Perrides & Perrides - [2022] FedCFamC2F 869

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Perrides & Perrides [2022] FedCFamC2F 869

File number(s): ADC 345 of 2019

Judgment of: JUDGE BROWN

Date of judgment: 5 July 2022

Catchwords: FAMILY LAW – children – final hearing – limited issues- parents unable to agree logistical arrangements – parenting arrangements for two children aged 6 and 4 – best interests of the children – parties have a limited co-parenting relationship – mother is reluctant to increase fathers time – father seeks gradual increase – mother asserts family violence allegations

Legislation:
Evidence Act1995 (Cth) s 140

Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 67ZBA, 102NA

Cases cited:
Astor & Astor [2007] FamCA 355

B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676

Bartel & Schmucker (No 3) [2012] FamCA 1094

Deiter & Deiter [2011] FamCAFC 82

Eaby & Speelman (2015) FamCAFC 104

Fox v Percy (2003) 214 CLR 118

In the marriage of B & B (1993) FLC 92-357

In the Marriage of JG & BG (1994) 18 Fam LR 255

In the Marriageof Patsalou (1994) 18 Fam LR 426

Jurchenko & Foster (2014) 51 Fam LR 588

Kuebler & Kuebler (1978) FLC 90-434

Line & Line (1997) FLC 92-729

Mazorski v Albright (2007) 37 Fam LR 518

MRR v GR (2010) 240 CLR 461

Russell & Russell and Anor [2009] FamCA 28

Slater & Light [2013] FamCAFC 4

Zahawi & Rayne [2016] FamCAFC 90

Division: Division 2 Family Law

Number of paragraphs: 223

Date of last submission/s: 5 May 2022

Date of hearing: 2-4 May 2022

Place: Adelaide

Counsel for the Applicant: Ms Betro

Solicitor for the Applicant: A K Reeves & Associates

Counsel for the Respondent: Ms Ross

Solicitor for the Respondent: Adelaide Family Law
ORDERS

ADC 345 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PERRIDES

Applicant

AND:
MS PERRIDES

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

5 JULY 2022

THE COURT ORDERS THAT:
1.All previous parenting orders are hereby discharged.
2.The parties have equal shared parental responsibility for the children, X born in 2016 and Y born in 2017 (“the children”).
3.The children live with the mother.
4.The children spend time with the father hereby as follows:
(a)Commencing 10 June 2022
(i)In Week 1 and each alternate week thereafter:
A.From 4:00 pm to 7:00 pm on Tuesday; and
B.From the conclusion of school or 5:00pm if a non-school day on Friday until 10:00am Sunday.

(ii)In Week 2 and each alternate week thereafter:
A.From 4:00 pm to 7:00 pm on Tuesday; and
B.From 9:00am on Sunday until the commencement of school on Monday or 9:00 am if a non-school day NOTING THAT the mother is to collect Y from the B Primary School from the father at the commencement of school.

(b)Commencing June 2023
(i)In Week 1 and each alternate week thereafter:
A.From the conclusion of school (or 5:00 pm if non-school day) on Friday until the commencement of school on Monday (or 9:00 am if a non-school day).

(ii)In Week 2 and each alternate week thereafter:
A.From 4:00 pm to 7:00 pm on Thursday.

(c)Commencing January 2024
(i)In Week 1 and each alternate week thereafter:
A.From the conclusion of school (or 5:00pm if non-school day) on Friday until the commencement of school on Monday (or 9:00am if a non-school day).

(ii)In Week 2 and each alternate week thereafter:
A.From the conclusion of school (or 5:00pm if non-school day) on Thursday until the commencement of school on Friday (or 9:00am if a non-school day).

(d)Commencing January 2025
(i)In Week 1 and each alternate week thereafter:
A.From the conclusion of school (or 5:00pm if non-school day) on Thursday until the commencement of school on Monday (or 9:00am if a non-school day).

(ii)In Week 2 and each alternate week thereafter:
A.From the conclusion of school (or 5:00pm if non-school day) on Thursday until the commencement of school on Friday (or 9:00am if a non-school day).

(e)Such further and other times as may be agreed in writing between the parties.

5.The children spend time with the parties during the long school holidays as follows:
(a)Commencing December 2024:
(i)With the father on a week about basis, from the conclusion of the school term (or 5:00 pm if child is not at school) until 5:00 pm the following Thursday and each alternate week thereafter, with the exception of special occasion times as specified herein.
(ii)With the mother on a week about basis, from 5:00 pm on Thursday week 1 of school holidays until 5:00pm the following Thursday and each alternate week thereafter, with the exception of special occasion times as specified herein.

(b)Commencing December 2025
(i)With the mother on a week about basis, from the conclusion of the school term (or 5:00 pm if child is not at school) until 5:00 pm the following Thursday and each alternate week thereafter, with the exception of special occasion times as specified herein.
(ii)With the father on a week about basis, from 5:00 pm on Thursday week 1 of school holidays until 5:00pm the following Thursday and each alternate week thereafter, with the exception of special occasion times as specified herein.

6.The children spend time with the parties for the following special occasions:
(a)Christmas
(i)In even numbered years, with the father from 4:00 pm Christmas Eve until 3:00 pm Christmas day. PROVIDED THAT the children spend time with the mother from 3:00 pm Christmas Day until 4:00 pm Boxing Day the same year.
(ii)In odd numbered years, with the mother from 4:00 pm Christmas Eve until 3:00 pm Christmas day. PROVIDED THAT the children spend time with the father from 3:00pm Christmas Day until 4:00pm Boxing Day the same year.

(b)Mother’s & Father’s Day
(i)In the event that Father’s Day shall fall on a day that the children are otherwise in the care of the mother, the children spend time with the father from 3:30pm on the preceding Saturday until 4:00pm on Father’s Day Sunday.
(ii)In the event that Mother’s Day shall fall on a day that the children are otherwise in the care of the father, the children spend time with the mother from 3:30pm on the preceding Saturday until 4:00pm on Mother’s Day Sunday.

(c)Birthdays
(i)On each of the children’s and parties birthday, the children shall spend time with the parent with whom they are not residing with at the time as follows:
A.From 4:00pm until 7:00pm if it falls on a school day.
B.From 9:00am until 2:00pm if it falls on a non-school day.

(d)Catholic Easter
(i)In even numbered years, with the Father from 5.00 pm on Easter Thursday until 7:00pm on Easter Saturday PROVIDED THAT the children spend time with the Mother from 7:00pm on Easter Saturday until the commencement of school on Tuesday (or 10:00am if it is a non-school day);
(ii)In odd numbered years, with the Mother from conclusion of school on Easter Thursday until 7:00pm on Easter Saturday PROVIDED THAT the children spend time with the Father from 7:00pm on Easter Saturday until the commencement of school on Tuesday (or 10:00am if it is a non-school day).

(e)Greek Easter
(i)The parent who does not have the children residing with them during Greek Easter shall have the children from 2:00pm Sunday until the commencement of school (or 9:00 am if a non-school day) Monday, NOTING THAT if the Greek Easter and Catholic Easter fall on the same weekend paragraphs 5(d) prevail.

7.Handovers that do not take place at the children’s school shall take place at the father’s home at the commencement of the father’s time and at the mother’s home at the conclusion of the father’s time.
8.The children communicate with each parent by way of telephone and/or FaceTime as follows:
(a)In accordance with either child’s reasonable wishes;
(b)Commencing 10 June 2022, with the mother on Saturday at 2.00 pm during which time the children are otherwise in the care of the Father;
(c)Commencing June 2023, with the mother on Sunday at 2.00 pm during which time the children are otherwise in the care of the Father;
(d)With the father once per week at a time that is mutually agreed upon between the parties in writing;
(e)With the parent the child is not residing with at the time during the long school holidays each Tuesday at 2.00 pm; and
(f)At any or such other times as may be agreed to between the parties in writing;

NOTING THAT the parent who does not have care of the children is to initiate the telephone / FaceTime call in the first instance.
9.The parties shall communicate with each other by way of SMS in the first instance in relation to any discussions pertaining either of the said children.
10.In the event of a medical emergency involving either of the said children, the parent who has the care of the child shall notify the other parent as soon as reasonably practicable and shall allow the other parent to attend upon the child.
11.Each party shall keep the other informed of their mobile telephone number, email address and residential address and notify the other of any change to same seven (7) days prior to such change occurring.
12.Both parties keep the other informed as to the name and contact details of any medical practitioner or allied health professional treating any of the said children.
13.The parties will advise one another of significant medical appointments, or allied health worker and dental appointments, and provide details of same and that each parent shall be at liberty to attend for the duration of the child’s treatment.
14.Both parties be at liberty to attend all school, sporting, and extra-curricular activities that parents would ordinarily attend.
15.Both parties be at liberty by arrangement with the children’s school to have copies of all reports, newsletters, photographs and any other information which the party would ordinarily be entitled to receive at their own expense.
16.The parties shall do all such acts and sign all such documents as may be required to authorise such medical practitioners, allied health professionals or specialists to communicate directly as to the children’s condition and treatment with the other party or to enable the other party to obtain such information as requested (with any such associated costs to be at the expense of the requesting party).
17.On a without admission basis, the parties and each of them be restrained from, and an injunction granted restraining each of them from:
(a)Consuming alcohol to excess in the presence of the child or for a period of twenty-four hours prior to the children coming into his/her care;
(b)Abusing, denigrating, threatening, harassing or intimidating the other party, their immediate family, or allowing any other person to do so;
(c)Discussing these proceedings or the issues raised in these proceedings with or in the presence of the children;
(d)Discussing these proceedings or the issues raised in the proceedings on Facebook or other social media websites or Apps;
(e)Removing the children or either of them from the Commonwealth of Australia without the prior written consent of the other parent;
(f)Enrolling the children or either of them in childcare, kindergarten, or a school without consent from the other parent.
(g)Permitting the children or either of them to be in the presence of an operating firearm, or to allow either child to operate or discharge a firearm until either child attains the age of 11.

18.The parties do all things and execute all documents necessary to cause a passport to be issued in the names of X and Y and upon the passports reaching six (6) months prior to its expiry date that both parties do all things and execute all documents necessary to cause a passport to be reissued for the children (an each of them) at the joint and equal expense of the parties UPON NOTING that the children’s passports will be held by the mother.
19.Pursuant to paragraph 17 herein, if either party fails to do all things and execute all documents necessary to cause a passport and/or visa to be issued or reissued within fourteen (14) days of written notice to either of them, then the Registrar of the Court be at liberty to sign the documents on the other party’s behalf upon written notice from the complainant party annexing evidence of written correspondence between the parties.

