Pruchnik and Pruchnik - [2018] FamCA 24

FAMILY COURT OF AUSTRALIA

PRUCHNIK & PRUCHNIK

[2018] FamCA 24

FAMILY LAW – CHILDREN – Where the children aged nine and 11 live with the mother – Where the mother had made allegations of abuse in the father’s care which were not pressed at the hearing – Where the father contends that the children are at risk of emotional abuse in the mother’s household – Where there are concerns in relation to the older child’s mental health – Where it is found that the children’s relationship with their father is at risk in the mother’s care – Where orders are made for the children to live with the father and for the children to engage in family therapy – Orders made for the mother to spend time with the children in a graduating arrangement commencing with supervised time – Orders made for the father to have sole parental responsibility for the children.

Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 60B, 60CA, 60CC, 61B, 61C, 65DAA, 65DAC, 65DAC(2)

G & C [2006] FamCA 994
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405

APPLICANT:

Ms Pruchnik

RESPONDENT:

Mr Ms Pruchnik

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

FILE NUMBER:

SYC

381

2015

DATE DELIVERED:

23 January 2018

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Hannam J

HEARING DATE:

20, 21 & 22 November & 20 December 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Graham

SOLICITOR FOR THE APPLICANT:

Lindeman Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Haughton

SOLICITOR FOR THE RESPONDENT:

Aaron Legal Solicitors

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ahmad

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Claremont Legal

Orders

That all previous Orders be discharged.
That the father have sole parental responsibility for the children B born in 2006 (“B”) and C born in 2009 (“C”) (“the children”).
Notwithstanding Order 2 herein:
(a)The mother shall be responsible for the daily care, welfare and development of the children whilst they are living or spending time with her; and
(b)The father shall be responsible for the daily care, welfare and development of the children whilst they are living or spending time with him.
That the children live with the father.
That the mother spend time with the children during school term time as follows:
(a)For a period of six weeks from the making of these Orders, each Saturday for a period of two hours supervised by the G Service or such other professional supervision service as advised by the ICL or as agreed between the parties. For this purpose the mother and the father shall contact the supervision service and sign all documents necessary and otherwise follow all directions from the supervision service for the mother to spend supervised time with the children. The mother is to bear the costs of supervision;
(b)Following 5(a), for a period of eight weeks, each Saturday from 10 am to 2 pm;
(c)Following 5(b), for a period of eight weeks, every second weekend from 10 am Saturday to 12 pm Sunday;
(d)Thereafter, every second weekend from the conclusion of school on Friday, or 3 pm if Friday is a non-school day, until 5 pm Sunday.
That the mother spend time with the children during school holidays as follows:
(a)In the short school holidays at the conclusion of Term 1 of 2018, for one day in the first week of the holidays and one day in the second week of the holidays as agreed between the parties from 10 am to 2 pm;
(b)In the school holidays at the conclusion of Term 2 of 2018 and all school holiday periods thereafter, for one half of the school holidays from the conclusion of the last day of school until 5 pm on the half-way point.
That the mother spend time with the children during all other times, and notwithstanding Orders 5 and 6, as follows:
(a)Commencing in 2018 and during the Christmas period as follows:
(i)From 2 pm Christmas Eve until 2 pm Christmas Day in even numbered years;
(ii)From 2 pm Christmas Day until 2 pm Boxing Day in odd numbered years commencing 2019.
(b)From 5 pm the day before Mother’s Day until 5 pm Mother’s Day, notwithstanding that overnight time may not have commenced in accordance with Order 5(c);
(c)For four hours on the mother’s birthday as agreed between the parties;
The children shall have telephone communication with the parent with whom they are not living or spending time each Tuesday and Thursday between 6 pm and 6.30 pm under the following conditions:
(i)The parents will ensure the children are available to speak;
(ii)The children are given privacy during the call;
(iii)The telephone is not on speaker telephone; and
(iv)The parents do not interrupt the children’s telephone call with the other parent.
That the mother’s time with the children be suspended in the following circumstances:
(a)If Father’s Day falls on a day when the children would otherwise be spending time with the mother, her time be suspended from 5.00 pm on the Saturday prior to Father’s Day until 5 pm on Father’s Day;
(b)If the father’s birthday falls on a day when the children would otherwise be spending time with the mother, her time be suspended for four hours on the father’s birthday as agreed between the parties, or failing agreement from 10 am to 2 pm.
From the commencement of Order 5(d) above, unless otherwise agreed the mother shall be responsible for collecting the children from their respective schools at the beginning of her time with the children.
That for the purpose of changeover at all times when changeover is not occurring at the children’s school, the parents shall meet at McDonalds at Suburb F at the commencement and conclusion of the mother’s time with the children.
That the mother is restrained from attending at either of the children’s schools when the children are due to be in the care of the father pursuant to these Orders, or requesting or permitting any other person to do so on her behalf.
Pursuant to section 68B of the Family Law Act 1975 (Cth) the mother is restrained from encouraging, allowing, causing, permitting or otherwise acquiescing to the children or either of them entering her care and/or control otherwise than in accordance with these Orders or as agreed between the parents. This includes, but is not limited to, allowing, causing, permitting or otherwise acquiescing to the children or either of them entering into any residence where she may live or otherwise be present other than when the children are spending time with her pursuant to these Orders or as agreed between the parents.
That unless otherwise agreed in writing the parties shall do all acts and things and sign all such documents as may be required to cause the child B to be enrolled at Suburb D High School in 2018, and the child C to be enrolled at Suburb D Public School in 2018 until such time as she completes primary school.
That the father keeps the mother informed of all medications prescribed for the children and inform the mother as soon as practicable about any significant injuries or health concerns in relation to the children or either of them.
That the mother and father keep each other advised of their residential addresses and telephone number at all times and notify the other of any change within 48 hours of such change occurring.
That the mother be restrained from bringing the children or either of them into contact with Mr M for a period of six months from the date of these Orders.
That both parties be restrained:
(a)From physically disciplining the children or allowing any other person to do so;
(b)From discussing any aspect of these proceedings within the presence and/or hearing of the children or permitting any other person to do so other than any explanation concerning the orders or the proceedings given by a Family Consultant or another person at the request of the Senior Family Consultant.
That for the purposes of calculating the school holiday period in December/January each year;
(a)The school holiday period is hereby deemed to commence from the end of the school day on the last day of school and to conclude at 5 pm on the Sunday preceding the recommencement of school.
(b)The mid-point of the holidays will be calculated by dividing the total number of nights by two, and in the event there is an odd number, the mother will spend this additional night with the children; and
(c)The changeovers shall occur in the middle Sunday at 5 pm.
The father is to ensure that he and the children engage in family therapy with a therapist of the father’s choosing from the date of these Orders. The father shall encourage his wife, Ms N, to engage in such family therapy.
The mother is at liberty to engage with family therapy with the children as arranged by the father pursuant to order 19 and is encouraged to do so.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pruchnik & Pruchnik has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC SYC381 of 2015

