Pickford & Pickford (No 4)
[2025] FedCFamC1F 201
•27 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pickford & Pickford (No 4) [2025] FedCFamC1F 201
File number: SYC 3365 of 2019 Judgment of: HARPER J Date of judgment: 27 March 2025 Catchwords: FAMILY LAW – PARENTING – Where issue of father’s time with the children remitted by the Full Court for rehearing – Where the mother has sole parental responsibility – Where the parties entered into a final consent order for time spent with the children on special occasions – Where the mother seeks the time the two children aged 9 and 7 years spend with the father during school terms be reduced from 4 nights to 3 nights per fortnight – Where the mother sought the father to have block time of 7 nights or 14 nights during school holidays – Where the father sought to spend 7 nights per fortnight with the children during school term and half of school holidays – Where the Independent Children’s Lawyer proposed the father spend 4 nights each fortnight during school term with the children and half of school holidays – Where the children have been spending 4 nights per fortnight during school term and half school holidays with the father since June 2021 – Where the mother failed to establish allegations of angry and aggressive conduct by the father and that the children’s behaviour was “deteriorating” – Where there are no issues of safety for the children in the care of the father – Where the older child expressed wishes to spend more time with the father – Where the mother’s proposal for time spent during school holidays would introduce unnecessary complications – Orders for increased time with the father for both children for 5 nights per fortnight and half school holidays. Legislation: Family Law Act 1975 (Cth) Pt VII, ss 4AB, 60B, 60CA, 60CC, 60CD, 64B, 65D, 65AA, 65DAB
Family Law Amendment Act 2023 (Cth)
Cases cited: Pickford & Pickford [2024] FedCFamC1A 249
Pickford & Pickford (No 2) [2024] FedCFamC1F 500
Tibb v Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142
Trudeau & Andrewson [2025] FedCFamC1A 26
Division: Division 1 First Instance Number of paragraphs: 97 Date of hearing: 18-21 March 2025 Place: Sydney Counsel for the Applicant: Mr Walmsley KC Solicitor for the Applicant: Long Saad Woodbridge Lawyers Counsel for the Respondent: Ms Spain Solicitor for the Respondent: ATW Family Law Solicitor for the Independent Children's Lawyer: Ms McMullen of Legal Aid NSW ORDERS
SYC 3365 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS PICKFORD
Applicant
AND: MR PICKFORD
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HARPER J
DATE OF ORDER:
27 MARCH 2025
THE COURT NOTES THAT:
A.The following definitions apply for the purposes of these orders:
(a)“Children” means X born 2015 and Y born 2017; and
(b)“Father” means Mr Pickford.
THE COURT ORDERS THAT:
1.The children shall spend time with the father during school terms each alternate week from 3.00 pm or the conclusion of school on Wednesday to 9.00 am or the commencement of school on Monday.
2.The children shall spend time with the father during the Terms 1, 2 and 3 school holidays for one half of the school holiday period as agreed between the parties, or in the absence of agreement, for the first half of each school holiday period in even years and for the second half of each school holiday period in odd years.
3.The children shall spend time with the father during the Christmas school holiday period as agreed between the parties, or in the absence of agreement, for the first half of the school holiday period in even numbered years and for the second half of the school holiday period in odd numbered years.
4.For the purpose of the school holidays as referred to in Orders 2 and 3, the following will apply:
(a)Each school holiday period shall commence at the conclusion of school on the last day of required school attendance of the children and shall conclude at the commencement of school on the first day of required school attendance of the children;
(b)Changeover is to occur at 5.00 pm on the mid-point day between the first and last day of the defined school holiday period and shall, where applicable, include public holidays and pupil free days; and
(c)In the event that there are two consecutive mid-point days, then changeover is to occur at 5.00 pm on the first of those two mid-point days.
5.Any application seeking an award of costs is to be filed and served with an affidavit in support within 28 days of the date of these orders, and in the event no application is filed within the time specified, there shall be no order as to costs.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonyms Pickford & Pickford have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
These are parenting proceedings pursuant to Pt VII of the Family Law Act 1975 (Cth) (“the Act”) between the applicant mother, Ms Pickford (“mother”) and the respondent father, Mr Pickford (“father”), concerning the children X (“X”) (born 2015 and currently 9 years of age) and Y (“Y”) (born 2017 and currently 7 years of age).
An Independent Children’s Lawyer (“ICL”) has been appointed.
