Saade & Hutton (No 2) - [2024] FedCFamC1F 127

FEDERAL CIRCUIT AND
FAMILY COURT OF AUSTRALIA (DIVISION 1)
Saade & Hutton (No 2) [2024] FedCFamC1F 127

File number(s): PAC 3547 of 2022

Judgment of: HOGAN J

Date of judgment: 7 March 2024

Catchwords: FAMILY LAW – PARENTING – RELOCATION – Where the father seeks sole parental responsibility – Where the father seeks that the children live with him and spend time with the mother – Where the mother seeks sole parental responsibility – Where the mother seeks that the children continue to live with her and spend time with the father – Where there is a history of serious family violence perpetrated by the father – Where the mother seeks to relocate to the City H area – Where the father opposes the relocation – Where there are restraints in place prohibiting the subject children spending time with the mother’s new partner – Where it is in the children’s best interests to live with the mother – Where the mother is permitted to relocate the children to live with her in the City H area

Legislation: Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 65AA, 65D

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

Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36

Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Morden & Coad [2019] FamCAFC 233

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

Division: First Instance

Number of paragraphs: 137

Date of last submission/s: 8 December 2023

Date of hearing: 4, 5, 6, 7 & 8 December 2023

Place: Parramatta

Counsel for the Applicant: Ms Vogel

Solicitor for the Applicant: Censeo Legal

Counsel for the Respondent: Ms Mattar

Solicitor for the Respondent: SCB Legal Pty Ltd

Counsel for the Independent Children's Lawyer: Mr Ladopoulos

Solicitor for the Independent Children's Lawyer: Lamrocks Solicitors
ORDERS

PAC 3547 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SAADE

Applicant

AND:
MS HUTTON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

HOGAN J

DATE OF ORDER:

7 MARCH 2024

IT IS ORDERED BY WAY OF FINAL ORDER THAT:
1.All parenting plans and previous parenting orders are discharged.
2.The children, X, born 2011 and Y, born 2015, live with the mother.
3.The mother is at liberty to relocate the children to live with her permanently in the City H area.
4.The mother have sole parental responsibility in respect of all major long-term issues, as that expression is defined in the Family Law Act 1975 (Cth), relating to the children.
5.In the exercise of the mother’s sole parental responsibility, the following shall occur:
(a)save in the case of an emergency, when such notice is to be provided as soon as practical, the mother shall inform the father in writing (via email) about decisions to be made, including any views she has and relevant information she has considered, no less than fourteen (14) days prior to making the decision; and then
(b)the father shall have seven (7) days to respond to the mother’s email correspondence; and then
(c)the mother shall consider the father’s response; and then
(d)the mother shall, within seven (7) days of making her decision, inform the father in writing of that decision.

6.The children shall spend time and communicate with the father as agreed between the parents in writing and, failing agreement, as follows:
(a)whilst the children are living in the Sydney area:
(i)during school terms: each alternate weekend from after school Friday (or, if that day is a non-school day, from 9:00 am) until 5:00 pm Sunday with this time to commence on the second weekend after the date of these Orders; and
(ii)during school terms: each alternate Thursday from after school (or, if that day is a non-school day, from 9:00 am) until 7:00 pm, with such time to commence on the second Thursday immediately following the date of these Orders; and
(iii)by telephone each Wednesday (or such other day of the week as agreed to between the parties in writing) between 5:00 pm and 5:30 pm and, in order to facilitate this communication:
A.the mother shall advise the father in writing, within forty-eight (48) hours of the date of this Order, of the telephone number to be used; and
B.the father shall initiate the communication with the children by calling the number provided; and
C.the mother shall make the children available to receive the communication and shall allow them privacy during it.

(b)following the children’s relocation to live in the City H area:
(i)during school terms: each alternate weekend from after school Friday (or, if that day is a non-school day, from 9:00 am) until 5:00 pm Sunday, with this time to commence on the second weekend after the children have been relocated to live in the City H area; and
(ii)by telephone each Wednesday (or such other day of the week as agreed to between the parties in writing) between 5:00 pm and 5:30 pm and, in order to facilitate this communication:
A.the mother shall advise the father in writing, within forty-eight (48) hours of the date of this Order, of the telephone number to be used; and
B.the father shall initiate the communication with the children by calling the number provided; and
C.the mother shall make the children available to receive the communication and shall allow them privacy during it.

(c)following the making of these Orders:
(i)during the gazetted New South Wales school holiday periods at the conclusion of Terms 1, 2 and 3 each year: from 5:00 pm on the first Saturday of the school holiday period until 5:00 pm on the following Thursday; and
(ii)on each Father’s Day weekend if the children are not otherwise in the father’s care: from 5:00 pm on the Friday immediately before Father’s Day until 5:00 pm on Father’s Day; and
(iii)from 5:00 pm on Christmas Day until 2:00 pm on 27 December each year; and
(iv)from 5:00 pm on 3 January until 5:00 pm on 8 January each year; and
(v)from 5:00 pm on 21 January until 2:00 pm on 26 January each year.

7.The operation of the following orders shall be suspended during school holidays and shall recommence in the manner provided:
(a)Order 6(a)(i): on the first weekend after school recommences for the Term; and
(b)Order 6(a)(ii): on the second Thursday of each new school Term; and
(c)Order 6(b)(i): on the first weekend after school recommences for the Term.

8.The operation of Orders 6(a)(i) and 6(b)(i) shall be suspended for the weekend on which Mother’s Day falls such that, irrespective of any other term of these Orders, the children shall remain in the mother’s care for that weekend.
9.Unless otherwise agreed by the parents in writing, for the purpose of Orders 6(a)(i) and (ii) and whilst the children remain living in Sydney: the father shall collect the children from school at the commencement of their time with him and the changeover at the conclusion of the time shall occur at the McDonald’s Restaurant, K Street, Suburb L.
10.Unless otherwise agreed by the parents in writing, following the relocation of the children to live in the City H area, changeovers shall occur at the McDonald’s Restaurant at Town M.
11.Unless otherwise agreed between the parents in writing, the children’s time with the father shall occur in and around the environs of the paternal grandfather’s house at N Street, Suburb L, New South Wales.

IT IS FURTHER ORDERED BY CONSENT THAT:
12.Each party is at liberty to facilitate changeover using a third party known to the children, provided that such persons do not include Mr D.
13.Unless otherwise agreed between the parents in writing, both parents shall ensure that, during changeovers:
(a)neither parent will approach the other parent; and
(b)neither parent will record the other parent via video or audio recording or by any other means.

14.Without limitation to any other Order providing for communication between the parents and the children, the children may communicate with both parents by electronic means at any reasonable time when they are in the other parent’s care and each parent shall do all things necessary to facilitate the children communicating with the other parent by electronic means on a regular basis or at times the children express a wish to speak to the other parent and shall provide the children privacy during such calls.