Ms Pruchnik

Applicant

And

Mr Pruchnik

Respondent

REASONS FOR JUDGMENT

Introduction

For a number of years following their separation in 2011 Mr Pruchnik (“the father”) and his former wife Ms Pruchnik (“the mother”) were able to agree about parenting arrangements for their two children, B and C (“the children”). However in December 2014 the mother alleged that the older child made complaints of physical abuse by the father. She then commenced these parenting proceedings.
At all times since separation the children have lived with the mother. There has been either an agreement or court orders that the children spend time with their father each alternate weekend but this has not always occurred. At times there have been periods of months where the mother has not made the children available to the father to spend time with him.
Although the mother has made serious allegations against the father in the past she did not contend at the final hearing that the father poses any unacceptable risk of harm to the children. She seeks orders that the current arrangement continue with the addition of the father spending time with the children during school holidays and on special occasions.
The father contends that unless the children’s living arrangements change and they come to live primarily with him they will not share a meaningful relationship with him in the future and will be at risk of emotional abuse in the mother’s care. Accordingly he seeks orders for a change in the children’s residence.
The Independent Children’s Lawyer (“ICL”) takes a neutral position and does not promote the orders of either party over those of the other.
The question for me to determine is whether it is in the best interests of the children for there to be a change in their parenting arrangements.

Background

The father who is 43 and mother who is 47 began living together in June 2002. The mother had a child from a previous marriage, Mr E (“the mother’s other son”) who was three when the parties began living together and had turned 18 at the time of the final hearing.
The parties’ first child, a boy named B (“the older child” or “the son”), was born in 2006 and at the time of the final hearing was 11.
The parties married in September 2006 and their second child, a girl named C (“the younger child” or “the daughter”), was born in 2009. The younger child was eight at the time of the final hearing.
The parties experienced relationship difficulties and separated. Although there is some dispute about the period in which the parties were separated but remained living in their former family home, there seems to be no dispute that they physically separated in 2011.
Following separation the children continued to live with their mother in the north-western outskirts of Sydney. The father established a home close to the mother and children.
The mother formed some type of relationship with her current partner Mr M (“the mother’s partner”) in about 2012.
The father commenced a relationship with his current wife Ms N (“the father’s wife” or “the stepmother”) in about July 2013.
The parents initially were able to reach agreement about the father’s time with the children which generally occurred each alternate weekend though there was some flexibility in this arrangement.
In about October 2014 the mother began taking active steps to sell her home and ready herself for a move to a new home with the children.
In December 2014 the mother stopped making the children available to spend time with the father. The mother says that the principal of the son’s school informed her that the son had made allegations to school staff “relating to abuse by [the] father” which the principal was required to report to the Department of Family and Community Services (“the Department”). She says that the son also reported to her that the father was physically abusive, threatening and caused him to be embarrassed and that the father also hit the daughter. As a result the mother informed the father that she would be cancelling his time with the children.
The mother made arrangements for the son to attend upon a psychologist to whom he made similar reports of “physical and mental abuse”. The psychologist as a mandatory reporter notified the Department of the son’s complaints and provided the mother with a letter directed “to whom it may concern” recommending that the older child’s wishes not to return to the care of his father be supported until an investigation of the allegations could be undertaken.
The mother moved to the Central Coast with the children at around the time she ceased the father’s time and the children began school in the local area at the start of the 2015 school year.
The mother commenced proceedings in the Federal Circuit Court in January 2015. In March 2015 family members saw a family consultant who made various recommendations including that the father undertake some parenting programs and anger management. The father completed all programs as recommended.
The father spent no time with the children from 7 December 2014 until orders were made on 13 March 2015 for him to have phone communication with the children and for family therapy with a psychologist Dr T (“the therapist”) to commence. Further orders were made on 9 April 2015 that the father spend time with the children as recommended by the therapist.
The parties then reached agreement in accordance with the therapist’s recommendations for the father to spend time with the children initially in the presence of the paternal grandmother and thereafter leading to increased unsupervised time. The mother unilaterally cancelled this arrangement and the matter returned to court at the request of the ICL.
On 15 June 2015 orders were made in the Federal Circuit Court that the children live with the mother and spend time with the father starting with eight hours each Saturday in the presence of the paternal grandmother for a period of four weeks and then increasing to every second weekend from the conclusion of school Friday until Sunday afternoon. Orders were also made for telephone communication twice per week between the children and the father and that the children, mother and father continue to engage in family therapy with the therapist. The mother was also restrained from taking either of the children to any other psychologist or psychiatrist. Both parties were restrained from physically disciplining the children or discussing any aspect of the proceedings with them or in their presence.
The children spent time with their father in accordance with the June 2015 orders either at the father’s home or with the father at the paternal grandparent’s home near the mother’s home.
On 30 October 2015 in the course of a court event the mother proposed that she and the father enter into a “week about” living arrangement for the children. As it appeared that the dispute may be able to be resolved through mediation the parties were ordered to attend a conference facilitated by Legal Aid. The “week about” proposal did not eventuate due to the parents living a considerable distance from one another and neither party then being in a position to relocate.
On 10 December 2015 the parties attended mediation as ordered by the court. The father then proposed for the first time that the children live with him and spend fortnightly time with the mother.
The following day when the father was due to collect the children from school to spend time with them in the Christmas holidays the children had not attended school. The mother once again ceased making the children available to the father and he did not see them for the ensuing three months.
During this period the father was also unable to contact the children by telephone as phone calls made to all phone numbers on which the children were usually contacted went unanswered.
The mother filed an Application in a Case on 15 December 2015 seeking orders that she have “full” parental responsibility for the children and that the father and paternal grandparents have no contact with the children. The mother at the time alleged that the father had been abusive to the children and that the paternal grandfather had in some way behaved improperly towards herself many years ago.
The proceedings were next before the court on 17 February 2016 when it was noted by the court that the mother conceded she had breached the orders in relation to the father’s time with the children and said that the breach would not be repeated. The court ordered that the time between the father and the children and the family therapy recommence. The father gave an undertaking without making any admission that the children would not be left alone in the presence of the paternal grandfather and an expert psychiatrist, Dr W (“the expert”) was appointed to prepare a report in the proceedings.
Over the ensuing months the father’s time with the children occurred in accordance with the interim parenting orders although the father has some complaints in relation to that time including that the mother made unilateral decisions about the children without consulting or discussing them with him.
In about June or July 2016 the mother and her partner travelled to the United States. The father was unaware that this travel was to occur and only knew about it subsequently from conversations with the children.
In about July 2016 the father became aware for the first time that the older child was experiencing behavioural and relationship difficulties at school. The father agreed to the child beginning counselling with the school counsellor after discussing the matter with the therapist.
In August 2016 the expert interviewed the family and her report was released the following month. The expert’s recommendations to which I will return were that the children remain living with the mother on conditions including that she and other family members continue to engage in family therapy and that the mother not breach the orders. The expert recommended that the family be further reviewed in 12 months following the recommencement of therapy.
At the time of the interviews with the expert, the mother disclosed a personal history of trauma. She told the expert that her parents separated when she was five years old and she went to live with her father and stepmother, who she says was cruel and abusive. The mother also reported having been assaulted by a boyfriend and his brother when she was sixteen, which left her with “horrendous injuries” requiring surgery and she was told she would never have children.