The proceedings were commenced in 2019. After a trial lasting some 11 days, final judgment on parenting issues was delivered on 26 July 2024 by the original trial judge (Pickford & Pickford (No 2) [2024] FedCFamC1F 500) (“first judgment”). Financial issues had been finalised by consent orders made earlier in the proceedings.
Interim parenting orders were made by consent on 7 June 2021 which operated until the final orders made on 26 July 2024. Those interim orders provided for the children to spend three nights from Friday to Monday morning each alternate weekend and each alternate Thursday night, that is, four nights each fortnight, and half of school holidays with the father. The trial judge made final orders for the children to spend a block of four nights each fortnight from Thursday to the following Monday each alternate weekend, and half school holidays with the father.
The father appealed the first judgment. The Full Court (McClelland DCJ, Aldridge, Austin, Carew, and Williams JJ) unanimously allowed the appeal on 20 December 2024 (Pickford & Pickford [2024] FedCFamC1A 249).
The factual background and procedural history have been extensively canvassed in the first judgment and the judgment of the Full Court. I adopt those factual matters and will not repeat or comment upon them in this judgment unless necessary.
The Full Court was unanimous in remitting a narrow question to be redetermined, as will be explained shortly. Separate judgments were delivered on the question of whether intention of the perpetrator is a necessary ingredient of coercive or controlling behaviour as a form of family violence. All agreed intention was not a necessary ingredient. Austin and Williams JJ delivered the main judgment with which the other members of the bench substantially agreed, other than in respects not presently relevant.
Austin and Williams JJ summarised the orders made by the trial judge as follows:
62. The parenting orders (Orders 1–33) conferred sole parental responsibility for the children upon the mother, declared the children will live with her, and made provision for the children to spend substantial time with the father, comprising four consecutive nights per fortnight in school terms, one-half of all school holidays and other special occasions.
63. In effect, the parenting orders represented acceptance of the mother’s proposal for maintenance of the status quo (at [154]). The level of parental conflict militated against the father’s proposal for the children to live with the parties for equal time (at [194]–[196]) or, for that matter, even any increase in the amount of time they spend with him (at [197]). However, the children’s meaningful relationships with the father (at [114] and [116]) meant they must still spend a substantial amount of time with him.
Specifically, Orders 6, 7, 8, 9 and 10 were the orders of the trial judge for the time to be spent by the children with the father. Order 6 imposed the regime of four nights each fortnight with the father. Orders 7 and 8 imposed a regime of half of each school holidays with the father. Order 10 dealt with special occasions such as birthdays and Christmas.
As the Full Court pointed out, the regime ordered by the trial judge substantially replicated the parenting arrangement originally entered into by consent on 7 June 2021 which continued up to the first trial, and after the successful appeal still continues. The only difference is that the first trial judge ordered a block of four nights over each alternate weekend, as opposed to three nights and each alternate Thursday night during term time.
In allowing the appeal, the Full Court made, relevantly, the following orders:
2. Orders 32(d) and 33 made on 26 July 2024 are set aside.
3. Orders 6, 7, 8, 9 and 10 made on 26 July 2024 are set aside as from the next return date of the proceedings within the original jurisdiction of the Federal Circuit and Family Court of Australia (Division 1).
4. The proceedings under Pt VII of the Family Law Act 1975 (Cth) are remitted to the Federal Circuit and Family Court of Australia (Division 1) for re-hearing in respect of the orders which should be made under s 64B(2)(b) of the Act.
I note the Full Court held Orders 32(d) and 33 were ultra vires. Order 32(d) was an order for the ICL to “monitor and assist with the implementation of these orders in a child focused way”. Order 33 purported to grant leave to the ICL “to relist the proceedings on seven days’ notice regarding the interpretation, implementation and/or enforcement of the parenting orders…”. However, there was no issue raised in the remitted hearing which requires any further attention to these orders.
So the narrow issue remitted for redetermination by appellate Order 4 is simply what orders should be made for time to be spent by the children with their father.
The remitted parenting hearing, thus confined, was listed before me for hearing on 18 March 2025. However, the hearing did not commence until 10.00 am on 19 March 2025.
At the remitted hearing the difference between the parties, as propounded in their proposals, can be briefly stated. The mother proposed the children’s time with the father during school terms be reduced from four nights to three nights each fortnight, with the father to have a block period of seven nights in each of the Term 1, 2 and 3 school holidays, and two blocks of 14 nights during the Christmas holidays.
The father proposed a week about arrangement during school terms and half of each school holidays with a single changeover at the mid-point. His proposal for school holidays continued the arrangement for the children which has been in place since June 2021.
