Santek & Lisica - [2023] FedCFamC2F 272

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Santek & Lisica [2023] FedCFamC2F 272

File number(s): ADC 4750 of 2018

Judgment of: JUDGE PARKER

Date of judgment: 15 March 2023

Catchwords: FAMILY LAW – PARENTING – time between Father and child - where Mother and child reside in Adelaide and Father resides in Sydney – where child exhibits anxiety associated with time with Father – where family report writer recommends a cautious approach – time ordered in accordance with proposal for careful build up of overnight time and time in Sydney

Legislation:
Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 65DAA

Evidence Act 1995 (Cth), s 140

Cases cited:
Doherty & Doherty [2016] FamCAFC 182

French & Fetala [2014] FamCAFC 57

Jacks & Samson [2008] FamCAFC 173; (2008) FLC ¶93-387

L & T [1999] FamCA 1699; (1999) FLC ¶92-875

Mazorski & Albright [2007] FamCA 52

McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405

Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC ¶94-017

Sigley & Evor [2011] FamCAFC 22

Division: Division 2 Family Law

Number of paragraphs: 150

Date of last submission/s: 16 February 2023

Date of hearing: 15 & 16 February 2023

Place: Adelaide

Counsel for the Applicant: Mr Bowler of Counsel

Solicitor for the Applicant: Eastern Legal

Counsel for the Applicant: Ms McMahon of Counsel

Solicitor for the Respondent: Rita Thakur & Associates
ORDERS

ADC 4750 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SANTEK

Applicant

AND:
MR LISICA

Respondent

ORDER MADE BY:

JUDGE PARKER

DATE OF ORDER:

15 MARCH 2023

THE COURT ORDERS THAT:
BY CONSENT
Parental Responsibility
1.The Mother shall have sole parental responsibility for the child X born in 2017 (‘the child’) in respect of religion and education.
2.Before the Mother makes any major decision for the child in respect of religion or education, the Mother shall advise the Father in writing of her proposal and allow him 14 days to provide a written response; and the Mother shall consider any view or proposal put forward by the Father and advise the Father in writing of her decision within a further 7 days.
3.The parties shall have equal shared parental responsibility for the child in respect of medical issues.
4.The Mother shall, within 48 hours, provide the Father with the names and contact details of all medical and alternative medical practitioners that are currently treating the child.
5.The Mother shall not change the child's name without the written consent of the Father.
6.Each parent is otherwise responsible for the day-to-day decision making for the child when the child is in their care.

Lives With
7.The child shall live with the Mother.

BY THE COURT
Time Spending
8.Until September 2025, the child spend time with the Father, in Adelaide (with the Father travelling to Adelaide for that purpose) on the last weekend of each month as follows:
8.1 For the March and April 2023 monthly visits:
8.1.1From 3pm to 6pm on Friday;
8.1.2From 9am to 5pm on Saturday; and
8.1.3From 9am to 2pm on Sunday.

8.2 For the May and June 2023 monthly visits:
8.2.1From 3pm to 6pm on Friday;
8.2.2From 9am to 6pm on Saturday; and
8.2.3From 9am to 2pm on Sunday.

8.3 For the July, August, September, October and November 2023 monthly visits:
8.3.1From 3pm to 6pm on Friday;
8.3.2From 9am to 7pm on Saturday; and
8.3.3From 9am to 2pm on Sunday.

8.4 For the monthly visits from December 2023 until December 2024 as follows:
8.4.1From 3pm to 6pm on Friday for each monthly visit;
8.4.2From 10am on Saturday until 10am on Sunday for the first monthly visit;
8.4.3From 10am Saturday until 12pm Sunday for the second monthly visit;
8.4.4From 10am Saturday until 2pm Sunday for the third monthly visit;
8.4.5For the fourth monthly visit and each month thereafter:
8.4.5.1From the conclusion of school (or 3pm) Friday until 6pm; and
8.4.5.2From 9am Saturday until 2pm Sunday.

8.5     From December 2024 until such time as the child attains the age of 8 years of age (2025), on the last weekend of each month, from the conclusion of school (or 3pm) on Friday until 2pm on Sunday.
9.From the time the child attains the age of 8 years, the child spend time with the Father as follows:
9.1     In Adelaide pursuant to paragraph 8.5 above during the months of February, March, May, June, August and November.
9.2     In Adelaide pursuant to paragraph 8.5 above during the month of September or October if the Father’s time with the child that month does not occur pursuant to paragraph 9.3 below.
9.3     In Sydney during the Term 1 (April), Term 2 (July) and Term 3 (September or October) school holidays with such time to commence on the first Sunday (of the first weekend) in odd numbered years and to commence on the second Friday of the school holiday period in even numbered years as follows:
9.3.1From 9am until 5pm on three consecutive days during the September/October 2025 holiday period, with the Mother to accompany the child to Sydney and the child to return to the care of the Mother each night during the trip;
9.3.2For 2 nights during each short school holiday period from January 2026 until September 2027;
9.3.3For 4 nights during each short school holiday period from October 2027 until September 2028;
9.3.4For 6 nights during each short school holiday period from October 2028 until September 2029; and
9.3.5For 8 nights during each short school holiday period from October 2029 until January 2031.

9.4 In Sydney during the Term 4 (December/January) summer school holiday period as follows but subject at all times to paragraph 12.1 herein:
9.4.1For 2 nights from 9 January 2026 to 11 January 2026;
9.4.2For 3 nights from 18 January 2027 to 21 January 2027;
9.4.3For 4 nights from 17 December 2027 to 21 December 2027;
9.4.4For 6 nights from 12 January 2029 to 18 January 2029;
9.4.5In 2030, 2031 and 2032:
9.4.5.1for 1 week (7 nights) in December (to coincide with Christmas if the child is to spend Christmas with the Father in Sydney pursuant to paragraph 12.1 below) at times to be agreed but in default of agreement as follows:
9.4.5.1.1If the child is spending Christmas in Sydney with the Father, then from 23 December until 30 December; or
9.4.5.1.2If the child is spending Christmas in Adelaide with the Mother, then from the Saturday immediately following the conclusion of the school term 4, for 7 consecutive nights or until 23 December (whichever is the earlier); and

9.4.5.2for the second to last week (for 7 nights) of the school holiday period in January with such time to commence on the 3rd to last Saturday of the holidays and to conclude on the 2nd to last Sunday of the holidays (for the avoidance of doubt, the child shall be in the Mother’s care for the final week of the holidays prior to the school term commencing).

9.4.6From 2033 onward:
9.4.6.1For one week (7 nights) in December (to coincide with Christmas if the child is to spend Christmas with the Father in Sydney pursuant to paragraph 12.1 below) at times to be agreed but in default of agreement as follows:
9.4.6.1.1If the child is spending Christmas in Sydney with the Father, then from 23 December until 30 December; or
9.4.6.1.2If the child is spending Christmas in Adelaide with the Mother, then from the Saturday immediately following the conclusion of the school term 4, for 7 consecutive nights or until 23 December (whichever is the earlier); and

9.4.6.2For two weeks (14 nights) of the school holiday period in January, subject to the child’s wishes, NOTING THAT the child will be 16 years of age, at times to be agreed or in default of agreement from the 2nd to last Friday (for 14 consecutive nights) of the school holiday period in January.

10.In the event that the Father is unable to travel to Adelaide for any of his monthly time spending with the child pursuant to paragraphs 8 and 9 herein, the schedule of visits with the increasing times shall be followed based on the number of visits, not the number of months. In other words, the incremental increase in time only occurs at the next visit, not according to months passed.
11.If the child is to travel to Sydney to spend time with the Father pursuant to paragraph 9 above:
11.1     All costs of such travel are to be at the Father’s sole expense;
11.2     The costs of accommodation for the Mother and the child for the trip provided for at paragraph 9.3.1 hereof is to be at the Father’s sole expense;
11.3     The Mother is to accompany the child on the flights for the first three (3) interstate trips during which the child spends overnight time with the Father in Sydney;
11.4     Thereafter the Father is to accompany the child on all flights;
11.5     The Father is to provide the Mother with the details of all flights and where the child will be staying whilst in Sydney with the Father at least 14 days prior to the child travelling;
11.6     The Father shall facilitate the child having a FaceTime/video call with the Mother each alternate day and whenever the child shall request; and
11.7     Both parents shall respond within 2 hours of receipt of a request from the other as to the welfare of the child, limited to 3 requests per visit.
12.The child spend time with each of her parents for the following special occasions as follows:
12.1     For Christmas:
12.1.1From Christmas in 2023 and each alternate year thereafter, with the Mother from 5pm on Christmas Eve until 3pm on Christmas Day PROVIDED THAT the Father is at liberty to spend time with the child from 3pm on Christmas Day until 7pm on Boxing Day (in Adelaide);
12.1.2For Christmas in 2024 and each alternate year thereafter, with the Father from 5pm on Christmas Eve until 3pm on Christmas Day PROVIDED THAT the Mother is at liberty to spend time with the child from 3pm on Christmas Day until 7pm on Boxing Day (in Adelaide);
12.1.3IT IS NOTED THAT from 2030 onwards, the parties will consider the child spending each alternate Christmas in Sydney (subject to the child’s wishes) for a period of at least 3 days and spending the Christmas period in the intervening year with the Mother.
12.1.4If the child travels to Sydney pursuant to an agreement reached between the parties in accordance with paragraph 12.1.3 herein, THEN paragraphs 12.1.1 and 12.1.2 are suspended for a period of 2 calendar years such that the child shall spend Christmas in the second year with the Mother.

12.2 For Easter, if the Father has travelled to Adelaide, the child shall spend time with her parents as follows:
12.2.1With the Father from 10am to 7pm Easter Saturday in 2023;
12.2.2With the Father from 10am on Easter Saturday until 10am on Easter Sunday in 2024;
12.2.3With the Father from 10am on Easter Saturday until 10am on Easter Monday in 2025 and each alternate year thereafter;
12.2.4The child will not spend school holiday time with the Father in April pursuant to paragraph 9.3 above if the Father travels to Adelaide for Easter; and
12.2.5The Father shall provide 30 days’ notice to the Mother if he intends to travel to Adelaide for Easter.

13.The child spend such further and other time with the Father as may be agreed between the parties in writing.

Handover
14.In relation to handovers:
14.1 If the Father’s time is taking place in Adelaide:
14.1.1From the date of these orders until the end of 2025, the Mother is to deliver the child to the Father’s accommodation at the commencement of his time (which, on Fridays, will be immediately after school, NOTING THAT it will likely take 10-15 minutes for the child and mother to arrive at the Father’s hotel) and the Father shall return the child to the Mother’s place of residence at the conclusion of the ordered time.
14.1.2From 2026 onwards, the Father shall collect the child from school on Fridays or if the handover is not to take place at the child’s school, then the Mother is to deliver the child to the Father at his accommodation in Adelaide at the commencement of the ordered time, and the Father is to return the child to the Mother’s place of residence at the conclusion of the ordered time.

14.2 If the Father’s time is taking place in Sydney then the Mother is to deliver the child to the Father at the Adelaide Airport at the commencement of the ordered time, and the Father is to deliver the child to the Mother at the Adelaide Airport at the conclusion of the ordered time.