The mother also described a significant history of medical problems, including an extensive gynaecological history ending with an emergency hysterectomy with “a massive benign tumour rupturing (her) uterus resulting in lymphoedema in 2010”.
The expert recommended that the mother undertake therapy to assist with her anxiety and in regulating her distress around the children.
In about November 2016 the mother again travelled overseas for four weeks with her partner to Canada and the United States. The mother did not discuss this travel in advance with the father and while she was away the children were cared for by the mother’s other son (who was 17) and a person (“the babysitter”) who is said to have been employed by the after school care service at the children’s school.
At a changeover in late January 2017 the babysitter attended on behalf of the mother without any prior notice having been given to the father of the babysitter’s involvement in the care of the children.
At the commencement of the school year in 2017 the mother enrolled the older child in a new school without seeking the father’s input into this decision.
At a court event on 3 April 2017 orders were made that the family therapy be discontinued. It was noted by the court that the mother did not support ongoing family therapy. It was also noted that the psychologist providing assistance to the older child should provide feedback to both parties and not just the mother. The proceedings were also then transferred to this court.
The children continued to spend time with the father in accordance with the orders until 4 May 2017 when their time with him did not occur again for about six weeks. There is significant dispute between the parties concerning the circumstances surrounding the cessation of the father’s time to which I will return, but there is no dispute that the children spent no time with the father until 16 June 2017.
There is also a significant dispute between the parties about the circumstances concerning the children’s non-attendance at the father’s wedding which took place on 3 June 2017. The circumstances for the children between May to mid‑June 2017 are dealt with later in these Reasons.
The mother travelled to Country Z with her partner for about 10 days from 22 May 2017. During this time the children were cared for by the babysitter and maternal grandmother.
At the first event in this court on 14 June 2017 I was informed that the children were not spending time with their father in accordance with the interim orders. The mother who at that time was self-represented was ordered to bring the children to Child Dispute Services at the court on 16 June 2017.
The mother presented with the children at Child Dispute Services on 16 June 2017 and they were collected by the father in accordance with my orders. The father’s time with the children then recommenced.
When the children were due to begin their weekend time with the father on 22 September 2017 there was an incident which resulted in the older child not passing into the father’s care and the younger child only spending time with the father on that weekend. This is a matter of dispute to which I will return.
There was an incident at the father’s home on 20 October 2017 when the children were spending time with him which resulted in police attending the father’s home at the request of the mother’s partner. There is dispute between the parties about this incident which is dealt with later in these Reasons.

The matters in Dispute

It is the father’s case that the children have been emotionally abused in the maternal household and that there is a risk of this continuing in the future if they remain living primarily in the mother’s care.
In particular it is contended on behalf of the father that the mother has misinterpreted or inappropriately relied upon information given to her by the children and the children’s behaviour in the past and has come to believe that the children are at a risk of harm in the care of the father which has led to her withholding them from him from time to time. The father contends that the court should find that despite her assertions to the contrary and the orders she seeks, the mother currently believes that the father is a significant risk to the children and she will be unable for this reason to co-parent with him in the future if the orders are made as she seeks. The father contends that the mother is likely to continue to behave in this manner in the future. It is also contended on behalf of the father that the mother has acted as if she had sole parental responsibility for the children in the years following separation when they have lived with her and she is likely to continue to do so in the future.
It is the mother’s case that she has either acted entirely appropriately on all occasions when she has withheld the children from spending time with their father or there has been a misunderstanding between the parents or a failure on her part to understand processes in the proceedings that have led to her ceasing the children’s contact with the father. It is further submitted on the mother’s behalf that her behaviour in recent months would lead the court to conclude that she has not played a part in causing the children to be aligned with her.
These positions involve the resolution of some factual disputes particularly concerning the circumstances in which the children have not spent time with the father on various occasions.

Has the mother had valid reasons for ceasing the children’s contact with their father?

The most significant allegation made by the father is that the mother has unreasonably and without any basis formed the view he poses a risk of harm to the children which has informed her decisions to withhold the children from him from time to time.
It is the mother’s contention in general terms that all actions taken by her have been protective and in good faith. She disputes the father’s version of events in relation to the various times on which she has withheld the children from him.
There is no dispute between the parties that following separation they quite effectively were engaged in co-parenting the children who lived with the mother and spent time with the father by agreement for a number of years. During this time, from 2011 to December 2014 the parties lived in close proximity to each other and there were also no practical difficulties with these arrangements.