15.Within seven (7) days of the date of these Orders, the mother will provide the children’s paediatrician, Dr O, with a copy of these Orders and shall provide the father with confirmation of her compliance with this Order.
16.The parents shall ensure the children attend all appointments with the paediatrician, or such other paediatrician as recommended by Dr O and both parents will do all things (including providing a copy of these Orders to the children’s school) to ensure that the children are released from school to attend such appointments.
17.Each party has leave to provide a copy of these Orders to the children's school, healthcare providers, and any other persons or organisations that the children are engaged with from time to time.
18.Both parents shall comply with all reasonable directions of the children’s paediatrician and counsellor, including attending all appointments as recommended and ensuring the children take any medications as recommended.
19.Both parents shall keep the other advised at all times of their residential address, email address and contact telephone number and shall advise the other parent within 48 hours of any change to either their email address or contact telephone number.
20.Each parent shall be permitted to communicate directly with the children’s school/s, have access to the school Compass application (or such other communication tool used by each of the children’s schools), sporting bodies, and medical practitioners to obtain any necessary information and/or documents about the children’s progress and this Order shall constitute sufficient authority for such communication.
21.Both parents are entitled to attend at all school events and extra-curricular activities that a parent would ordinarily be invited to attend and, during attendance at such events, neither parent shall approach the other unless agreed between the parents in writing.
22.Subject to Order 23, each parent shall do all reasonable things necessary to ensure that they facilitate the children participating in their scheduled extra-curricular activities during such periods that the children are spending time with them.
23.Unless the father consents, the mother shall not enrol the children into any additional extra-curricular activities that will impede on the children’s time with the father.
24.Both parents shall, as soon as reasonably practical, keep the other advised of the health of the children, including any serious illness, medication or hospitalisation of the children, or either of them.
25.The parents shall communicate in relation to all matters concerning the children by text message, save for in an emergency, where they shall communicate via telephone call.
26.Without admissions, when the children are in their respective care, each parent is restrained from:
(a)consuming alcohol in quantities that would lead to them having a blood alcohol level exceeding the then current lawful limit from time to time for drivers holding Class C drivers licenses in the State of New South Wales and for a period of 24 hours prior to the children coming into that parent’s care; and
(b)consuming any prescription medication other than as prescribed; and
(c)consuming any illicit substance; and
(d)physically disciplining the children or permitting any other person to do so; and
(e)denigrating the other parent, the other parent’s extended family, or a person with whom the other parent has a relationship, in the presence or hearing of the children, or permitting the children to remain in the presence or hearing of any other person denigrating the other parent, the other parent’s extended family, or person with whom the other parent is in a relationship with, with the parent’s knowledge or in their presence; and
(f)discussing the proceedings or any allegations raised in these proceedings with the children or permitting any other person to do so with their knowledge or in their presence; and
(g)discussing parenting matters, with the children or permitting any other person to do so with their knowledge or in their presence; and
(h)permitting the children to have access to any of the documents filed in these proceedings; and
(i)recording the children via video or audio recording, including when the children are having electronic communication with the parents, other than for the purposes of recording positive memories of the children and allowing or causing any third party from doing so; and
(j)interrogating the children about the time they have spent with the other parent and each parent shall do all reasonable things necessary to prevent any other person from doing so in the presence or hearing of the children; and
(k)interfering with the children’s electronic devices or allowing others to do so; and
(l)communicating any information intended for the other parent through the children; and
(m)causing the children to be a medium in any way between the mother and the father or between the mother and the father and any other person.

AND IT IS FURTHER ORDERED THAT
27.The mother be restrained and an injunction issue restraining her from leaving the children in the sole care of Mr D for a period of 12 months from the date of these Orders.
28.Each party equally share the costs of the Independent Children’s Lawyer in the sum of $5,918.00 each unless such costs are waived by the Legal Aid Commission New South Wales.
29.The Independent Children’s Lawyer is discharged unless a Notice of Appeal is filed by any party within the time prescribed or such other time as allowed by Order.

AND IT IS FURTHER ORDERED THAT
30.Each parent and the Independent Children’s Lawyer has leave to provide a copy of the Order made 7 March 2024, the Reasons for Judgment published in support of the same and the Family Report authored by Ms E, Court Child Expert to the school at which the children attend, to any therapist upon whom the parents and/or the children attend for the purpose of therapy and to the Department of Communities and Justice and/or the authority of any State or Territory responsible for child protection and, if necessary, to any member of the New South Wales Police Service, the police service of another State or Territory and the Australian Federal Police.
31.Save as is otherwise ordered herein, no party is permitted to use the documents provided to them in the course of this proceeding for any purpose other than any appeal in respect of these Orders.
32.All outstanding applications are otherwise dismissed.
33.Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an Order are set out in the Fact Sheet attached and these particulars are included in these Orders.

IT IS NOTED THAT:
A.The Court notes that the Independent Children’s Lawyer is mandated by New South Wales Legal Aid to bring cost applications in all matters and that such application has been made in this case.
B.There is no Court known by the name “Federal Circuit and Family Court of Australia”.
C.The design of the seal affixed to this order issued by the Federal Circuit and Family Court (Division 1) has been determined by the Attorney-General pursuant to the undated Federal Circuit and Family Court of Australia (Seal) Determination 2021 signed by the Attorney-General.

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

These proceedings require the determination of those parenting orders which are in the best interests of 12 year old X, who was born 2011, and nine year old Y, who was born 2015.
The children currently live with their mother and spend time, supervised by members of the extended paternal family, with their father each alternate weekend and each alternate Thursday afternoon; they also communicate with him via a video call between 5:00 pm and 5:30 pm each Tuesday.
The mother proposes that the children remain living primarily with her; she seeks to relocate them from their current residence in Sydney to live with her, her current partner (Mr D) and their two children (P, who was born 2019, and Q, who was born 2023) in the City H area, several hours’ drive from their current residence.
The father proposes that the children move to live primarily with him.
For the reasons which follow, I consider that it is in the children’s best interests to remain living primarily with the mother and for her to be able to relocate them to live with her, her current partner (Mr D) and their two children in the City H area. Given the joint position finally advocated by both the mother and the Independent Children's Lawyer that the children’s best interests will be met by them continuing to have the opportunity to spend time with the father, I have ultimately been persuaded, although not without reservations, that such a course is in their best interests and appropriate.
Previous parenting arrangements and orders
As noted, X was born 2011. The father was incarcerated in 2012 and, during his incarceration, the mother and X lived with the paternal family. After the father was released from jail, he returned to live with his family – the mother subsequently moved with X to live in temporary accommodation, where they lived for about three months.
The mother then moved, in 2013, to live with X in her own residence and the father visited her and X there regularly. This situation appears to have continued after Y’s birth in 2015.
On 23 October 2017, Judge Newbrun made final parenting orders by consent (the October 2017 order) in terms which provided for:
(a)the parents to have equal shared parental responsibility for the major long-term issues relating to the children; and
(b)the children to live with the mother; and
(c)the children to spend time and communicate with the father as agreed and failing agreement:
(i)each Tuesday from 3:00 pm to 6:00 pm; and
(ii)each alternate Thursday from 9:30 am to 7:00 pm; and
(iii)each alternate weekend from 4:00 pm Friday until 4:00 pm Sunday; and
(iv)from 9:30 am on the other alternate Thursday until 4:00 pm Saturday; and
(v)for no less than five days and four nights during the school holidays; and
(vi)the children to communicate with the father from 5:15 pm to 5:45 pm each Monday and Wednesday.

