ‑ ‑ ‑?‑‑‑ ‑ ‑ ‑ these narcissists generally operate.
So you say Mr Paolo is a narcissist, do you?‑‑‑Yes, I do.
And you know that he has been assessed by Dr E?‑‑‑Yes.
You know that he has been assessed by – she’s a psychologist. You know he has been assessed by Dr D?‑‑‑Yes.
And you say that – and you know that they haven’t diagnosed him with any kind of personality disorder or unusual personality, don’t you?‑‑‑Yes.
And so do you say you know better than them Mr Paolo’s character?‑‑‑Yes, I do because I lived behind those four walls.
You heard Mr Paolo’s evidence yesterday, didn’t you?‑‑‑Yes.
You will agree with me that he presented as a gentle, concerned, child-focused father?‑‑‑No, I don’t agree.
So what did he say yesterday that made you think that he was – or that you would say showed he was other than a gentle, child-focused, devoted father?‑‑‑Well, in terms of the commentary regarding the children not liking to spend time with me, not wanting to speak to me, that there’s derogatory and profanities on a weekly – which I do not engage in at all. I actually encourage the relationship between Mr Paolo and the children. I don’t speak of any ill-mannered or derogatory comments in regards to anything between us.
Ms Malena, you must have been in a different courtroom from me yesterday if that’s what you say Mr Paolo’s evidence reflected?‑‑‑Well, to me that’s what it reflected.
The Mother was insistent that the Father’s evidence was [deliberately] misleading to the Court.[38]
[38] T 102.
In addition to the multiple instances of the lack of recording by lawyers, a psychologist, a psychiatrist, and others, of the events alleged by the Mother against the Father, the Court put to the Mother the singular absence of any recorded trauma by the children about any of these events, and that they consistently seek to spend more time with the Father. Contrary to any such recording or assessment by multiple experts, the Mother insisted that the boys, and X in particular, regularly exhibited signs of trauma from past and ongoing events.[39] See, for example, the following:[40]
HIS HONOUR: So coming back to my question, would you accept, though, that in terms of the reports that I’ve referred to and in terms of the comments made by the ICL in her dealings with the kids, that they’re bright, happy, enthusiastic and very keen to spend time with their dad? They say also in the reports that they’re very keen to spend more time with their dad, and there’s no indication anywhere of the trauma that you’re referring to. Would you accept that that’s what the evidence from these sorts of reports – well, these two reports and the comments by the ICL – suggest?‑‑‑I do accept that that’s what the reports relay but as I’ve said, when I see the children it’s – it’s quite different to what they relay to me.
But you’re not suggesting, though, are you, that the children are either being coached or of their own volition that they’re adept at presenting two different characters? That there’s the character that they’re bright, bubbly, etcetera, with their dad but with you they’re these – I won’t ‑ ‑ ‑?‑‑‑No, no.
I won’t say quivering wrecks but they’re these traumatised little boys?‑‑‑Well, I wouldn’t say that they’re – they have fun and they’re bright and they’re energetic, but also there is that – because I’m the mother, there is that side where they – for that security. So I would say they enjoy – to me, they like equal time with both of us. They enjoy seeing both of us equally each week. They look forward to seeing us both, is what I would say. Yes, whether it’s coached or not, look, there have been comments made from the children but that’s – that’s not up to me whereas to how they feel.
Just that you keep referring to this trauma that either they have and/or that they keep presenting with, and I’m just looking for – or simply noting that in the evidence that’s before the court, apart from your evidence, there’s nothing from the experts and there’s nothing from the ICL about the manifestations of any of that trauma?‑‑‑Interestingly enough.
Sorry?‑‑‑I said interestingly enough.
There’s more than a few interesting things in this one, indeed….
[39] T 103.
[40] T 104.
The Mother confirmed that if the Court required her to undergo a psychiatric assessment before she could spend any time with the children other than supervised she would refuse to undertake it. She was adamant that such an assessment was not necessary.[41]
[41] T 107 & 108. See also T 181 – 182.
Not for the first time the Court returned to the lack of recording by the Mother’s psychologist, over quite a number of sessions, of her dramatic accounts of violence against her by the Father (emphasis added):[42]
[42] T 114 – 115.
How would you reconcile a clinical psychologist, having been told, you say, about a threat to kill you and kill the children, and she says:
Ms Malena has some concerns around her husband and his family.
Would you accept that there’s a fairly significant disconnect between what you say you told the psychologist and what’s recorded there?‑‑‑Yes, but what I can say, your Honour, is that was explicitly told to the psychologist ‑ ‑ ‑
No, I understand?‑‑‑Yes.