BY CONSENT
Definition of School Holidays
15.For the purposes of the school holiday time set out above, school holidays are defined as commencing on the last day of term and concluding two days before school commences, by reference to the gazetted South Australian school holidays.

Communication
16.Facetime calls:
16.1     That the Father be at liberty to have a FaceTime call with the child at 9am each Sunday and 6pm each Wednesday with the Father to instigate the calls;
16.2     That the Mother be at liberty to have a Facetime call with the child whenever the child requests and/or every alternate day that the child is in the Father’s care at times to be agreed or at 10am in default of agreement; and
16.3     That the parent who does not have the care of the child on her birthday be at liberty to have a Facetime call with the child at a time to be agreed or at 5pm in default of agreement.

Other Matters
17.That the parties attend upon an agreed therapist for co-parenting counselling at the joint and equal expense of the parties, with each party to enrol for such service within 30 days of these orders NOTING THAT the parties shall attend upon such counsellor as and when agreed between them or in absence of agreement as directed by the therapist.
18.That the parties be restrained and injunctions are granted restraining them from:
18.1Discussing these proceedings with the child or showing them any documents relating to these proceedings, or allowing any other person to do so;
18.2Denigrating the other party or family member to or in the presence of the child or allowing any other person to do so;
18.3Physically disciplining the child or allowing any other person to do so;
18.4Consuming alcohol to excess or taking illicit substances 24 hours prior to and whilst the child is in their care;
18.5Manipulating the child or using the child to discuss or try to change care arrangements NOTING THAT any change to the care arrangements shall be agreed and discussed only between the parties; and
18.6Attending at the home or workplace of the other parents except for the purposes of handovers; and
18.7Attending to surveillance personally or engaging a private investigator or causing anyone else to monitor or attend to surveillance of the other parent, including recording the other parent in any manner without their knowledge and consent.

19.That the Father:
19.1sign any passport application in relation to the child provided to him by the Mother as and when requested to do so;
19.2return such signed application to the Mother within 7 days of receipt by him; and do all such things required to ensure a passport is issued to the child on application by the Mother.

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

This is a parenting dispute concerning the parties’ daughter, X, who was born in 2017 and at the time of the trial was 5 years old.
The Applicant Mother, MS SANTEK, and the Respondent Father, MR LISICA commenced a relationship in 2014 and married in 2016. They separated in September 2017, approximately a year later. After the parties were married, the Mother moved from Adelaide to Sydney, where the Father resided, and commenced cohabitation with him there. In 2017, when the Mother was pregnant with X, she travelled to Adelaide, where she had resided prior to the parties’ marriage, for the purpose of attending a baby shower, and did not return to Sydney. X was born in Adelaide. In 2017, two days after X’s birth, the Mother informed the Father of her view that the marriage had broken down. Both parties have since repartnered, but neither currently resides with their partner.
X has resided with her mother since her birth. Her time with her father has gradually increased as she has grown older, commencing with short visits under the supervision of the maternal family from when she was a newborn until she was two years of age, progressing to visits supervised by a professional supervisor, Mr B, pursuant to Court orders, and later, unsupervised time. At the time of trial, X was spending unsupervised time with the Father from 3pm until 6pm on Friday, 9am until 4pm on Saturday, and 9am until 2pm on Sunday, on the last weekend of each month. This was more time than the orders then in force, being orders made on 22 April 2021, which provided for the time to occur from 9am until 1pm on the Saturday and Sunday of the last weekend of each month. The increase had been agreed between the parties at the Mother’s instigation following receipt of the family report. The time was based at a hotel in which the Father stayed when in Adelaide, though he and X often engaged in activities outside the hotel. Handovers were taking place in the hotel lobby. X was also having Facetime calls with the Father twice per week.
At the commencement of the trial, the Court was advised that the parties had reached agreement in relation to almost all matters other than the regime for time to be spent between X and her father. The parties’ agreement included provision for the Mother to have sole parental responsibility in relation to religion and education, with a requirement that she advise the Father of any proposed decision, take his views into account, and inform him of any decision ultimately made; that the parties have equal shared parental responsibility in relation to medical issues; provision for Facetime communication between X and the parent with whom she is not spending time; provision for the parties to attend coparenting counselling; and other standard orders and injunctions.
The parties agree that the time between the Father and X should build up over time and ultimately culminate in X spending overnight time with the Father in Sydney. They do not agree as to the speed with which the introduction of overnight time and the commencement of time in Sydney will occur.
The matters the Court was called upon to determine were:
(a)The duration and frequency of time between X and her father, including the timing and details of the commencement of overnight time and time in Sydney; and
(b)Whether the Father should be required to engage with a counsellor experienced in working in family violence.