The October 2017 order also prohibited the children being relocated to live outside Sydney.[1]
[1]Affidavit of the mother filed 24 October 2023, paragraph 21; Order of 23 October 2017 filed in these proceedings on 7 December 2023.
I accept that the father complied with the October 2017 order for about five months. I also accept that, after the father assaulted Mr D, the mother’s partner, in mid-2018, the children did not spend any time with him for about three months. I accept that, from about May 2019, the children attended about 20 supervised visits with the father and that such time was supervised by R Family Services.
On 21 October 2019, further parenting orders were made by consent (the October 2019 order) in terms which included that:
(a)the children live with the mother; and
(b)the children spend time with the father, supervised by the paternal aunt:
(i)each Tuesday from 3:45 pm to 6:45 pm in a public place; and
(ii)each alternate Saturday from 11:00 am to 2:00 pm in a public place; and
(iii)at such other times as agreed between the parents.[2]
[2] Affidavit of the mother filed 24 October 2023, paragraph 44.
I accept that, before he was incarcerated on about late 2019 for his assault on Mr D, the father and children spent time together on four occasions, as provided for by the October 2019 order.
On 2 March 2020, Judge Myers made further final parenting orders in terms which included that:
(a)the mother have sole parental responsibility for the major long-term issues relating to the children; and
(b)the children live with the mother; and
(c)the children communicate and spend time with the father as agreed by the parents; and
(d)both parents be restrained from using physical discipline upon the children, making derogatory remarks about the other in the presence of the children and from consuming alcohol and illicit substances within 12 hours of and whilst caring for the children.
The March 2020 order noted that the father was then in prison and that his earliest release would be in mid-2021.[3]
[3]Affidavit of the mother filed 24 October 2023, paragraph 48; Order of 2 March 2020 filed in these proceedings on 7 December 2023.
I accept that, during the father’s incarceration between about late 2019 and mid-2021, the mother facilitated the children spending time with the paternal grandfather and paternal aunt – this happened every Tuesday and Saturday, as well as for some overnight time. I accept that, during their time with the children, the paternal family facilitated communication between the father and the children.
I accept that, after the father was released from jail in about mid-2021, he spent time with the children in accordance with the October 2019 order.
I accept that, in around May to June 2022, the mother ceased to allow the children to spend time with the father because she was concerned that he was encouraging them to make complaints about her conduct and Mr D’s conduct toward them and filming such discussions. I also accept that, whilst she had moved with the children to live with Mr D in the City H area in mid-2022, the mother subsequently returned with the children to live in Sydney after an incident between Mr D and Y.
I accept that the children resumed spending time with the father shortly after their return to Sydney.
On 14 November 2022, Senior Judicial Registrar made further interim parenting orders by consent in terms which included that:
(a)the children live with the mother; and
(b)the children spend time with the father, supervised by the paternal grandfather and/or the paternal aunt, as agreed in writing between the parents, or failing agreement on:
(i)each alternate weekend – from after school Friday until 5:00 pm on Sunday; and
(ii)each alternate Thursday – from after school until 7:00 pm.
(c)the children communicate with the father by telephone or video call between 5:00 pm and 5.30 pm on each Tuesday and Thursday; and
(d)the mother was restrained from bringing the children into contact with Mr D and that both parents were restrained from recording the children, questioning them about the time spent with the other parent and interfering with their electronic devices; and
(e)the father undertake hair follicle testing in order to determine whether or not he used illicit substances.
On 28 June 2023, Altobelli J suspended the children’s supervised time with the father pending the receipt of the Family Report.
On 20 July 2023, Altobelli J made interim parenting orders in the same terms as those made on 14 November 2022. His Honour also ordered that the children spend an additional six nights with the father (to be taken in two, three-night periods) during the September/October school holidays and the December school holidays to make up for the time lost as a consequence of the June 2023 orders.
I accept that the children have subsequently spent time with the father as prescribed by the November 2022 order and that they have also communicated with him by video call each week.
Overview of the competing proposals
The father
The father proposed that he be accorded sole parental responsibility for the major long-term issues relating to the children and that they live with him and spend time with the mother as deemed appropriate by the Court, including via daily telephone and/or FaceTime communications. His position was that the restraint which currently prevents the mother from bringing the children into contact with Mr D should remain in place.[4]
[4] Amended Initiating Application sealed 23 October 2023.
During the submissions made on his behalf following the close of the evidence, Counsel who appeared for the father advised the Court that:
(a)the father agreed to orders being made in terms of those found at paragraphs 7.3 to 20 and 22 of the orders proposed by the Independent Children's Lawyer; and
(b)in the event that the Court permitted the mother to relocate the children to live with her in City H, the father proposed that:
(i)the children spend every weekend (from after school Friday until Sunday afternoon) and half of the school holidays with him; and
(ii)changeovers occur at the service station at Town S.
(c)in the event the Court declined to allow the mother to relocate the children to live with her in City H and also declined to make orders that the children live with him, the father proposed that the children spend time with him every weekend (from Friday after school until Sunday afternoon) and every Tuesday afternoon.
The mother
The mother originally sought that orders be made to accord her sole parental responsibility for the major long-term issues relating to the children and that the children live with her and spend time with the father as agreed between the parents.[5] However, she ultimately supported the order proposed by the Independent Children's Lawyer.
[5] Amended Response to Initiating Application sealed 24 October 2023.
Whilst the mother also originally sought that the Court make a vexatious litigant order against the father and restrain both parents from taking the children to the police without proper reason, Counsel who appeared for her ultimately abandoned the application for this relief.
The Independent Children's Lawyer
During the course of his submissions, Counsel for the Independent Children’s Lawyer provided the Court with a Minute of those orders proposed by the Independent Children's Lawyer as being in the children’s best interests.
In broad summary, the Independent Children's Lawyer’s proposed orders included that:
(a)the mother be accorded sole parental responsibility for the major long-term issues relating to the children; and
(b)the children live with the mother; and
(c)the mother be at liberty to relocate the children to live with her in City H; and
(d)the mother be restrained, for a period of 12 months, from leaving the children in Mr D’s sole care; and
(e)the children spend time and communicate with the father:
(i)until they relocate to live in City H:
(A)each alternate Thursday from after school until 7:00 pm, with those changeovers which do not occur at school to occur at the McDonald’s Restaurant, K Street, Suburb L; and
(B)each alternate weekend from 5:00 pm Friday until 5:00 pm Sunday, with those changeovers which do not occur at school to occur at the McDonald’s Restaurant, K Street, Suburb L; and
(C)by telephone each Wednesday, between 5:00 pm and 5:30 pm.
(ii)following their relocation to live in City H:
(A)each alternate weekend from 5:00 pm Friday until 5:00 pm Sunday, with changeovers to occur at the McDonald’s Restaurant, Town M; and
(B)by telephone each Wednesday, between 5:00 pm and 5:30 pm.
The Independent Children's Lawyer also proposed that the parents be restrained from: consuming excessive alcohol; using prescription medication without a prescription; using illicit substances; physically disciplining the children; denigrating each other or their family in the children’s presence; discussing the proceedings and parenting matters with the children; permitting the children to have access to documents filed in these proceedings; recording the children; questioning the children about their time with the other parent; interfering with the children’s electronic devices; communicating information for the other parent through the children and causing the children to be a medium between them.
Credit of the witnesses
Insofar as the credit of the various witnesses is concerned, I make the following comments.
I generally accept the thrust of the submissions made by Counsel for the Independent Children’s Lawyer to the effect that all of the witnesses in the case, other than the author of the Family Report, had what was described as “problems” with their evidence to varying degrees.
I consider it unnecessary to do more than to record that:
(a)I accept that the father’s evidence was often completely at odds with that contained in the documentary exhibits – where his evidence and that of the documents differ, I prefer the account contained within the documents; and
(b)aspects of the father’s evidence – such as his repeated denials of conduct as recorded in police documents – were, simply, unbelievable and unpersuasive; and