The ICL proposed orders which replicated the orders of the first trial judge – four nights each fortnight from Thursday night to Monday morning each alternate weekend and half school holidays.
On 19 March 2025 the parties and the ICL entered into a final consent order (Exhibit A) for time spent with the children on special occasions and possession of the children’s passports.
THE DECISION OF THE FULL COURT
Austin and Williams JJ pointed out that the focus on family violence at the original trial arose in a surprising way and was in truth substantially irrelevant. This was because the dispute between the parents was extremely narrow:
83. Nobody sought to disturb the children’s residence with the mother. Nobody doubted the children should spend an extensive amount of time with the father. Everybody agreed the children should spend time with the father for one-half of school holiday periods and on other special occasions. The dispute was therefore confined to the question of how much time the children should spend with the father during school terms. The mother said preferably three, but no more than four nights per fortnight (at [11] and [154]). The father said it should be equal time of seven nights per fortnight (at [13] and [153]). The ICL fell between them and said five nights per fortnight (at [14] and [197]).
84. Axiomatically, the decision required of the primary judge was whether the children’s best interests were served by them spending time with the father during school terms for as little as three or for as many as seven nights per fortnight, which decision was contextualised by the children having successfully spent time with the father for four nights per fortnight for several years beforehand with the parties’ consent.
85. Unsurprisingly then, neither party raised the issue of family violence as a salient consideration within the Case Outline documents they filed just in advance of the trial. For her part, the mother forecast that the only issue of relevance under s 60CC(2)(b) of the Act was the father’s “preoccupation” with the need for an injunction against her friend (“[Mr B]”).
86. For some reason, which was neither clear to the primary judge then (at [36]), nor now, the parties then conducted a trial over 11 days at enormous expense and made contested allegations of family violence the centrepiece of the dispute. Indeed, the mother began her final written submissions by saying family violence was “a major issue in these proceedings”.
Austin and Williams JJ continued:
89. The retrospective discourse and findings which then ensued naturally concerned only historical events (at [50]–[106]). No attention was given to the separate material question of the existence of any prospective risks of harm (Isles & Nelissen [2022] FedCFamC1A 97; (2022) FLC 94-092). As this Court has observed, any factual findings made about past events are liable to inform the task of risk assessment (Isles & Nelissen at [50]–[51]), which the Act now expressly recognises (s 60CC(2A)), but in this instance the primary judge did not use the findings of family violence to inform any prediction about the safety of either the children or the mother from family violence. There was no prediction.
90. Implicitly, the mother’s case was posited on the basis that neither she nor the children were at any risk of harm from family violence committed by the father provided the children only spend four nights per fortnight with him in school terms, so it is entirely unclear how she could have conversely contended the children were at risk of such harm if they instead spend five, six or seven nights per fortnight with him in school terms. It may be wondered: what danger could emerge on the fifth night to threaten the children’s safety which danger would be absent on the previous four nights? The question is incapable of a rational answer. The curious paradox was accentuated by the mother’s satisfaction the children could safely spend one-half of all school holidays with the father, which would certainly entail them staying with him for no less than seven contiguous nights in each holiday stint.
I include these excerpts from the judgment of the Full Court because they are apt for the determination of the issues in the remitted hearing.
Once again, the decision required by the parties’ proposals was whether the children’s best interests are served by them:
(a)spending time with the father during school terms for as little as three or for as many as seven nights per fortnight in circumstances where the children have already successfully spent time with the father for four nights per fortnight since June 2021 with the parties’ consent; and
(b)continuing to spend equal time with the father during school holidays as they have since June 2021 with the parties’ consent or by spending school holiday time with the father for blocks of 7 nights or 14 nights as the mother proposes.
Both parties and the ICL conceded that an inconsequential fixation on allegations of historical family violence should not distract the second trial, and by the commencement of the remitted trial the mother did not promote a finding of family violence within the statutory definition in s 4AB of the Act to underpin the orders she proposed. Despite this, as will be explained, the mother ultimately sought to support her proposed orders reducing time with the father, at least in part, by returning to allegations of angry and aggressive conduct of the father. For her part the ICL pointed to continuing conflict as a reason to leave the present regime undisturbed.
MATERIAL RELIED UPON BY THE PARTIES AND THE ICL
The mother relied upon the following documents:
(a)Case Outline filed 14 March 2025;
(b)Amended Initiating Application filed 15 December 2022;
(c)Affidavit of Ms Pickford filed 3 February 2023;
(d)Affidavit of Ms Pickford filed 16 October 2023;
(e)Affidavit of Ms Pickford filed 10 November 2023;
(f)Affidavit of Ms Pickford filed 10 March 2025;
(g)Affidavit of Ms O filed 2 February 2023;
(h)Affidavit of Ms O filed 10 March 2025;
(i)Affidavit of Ms N filed 2 February 2023; and
(j)Affidavit of Ms N filed 10 March 2025.