Events around December 2014 resulting in the mother ceasing the children’s time with the father

The father deposes that his fortnightly weekend time with the children following separation and up until October 2014 generally went well and without incident. In accordance with the arrangements between the parties he collected the children from the maternal grandmother’s home on a Friday afternoon and returned them to the mother on Sunday afternoon between 4 pm and 8 pm as agreed. The parents lived close to one another at this time.
According to the father’s affidavit, on about 26 October 2014 when he returned the children to the mother’s care he informed the mother that he and his partner (as she then was) were planning to take the children to Queensland for a 10 day holiday in (the coming) January. On the same weekend he says that the mother asked him if he could care for the children for an extra few days when she would be moving home. The father says that the mother subsequently confirmed with him via text message that she wanted him to care for the children between 17 to 21 December 2014 to enable her to move house without the children.
The father says that on about 1 December 2014 he received a message from the mother informing him that she had “put the kids in care for the last two weeks of the school holidays as [she would be] working”. He says he received another message from the mother on 11 December 2014 informing him that she would “be having the children on [his] weekend [17-21 December 2014] as [she] will be moving house”.
Although the father does not specify in his affidavit when this conversation occurred, he deposes that the mother informed him that she had been offered a position at work in a particular town on the Central Coast and was looking for houses in the area and “spoke about the move as if it was a ‘done deal’”. He says “I had no say about this move” and generally denies that the mother consulted with him about moving the children from their current location. The father says that the mother advised him she had already organised schools for the children and did not provide him with her proposed address but only the general area she was proposing to move to. He says that he understood that the mother would provide him with the new address at about the time of moving.
The father deposes to being unable to make contact with the mother despite leaving several message on her mobile phone to make arrangements to collect the children before their move. He says that on about 16 December 2014 he received an email from the mother at 10.24 pm as follows:
I hereby inform you that [the children] will not be placed in your care or the care of your parents this weekend, additionally the two weeks from the 27 December 2014 through until the 13 January 2015, or any other dates in the future until such time as determined by the Federal Magistrates Court (sic).
You are invited to respond by email as I am not prepared to enter into any verbal communication at this time.
Please do not attempt to attend my residence in person to discuss as I do not feel comfortable within your presence.
Due to the current timing of year I will seek an application to the Court in early 2015, you are invited to do the same.
The mother moved on 19 December 2014 and did not disclose her address to the father at this time.
The mother filed an Initiating Application in the Federal Circuit Court on 23 January 2015.
In her trial affidavit the mother denies that the father was unaware of the location to which she was moving.
According to the mother’s affidavit the circumstances in which she ceased making the children available to the father arose from concerns she had after the older child returned from a weekend visit with the father and informed two of the teachers at his school that the father “had been abusing him over a period of time”. She deposes that on 8 December 2014 the principal of the school interviewed the older child and made a report to the Department. She says that the principal telephoned her and told her about the information he received from his staff members that he had reported and that the principal expressed the opinion that it would be in the older child’s best interest if she could arrange for him to see a counsellor.
The mother says that on about 16 December 2014 she informed the father that she would be cancelling “access visits” with the children as she was concerned about the methods of discipline being utilised by him. The mother claims that about this time the older child made the following complaints to her about the father:
[The father] yells at me when we are in restaurants and shopping centres. He grabs me by the arm and gives me Chinese burns. He forces us to do 200 sit ups and 70 push ups, and if I won’t do it he forces me to lift heavy weights. He hits us with a wooden spoon on the thigh, neck and back; sometimes he does it in front of his friends and threatens to pull my pants down. He yells at me and tells me I’m not smart, I’m dumb. He makes us shower nude outside at Nanny Di’s and I’m embarrassed, if I tell him I won’t he says I’ll get a spanking. He hits [the daughter] more than me.
She adds that the older child said to her “Please don’t tell Dad, he will literally kill me”.
According to the mother’s affidavit, on 18 December 2014 the older child attended upon a psychologist and reported “the physical and mental abuse he has suffered at the hands of [the father]” and that the psychologist notified the Department and recommended that the older child spend no time with the father until the conclusion of “an appropriate investigation”. The mother says that it was after reading this report from the child’s psychologist that she stopped the older child from spending time with the father because she was “concerned for [the child’s] mental state”.
Attached to the mother’s affidavit is a letter written by a registered psychologist directed to “whom it may concern” dated 18 December 2014. In that letter the psychologist confirms that she had one session with the older child on 17 December 2014 and that during the session the child was seen initially with his mother and then by himself. It is recorded that the child presented making similar complaints to those deposed to in the mother’s affidavit though there are some of a more extreme nature. For example, it is recorded that the child reported that his father “grabs me by the arm and squeezes me as tight as he can. Blood came out of my arm with a ‘pop’”. The older child also told the psychologist that when he was forced by his father to lift heavy weights “the weights have fallen on my neck and I got stuck”. The psychologist also reports that the older child complained that this type of interaction has been going on since he was “a baby” and he “cannot put up with it anymore”. The psychologist states that she made a “risk of serious harm” notification to the Department as a mandatory reporter and recommended that “until an investigation of the allegations can be undertaken and actions agreed to ensure [the child] feels safe that [the child]’s wish not to return to the care of his father be supported”.
There were no documents from the Department tendered in the proceedings. I note however that in the Child Dispute Conference Memorandum (Exhibit 4) it is recorded by the Family Consultant on 13 March 2015 that the Department was notified about these allegations of abuse but did not take any action.
Under cross-examination the father said that the mother did not contact him at the time the allegations were first made by the older child about his conduct and that he did not become aware of the child’s allegations against him until the matter went to court some months later. He agreed that the mother told him the older child had reported to “someone” that he had been badly treated by the father and that information had been passed onto the school principal who reported it to the Department. The father said that this was the first time that there was any suggestion that he had been inappropriate towards the child. He said that the disclosures made by the child in December 2014 came as a surprise to him because they were false.
The father rejected the suggestion that his behaviour had contributed to the older child’s reaction at the end of 2014 though he conceded that “on occasion possibly” the child may have felt threatened by him because of his behaviour. He said that after he became aware from the mother in 2013 that the older child had been diagnosed with ADHD he responded by being very tolerant with the child though he conceded there might have been times where he raised his voice. The father subsequently agreed under cross-examination that over time if he felt frustrated he “might have raised [his] voice at [the older child] a bit more”.
The father said under cross-examination that from December 2014 he felt “shut out” from making decisions about the children. He agreed that he was under a misapprehension that the power to make decisions in relation to children “went with” the parent with whom the children lived. He said that he had always believed that since separation.
The father was not cross-examined any further about the serious complaints allegedly made by the older child to the mother and some of his school teachers and the psychologist then engaged with the child in December 2014. In particular, it was not put to the father that he had behaved in a physically violent manner. The father was also not cross-examined at all about allegations that he had ever required the children to be undressed in the presence of any adult.
The father’s wife’s affidavit touches only briefly upon any events leading up to and at the time the mother first stopped making the children available to the father. She deposes only that the children “would do ‘nudey’ runs through the house as [the father] was getting their bath ready” which also happened when the children stayed at the paternal grandparents’ home. She deposes that during 2014 the older child stopped this behaviour and became more self-conscious. She says that in response she saw the father provide the older child with some board shorts to shower in, or alternatively he showered in another location in the house. She says she did not observe the father to “force the children to do anything that they did not want to do”.
The father’s wife deposes to the father informing her that the mother had stopped his time with the children and that he did not know the reason for this. She says that the father showed her “the email” and was “crying and clearly upset”. The father’s wife was not cross-examined about any of the events in 2014.
The mother was cross-examined about the circumstances of her moving to the Central Coast on 19 December 2014. In my view, she was quite evasive and gave a confusing account of the circumstances of her relocation. She was unable to inform the court when she became aware that she had a job on the Central Coast. The mother was also in my view quite evasive about entries that she made on a social media platform maintained by her concerning the reason for the move. The mother initially denied that she moved to the Central Coast to get away from her partner and maintained that the two of them had not ever ceased their relationship. The following day the mother then appeared to concede that her social media “posts” did indicate that she had moved to the Central Coast to get away from her partner but maintained that when she wrote them her statements were not true. She was however unable to say why she had written these messages indicating that she had moved to distance herself from her partner.
Under cross-examination the mother also said that she moved to the Central Coast for the benefit of the children. When asked about the nature of that benefit her answer curiously included the statement that “everything was excellent between [the father] and myself” [at the time she moved].
Under cross-examination the mother denied that she had not consulted with the father about the schools the children were to attend on the Central Coast and denied that she did not inform the father when she made a decision to sell the house and move. The mother found it difficult however, to concede that there was no evidence to suggest that she had informed the father of each of these matters in her affidavit. She simply repeated that the father knew her house was for sale and helped her move.
The mother’s trial affidavit does not contain any allegations of abuse of the children by the father. She did however depose that the parental relationship had failed in part due to the father’s abusive relationship with her other son (who is not the subject of these proceedings). This would seem to suggest that at the commencement of the final hearing the mother no longer maintained that the father had been abusive to his children but continued to contend he had been abusive to her other son which had led in part to the breakdown of their marriage.
Under cross-examination the mother agreed that in a number of previous affidavits filed in the proceedings she had alleged that the father had been verbally abusive to all of the children and had threatened violence in the home. She also ultimately agreed that until she filed her (final) trial affidavit she had continued to put forward a case that the father had been violent to both of his children during the relationship.