(c)whilst aspects of the mother’s evidence about her interactions with Mr D were, on occasion, somewhat unpersuasive, I accept her evidence about the father’s conduct toward her, the children and Mr D over time – where the parents’ accounts differ, I prefer the evidence given by the mother to that given by the father; and
(d)whilst I accept that Mr D was confused about whether he had been “charged with” as opposed to “convicted of” certain offences, I retained some residual concerns about other aspects of his evidence; and
(e)whilst the evidence of the paternal aunt (Ms T) was initially persuasive, her cross-examination left me concluding that her evidence too needed to be approached with significant caution – I was certainly left with the very distinct impression that she did not want to give evidence adverse to the father’s case and where her evidence and the contents of documentary exhibits differ, I prefer the account contained within the documents.
I record that, when cross-examined by Counsel for the mother about the contents of police documents relating to his conduct in 2012 and 2018, the father’s common response was to smirk and say: “That’s false allegations”; he was argumentative and oppositional during this cross-examination, although I consider his demeanour to have changed somewhat when cross-examined by Counsel for the Independent Children's Lawyer. Whilst it may have been little more than impression, I was certainly left with the very strong conclusion that the gender of Counsel was relevant to the manner in which the father reacted to the questions asked of him.
APPLICABLE PRINCIPLES
The statutory framework does not deal differently or specifically with cases involving the proposed relocation of children. Therefore, the well-known statutory provisions provide that, having had regard to the Objects of Part VII of the Family Law Act1975 (Cth) (“the Act”), the principles which underpin those Objects[6] and, subject to s 61DA, s 65DAB[7] and Division 6 of Part VII of the Act, such parenting order as thought proper may be made.[8]
[6]           Family Law Act 1975 (Cth) s 60B.
[7]           Parenting plans.
[8]           Family Law Act 1975 (Cth) s 65D.
In deciding whether to make a parenting order, I must regard X and Y’s best interests as the paramount consideration.[9] Such interests should not be viewed in the abstract or separate from the circumstances of their parents;[10] the statutory exhortation to regard the children’s best interests as the paramount consideration does not mean that the legitimate desires and interests of their parents are to be completely ignored – rather, where legitimate parental interests conflict with X and Y’s best interests, the former must give way.[11]
[9] Family Law Act 1975 (Cth) ss 60CA and 65AA.
[10]See, for example: AMS v AIF (1999) 199 CLR 160 at 207-208.
[11] Ibid.
In determining the issue of a child’s relocation, a parent’s right to freedom of movement is just one of the factors to be weighed; this and all of the other relevant factors must be taken into account in deciding what parenting orders are in X and Y’s best interests[12] such that the determination of those parenting orders which are in X and Y’s best interests may well mean that one parent’s “choice” is effectively outweighed in the balance; from a parent’s perspective, the outcome may not be optimal. Whilst any parent enjoys the right of freedom of mobility to live wherever the parent chooses to live, that right must defer to the expressed paramount consideration – the best interests of a child – if the same was to be adversely affected by a movement of a parent.[13]
[12] Bolitho and Cohen (2005) FLC 93-224 at [72].
[13]See, for example: U v U (2002) 211 CLR 238 at [89] per Gummow and Callinan JJ with whom Gleeson CJ, McHugh and Hayne JJ agreed.
The matters to be considered in determining those parenting orders which are in X and Y’s best interests are those prescribed by s 60CC of the Act. However, it is unnecessary for each consideration to be the subject of any particular discussion, particularly where the evidence relevant to it leads inexorably to a particular conclusion.[14] Any failure to mention a consideration specifically does not mean it has been overlooked in my deliberations about those orders which are in the children’s best interests and I have considered all relevant considerations in arriving at my conclusion about those orders which are in X and Y’s best interests.
[14]See: Banks & Banks (2015) FLC 93-637 (whilst said in the context of a consideration of interim proceedings, there is no reason why the underlying principle does not apply to the final disposition of proceedings).
Similarly, it is unnecessary to refer specifically to the evidence of each of the witnesses called in each of the parents’ cases: subject to the findings about credit outlined above, I have had regard to the same in arriving at those findings which must necessarily be made, in the context of the parenting orders proposed by each of the parents, in determining those parenting orders which are now in X and Y’s best interests.
The Independent Children’s Lawyer and the mother both contend that, notwithstanding the father’s history of significant violence, the children should continue to be afforded the opportunity to continue to develop meaningful relationships with him. Both contend that the requirement that the children’s time with the father be supervised by his sister or members of the paternal family is no longer needed in order to ensure the children’s safety – Counsel for the Independent Children’s Lawyer submitted that there was no evidence before the Court to suggest that the children have previously been physically harmed by the father and that the imposition of the various restraints upon their conduct, to which both parents agreed, would sufficiently ameliorate any risk to the children such that the Court would not be persuaded that they would be at an unacceptable risk of physical harm if their future time with the father occurs on an unsupervised basis.
As noted during the trial, the father’s past conduct – about which more is said elsewhere in these Reasons – is certainly concerning. However, I accept the submissions made by Counsel for the Independent Children’s Lawyer, noting the time that has passed and also that the mother previously agreed to the children spending time with the father, albeit in the presence of members of the extended paternal family.
I am not persuaded that the children will be at an unacceptable risk of harm if they continue to live primarily with the mother, with whom they have lived for all of their lives. I consider the evidence clearly establishes that the mother prioritised the children’s needs after Mr D’s behaviour toward Y in that she took them and left the home and notified the relevant authorities.
The father: his involvement in the children’s lives; his capacity to meet the children’s emotional, intellectual and other needs; his attitude to the children and to the responsibilities of parenthood[15]
[15] Family Law Act 1975 (Cth) ss 60CC(3)(c), (ca), (f), (i) and (m).
The father is not currently employed outside the home. He said he cares for his father; he lives with his father and sister in reasonable proximity to the children’s school and the mother’s home.[16]
[16] Family Report, paragraph 4.
History of violence
I consider that, whilst there have been no documented incidents of family violence perpetrated by the father for some time, the incidents which occurred between 2012 and 2018 were of a very serious nature.
I accept, as set out in the New South Wales police records, that in mid-2012, police were called to the father’s home at around 10:00 pm; I accept that police attended as a result of contact having been made by the paternal grandfather, who advised, in essence, that the father had consumed an unknown quantity of an illicit drug which made him “go crazy” and become very agitated; I accept the father armed himself with a weapon and began to pull the mother to the back of the house; I accept that, when police attended, they saw the father holding the mother hostage with a weapon to her throat: he then dragged her to the back of the house, through the rear door and out into the backyard and told police not to come near him or he would kill her; I accept that, after the officers drew their weapons and told him to drop his weapon and release the mother, the father ran at them, dragging the mother with him and waving the weapon around and threatening to kill the police as well.
I accept police then retreated and treated the situation differently; the records include the mother’s account that the father went inside, picked X up and held the weapon to his throat; I accept that the father made numerous threats to kill the mother, X and any police who entered the house. I accept that the father ultimately released the mother and X (at about 1:00 am) and that, when he later left the home just after 1:00 am, the father was arrested.[17]
[17] Exhibit 2.
I accept, as set out in the New South Wales police records, that when the father attended the mother’s home at about 7:15 pm in mid-2018, he banged aggressively on the front door and yelled aggressively for the mother to let him in as they needed to sort things out about the children; I accept that, when the mother opened the door and let the father in, he continued to yell at her and swore and called her abusive names; I accept that, when the father saw Mr D, he started to yell at him and challenged him to fight; I accept that the mother decided it was safer to move into the garage – when the father did not calm down, she called Ms T (the father’s sister) to come and collect him; I accept that Ms T was present when the father entered the garage, threatened Mr D (“You're a dog, you're a fucking dog. I'm going to kill you”), picked up an item and smashed it against the left side of Mr D’s head. I accept the father then punched Mr D in the head and, when Mr D tried to push him off, bit down on Mr D’s fingers to an extent that Mr D ultimately required stitches and other medical treatment. I accept that, when the mother and Ms T tried to pull the father away from Mr D, some of the father’s punches connected with the mother. I accept that, after Mr D left the garage to get a towel to stem the bleeding from his finger, the father smashed his phone – he left when the mother called the police.[18]
[18] Exhibit 3.