As can be seen, the mother relied upon affidavits which were filed before the first trial. I received little assistance from these affidavits in relation to the issues requiring determination in this remitted hearing. The mother was cross-examined.
The mother pressed the affidavits of Ms O and Ms N. Neither was cross-examined but I received no assistance from their evidence.
The father relied upon the following documents:
(a)Case Outline filed 17 March 2025;
(b)Father’s proposed Minute of Order filed 18 March 2025;
(c)Affidavit of Mr Pickford filed 10 March 2025; and
(d)Previous trial material as identified in the document titled “Father’s list of factual findings” filed 4 March 2025.
The father was cross-examined.
The ICL relied upon her Case Outline filed 13 March 2025 and the expert evidence, referred to below.
The documents tendered and received into evidence are set out in Schedule 1 to these reasons. These exhibits included the transcript of the trial before the first trial judge.
Expert evidence
Dr C as single expert provided a Family Report dated 28 April 2020. Dr C gave oral evidence at the first trial on 9 January 2024 and 2 February 2024, which was available in the transcript.
Mr KK as single expert filed an affidavit on 14 March 2025 with an attached Child Impact Report dated 12 March 2025. His report was confined to the views of the children and based on interviews with them, together and separately, on 3 March 2025.
CURRENT CIRCUMSTANCES
The mother currently works a company as a manager. She works from home three days per week, and in the city office two days per week. Her days in the office are Monday and Tuesday. She works from home on Wednesday, Thursday and Friday.
The father works in Sydney.
The mother lives in the former matrimonial home in Suburb H. She gave evidence that she may have to move in the second half of 2025 and that the children may have to change schools if this occurs. The father lives in Suburb F. He gave evidence that if the mother moves, he will move as well to enable the children to spend time with him.
At present the travel time between the parents’ houses is over an hour each way. As I understood the evidence, the travel time between the father’s house and the children’s school is similar. Accordingly, when the children spend time with the father they spend about two and a half hours travel time in the car with him each day.
Both children currently attend AA School, Suburb T. X is in Year 4 and Y is in Year 2.
They attend after school care which is operated by JJ Family Services(“JJ Family Services”) The mother collects the children from JJ Family Services on Wednesday and Thursday.
PART VII
These proceedings were heard after 6 May 2024, so the amendments to the Act brought into effect by the Family Law Amendment Act 2023 (Cth) apply.
Orders in respect of children are made under Pt VII of the Act. The meaning of a “parenting order” is given in s 64B. The Court may make such parenting orders as it thinks proper (s 65D(1)), within the context of the objects of the legislation (s 60B) and subject to s 65DAB.
Section 60B provides that the objects of Pt VII of the Act are to ensure that the best interests of the children are met, including by ensuring their safety, and to give effect to the Convention on the Rights of the Child.
When making parenting orders, the Court is required to regard the child’s best interests as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act specifies the criteria which must be considered when determining what form of orders are in the child’s best interests. These are to be “considered” although express discussion is not necessary (Tibb v Sheean (2018) 58 Fam LR 351 at [74]–[88]).
Best Interests of the Child
In order to determine the child’s best interests, s 60CC of the Act provides that:
(1)Subject to subsection (4), in determining what is in the child’s best interests, the court must:
(a) consider the matters set out in subsection (2); and
(b) if the child is an Aboriginal or Torres Strait Islander child—also consider the matters set out in subsection (3).
For the purposes of s 60CC(1)(a) of the Act the Court must consider the “general considerations” set out under s 60CC(2) which are:
(a)What arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:
(i)the child; and
(ii)each person who has care of the child (whether or not a person has parental responsibility for the child);
(b)Any views expressed by the child;
(c)The developmental, psychological, emotional and cultural needs of the child;
(d)The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs;
(e)The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so;
(f)Anything else that is relevant to the particular circumstances of the child.
Section 60CC(1)(b) and s 60CC(3) of the Act do not apply to the children in these proceedings.
Arrangements promoting safety
The competing proposals of the parties would appear to accept there are no issues of safety for the children in the care of the father. After all, there is no dispute that it is safe for them to spend a block of no less than three nights each fortnight during school terms and no less than blocks of up to 14 nights during school holidays in his care.