The major factual issues in dispute between the parties concerned the nature and quality of the relationship between X and her father, whether and to what extent X experiences anxiety surrounding time with her father, and the likely causes of any such anxiety.
The Mother relied on the following documents:
(a)Amended Initiating Application filed 22 December 2022.
(b)Trial Affidavit filed 22 December 2022.
(c)Affidavit of Ms C (the Mother’s sister) filed 6 January 2023.
(d)Affidavit in Reply filed 10 February 2023.
(e)Case Outline filed 13 February 2023.
The Mother’s proposals were, in summary, that X spend time with her father in a gradually increasing regime involving time taking place in Adelaide until X turns 8 in 2025, including a gradual increase to overnight time from December 2023 (at which time X will have completed her first year of school); and time in Sydney to commence from the end of 2025. The Mother’s proposals were similar but not identical to the recommendations of the family report.
The Father relied on the following documents:
(a)Amended Response to Initiating Application filed 8 February 2023.
(b)Trial affidavit filed 7 February 2023.
(c)Affidavit of Ms D (the Father’s partner) filed 8 February 2023.
(d)Affidavit of Mr B (contact supervisor) filed 8 February 2023.
(e)Case Outline filed 13 February 2023.
The Father’s proposals were, in summary, that X commence spending overnight time with him from April 2023 (shortly after the trial), moving to two consecutive nights in October 2023, that she commence spending five consecutive nights with him from January 2024, and that she spend overnight time with him in Sydney from October 2024.
In addition to the documents outlined above, the parties had each submitted tender books and minutes of orders sought to the Court prior to the trial. I indicated to Counsel for both parties at the commencement of the trial that I did not consider the contents of the tender books to be in evidence until such time (if any) as the documents contained therein were formally tendered.
In accordance with section 140 of the Evidence Act 1995 (Cth), all findings of fact in this judgment are made on the balance of probabilities.
THE MOTHER
The Mother was born in 1992 and was aged 30 at the time of the trial. She is a qualified Educator but is currently employed on a part time basis by the E Company. The Mother resides with her parents in Adelaide, South Australia.
The Mother was an impressive witness. She gave her evidence in a straightforward manner and it was clear that she genuinely endeavoured to answer every question put to her. She presented as a committed and competent parent with a high level of insight into X’s needs. The family report writer, Ms F, described the Mother as providing measured and child focused responses and as being an emotionally attuned parent whose parenting was sophisticated. These descriptions accord with my own impression of the Mother.
THE FATHER
The Father was born in 1989 and was aged 33 at the time of trial. The Father is a tradesperson. He resides in Sydney, New South Wales.
I formed the impression that most of the differences between the parties’ evidence arose from each party providing a genuine account of their very different perspectives. However, there were some difficulties with the Father’s credibility as a witness, which are considered later in these reasons. For this reason, where the evidence of the parties conflicts, in the absence of independent evidence, I prefer the evidence of the Mother. It was clear from the Father’s evidence that he loves X and is a committed father to her. This is also demonstrated by the commitment he has shown in travelling from Sydney to Adelaide to spend time with her over an extended period. However, the Father presented as somewhat lacking in attunement or insight into X’s needs and her perspective and as taking an overly simplistic approach to the complex issue of the dynamics of his relationship with her.
THE FAMILY REPORT WRITER
A family report dated 17 June 2022 was prepared by Ms F. Although she was asked under cross-examination whether she was a child psychologist and responded that she was not, no challenge was made to Ms F’s qualifications as an expert. Ms F gave evidence and was cross-examined by Counsel for both parties via videolink. Her evidence was considered and thoughtful and was not successfully challenged in cross-examination.
The family report recommended, in summary, that X live with her mother and spend time with her father as follows:
(a)From July 2022, X's days increase an hour on the Saturday and half an hour on the Sunday once a month.
(b)By December 2022, X spend time with the Father once a month from 10am to 7pm Saturday and 10am to 4pm on Sunday.
(c)In mid-2023, X spend one overnight on the Saturday with the Father.
(d)By mid-2024, X spend two consecutive overnights a month with the Father.
(e)That consideration be given to Sydney travel when X is aged 8 years, accompanied by a parent.
Ms F also recommended that the parties meet with a co-parenting counsellor as soon as practical prior to the commencement of overnights to negotiate the parameters of managing X's anxiety in the event it occurs; indicated that the Father would likely benefit from attending a parenting course, such as the Circle of Security or the Triple P where he can gain insight into a child's development and experience; and suggested that the Court may wish to consider the father's attendance with a counsellor experienced in working with family violence.
OTHER WITNESSES
The Father relied on an affidavit sworn by his partner, Ms D. Her affidavit describes positive interactions between the Father and X and fun activities the three have undertaken together. Ms D was not required for cross-examination. Her evidence was not inherently improbable or implausible and I accept it.
The Father also relied upon an affidavit affirmed by Mr B, who supervised time between X and the Father in November and December 2019 pursuant to an order made on 3 October 2019. Mr B’s reports, which are annexed to his affidavit, describe consistently positive and appropriate interactions between the Father and X. The reports also record minimal concern exhibited by X regarding the absence of her mother, transitions occurring without incident and anxiety being exhibited by X only when her mother was nearby. I likewise accept the evidence of Mr B, though I note that the observations in his report relate to a period over three years ago, when X was only two years of age.
The Mother called evidence from her sister, Ms C. Her evidence is discussed at later points in these reasons. Ms C gave evidence and was cross-examined. She impressed as a credible and reliable witness. I accept her evidence.
THE RELEVANT LEGAL PRINCIPLES
The legislation
Part VII of the Family Law Act 1975 (Cth) (‘the Act’) guides the process in relation to the making of parenting orders. The objects of Part VII are set out at section 60B, as follows:-
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60CA of the Act provides that when deciding whether to make a particular parenting order in relation to a child, the Court must consider the best interests of the child as the paramount consideration. Section 60CC of the Act sets out how those best interests are to be determined, and outlines two primary considerations and a list of additional considerations which I am required to take into account.
Section 65DAA of the Act provides that if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the Court must consider whether an equal time arrangement is both in the child’s best interests and reasonably practicable; and if the answer to either of these questions is no, the Court must consider whether an order for significant and substantial time is both in the child’s best interests and reasonably practicable.
Subsection 65DAA(3) provides that a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i)days that fall on weekends and holidays; and
(ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i)the child’s daily routine; and
(ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
There are conflicting authorities as to whether requirements of section 65DAA of the Act apply where, as here, there is an order for equal shared parental responsibility in relation to some but not all aspects of parental responsibility.[1]
[1] Doherty & Doherty [2016] FamCAFC 182; cf French & Fetala [2014] FamCAFC 57.
In any event, the Mother and X reside in Adelaide and the Father resides in Sydney. There was no suggestion by either party of an intention to move to the city where the other resides, nor that the other party should be required to relocate. In addition, there are, as discussed later in these reasons, cogent reasons for care being taken in crafting a parenting regime which facilitates the growth and development of the relationship between X and her father but does not overwhelm her or exacerbate her anxiety in relation to their time together. In those circumstances, neither equal nor substantial and significant time are in X’s best interests or reasonably practicable.
Primary considerations
Section 60CC(2) of the Act sets out the two primary considerations I must consider, as follows:
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In applying those primary considerations, I am required to give greater weight to the need to protect X from harm.[2]
[2] Family Law Act 1975 (Cth), s 60CC(2A).
Meaningful relationship
There is no definition of the word ‘meaningful’ in the Act. It has been held to be synonymous with ‘significant’, ‘important’, and ‘valuable to the child’. It is a qualitative and not a strictly quantitative adjective. It is not necessary that it be an optimal relationship.[3]
[3] Mazorski & Albright [2007] FamCA 52; McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405; Sigley & Evor [2011] FamCAFC 22.
It is not in dispute that X enjoys a meaningful relationship with her mother and will benefit from continuing to do so.
The relationship between X and her father is more complex. The Father reported to Ms F that he wanted the opportunity to share meaningful experiences with X, and my observations of him as a witness suggest that this desire is strongly and genuinely held. However, the Mother alleged that the interactions between X and her father lack depth, and that the Father has not formed a meaningful bond with X.
The Mother deposed that during the times she observed their time together when X was very young, the Father disregarded X’s needs, such as her sleeping and feeding routine, and tended to spend the time engaging in activities such as watching television or taking photographs of X and posting them on social media rather than engaging in interactions and activities with her. As a result, X was often unsettled, failed to form a bond with the Father and was not comfortable in his care. This evidence was supported by the evidence of Ms C. It was put to the Mother that she had ‘micromanaged’ the time the Father had spent with X in her family’s home. The Mother credibly denied this and said that she had become involved only when X became distressed and needed to be soothed and the Father had not succeeded in his attempts to soothe her. Ms F was asked whether, if the Mother or a maternal family member jumped in in this manner, it could send a message to the child that it was not safe or secure to be with her father. She agreed that it could, but said that if the Father had the capacity to soothe and reassure the child, there would be less likelihood of the child looking to the other parent. Ms F agreed that the Mother’s actions in assisting when she thought the child was struggling were child focused.
Ms C further deposed to interactions between X and the Father during time supervised by her in 2019 which suggest limited attunement to X’s needs on behalf of the Father, such as refusing X access to familiar items, confusing her by giving her Father’s Day gifts that were for him and expecting her to give them back, and expecting her to write in a card for him and engage in Facetime calls with unfamiliar relatives at the age of two. Under cross-examination, she said the Father had struggled to parent X during that time.
The Mother deposed that X exhibits separation anxiety surrounding her time with her father and that this has occurred over an extended period of time. X’s conduct as described by the Mother includes a history of hiding, begging not to be made to go, crying, clinging to the Mother, complaining of stomach aches, expressing fear and taking days to return to normal following her time with the Father. Her evidence was also that the anxiety affects X’s sleeping and eating.
Although the Mother acknowledged to Ms F in June 2022 that X had been transitioning to her father easily in recent times, she deposed that X still exhibits anxiety in relation to her time with the Father both before and after their time together and asks why she is required to go, and she deposed to recent incidents where X has been reluctant to separate from her at handovers. The Mother reported that X does not exhibit the same anxiety separating from her in other contexts. The Mother’s position is that X is not ready to commence overnight time. Her reports of X’s separation anxiety are consistent with Ms F’s observations.
The Father’s position as to whether X exhibits symptoms of anxiety and resistance to spending time with him as reported by the Mother, and as to whether there are difficulties in her relationship with him, was difficult to discern. He deposed that X does not exhibit distress during their time together and indeed asks for more time with him, and gave evidence of numerous successful handovers having occurred. However, he did acknowledge X’s distress in a message sent to the Mother in February 2021,[4] and he deposed that on 1 January 2023, X had become distressed in his care and asked to go home. He told Ms F that X exhibited no anxiety in his care but also acknowledged to her that there had been anxiety when separating from the Mother.
[4] Father’s Trial Affidavit, paragraph [45].
Under cross-examination, the Father said that there was separation anxiety experienced by both X and the Mother. He also said under cross-examination that the current arrangements were not working because he had insufficient time to build a meaningful relationship with X, which contradicted his evidence as to how the relationship has been progressing. He contradicted himself again by refusing to admit that X was not entirely settled in his care. Taken as a whole, the Father’s evidence was an internally inconsistent combination of insistence that his relationship with X was positive, secure and meaningful, and allegations the Mother was responsible for the absence of a positive, secure and meaningful relationship between himself and X.
Ms F gave evidence that the Father’s presence during the course of the observations undertaken for the purposes of the family report had created anxiety for X. The Father deposed that what Ms F had observed was not an accurate representation of his relationship with X. It would be a remarkable coincidence if the kind of anxiety described by the Mother was not in fact occurring in the Father’s care as he deposed but happened to be manifested on the one occasion upon which the Father and X were observed together for the purposes of preparation of a family report.
Ms F gave evidence that one possible explanation for the differences in the parties’ descriptions of X’s presentation was that she was acting differently with each of her parents, and that in particular, when she was with her mother she felt that she could relax, decompress and speak freely. Ms F referred to a comment that X had made to her to the effect that she did not feel that she could express her feelings to her father for fear that he might become angry. She further indicated that X might be trying her hardest to make the experience with her father positive, but that this did not mean that the experience was not overtaxing or stressful for her. Ms F was asked whether X might be saying to her mother what she believed her mother wanted to hear. She responded that it was possible but was not congruent with the assessment she had made of the Mother. The Father alleged that distress on X’s part upon returning to her mother was likely indicative of ‘issues associated in their home’. This view is simplistic and, when considered in light of the balance of the evidence before the Court, demonstrates a lack of insight into the dynamics of X’s relationships and lived experience.
It was not put to the Mother that her descriptions of X’s behaviour were untrue. Rather, it was suggested to her that X’s presentation resulted from her lack of support for the relationship between X and the Father, and that the problems X was experiencing indicated that progressing the time in the cautious manner preferred by the Mother was not working for X. Implicit in the way the Father’s case was put was an acknowledgment that X exhibits anxiety and has not settled as well into his care as his evidence would suggest. I accept the Mother’s evidence that X experiences anxiety and is struggling with the time she spends in the care of the Father.
Although it is possible that X moderates her expressions of anxiety in the presence of her father as hypothesised by Ms F, and it is possible that she gives indications of anxiety to which the Father is oblivious, I gained the impression from the manner in which the Father gave his evidence that he was well aware the X was struggling with her time with him but was deliberately minimising the stress she exhibited. This lends weight to the Mother’s concern that he would not return X to her if she became distressed during overnight time, and supports her view that the Father is self-focused rather than child-focused in his approach to his time with X rather than being responsive to X’s needs or to her discomfort. In light of the fact that some aspects of the Father’s evidence acknowledged that there is a problem, his denials of the existence of a problem are of concern, both in relation to his sensitivity to X and her needs, and in relation to his credibility as a witness.
Ms F opined that X exhibited some separation anxiety from her mother. She reported that X was initially very anxious about the observation session with her father and did not want to leave her mother's side to meet with her father, but that she did so after encouragement from the Mother. After a period of time interacting with the Father, Ms F reported that X suddenly appeared uncomfortable and asked for her mother. The Father made numerous attempts to distract her, and assured her that her mother was nearby and she would see her soon, but X opened the door and walked out of the office, looking for her mother in the waiting room.