I accept, as set out in the New South Wales police records, that the paternal grandfather called police at 1:35 pm in late 2018 to report that, during an argument, the father had hit him and pushed him to the ground. I accept that, when police arrived, the paternal grandfather was on the front veranda with Ms T – when asked what had happened, he was vague and told police he wanted someone to help his son: when he denied having been pushed to the ground, Ms T interrupted and said that he was worried he was going to be hit. I accept that the paternal grandfather told police that he just wanted someone to help, that the father needed help and that he did not want him at the home. I accept that police did not locate the father at the home and provided the paternal grandfather with contact details for a local hospital and suggested they contact the mental health care team and possibly the drug rehabilitation centre. I also accept that the police assessed Ms T as being very evasive – they (the police) recorded that they strongly believed there was more to the situation than the versions provided to them.[19]
[19] Exhibit 5.
I was not persuaded by the father’s evidence that he has never had a physical altercation with his father; I think it highly likely that he acted toward his father as was reported to police in 2018.
I accept that a recovery order for the children was issued by the Federal Circuit Court of Australia (as it was then known) on 20 December 2018. I accept, as set out in the New South Wales police records, that after receiving information from a member of the public that the father was at his residence, the police attended the home – the paternal grandfather presented at the door and appeared to lock it. After their request to open the door was refused, police breached the front door: once inside the home, their attempts to open a locked door were frustrated by the fact that the father used screws to fortify it in a locked position. I accept that, when police successfully broke through the door, the father used X as a shield and failed to comply with numerous requests to put the child down: consequently, police had to physically remove X from the father – at which point the father resisted violently and was struck by police. I accept that, after police removed the children from the home and returned them into the mother’s care, the father was arrested: as he was escorted to the rear of the police vehicle, he tried to push police officers into the vehicle and trailer.[20]
[20] Exhibit 28.
I accept that, in late 2019, police took out a two year domestic violence order against the father and that the mother and children were named on this order as “protected persons”; I also accept that Mr D was the protected person named on a further two year order obtained by police against the father.[21]
[21] Affidavit of the mother filed 24 October 2023, Annexure A.
I accept that, in mid-2020, police took out a two year domestic violence order against the father and that the mother and children were named on this order as “protected persons”.[22]
[22] Affidavit of the mother filed 24 October 2023, Annexure A.
Whilst both denied it, it seems to me to be much more likely than not that the father and Ms T have something of a turbulent relationship; I suspect, as the mother said the boys told her, that there was an argument of some kind between them during the weekend of 16 December 2022 and also in the period of 25 to 27 December 2022. I think it highly likely that, as the mother said the boys told her, the father took the boys from the home he shares with his sister and father on this occasion and spent time with them at the beach.
Conduct involving the children: alleged stalking; chlamydia testing; video recordings; taking the children to the police
Given the father’s attitude toward the mother’s parenting (as recounted in the Family Report), I think it quite likely that the father has used the iPads he has given the children to track their location.
I accept that, when he took X to see a doctor in early 2023 (after he complained about experiencing pain whilst urinating and about his penis being red), the father expressed concern that the child might have chlamydia.[23] Whilst the father refuted, when cross-examined, that he had specifically asked for a chlamydia test (and said that he had told the doctor to test for any infection his son could have), I think it much more likely than not that the impetus for the test came from the father – I note that the surgery consultation notes dated 28 March 2023 include that, when the mother expressed her concerns that tests for chlamydia and gonorrhoea had been organised, the doctor told her that the father had asked for testing because he was concerned about a chlamydia infection. [24] Such concern needs, it seems to me, to be assessed cognisant of the fact that the father has previously accused the mother of being sexually intimate with Mr D in the children’s beds. Given the father’s clear antipathy toward the mother, I find myself unable to exclude the nagging possibility that the father’s decision to ask that X be tested for sexually-transmitted infections is a manifestation of his underlying view that the mother might act to expose the children to such infections – a concern that has no basis in the evidence before me.
[23] Exhibit 6.
[24] Exhibit 6.
I accept that the father has previously filmed the children making comments about what he regards as the mother’s abusive conduct toward them and about Mr D’s conduct. I also accept that Ms T has, on occasions, also recorded the children. For example, in one recording, when Ms T asks Y to say what had happened, he said: “What did I say again? I forgot” – after which Ms T prompted him to make a disclosure about Mr D allegedly smacking him in the back when he got out of bed during the night.
When cross-examined, Ms T did not accept any responsibility for coaching or leading the children to make the comments they are recorded as having made; further, whilst she initially explained that she had made the recordings because the mother did not believe her when she told her that Y had made adverse comments about Mr D, her later evidence included that she had never shown the mother the videos that she created.
I consider that both the father and Ms T recorded the children as they did in an attempt to gather evidence against the mother.
I accept, as set out in documents provided by New South Wales police, that the father reported that, during a scheduled FaceTime communication in early 2023, Y allegedly disclosed that the mother had choked him; the father contacted Suburb U police to report the incident but no one attended his home – sometime later he contacted the Suburb V police station but was told that he could not make a report over the phone and either needed to attend the station or police would attend at his home; I accept the father told police that he would attend at a later date. In fact, the father took X and Y to the Suburb V police station in early 2023 (nearly two months later): according to the police documents, the father continuously asked Y leading questions and incited him into saying that the mother had choked him and lifted him off the ground; when police spoke only with Y, he told them that he did not remember anything and that it happened earlier in the year. I accept that, when the police spoke with the mother, she told them that she had never put her hands around Y’s neck area – she said the boys had been fighting and in the course of trying to separate them, Y pressed against her arm and her hand pressed on his chest.[25]
Attitude to orders and the responsibilities of parenthood, insight, likely approach to future parenting
[25] Exhibit 9.
I accept that, despite an order having been made on 14 November 2022 for him to make an appointment and attend for hair collection at an Australian Workplace Drug Testing Services (or nominee) to facilitate drug testing, the father has not attended any such appointment.
The mother’s evidence included that there were a number of occasions during which the father’s family were not present to supervise the boys’ time with the father: on 16 December 2022 the father arrived alone to collect them after a school awards ceremony; during that weekend, according to information provided to her by the children, the father left the home with them after fighting with Ms T and the paternal grandfather and took the children out alone; during their time with him in late 2022, the father took the children with him to the beach after an altercation with Ms T; in early 2023, the father collected the children from school and was unsupervised at the time.
Whilst the father and Ms T denied that they had argued and that the father had left the home with the children as asserted by the mother, I think it more likely than not that the events transpired as she said the children told her they had. Given the father’s history of dysregulated behaviour, I suspect it would be difficult for either the paternal grandfather or Ms T to prevent him from doing something he had decided to do.
The father’s evidence included that, whilst incarcerated, he completed courses including an anger management course. However, his evidence that the things he learned from it included that “some people like to cause arguments” seemed to me to be consistent with the assessment of Ms E (who authored the Family Report) to the effect that he did not appear to take responsibility for his conduct but, instead, sought to apportion blame to, in particular, the mother.
An appreciation of the manner in which it is likely the father would manage the children’s behaviours if they moved to live primarily with him can be gleaned from the way in which he dealt with X in late 2023. I accept that, after a disagreement about putting his shoes on, X pulled the father’s beard; I also accept that the father’s response involved him filming X cleaning up an ashtray of cigarettes, during which time he (the father) told him that he was going to go to jail. When asked about this incident, the father’s evidence included that he thought his response was appropriate and that it would give X a wake-up call to not want to go to jail and start behaving; he also said, when asked by Counsel for the Independent Children’s Lawyer whether there were any other ways he could have handled the situation, that whilst it might sound wrong, X had cleaned up the mess and got ready whereas before that he was having a tantrum – he clearly thought that his approach was the best way to have X do what he was told and put his shoes on.
I accept Ms E’s assessment, after interviewing the father in mid-2023, that the father seemed to struggle to articulate the children’s personalities; I accept he said that X kept to himself because he fears his mother and saying the wrong thing and that Y had been manipulated by her.[26] I also accept Ms E’s account that, whilst the father appeared to want to persuade her that the evidence he had obtained established that the mother and Mr D had abused and neglected the children, he seemed to minimise his criminal record and did not give the impression of assuming a large proportion of responsibility for events – instead, he attributed the incidents and issues to the mother’s manipulations, at least in part. I accept Ms E’s observation that the father was primarily focused on what he regarded as the mother’s poor parenting practices and her deception and manipulation, concerns that Mr D had harmed the children and is a persistent risk to them – I also accept her assessment that he seemed intent on discovering further information to evidence his concerns. I accept Ms E’s assessment that the father’s narrative demonstrated his view that the children are manipulated by the mother and fear her.
[26] Family Report, paragraph 6.
I accept Ms E’s account that, whilst the father acknowledged that he had been convicted of assaulting Mr D, he seemed to attribute fault for the incident to the mother and said that she had cancelled a trip he and the children were going to take; he also attributed any information the children might have about the incident to the mother’s asserted conduct in allegedly telling them about it as part of her alleged manipulation of them.
I accept Ms E’s account that, in telling her about the behavioural change programs he had completed, the father offered that his learnings from these programs contributed to a difference of opinion between him and the program facilitator – namely, that the mother is also responsible for the perpetration of family violence.
I accept Ms E’s assessment that the crux of the father’s concerns centred upon his allegations that the mother has limited parental capacity and the children are at risk in her care; he told Ms E that “she can’t parent” and he wondered how “she will cope with four kids”; his view was that the mother physically disciplined the children and abused them and neglected them by failing to provide them with adequate nutrition – he thought it was only when he had been actively parenting the children that they had grown and developed. I reject this assertion.
I accept Ms E’s assessment that the father was steadfast in his view that the main issues were the mother’s poor parenting, her desire to control him with the children, that she wants to manipulate the situation and that she will not co-parent constructively with him.
I accept Ms E’s opinion to the effect that, whilst the father’s comment that the children need safety and the benefit of a constructive co-parenting relationship between their parents suggested that he had a level of insight into their needs, his reflective functioning seemed somewhat limited in that he was focused on what he regarded as the mother’s manipulation of the children: he did not appear to assume any level of responsibility for any issues of harm perpetrated on the children and instead blamed what he regarded as the mother’s manipulation as being the cause of any incidents which resulted in harm to the children.
I also accept Ms E’s opinion to the effect that the father could not describe or conceptualise the impacts on the children of the change in their primary parenting which would follow if they were required to move to live primarily with him; instead, he focused on the risk he asserted the mother posed to the children and contended that any time the children would spend with her if they lived with him would be conditional upon her providing clean drug test results and completing appropriate parenting programs – he also thought that the time may have to be supervised.
I accept that, when Ms E offered the father feedback on the children’s interviews and advised him that they had indicated at interview that they wanted to live with the mother, the father’s response was that the mother had “prepared them” and had manipulated them; he expressed the opinion that “[X] is her ticket to freedom” and would more likely agree with the mother; he also said that the children would say what the mother wanted them to say because they were fearful of getting into trouble or not getting their iPad.
I accept Ms E’s assessment that, given the family violence issues, the father’s presentation at interview gave rise to some concern: for example, he described the mother’s alleged manipulations as a precursor to any incident and suggested that he was not wholly responsible for his 2018 assault on Mr D, for which he was incarcerated. I accept Ms E’s assessment that the father lacked child focus and that, in essence, he took no responsibility for his conduct or accountability for his actions. I also accept that the content of the police documents in evidence, when combined with the father’s views about what he learned from his participation in the behavioural change programs, do not provide any reassurance that he has taken any responsibility and/or accountability for his past violent conduct.
I accept that the father presented with a fixation on obtaining evidentiary material to discredit the mother and prove her incompetence as a parent, especially in the context of Court proceedings; he also presented with a firm and intractable position that any behavioural, emotional or other issues experienced by the children were the result of the mother’s poor parenting. I do not accept this contention.
Whilst the father expressed to Ms E that he was able to offer the children the safety, care and security that they need, I accept Ms E’s assessment that he demonstrated little insight into the impact of him taking the children to police and doctors to report on their mother was likely to have had on the children – instead, his focus was on his need to try to prove that the mother had harmed them.
The mother and her household: her involvement in the children’s lives; her capacity to meet the children’s emotional, intellectual and other needs; her attitude to the children and to the responsibilities of parenthood[27]
[27] Family Law Act 1975 (Cth) ss 60CC(3)(b), (c), (ca), (f), (i) and (m).
The mother and children currently live in Sydney with their half-siblings, P and Q.
I accept Ms E’s assessment that, when interviewed on 11 May 2023, the mother presented as somewhat exasperated with a degree of litigation fatigue and general annoyance about the father’s behaviour. I accept that the mother spoke with Ms E about how her background (which included being raised by her grandmother because her parents were drug addicts and unable to care for her) had contributed to some of her actions, including reconciling with the father after serious family violence and wanting the children to know him. I accept the mother’s assessment of the father’s allegations was that they were a continuation of his previous family violence behaviours – she thought the allegations and proceedings were designed to “terrorise” her and that they were primarily about her and the father’s need for control rather than being about the children.
I accept Ms E’s assessment that the mother’s presentation was consistent with focusing on wanting to return to live in City H.
I also accept Ms E’s account that the mother outlined numerous incidents of family violence perpetrated by the father: she thought these had characteristics of a high risk of lethality as they included physical assaults, threats, fear and intimidation, withholding the children and bouts of extreme jealousy. Ms E also reported that the mother considered that the father has an overwhelming need for control that fuelled not only the previous incidents of family violence, but also his ongoing perpetration of coercion and control – she described him managing to have his name put on her Medicare card notwithstanding that she had sole parental responsibility for the children and described this as an example of him wanting to be able to access personal information, as well as attempting to create evidence that they had previously lived together when this was not the case. I accept the mother reflected to Ms E that the father would not likely stop – she felt that he would take every opportunity to infiltrate her life until the children were older. Given the father’s presentation, such reflection is certainly not fanciful.
I also accept that the mother expressed her concern to Ms E that recent orders had emboldened the father to communicate with her – for example, he sent her daily texts asking about the children and requesting that she provide him with medical reports, despite the orders permitting him to access such information himself.
I accept that the mother told Ms E that the children had told her that the father had recorded them and that they were required during this process to tell him repeatedly that she and Mr D had hit them; she also alleged that the father continuously bought the children things, allowed them to stay up late, encouraged them to be disruptive when in her care and permitted them to do whatever they wanted when in his care.