However, the way the mother presented her case, she relied upon numerous affidavits which recorded the same historical events which were considered in the first trial and mentioned in the decision of the Full Court. I have given this affidavit material consideration but found it of limited assistance. No reference was made to it in final submissions.
The mother’s affidavit filed 10 March 2025 dealt with events after July 2024. She claimed that since the final hearing, “there have been multiple incidents where [the father] has been abusive or yelled at me in front of the children, which has caused the children to become incredibly distressed” (at paragraph 85).
Despite specifying the time period after July 2024, she made repeated reference to events before the first trial, in 2023 and 2024. As an example, she referred to an incident in May 2024, which was obviously before the final orders of July 2024. Although this incident took place before July 2024, it has some relevance to the determination of the remitted hearing, but not for the reasons which the mother appeared to proffer.
The mother claimed it was an instance where the children were forced to witness angry and aggressive behaviour from the father. It is unnecessary to discuss the detail except to note that the incident occurred when the mother chose to attend sports training after school on a day the children were to go home with their father according to the orders then in place. She claimed the children did not want to go with the father and she told them to speak to him about it. In cross-examination she was very slow to concede that by this conduct she had placed the responsibility on X, and then both children, to negotiate a change to the requirements of the existing parenting orders. There was no necessity for her to attend sports training. Both her presence and comments such as “I’m here if you need me, and I support you…” and “I will wait here for you” to the children created a situation of conflict of loyalties. It also undermined the position of the father. It was plain the mother should have told the children they were required to go with the father rather than waiting and encouraging them to think she was giving them the option not to go with him.
Then in cross-examination the mother claimed that she did in fact tell the children they were obliged to go with the father. No such evidence appeared in her affidavit. She also claimed that she tried to talk to the father and suggested to him the parents “could work something out”. Again, this did not appear in her affidavit. What is more, this suggestion is very difficult to reconcile with the version that she did give in her affidavit, namely, that the father “started to walk off” and she gathered the children to go to the car. As a result, the mother claimed the father became enraged and abused her aggressively in front of the children.
I do not accept the mother’s evidence about the incident in May 2024 or that it demonstrates any issue relevant to safety in the care of the father. Although the mother gave it prominence, the children made no mention of the incident, or any others, to Mr KK. I am satisfied the mother’s oral evidence about the incident involved an opportunistic attempt in the witness box to disguise the deficiencies in her own conduct on the occasion in question. Her evidence about this incident betrayed a proclivity to reach backwards to past events and embellish, overstate or embroider her recollection and the gravity of allegations about the father’s conduct and its impact on the children.
The discussion has importance for present purposes because it highlights a fixated negative view of the father held by the mother and how this view has distorted more generally her evidence and approach to her proposed orders. It inclines me to treat the mother’s evidence with caution and as likely to conflate her own response to the father with the children’s attitude towards him.
More broadly, and after July 2024 it was the case of the mother, and the ICL, that since the orders of July 2024 there has been a “deteriorating situation” especially with X’s behaviour at school and after school care, but also because Y has on occasion exhibited difficulty breathing, which was a symptom consistent with anxiety. In her trial affidavit at paragraph 55, the mother claimed that after the children return from spending time with the father “it will usually take about three nights for the children to settle down and fall asleep without requiring me to sit with the children and help them fall asleep”.
She gave further evidence:
68. Prior to returning to their father’s care during the school term, the children will appear anxious and clingy towards me. While this did happen previously, it has become more significant since the final orders in July 2024.
69. [Y] and [X], but more in relation to [Y], will become clingy towards me in the two or three days prior to going to their dad’s. For example, the children will ask to sleep in my bed, or the children will follow me to where I am around the house.
70. [Y] will also ask me “do I have to go to dads” I reply “yeah, it’s time to spend with your dad and you get to spend time with him” this has really only started to happen since the current orders commenced in July 2024.
The mother explained the basis for her proposed parenting arrangements as follows:
170. I am incredibly concerned that the children’s behaviour, in particular [X’s], has deteriorated over the last year or so and has become worse since the introduction of the current four night per fortnight regime.
171. I have reached out to [the father] regarding issues about the children and as deposed to above, I am told by [the father] in effect that he does not see these issues and the children are ‘fine’. I am concerned that if [the father] continues to spend four nights per fortnight with the children or if there was an increase in the time the children spend with [the father], these issues will continue and will get worse when the children grow up or new issues may develop effecting the children.
172. The children currently see [Ms MM] at [LL Family Services] once per week. Even with therapy once a week, [X] is currently having anxiety issues which are continuing unabated.