You know, that was your evidence yesterday, but here you had multiple sessions with a psychologist who is not recording any of these – what might be termed extreme risks. None of them are recorded. That would suggest, would it not, either that what you say you told the psychologist was not accurate or not completely accurate, or this psychologist has been completely negligent in not recording these extreme risks that you’ve told her?‑‑‑Yes, and that’s what I think is the case and that’s what I have said because there’s also that sheet, that scoring sheet that she has not provided in the subpoenaed material.
…
HIS HONOUR: Sorry. Sorry, but this is over a significant number of sessions; yes?‑‑‑Yes.
And therefore she has been consistently negligent in not recording these extreme risks that you – you tell the court that you told her clearly?‑‑‑Yes, your Honour. Hence why we’ve contacted the domestic violence service and she said that I – she would check in on me with, obviously, phoning them, and I would talk to her each session about these things, and that’s why in the notes a lot of the sessions and what we spoke about – I can’t comment on why it’s not written down as to – because that’s not my responsibility. I spoke to her in a session; whether or not it’s accurately reflected here is another thing.
And in the DVCS documents – the Domestic Violence Crisis Service – were these extreme risks noted to them but again not recorded; correct?‑‑‑Yes, because I did tell them that I feared for my safety and that I was ‑ ‑ ‑
No, no, these specific risks. Did you tell them that you had received a threat or threats – and I don’t know whether or not you say it was one – whether it was a one-off occasion or whether it was over a period of time and regularly repeated. Threats to kill you and to kill the children?‑‑‑Yes.
You told them that specifically?‑‑‑Yes, and they advised at the time ‑ ‑ ‑
No, no, no. That’s not what I’m asking. You confirm that you told them these extreme risks; yes?‑‑‑Yes.
Do you say that those threats were made to you on one occasion or multiple occasions?‑‑‑Multiple occasions.
Right?‑‑‑Especially during the nesting period because he was getting worried about me leaving and people – what they were going to think and what he was going to do. So he was becoming very, very controlling and very beside himself in regards to that.
But in terms of record keeping, you’ve said that – you’ve agreed with my suggestion that the psychologist therefore was negligent in not recording these extreme risks; yes?‑‑‑Yes.
And the Domestic Violence Crisis Service was also negligent in not recording these extreme risks; yes.
Further SMS and similar messages from the parenting APP were presented to the Mother for comment. This led the Court to put the following to her (emphasis added):[43]
That, I put to you, is an extraordinarily positive interaction between two parents who have just separated; do you agree?‑‑‑I agree and during a very toxic and very tense period, might I add.
So not only is Mr Paolo presenting this kind of alternate persona, if you like, in the text messages, he’s also doing it in the Talking Parents app, is he?‑‑‑Yes.
HIS HONOUR: So does this also mean, effectively, that both of you were play acting? You were pretending to be, you would say – these are my words, of course. You were being the supportive ex-spouse to keep up appearances for the benefit of the children, and you say also that Mr Paolo was this almost schizophrenic sort of character presenting as, you know, the genial, relaxed, happy dad in the text messages and Talking Parents app, and mostly for the kids but really there was this sinister, lurking character behind the scenes. This omnipresent threat in your life; yes?‑‑‑Yes.
Okay. Thank you.
DR BEHRENS: And just to be clear, you still think about him that way, don’t you?‑‑‑Yes, I do.
[43] T 117. There are similarly grave comments at T 126.
The issue of the negligence of various professional persons and organisations was revisited after considering another incident alleged by the Mother against the Father during a wedding where she was a bridesmaid. The Mother’s evidence was that she told her psychologist of the incident (which involved, on her account, some terrible name-calling and further death threats to the Mother) but again it was not recorded either at all or accurately. Nor would she countenance that her recollection of this event (or any others) was inaccurate.[44] The Court then asked (emphasis added):[45]
HIS HONOUR: But this is another instance, isn’t it, that in addition to the – what I call the extreme threats – kill, you know, gun, knife, driving – where things have not been recorded. This is another one where things have not been recorded accurately. So there’s this litany, on your evidence, of effectively professional negligence by the psychologist, DVCS, your lawyer in the Magistrates Court. There’s just this consistent litany of non-recording and non-reporting; correct?‑‑‑Yes, that is correct.
[44] T 120.
[45] T 121.