I accept Ms E’s opinion that the mother’s presentation at the interview was consistent with what is often seen in victim survivors of family violence or individuals who have a background of experienced trauma – for example, such individuals can, at times, be emotionally dysregulated and can demonstrate decision-making that does not always follow lineal and rational lines.
Despite this, I also accept Ms E’s assessment that the mother presented with a degree of reflective parental functioning: she could articulate the disruptions that X and Y faced and attributed much of the disruptions to contact with the father; she reflected that she and Mr D could, at times, have managed the children better, especially Y whose behaviour had been more dysregulated than X; she was empathetic vis-à-vis the children and told Ms E that she had always regarded the facilitation of an ongoing relationship between the children and the father and paternal family as important. Her actions in facilitating the children spending time with the parental grandfather and paternal aunt when the father was incarcerated prove that she previously implemented this view.
Whilst Ms E noted – and I accept – that the mother reported having gained greater insights into her own functioning and the impacts this had on her parental decision-making, her at times heightened emotions suggested that she may not always filter information appropriately, with the potential that she inadvertently exposes the children to adult conversations.
I accept Ms E’s account of her interview of Mr D on 19 May 2023. Mr D owns the home in the City H environs into which the mother wishes to move with all four children. I accept that, during his interview, Mr D was keen to apprise Ms E of the advantages of the family uniting and moving to live together in or near City H. I accept that, amongst the other information he provided to Ms E, Mr D said that he and the mother had followed the order which prohibits him from coming into contact with X and Y – he said any time he had spent with the mother and his daughter, P, had occurred when the children were absent. I accept this evidence in this respect.
I accept that Mr D, who has no other criminal history, entered a plea of guilty in mid-2022 to three charges arising out of an incident some time earlier during which, according to the agreed facts for the same, he pushed Y into a wall when he refused to brush his teeth and subsequently grabbed the mother and fought with her over her mobile phone, before pushing her away.[28]
[28] Exhibit 22.
Whilst Mr D’s evidence when cross-examined included that, despite denying he had ever used excessive force toward Y and that he had ever assaulted the mother, he entered such pleas after being advised to do so in order to receive a lesser sentence, I accept for the purposes of this proceeding that he acted toward Y and the mother as the agreed facts suggest that he did.
Further, whilst documents produced by the Department of Communities and Justice advise, as at mid-2022, that there was no indication of persistent and sustained repetitive patterns of behaviour between Mr D and the mother[29], documents produced by the New South Wales police service suggest that, on occasion, the mother and Mr D’s relationship has been tumultuous and has come to the attention of the police service – for example, after a verbal argument with Mr D in late 2020 about him using the car to remove items from the property (in the context of a then recent separation which clearly did not persist), the mother contacted the police and advised them that he refused to leave the premises; after an argument with Mr D in mid-2021 (during which he refused her request that he leave her residence) the mother took the children to a local park, where she contacted police to ask them to attend at the home and tell Mr D to leave: when police arrived at the premises, Mr D was not there and when they asked the mother if she had any fears about him returning to the premises, she said “No, I am all good now thanks” and refused to answer any further questions; in early 2022, both the mother and Mr D contacted the police during an argument about moving from Sydney – the mother alleged that Mr D had thrown an ashtray at her head and cigarettes at her and that he had recently given her a black eye (which assertion she said, when cross-examined, was untrue and which Mr D denied): when the police arrived, the mother and Mr D accused the other of consuming and owning the drugs that police located in the garage and police ultimately caused arrangements to be made for Mr D to spend a couple of nights staying at his mother’s home; in late 2022, the mother contacted police to allege that Mr D had broken into her house, but he said that he had gone into the unlocked garage to collect some things from his toolbox
[29] Family Report, paragraph 35.
I accept Mr D’s evidence to the effect that he has completed the following courses online since the mid-2022 incident: Positive Parenting Program (run by J Family Service and completed mid- 2022);[30] an anger management and conflict resolution course (run by “W Service” and completed early 2023)[31] and a course on domestic violence and abuse (also run by “W Service” and completed early 2023).[32] He said that these courses have helped him to gain practical strategies to deal with children and important parenting skills, to manage his emotions to ensure that they do not interfere with the outcome of the situation, and to better understand the children so he can effectively respond to their behaviour and make good parental decisions; he also said that he thought the courses had helped him to improve his skills in dealing with children’s difficult behaviours, particularly in relation to children with special needs.
[30]          Affidavit of Mr D filed 27 November 2023, Annexure A.
[31]          Affidavit of Mr D filed 27 November 2023, Annexure B.
[32]          Affidavit of Mr D filed 27 November 2023, Annexure C.
I consider that the evidence given by Mr D, when cross-examined about what he had taken from the courses he has completed, suggested that he has gained some benefit from them – he was able to provide a concrete example of how he had more recently responded to P drawing on the walls with crayons and contrasted his response of sitting and taking deep breaths to calm himself before addressing the situation with how he would previously have responded in an agitated and heightened manner. His insight in this respect differed greatly to that demonstrated by the father to Ms E and during his cross-examination.
Whilst three one day courses completed online does not persuade that Mr D has likely learned all that there is to learn about parenting young children and managing his responses to their actions, his evidence about the benefits of the courses provides some support for Ms E’s assessment, which I accept, that he demonstrated what she described as “a good degree of reflective functioning” about his situation and that facing the children.
I accept Ms E’s account that, when interviewed, Mr D’s comments suggested that he had some insight into his own behaviour and about how he could handle the children’s disruptive behaviour better in the future; he expressed a willingness to continue to engage in therapy and with other supports that would help him and the mother build a collaborative and positive parenting relationship; his responses to question asked of him were child-focused and he was able to speak about how the incidents to which X and Y have been exposed were likely confusing, frightening and disruptive for them.
The children: their views and the nature of their relationship with each of their parents[33]
[33] Family Law Act 1975 (Cth) ss 60CC(3)(a), (b), (d) and (g).
Ms E’s interviews and assessment
I accept Ms E’s account of her interactions with the children on 11 May 2023 when they attended for interview; I accept her description that, whilst both exhibited high energy levels (with Y appearing to be the more active of the two and X talking a lot and asking lot of questions), they responded well to direction, were polite and appropriate in their interactions. Such presentation seems to me to disprove the father’s belief that the mother “can’t parent”.
I also accept Ms E’s account that, whilst both children were likeable and engaging, they gave the impression that they could, at times, be a “parenting challenge”.
X
When interviewed, X was in Year 5 at school and reported liking his friends and his teacher. I accept Ms E’s account that he did not always want to talk about the issues at hand or answer her questions about his views of his family circumstances – I accept he appeared to distract purposefully when she tried to have him speak with her about such things.
I accept that, whilst X clearly outlined to her that he did not mind his mother finding out what he had said during his interview, Ms E assessed him as seeming worried about his father finding out what he might say to her.
I accept that X was quick to announce to Ms E that he wanted to move back to City H; he also indicated his view was that his father was responsible for them being unable to return to live in City H and for them not being allowed “to go near” Mr D.
I accept X described his family as being his mother (who he said he got along well with most of the time and who was the person he would turn to for comfort and in times of distress), Mr D, his “[aunt]” (Ms T) and Y. I accept he said Mr D “is nice, he’s [P’s] father” and that he was nice to “us” and his mother.
I accept Ms E’s account that X was less favourable in his reports about his father – he described him as “mean” and attributed this to the father’s restrictions on him contacting his mother whilst in his care; he also told Ms E that “dad is making up stuff” – whilst he said the father had taken him to see the police he said he “forgot” what for.
I accept that X told Ms E that he wanted to spend time with his father for just one day every second Saturday – he said he did not feel comfortable sleeping over and would prefer to return to his mother’s care.[34]
[34] Family Report, paragraph 55.
Y
When interviewed, Y was in Year 3 at school.
I accept that Y said he wanted to return to live in City H because there was more space and it would be better for their dog.
I accept Ms E’s assessment that Y seemed more comfortable discussing school and cross-country races rather than his family or spending time with his parents – he described his family as consisting of his mother (who he described as “first” and to whom he said he turned in times of stress or worry and from whom he sought comfort), his father (who he said he liked spending time with) and his step-father, Mr D, who he described as “nice”. I accept he also said that his mother and Mr D sometimes argued and yelled.
I accept Y told Ms E that his mother and father do not like each other and that his father wanted “us to live with him”. He thought that the incident where Mr D had blood everywhere because “my dad threw glass at him” might have been one of the reasons why his parents did not get along.
I accept Y was clear that he wanted to live with his mother; he also told Ms E that X would not like to live with his father because he sometimes did not like it at his home.
Information gathered by Ms E
I accept that the children’s counsellor told Ms E that the children had been seen each fortnight for approximately three to four months; I also accept she described them as “high energy” and that, whilst Y was more distracted than X, there had been a noticeable shift in his behaviour and he was more settled. I accept Ms E’s report that the therapy aimed to assist the children with their emotional regulation, to understand their feelings and to regulate their behaviour.
I accept that the children’s counsellor reported no risk issues in terms of the mother’s parenting or care of the children that would necessitate a referral to child protection authorities.
I also accept that the counsellor suggested that, if Mr D was to be reintroduced to the children, this be supported and occur in association with a considered reestablishment of the relationship between him and the mother so as to assist in maintaining the current gains the children had made.
I accept that the counsellor told Ms E that X had expressed that he did not always want to spend time with the father – she suggested that the children needed some agency moving forward in terms of their family relationships. She also noted that she would continue to see the children if this was needed and would facilitate any appropriate referrals for either them or the mother for ongoing support or therapy as required.
I accept the principal of the children’s school told Ms E that both children experienced some learning difficulties – they could be dysregulated at times, had difficulty focusing and were active “rough and tumble boys”; the principal advised that Y had more difficulty in terms of behavioural outbursts and emotional regulation than X.
I accept Ms E’s account that the principal described the mother as a supportive and engaged parent who worked with the school on any behavioural plans and did her best: the children were always clean and tidy and well prepared with appropriate lunches in accordance with the school’s healthy eating programs – the school had no concerns about the children’s every-day care in this respect.
I accept the principal also told Ms E that, whilst the father purchased lunch orders for the children, she was unclear about the rationale for this because the children presented with lunches packed by the mother – she also said that, at times, Y threw the purchased lunch order away.
The likely effect on the children if the orders sought by their parents are made[35]
[35] Family Law Act 1975 (Cth) ss 60CC(3)(d).
I consider it is more likely than not that requiring the children to move to live primarily with their father would cause them further significant disruption and confusion; whilst the father has spent time with the children consistently during those periods of time when he has not been incarcerated, he has never parented them in a primary sense.
In addition, given the father’s overwhelmingly critical attitude toward the mother and the disdain he clearly has for her as a parent and as a person, it is highly likely that, if the children were moved to live primarily with him, they would be further exposed to such attitude, with the consequent risk of an undermining of their relationship with their mother.
Given that I accept that both children regard the mother as their primary source of comfort and support, removing them from her primary care would, in my view, unnecessarily deprive them of the support that she has historically provided and which they clearly look to her to continue to provide. It would also mean, in a practical sense, that they would be required to look to the father for emotional support on a day-to-day basis. Given my assessment of the father's lack of insight generally, including about the likely impact on the children of exposure to his past behaviours, and his propensity to externalise blame for his conduct onto the mother, I am not persuaded that he possesses the capacity to ensure that the children would be supported appropriately to deal with the impacts associated with them moving to live primarily with him.
Further, whilst X’s comments to Ms E about the father and his time with him need to be assessed having regard to his age, it is pertinent to note that his views about spending time with the father are clearly known to Y and have also been expressed to his counsellor. Consequently, whilst I certainly do not place determinative weight upon either child’s expression of views about where and with whom they wish to live, I consider that requiring X in particular to live with the father would clearly be contrary to his wishes – given this, I think it highly likely that such a result would cause him significant distress and emotional dysregulation and that the same would likely undermine his capacity to focus upon his education.
In addition, being required to leave the known primary care of the mother for the untested primary care of the father would expose the children to further instability in circumstances where they have already been required to deal with the father’s repeated absences from their lives during his periods of incarceration, Mr D’s absence as a consequence of previous orders and moving to stay in City H and then returning to Sydney.
If the mother is permitted to relocate the children to live with her and Mr D and their half siblings in the City H environs, they will be required to change school; however, given the mother’s evidence that she cannot afford to maintain them in their current school and that the father makes no financial contribution of any magnitude, it seems highly likely that (if not immediately, then in the not too distant future) the children will be required to change school in any event. Whilst moving to live around City H will mean that the children are unable to continue to spend time with the father during the school week, they will continue to be able to spend time with him on each alternate weekend and for periods of the school holidays.
Whilst moving to live with their mother in City H will, in one sense, disrupt the children in that they will be required to live in a different environment and attend a different school (and may be required to attend upon a different counsellor), they will retain their primary care provider who, I accept, will be able to support them to deal with the consequences of moving from Sydney to live around City H and from whom they have previously sought and obtained practical and emotional support.
Family violence[36] and the parental relationship
[36] Family Law Act 1975 (Cth) ss 60CC(3)(j), 60CC(3)(k) and 60CG.
In addition to the conclusions already expressed, I accept Ms E’s opinion to the effect that the evidence suggests patterns of family violence incidents over time, primarily perpetrated by the father, some of which involved serious acts of violence and which resulted in police intervention, the father being charged and subsequently spending periods of time in jail.
As already noted, I consider that the father has an almost overwhelmingly negative view of the mother; I consider that he fails completely to appreciate that, without the mother’s active support and actions in maintaining the children’s contact with the paternal extended family during his periods of incarceration, it is highly unlikely that they would have any, or any meaningful, relationship with him or Ms T or the paternal grandfather.
Nothing in the father’s evidence or his presentation when cross-examined suggests that his views about, and attitude toward, the mother are likely to change in the foreseeable future; I think it much more likely than not that he will continue to seek out ways to try to undermine her primary parenting of the children.
WHAT ORDERS ARE IN THE CHILDREN’S BEST INTERESTS?
It is well settled that the exercise of the discretion involved in determining the parenting orders which are in the children’s best interests “necessarily involves, because of the focus upon the future, significant elements of value judgments; assumptions; necessarily uncertain predictions and intuition”.[37]
[37]Morden & Coad [2019] FamCAFC 233 at [13] and the reference to U v U (2002) 211 CLR 238 per Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) at [90]; CDJ v VAJ (1998) 197 CLR 172 per the plurality at 218-219.
Allocation of parental responsibility
Given the father’s violent conduct, the presumption of equal shared parental responsibility does not apply in this case.
I accept the thrust of Ms E’s assessment to the effect that it appears that it is more likely than not that the father will, in both the short and long-term, pose a destabilising influence on the mother’s sense of self-efficacy, stability, her parental capacity and to the children’s current stability. Such conclusion, when combined with my assessment of the father’s attitude to the mother and his past conduct toward her (and Mr D, with whom she remains in a relationship and with whom she has two children) persuades that it is unlikely that requiring the father to be involved in decisions about the major long-term issues relating to the children will assist the parents to ensure that the children’s developmental outcomes are maximised or will be in any way in the children’s best interests.