When her father went after her and reassured her that her mother was still there, X willingly returned with him and briefly played before asking for her mother again and walking out to find her again. The Mother attempted to encourage X to return to the observation with her father again. X was observed by Ms F to be ‘quite stressed’. She somewhat reluctantly allowed her father to hug her but did not hug him back, and then left with her mother. Under cross-examination, Ms F said that the Father’s attempts to reassure X had been appropriate, but X had become increasingly uncomfortable and had just needed the comfort of her mother. Asked whether the Father’s inability to provide the same degree of comfort as the Mother was likely a result of a lack of emotional attachment and emotional connection, Ms F responded that this was probably the case.
The Father’s evidence was of undertaking appropriate activities with X during their time together, such as singing to her and playing guitar for her, and of engaging with her in age appropriate activities. The Father also deposed that X often hugs him and asks for more time with him, including overnight time. The Father further deposed that in late October or early November 2020, X asked if she could live with him. His evidence was also that she generally runs to him happily at handovers. I accept the Father’s evidence that he and X generally have an enjoyable time when they are together. This is consistent with X’s report to Ms F. However, as Ms F indicated under cross-examination, it is the quality of the interactions between the Father and the child during their time together that is important. I do not accept that X asks her father for overnight time, at least without prompting from him. This evidence is inconsistent with X’s reaction when the issue of overnight time was raised with her by Ms F and with other aspects of X’s behaviour, as considered later in these reasons.
The Mother alleged that the Father is self-focused and exhibits a sense of entitlement when it comes to his relationship with X, that he often imposes his will on her rather than accommodating her emotional needs, and that this was likely a source of X’s anxiety. She reported that X complains of her father making her do things she did not want to do. Both the Mother and Ms C deposed to X expressing reluctance to spend time with her father and complaining that he does not listen to her.
As an example of this, the Mother deposed that at handovers and during Facetime calls, the Father often pressures X to say ‘I love you’ and ‘I miss you,’ disregarding X’s discomfort, and becoming irritated with her if she refused. The Mother also deposed to X having reported to her on 30 December 2022 that the Father had told her she could have a massage only if she said she loved him, and that X feared that if she didn’t say it, the Father would become angry. Ms F described this as an example of the Father having his own needs met rather than being available and attuned to what is actually happening for X, and noted that X’s disclosure in this regard was consistent with what she had said to Ms F about feeling unable to say things to her father because she feared his reaction.
The Mother further deposed to X having told her on 29 January 2023 that the Father and his partner had been ‘making’ her say I love you, by continuing to repeat ‘say I love you, say I love you’, and that they had given her a toy ‘but [she] had to say I love you’. It was put to both Ms F and the Mother that an appropriate response from the Mother would have been to say ‘but you do love him, he’s your dad’. Both the Mother and Ms F considered that the Mother’s actual response, which had been to explore X’s feelings with her, was appropriate. Ms F confirmed that the Father’s actions as described had been inappropriate, had applied a lot of pressure on a small child to meet his needs, and would likely have had a significant bearing on her feeling that she was not safe and secure in her father’s care.
The Father denied having told X to say she loved him in his affidavit,[5] but admitted under cross-examination to having asked her to do so. The Mother deposed to having recorded X making disclosures in this regard. The recording was not called for. The Mother deposed that this conduct confuses X and makes her feel guilty, and is interfering with her ability to form a secure attachment to her father. I accept the Mother’s evidence in this regard.
[5] Father’s Trial Affidavit paragraph [61].
The Mother’s unchallenged evidence was that the Father has, on more than one occasion, purchased items for X but not allowed her to keep them. This evidence is supported by the evidence of Ms C who deposed to having witnessed the same conduct at visits she supervised in 2019. The Mother deposed that on one such occasion in May 2022, X reported that her father had told her that the items would be taken to Sydney and she could have them when she came to visit him. Ms F described this as an example of conduct which might make X feel conflicted and anxious about the relationship.
The Mother also alleged that the Father has shown minimal interest in the events that happen in X’s life and in the things that are important to her, such as her interest in sports, which leads to a lack of understanding of the child and what is important to her and contributes to his lack of ability to connect with her on more than a superficial level. She alleged that the Father has not made a genuine effort to get to know X or develop their relationship on a deeper level. Under cross-examination, the Father was unable to name X’s school teacher, despite X having commenced her first year of school shortly prior to the trial, which the Father acknowledged was a major milestone in her life.
The Mother reported to Ms F that the Father’s interactions with X tend to take the form of repetitive questioning in relation to superficial matters, such as constantly asking her what she had for breakfast, rather than engaging with her in relation to issues that are meaningful for her. This was confirmed by X herself, who complained to Ms F that she was frustrated by the Father asking her the same questions over and over, for example, ‘have you had breakfast?’. X told Ms F ‘I hate it when he does that.’ During the subsequent observation session with the Father, he asked X what she had eaten for breakfast, following which X gave Ms F a ‘knowing smile.’ Asked under cross-examination whether he could not engage with X about anything a bit more significant than what he had for breakfast, the Father responded ‘breakfast is the most important meal of the day’. Asking a child what she has eaten for breakfast is of course entirely harmless. However, it appeared that the Father was focused on defending his own actions in this regard and he did not appear to have taken the opportunity provided by Ms F’s report to reflect upon X’s comments, what they might have revealed about her experience of their relationship, and how her perception of their interactions might differ from his. Ms F opined under cross-examination that this example reflected one of the concerns that had been raised by the Mother around the Father’s parenting capacity and his capacity to be emotionally attuned and available to X and that it lacked depth and a capacity to engage in a meaningful way.
The Father was also observed by Ms F not to engage in imaginary play with X but rather to direct questions to her about the activities in which she was engaging. Ms F reported that while the Father’s observation demonstrated that he loved X and was motivated to interact in a child focused manner, his interactions with her were less sensitive than were the Mother’s and failed to invite the child into a conversation that would take the parent into the child's experience.
It must be noted that Ms F’s report did include some observations of the Father interacting with X in an appropriate and child-focused manner which did appear to engage her and her interests, including asking her about the personas and dress choices of each of the dolls she was playing with and discussing what she was looking forward to doing once she was at school. It must also be noted that during this part of the observation, X was smiling, her communication was spontaneous, there was eye contact, she sat in close proximity to her father, and they shared humour. The Father’s approach when interviewed by Ms F was also observed to be primarily child focused.
However, as noted earlier in these reasons, Ms F reported that X was initially resistant to undertaking the observation with the Father; that after a short period of observation with her father, X suddenly appeared uncomfortable, asked for her mother, and left the observation to find her; and that despite returning to the session, asked again for her mother and left to find her, appearing to Ms F to be stressed.
The Father sought to undermine the family report by deposing that the centre where the interviews had taken place ‘had an old musty oder [sic], maybe due to the rain, the paint around the architraves and skirtings were worn and peeling, and didn't look or feel very inviting for children.’ Under cross-examination, the Father asserted that this ‘set the mood for what was taking place there that day’ and queried whether ‘if the environment was different would there have been more time that she would have been settled with me?’ He was unable to explain why these matters would have affected X’s interactions with him but not her interactions with her Mother and with Ms F which had taken place earlier on the same day in the same location. Counsel for the Mother submitted that this evidence was bizarre. I agree.
The Father also asserted that X’s attention span had already been used up by the time of her observation with him, that the observation had been affected by the Mother’s presence nearby, that he had ‘disrupted X's concentration and sense of calm’ and alleged that ‘the intake wasn't as accurate as could be and bias [sic].’ He was unable to explain this allegation of bias in the witness box. When asked to do so, he gave a variety of responses, including complaining that Ms F had not followed the ‘guidelines’ of Mr B, who had recommended that the Mother not be present following handover when X was aged two, complaining that the child had already been present and established with the Mother by the time he arrived, complaining that he had not had a sleepover with X the night prior to the report, and expressing a wish that he had been observed with X on a separate day. None of these responses established any bias.
The Father was asked why, in light of his evidence as to the warm and loving relationship he shares with X, his arrival would have ‘disrupted her concentration and sense of calm.’ His response was that it was in a place where X might not have wanted to be and ‘she wasn’t used to me being in that house and under those circumstances.’ The Father also asserted that if the transition from the Mother’s care to his had occurred at the hotel where handover usually occurred, it would have gone completely differently ‘because in a hotel there’s a lot of people around that doesn’t smell like her apartment and doesn’t look like that. It’s very bright and colourful and open.’ When it was put to him that the observed interaction hadn’t gone well, he responded ‘the report didn’t say anything bad about me.’ This evidence betrayed an overly simplistic approach, a lack of reflection on the Father’s part as to X’s experience of her interactions with him, and a tendency to attribute blame to external factors rather than engaging in self-reflection.
I have regard to the fact that X may well have been tired by the time of her observation with the Father and that this might have made her less patient. I also have regard to the possibility that the Mother’s presence in a nearby room could have decreased the likelihood that X would want to stay in the observation with her father rather than returning to her mother, particularly in light of Mr B’s evidence that X exhibited anxiety only when her mother was nearby, albeit Mr B’s observations took place when X was a much younger child. This possibility was acknowledged by Ms F in cross-examination. However, it is noteworthy that X had no difficulty spending time with Ms F while her mother was in another room nearby, and the difficulty arose only when the Father was present.
Asked what he had done to encourage X to stay in the room with him, the Father said he had sung songs, jumped up and down, danced with her and shown her new dances. When asked why he hadn’t tried to sit down with her and ask her what the problem was, he responded that he had done so, despite the evidence he had given moments earlier. Later in his evidence, he was asked whether he had asked X what was making her uncomfortable and he said he had not. It was evident that the Father’s evidence that he had done so was untruthful. It should be noted that Ms F’s evidence was that the Father’s attempts to encourage X to remain in the room, and his attempts to encourage her to return, were appropriate. The difficulty with the Father’s evidence in this regard was not in what he did to encourage X to stay with him, but in the fact that he appeared to give the evidence he thought was the ‘correct’ answer rather than answering the questions put to him about his interactions with X truthfully.
Asked to reflect on his parenting on that occasion, the Father was self-congratulatory, indicating that it reflected that he was not aggressive with X and allowed her the freedom to make her own choices while making sure she was in a safe environment. While these things may well be true, the wholly positive spin placed by the Father on his inability to persuade X to remain in a room with him for more than a period he estimated to have been approximately five minutes aligns with the Mother’s allegation that the Father minimises the difficulties in his relationship with X.
It was put to the Father that if X had a a secure, loving attachment to him she would have stayed longer than five minutes before she started wandering off looking for her mother. The Father refuted this but was unable to explain X’s behaviour other than to say that she knew her mother was there. It was put to the Father that the problem was that he did not know how to engage with X. He denied that that was the problem. He was asked whether he had every confidence in his relationship with his daughter and responded that he did. This evidence, together with the Father’s unfounded allegation of bias and his complaints about the environment of the consulting rooms, reflect poorly on the Father’s level of insight and demonstrate lack of reflection as to the likely real causes of X’s behaviour as observed by Ms F.
Later in his evidence, the Father purported to accept full responsibility for his inability to keep X in the room with him during the observation with Ms F, which contradicted his earlier evidence. The Father acknowledged under cross-examination that by the end of the observations, X had been flustered and had not want to be with him, but he could not offer any explanation as to why that might have been.
It is to be expected that the Father would have a more limited understanding of X and her needs than does her mother in light of the limitations to the amount of time they have spent together throughout her life. It is to the Father’s credit that he has been patient in allowing the time he spends with X to build up gradually in accordance with her developmental needs, and that he has undertaken significant travel in order to spend time with her.
It is an unfortunate reality outside the Father’s control that state border closures arising from the COVID-19 pandemic interfered with his ability to spend regular time with her during the early years of her life. As a result of the COVID-19 pandemic, there was a period of 8 months in 2020 and 9 months in 2021 and early 2022 during which there was no contact between X and the Father other than regular FaceTime communication, which was maintained. The Mother’s unchallenged evidence, which I accept, was that these periods included periods where the Father’s inability to travel arose not from border closures but from conditions on travel which the Father was not prepared to meet, such as vaccination and COVID-19 testing.
In any event, it is evident that these periods of absence and the distance between the parties’ residences have led to difficulties in the development of the relationship between X and the Father, as she has had only what Ms F described as ‘limited, brief, and intense experiences of her father.’ As Ms F opined, children thrive on consistency and routine and repeated positive experiences and, through no fault of the Father, he has not been able to provide this despite clearly being highly motivated to do so. Her evidence under cross-examination was that monthly visits are not how a child can become securely attached to somebody, and that the significant breaks in the time would also have interfered with this process, to the point where there would not have been a secure attachment and the relationship would have needed to start over again.
I accept the submission of Counsel for the Father that he is facing a ‘catch 22’, in that the issue would appear to be that he has not spent enough time with X for her to develop a secure attachment to him, yet this is being promoted as a reason for caution in increasing her time with him. However, my focus must be on what is best for X and not what is or is not a source of frustration for the Father.
I am satisfied that there is a benefit to X of enjoying a meaningful relationship with her father. However, it is clear that the maintenance and facilitation of this relationship must be approached with care to avoid overwhelming X or exacerbating her anxiety.
Risk issues
The Mother alleged that she was subjected to family violence by the Father. She deposed that in 2017, when she was pregnant with X, there was an altercation during which, in an attempt to stop her from leaving the apartment, the Father ‘dragged [her] from the front door and threw [her] across the room onto the floor’ and that she managed to grab onto the couch as she fell but ‘landed heavily on [her] back and felt a sharp pain through [her] back.’[6]
[6] Mother’s Trial Affidavit, paragraph [59].
The Mother was cross-examined about a description of this incident given by her in an earlier affidavit, in which she had deposed that the Father had pushed her and she had fallen on the sofa. She explained that she had fallen towards the floor, and the couch had been behind her when she fell, so she was able to catch onto it, and part of her back had hit the couch while part of it hit the floor. It was put to her that her earlier description had not mentioned being dragged across the room or being thrown on the floor, which she accepted. She accepted that the descriptions were different. She also accepted that her recollection of the events in question would have been better closer to the event than after the passage of time. It is true that there are differences in the descriptions given in the two affidavits. However, the descriptions are not inconsistent, and each can be considered a description of the Father having used physical force to propel the Mother from the door towards the couch following which she fell. I do not accept that these differences demonstrate that the Mother’s evidence was untruthful. If indeed the first description was more accurate as a result of the passage of time and its impact on her memory, it is still evidence of an act of physical violence.
Although the Father’s trial affidavit included a response to the Mother’s trial affidavit, it did not address this allegation. He told Ms F that the Mother had ‘a meltdown and threw herself on the floor.’ This was also described by him as the Mother having ‘had a tantrum after a fight’. It was put to the Father that this explanation was bizarre and nonsensical. He responded ‘depending on the circumstances.’ This version of events was not put to the Mother. The Father’s evidence in relation to this evidence was lacking in credibility.