In AMS v AIF, Hayne J said (internal citations omitted):[61]
[204] The problems that family law legislation deals with are human problems: with all their attendant variety and complexity. And at the end of a court proceeding under such legislation, a judge must make an order - usually an order that says yes or no to some application. "[A] complicated mass of human experience has to be reduced to the simplest possible terms." Because the problems are human problems, because they are as varied and complicated as they are, the legislature speaks in terms more often found in statements of aspiration than legal prescription. It is, then, hardly surprising that the guiding principles prescribed by the legislation for application in cases concerning the guardianship or custody of children or related issues, are principles that seldom, if ever, permit syllogistic reasoning.
205] Further, when considering the reasons given by a judge who has made an order in an application about the guardianship or custody of children, it is necessary to bear steadily in mind that the judge must grapple with the chaotic complexity of real life, make predictions not only of what he or she concludes may happen in future but also of what will be "best" for the child, and do so having regard to what the parties have chosen to contest or emphasise in the course of the hearing.
[61] AMS v AIF (1999) 199 CLR 160 at p.228 [204] & [205]. Of course, the comments by Hayne J were in a legislative context different to that which operates today. Accepting that qualification, respectfully, his Honour’s observations remain important.
In a number of respects, the concerns and observations that I have noted reflect the varied interplay of facts, circumstances, legal principle and discretion, which are the warp and woof of all trials. Such matters were more elegantly put by the High Court in the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Fox v Percy, in that Court’s consideration of appellate intervention. Their Honours said (internal citations omitted):[62]
On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance.” On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
[62] Fox v Percy (2003) 214 CLR 118 at pp.125-126 [23]. See also the extensive discussion by McHugh J in the same case at [65] – [93]. More recently, see the High Court’s comments in Lee v Lee (2019) 266 CLR 129 especially in the plurality’s judgment (Bell, Gageler, Nettle and Edelman JJ) at [55].
It is also important to set out now the jurisprudential framework or scaffold in Part VII of the Act to which the Court must have proper regard.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act, using of course as a primary point of reference the Full Court’s decision in Goode v Goode.[63] Respectfully and gratefully, I adopt Brown J’s comments:[64]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[63] Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422.
[64] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[65]
[65] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In addition to the above, I recall Kay J’s important observation in Godfrey v Sanders, at [36], where his Honour said (emphasis added):[66]
Even if the move results in a diminution of quality of the relationship, what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.
[66] Godfrey v Sanders (2007) 208 FLR 287.
Similar comments were made by Dessau J in relation to a long-distance and meaningful relationship in M v S at [45] (emphasis added):[67]
I am conscious that a long-distance relationship, with longer but less frequent times spent together, is inevitably different from a relationship where people live closer together with regular face-to-face contact. But it does not itself mean it cannot be meaningful.
[67] M v S (2008) 37 Fam LR 32.
The comments by Kay J in Godfrey & Sanders, and by Dessau J in M v S, were cited with approval by the Full Court in McCall v Clark at [116].[68] Similarly, the Full Court in Sigley v Evor approvingly canvassed the same decisions, at [131] – [136] and again at [182] – [183]. Although primarily stated in the context of a “relocation” case, the basic principle remains apposite for other circumstances, such as the present.
[68] McCall v Clark (2009) 41 Fam LR 483.
Further, I should note that in Sigley v Evor, at [136], the Full Court also commented as follows (emphasis added):
We also observe that in Champness & Hanson (2009) FLC 93-407 the Full Court (Thackray, O’Ryan & Benjamin JJ) observed at [103]:
The submissions of counsel for the father also appeared at times to be based on an assumption that it was obligatory for the trial Judge to make the orders most likely to ensure the children had a “meaningful relationship” with both parents. This is an incorrect assumption. The Court’s obligation is to make the orders most likely to promote the child’s best interests. In seeking to achieve that objective, s 60CC(2)(a) directs the Court to consider “the benefit to the child” of having a meaningful relationship with both parents. Even if such a benefit is established, it must still be weighed along with all of the other relevant factors. (See Bennett J’s analysis in G & C [2006] FamCA 994.) (emphasis in original)
The Full Court also observed at [191]: “The first and very important observation we would make about this complaint is that the expression ‘meaningful relationship’ is a legal construct, not a psychological one. It is for the Court, not an expert, to determine what constitutes a ‘meaningful relationship’ ”.