I also accept that it is highly unlikely that these parents can engage in any constructive communication or negotiations about the children; I accept that there is, simply, no capacity for these parents to successfully co-parent the children into the future. Despite the time that has passed since the father’s last physically violent act toward the mother or a member of her household, I accept Ms E’s opinion to the effect that requiring the mother to attempt to engage with the father about decisions to be made about the children’s major long-term issues may place her at some risk. Such a possibility is, self-evidently something which is completely contrary to the children’s best interests.
Living and time orders: what orders are in the children’s best interests?
I accept that the children both identify their mother as their primary parent, their sense of security and safety and the person from whom they want to seek comfort and support. I accept that they did not report any worries or concerns about her parenting to Ms E and that, whilst they expressed some concern about their father knowing what was said during their interviews, they were not concerned about her knowing what they told Ms E.
I accept that both children identify that they want to continue to live with their mother and spend time with their father. I also accept Ms E’s opinion that this seems reflective of their lived experiences and the quality of their parental relationships and that, given this, such views should be accorded some weight.
I consider, as Ms E opined, that requiring the children to move to live with the father would amount to a very significant change for them, which would likely destabilise them and impact deleteriously upon their sense of safety and security. It would also place them in the primary care of a parent who has, in my view, been unable to place their need to be protected from exposure to negative views and suggestions about their mother and from being required to attend on police above his own need to try to establish that the mother is not a caring parent. In this respect, I agree with Ms E that it is noteworthy that the information provided by the police indicated that the father coached Y to make statements and that his assertion that he paid for lunch orders for the children because the mother failed to ensure that the children were properly fed was not supported by the information provided by the school.
I am not remotely persuaded that moving to live primarily with the father is something which is in the children’s best interests. I think it much more likely than not that if the children lived primarily with the father, he would actively undermine their relationships with their mother.
Whilst I am not persuaded that the mother has deliberately manipulated the children to express positive views about the prospect of moving to live around City H, I think it highly likely that they have been exposed to her views about this; they also clearly know, in my view, that the father opposes them moving away from Sydney. Whilst moving to live around City H will require the children to cope with changes to nearly all aspects of their lives, they will be supported through such changes by their mother – the parent from whom they have received the vast majority of their care to date. Whilst living around City H will mean that they will be unable to spend time with the father during the school week, I consider that they will be able to maintain their relationships with him and the extended paternal family by spending the time with him that the mother supports – namely, on alternate weekends and for blocks of no more than five consecutive nights during the school holidays.
I accept that some of the benefits of moving with the mother to live around City H are as outlined by Ms E in the Family Report and that these include spaciousness and the opportunity for a more outdoors and country-type lifestyle, likely economic advantage as the mother would not be required to pay rent any longer and likely practical support as Mr D would be present to share in the care of all four children, albeit that, as agreed by the mother, he will not be left unaccompanied with the children for 12 months following the making of the parenting orders which will finalise these proceedings.
I also accept the assertion that moving to live with the children around City H will result in what Ms E described as “some enforced boundaries and space” between the parents – distance which I consider will, more likely than not, benefit the children and contribute positively to their sense of security and stability.
Consequently, I consider that it is in the children’s best interests that the mother be permitted to relocate them to live with her in the City H environs.
Given the father’s past conduct, that the children have had very limited time in his care without the requirement of the same to be supervised by members of his family, the children’s ages and X’s reluctance to spend lengthy periods of time in the father’s care, I consider that the proposal for the children’s holiday time with the father advanced by the Independent Children's Lawyer and supported by the mother is more likely to be in the children’s best interests than the father’s proposal for their school holiday time with him. In addition, I consider that the children’s best interests will be served by ensuring that they have time on weekends during which they can remain in their mother’s care and that it is not remotely beneficial for them to be required – as the father sought they should be – to travel from City H to Sydney every weekend to spend time with him.
Whilst others may disagree, I consider that changeovers should occur as advocated for by the Independent Children's Lawyer and supported by the mother; in arriving at this decision I have prioritised the mother’s feeling of safety and support of the location and facilities over the father’s suggestion that his proposed location could just as easily be used.
Concluding comments about the terms of the orders determined to be in the children’s best interests
The orders to be made will require that the mother maintain oversight over the children’s interactions with Mr D for 12 months – this will, I consider, provide the children with additional support as they adjust to Mr D’s return to their household; for this reason, it is an order which is in their best interests.
To the extent that any other aspects of the parenting orders to be made are not the subject of particular discussion in these Reasons, I have concluded that the same are in X and Y’s best interests and are appropriate and proper in all the circumstances established by the evidence before the Court.