Interstate Travel
20.For the purpose of interstate travel, each party be at liberty to travel with the children on the following terms and conditions:-
(a)During their ordinary time with the children; and
(b)The travelling party provides to the non-travelling party not less than fourteen (14) days prior to the proposed departure date a basic itinerary including the destination and departure/return dates.

Overseas Travel
21.For the purpose of overseas travel, each party be at liberty to travel with the children on the following terms and conditions commencing in 2026:
(a)That the duration of overseas travel be no longer than two (2) weeks per occasion;
(b)That the children travel overseas with either party no more than once per year;
(c)That the travelling party provide the non-travelling party written notice of their intention to travel with the children no less than two (2) months prior to their intended travel date;
(d)That the travelling party provide the non-travelling party with the following:-
(i)A full itinerary of the children’s travel;
(ii)Copies of the children’s airline ticket showing airline carrier, flight numbers, dates and time of departure and arrival;

(e)That the travelling party receive the written consent of the non-travelling party NOTING THAT the non-travelling party shall not unreasonably withhold their consent;
(f)that the travelling party facilitate communication between the children and the other party at least once per week;
(g)that make-up time with the children be arranged with the non-travelling party either immediately prior to the departure or immediately after the return NOTING THAT any make-up time to be confirmed, in writing, not less than forty-five (45) days prior to the children's departure date.

22.That all extant applications are dismissed as finalised.

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 Perrides & Perrides has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BROWN:
INTRODUCTION

These reasons for judgment concern final parenting arrangements for two children. The children concerned are X (“X”) born in 2016 and Y born in 2017. The parties to the proceedings are the children’s parents – their father Mr Perrides (“the father”); and their mother, Ms Perrides (“the mother”).
As will be set out, in greater detail, as these reasons unfold, the proceedings have been on foot for a significant period of time and have been marked with significant controversy. In order to assist in the resolution of this conflict, the parties have commissioned an independent expert, Ms C (“Ms C”), to compile two family assessment reports. Ms C is an experienced psychologist, particularly in the area of parental conflict.
Over this period, the father has gradually increased his time with X and Y, in the face of serious opposition from the mother, who has characterised him as an insensitive bully, who is out of step with the emotional development and needs of the children concerned. In these circumstances, the mother has wanted to restrict the father’s time with the children and to be the parent charged with making major decisions in respect of them.
On the other hand, the father has characterised the mother as being unreasonable, manipulative and disingenuous in respect of her description of him and his relationship with the children. He asserts that she is hyper-vigilant and emotionally reactive. In these circumstances, in face of the mother’s opposition, he has wished to spend an extended period of time with the children and to be involved in the decision making in respect of their care.
In this difficult context, it was necessary for a three day trial to be scheduled, in which each of the parties and Ms C gave evidence. During this emotionally draining and difficult process, the mother gradually shifted her position.
At the outset of the trial, the children were spending time with their father pursuant to the order of 14 February 2020. This being every Tuesday from 4:00 pm until 7:00 pm, and on a fortnightly basis, in the first week from 9:00 am Saturday until 10:00 am on Sunday and in the second week from 9:00 am Saturday until 10:00 am Sunday.
At this stage, the mother’s preference was to incrementally increase the time to three consecutive nights per fortnight from term 4 of 2023. She was open to there being a week about arrangement, only in the long school holiday from the end of 2024 onwards. She wished to be conferred with sole parental responsibility for the children.
On the other hand, the father’s preference was for the children to immediately start spending two consecutive nights on fortnightly weekends with him and for this to move to a three night block from the start of 2023, with another night on the other weekend; and then there to be a regime of five nights per fortnight, broken into one block of four night and one other overnight. He sought that the parties be conferred with equal shared parental responsibility.
To Ms C, the father indicated that he did not mind how long it took but his ultimate aim was to have a pattern of at least five overnights per fortnight. On the other hand, the mother’s aim was to move slowly and end the process of introducing overnights in term time with three overnights per fortnight. This was indicated, in her view, because of deficits in the father’s parenting and because of sensory issues relating to X.
In her evidence, the mother indicated that she wished to hear from Ms C in order to determine what she (Ms C) considered to be the best outcome for the children. In this context, Ms C confirmed her view, provided in her second report that:
[B]oth parents manage the children well, are attentive and child focussed and relate warmly and positively to the boys. The impression is that the children have warm and loving relationships with each parent.[1]
[1] Second Family Report of Ms CC dated 31 March 2021 at page 10.
In her subsequent oral evidence Ms C provided a graduated proposal to add overnight periods culminating in term 4 of 2023. She did not shift in her views and in respect of some of the minutiae involved, indicated she could see pros and cons in each party’s proposals. Essentially, it was a question of what each party thought would work best for each of them and the children.