173. I am concerned that as the children grow up and I continue to address their health issues, that [the father] will continue to not engage with me about these matters and will undermine therapy for the children which will prevent these issues from being resolved.
174. The children are becoming increasingly anxious at times and I understand from speaking with them that they are acting to supress their true feelings whilst around their father. I am also concerned about [the father’s] tendency to become aggressive in the children’s presence, which I have observed and have been informed about by the children.
175. The children have expressed to me that they have problems communicating with [the father] about basic things. For example, [X] has recently told me “I keep getting bread rolls in my lunch box at Dad’s and I don’t like it”- I replied “have you told him you don’t like the bread rolls and asked him not to put them in your lunch box” [X] said “yes, of course I have told him, he just doesn’t listen to me”.
176. A reduction in time to three nights per fortnight would insulate the children to some extent and allow me more time address the children’s needs. I observe that often the times the children act out at school is at times following the children’s four nights with [the father] during the school term. I understand from my conversations with the children they are now witnessing [the father’s] aggression and temper.
According to the mother, X had become aggressive and started to model his father’s aggressive and angry behaviour while Y was exhibiting a fear response to her father. It was clear from her evidence that she connected the perceived deterioration in the children’s behaviour with their exposure to the father.
In particular the mother gave evidence in her affidavit of occasions when X displayed unacceptable behaviour which she claimed occurred after time spent with the father. For example, in February 2025 X ran into the kitchen at JJ Family Services and snatched food from a prepared tray. On another day in February 2025, X angrily dashed towards a child at JJ Family Services and grabbed the child’s neck from the front and tried to push him over causing the other child to fall down. In March 2025, while Y was queuing up for food at JJ Family Services, she got into a scuffle with another child and they pushed each other. Y cried and X attacked the child. The mother also gave evidence of occasions when X barked at other children at school in mid-2024.
It became clear from the mother’s cross-examination that she was unable to see any reason for a perceived deterioration in the behaviour of X other than the influence of the father. However, it also became clear that the asserted correlation between X’s conduct and the children’s time with the father was difficult to sustain objectively. She conceded that in truth the incidents involving X, referred to above, took place on dates when the children had been in her care over the preceding weekend.
In cross-examination she made the claim that there were other incidents, not referred to in her affidavit, but reported to her verbally by the staff at JJ Family Services. I found this evidence unbelievable and conclude it was an attempt by the mother to bolster her case by improvisation in the witness box. This conclusion is consistent with the conclusion about her evidence recorded above at [52].
The mother also gave evidence about problematic behaviour at school in the second half of 2024. But the school reports of both children for Semester 2, 2024 showed they were progressing in a satisfactory way at school. The mother also conceded in cross-examination that there was no evidence of poor or unacceptable behaviour by X at school this year (2025).
It may be accepted that the concept of safety extends beyond “family violence” as defined in s 4AB of the Act (see Trudeau & Andrewson [2025] FedCFamC1A 26 at [29]–[31]). However, none of the matters pointed to by the mother persuade me that there is any issue of safety in the father’s care. Moreover the mother did not submit, and her evidence did not support any finding, that the proposal of the father, or for that matter the ICL, failed to promote, or could compromise, the safety of the children or herself within s 60CC(2)(a) by reason of family violence. The mother in her evidence gave no rational answer to the question of what danger or risk to safety would arise on the fourth or fifth overnight with the father which would not be present on the three nights for which she herself advocated during term time, or the blocks of up to 14 nights she proposed during school holidays.
Rather it was her claim that a reduction of time with the father would allow her more time to address the problems faced by the children, such as clinginess, or anger by X, after time with the father. I doubt this is an argument which raises any relevant aspect of safety within s 60CC(2)(a). But in any event it was not uncontested by the father that the children’s behaviour had deteriorated in the manner claimed by the mother or to such an extent that their safety had in some way become a real issue. He denied observing the types of problems identified by the mother. Senior counsel for the mother contended the behaviour of the children had become “aberrant” after July 2024, which implicitly contended it was outside a normal range. But there was no current expert evidence which commented on the behaviour of the children, or supported the view that their behaviour was aberrant compared to some concept of normalcy. As pointed out below Mr KK concluded the children held views reflecting “developmentally normal needs and interests". I have explained why I discount the mother’s evidence generally. On the evidence overall I am unable to conclude the description “aberrant” is proper for the children’s behaviour since July 2024. Even if it be accepted the more objective evidence did suggest some behavioural problems on occasion, there was no secure basis to connect this to time with the father.