The Mother’s evidence was that she was concerned about the baby following this incident and wanted to go to hospital, and that the Father insisted on accompanying her. She alleged that the Father attempted to portray her presentation as psychological, and that he spoke to her midwife during the hospital visit and attempted to arrange for her to be prescribed antidepressants, without consulting with her and without her consent. She further alleged that the Father approached her obstetrician in an attempt to convince her that the Mother was suffering mental health problems. The Father told Ms F that he had merely given his account of the events in question and it had been the nursing staff who flagged the issue of the Mother’s mental health. Under cross-examination, he denied having asked any person to prescribe antidepressants for the Mother. The Mother’s version of events is supported by medical records annexed to her trial affidavit.[7]
[7] Mother’s Trial Affidavit, annexure -1.
I accept the evidence of the Mother in relation to this incident. I also have regard also to the observation made by Ms F that if the Mother’s version of events in relation to the attendance at the hospital is accepted, which it has been, this is a cause for concern about the Father’s use of coercion.
In addition to the events of 2017, the Mother alleged that the Father was controlling during their marriage, expecting her to be a ‘submissive wife.’ She alleged that this escalated after she became pregnant, and that the Father subjected her to emotional abuse, financial control, manipulation, bullying, intimidation and social isolation, and that she became fearful of him. Her allegations include that the Father discouraged her from maintaining contact with her family and from leaving the home, pressured her to engage in sexual intercourse, controlled her spending and refused to speak with her for extended periods when he was angry. The Father denied these allegations and deposed that the evidence he had provided demonstrated the Mother’s tendency towards coercive controlling behaviour. Aside from that bald statement, none of the evidence adduced by the Father suggested that the Mother had subjected him to coercive controlling behaviour.
The Mother’s evidence about family violence was supported by the affidavit of her sister, Ms C, whose evidence was of observations made during the parties’ relationship and contemporaneous disclosures made by the Mother which are consistent with the Mother’s evidence.
The Mother was cross-examined at length about these allegations. It was put to her that the Father had not actually stopped her from speaking to her family. She accepted that but asserted that he had become upset when she did so, leading her to speak to her family while he was at work to avoid conflict. It was put to her that the Father had not locked the door of the apartment and she had been free to leave, such as to engage in social activities without the Father stopping her. She frankly admitted that she had not been physically prevented from leaving the home and that she had felt unwell as a result of pregnancy, which would have limited her work options and other activities in any event, but explained that it was not a ‘physical stop’ but ‘the emotional side of dealing with it if [she] chose to do those things.’ This description is consistent with an experience of coercive and controlling conduct. It was put to her that she had been overwhelmed being away from her family and friends and with a husband who worked a lot. Her evidence was that it had been her experiences with the Father which had overwhelmed her.
Counsel for the Father submitted that the Mother’s evidence suggested that she was simply unhappy in her relationship with the Father rather than having been controlled by him. I do not agree. The Mother’s evidence about her experience of controlling conduct on the part of the Father was credible and was not shaken in cross-examination and I accept it. I find that the Father engaged in conduct constituting family violence[8] towards the Mother.
[8] Within the meaning of section 4AB of the Family Law Act 1975 (Cth).
Notwithstanding this, I am not satisfied on the evidence before the Court that X is at risk of being subjected or exposed to abuse, neglect or family violence. I accept the submission of Counsel for the Father that based on the evidence of what has occurred in X’s lifetime, any risk of family violence would appear to be either minimal or non-existent. Although the Father presents as somewhat domineering and authoritarian at times in his interactions with X, as discussed later in these reasons, the evidence before the Court does not suggest that she is unsafe or at risk in his care. So much is acknowledged in the Mother’s proposal which is for unsupervised time building ultimately to overnight time in Sydney.
Additional considerations
Section 60CC(3) of the Act sets out a number of additional considerations I must take into account. Those which are applicable to the circumstances of the present case are considered below.
Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give those views
X reported to Ms F that she liked to spend time with her father and enjoyed the activities they did together. However, X also reported to Ms F that, on occasions, she feels ‘kind of scared’ and that that she did not like to see her father because ‘it makes me feel like he is going to hurt me…. he doesn't hurt me…I just feel uncomfortable.’ She also complained of her father ignoring her wishes. When asked how she would feel about having a sleep over with her father at the hotel, X immediately stated ‘oh, that would be a lot for me a sleep over with [Dad].’ She indicated that when she was scared, she slept with her mother, and at the hotel, she would be in her own bed, which she was not comfortable with. When told that her father would be attending the observation soon, X indicated that she felt 20 out of 10 nervous.
X is only 5 years old, which limits the amount of weight that can be given to her views. However, Ms F described X as a very intelligent and articulate child and her responses, as described by Ms F, appear thoughtful and considered. As such, I give X’s views some weight, but note that they are not determinative.
The nature of the child’s relationships with each of her parents and other significant persons in her life
X plainly has a close and loving relationship with her mother. It is not in dispute that the Mother has always been X’s primary caregiver. It is also evident that X has a strong relationship with her extended maternal family, including her maternal grandparents, with whom she and the Mother reside, and her maternal aunt and cousin.
It is apparent from the evidence before the Court that there are some difficulties in the relationship between X and her father, as outlined earlier in these reasons. Counsel for the Mother invited the Court to make a finding that X has an insecure attachment to her father and that their emotional engagement is in its early stages. This was the evidence of Ms F and it was not successfully challenged in cross-examination. I make that finding.
The relationship between X and her paternal family has been limited, in large part by virtue of the considerable distance between their residences. X has grandparents, aunts, uncles and cousins who reside in Sydney. The Mother acknowledged under cross-examination that it would be preferable for X to have a relationship with her paternal family and that it was difficult for this to occur with a child of her age other than through face to face time. The Mother is critical of the level of commitment of the paternal family to travelling to Adelaide to spend time with X or making efforts to communicate with her. Nonetheless, it is likely to be of benefit to X to get to know and develop relationships with her extended family, and spending time in Sydney will enable her to do so.
The extent to which the child’s parents have taken or failed to take the opportunity to participate in long-term decision making in relation to the child and to spend time and communicate with her
The Father has gone to significant lengths to take the opportunity to spend time and communicate with X notwithstanding the considerable distance and expense involved, including spending a significant part of the first four months of her life in Adelaide and travelling frequently between Sydney and Adelaide to spend time with her thereafter. After her birth, he also spent time with her in the house in which the Mother resides with her parents, with the Mother and other family members present in the house, which, it is not disputed, was difficult and uncomfortable.
The Mother is critical of the Father’s level of commitment to spending time with X, including alleging that during his time in Adelaide following X’s birth there were several periods of time where he did not spend any time with her, that following his return to Sydney he showed limited interest in communicating about her and spent extended periods of time without coming to see her, and that he showed no interest in spending Christmas with her in the early years of her life. Under cross-examination, the Mother explained that her concern with respect to this was that X needed consistency to facilitate the relationship with her father.
I note the Mother’s evidence, which I have accepted, that the Father declined to travel to Adelaide during times when the borders were open but there were entry requirements with which he did not wish to comply. She also alleged that there were occasions when there were no border restrictions or entry requirements and the Father nonetheless did not travel to Adelaide, for reasons which are unknown to her. The Mother further deposed to an occasion in late 2022 when the Father booked a function at the G Venue in Adelaide and dedicated most of his time to that during his weekend with X, leaving the care of X predominantly with his partner. The Father disputed the events surrounding the G Venue event but did not otherwise challenge the Mother’s evidence in this regard. I accept that there have been times when the Father could have spent time with X but did not do so. Nonetheless, I consider that overall, the Father has demonstrated considerable commitment to spending time with X throughout her life.
It was put to the Mother that she is critical of the Father when he does spend time with X and critical of him when she doesn’t, such that the Father cannot win. The Mother responded that it was not about being critical of the Father but about being responsive to how X was coping with the time she spent with him. I accept that the Mother’s primary motivation is X’s interests and not criticism of the Father.
The Mother’s unchallenged evidence was that she proactively engages in communications with the Father and keeps him informed as to events and developments in X’s life, but the communications are one-sided, with the Father often failing to acknowledge her messages and rarely enquiring about X’s wellbeing and development. She was also not challenged in relation to her evidence that the Father frequently misses his scheduled FaceTime communication with X. The Mother’s evidence in relation to these matters was credible, and I accept it.
The Mother’s undisputed evidence was that the Father did not engage at all with the process of choosing X’s school ahead of her commencement in 2023 despite her efforts to discuss it with him, and that he ignored correspondence from her solicitors in relation to this issue. Under cross-examination, the Father was asked why he had not responded to the Mother’s attempt to engage him in discussions about X’s schooling. He said that he was not sure. He confirmed that he had not visited X’s school or made an appointment with any person at the school to learn about it. When asked why not, he said ‘because I didn’t,’ which was unresponsive and unhelpful. He acknowledged that he had made no enquiries with the school about how she was settling in since she had started there.
The Father complained in his case outline that the ‘restrictive time that the orders and/or the Mother currently permits’ have meant that he has not been able to be involved in X’s schooling. He has adduced no evidence of any attempt or suggestion made on his behalf that he might be engaged in any way in X’s schooling, despite the fact that he currently spends time with her on a Friday, being a school day, once each month.
The extent to which each of the child’s parents have fulfilled or failed to fulfil their obligations to maintain the child
There is no dispute that the Father pays child support for X. This is in addition to his considerable expenditure on travel and accommodation for the purpose of spending time with X. The Mother alleged that the child support payments made by the Father are sporadic and that he refuses to pay for anything for X outside the mandatory child support payments. The Mother also alleged that the Father under declares his income, which affects his child support payments, and that he deregistered his former business upon receipt of an increased child support assessment. Her evidence in this regard was unchallenged. The parties are engaged in a dispute in the Administrative Appeals Tribunal relating to the Father’s unsuccessful review of a decision to fix his income at a higher amount than his declared income.
The likely effect of a change in the child’s circumstances, including the likely effect of a separation from a parent or other significant persons in her life
Neither party’s proposal would involve any significant change in X’s circumstances. Both parties’ proposals involve some limited periods of separation from the Mother, which the evidence suggests may be difficult for X, at least initially, and this needs to be weighed against the benefit to her of her relationship with her father being facilitated and enhanced.
The practical difficulty and expense of the child spending time with a parent and whether this will substantially affect her right to maintain personal relations and direct contact with both parents on a regular basis
This is a significant factor in the present case. In circumstances in which X resides in a different state from her father, there is significant difficulty and expense associated with maintaining frequent time between them. This difficulty operates as a significant constraint on the options available to the parties and the Court in crafting parenting arrangements for X and has had a considerable impact on her ability to develop a secure and meaningful relationship with her father to date.
The capacity of the child’s parents and any other significant person to provide for her needs, including her emotional and intellectual needs
There is no dispute that both parties are capable of providing for X’s physical needs. On both parties’ proposals it will be the Mother who undertakes the vast majority of care in relation to X’s intellectual needs, and there is no dispute that she has the capacity to do so. The capacity of each of X’s parents to provide for her emotional needs is a matter of contention.
The Mother’s case is that the Father lacks understanding and insight into X’s emotional needs and that his proposal would push X into a situation with which she is uncomfortable in a manner which would jeopardise her emotional wellbeing. The Father has demonstrated a capacity to acknowledge X’s need for a gradual build up of her time with him and away from her primary carer. His commitment in this regard has included frequent travel to Adelaide at significant expense, and, when X was very young, visits taking place in the residence in which the Mother resided with her parents, which must have been an uncomfortable experience for the Father. However, the evidence does indicate some areas in which the Father’s insight and attunement to X’s emotional needs are not optimal, as outlined earlier in these reasons. As was submitted by Counsel for the Mother, there is a need for the Father to address the concerns that have been raised with respect to his relationship with X and find a way to engage with her on an emotional level.
The Father also alleged that there are concerns with respect to the Mother’s capacity to provide for X’s emotional needs. In particular, he alleged the Mother undermines and fails to facilitate his relationship with X, is overly restrictive in relation to his time with her and engages in ‘dangerous tactics’ to try to ‘alienate’ X from him. He further alleged that X has been trained by her mother to say things that she does not understand and trained not to tell her father that she loves him. If true, this would demonstrate a failure to meet X’s emotional needs.
However, the evidence before the Court does not support such a finding. There is no evidence other than the Father’s bald assertion to suggest that the Mother undermines his relationship with X. Indeed, the evidence suggests that the opposite is true. For example, the evidence reveals that the Mother facilitated the Father spending frequent time with X at the residence she shares with her parents notwithstanding her discomfort being in his presence and the family violence she had experienced. It was put to the Mother in cross-examination that she had dictated the times during which the Father had been able to see X in the months following her birth. She denied having dictated and said that the parties had discussed it together, having regard to X’s routine, including her breastfeeding routine. This evidence was credible and I accept it. I also accept that the Father would likely have felt that he had little say in the matter, but this is likely to have been a result of X’s needs as a newborn baby and is not indicative of an overly restrictive approach taken by the Mother.
The evidence also reveals that an increase in the time spent between X and the Father in line with the recommendations in the family report and beyond the time provided for in the current orders was implemented at the Mother’s instigation in July 2022. This demonstrates a willingness to facilitate their relationship. Messages relied upon by the Father demonstrate that the Mother communicates with him in an attempt to ease X’s anxiety, make their time together enjoyable for her and make her feel safe in her Father’s care, as well as encouraging the Father to consider X’s perspective and the impact on her of the significant breaks in their relationship.[9] These communications are child focused and suggest that the Mother is seeking to facilitate, rather than undermine, the relationship between X and her father.
[9] Father’s Trial Affidavit, paragraphs [30]-[31]; [49]-[52].
The Father agreed under cross-examination that the Mother had not created any problems at handovers, had been polite and respectful and had not attempted to frustrate handovers in any way. He also agreed that both parties did their absolute best to ensure that however they felt about each other, X had no knowledge of that.
Ms F observed the Mother making numerous attempts to encourage X to enter and return to the observations with her father and reported that she had done her best to encourage her. She agreed under cross-examination that the Mother’s actions had not been consistent with those of a parent who was trying to be obstructive. She said that in her experience, a parent who was emotionally manipulative would likely have seized on the child’s resistance to being observed with the Father and used it as an opportunity to undermine the observation, but that the Mother in this case had not only encouraged X to return but had succeeded in doing so. Ms F said that she had not gained the impression that the Mother was not supporting the relationship between X and her father, despite having looked for it. Ms F agreed with the proposition that the Mother’s conduct since X’s birth had demonstrated a commitment to developing a relationship with her father.