Essentially, Ms C did not have a fixed view as to whether ultimately it was preferable for the final position to be a three and two block split or a four and one night split. Given the parties cannot agree, it falls to the court to determine the matter. In my view, their inability to reach a compromise in respect of this matter is emblematic of all the problems in their relationship.
Ms C was well aware that the parties have experienced significant difficulties in co-parenting the children. In this context, she wrote as follows:
I note that the parties continue to experience some conflict and tensions. I am not confident that this will substantially resolve but hopefully I am wrong about this. In any event, I do not think it appropriate that [Ms Perrides] have sole responsibility for any aspect of the children’s management … as I cannot see any reason that [Mr Perrides] should be excluded from any areas of decision making.[2]
[2] Second Family Report of Ms C dated 31 March 2021 at page 13.
I was concerned that the parties, particularly the mother, were labouring under some level of misconception about what was entailed in major long-term parental decision making. After some consideration, the mother indicated that she was prepared to reconsider her view in respect of the matter.
In addition, given the vehemence of Ms C’s evidence and the mother’s apparent acceptance of her expertise and her own willingness to be guided by it. It seemed to me that there was a good prospect that the parties would be able to agree on a final regime for the parenting of X and Y. Earlier, the father himself had indicated a willingness to be guided by what Ms C said.
In my view, given that it was axiomatic that each parent was inevitably going to be significantly involved in providing care for X and Y, regardless of the pace of the regime and how the time was ultimately cut and diced between them, it seemed sensible that they should try and agree on how to move forward consensually.
In addition, such an outcome would have been congruent with the object and principles of the Family Law Act 1975 (Cth)[3]. Regrettably, this hope proved to be illusory, notwithstanding the assistance of the parties’ experienced counsel.
[3] Hereinafter referred to as “the Act”.
In these circumstances, after the conclusion of the evidence, and after the parties themselves, via their counsel, had engaged in protracted negotiations, each parent was requested to provide a detailed minute of the final orders, which they sought be made by the court.
An analysis of these minutes indicates that the following issues are in dispute between the parties:
·Commencement time of time spending with the father in school terms – should it be 5:00 pm (the mother’s preference) or when school concludes (the father’s preference);
·The pace at which the father’s time with the children is to increase;
·Commencing January 2025, should the father’s time spending be divided into a three and two night block over the two week period as the mother proposes, or a four and one night as the father proposes;
·The day in which handovers occur during the Christmas school holidays commencing from December 2024;
·The handover time on Easter Saturday of Catholic Easter each year;
·Handover location when the children are not at school – the father wishes it to be at each of the parties’ homes; the mother’s preference is for a shopping centre;
·Communication via telephone or FaceTime with the other parent who does not have the current care of the care of the children;
·Whether each of the children are to be in the presence of a firearm up to the age of eleven (11) years old;
·In regards to overseas travel, the mother proposes additional orders that restrict the children traveling to countries that the Australian Federal Government deem unsafe or are not party to the Hague Convention. These additional orders are not sought by the father. The father seeks that such travel be authorised from February 2026; whilst the mother asserts that it should be from the commencement of 2026.
The father and his family are shooting enthusiasts. The father has himself been engaged in the sport since he was a child, having been trained in shooting and gun management by his own father, at an early age. He wishes to be able to do so with his own children. The mother is anxious about firearms and wishes to curtail their exposure to guns until they are aged at least 11 years. The father believes this is too proscriptive.
It is highly regrettable that the court is required to decide these issues, particularly given how far the mother has moved in respect of many of the areas of contention, particularly equal shared parental responsibility. In making the necessary decisions, I must apply the provisions contained in Part VII of the Act in the context of my findings in regards to the evidence advanced by both the father and the mother.
At the outset of the trial, there were many evidential controversies arising between the parties, which can be summarised under two main categories as follows:
·Did the father engage in coercive and controlling family violence towards the mother, as defined by section 4AB of the Act;
·What is the respective parental capacity of the parties, particularly in terms of ensuring the emotional and physical safety of the children and in this context, is one of them conferred with a significantly greater level of parental insight than the other.
Given the comparatively small compass of the issues now in dispute between the parties, I would prefer not to have to make findings of fact about these issues. I am well aware of the potential such findings have for sowing further discord between the parties, which will not assist them to put their co-parenting relationship on a more solid base and may well injure each of their feelings.
As such, in order to assist the parties to maintain at least the possibility of having a better functioning relationship with one another, following these protracted and expensive proceedings, the court should avoid making potentially hurtful findings of fact where ever possible. For obvious reasons, this is not always possible.
Regretfully, in resolving the modest issues in dispute between them, it will be necessary for me to make some findings of fact. Some of the issues, which were canvassed before me concerned such things as:
·The risks arising from a child, on a hot day, being in a paddling pool, after allegedly having an episode of gastric upset;
·The potential deficits of children being fed Coco Pops or Fruit Loops for breakfast on Sunday mornings;
·Whether it is preferable to give a child a cup of milk, at breakfast, in preference to toast and cereal;
·Issues relating to the father sleeping in the same room as the children to be available to provide comfort;
·The replacement of a trampoline with a basketball hoop;
·Appropriate sleep training for the children, when in early infancy;
·The benefits of the children being adventurous as exemplified by them going on a waterslide; and
·Exposure of the children to the correct level of the videogame Minecraft.
I acknowledge their importance to each of the parties, each of whom can demonstrate cogent reasons as to why their individual view about the issue in question is the one to be preferred. In my estimation, all of these issues were thoroughly unpacked by the parties’ experience counsel. None of this exhaustive process caused me to change my view that each of the parties are competent and thoughtful parents.
From my perspective, what these issues served to demonstrate is the differences between the parties themselves – in parental emphasis and personality – rather than anything sinister or untoward and illuminate the two traits they have in common – a fervent devotion to and love of their children and a fierce determination to achieve their preferred outcome.
THE EVIDENCE
It is necessary for me to indicate the evidentiary standards which apply to these proceedings and provide my overall impressions of each of the parties. In these reasons for judgment, findings of fact are made on the balance of probabilities, from my observation of the demeanour of each of the witnesses concerned.[4] I have tried to reach my conclusions on credibility and reliability ‘on the basis of contemporary materials, objectively established facts and importantly, on the apparent logic of events.’[5]
[4] See Evidence Act1995 (Cth) s 140.
[5] See Fox v Percy (2003) 214 CLR 118, 129 [31] (Gleeson CJ, Gummow and Kirby JJ).
The father was, in my view, a highly impressive and considered witness. He was calm and open in his evidence. It also seems to me that he has demonstrated considerable fortitude and patience in the face of an extremely protracted process. As I will demonstrate, in due course, in my view, he has good reason to consider that the delay inherent in the system have been utilised against him for tactical reasons.
More significantly, I am satisfied that his desire to spend a block of five nights per fortnight with X and Y was not motivated by any clandestine desire to control either the mother or the children. I accept that he genuinely believes that this is the best outcome for X and Y and from his perspective he will be able to cope with such a regime, given his employment commitments.
He was criticised, in cross-examination by counsel for the mother, in respect of all manner of incidents in which it was asserted that the children had come to harm or on the basis that he had behaved brutishly or insensitively in respect of them and their needs. The children have had mishaps from time to time, at his home. However, in my view, the evidence indicates that these have not occurred because of the father’s negligent parenting but have been genuine accidents.
The most significant of these occurred when X sustained a cut to his head, which required stitching at hospital in early 2019. The father’s evidence was that the incident happened when a heavy model ship fell from a cupboard on to the child’s scalp. The father informed the mother of the incident and advised her that he and the child were at the hospital and invited the mother to attend. It is to his credit that he did not attempt to hide the incident and was up front about it.
It is also part of the mother’s case that the father is something of a misogynist and has outdated views as to how men are to behave in society. As such, she asserts that he is a poor role model for X and Y. The father refutes these assertions and in response asserts that he works in an industry which employs many women. He denies saying such things as big boys don’t cry to the children. It is also his evidence that he is adapt at homemaking skills, particularly cooking, on which he prides himself.
Whilst I appreciate that, for obvious reasons, parents in family law proceedings are at pains to portray themselves in the best possible light. I could see no evidence of any outmoded parenting views in the father. To the contrary, he presented as a sensitive and caring parent, who was alive to the different needs of the two children concerned, being able to describe their different personalities to me. X has meltdowns; whilst Y is a more go with the flow child.
Mr Perrides, in my view, was not openly critical of Ms Perrides, describing her as doing a great job in parenting the children. He also indicated a view that the parties’ parenting relationship had improved, albeit from a low base, now that the smoke had settled. He also expressed a desire for the children to be adventurous. In his descriptions of how he had attempted to inculcate this in the children, most recently by encouraging them to go on a waterslide, I do not consider he can be considered to be cavalier in his regard to the children’s safety.
The major area of discord between the parties turns on how they each respond to X’s special needs, which have been described as a sensory processing disorder in March of 2019. The father described X as being a highly anxious child, who was a worrier and impulsive in his behaviour. As such, he agreed that he (X) preferred a routine lifestyle and tended to become emotional and needs to be physically comforted. Mr Perrides did not present as a person who was emotionally stunted. To the contrary, my impression of him was of a sensitive and caring parent.
Given the detail of his description of the child, when coupled with his obvious love for him (which was confirmed by Ms C’s assessment) and my own assessment of the father as a sensitive parent. I have no reason to consider that Mr Perrides is not capable of responding appropriately to X’s behaviour and by extension that of Y, although he may do so in a different way to the mother. This is as much a reflection of their different personalities as their different genders.
The mother is highly critical of the father for drinking heavily. He confirmed that he is a home brewer, who makes his own beer, which he drinks whilst watching the football on television. He characterised it as a harmless hobby and indulgence, which the mother had consciously exaggerated for her own purposes.
There is no independent evidence to support the mother’s assertion that the father’s drinking is problematic or poses some threat to the children. Regrettably, in these circumstances, it is an issue which must be determined by reference to credit alone. As a corollary of that assessment, I must make an appraisal of the risk Mr Perrides’ alcohol consumption may conceivably pose to the children.
In Deiter & Deiter,[6] the Full Court has directed that, in assessing the degree of risk incumbent in any particular parenting scenario, the court must look to the degree of probability that a harmful event will occur in future and what will be its severity, to any individual, particularly any child, who will be potentially affected by it.[7]
[6] See Deiter & Deiter [2011] FamCAFC 82.
[7] See Deiter & Deiter [2011] FamCAFC 82 at [61] (Finn, Thackray and Strickland JJ).
The Full Court in Slater & Light[8] expressed the task of assessing risk in the following terms:
The nature of the risk is best expressed by the term ‘unacceptable risk’. It is an evaluation of the nature and degree of the risk and whether, with or without safeguards, it is acceptable.[9]
After having assessed the degree of risk, the court must consider what is the proportionate response to the risk, which may include the imposition of some form of precaution or safeguard.
[8] See Slater & Light [2013] FamCAFC 4.
[9] See Slater & Light [2013] FamCAFC 4 at [37] (May, Strickland and Forrest JJ), quoting Johnson & Page (2007) FLC 93-344 at [68] (May, Boland and Stevenson JJ).
I do not consider that the father’s potential consumption of his home brewed beer presents an unacceptable risk for the court to take, given my overall assessment of the father and the attitude he has demonstrated to the parenting of the two children concerned.
I do not consider that he would allow himself to become incapable of properly caring for the two children. To a large extent this is implicit in the mother’s acceptance that the father should have overnight time with the children. In this context, I am concerned that some of her opposition to the father’s proposals is her desire to have the upper hand over him.
The father’s own criticisms of the mother are that she is a hyper-vigilant parent, who is naturally inclined to think the worst of him, on spurious grounds and certainly without first checking with him about any of her potential worries. In my assessment, there is some substance to his concerns.
In her evidence, the mother was quick to provide unprompted her negative assessment of the father’s parenting conduct, which she had allegedly received from the children. Given the unprompted nature of some of these answers – particularly in reference to positive statements she asserted the children had volunteered to her about her home, in contrast to that of the father – I had reason to doubt some aspects of the credibility of her evidence.
I am not critical of the mother for being protective of the children. However, in my view, many of her criticisms of the father lacked objectivity and were founded on her antipathy towards him and were based on what she asserted the children had told her rather than her own direct experience of the father’s parenting. I am concerned that the mother has a proclivity to think the worst of the father, on the most spurious of grounds.
Accordingly, in general terms, I have formed the view that the father is the more objectively grounded witness. However, what is more important is the obvious fact that each of the parties is a capable and loving parent, who have much to offer X and Y. Necessarily, by dint of their different personalities and the fact that they separated in challenging circumstances and now lead quite distinct lives, apart from the necessary intersection between them because of their children, they approach the task of parenting X and Y differently. However, this does not mean that there is not great worth, for the children, in their different parenting input.
BACKGROUND
The father was born in 1987. He holds a management position with an organisation associated with the Employer D, which provides financial advice to professionals. He earns $173,500.00 per annum. The mother was born in 1979. She describes herself as a stay at home mum. Previously, she worked as a tradesperson.
A significant aspect of the mother’s case is that the father is a high flying executive, who travels frequently and is required to socialise often with clients. The father asserts that the mother has exaggerated the demands of his work. He deposed that he has re-evaluated his work/life balance and now has decided to work to live rather than live to work.
I appreciate that these are easy sentiments to mouth in court. However, I did not disbelieve the father. In particular, I accept his evidence that he is valued by his employer, with whom he has been involved for many years. More significantly, I accept his evidence that he is able to work from home and so shape his work responsibilities around his parenting obligations. In these circumstances, I do not accept that there is any substance to the mother’s initial criticism that the father’s work commitments pose an impediment to him being significantly involved in providing care for the children.
The parties met in 2013; became engaged in 2015; and married in 2015. They agree the date of their final separation was around 30 October 2018. In early-November 2018, the mother and children moved out of the former family home in Suburb E and began to live with Ms Perrides’ parents.
It is common ground between the parties that the latter stages of their marriage were extremely unhappy and marked by a number of bitter arguments between them. In this context, the mother would characterise herself as being the victim of the father’s controlling and coercive behaviour.
On the other hand, the father asserts that both parties behaved equally badly towards one another and each subjected the other to vile abuse. Which although highly unfortunate, is explicable by reason of the parties’ frustration with the other, given their shared unhappy situation.
Against this difficult background, the father first commenced proceeding in this court on 30 January 2019 seeking final orders in respect of both parenting arrangements and the division of marital property. Initially, the father sort a split week regime for the children, who were then aged almost three and less than two.
At this early stage, the father was spending only modest periods of time with the children during afternoons and the mother required him to undertake a breathalyser test beforehand, which he had done as an act of good faith, each time recording a negative reading. The father’s rationale for commencing proceedings was that he felt that the then regime was inadequate to support his hitherto strong relationship with the children and the mother was unfairly dismissive of his parenting skills.