Finally, regarding proper consideration of allegations of “risk”, it is sufficient to recall and record the comments of the Full Court in Amador v Amador firstly at [90] thus:[69]
Clearly, the more serious the allegation the greater degree of certainty in relation to making the finding is required. As Dixon J set forth in Briginshaw v Briginshaw (1938) 60 CLR 336 at p.362:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.
Again in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449; 67 ALJR 170 the High Court said at ALR 450; ALJR 170: “the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.”
[69] Amador v Amador (2010) 43 Fam LR 268. The civil standard of proof referred to here has, of course, been formalised by s.140 of the Evidence Act 1995 (Cth). In relation to risk, more particularly risk of sexual abuse (“unacceptable risk”), which is not argued in the current matter, see the Full Court’s comments in Johnson & Page (2007) FLC 93-344 especially at [57] – [77], and earlier in M v M (1988) 166 CLR 166 at [22] – [25], and in the Full Court decision in A v A (1998) FLC 92-800 especially at [3.9] – [3.37].
Then at [94] – [96], the Full Court continued:
[94] A finding by a trial judge in a children’s case under the Act that a party has assaulted another party or a person can have significant impact on the findings made on the matters the Court is required to consider under section 60CC of the Act. The provisions of sections 60CC(2)(b), 60CC(3)(f),(i),(j) and (m) would require a consideration of the impact of any finding of fact as to violence perpetrated by a party seeking a children’s order.
[95] The best interests of a child the subject of an application for a parenting order must require that the Court determine relevant allegations of violence where that can be done. The consequence of placing a child under the supervision and/or care of a person who has been violent may be far reaching and very detrimental to the child’s welfare. The more serious the allegation of violence the more important it will be to the child to investigate and determine the allegation. As stated earlier we regard an allegation of rape by the father of the mother to be a very serious allegation which should, if possible, be determined.
[96] It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse or sexual abuse against a child where parenting orders are sought and where the test to be applied is “unacceptable risk”, with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the Court to make findings where the evidence enables that to be done.
Obviously, I take such statements of principle as critical in the current proceeding in determining what Orders are in the best interests of the boys.
Consideration & disposition
First, I must make further comment on particular aspects of the evidence before the Court. Given what I have already said in these reasons, I can be quite succinct – for a change.
Curiously, there was barely passing comment on the two Reports of Dr E and Dr D by anyone. This was understandable because of them being prepared in 2018 and 2019 respectively. That said, they both contained very helpful and important comment on, and analysis of, the parties, the Mother in particular. For my part, the Report of Dr D – again I note that it was unchallenged in any respect – was particularly helpful. Having watched and engaged with the Mother not only during the trial but on many occasions over a number of years leading up to it, almost all of Dr D’s comments, in my view, remain apposite and directly relevant to the Mother in the light of the evidence given by her at trial. Indeed, there was little in the Mother’s evidence that would warrant me to take any major different view to those expressed by Dr D, not in any clinical sense but notably in the complete dissonance between, for example, the Mother’s account of how the boys are responding or reacting to their Father and all of the other compelling evidence contrary to the Mother’s account.
Secondly, it follows from this view, and the strong and quite unqualified acceptance of Dr D’s assessment of the Mother that, not as a juridical assessment but essentially as a human consideration (and to the degree apposite, a legal consideration regarding, for example, questions of parental capacity and insight), I am deeply moved by and rather sorry for the plight of the Mother. She is both unable and unwilling either to see or to accept what is plain to everyone else, such as that the boys not only love their Father intensely but also there is no possible, or plausible, risk to them from him. Further, she plainly considers herself to be at grave risk from the Father. She is the only person to do so.
Thirdly, the Mother’s lack of insight regarding the significance of her “colleague”, turned lover and partner, Mr H was also deeply troubling. How or why she would not consider that a person with whom she co-habits and does so when the boys are in her care for such long periods of time is a person of significance in their lives, and therefore of special interest to the Court, is astonishing. Mr H should have been on Affidavit. The Mother should have disclosed details of her relationship with him. She did not do so. This was a very significant omission. It was a crucial piece of the parenting puzzle that, for reasons passing strange, the Mother either did not see as important, or deliberately kept it to herself and hid it from the Court.

Fourthly, unless and until the Mother obtains proper professional assistance to help her through whatever parenting maze she seems regularly to inhabit, which seems really quite removed from the reality of everyone else, and in particular how to deal with the Father and her very troubling memories (whatever their bases), I fear that she will remain a troubled and angry Mother. Unless she obtains such assistance, in my view, it also means that her communication with the Father, such as it is, will remain highly problematic. Absent proper assistance and some change in the dynamic and the forces in play in the Mother’s life, in my view, the evidence clearly highlights that, over time, there is a potential risk to her relationship with the children. This may be simply or solely from her completely jaundiced view of the Father – historically and current; or it may be from an even more complex range of factors, many of which are noted by Dr D. The ball is squarely in the Mother’s court to take remedial/therapeutic action for her own sake, and for the sake of the children.