The mother denied that her previous allegations that the father had been violent towards his children were false. She also denied that the reason these allegations did not form part of her trial affidavit is because they were never true.
Under cross-examination by the ICL the mother said she had not ever observed the father hitting the older child. She also agreed that she had not ever seen the father engage in any of the behaviours the older child alleged against him in December 2014. However, in the Notice of Risk filed by the mother when she commenced the proceedings in January 2015 she stated that she “was witness to smacking with a wooden spoon”. The mother ultimately agreed under cross‑examination that she had not seen the father smack the children with a wooden spoon though maintained she had seen bruises on both children. The mother found it difficult to accept that this statement was inconsistent with her evidence that she had not witnessed any physical violence by the father against the children.
The mother also did not accept that she had exaggerated some of the concerns about the father.
Although the mother deposed to witnessing “what went on with [her other son who is not the subject of these proceedings] in the household”, she does not provide any detail of this allegation and under cross-examination agreed she had not observed the father physically discipline this child.
The mother also agreed under cross-examination that things had been cordial between herself and the father up until December 2014.
The mother further agreed under cross-examination that she did not now maintain there were any risks of harm including physical harm to the children while in the father’s care. She agreed that she had made the decision to withdraw the father’s “access” to the children based on things she perceived the older child was telling her. Although the mother agreed that looking back and reflecting she had made some mistakes in the way she handled those decisions, her evidence was difficult to follow when she was asked to identify some of those mistakes. The only clear “mistake” she agreed to was not having communicated enough with the father in the past. Significantly, she did not identify the possibility that the older child may not have been telling the truth.
It is not the mother’s case that the father poses an unacceptable risk of harm to the children on any basis and in particular it was not put on her behalf at the final hearing that there is an unacceptable risk that the father may physically abuse the children. However, it is the father’s case that the mother does in fact maintain the position that he currently poses a risk of harm to the children. On this basis he contends there is a risk of emotional harm to the children if they remain living primarily in the mother’s care for so long as she holds this belief.
A determination of the mother’s current state of belief about harm posed by the father includes an assessment of the belief that she has held in the past and the connection between that belief and her own conduct in parenting the children in the past.
It is not in dispute that the mother previously maintained that the father posed an unacceptable risk of harm to the children on the basis that he had physically abused both of them and the mother’s other son who is not the subject of these proceedings. When the proceedings were commenced the mother sought sole parental responsibility for the children and “restricted access” for the father upon certain conditions. In her Notice of Risk filed at the commencement of the proceedings, the mother referred to having witnessed the father physically abuse the children. The mother agrees that she maintained right up until the filing of her trial affidavit (on 26 July 2017) that the father was physically abusive to the children.
The mother’s present position in relation to her previous allegations that the father had been violent towards the children is unclear. At some stages under cross-examination she appeared to continue to maintain that the father had physically abused the children. At other times including in proposing the orders that she does, the mother seems to accept that she no longer has this belief.
Ultimately, I understood that the mother takes the position that while she may no longer hold the belief that the father physically abused the children in the past, she genuinely believed it at the time when she withheld the children from the father in December 2014, relocated to the Central Coast and commenced the proceedings.
As I understand the father’s case, it is his position that the mother has not ever genuinely believed that he physically abused the children or posed an unacceptable risk of harm to them on this basis. Alternatively, he contends that it was not a reasonable belief held by the mother and that she unreasonably and uncritically accepted complaints made by the children and misinterpreted the behaviour of the older child in particular. He contends that the mother’s actions in withholding the children from him from December 2014, making serious allegations against him and unilaterally making significant decisions about them indicate her incapacity from December 2014 to support the children having a meaningful relationship with him which continued at the time of the proceedings and is likely to continue in the future.
I am not satisfied to the requisite standard[1] that the father did physically abuse the children at any time. I also do not find that there is an unacceptable risk that the father will physically abuse the children in the future. I am further satisfied that the mother did not have a reasonable basis to believe that the father had physically abused the children when complaints were allegedly made by the older child to her in late 2014. These findings are made for the following reasons.
[1]Evidence Act 1995 (Cth), section 140.
First, the mother does not set out in her affidavit any allegations of physical violence said to have been perpetrated by the father against the children. She also agreed under cross-examination that she had not ever seen him physically abuse either of them. The mother has not clearly identified the violence she believed the father had perpetrated at the time.
Next, the mother seems to rely entirely upon complaints that she says were made by the older child to her and others in coming to a belief about the risk of harm posed by the father at the time. However, the mother’s account of the information given by the older child at this time has a number of features which suggest the complaints were unreliable. This in my view is significant given that the older child’s complaints were the only basis upon which the mother acted thereafter and seemed to form the foundation for that child forming beliefs about the physical harm perpetrated by the father which appear to continue to this day.
In my view some features of the child’s account given to the mother and the psychologist in December 2014 are patently unbelievable and ought to have caused the mother to reflect upon the likelihood of their accuracy. For example the child informed the psychologist that when the father grabs him by the arm and squeezes it as tight as he can “blood came out of [his] arm with a ‘pop’”. The child also alleged to the psychologist that heavy weights he was required by his father to lift had fallen on his neck and he got stuck. Most significantly the child reported that this kind of behaviour has been going on since he was “a baby” and he “cannot put up with it anymore”. The tenor of the expert’s evidence was that this type of clearly exaggerated claims made by the older child ought to have caused the mother to reflect and consider their accuracy rather than add weight to them by accepting them and taking them on as her own.
Further, the context in which the child’s allegations of his father’s abuse were made is also in my view relevant in assessing their likely accuracy and reliability. Although, it is unfortunate that neither of the parents provide a full account of the background events and context in which these allegations emerged in their respective trial affidavits, the context was given by each of them when they were assessed by the expert and the accuracy of that information was not challenged under cross-examination. It is also generally consistent with the balance of each parent’s account.