Indeed, as pointed out, the evidence tended to suggest at least some behavioural problems were exhibited after weekends with the mother, and she of course has been the primary carer for the children since June 2021. The mother conceded several times that she would miss the children if they spent more time with the father. She believed X told the father what he wanted to hear but did not accept that X may do the same to her. I am satisfied that she lacks insight into the extent to which her possessive attitude to the children and negative attitude to the father risk undermining the children’s relationship with him, and may be contributing factors in any behavioural problems which have arisen since July 2024.
The ICL did not point to safety concerns arising directly from any time spent with the father. It was the argument of the ICL that the evidence showed the level of parental conflict which underpinned the decision of the trial judge remained unchanged. She argued there remains an entrenched level of distrust and acrimony between the parties which is extreme and outside the ordinary range of disagreement or friction between parents either in intact relationships or successfully co-parenting after separation. This has existed for many years and continued after July 2024. The ICL argued it continues to pose a risk of psychological harm to the children. She argued that since July 2024 the behaviour of the children, particularly X has deteriorated. She argued that the parents have fundamentally different parenting styles. Therefore, any increase in nights during the school term would inevitably lead to continual and possibly increasing conflict between the parents and therefore greater risk to the children.
While this argument has more force than the position taken by the mother, I do not accept it either. Even if it be accepted that both children have exhibited some behavioural problems since July 2024, as mentioned, this has been while they have been in the primary and more substantial care of the mother. To repeat, there is no secure basis in the evidence to conclude that the time with the father is the cause of any of the problems pointed to, or that an increase in overnight time during the school term with the father would create some greater risk to the children by exacerbating any behavioural problems.
More to the point, the ICL did not make clear why any additional nights with the father would lead to further conflict with the mother. It is obvious that there is no framework, which could be imposed by the Court, that would eradicate the risk of conflict between these parents. It may be that a week about arrangement could engender greater conflict because of the different parenting styles and the practical complications which can arise from the children’s school and extra-curricular activities as they grow older. But it is not possible to rationally determine how there is likely to be more conflict between the parents if the children spent, for example, a block of five, rather than four, nights during term time with the father.
I am not satisfied that the mother or the ICL have demonstrated either that the existing regime of four nights with the father constitutes, or additional nights with the father during term time would constitute, arrangements that failed to promote the safety of the children.
Views expressed by the children
The Court must take account of the views of the children. The Court may inform itself of those views by having regard to an expert report or appointing an ICL (s 60CD(2) of the Act). The children expressed reasonably clear views to Mr KK. The ICL also informed the Court that she spoke to the children in the week before the trial when they expressed views consistent with those reported by Mr KK.
X would like to spend more time with his father, but did not want to be asked to specify which days. X explained that if he spent more time with his father, he could spend more time with his cousins and he enjoyed playing with “my dad’s friend’s kids”. He said he enjoyed going to sporting matches with his father.
Y was more equivocal, and would like things to remain as they are, or for her to spend more time with her mother. Mr KK recorded that she wanted “to stay with mum more because it takes a long time to go to [Suburb F] and it’s not so much fun…. I have more friends at mum’s, and I only have one friend, […], when I am with my dad” (Child Impact Report, paragraph 13).
Mr KK opined overall:
34. In the absence of evidence to the contrary (such as risk of harm factors) it is suggested that the children’s views, for the most part, reflect developmentally normal needs and interests. If this is the case, and in the interim, the parents might consider continuing the current parenting regime but arrange for each child to have a special evening each fortnight with the other parent. This approach would respect the children’s expressed views, make sense of them being expressed to the writer, and offer opportunities to enhance each child’s sense of being special in the eyes of each parent.
Neither parent nor the ICL propounded a regime which took up Mr KK’s suggestion of a special night each fortnight with the other parent.
The views of the children as expressed to Mr KK and the ICL are not consistent with the mother’s perception that they are “becoming increasingly anxious at times” nor that “they are acting to supress their true feelings” about time with the father.
The developmental, psychological, emotional and cultural needs of the children
As Mr KK observed, the views of the children were developmentally normal.
The evidence about X’s behavioural problems at school and at out of school hours childcare satisfy me that he has some specific psychological and emotional needs. These are being addressed by therapy arranged by the mother.
The evidence did not show that Y had developmental, psychological, or emotional needs outside the normal range for a child of her age.
The capacity of each person who has parental responsibility for the children to provide for their developmental, psychological, emotional and cultural needs;
The mother has sole parental responsibility for the children. No one seeks to disturb this allocation of parental responsibility. But there was reason to question her capacity to provide for the children’s psychological and emotional needs, especially in relation to her attitude to the father. I have already mentioned this above.