It is true that the Mother has not always agreed to the Father’s proposals for time with X, but I accept her evidence that this was out of genuine concern for X’s safety and wellbeing, including concerns about the Father’s ability to respond appropriately if X became upset, rather than any desire to undermine their relationship. The Mother’s approach in this regard must be considered in light of the fact that there is no allegation that she has failed to comply with any order of the Court providing for time between X and the Father and the fact that she has agreed to progressions in their time together upon being assured that X would be safe. An example of this is her proposal to increase the time between X and the Father in July 2022. The Father deposed that the Mother ‘has not and will not comply past orders that were made’. When considered in light of the undisputed fact that the Father had, from July 2022 until the date of trial, including that the time his affidavit was sworn, consistently been spending greater amounts of time with X than provided for in the orders of the Court, this evidence was plainly false. It did the Father’s credibility no favours.
The Mother’s evidence, given under cross-examination, was that she and her family speak positively to X about the Father and that she had done her best to facilitate the relationship between them. Although she had difficulty identifying positive attributes of the Father in the witness box, she drew a clear distinction between how she talks to X about her father and the way she and members of her family feel about him and have described him for the purpose of the proceedings. The Mother’s evidence in this regard was credible and was consistent with the observations of Ms F as to her child focus and emotional attunement. Although she acknowledged that an emotionally attuned child such as X might pick up on negativity towards her father in the Mother’s household, Ms F’s evidence was also that it is one thing not to have a positive view, but it is how it is actually translated to the child and whether the information is provided to the child that is important. As Counsel for the Mother submitted, although the Mother answered honestly that she does not like the Father because he has hurt her, throughout her cross-examination, she exhibited no hostility towards him and gave no reason for concern that she would be unable to disguise her feelings in X’s presence. There was no suggestion in Ms F’s report or in her evidence that X had done or said anything to suggest that she had received any negative messages, spoken or otherwise, about her father from her mother.
The Father gave no evidence of having heard the Mother denigrating him to X or of X having reported denigration to him. The Father’s belief that the Mother has attempted to ‘alienate’ X from him can only have come from his observations of X’s behaviour towards him, but this is difficult to reconcile with his evidence that their interactions are overwhelmingly positive and that X freely expresses her love for him.
Counsel for the Father put to Ms F that the Mother’s inability to identify positive attributes of the Father in the witness box, together with the criticisms she made of him in her affidavit material, did not sit well with her assertion that she seeks to promote the relationship. Ms F responded that in her view, the Mother’s affidavit was measured, in that she had provided illustrations and examples to support her concerns, and that the examples she had given supported her view that the Father’s parenting was not emotionally attuned to the child’s experiences and explained why the child was returning with mixed feelings or feeling quite stressed. This accords with my own impression of the Mother and her stated concerns. Ms F further opined that it might be stress-provoking for X to transition between an emotionally attuned parent, being the Mother, and someone who was ‘quite different’.
Counsel for the Father relied upon a series of emails sent by the Mother in late 2017 and early 2018 (prior to the commencement of the proceedings) to her obstetrician in Sydney, Dr J,[10] in which the Mother indicated that she and the Father had separated, that the Father was taking her to Court and attempting to prove she was an unfit parent, and was alleging that she had depression, anxiety and potentially a personality disorder. The Mother referred to the Father in the emails as a ‘pathological liar’ and asked Dr J to write a note of what she had observed in relation to the Father’s conduct including the ‘anti-depressant situation’. Counsel for the Father relied on the characterisation of the Father as a ‘pathological liar’ as representing a derogatory view held by the Mother, and emphasised that it was not accurate to say that the Father had taken the Mother to Court or that he had accused her to being an ‘unfit mother’. In my view, these emails do little more than add support to the Mother’s version of events in relation to the Father having attempted to paint her as having mental health difficulties when they attended the hospital mid-2017 and subsequently, her medical practitioners having expressed concern about his conduct, and her fear arising from her experience of this conduct as emotional abuse. When these emails were put to Ms F, she appeared uncertain of their connection to any impact on X. I am likewise unable to see the supposed link between these emails and any deficits in the Mother’s parenting.
[10] Exhibit F2.
The Father alleged that the Mother has often excluded him from information about X’s life. However, his own evidence was that when he enquired about swimming lessons and extra-curricular activities, the Mother reminded him that she had already informed him about swimming lessons and that she had told him about X’s involvement in hobbies and invited him to attend her concert but that he had not responded. The Father also acknowledged that the Mother told him that X would be commencing kindergarten and the days she would be attending. The messages relied upon by the Father demonstrate the Mother responding politely to his requests for information. The Father alleged that he frequently sends messages but communication from the Mother is ‘non-existent’. He tendered no evidence of any messages to which he did not receive a response. By contrast, the Mother annexed to her affidavits numerous messages sent by her about X’s life to which the Father had not responded.[11]
[11] Mother’s Trial Affidavit, annexure -17; Mother’s Affidavit in Reply, annexure A.
The Father alleged that X had informed him that she had received dental treatment following a head clash with another child and that the Mother had ‘mentioned nothing to [him] about this.’ The Mother produced a message she had sent to the Father informing him of the incident, its impact on X, the fact that she had been taken to the dentist, and the recommendations from the dentist.[12] The Father’s evidence in relation to this incident was plainly untruthful. Furthermore, notwithstanding the extensive evidence before the Court, much of it the Father’s own evidence, demonstrating examples of the Mother informing him of information about X, the Father alleged that aside from a single message he received from the Mother about X losing a tooth, ‘there hasn’t been any other surrendering of information’. This evidence was also plainly untrue. The Father’s false complaints about the Mother in this respect reflect poorly on the Father as a witness and as a co-parent.
[12] Mother’s Affidavit in Reply, annexure F.
The Father alleged that the Mother had failed to inform him that X was attending daycare. The Mother’s evidence was that X did not attend daycare. The Father’s allegation was based on a comment from X (then aged 3) about the daughter of a friend of the Mother’s being her ‘best friend at daycare’. I accept the Mother’s evidence that X had attended playdates with the child to whom she referred but had not attended formal daycare.
The Father alleged that the Mother is present for X’s FaceTime calls with him and appears to encourage X to hang up quickly. The Mother asserted that the reasons for X’s limited attention span during Facetime calls are her age and the Father’s lack of engagement in topics of conversation that are meaningful to her. The Mother relied on text messages demonstrating that she offered to record the Facetime calls after the Father had alleged that she was failing to facilitate them and the Father refused and ignored her request to explain why.[13] She also relied on numerous messages in which she has readily agreed to facilitate extra Facetime communication between X and the Father.[14] Under cross-examination, the Father insisted that children of X’s age were capable of sitting down and having long meaningful conversations via electronic means. This suggested a lack of understanding as to what could reasonably be expected of a child of X’s age. X herself expressed reluctance to engage in the FaceTime calls to Ms F. I accept the Mother’s evidence in relation to the Facetime calls and note that it is consistent with the observations of the Father’s interactions with X as outlined in the family report.
[13] Mother’s Affidavit in Reply, annexure B.
[14] Mother’s Affidavit in Reply, annexure C.
The Father is critical of the Mother for having agreed to increase his time with X from the time provided for in the interim orders to the time recommended in the family report in the hope that it would foster goodwill and facilitate a resolution to their dispute. He alleged that this demonstrates that the Mother was ‘using [the] child as means of getting what she want[s] without actually [having] regard for the child.’ This perspective fails to appreciate that both compromising and resolving the dispute are themselves child focused aims, and it is to the Mother’s credit that she agreed to time over and above that provided for in the orders upon receiving expert guidance suggesting that the increase would be in X’s best interests, despite her own hesitance. This complaint reflects poorly on the Father, not on the Mother.
The Mother was cross-examined at length about events surrounding X’s third birthday in 2020. It is not in dispute that the Father had planned to travel to Adelaide to see X for the first time in approximately 8 months following relaxation of the state border restrictions, and that the Mother indicated to the Father just prior to X’s birthday that she was unwell and that as a result, the planned time would not be able to proceed. The Mother provided the Father with a medical certificate. The Father alleged that having told him that X was unwell, the Mother then held a birthday party for X. He relied on a photograph of the event in question.[15] In the witness box, the Father gave evidence that the photograph had been taken by a private investigator engaged by him. The Mother denied that there was a birthday party held for X. Her evidence was that X was ill and she had had to cancel X’s birthday party as a result, leaving X very disappointed. The Mother deposed that some family members were present at the home and she arranged for two teachers from X’s school to attend the front of her home dressed as characters from a children’s film and sing to X in an effort to cheer her up. The Father acknowledged that the Mother sent him a text message on the day informing him that X had a respiratory virus but had tested negative for COVID-19 and as a result some family members would be coming over.[16] He identified the persons in the photograph, other than X and the school dress up characters, as being the Mother’s sister and parents.
[15] Exhibit F1.
[16] Father’s Trial Affidavit, paragraph [25].
Counsel for the Father submitted that the Mother’s evidence under cross-examination had been that the visitors had been singing to X through the window, and that this was contradicted by the photographs taken on behalf of the Father. However, that was not the Mother’s evidence. At no point did she say that X had watched through the window. Under cross-examination, the Mother explained that the teachers had come to the front of the house for approximately five minutes, but she did not say that X had stayed inside the house. Indeed, the Mother’s trial affidavit confirms that X ‘went back inside’ after enjoying the short performance.[17] The Mother’s evidence was entirely consistent with the photograph relied upon by the Father. The evidence in relation to this issue does not support the Father’s allegation. It was put to the Mother that was quite a coincidence that the private investigator just happened to be there when the short interaction with the teachers described by the Mother had occurred. However, there was no evidence before the Court as to the duration of time for which the private investigator was watching the Mother’s home. The Mother’s evidence was that the invasion of her privacy represented by the Father having taken or arranged for somebody to take photographs outside her house made her feel uncomfortable and unsafe. That reaction is reasonable and should have been foreseeable to the Father. His actions can have done nothing to improve the parties’ co-parenting relationship or trust or to promote X’s interests.
[17] At [126].
The Mother was invited to consider that the Father would have felt that he was shut out of X’s life when he had been unable to see her for her birthday weekend on the basis that she was sick, but then had seen a photograph depicting persons dressed up, together with the Mother’s sister, celebrating X’s birthday. The Mother responded that she had been in constant contact with the Father that weekend, including facilitating four Facetime calls, sending him a medical certificate, and sending him X’s test results. Copies of the medical certificate, test results, and timestamped photographs showing X appearing unwell and multiple thermometer readings showing temperatures between 37.7 and 38.2 were annexed to the Mother’s affidavit in reply.[18] The Mother’s evidence under cross-examination was that she did not consider it reasonable to send an unwell child with a high temperature out of the house to spend time with anybody, and particularly not in circumstances in which she had not seen the Father for approximately 7 months. This evidence was both credible and child-focused. As Counsel for the Mother submitted, the fact that X was out of bed and at the front of the house did not mean that she was not unwell. The Father’s focus on his own feelings rather than X’s health and wellbeing does not reflect well on his ability to put her needs ahead of his own.
[18] Mother’s Trial Affidavit, annexure -11.
The Mother was asked under cross-examination whether X had a photograph of her father in her bedroom. She responded that she did not. When it was put to her that the Father had given X a framed photograph of the two of them together, she agreed that X had received the photograph and said that she had put it away in a box with other sentimental items for X to keep. Ms F agreed under cross-examination that displaying the photograph would have been helpful in promoting the relationship between X and the Father and that it did raise a question about the Mother’s support of the relationship, but pointed out that while this was one way to support the relationship, it was not the only way. It is certainly true that displaying a photograph of the Father in X’s bedroom would have sent a positive message to X about her relationship with him and her role in her life, and that this was an opportunity to promote that relationship, which the Mother did not take up. However, this incident must be considered in the context of the other efforts made by the Mother to facilitate the relationship and it does not, in and of itself, suggest that the Mother undermines or fails to facilitate the relationship.
I have regard to Ms F’s evidence that the monthly schedule of the visits and the breaks in time resulting from COVID-19 restrictions will have imposed limitations on the extent to which X could form a secure attachment to the Father. These are unfortunate circumstances for which the Father is not to blame, but equally, nor is the Mother. The Father’s assumption that the difficulties with X’s relationship with him must have been caused by the Mother is, in my view, overly simplistic.
I am not satisfied that the Mother lacks the capacity to provide for X’s emotional needs. To the contrary, I find that she is a capable and emotionally attuned parent.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and her parents and any relevant characteristics of the child
Both parties have Country G backgrounds. I am satisfied that X will enjoy the benefits of her Country G heritage irrespective of the parenting arrangements imposed by the Court.
A relevant characteristic of the child is her anxiety, as considered earlier in these reasons.
The attitude to the child, and to the responsibilities of parenthood demonstrated by each of the child’s parents
Each of the parents has demonstrated an exemplary attitude towards X and the responsibilities of parenthood. The evidence before the Court does not indicate that any of the identified difficulties in relation to the development of the relationship between X and her Father arise from a poor attitude towards X on his behalf. To the contrary, he has demonstrate a high level of commitment to his relationship with X and his role as her father, including, at times under difficult circumstances.
The Father’s case is that the Mother has demonstrated a poor attitude towards the responsibilities of parenthood to the extent that she has undermined his relationship with X. As outlined earlier in these reasons, I have not found that she has done so.
Any family violence involving the child or a member of the child’s family
The issue of family violence between the parties, particularly around the time of their separation, has been considered earlier in these reasons.
Whether it would be preferable to make the order that would be least likely to lead to further proceedings
Being engaged in an ongoing legal dispute can have done nothing to foster a positive and trusting coparenting relationship between the parties. The Mother’s unchallenged evidence was that the proceedings have been protracted and have caused her significant stress and expense. It is likely that further proceedings and the attendant conflict would be detrimental to X. It is important that the orders made for her now cater for her needs for as long as is possible, having regard to her young age at the time of the trial. Both parties’ proposals are designed to have application over the long term, which is to X’s benefit.
Any other fact or circumstance the court thinks is relevant
The Father did not allege in his trial affidavit that the Mother suffers mental health difficulties. However, the family report records that he claimed that she had experienced depression and anxiety during the marriage and that her anxiety had been a contributing factor in his limited time with X. The Mother alleged that the Father’s allegations in this regard were untruthful and malicious. She did acknowledge to Ms F that she had felt anxious in the context of her relationship with the Father. That is unsurprising in light of her experience of family violence, which I have found occurred. The Father’s allegations as to the Mother’s mental health are unsupported by any independent evidence. I do not accept that the Mother is suffering any mental illness.
It was evident from the manner in which the Mother gave her evidence that she feels anxious about the reports being made to her by X and the signs of anxiety exhibited by X. This is entirely understandable. The possibility that X may be picking up on anxiety felt by her mother and that this may be contributing to or causing her own anxiety is one plausible explanation for X’s resistance to time with the Father, particularly in light of the observations of Mr B as to X having exhibited anxiety only when her mother was nearby, and Ms F’s observation that X is likely sensitive to her mother’s concerns. However, Ms F’s carefully considered report suggests that the reality is significantly more nuanced than this, and that there are underlying issues in the relationship between X and her father and his capacity to engage with her in a meaningful fashion at play in the dynamic between them.