It is common ground between the parents that the arrangements under which the father spent time with the children proceeded smoothly until late 2014. Both parents reported to the expert that the last occasion on which the father spent time with the children before it was stopped by the mother was 7 December 2014. The mother told the expert that at this time the older child had not wanted to return to see his father and had spoken to his teacher about the father during the school’s “Bullying Week”. The expert records the following in her report, which was relayed to her by the mother:
[The older child] had related a story about a boy that was being abused and “told the whole class of his history of being beaten and chased with the wooden spoon, screaming abuse, his head being held under water, Chinese burns, that he is fearful of his Dad still”. (emphasis added)
It is the mother’s understanding that the teacher or teachers who heard the child’s “story” reported the matter to the school principal (who in turn reported it to the Department) and this was the genesis of the child’s allegations about the father’s conduct. It is significant in my view that no documents from the Department in relation to this notification or any ensuing investigation were tendered at the final hearing and the Family Consultant’s observation in the Child Dispute Conference Memorandum that the Department was notified but did not take any action was not challenged.
In my view there are also inconsistencies within the mother’s own case about the older child’s complaints and her action in ceasing the father’s time. In her trial affidavit the mother suggests that at around the time when she informed the father she would be cancelling his time with the children, the older child also told her about the father’s assaults and threats. She then deposes that on 17 December 2014 the child attended upon a psychologist and made similar complaints. She says that after reading the psychologist’s report dated 18 December 2014 she stopped the older child from spending time with the father because she was concerned about the child’s mental state. However, the mother’s email to the father is dated 16 December 2014, two days prior to the psychologist’s report.
In my view, another distinctive feature of the child’s complaints to both the mother and the psychologist is that they are markedly similar to complaints made by the mother’s other son (who is not the subject of these proceedings). This young man alleged to the expert that the father had hit him in public, pulling his pants down to smack his “bum”, and “forced” him to carry 40 kilo sleepers for a retaining wall and cement bags. It was also reported to the expert that it was the older son who had his head held under water by the father. [2]
[2] Expert’s Report (Exhibit 1), pages 6 and 25.
In my view, it is somewhat remarkable that the mother did not reflect upon the possibility that the older child had in some way taken on the complaints made by his older brother about the father. It would have been reasonable for the mother to consider that the older child may have conflated his brother’s complaints first with the experience of a hypothetical child (when speaking at school in the context of a discussion concerning “bullying”) and then with his own experience when speaking to his mother and psychologist.
In my view there is another significant feature in the mother’s evidence to which I attach weight in making findings about her belief about risks posed by the father when she withheld the children from him at this stage. Under cross‑examination the mother confirmed that up until the time the older child first made the allegations about the father’s conduct her relationship with the father and their capacity to co-parent the children was good. This statement about the nature of their relationship is consistent with the father’s case. He deposed to exchanging cordial emails and text messages with the mother and having civil conversations with her about her request that he care for the children while she moved house right up until the evening on 16 December 2014, the day before the children were to come into his care. Both party’s evidence is consistent with the father’s position that he was shocked and upset that the mother then informed him for the first time that the children would not be spending any time with him or his parents in the future until a determination of the court was made. The father’s wife was not challenged about her evidence that the father was crying and clearly upset when he showed this email to her.
In my view, it is significant that the mother made a decision to cease completely all contact between the children and the father solely on the basis of reports made by an eight year old child which were inherently unbelievable and had features of exaggeration and influence by others, without any prior discussion with the alleged perpetrator with whom she had a good co‑parenting relationship at the time.
In assessing the mother’s beliefs about the risk posed by the father at the time I also attach some weight to the events occurring in the mother’s life and the reasons for her relocation with the children.
The mother conceded that her social media posts indicated that she had moved to the Central Coast in December 2014 to get away from her partner though under cross-examination the mother asserted that she moved to benefit the children. She was however unable to identify these benefits. The mother was adamant however under cross-examination that she had not moved due to any concerns about the father’s abusive conduct and at one point in oral evidence went further claiming that her relationship with the father at that time was “excellent”.
In summary I cannot make a positive finding that the father abused either of the children. The father denies that he abused the children as alleged and this denial was not challenged under cross-examination. The mother also did not ever observe the father physically abuse the children and at the time it was said to have occurred she did not discuss the complaints with him even though their co-parenting relationship was good. At the same time that the mother was relocating for her own reasons she decided to rely upon the clearly exaggerated accounts of a child (then aged eight) which the Department did not regard as worthy of any action.
The only other evidence to consider in relation to the question of risk that the father may physically abuse the children in the future is the allegations made by the mother’s other son that the father had abused him in the past. In circumstances where the mother concedes that she also has not ever observed the father abuse this son, where the father emphatically denies that he has done so and the mother does not put forward any evidence at final hearing as to that matter, I am also not satisfied that there is an unacceptable risk that the father may be physically abusive towards the children in the future.
I am also of the view that the mother ought to have critically assessed the older child’s complaints about the father’s alleged abusive conduct before taking such serious action as withholding the children from the father, particularly at a time when she was relocating with the children some distance from him. As discussed, the context in which the child first made his complaint to school staff which was presented to the mother as third hand hearsay and the child’s complaints to her which bore a marked similarity to complaints made an older sibling, at a time where her relationship with the father and their co‑parenting of the children was good, do not found a reasonable basis upon which to take such dramatic action.
I do not accept that the child’s reports to the psychologist formed part of the mother’s decision to take this action at the time as the child did not see the psychologist until two days after the mother had informed the father that she would not be making the children available.
In my view, there is an element of opportunism by the mother in uncritically accepting the complaints made by the older child and relying upon them in suspending the father’s time with the children at a time when she was relocating due to difficulties in her relationship with her partner. Taking all of the foregoing matters into account I do not find, as the mother contends, that she acted protectively and reasonably at this time in withholding the children from the father and unilaterally making significant decisions about them without input from the father.