The mother responded to the application on 14 March 2019. At this stage, she was not supportive of the father spending anything other than daytime periods with the children. She asserted that the father had expressed little interest in the children and was inexperienced in caring for them as she had always been their primary carer. She was highly critical of the father.
On 18 March 2019, when the case came into court for the first time, the parties agreed to engage Ms C to prepare the first family report. At this early stage, it was also agreed that the children would continue to live with their mother and spend time with their father on Tuesday afternoons from 4:30 pm to 7:30 pm and on alternating Saturdays and Sundays between 9:00 am and 4:00pm.
In mid-March of 2019, the mother arranged for X to be assessed by an occupational therapist and speech therapist.[10] The concerns noted being that the child both over responded and under responded to some aspects of sensory input, which led to poor self-regulation. He was noted to be a highly anxious child, who needed a significant degree of reassurance and benefitted from routine, so he could feel in control of situations.[11]
[10] See affidavit of Ms Perrides filed 20 July 2021 at [128].
[11] See annexure A to the affidavit of Ms Perrides filed 20 July 2021.
Ms Perrides, to her credit, has continued on with the therapy recommended for X. It is her case that she was aware of X’s special needs from when he was an infant, but the father was generally dismissive of her observations, which have subsequently been found to be properly based. The implication of this evidence being that she is the more emotionally in tuned parent with X and the more intuitive parent.
It is Mr Perrides’ perception that the mother has not kept him fully appraised in respect of the therapy received by X, of which he is fully supportive. In his most recent affidavit, the father deposes as follows:
The mother suggests that I refuse to acknowledge and am not aware of [X]’s sensory processing disorder. Although the mother did not include me or make me aware of the assessment I am now well aware of [X]’s sensory processing disorder and I have spoken to his OT and following his diagnosis we had a schedule at my home on a whiteboard with visual aids such pictures of what we are going to do. Now each day at the beginning of the day I tell [X] what we will be doing for the rest of the day. He also has various physical activities set up in my backyard such as stepping stones, an obstacle course and a trampoline to help him use up his excess energy and focus on something. The OT specialist told me that the techniques that I was implementing to assist [X] were perfect.[12]
[12] See affidavit of Mr Perrides filed 4 April 2022 at [48].
The mother was critical that the father has recently removed the trampoline. The father explained the rationale for the decision in terms of difficulties X was experiencing in transitioning into year one. He has been noted to experience difficulty in making friends and has experienced some bullying. In this context, the father thought it might be helpful if he engaged in some form of team sport. The father played sports and considered that he would be able to teach X the rudiments of the sport and this might be helpful for his self-esteem.
More recently, the mother has obtained an updating report from X’s occupational therapist. The report is dated from April of 2022 and contains an email from the occupational therapist concerned, Mr G to the father, which indicated that X has progressed very well with his therapy and demonstrated greater strength and postural control. The report concluded as follows:
Despite the great improvement that X has made to date with intervention and therapy, X will continue to require ongoing assistance to gain skills in self-management, gross motor skills, self-care, social skills, communication, independence, and regulation for his emotional and social development. If Occupational Therapy is ceased or frequency reduced he is likely to have regressed in his developmental progress and the gap between himself and his peers is likely to increase significantly.[13]
[13] See annexure 1 to the affidavit of Ms Perrides filed 20 April 2022.
In my view, there is nothing arising from the evidence presented in this case to indicate anything other than that each of X’s parents are dedicated to ensuring that he receives every possible therapeutic assistance to assist him with his sensory processing issues. In addition, the evidence indicates that both parents have engaged with his school and teachers.
This state of affairs confirms one of my central findings in the case, after the three days of evidence taken before me, namely X and Y are fortunate children in the sense that they have two capable and insightful parents who love them.
As was the case with Ms C, I agree that the major factor, which may be detrimental to the children’s long term sense of well-being, is the parties’ mistrustful relationship. Which has resulted in the protraction of the case and is exemplified by their disagreement about all manner of issues which are likely to have marginal significance to the children’s welfare, as they grow to maturity.
Ms C’s first report was released to the parties on 5 August 2019. She reported that X and Y were lovely little boys, who seemed happy and well adjusted. She also reported that the mother and father presented as attuned, warm and loving to their children. In summary, Ms C assessed the children as travelling well but their parents less well.
The source of parental conflict, as is the case in the current proceedings, almost three years later, was on the issue of extending the father’s time with the children, at a faster pace than that with which the mother was comfortable. At this stage, the focus was on the father’s desire to commence overnight time.
Given her overall positive assessment of each of the parties and the strength of the children’s relationship with each of their parents. Ms C favoured the inauguration of one overnight per fortnight as soon as possible; with a second overnight to begin in about six months’ time, in around March of 2020; this continue until November of 2020, when Y would turn three years of age, when a third overnight per fortnight could be introduced.
In her summary, Ms C opined as follows:
I am aware that the above suggestions about moving forward are slower than [Mr Perrides’] application and faster than [Ms Perrides’] preference … However, I think that caution in this matter is wiser than moving too quickly, to ensure that the boys have adequate time to adjust to the regime suggested. Equally, there is some value in starting the overnight process, as I think the children have a warm and good connection with their father, which of course will help them in their adjustment to overnight stays.[14]
[14] First Family Report of Ms C dated 5 August 2019 at page 11.
To their mutual credit, the parties were aware that the conflict between them was not helpful to their children. As a consequence, from an early stage of their separation, they had been attending on Ms G, a psychologist for co-parenting counselling. Again, in my view, this is an indication of their shared insight.
The case returned to court, after the release of Ms C’s first report on 15 August 2019. At this stage, in the light of her recommendations, the parties were able to agree on a regime to extend the father’s time with the children. It was agreed that he would continue with the long standing Tuesday evening catch-up and spend overnight on alternate Saturdays from 9:00 am until 10:00 am the following Sunday; and in the other weekend of the fortnight from 9:00 am until 4:00pm on Sunday.
The parties agreed to continue on with co-parenting counselling and to attend an informal settlement conference. At this stage, issues to do with the division of their marital property remained outstanding. As previously indicated, it was on this date that the second overnight, as envisaged by Ms C was added. The case was adjourned until 14 February 2020.
It is significant, that there has been no further additions made in the period since. Regrettably, the case has been subject to some significant delays. It is the father’s position that the mother has opportunistically seized upon these delays and this is reflective of her lack of child focus. It being his position that he has consistently requested that the third overnight envisioned by Ms C commence but such requests have been rebuffed – he would say unreasonably – by the mother.
Ultimately, on 12 October 2020, after much of the court’s business had been disrupted due to the pandemic emergency, the parties’ competing applications were fixed for final hearing in early August of 2021 and Ms C was requested to up-date her family assessment by 31 March 2021. Regrettably, this trial did not proceed and was ultimately re-scheduled for May of 2022. The circumstances surrounding this adjournment are controversial.
Section 67ZBA of the Act mandates a party in a proceeding relating to a child to file a formal notice detailing any allegations relating to family violence occasioned by any other party to the proceedings to any relevant child. The father, when he commenced the proceedings, filed such a notice but indicated there were no such relevant allegations.
The mother filed the relevant notice of risk document, indicating at question three there had been no history of family violence. Nor did she raise clearly delineated issues of family violence in her initial affidavit, alleging that the father had drunk heavily during the parties’ relationship and that she and the father had had a verbal altercation on Mother’s Day in 2018.
When the trial was fixed in October 2020 for the following August, the standard notice was issued to the parties regarding the application of section 102NA of the Act to the proceedings. This section prohibits a party directly cross-examining a former spouse in cases involving allegations of family violence. The notice also drew attention to the fact that an unpresented party, affected by the provision, was entitled to apply for legal aid, from a specific Commonwealth Scheme to fund any necessary cross-examination.
On 15 June 2021, Mr Perrides’ former solicitor withdrew from the case and it became apparent that he intended to represent himself. He filed his trial affidavit, as had been directed on 6 July 2021. The mother filed her trial affidavit on 20 July 2021. This contained a heading Domestic Violence Issues and contained allegations that the father had subjected her frequently to vile verbal abuse, whilst standing over her.
She acknowledged herself having to physically push him away during these incidents. Her affidavit clearly delineated issues of control in the parties’ relationship. She deposed as follows:
I could see that these types of argument were empowering for him but for me they were slowly destroying me emotionally…Over time I became wary and frightened of the husband.[15]
[15] See affidavit of Ms Perrides filed 20 July 2021 at [168] – [169].
The case then came before the court on the original trial date, being 4 August 2021. A day prior, the father’s solicitor filed an application in a case seeking to adjourn the trial to enable him to be represented by counsel. It was the father’s perspective that there had been a significant change in the evidentiary issues coming before the court. As I recall, the mother’s position was that section 102NA should apply to the matter and this was acceded to. The trial was refixed for May 2022, which at the time was the earliest date available.
The parties were also directed to attend a Judicial Settlement Conference, with another judge of the court. To their mutual credit, they were able to resolve issues relating to the division of their property at this conference. By this stage, each party had incurred very significant legal costs.
Issues relating to the care of the children were not able to be resolved. At the settlement conference, the parties had available to them Ms C’s second report, which was released on 31 March 2021. In her report, Ms C, once again, interviewed the parties at significant length. The mother’s interview can be summarised as follows:
·Contact visits were going well and the children loved seeing their dad;
·However, the children came back from visits totally exhausted;
·X was experiencing some challenges in transitioning to school;
·Her relationship, with the father, was still not great;
·She was open to increasing the father’s time with the children;
·She wanted sole parental responsibility because she was doing this anyway; and
·X was scared of his father.
The father’s interview with Ms C can be summarised as follows:
·He had no issues with the children, at the time;
·He felt he was managing X’s sensory processing issues on the advice of his initial occupational therapist and he was a great little kid;
·Y was also a very positive child, who was bolted on to him permanently;
·He felt he was not getting information, from the mother, about the children and his perception was that she was inclined to make co-parenting as hard as possible, particularly, when there was no judge and no lawyers around; and
·He was concerned that the mother might be manipulating the children’s emotions.
Ms C summarised her interview with X and her observation of the children with each of their parents was as follows:
[X], aged 5 years, was very positive about school and also about both his parents. He was positive about spending time with both his mum and dad, and when asked about sleepovers, said they are good but also told me he misses mum when asked directly about this. I did not have an interview with [Y] because he is very young.
Observed interaction indicates that both parents manage the children well, are attentive and child focussed and relate warmly and positively to the boys. The impression is that the children have warm and loving relationships with each parent.[16]
[16] Second Family Report of Ms C dated 31 March 2021 at page 10.
In respect of the longer term management of their family, particularly in the context of extending the time the children spent with their father, Ms C recommended as follows:
In relation to a longer term pattern in this matter, my view is that a reasonable regime is for the children to spend 5 overnights per fortnight with their father. I do not think that 3 overnights per fortnight provides adequate time for the children to develop and build connection with their father, especially over the longer term as they get older in later primary school and their adolescence. This may be a period when, consistent with developmental needs, they may wish to be spending more time with him rather than less time. Also, and importantly, the impression over these 2 assessments is that the boys have a good relationship with their father, and [Mr Perrides] gives the impression that he is thoughtful and appropriate in his parenting. This is evidenced in his comments regarding his management of [X] and his very particular, and probably at times demanding, sensory issues.[17]
[17] Second Family Report of Ms C dated 31 March 2021 at page 11.
Thereafter, Ms C provided a detailed proposal as to how the children’s time, with their father, could be gradually increased to five night per overnight, in reflection of the tender years of Y, over the next two to three years, from early 2021 onwards. Her proposal was as follows:
·From early 2021, add in one overnight, split into two one weekend and one the other weekend of the fortnight;
·From early 2022, consolidate the arrangement into a block of three nights per fortnight;
·From early 2023 add in a fourth overnight – she proposed from Thursday to Monday on alternate weekends; and
·At some later stage, add a fifth overnight.
In this context, Ms C indicated what must be regarded as axiomatic, namely that there are numerous possibilities about how to pace the increases and changes. In respect of school holidays, Ms C considered that the appropriate ultimate pattern was half with each parent. Essentially, Ms C indicated what she considered was the appropriate outcome, in the case, and provided one proposal as to how it could be achieved, but declined to be proscriptive about how the ultimate destination was to be reached.
From the father’s perspective, if the parties had been able to agree on a regime, much time, expense and emotional resources could have been saved in what he would characterise as an unambiguous endorsement, by Ms C that the then regime of two distinct overnights per fortnight needed to be consolidated and increased.
It is his position that the mother has utilised delays, inherent in the court system, to postpone any increase in his time with the children, which must be regarded as being largely inevitable, given the unambiguous recommendations of Ms C provided between August 2019 and March of 2021.
In this context, he points to the fact the mother’s position, at the outset of the proceedings, was that the high watermark of his time, with the children, should only be three nights, per fortnight, but only from the start of 2023. In order to characterise her stance in the proceedings throughout as being tactical and self-serving in its motivation and thus far from child focussed.
I accept that Ms Perrides is a highly protective parent. However, in my view, there is some significant level of substance to Mr Perrides’ criticism that she has been inclined to delay the proceedings for as long as possible. Inevitably, in these types of cases involving a large degree of parental dysfunction and mistrust, delay suits one parent more than the other.
In addition, for obvious reasons, the adversarial nature of these proceedings encourage the parties concerned to extenuate the failing of the other, whilst diminishing or excusing their own. Necessarily, this process encourages a tactical approach be taken to cases. This has led to the highly undesirable situation that it has taken well over three years for the case to be finalised and even with the late made concessions of the mother, the parties remain unable to agree on some issues.
LEGAL PRINCIPLES APPLICABLE
Part VII of the Act deals with orders relating to children. Before making any particular parenting order, the court must regard the best interests of any child concerned as the paramount consideration.[18]
[18] Family Law Act 1975 (Cth) s 60CA.
Part VII is subject to a number of principles and objects set out in section 60B. These, if you like, provide the philosophical underpinning of the Act, as it relates to decision-making so far as children are concerned. The court is obliged to ensure that a child’s best interests are served by ensuring it considers various fundamental principles. I will provide each of them verbatim:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles, which underpin these objects, are set out in section 60B(2) and are as follows:
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

