Stenhouse & Stenhouse - [2023] FedCFamC2F 446

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stenhouse & Stenhouse [2023] FedCFamC2F 446

File number(s): CSC 265 of 2021

Judgment of: JUDGE COPE

Date of judgment: 21 April 2023

Catchwords: FAMILY LAW – Parenting – Relocation – Where the mother seeks to remain with the children in Melbourne –Father lives in City B and opposes relocation – Both children have diagnoses which require significant medical and allied health intervention – Where by agreement the mother and the children travelled to Melbourne from City B for medical treatment for the boys and unilaterally did not return – Family violence – Where the father admits his conduct, but fails to acknowledge that it amounts to family violence – Allegations of mother over-servicing the children’s medical needs – Where mother has on occasion excluded the father from medical matters – Where father struggles to accept the children’s special needs placing a high value on being “normal” – Orders made for sole parental – Mother permitted remain in Melbourne with children.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 65AA

Cases cited:
Fawkner & Kado [2020] FCCA 1535

Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 250

MRR v GR [2010] 240 CLR 461; [2010] HCA 4

Taylor & Barker (2007) FLC 93-345; [2007] FamCA 1246

Division: Division 2 Family Law

Number of paragraphs: 190

Date of hearing: 5, 6, 7, & 8 December 2022

Place: City B

Counsel for the Applicant: Ms Borrows of Counsel

Solicitor for the Applicant: D Lawyers

Counsel for the Respondent: Mr Fellows of Counsel

Solicitor for the Respondent: E Lawyers

Counsel for the Independent Children's Lawyer: Mr Eylander of Counsel

Solicitor for the Independent Children's Lawyer: F Lawyers
ORDERS

CSC 265 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR STENHOUSE

Applicant

AND:
MS STENHOUSE

Respondent

INDEPENDENT CHILDREN’s LAWYER

order made by:

JUDGE COPE

DATE OF ORDER:

21 April 2023

THE COURT ORDERS THAT:
1.The mother have sole parental responsibility for the children X born in 2016 and Y born in 2019 (“the children”).
2.The mother inform the father within 48 hours of any significant decision she makes in the exercise of her parental responsibility.
3.The children live with the mother in Melbourne.

In the event the father does not move to Melbourne
4.For a period of six (6) months from the date of these Orders, the father shall spend time with the children:
(a)During the school term once a month on a Saturday and a Sunday between the hours of 12.00 pm to 4.00 pm;
(b)During the short school holidays, for each of the first five (5) days of the short school holidays between the hours of 12.00 pm to 4.00 pm; and
(c)During the Christmas school holidays, on at least two (2) occasions for five (5) consecutive days between the hours of 8.00 am and 4.00 pm.
(d)During this six (6) month period, the mother will supply the father with food and drinks for the children and the father will not allow the children to drink or consume any food or drink not provided for by the mother.

5.For so long as it is required (which may exceed the initial six month period) by the children’s treating dietitian and/or allergist, the father shall keep an accurate food diary of the children’s food and medicine intake during the periods of time they spend with him and will provide the diary to the mother within 30 minutes of changeovers taking place.
6.During this six month period (or longer if the treating dietitian and/or allergist requires it), the father will (at his expense) work with the children’s treating dietitian and/or allergist to develop an understanding, and to keep himself informed of what foods the children can and cannot tolerate.
7.The father’s time with the children is conditional upon him, during any time the father spends with the children (including beyond the initial six month period), following all recommendations of the children’s treating practitioners; and it being the father’s responsibility to liaise with the treating practitioners as required (at his expense), and ensure that they inform him directly of any and all recommendations and changes to recommendations. To give effect to this order, both parents are at liberty to provide a copy of these court orders to any of the children's treating practitioners.
8.The mother will ensure the father is aware of any recommendations relating to the children’s care prior to the father spending time with the children including by sending him any reports, if provided, from the treating practitioners.
9.After a six (6) month period from the date of these Orders, the father’s time with the children shall increase to the following, for a further six (6) month period:
(a)During school terms, once a month on a Saturday and a Sunday from 8.00 am to 4.00 pm;
(b)For the first five (5) days of the short school holidays between the hours of 8.00 am and 4.00 pm;
(c)During the Christmas school holidays, on at least two (2) occasions for five (5)consecutive days between the hours of 8.00 am to 4.00 pm;