The mother accepted Mr KK’s view that X’s wishes to spend more time with his father was developmentally normal. However, she admitted she had not put any thought into how she would tell X that his time with the father had been reduced, if the Court made orders as she proposed, or what his reaction was likely to be. When the issue was put to her under cross-examination, she said she would pretend she and the father had struck an agreement to reduce X’s time with the father. In other words, her first response was to lie to X, before saying she would need time to think about it.
She also could not provide a reason why she had not yet considered how to explain to the children a change, as she proposed, in the regime that they have operated under for nearly four years.
I am satisfied that the mother’s resistance to additional nights with the father and her motivation for seeking to reduce the existing arrangements for time with the father are not driven by a focus on the best interests of the children but are a measure of her own negative attitude towards the father.
Nonetheless, I accept that if the father’s proposal for equal time was imposed, this would risk undermining the mother’s capacity to parent as effectively as she presently does. She would miss the children and is likely to feel demoralised or destabilised by the extent to which the children’s lives are spent with the father in equal time.
The benefit to the children of being able to have a relationship with the children’s parents, and other people who are significant to the children, where it is safe to do so
There was no dispute the children would benefit from a relationship with both parents. There was no dispute that the children have a loving relationship with both parents.
Anything else that is relevant to the particular circumstances of the children
I have nothing to add here.
Time with the father
I am not persuaded that orders for any less time with the father are warranted on the evidence, either during school terms or school holidays. Indeed, such orders would risk playing into or exacerbating the unhealthy aspects of the mother’s parenting demonstrated through her attitude to the father. This would not be in the best interests of the children. On the other hand, more time with the father would send a message to the children about the value of the father as a parent.
The only question is whether the evidence justifies a change to the existing regime, which the ICL seeks to continue, by adding more nights for the children with the father during term time.
In my view it has emerged that this question is answered by a range of practical considerations and the effect of more time upon the mother’s capacity to parent.
The mother has sole parental responsibility and the children are used to living with her as their primary carer and understanding that her home is their main residence. An equal time arrangement would disrupt these important aspects of the parenting framework currently around the children. It has the potential to undermine the mother, and her decision making responsibility, which would not be in the children’s best interests
I accept that on one view practicalities may be thought to support equal time, because on the father’s proposal the children would commence each school week at the home of one parent or the other.
However, an equal time arrangement would not be consistent with the views expressed by Y. I accept that as a young female she is more inclined towards time with her mother. In addition, as mentioned, there is over two hours travel time between the father’s home and school each day when the children are with him. An equal time arrangement would burden the children with this travel on five school days in every fortnight during school terms. Y specifically mentioned this to Mr KK.
It is true the mother is contemplating a move and the father said he would move as necessary. But no move has happened and it appears to be only a possibility at present and cannot sensibly bear on the orders the Court should make in the current circumstances.
I have taken account of the views of the children. Overall I accept that they should spend more time each term in the father’s care. This would bring more balance to the parenting arrangements and allow more positive growth in the children’s relationship with their father.
Balancing all these factors I have reached the view that the children should spend an additional night each alternate week with the father during school terms, in a block of five nights from Wednesday after school until the following Monday morning.
School holiday time
I remarked to senior counsel for the mother at the close of her oral evidence that even if the father called no evidence I would need to be persuaded why it was in the best interests of the children for the arrangements for school holidays to be changed as the mother proposed.
I was not so persuaded. The proposal of the mother would introduce into the existing arrangements unnecessary and unjustified complications during school holidays, such as additional changeovers. The present regime for holidays is simple and clear, and has been in place for some four years. The evidence showed the children have benefitted from the school holiday arrangements since June 2021 and it should be able to operate effectively until the children finish school.
COSTS
I will order than any party or the ICL who seeks costs to file the relevant application within 28 days of these orders.
CONCLUSION
For the foregoing reasons, I will make the orders set out at the commencement of this judgment.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 27 March 2025
SCHEDULE 1 – MATERIAL TENDERED AND RELIED UPON BY THE PARTIES
Exhibit Label Document Tendered by A Consent Orders Joint B Transcript of trial before first trial judge RF C Pages 1–2, 5, 33, 43–46, 48, 51–54 and 123 of the father’s tender bundle RF D Bundle of exhibits to the mother’s affidavit AM E Clinical consultation notes by Doctor regarding Y ICL F Pages 3–5 and 10 of folder EP-2 AM G ICL’s proposed Minute of Order ICL
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