It was submitted on behalf of the Father that X’s lack of comfort in spending time with him and his lack of emotional connection to her have been caused by the limited amounts of time they have spent together and the impersonal environment in which that has taken place. I accept that that is likely to be at least a partial cause and note that it is partly a function of the distance between the Father’s residence and X’s.
However, it does not necessarily flow from this that a rapid increase in time is the solution, as it is necessary that any orders as to time deal sensitively with the reality that X experiences anxiety and discomfort with spending time with her Father and are commensurate with her ability to cope. Ms F emphasised that time should be increased in a manner that promotes the development of a secure attachment before overnight time commences. She observed that the Father’s evidence of X having become distressed in his care and asked to go home during a short visit on 1 January 2023 was a concern both in relation to the prospect of overnight time and in relation to the issue of time in Sydney. Ms F also agreed that there was a lot of work to be done for X to develop a secure attachment to her father.
Counsel for the Father submitted that on the Mother’s proposal, it would be a long time before time increased in any meaningful way and that by the time X would commence spending time in Sydney it would be too little, too late. I accept that this is one possibility. However, I am conscious of Ms F’s evidence that pushing X into more time too quickly could have even more detrimental consequences. It was submitted on behalf of the Mother that the evidence taken as a whole reveals that a cautious approach is warranted, both in relation to the commencement of overnight time and in relation to the commencement of time in Sydney, and that what was required was not to move things forward quickly but for the child to develop a sense of safety in her father’s care. I accept those submissions.
The Father also submits that there is no unacceptable risk in the child spending overnight time with him in Sydney. I accept that submission, but note that it does not follow axiomatically from a finding that there is no unacceptable risk associated with a particular arrangement that that arrangement will meet the best interests of a child. Counsel for the Father also submitted that the current structure, which involves three handovers to the Father across the one weekend each time X sees him could be unnecessarily increasing the number of anxiety provoking experiences for X. This suggestion was not put to Ms F, whose evidence was that considerable care was required in relation to the introduction of overnight time.
It was submitted on behalf of the Father (somewhat inconsistently with his insistence that his time with X is proceeding well) that the current arrangements are not working and it is therefore obvious that something needs to change. There are two difficulties with this submission. Firstly, both parties acknowledge that there have been times when X has transitioned easily to her father, and X reported to Ms F that she enjoyed her time with her father, notwithstanding her reports of anxiety. This could suggest that the slow and cautious arrangement that has been implemented to date is in fact working, and that X is adapting to it, albeit not at the pace the Father would prefer. Secondly, the evidence before the Court, including Ms F’s evidence, suggests that it is not necessarily the regime for time that needs to change in order for things to improve, but rather the nature of the interactions between the Father and X. In particular, Ms F’s evidence was that if X were pushed into overnight time or time in Sydney in the context of the anxiety she is presently exhibiting, it could be detrimental both in terms of her relationship with her father and with respect to her emotional wellbeing. I consider it likely that the Father’s proposal involves a build up of time at a rate and pace that is beyond X’s ability to cope.
I am conscious of the fact that the distance between the parties’ residences and the restrictions on the Father’s ability to spend time with X has, in addition to impacting upon the development of their relationship, limited the extent to which the Father has had the opportunity to acquire parenting skills, many of which are developed from the day to day experience of parenting. This is not a criticism of the Father, and I acknowledge that the only way he can address this is to spend more time engaged in parenting activities, but it does add to the need to take care when considered from X’s perspective.
The Mother’s evidence was that X has only ever spent one or two nights away from her, and this has been with her aunt (Ms C) and cousin, whom she sees twice per week and is close to. Ms C’s evidence was that X still requested her mother at times when in her care. The Mother deposed to a fear that introducing overnight time too quickly would cause X distress and a concern that the Father would not return X to her care if she became distressed. In light of what I have found to be the Father’s minimisation of X’s experience of anxiety, I share this concern. The Father acknowledged in his case outline, but notably not in his evidence, that overnight time and time in Sydney may be initially challenging for X.
It was submitted on behalf of the Father that X’s relationship with him should be fostered, supported, and developed as soon as possible, and that the only way for the relationship between X and her father to develop and improve is for them to spend consistent and significant time with him. I accept that submission but note that this must be done in a sensitive manner that takes account of X’s perspective and anxiety if the development of the relationship is to be successful and meet X’s best interests.
It was further submitted on behalf of the Father that the Mother’s sense of when X could and could not cope with transitions in her time with the Father was not a reliable indicator, given that the Mother had felt that X was unready for unsupervised time but the reports of Mr B had shown otherwise. A key difference in the current circumstances is that it is not only the Mother but also the expert, Ms F, who has provided guidance as to when it is likely that X will be ready for the introduction of overnight time and time in Sydney.
I note that the Mother’s proposal is that overnight time commence after X has completed her first year of school. Ms F’s report records that this is usually a taxing and overwhelming year for children in that they have multiple challenges and adjustments to navigate. When it was put to the Father that it might be sensible not to change the care arrangements while X was adapting to the commencement of school, being a significant change in her life, he responded ‘unless a change of circumstances helped her cope even better.’ This response suggested a lack of insight into the reality of X’s experience of her relationship with her father. I accept Ms F’s recommendation that it would be unwise to add another potentially overwhelming development into X’s life during her first year of school.
Counsel for the Father submitted, and I accept, that X seeing and spending time with the Father in his home environment could assist with developing their relationship. However, I am also mindful of the risk that imposing too many changes on X too quickly could be counterproductive. Ms F’s recommendation was that a cautious approach was warranted in relation to the commencement of time in Sydney. She emphasised that this must occur at a rate and pace that actually meets the child’s needs and warned that if it was a traumatic experience once, it would be incredibly hard to get her back there. She cautioned against trying to push the time further too quickly, which she said could result in X refusing to spend time with her father or could manifest in other ways, such as having a serious impact on her emotional or psychological development.
Counsel for the Father put to Ms F that the commencement of X’s time with the Father in Sydney could be assisted by positive reinforcement from the Mother accompanying X to Sydney, introducing her to the Father’s home and helping her settle in, such as by choosing furniture to set up her bedroom, and helping her to see ‘Dad’s world’ and the paternal family. The Father proposed that this occur at his expense. Ms F’s response was that this was a ‘great idea’ and that it would send a very good message to X that her mother was supporting the relationship in Sydney. She said that this would be beneficial as a beginning of the build up she had recommended towards time in Sydney when X was aged 8 and agreed that having context to her father including seeing him in his own home might assist X to feel more safe and secure around him. She indicated that this should ‘definitely not’ occur during X’s first year of school, but that it might be useful if, perhaps, from the 2023/2024 school holidays, every two or three months, the Mother travelled to Sydney with X for her time with the Father, with the remaining time taking place in Adelaide. She said, however, that this would be dependent on X’s experiences over the coming year.
The Mother’s evidence was that X has never been on an aeroplane and that she (the Mother) is hesitant about X travelling to Sydney. Under cross-examination, although she said that a trip to Sydney would not be positive for X at this point, as it would simply be adding an unfamiliar environment to an already anxiety-inducing experience, she agreed that when X was more comfortable with spending time with the Father, it would be a good idea for her to take X to Sydney to see the Father’s home and interact with his family.
When asked what the Mother’s position suggested about her support for the relationship, Ms F agreed with the Mother’s concern that it may be too much for X if this were to occur immediately, as it might send X a message that her mother was ignoring her current stress and ‘upping the ante’ and that it may not be appropriate for this step to occur now. Ms F also expressed concern about the impact of this proposal on the Mother’s anxiety and made it clear that she did not consider that the Mother experiencing anxiety around the relationship between X and the Father meant that the Mother was not supporting the relationship. She did agree, however, that it would be helpful for X if the Mother were to ‘sell it’ as an experience for X, make it an adventure, and encourage her to see it as a fun experience.
Counsel for the Father submitted that the Mother’s reluctance, which she described as ‘not having a bar of it’ gave cause to question the Mother’s commitment to supporting the relationship. I do not agree. The Mother’s response was significantly more nuanced than a blanket refusal and demonstrated that she considered the proposal from X’s perspective.
Counsel for the Mother submitted that the Mother should not be required to travel to Sydney to settle X into the Father’s care, and that if there was a strong attachment, she would not need to do so. That is undoubtedly accurate. However, I accept Ms F’s evidence that it would likely be to X’s benefit for the Mother to do so, and note in any event, that the Mother’s evidence was of a willingness to do so at a later time when X was more comfortable spending time with the Father.
I propose to order that prior to overnight time in Sydney commencing in accordance with the Mother’s proposal, there be a visit to Sydney during which X is accompanied by her mother and returns to the Mother’s care each night. This will enable X to experience her first trip to Sydney in a manner which minimises the likelihood of anxiety and allows her the comfort and familiarity of having her mother close by. It is hoped that this will assist with easing X into her time spent in Sydney and enable her to familiarise herself with the Father’s home environment in a manner which does not cause her unnecessary anxiety. Although it will not be provided for in the orders, it is to be hoped that the parents will cooperate to the extent of allowing the Mother to be involved in the introduction of X to the Father’s home environment in Sydney so as to support her in perceiving this to be a positive experience.
Ms F recommended that there be a measured increase in X’s time with her father that supports his relationship with her while not overly taxing the child. Although she had recommended in her report that overnight time start in mid-June, Ms F said under cross-examination that she would be concerned about overnight time commencing so soon in light of the child’s presentation as reported by the Mother, being evidence I have accepted as truthful. She expressed reservations about how X would cope and opined that pushing the child to do something because it met a parent’s needs was not necessarily in her best interests. Ms F acknowledged that the regime for monthly time at a hotel was limited, but suggested there were other means by which the Father could address this issue, such as getting involved in or taking a significant interest in the activities undertaken by X during the month in between visits, such as her sports, or attending school events.
The orders proposed by the Mother broadly reflect Ms F’s recommendations, as adapted in the witness box to depart from the initial recommendation that overnight time commence in mid-2023. The orders proposed by the Mother were put to Ms F during her cross-examination and she indicated that they were appropriate and child focused. Aside from the addition of a trip to Sydney with the Mother prior to the commencement of overnight time there, which I propose to order, I am satisfied that the orders proposed by the Mother are in X’s best interests and provide for X to have the benefit of both of her parents having a meaningful involvement in her life, to the maximum extent consistent with her best interests.
FAMILY VIOLENCE COUNSELLING
The Mother seeks an order requiring that the Father participate in family violence counselling, as recommended by Ms F. I have some doubt, having regard to the Full Court decision of Oberlin & Infeld,[19] as to the power of the Court to make a stand alone order of the type sought by the Mother in relation to family violence counselling, at least in the absence of ‘unique circumstances’. In any event, unless the Father is genuinely committed to engaging in such counselling, there is considerable doubt as to whether there would be any benefit derived from him doing so, and this limits the utility of an order compelling him to do so. In light of the finding that the Father does not represent an ongoing risk of subjecting or exposing X to family violence, I am not persuaded that X’s best interests require that the Father undertake the counselling proposed by the Mother.
[19] [2021] FamCAFC 66; (2021) FLC ¶94-017 at [51]-[52]; see also L & T [1999] FamCA 1699; (1999) FLC ¶92-875; Jacks & Samson [2008] FamCAFC 173; (2008) FLC ¶93-387.
CONSENT ORDERS
Aside from the issues of time and family violence counselling, the balance of the orders to be made will be made with the consent of both parties. Counsel for the Father confirmed the Father’s consent to the balance of the proposed orders contained in the minute of orders proposed by the Mother. This included his consent to the provisions relating to arrangements for handover, save to the extent that they referred to time periods which did not align with his proposals as to the time to be spent between himself and X. Counsel for the Father also confirmed that the only remaining order sought from his minute of proposed orders which was not otherwise catered for in the Mother’s minute was an order defining school holiday periods. An order to this effect, with the additional detail that the reference was to South Australian school holidays, will also be made by consent. Having regard to the considerations outlined above, I am satisfied that each of the orders consented to by the parties is in X’s best interests.
COSTS
The orders sought by the Mother included an order for costs. I indicated to Counsel for the parties during the trial, without objection, that no costs orders would be made contemporaneously with these reasons but that each party retained their right to bring an application for costs in proper form in accordance with rule 12.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 following delivery of these reasons should they consider it appropriate to do so.
CONCLUSION
For the reasons outlined above, I shall make orders as set out at the commencement of these reasons.