In the light of all the evidence, it is time to turn to the dreaded legislative scaffold or pathway prescribed in Part VII of the Act.[70]
[70] Without necessarily listing each sub-paragraph of the “considerations” in s.60CC(3), I should be taken to follow them sequentially.
The boys are still relatively young, which militates somewhat the weight to be given to their views. That said, as recorded in each of the Reports noted, and equally so by the ICL in her meeting(s) with them, they have consistently expressed a strong view to spend more time with their Father. There is no doubt that they love their Mother but they particularly want to spend more time with their Father.
There is no question that the boys have a good and close relationship with both parents, especially the Father. Although not the subject of cross examination, all independent reports confirm that the boys also have a close relationship with the paternal Grandparents, but rather less so with the maternal family. For reasons already recorded, unfortunately it is unknown what the relationship of the boys is with “Mr H”, the Mother’s new partner.
As to the considerations in sub-paragraphs (c), (ca), (f) and (i), regarding parental decision-making, spend time and communicate with the children, fulfilment of parental “obligations”, parental capacity to provide for the needs of the children, and attitude to the children and to the responsibilities of parenthood, the evidence shows a quite disjointed range of matters.
For example, there was the undisputed instance where the Mother unilaterally changed X’s school, with no notice to or consultation with the Father. There have been regular skirmishes, over quite a period of time, regarding changeovers, and also regarding “time-with” arrangements. In my view, the evidence clearly puts the responsibility for the overwhelming majority of these difficulties at the feet of the Mother. Primarily, they have arisen because of her historical and ongoing belief in the danger posed to her and the children by the Father.
The Mother is very earnest in her care of the children and in her actions more generally regarding the boys. Invariably, and certainly in recent times, she does so with little regard to or consultation with the Father. On the other hand, the Father is, on his own evidence and based on the observations of the experts noted, much more relaxed (in a good way, not lackadaisical) in his approach to the care of the children. He is assiduous, in his relaxed way, with the care of the children. Certainly in terms of their responses during the assessments by experts, and also in the responses of the boys with the ICL, the children enjoy the much more relaxed parenting of the Father. “Difference” in parenting styles is not uncommon. Nor is “difference”, strictly speaking, “opposition”; it is simply “different.” However, in this matter, any and all differences in parenting styles and approaches are magnified many times because of the disturbing history between the parties and its flow-on effects for the Mother. All of this said, there is no question that both parents love the boys intensely.
Put another way, “highly strained”, bordering on the “dysfunctional”, is perhaps the best way to describe the co-parenting relationship. Another way to describe it, with which both parents seem to agree, is that neither of them effectively communicate at all, even using a parenting App. In this respect it almost matters not a jot who is primarily or even solely responsibility for this sad and deeply regrettable situation.
For the purposes of sub-paragraphs (d) and (e), on the evidence, especially of the experts, it is highly unlikely that there will be much, if any, difficulty arising from a change in the “time-with” arrangements for the boys spending somewhat more time with the Father and less time with the Mother. Unsurprisingly, the change in time-with arrangements will quite likely have a greater impact upon the Mother rather more so than on the boys. Over a period of time, one may hope that both parents (and the boys) will acclimatise to the “tweaking” of the current time-with Orders. Certainly in terms of “practical difficulty” and “expense”, little will change on the Father’s Orders being made.
For the same or similar reasons just noted, the considerations under sub-paragraph (g) are readily fulfilled. The Father will, in my view, clearly, readily and well attend to the boys having due and proper regard to their ages and levels of maturity. The Mother would do so as well but in a rather different way. It is not a contest between the parents as to who is the better parent. It is a much more complex and nuanced set of circumstances that reflect the complexities of the parental and relational history between the parents. Always, the ultimate criterion is what is in the best interests of the boys having regard to all of the circumstances and the evidence before, and assessed by, the Court.
There was a family violence Order to which the Father consented without admissions. The allegations of extreme family violence have been canvassed at some length in the course of these reasons. Accordingly, I need only comment on the considerations in sub-paragraphs (j) and (k) as follows.