What is interesting to note about these various principles and objectives is the fact that it is children who have rights under the legislation and parents who have obligations and duties. In particular, the court is directed to ensure that children receive the benefits, likely to accrue to them, of having a meaningful involvement with a parent. This right must be viewed within the context of the child’s overall best interests, which consist of a number of specific considerations and factors.
The Act, picking up on section 60B, provides a specific list of matters, which the court must take into account in determining how a child’s best interests are to be served in the making of any parenting order. They are contained in section 60CC.
Section 60CC creates two classes of considerations, which apply to the court’s determination of how a child’s interests will be best served in proceedings before it. They are designated as primary considerations of which there are two and additional considerations, of which there are some fourteen in number.
In the current matter, the following additional considerations as set out in subsection 60CC(3) sub-paragraphs (a), (b); (d); (f); (g); (i) & (m) of the Act are likely to be central. These sub-paragraphs deal with the following issues:
·The views of the children, particularly in respect of X’s concerns about the length of any separation from his mother;
·The nature of the children’s relationship with each of their parents and other family members;
·The likely effects of change. The mother asserts that the court needs to proceed cautiously with increasing the time spending regime, particularly in the light of X’s sensory processing disorder;
·The capacity of the parties to provide for the emotional and educational needs of the children concerned is a central issue. The mother asserts that she is more emotionally attuned to the children and has been the more proactive parent in seeking out therapy for X;
·The maturity of the children. It is the mother’s position that the tender ages of the children dictate that a cautious approach should be taken in increasing the father’s time with the children;
·The children’s and either of the child’s parents background (including the traditions). It is the father’s case that he (and by necessary implication the children) come from a family on their paternal side which has a love for and interest in shooting. It is his position that they are likely to benefit from sharing in this family interest, if it is done safely and appropriately; and
·Each asserts that the other has a compromised understanding of what is entailed in being a responsible parent.
Pursuant to section 60CC(3)(m) the court may have regard to any other fact or circumstance which the court considers relevant. This is to ensure that the infinite variety of circumstances, arising in the life of each individual child who will be affected by the court’s order, may be adequately addressed.
Although the court is directed to consider many factors, in discharging its duties under Part VII of the Act, the best interests of the children concerned remain paramount.[19] The court’s duty is to deliver individual justice, for the child affected, in every case.[20]
[19] Family Law Act 1975 (Cth) s 60CA.
[20] See B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, 755 [34] (Nicholson CJ, Fogarty and Lindenmayer JJ).
In this sense, the court’s inquiry is a “positive one tailored to the best interests of the particular children and not children in general”.[21] As such the various factors, in section 60CC, are inclusive but not exclusive of one another.[22]
[21] See B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676, 734 [26].
[22] See Russell & Russell and Anor [2009] FamCA 28 at [141] (Ryan J).
The fundamental task for the court is to determine, bearing in mind all the considerations contained in section 60CC and bearing in mind the goals and principles contained in section 60B, what is the best outcome for any child concerned, both now and in the future.
In general terms, given their close connection to the objects and principles contained in section 60B the primary considerations are to be given more weight in the court’s deliberations. However, given the idiosyncratic issues arising in any particular case, one or more of the additional considerations may come to the fore.
Because of the importance the legislature places on both parents being closely involved in their child’s life, the starting point for any parenting order is to consider whether the parents concerned should have equal shared parental responsibility for their child.[23]
[23] Family Law Act 1975 (Cth) s 61DA.
The presumption relates to the allocation of parental responsibility, not the allocation of time which a child spends with each of his or her parents.
The presumption of equal shared parental responsibility is rebutted if it is found, on reasonable grounds, that one of the child’s parents has abused the child concerned or exposed him or her to family violence.[24]
[24] Family Law Act 1975 (Cth) s 61DA(2).
The presumption is also rebutted if evidence is provided which satisfies the court, that it would not be in the child’s interests for his or her parents to have such equal shared parental responsibility for the child concerned.[25]
[25] Family Law Act 1975 (Cth) s 61DA(4).
The two primary considerations, set out in section 60CC(2)(a) and (b), are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
In the past, these considerations were not formally ranked in regards to one another. They are now. As a result of the insertion of section 60CC(2A) into the Act, the court is now directed, in applying the primary considerations, to give greater weight to section 60CC(2)(b), which is the primary consideration relating to the need to protect children from physical or psychological harm, from being subjected to or exposed to neglect, abuse or family violence.
In the words of the relevant explanatory memorandum “where child safety is a concern, this new provision will provide the court with clear legislative guidance that protecting the child from harm is the priority consideration.”[26] Future protective issues for a child are the court’s priority.
[26] Explanatory Memorandum, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011 (Cth).
Accordingly, the legislature has directed the court, in respect of how a child’s best interests are to be secured, to give pre-eminence to protective concerns raised in respect of the child’s exposure to abuse, neglect and family violence. Although the court cannot overlook the benefits likely to accrue to a child from meaningfully interacting with a parent, it must give greater weight to protecting children. Necessarily, how this balance is to be achieved, to secure an outcome consistent, to the maximum extent, with the best interests of the child, must depend on the idiosyncratic circumstances of each case.
The aspects of a child’s life, in which a parent can be meaningfully involved, are, for obvious reasons, potentially multifarious. They include engaging in “fun” activities conducted on holidays and weekends – essentially interacting with their parents in a relaxed setting – as well as the day to day reality of the child’s life, such as supervising homework and bedtimes, imposing day to day discipline, and collection and delivery to school and sports training – essentially spending time with parents in a more mundane set of situations.
In this way, the child concerned is likely to have a more balanced and so richer relationship with each of his or her parents. It is these types of interactions, which add significance and value to parent/child relationships and so add meaning to them. Clearly, child/parent relationships, in order to be regarded as being meaningful in nature require both a qualitative and quantitative aspect.
The question of beneficial relationships is not to be considered in a retrospective sense. Rather, the court must look to future benefits, which will come to the child concerned, if his or her parental relationships are enhanced. I accept that to be meaningful, parental relationships require both sufficient temporal quantity and quality of shared time to sustain them.
A relationship does not necessarily become better, if a parent spends more time with a child but, for obvious reasons, a parent must spend sufficient time with the child concerned for the relationship between the two to become and remain “meaningful”. Otherwise, there is a risk of a parental relationship becoming token in nature. In Mazorski v Albright,[27] Brown J indicated that a meaningful parental relationship is one which is “important, significant and valuable to the child” concerned.
[27] See Mazorski v Albright (2007) 37 Fam LR 518 at 526 [26] (Brown J).
However, as the Full Court has also noted:
[H]aving a “meaningful relationship” with both parents is but one part of a set of arrangements that makes up a care arrangement. All parts of the arrangement must be considered before deciding what outcome is in the child’s best interests.[28]
[28] See Jurchenko & Foster (2014) 51 Fam LR 588, 618 [123] (Bryant CJ, Thackray and Duncanson JJ).
It is the obvious thrust of Mr Perrides’ case that he does not wish to be a token parent but wants to be involved in every aspect of X and Y’s care, welfare and development. I accept his evidence that he can meld his work requirements around this aspiration. In addition, from his perspective, it is important if his relationship with the children is to be inculcated with meaning that he be able to provide for the children on mundane school days and just hang out with them so that there is a comfort and ease between parent and child.
At least in Ms Perrides’ formal court documents, it was her position that the court needed to prioritise protective concerns relating to the children, given her characterisation of the father as a violent and controlling person, who had tyrannised and bullied her in the past. These assertions were made, I consider, within the context of her position that the high water mark of the father’s time with the children should be three overnights per fortnight.
Family violence is defined by section 4AB(1) of the Act. It means:
[V]iolent, threatening or other behaviour by a person that coerces or controls a member of the person’s family, or causes the family member to be fearful.
The legislature has provided a list of examples of behaviour which may constitute family violence in section 4AB(2) of the Act. Some of these examples are:
•an assault;
•a sexual assault or other sexually abusive behaviour;
•stalking;
•repeated derogatory taunts;
•the killing of an animal;
•preventing the maintenance of family ties;
•intentionally damaging or destroying property; and
•the withholding of financial support.
The above incidents are not, in themselves, definitional of family violence. Rather they are examples of conduct which may constitute family violence. The definition to be applied is contained in section 4AB (1) of the Act. The essential elements of the definition are that the behaviour in question, to amount to family violence must coerce or control another family member.
The behaviour need not be violent, in itself, or cause fear in the person to whom it is directed. It is a definition directed towards coercion. The impugned conduct is centred on power in relationships and the use of such power to control another family member. In this context, it is to be noted that the mother’s allegations of family violence, as outlined above from her trial affidavit of 20 July 2021, speak of the father’s allegedly derogatory and abusive taunts towards her as being empowering of him.
In assessing cases involving family violence, the court needs to be aware of the nature of family violence, in general terms. Most usually, it occurs behind closed doors, within the private confines of a family home and the only adult witnesses available to give evidence about it are the parties to it. As such it is not open to outside scrutiny.
Accordingly, it is very often difficult, if not impossible, for there to be independent verification that family violence has occurred in a particular relationship if no relevant external authority has been engaged, such as the police. In addition, it is not uncommon for the victims of family violence to be too embarrassed to complain to authorities or to be fearful about the implications of making such a complaint. However, the court needs to be mindful that the absence of corroborating evidence does not necessarily undermine a person’s evidence on that topic.[29]
[29] See Eaby & Speelman (2015) FamCAFC 104 at [21] (Ryan J).
Family violence is not homogenous in its qualities and can arise in a variety of contexts. As outlined above, it is centred on issues of power and control in intimate relationships and the implication of such behaviour for children and their carers. In this context, it is well recognised, including by the legislature through the provisions of the Act, that family violence is prevalent in all works of Australian society and represents a great threat to the wellbeing of children.
Family violence can range in character from impulsive behaviour that arises as a result of a stressful situation, such as a relationship breakdown, and is instantly regretted, or it can be more systematic and deliberate, arising from a clear power imbalance between the parties concerned. Obviously the latter behaviour is the more damaging so far as children are concerned.[30] Not all incidents of family violence will be necessarily damaging for a child.
[30] See In the Marriage of JG & BG (1994) 18 Fam LR 255, 261 (Chisholm J).
Where family violence is endemic in a parental relationship it has the potential to be damaging for children in a variety of ways. Most obviously they may be directly injured by an episode of violence or frightened by it. More subtly, children learn their behaviour from their parents. Parents who use violence to resolve disputes or who inflict force on the other parent are not appropriate psychological role models for children.[31]
[31] See In the Marriageof Patsalou (1994) 18 Fam LR 426, 428 (Baker J).
In the context of the applicable legislative regime, the mother’s allegations of being the subject of coercive and controlling family violence required the court’s serious consideration, particularly given the significance of any finding of such violence has in terms of the application of shared parental responsibility and thereafter whether a parent should have either equal time or substantial and significant time with a parent. It was also relevant regarding the application of section 102NA to the proceedings.
Courts must be careful of making findings of fact in respect of the perpetration of family violence on the basis of its assessment of credit – that is believing one witness over another. In this case, it is notable that the mother did not raise issues of family violence when she responded to the application or canvas these issues specifically with Ms C.
That is not to say I consider that it is readily apparent that the parties’ marriage, in its latter stages, was anything other than toxic. In my view, from the evidence of each of the parties, particularly the father, it is the case that both of them contributed to this unhappy state of affairs and neither can be considered to be blameless in respect of it. Given this lamentable state of affairs, their separation was the only viable outcome for them, particularly given the implications their unacceptable relationship had on the emotional welfare of their children.
The father describes his perception of the extreme discord, during parties’ marriage, in the following terms:
The mother also alleges that I was abusive to her throughout the marriage but the physical abuse was directed towards me by the mother. She has slapped me on the face whilst I was sitting on the couch and slapped me on the back while I was walking away from her. Another time I was unable to get [Ms Perrides] to stop yelling and I retreated with [X] to the bathroom and locked the door and began singing to [X] so he didn’t hear the yelling. [Ms Perrides] then kicked a hole in the bathroom door to try to get to us. [X] was crying hysterically at this point…I admit some of verbal arguments would turn into screaming matches and she would call me a piece of shit and a fat cunt, wanker, fuckwit. She would control every aspect of my life. I wasn’t allowed to see my friends. I wasn’t allowed to go to the gym. I wasn’t allowed to go out with work colleagues and I wasn’t even allowed to travel interstate for work.[32]
[32] See affidavit of Mr Perrides filed 4 April 2022 at [77].
In his oral evidence to the court, the father confirmed the parties frequently screamed at one another but it did not escalate to actual violence other than the bathroom incident, with the door being damaged when he closed it whilst the mother was pursing him. The mother agreed she screamed at the father and he retreated to the bathroom. The parties disagree as to who was responsible for the escalation of these conflicts.
On balance, I consider that both must bear responsibility for this lamentable state of affairs, which arose because of their joint unhappiness and frustration. I do not consider that there was a marked power imbalance between them. I also accept that the father regrets what occurred.
Thankfully, there is no objective evidence to indicate that either child has suffered any long term consequences as a result of being exposed to this violent behaviour. As such, I do not consider that the presumption of equal shared parental responsibility is rebutted in this case as a consequence of issues of family violence, now that the parties have ended their relationship with one another.
In these circumstances, in my view, issues related to the benefits likely to accrue to the children from having a meaningful level of relationship with each of their parents must be the primary focus of what remains to be determined in the proceedings. In this context, I unequivocally accept Ms C’s assessment that X and Y have a close and loving relationship with each of their parents and thus each will benefit from spending significant periods of time with each of them.
Given my findings about the conflict between the parties in the past and each of their concessions that communications between them remain fraught with difficulties, I would be naïve to consider anything other than that their co-parenting of X and Y will be extremely challenging for the indefinite future. It is in this context, that the court must adjudicate the remaining issues in dispute between the parties. In my view, it must consider issues of practicality.
Section 61DA deals with the allocation of parental responsibility in respect of a child, particularly the presumption of equal shared parental responsibility. It does not deal directly with more practical aspects of a child’s life, particularly the amount and type of time a child spends with his or her parents or where a child is to live. Such matters are dealt with by section 65DAA.
By application of section 65DAA(1), if the presumption of equal shared parental responsibility applies in respect of a child, the court is required to consider firstly whether the child concerned should spend equal periods of time with both his or her parents, provided such an outcome is both likely to be in the child’s best interests and reasonably practicable.