I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Parker.
Associate:
Dated: 15 March 2023

File number(s):	ADC 4750 of 2018
Judgment of:	JUDGE PARKER
Date of judgment:	15 March 2023
Catchwords:	FAMILY LAW – PARENTING – time between Father and child - where Mother and child reside in Adelaide and Father resides in Sydney – where child exhibits anxiety associated with time with Father – where family report writer recommends a cautious approach – time ordered in accordance with proposal for careful build up of overnight time and time in Sydney
Legislation:	Family Law Act 1975 (Cth), ss 4AB, 60B, 60CA, 60CC, 65DAA Evidence Act 1995 (Cth), s 140
Cases cited:	Doherty & Doherty [2016] FamCAFC 182 French & Fetala [2014] FamCAFC 57 Jacks & Samson [2008] FamCAFC 173; (2008) FLC ¶93-387 L & T [1999] FamCA 1699; (1999) FLC ¶92-875 Mazorski & Albright [2007] FamCA 52 McCall & Clark [2009] FamCAFC 92; (2009) FLC ¶93-405 Oberlin & Infeld [2021] FamCAFC 66; (2021) FLC ¶94-017 Sigley & Evor [2011] FamCAFC 22
Division:	Division 2 Family Law
Number of paragraphs:	150
Date of last submission/s:	16 February 2023
Date of hearing:	15 & 16 February 2023
Place:	Adelaide
Counsel for the Applicant:	Mr Bowler of Counsel
Solicitor for the Applicant:	Eastern Legal
Counsel for the Applicant:	Ms McMahon of Counsel
Solicitor for the Respondent:	Rita Thakur & Associates

ADC 4750 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS SANTEK Applicant
AND:	MR LISICA Respondent

ORDER MADE BY:	JUDGE PARKER
DATE OF ORDER:	15 MARCH 2023