Further interruptions in the children’s time with the father

It is contended on behalf of the mother that her actions in withholding the children from the father have been at all times reasonable in the circumstances and do not form a pattern of conduct aimed at undermining the children’s relationship with the father.
In particular it is submitted on the mother’s behalf that after the initial complaint made by the older child about the father’s alleged abuse was “aired and resolved” the children returned to spending time with him in a manner which was supported by the mother.
It is the father’s contention that the mother continues to believe that he poses a significant risk of harm to the children and that this informs the mother’s ongoing actions in withholding the children from him from time to time. A determination of these positions also involves the resolution of a number of facts in dispute concerning the further occasions on which the mother withheld the children in May 2015, December 2015 and May 2017.
As previously noted the mother commenced these proceedings by filing an Initiating Application in the Federal Circuit Court on 23 January 2015. On 13 March 2015 when the matter first came before that court the parties attended a Child Dispute Conference. In the Memorandum to the court (Exhibit 4) the Family Consultant identified the question of whether or not the children should recommence spending time with their father as an issue in dispute. The Family Consultant recorded that it seemed to her that the parties’ son and probably the daughter would need some form of relationship repair with their father and may benefit from therapeutic intervention in the form of family therapy involving the children and the father. It is recorded that the mother said she was willing to participate in family therapy with the father and children. On the same date orders were made in the Federal Circuit Court including that the children meet the therapist as soon as can be arranged. Orders were also made permitting the father to have telephone contact with the children twice per week.
The therapist initially saw the father prior to the orders being made for family therapy and then subsequently saw one or more of the family members on six occasions after those orders were made. According to the therapist’s affidavit on five of those six occasions the father attended either alone or with the children and on one occasion with the mother. On the sixth occasion the mother and the children and the mother’s other son were seen by the therapist.
The therapist deposes that in the two sessions where the children were reunited with their father, the older child appeared initially anxious and at one level ambivalent but was “relaxed and affectionate in his father’s presence and was making plans of what they could do when he next visited his father at his home”. She also observed however, that the older child “seemed burdened to tell his father that he did not want to see him” and “seemed to think that the decision to see his father was his to make”. The therapist reported that the younger child said she missed her father, would like to see him and in the therapist’s observation “found it difficult to contain her emotions for her father and was physically very affectionate” with him.

The father is of Polish heritage but this is not addressed in his evidence. His wife gave some limited evidence that Polish food traditions, especially associated with the celebration of Christmas, assume some importance in the paternal household. The only other matter of significance so far as the father is concerned is that he appears to share a quite close relationship with his parents and other family members who have had, and are likely to continue to play an important role in the children’s lives.
The vulnerabilities associated with the older child’s mental health conditions have been discussed at length in these Reasons.

Attitude to the children and responsibilities of parenthood demonstrated by each parent

There is no doubt that each of the parents has a loving and caring attitude to the children and has been well-intentioned towards them. The father has not been as involved in decisions relating to the care of the children as the mother, but for the reasons previously discussed, this is not in my view a weighty factor and the father ought not bear great criticism in the circumstances. I do not find that he has had a poor attitude to the responsibilities of parenthood.
In general, the mother has shown herself to be a committed and conscientious parent. However, her actions in May to June 2017 when she withheld the children from spending time with their father reflects poorly upon her attitude towards the responsibilities of parenthood particularly as she was aware of the significance of the father’s wedding for both he and the children. This is not, however, of itself a matter to which I attach great weight as this incident and the mother’s conduct has already been considered at length otherwise in relation to other matters.

Family violence relating to the children or a member of the children’s family

Although the mother appears to have previously suggested that she and all her children experienced family violence at the hands of the father, this was not pursued in this hearing. Accordingly, I do not make any findings in relation to family violence in the determination of this parenting dispute.

Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children

It is always preferable for children who have been exposed to a high degree of conflict associated with family law proceedings to be shielded from further conflict so far as is possible.
Given my findings with respect to the occasions on which the mother ceased the children’s time with their father (and as there is no suggestion that the father has not complied with orders), I am of the view that it is less likely that further proceedings will be instituted in relation to the children if orders are made as sought by the father, than if orders are made in accordance with the mother’s proposal.