If the court rejects equal time, it is then required to consider the child spending “substantial and significant” periods of time with each of his or her parents. Again, this outcome is subject to consideration of the child’s best interests and reasonable practicality.
The expression “substantial and significant time” is defined in the Act.[33] It means time that allows a child to spend time with a parent on both weekends and holidays; and days during the working or school week.
[33] Family Law Act 1975 (Cth) s 65DAA(3).
More significantly, it is time which enables a parent to be involved in a child’s daily routine as well as occasions and events, which are of particular significance to the child concerned. Again, the aim of the legislation is to enhance the parent/child relationship concerned, through mechanisms which enable the child to spend time with a parent in a variety of settings.
Issues of practicality are dealt with by section 65DAA(5). The court is required to consider how far apart are the parties’ homes; the parties’ current and future capacity to implement shared care type arrangements; the parties’ ability to communicate with one another and solve parenting problems consensually; and most importantly, the likely impact of such an arrangement on the child concerned.
The High Court has considered the interplay between the question of whether it is in a child’s best interests to spend equal time with each parent (and substantial and significant time) and the question of whether such outcomes are reasonably practicable, which arises from section 65DAA(1) and (2) of the Act.
The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. This is because section 65DAA(1) and (2) are expressed in “imperative terms” and oblige the court to consider both questions. The affirmative answer to both being an essential jurisdictional fact before an equal time or substantial and significant time order is made.[34]
[34] See MRR v GR (2010) 240 CLR 461, 466 [13] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).
Accordingly courts such as this one are directed to consider the reality of the situation which confronts parents and children and not merely whether it is desirable. In the sense of facilitative of the child’s best interests alone, that an order be made for equal time to be spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child.[35] As a consequence, a proper consideration of what is feasible requires the court to consider the circumstances of each of the parties concerned.
[35] See MRR v GR (2010) 240 CLR 461, [13]-[15].
The parties’ relationship is very poor and likely to remain so. At the same time, the relationship of the children, to each of their parents, is very good. In addition, albeit at a very late stage, the mother has essentially conceded that the children should spend substantial and significant periods of time with their father.
However, the fact that the parties remain in dispute about how such a regime is to be implemented and other issues, which with due respect to them, appear to have marginal significance for the welfare of the children, is obviously not a hopeful harbinger that they well be able to seamlessly implement the arrangement which will follow these proceedings.
In Astor & Astor[36] O’Reilly J said as follows, in respect of what should follow from the application of the presumption:
…it is not as if, as soon as communication difficulties between the parties, or other difficulties between them are identified, the discretion ought not be exercised… Rather, the matter is one of balancing all relevant factors…[37]
[36] Astor & Astor [2007] FamCA 355.
[37] See Astor & Astor [2007] FamCA 355 at [195].
In the present matter, all the benefits likely to flow to X and Y from having the most meaningful level of relationship with each of their parents, in my view, far outweigh the problems which are likely to arise from the parents’ compromised relationship. In addition, it is to be hoped, perhaps not confidently, that this relationship will improve over time. In this regard, I echo the sentiments of Ms C.
In my assessment the reasons for the parties’ poor relationship cannot be allocated more to one parent than the other. Individually, they are each good parents, with obvious strengths and, being human, some weaknesses. As such, each has much to offer X and Y. In tandem, they are problematic. As a consequence, they elected to separate but they remain linked, as their children’s parents.
Considerations of this kind, in my view, should also inform how parental responsibility is to be conferred. I agree with Ms C that there are no compelling reasons militating in favour of one parent being conferred with parental responsibility for X and Y. Rather, I suspect that such an outcome would lead to more rather than less competitive behaviour between them.
How responsibility for the parenting of a child is formally conferred upon a person, in proceedings conducted under the Act, is through the making of a parenting order. Parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[38]
[38] Family Law Act 1975 (Cth) s 61B.
The court has authority conferred upon it, through the provisions of Part VII of the Act, to alter the conferral of parental responsibility on any parent or parents, which arises by reason of their status as parents of any child concerned.
A parenting order is an order which deals with such issues as the persons with whom a child should live; spend time and communicate with; and the persons who should have responsibility for making decisions, both significant and otherwise, about a child and the degree of consultation necessary to implement such decisions.[39]
[39] Family Law Act 1975 (Cth) s 64B(2).
Pursuant to section 65C of the Act, a child’s parents; the child; a child’s grandparents; or any other person concerned with the child’s care, welfare or development; may apply for a parenting order. Accordingly, the applicants have legislative authority to seek the orders, which they do.
In addition, as a consequence of the provisions of section 65D, the court is empowered to make whatever parenting order it considers “proper”. Pursuant to section 64B parental responsibility can be allocated to two or more persons. Clearly this provision, when considered in the light of the objects and principles underlying Part VII, contained in 60B, is supportive of the concept of parents sharing parental responsibility and meeting their responsibilities concerning their child or children’s care, welfare and development.
An order which provides for shared parental responsibility requires that the parties to it consult with one another and make a genuine effort to come to a joint decision about major long-term issues to do with the child or children concerned.[40]
[40] Family Law Act 1975 (Cth) s 65DAC.
Major long-term issues is defined in section 4 of the Act and includes issues to do with a child’s education; religious and cultural upbringing; the child’s health; the child’s name; and changes to the child’s living arrangements that would make it significantly more difficult for the child concerned to spend time with a parent.
Pursuant to section 65DAE, parents (or other relevant persons) do not have to consult on matters, which are not concerned with long term issues, when the child is spending time with one or the other of them.
This is to ensure that the myriad of decisions, which have no long term significance concerning a child and which need to be made on a day to day basis, by both of the child’s parents, can be made.
As is evident in the current matter, although each of the parties is quite clearly and fervently interested in all issues to do with the long term parenting of X and Y, their capacity to communicate effectively is extremely limited. As such, each of them can only be described as interested in the care, welfare and development of their children.
Clearly, the viability of the parties’ on-going parenting relationship must be a relevant consideration as to how parental responsibility is conferred between them. In Bartel & Schmucker (No 3), Cronin J said as follows regarding the nature of parental responsibility:
Whilst parental responsibility is vaguely defined, some insight into what is needed from a parent can be seen in s 65DAC(3) which provides that if both parents have that responsibility, they are taken to be required to consult about parenting issues and make a genuine effort to come to a joint decision. It will again be remembered that the focus of the objects and principles in this Act is on joint parenting.[41]
[41] Bartel & Schmucker (No 3) [2012] FamCA 1094 at [18] (Cronin J).
Cronin J further said of the concept of parental responsibility that it:
[I]s a broad concept as described in s 61B and that task covers many things. Parents are expected jointly to endeavour to promote their children’s development by ensuring they have the greatest potential in adulthood whilst at the same time enjoying the security of childhood they deserve.[42]
[42] Bartel & Schmucker (No 3) [2012] FamCA 1094 at [21].
Although the parties’ parenting relationship is compromised, it is clear to me that each of them fervently love and care about X and Y. As such, each will be vitally interested in every aspect of their care, particularly in respect of the major issues of education and health. I accept it will be difficult, but given this state of affairs, it is incumbent that they be required to inform and consult with one another about the big ticket issues concerning their children’s best interests and reach a consensual position. This will be in the best interests of X and Y, whom both Mr Perrides and Ms Perrides profess to hold as their priority in life.
The legal principles to do with a child travelling outside Australia, in the company of one of his or her parents, in circumstances where the other parent concerned opposes that travel, are complex. Fundamentally, the court must determine whether the travel proposed is likely, on balance, to be in the child’s best interests. Necessarily this exercise must invoke the weighing and assessing of competing considerations and the balancing of the applicable section 60CC factors.
In considering the overseas travel proposed, the court must obviously turn its mind to the potential impact the travel may have on the ability of the child concerned to have a meaningful relationship with the other of his or her parents [section 60CC(2)(a) & (3)(b)].
Clearly if a parent absconds with a child overseas, such an action must have the most serious implications for the nature of the relationship the child has with the parent left behind. Such considerations raise the following practical issues and criteria:
·the length of the proposed stay out of the jurisdiction;
·the bona fides of the application;
·the effects on the child concerned of any deprivation of time spent with the parent who remains in Australia;
·any threats to the welfare of the child concerned by the circumstances of the proposed environment overseas;
·the degree of satisfaction which the court has that a promise made by a party to return to Australia will in fact be honoured.[43]
[43] See Kuebler & Kuebler (1978) FLC 90-434 at page 72,205.
Fundamentally, the court must make some assessment of whether there is any risk that the child concerned will not be returned to Australia, in spite of undertakings to the contrary. Obviously, such a possibility has potentially very serious ramifications for the child concerned. It may result in the severance of his or her relationship with one aspect of his or her family.
In Line & Line[44] the Full Court of the Family Court indicated that there are a range of circumstances which the court should take into account in assessing the degree of risk that a travelling parent will not return any child concerned to Australia. These factors include the following:
·the existence (or otherwise) of continuing ties between the departing parent and Australia, such as the ownership of real property; the existence of business interest; or the residence of family or close friends in the country;
·the existence and strength of possible motives not to return, which included the level of conflict between the parties concerned, particularly over child related issues;
·the existence and strength of possible motives to remain in the country of proposed travel, again including such things as possession of property; business interests; and the existence of familial and personal ties.
[44] Line & Line (1997) FLC 92-729.
In such circumstances, the court is required to consider whether it is appropriate to impose conditions or impose securities to ensure the return of the child concerned to Australia. In determining whether some form of security should be imposed, the court is directed to consider the following factors:
·in fixing the sum of money as security, whether the sum is such as to realistically entice the person removing the child to return to Australia and also to adequately provision the party remaining in Australia to take action for the return of the child, if necessary.
·the degree of risk that the departing parent will not return to Australia.
·whether the country of travel is a signatory to the Hague Convention and the likelihood of deviation to a non-convention country.
·the financial circumstances of both parties and any hardship to either party if the level of security is increased or decreased.[45]
[45] See Line & Line (1997) FLC 92-729 at page 83,846.
In the present matter, in my view, it is telling that the parties concerned each have significant ties to Australia. Neither parent has any immediate plans to travel overseas with the children. When they do, it seems likely they will choose an appropriate location for the travel and the children’s return to this country will occur. However, what the world situation will be in 2026 is unknowable. Accordingly, in my view, at the present juncture, overseas travel, for the children, is to a large extent, a non-issue.
The question of exposure of a child to a firearm is potentially a highly emotive issue, for axiomatic reasons. Firearms are dangerous and in some individuals precipitate a visceral revulsion. For them, the notion of a child being able to engage with such a potentially dangerous tool is horrifying.
On the other hand, some individuals regard shooting as a sport involving hand eye coordination and a high degree of skill, which are useful for children to acquire. Such individuals do not fear guns or regard them as something from which individuals need protection, if they are approached with a proper level of training and precaution.
In this context, firearms are not illegal and are used for a variety of legal purposes, including sport. I acknowledge that there are many competitive forms of shooting and it can take place in highly regulated and controlled settings, such as a shooting range or a shooting club or association.
Shooting clubs offer training and membership to juniors. In general terms, I accept that it is not impractical for a child to learn to shoot a firearm, if the instruction is provided by a competent adult and in strictly controlled circumstances.
I also accept that, as with any sporting activity or one involving the learning of a skill, benefits can accrue from being able to shoot, particularly if the child engages in the activity in a familial situation. In this context, I must be careful not to impose my own subjective values, about a potentially emotive issue, on the parties.
As indicated, many of the functions I am required to discharge in determining the best outcome for a child, pursuant to the provisions of the Family Law Act involve the assessment of risk. This must be done in objective terms.
For obvious reasons, no individual’s life can be rendered completely free of risk. Any attempt to render a child’s life completely anodyne may, in itself, create some degree of risk in the sense that the child’s existence becomes banal and colourless. Children benefit from being placed in challenging situations and learning new skills.
At the same time risk is multifaceted. The mother’s aversion to firearms and her fear of the danger which they represent, when coupled with her vigilant parenting style must be regarded as a significant element of how the court assesses risk in this particular case. In B & B[46] the Full Court said as follows:
…it is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children’s protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
[46] In the marriage of B & B (1993) FLC 92-357 at page 79,780.
In my view, these comments are apposite to the current matter. The mother does not trust the father, including in respect of how he approaches shooting. She has alleged that, in the past, the father and members of his family have been cavalier about firearm safety and have engaged in shooting outside a range.
She regards both children but X, in particular, because of his sensory processing disorder, as being children who should not be able to engage in shooting. She does not wish the children to be in the presence of a firearm until they are aged at least 11 years, at which age they can presumably witness others fire a gun. The father wishes the children to be able to discharge a firearm when they are this age.
Given the vehemence mother’s feelings about the issue, I propose to make the order which she proposes. I can see no pressing issue, relating to the children’s best interests, which indicates that they should be able to go to a shooting range or to any other place where firearms are discharged or displayed prior to attaining 11 years of age.
CONCLUSIONS
After having outlined, as best I can the applicable legal principles and after having attempted to summarise the evidence and competing perspective of the parties, it is now necessary for me to make concrete arrangements in respect of care arrangements for the two children concerned. I do so because the parties themselves, despite narrowing significantly the areas of dispute between them, cannot reach a compromise.
In these circumstances, the parties present me with a zero sum game. I either make the order of the mother’s preference; or that of the father. In so doing, notwithstanding my efforts to explain the relevant legal provisions in some detail, I fear that that the ultimate decisions made with have the appearance of being arbitrary in nature.
Necessarily, as Ms C pointed out there is no correct answer to the pace at which the children should start to spend more overnights with their father. Rather, individuals, the parties in this case included, are likely to have different views as to what is appropriate. At the outset, the parties agree that the time is now ripe for the father’s time with the children to move to a 2/1 night per fortnight regime and such an order was made on 4 May 2022 from the Queen’s Birthday weekend onwards.
Given the parties’ poor relationship with one another it seems to me to be appropriate that, as far as is possible, the children be exchanged between them at a neutral location which does not require their mutual attendance. The children’s school provides the obvious location in this regard.
In addition, if it is utilised for the start of the father’s time, it will afford him an opportunity to interact informally with the children’s teachers and get a sense of what their lives are like in the school setting. This will normalise the children’s paternal relationship and add meaning to the relationship between father and children.