I certify that the preceding one hundred and thirty-seven (137) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.
Associate:
Dated: 7 March 2024

File number(s):	PAC 3547 of 2022
Judgment of:	HOGAN J
Date of judgment:	7 March 2024
Catchwords:	FAMILY LAW – PARENTING – RELOCATION – Where the father seeks sole parental responsibility – Where the father seeks that the children live with him and spend time with the mother – Where the mother seeks sole parental responsibility – Where the mother seeks that the children continue to live with her and spend time with the father – Where there is a history of serious family violence perpetrated by the father – Where the mother seeks to relocate to the City H area – Where the father opposes the relocation – Where there are restraints in place prohibiting the subject children spending time with the mother’s new partner – Where it is in the children’s best interests to live with the mother – Where the mother is permitted to relocate the children to live with her in the City H area
Legislation:	Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 60CG, 65AA, 65D
Cases cited:	AMS v AIF (1999) 199 CLR 160; [1999] HCA 26 Banks & Banks (2015) FLC 93-637; [2015] FamCAFC 36 Bolitho and Cohen (2005) FLC 93-224; [2005] FamCA 458 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Morden & Coad [2019] FamCAFC 233 U v U (2002) 211 CLR 238; [2002] HCA 36
Division:	First Instance
Number of paragraphs:	137
Date of last submission/s:	8 December 2023
Date of hearing:	4, 5, 6, 7 & 8 December 2023
Place:	Parramatta
Counsel for the Applicant:	Ms Vogel
Solicitor for the Applicant:	Censeo Legal
Counsel for the Respondent:	Ms Mattar
Solicitor for the Respondent:	SCB Legal Pty Ltd
Counsel for the Independent Children's Lawyer:	Mr Ladopoulos
Solicitor for the Independent Children's Lawyer:	Lamrocks Solicitors

PAC 3547 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SAADE Applicant
AND:	MS HUTTON Respondent
INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	7 MARCH 2024