10.Thereafter, for a further six (6) month period the father’s time shall increase as follows:
(a)Once a month during the school term from Saturday at 8.00 am to Sunday at 4.00 pm (an overnight), with the father to inform the mother where the children will be staying, and with this order to apply for each occasion the father has overnight time with the children if such time is not at his residence.
(b)During the short school holidays, for the first five (5) days of the short school holidays which period shall include two (2) overnights and with the balance of the days being from 8.00 am to 4.00 pm;
(c)During the Christmas school holidays, on at least two (2) occasions for five (5) consecutive days which period shall include two (2) overnights and with the balance of the days being from 8.00 am to 4.00 pm;

11.Thereafter, for a further six (6) month period, the father’s time shall increase as follows:
(a)Once a month during the school term from Friday at 3.00 pm to Sunday at 4.00 pm;
(b)During the short school holidays, for the first five (5) days of the short school holidays which period shall include four (4) overnights with the children being returned to the mother at 4.00 pm on the fifth day;
(c)During the Christmas school holidays, on at least two (2) occasions for five (5) consecutive days which period shall include four (4) overnights with the children being returned to the mother at 4.00 pm on the fifth day.

12.Thereafter, the father’s time is as agreed in writing but failing agreement:
(a)Once a month during the school term from Friday at 3.00 pm to Sunday at 4.00 pm;
(b)During the short school holidays, for the first week;
(c)During the Christmas school holidays prior to the youngest child commencing grade 1, for a two (2) week block;
(d)During the Christmas school holidays, after the youngest child commences grade 1 the children will spend time with the father for the first half of the holidays in even numbered years and the second half in odd numbered years.

13.Prior to the commencement of order 12 (d), the father may spend time with the children in addition to any other time set out in these Orders, between the hours of 1.00 pm and 5.00 pm on Christmas Day and Boxing Day, each year.
14.The father will communicate with the children via video call two times per week on Monday and Thursday at 6.30 pm if the children have not spent time with the father that day.
15.The mother shall also facilitate video calls with the father on special days at 9.00 am (if the father is not already spending time with the children) or such other time as the parents agree in writing, on the children’s birthdays, the father’s birthday, Father’s Day, Christmas Day and also as requested by the children.

In the Event the father relocates to Melbourne.
16.In the event the father relocates to Melbourne, Orders 3 to 15 above apply but with the father’s time as set out at Orders 4(a), 9(a), 10(a), 11(a) and 12(a), being time during school terms, to be fortnightly instead of once per month.
17.In the event the father relocates to Melbourne the mother is restrained from relocating the children permanently from Melbourne without the written consent of the father.

Other Orders that apply regardless of where the father lives
18.The father will give the mother 30 days’ written notice of his intention to take up time with the children; and if such notice is given must inform the mother with at least 14 days’ notice (or as much notice as he can provide if he must cancel a visit last minute) if he is not able to take up any of the times set out in these Orders.
19.The mother must inform the father with as much notice as possible if the children cannot spend time with the father due to illness; and in that event, the mother shall offer the father time on another occasion.
20.Unless otherwise agreed between the parties in writing, changeovers shall occur at the Contact Centre nearest to the mother’s residence or, at the mother’s election, at the children’s day care centre, school, out of school care facility or other location nominated by the mother.
21.The father shall provide car seats and other safety equipment as advised by the children’s healthcare professionals. The mother is to inform the father in writing and keep him informed of any recommendations in this regard.
22.That the Mother and Father are restrained from: -
(a)Denigrating the other parent or members of their family to or in the presence or hearing of the children and each parent shall use their best endeavours to ensure that no third party denigrates the other parent or members of their family to or in the presence or hearing of the children and are to forthwith remove the children from the presence of any person doing so;
(b)Using any form of corporal punishment upon the children and must not permit any other person to do likewise;
(c)From consuming any illicit substances or alcohol in excess of the legal driving limit whilst the children are in their care; and
(d)Exposing the children to domestic violence or any criminal behaviour.