I cannot and do not make any definitive finding that the despicable acts complained of by the Mother never happened. However, there is only the Mother’s troubled evidence that they did and a very large amount of independent evidence that they did not. The Mother plainly and vehemently believes that she was the victim of extreme family violence and over a significant period of time. The Court has significant expert evidence that the Mother has suffered from various psychiatric and psychological conditions including paranoia and delusions. She does not present in Court in these ways, but it is otherwise impossible to account for the extraordinary dissonance in her evidence regarding the allegedly violent and completely villainous Father she perceives and fears, on the one hand, and the genial, gentle, child-focussed Father deeply beloved by the boys (who have not the slightest fear of him at all), as well as the strong expert evidence that supports his account and deeply, if not thoroughly, undercuts the Mother’s evidence, on the other.
In my view, the Orders proposed by the Father are not only in the best interests of the boys but also are the most preferable and least likely to lead to further litigation.
It remains only to consider whether an Order should be made for the Father to have sole parental responsibility. Two observations may be made briefly – in addition to what has already been stated in these reasons..
First, the extensive allegations of extreme family violence, of themselves, in my view are more than sufficient to rebut the presumption under s.61DA of the Act for equal shared parental responsibility.
Secondly, the evidence of both parties similarly is more than sufficient to enable the Court to find that the communication between the parties is essentially, and practically, non-existent.
Accordingly, and also because the boys will be spending more time with the Father during school terms, there should be an Order for sole parental responsibility in the Father’s favour. He is required to keep the Mother informed of any major long-term decision regarding the boys care and welfare. Indeed, absent emergency, he is to consult the Mother about any such issue beforehand but ultimately he is vested, pursuant to these Orders, with sole parental responsibility to make such decisions.
The Orders sought by the Father are, in my view, very much in the children’s best interests. To a reasonable degree, and while ensuring the children maintain a good and close relationship with their Mother, the Orders sought by the Father and now made by the Court will safe-guard them from the ongoing, and thus far, unrelenting and tremendously negative view (both explicit and implicit) that the Mother has of the Father. Moreover, notwithstanding the relative peace over the last short while when a shared-care arrangement has been in place (presumably to some degree this “peace” has been because the parties have been before the Court and thereby subject to a greater scrutiny than would otherwise be the case), I have a greater degree of confidence in the Father supporting and encouraging the boys’ relationship with the Mother than vice-versa.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Dated: 3 February 2022

File number(s):	CAC 432 of 2018
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	3 February 2022
Catchwords:	FAMILY LAW – Final Hearing – parenting – serious allegations of family violence against the Father by the Mother – where Mother contends that the Father is a risk to herself and the children – Father has at all times denied allegations – allegations of risk and family violence unsubstantiated – Court unable to make findings whether allegations occurred – where independent experts suggest that the Mother is either disingenuous and or delusional – whether children should continue in a shared care arrangement or live primarily with Father – where there is a greater risk of psychological harm posed by the Mother, favouring an increase in the Father’s parenting role as a protective measure for the children – Orders made for sole parental responsibility and that the children live with the Father and spend substantial time with the Mother.
Legislation:	Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), Part VII, ss.60CC, 61DA, 65DAA
Cases cited:	A v A (1998) FLC 92-800 Amador v Amador (2010) 43 Fam LR 268 AMS v AIF (1999) 199 CLR 160 Collu & Rinaldo [2010] FamCAFC 53 Fox v Percy (2003) 214 CLR 118 Godfrey v Sanders (2007) 208 FLR 287; [2007] FamCA 102 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Johnson & Page (2007) FLC 93-344 Lee v Lee (2019) 266 CLR 129 M v M (1988) 166 CLR 69 M v S (2008) 37 Fam LR 32 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 Sigley v Evor (2011) 44 Fam LR 439 Simmons & Kingley (2014) FLC 93-581 Vontek v Vontek [2017] FamCAFC 28
Division	Division 2 Family Law
Number of paragraphs:	110
Date of last submission/s:	16 June 2021
Date of hearing:	22 & 23 April 2021
Place:	Canberra
Solicitor for the Applicant:	Neilan Stramandinoli Family Law
Counsel for the Applicant:	Dr J Behrens
Solicitor for the Respondent:	Jeanine Lloyd & Associates
Counsel for the Respondent:	Dr S Leslie
Solicitor for the Independent Children's Lawyer:	Legal Aid ACT

CAC 432 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR PAOLO Applicant
AND:	MS MALENA Respondent
LEGAL AID ACT Independent Children’s Lawyer

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	3 FEBRUARY 2022