The parties agree that June of 2023 is the appropriate stage at which to begin a three day block of time the children spend with their father from Friday until Monday per fortnight, whilst moving the existing Tuesday afternoon to a Thursday, in the intervening week.
The parties also agree that form the start of the school year in January of 2024 the Thursday regime should be extended until the start of school the following Friday, inaugurating a 3/1 day configuration.
This leads to the major controversy between the parties. What should be the configuration from the start of the school year in 2025? The father’s preference is there to be an extension in the form of 4/1 configuration, whilst the mother prefers a 3/2 regime.
In my view, it is not an issue the resolution of which is readily amenable to the application of the principles contained in section 60CC. One option is not patently better placed than the other to meet the children’s best interests. In her evidence, Ms C was of the view that it was in the children’s best interests to spend an extended period of five nights per fortnight, but in her opinion, there are numerous possibilities about how to pace the increases and changes.
The father would prefer to have a block of five contiguous nights per fortnight. Accordingly it is his case that he is prepared to compromise with the 4/1 proposal. It is his position that the regime to be inaugurated in 2024 will provide an appropriate runway for his preferred approach to begin. The mother’s view is that it is too dramatic and her position is a more child focussed one.
These proceedings have been much delayed. The parties were provided with Ms C’s second report, in which she recommended the adding in of a fifth overnight in early April of 2021. The father’s proposal is more consistent with Ms C’s proposal than that of the mother. In my view, there is not a great deal of difference between the two proposals, each can command factors for and against it.
It is the father’s evidence, which I accept that he can configure his work commitments around his responsibilities for the children but he would prefer a longer rather than a shorter period with the children. On balance, it is likely to be better for the children to adopt the father’s preference, as this will give him more flexibility in terms of his work.
In my view, it is somewhat speculative to assert that the children will find it a dramatic change. Rather, in my assessment, the build up to this regime will have been carefully calibrated, as Ms C recommended a year ago. In these circumstances, I propose to adopt the father’s proposal regarding how the fortnights are to be configured.
The parties have essentially agreed that from 2024/2025 onwards, the long end of year school holiday is to be divided equally on a week about basis, although the mother’s seeks that the period of that school holiday falling prior to Christmas provide a graduated introduction to this regime. In my view, the father’s proposal is simpler and thus has advantages in its implementation. Otherwise it seem to be agreed that school term arrangements should continue during the short school holidays.
The parties have agreed how the major occasions, significant to parents and children – Mother’s Day; Father’s Day; Christmas/Boxing Day and Birthdays.
The parties’ co-parenting relationship is obviously fraught with all manner of difficulties and tension. For the reasons outlined above, in these circumstances, a handover at school makes sense. However, there needs to be an alternative location, when the children are not attending school.
In this context, the mother proposes the utilisation of McDonald’s at Suburb H, a shopping centre. Whilst the father proposes the mother deliver the children to his home, at the beginning of relevant periods and he return them to her home at the conclusion. Again this is not a controversy readily amenable to resolution pursuant to the criteria provided by section 60CC of the Act. Both proposal have pros and cons.
In my assessment, the father’s proposal is the more normative one for the children and so the one slightly better calculated to bring more meaning into the children’s paternal relationship. It is more usual for children to be exchanged between parents in a domestic setting. Such a setting also has more appeal on purely logistical grounds. The children can be exchanged where they have access to their toys and other possessions, which give them the means to be diverted if one of other of their parents are delayed.
The parties recently exchanged the children at their paternal grandmother’s home, on the occasion of her sixtieth birthday party. This was accomplished without problems. The mother’s preference appears to be predicated on the basis that a public location provides her with greater security. She does however accept that the use of the parties’ homes is inevitable, as time progresses and that the children are comfortable and familiar with these locales. On balance, I prefer the father’s proposal.
The parties each proudly identify as Australians of Hellenic background. To their credit they have been able to agree on arrangements in respect of Orthodox (or Greek) Easter but disagree on what they have characterised as Catholic Easter. As is well known, the former is calculated pursuant to the Julian Calendar; the latter according to the Gregorian Calendar. Although in cultural terms, Greek Easter is likely to be more important to the parties, the fact remains that these days are not public holidays in Australia, unless they coincide with Catholic Easter, which will occur from time to time.
The parties agree the following orders in respect of Orthodox Easter:
The parent who does not have the children residing with them during Greek Easter shall have the children from 2.00 pm Sunday until the commencement of school Monday (or 9.00 am if it is a non-school day, NOTING THAT if Greek Easter and Catholic Easter fall on the same weekend, then Catholic Easter arrangements prevail.
The distinction between the parties’ respective proposals in respect of Catholic Easter is modest indeed and, as with many of the issues to be determined by the court, it is sad that the parties themselves cannot find a compromise, which in my view would be more affirmative for their co-parenting relationship and so more beneficial to the overall well-being of their children.
The father’s preference is that the time be divided between the parties with the periods from Maundy Thursday until Easter Saturday and from Easter Saturday until the following Tuesday alternating between them on an annual basis. So far this can be characterised as a conventional approach and in broad terms the mother agrees.
The difference between the parties’ proposals is that the father wishes the handover time to be 7.00 pm on Easter Saturday; whereas the mother wishes the time to be 3.30 pm. It seems to me that the father’s proposal is marginally superior as it will enable each party to have a full day with the children. I accept however that the distinction is a slight one indeed.
The final contentious issue concerns the facilitation of the children interacting with their parents via FaceTime, when they are in the care of the other parent. FaceTime is a modern technological miracle. At modest or no expense, individuals are able to talk to another via a mobile telephone held in the palm of a hand or via a computer or tablet screen, whilst seeing another individual and what that individual is doing.
FaceTime is of particular benefit to the distant parent of young children, who may be easily distracted from engaging in only oral conversations via the telephone. Obviously FaceTime is more immediate and potentially engrossing for children because more senses are engaged and the child can physically demonstrate to a parent what he or she is doing.
Such modes of interaction also have the benefit of being able to be spontaneously staged, so that a child, by way of example, can show a distant parent some skill which has been recently mastered or, in the event of some form of emotional dysregulation or upset such a parent can provide comfort from afar. Clearly, these miracles of modern technology have the potential to enhance parental relationships for the children of separated family.
However, they can also be a source of controversy. In high conflict parenting situations, one parent may assert that even the virtual electronic presence in his or her home is intrusive and emotionally unsettling as it diminishes privacy and personal security and thus FaceTime becomes a tool to control and intimidate one parent by another.
In this particular case, the father wishes for the children to have an organic and unstructured capacity to make spontaneous FaceTime contact with the other parent, when the child concerned wishes to reach out to the absent parent. On the other hand, given her role as the children’s primary carer, the mother wishes a more proscribed regime of FaceTime between the children and her. She proposes as follows:
·In accordance with either child’s reasonable wishes;
·Commencing 10 June 2022, with the Mother on Saturday at 2.00 pm during which time the children are otherwise in the care of the Father;
·Commencing June 2023, with the Mother on Sunday at 2.00 pm during which time the children are otherwise in the care of the Father;
·With the Father once per week at a time that is mutually agreed upon between the parties in writing;
·With the parent the child is not residing with at the time during the long school holidays each Tuesday at 2.00 pm;
·At any or such other times as may be agreed to between the parties in writing.
Her proposal is predicated on the basis that the parent who does not have care of the children is to initiate the telephone/FaceTime call in the first instance.
Again, I can see the sense in each party’s proposal – the father’s allows the children spontaneity, which is in keeping with the medium itself and how the modern world approaches mobile technology. The mother’s proposal is more reflective of the high conflict between the parties and the need to regulate their relationship as much as possible to avoid escalation of hostility.
As the children get older and perhaps obtain their own devices, the need for the court’s intervention is likely to become otiose. However, I am unaware if the parties themselves have any personal views as to when the children should obtain their own telephones (of if at all). In the short term, the structure of the mother’s position is more appealing to me as a means of minimising conflict; the father’s position is more appealing in that it is likely to reflect the long term reality of the situation.
Given the comparatively tender ages of the children I elect to adopt the mother’s position. I would hope that each of the parties will honour any request from the children to speak with the other parent.
The toolbar on my computer indicates that I have written seventeen thousand words thus far. I accept that this is far too many words and I regret my prolixity. This is a case which should have been resolved. That it has not done so is indicative of some failure in the system somewhere.
The parties have each spent significant sums of money in reaching this point. More recently that has been public money provided to the parties pursuant to the Commonwealth Scheme to fund any necessary cross-examination in cases affected by section 102NA of the Act. I do not consider that these monies have been well spent.
In my view, the parties were given ample opportunity to resolve the matter. Their experienced counsel were unable to narrow the gap in respect of issues, which are not likely to be of significant relevance in respect how X and Y develop emotionally and socially.
It is axiomatically not in X and Y best interests that a judge must decide what are the arrangements for their care, at enormous expense to both the public and their private purses. I have done my best to make the final orders which I consider will serve the children’s best interests but I am well aware that my essential function is just to break the dead lock and end the litigation between the parties so the parties can move on.
The proper regulation of any free and open society requires that there be an independent and rational process of resolution of disputes arising between citizens, who in this case are separated parents. That is not to say such a system, though necessary, is helpful to children. Rather:
[W]hat is best for children is that their parents co-parent by agreement and without conflict and as selflessly as circumstances reasonably allow. When parents are unable to agree, the parents’ proposals embraced in competing applications involve again axiomatically, advantages and disadvantages for the children, each and all of which have ramifications for the children’s best interests.[47]
[47] See Zahawi & Rayne [2016] FamCAFC 90 at [47].
However, on a positive note, whatever happens, the children are likely to enjoy a comfortable and well-resourced middle class childhood, in which they will receive the unqualified love and devotion of their two capable parents. In these circumstances, it is inevitable that the parties will have, though practical necessity, to remain extensively involved with one another for the next fourteen years of so (when X will be eighteen years of age) and quite possibly for the remainder of their lives.
In these circumstances, it is in the parties’ best interests, but more so in the interests of their children, that they do their upmost to make their co-parenting relationship as effective and respectful as possible. It is trite but true nonetheless that one’s obligations as a parent do not end with the maturity of any children concerned.
In concluding these reasons, I wish the parties well and again regret the length of these reasons for judgment. For the foregoing reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.