Parental responsibility

Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[8] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[8] (2006) FLC 93-286
Where the Court is to determine parental responsibility, the starting point is s 61DA. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
The mother proposes that she have sole parental responsibility for the children on the basis that the children primarily live with her. The father conducted his case in accordance with his proposal that he have sole parental responsibility with respect to health and education on the basis that the children live primarily with him. The ICL proposed that, in the event that the court finds the children should live with the father, he should have sole parental responsibility. The ICL proposed that if orders are made that the children live with the mother, the parties should have equal shared parental responsibility.
The expression “sole parental responsibility” is not defined in the Act. Having regard to the definition of parental responsibility in s 61B, the parent proposing sole parental responsibility must be seeking that he/she have all the duties, powers, responsibilities and authority which, by law parents have in relation to the child and that the other parent would have none of the duties, powers, responsibilities and authority with respect to the child.
The applications for sole parental responsibility must be considered in the context of the presumption and a consideration of whether the presumption is rebutted by evidence such that it would not be in the children’s best interests for the parents to have equal shared parental responsibility for them.
A number of relevant matters arise from a consideration of a rebuttal of the presumption, in addition to a consideration of the best interests factors. In particular I take into account that the effect of a parenting order that provides for shared parental responsibility pursuant to section 65DAC(2) is that decisions about major long-term issues are required to be made jointly and requires the parents to consult one another in relation to such decisions and make a genuine effort to come to a joint decision.
The two specific issues upon which the father seeks sole parental responsibility are both major long-term issues as defined in the Act.[9] I note that they are also issues which have been of particular significance to the older child and in respect of which the mother alone has made decisions without consultation with the father.
[9] Family Law Act 1975 (Cth), s 4.
The significant difference in the parent’s respective parenting style has loomed large in relation to their inability to make decisions together. On occasions when the older child has become overwhelmed and dysregulated, the mother has been unable to assist him without external intervention. For example on 4 May 2017 when the child was said to have expressed suicidal ideation the mother arranged for an emergency appointment with the psychologist and then presented the child to the Emergency Department. During the incident on October 2017, when the older child contacted the mother from the bathroom of the father’s home, the mother felt unable to contact the father and attempt to resolve the matter together and instead agreed to her partner’s suggestion that police become involved. In my view, there is a risk that when the older child may become overwhelmed and emotionally dysregulated in the future, the parents may not have the capacity to jointly make a decision about whether external intervention is required including medical attention.
So far as decisions in relation to education are concerned I note that the older child has had difficulties in relating to his peers at school and the mother’s response was to change the child’s school without discussing this change with the father.
There is no evidence that the parties have previously reached agreement about any major long-term issue. The mother unilaterally relocated to the Central Coast in December 2014, which was a decision that made it significantly more difficult for the children to spend time with their father. She enrolled them in schools on the Central Coast without his input and, in the case of the older child, unilaterally changed his school enrolment.
In summary the parents have a poor record in communicating with one another including in relation to major long term issues. They also have no record of joint decision-making. Rather the mother has tended to unilaterally make decisions for the children and on some occasions important decisions have been influenced by her own personality vulnerabilities and parenting style to the detriment of the children. All of these circumstances do not auger well for the future.
As recently as May 2017, when the father sought information from the mother about her impending overseas travel, she did not respond to his request for information about the arrangements she had made for the children’s care during her absence. It appears that she had not considered that the father may provide valuable input into the arrangements for the children on this occasion.
I also have some concern that an order for equal shared parental responsibility is more likely to lead to the institution of further proceedings in relation to the children.
Although it is a serious step to remove a parent from all which is involved in the exercise of parental responsibility, I am satisfied that in these circumstances it is in the children’s best interests for the parent with whom the children are to primarily live to have sole parental responsibility for them.
As I have decided that I will make an order for one parent to have sole parental responsibility for the children, I need not turn to s 65DAA of the Act.

Conclusion

After considering all of the foregoing matters and the evidence as discussed, I am satisfied that it is in the best interests of the children for there to be a change in their parenting arrangements and that they move to live primarily with their father and spend defined time with their mother.
In coming to the view that this arrangement is in the best interests of the children I attach particular weight to the risks to the children having a meaningful relationship with their father if they remain living with the mother in light of my findings about the family dynamics in the mother’s household. I also attach significant weight to the capacity of each of the parents and others in the respective maternal and paternal households. I do not attach any weight to the views expressed by the children for the reasons given.
The most significant factor in favour of the children remaining in the primary care of their mother is that it is likely that the children will experience a change in their living arrangements as traumatic. However, a number of orders proposed by the father, as recommended by the expert, will provide support for the children during this difficult time. It is the intention of the children’s stepmother to work from home for some time following the change in the children’s care arrangements. They will also receive family therapy and orders will be made in accordance with the expert’s recommendation to assist the mother to contain her emotions during her time with the children. The adverse influence of the mother’s partner will in my view be mitigated by an order that he not be brought into contact with the children for a period of six months. I have also found that the father and his wife have good capacity to provide for the children’s needs, which will support them through this difficult time.
The orders that are set out at the forefront of this decision are a combination of the orders proposed by the father and the ICL (in the event that I determine it is in the best interests of the children to live with the father). In some cases I have reworded the order as proposed to provide clarity.
A number of the orders proposed by the father were not made as there was no evidence to indicate that these orders were proper in the circumstances. For example there is no evidence in relation to the requirement for restraining the mother from changing the children’s surname, or for specific orders in relation to the children’s passports and international travel. There is no evidence to suggest that Easter is a time of particular significance for this family which requires the making of particular orders in that regard.
There also appears to be some confusion in relation to the role of the older child’s psychologist, Dr Clayton. Dr Clayton is a psychologist who was engaged to provide therapeutic assistance to the older child. She was not engaged for the purpose of providing the family with family therapy, nor is there evidence that she would be prepared to do so. In any event, Dr Clayton’s offices are located approximately one hour’s drive from the father’s residence and it is not practicable to require the father to continue to travel that distance for the purposes of the child’s ongoing attendance with that psychologist. The orders that I have made will permit the father to source family therapy for himself and the children with a therapist of his choosing. He will also arrange any therapeutic support for the children as he deems appropriate in the exercise of his sole parental authority.
For the foregoing reasons I make the orders set out at the forefront of this judgment.

I certify that the preceding four hundred and sixteen (416) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 23 January 2018.

Associate:

Date: 23 January 2018