I certify that the preceding two hundred and twenty-three (223) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Brown.
Associate:
Dated: 5 July 2022

File number(s):	ADC 345 of 2019
Judgment of:	JUDGE BROWN
Date of judgment:	5 July 2022
Catchwords:	FAMILY LAW – children – final hearing – limited issues- parents unable to agree logistical arrangements – parenting arrangements for two children aged 6 and 4 – best interests of the children – parties have a limited co-parenting relationship – mother is reluctant to increase fathers time – father seeks gradual increase – mother asserts family violence allegations
Legislation:	Evidence Act1995 (Cth) s 140 Family Law Act 1975 (Cth) Pt VII, ss 4, 4AB, 60B, 60CA, 60CC, 61B, 61DA, 64B, 65C, 65D, 65DAA, 65DAC, 65DAE, 67ZBA, 102NA
Cases cited:	Astor & Astor [2007] FamCA 355 B v B: Family Law Reform Act 1995 (1997) 21 Fam LR 676 Bartel & Schmucker (No 3) [2012] FamCA 1094 Deiter & Deiter [2011] FamCAFC 82 Eaby & Speelman (2015) FamCAFC 104 Fox v Percy (2003) 214 CLR 118 In the marriage of B & B (1993) FLC 92-357 In the Marriage of JG & BG (1994) 18 Fam LR 255 In the Marriageof Patsalou (1994) 18 Fam LR 426 Jurchenko & Foster (2014) 51 Fam LR 588 Kuebler & Kuebler (1978) FLC 90-434 Line & Line (1997) FLC 92-729 Mazorski v Albright (2007) 37 Fam LR 518 MRR v GR (2010) 240 CLR 461 Russell & Russell and Anor [2009] FamCA 28 Slater & Light [2013] FamCAFC 4 Zahawi & Rayne [2016] FamCAFC 90
Division:	Division 2 Family Law
Number of paragraphs:	223
Date of last submission/s:	5 May 2022
Date of hearing:	2-4 May 2022
Place:	Adelaide
Counsel for the Applicant:	Ms Betro
Solicitor for the Applicant:	A K Reeves & Associates
Counsel for the Respondent:	Ms Ross
Solicitor for the Respondent:	Adelaide Family Law

ADC 345 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR PERRIDES Applicant
AND:	MS PERRIDES Respondent

ORDER MADE BY:	JUDGE BROWN
DATE OF ORDER:	5 JULY 2022