23.The parties shall communicate by way of email save for an emergency when they will communicate by text using WhatsApp.
24.Each party shall at all times keep the other party informed of their mobile telephone number and email address.
25.Each parent is to inform the other in relation to any medical issue concerning the children that arises whilst the children are in their care.
26.The mother is to inform the father and keep him updated (including providing him with any reports that she receives) in relation to the children’s treating practitioners (including allied health), the children’s progress, and recommendations for treatment.
27.These orders are an authority to the children’s treating practitioners, subject always to the discretion of that practitioner, to provide to the father (at his expense) any documents or information he requests in relation to the children’s medical treatment.
28.These orders are an authority to the children’s school, subject always to the discretion of the school, to provide to the father (at his expense) any documents or information he requests in relation to the children’s education.

Passport and International Travel
29.Upon request of either parent, the parents do all acts and things for the children to obtain and retain as current an Australian Passport for the children within fourteen (14) days of receiving a written request to do so from the other parent, with any passport application or renewal costs being borne equally by both parents.
30.The mother will hold the children’s passport, and will provide them to the father on request no later than seven (7) days prior to any overseas travel.
31.If either parent wishes to travel outside the Commonwealth of Australia with the children, the travelling parent will provide the non-travelling parent with:
(a)Written notice of intention to travel at least thirty (30) days prior to the intended date of travel;
(b)A copy of the confirmed flight tickets showing dates and times of departure and return;
(c)Suitable arrangements for health and travel insurance for the children; and
(d)Contact details for communication with the children including a phone number and address for each place the children will be staying.

32.That unless otherwise agreed in writing, such travel be limited to:
(a)School holiday periods only; and
(b)For a maximum of 14 consecutive nights; and
(c)On one occasion in any calendar year; and
(d)To countries (including transit countries where overnight stay and clearance through Immigration and Customs Control is required) who are signatories to the Hague Convention on the Civil Aspects of International Child Abduction; and
(e)To countries where the Australian Government Department of Foreign Affairs and Trade has not issued a Level 3 ‘Reconsider Your Need to Travel’ or Level 4 ‘Do Not Travel’ advice.

33.Within seven (7) days of the date of return of the children from any overseas travel with the father, the father shall return the children’s passports to the mother.
34.During periods when the children are not in Australia the non-travelling parent shall communicate with the children via video call once per week on Thursday with the call to be initiated by the travelling parent between 5.00 pm and 7.30 pm (local time for the children) or such other day and time as agreed by the parties in writing.

Procedural Orders
35.The Independent Children’s Lawyer be discharged 30 days from the date of this order or, in the event that an Appeal is filed, at the conclusion of that Appeal.
36.That otherwise all extant applications in relation to children’s matters stand dismissed and the children’s matter is removed from the list of active pending cases.

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

The Court is asked to determine the parenting arrangements for the children X born in 2016 and Y born in 2019 (“the children”). At the time of trial the children were six and three years old respectively.
The parties are the boys’ parents. The parties met in November 2012 and commenced living together in 2013. They married in 2014 and separated on 26 February 2021.
The parties were living in City B during their relationship. Both children have diagnoses which require significant medical and allied health intervention.
On 10 February 2021, by agreement the mother and the children travelled to Melbourne from City B for medical treatment for the boys. There is dispute as to how long they were to stay in Melbourne.
The parties have now separated and the father seeks the return of the boys to City B whilst the mother proposes that she and the boys remain living in Melbourne.
Current Living Arrangements
The children have lived with the mother in Victoria since 10 February 2021 when they travelled to Melbourne from City B for medical treatment. The father’s evidence is that this was intended for only 2 to 3 weeks whilst the mother gives evidence that it was for an undetermined period, being however long it took to assess and manage the children’s medical needs.
In accordance with orders made by consent on 14 April 2021, the children have continued to live with the mother in Melbourne. Initially, they spent supervised time with the father for two consecutive days for four hours each day no more than once a fortnight. They also had video calls four times each week. The mother’s address was also withheld from the father at that time.
In accordance with consent orders made on 3 December 2021 the boys were to spend unsupervised time with the father for up to six hours on consecutive days and thereafter time has been unsupervised.
The Children’s Health Issues
The children’s health issues are numerous. The mother’s trial affidavit details their long history of challenges, diagnosis and treatment. Affidavits were also filed from eight treating health providers for the boys as follows:
(a)Dr C - treating paediatrician for both children;
(b)Dr G - occupational therapist for both children;
(c)Ms H - physiotherapist for both children;
(d)Ms J - X’s behavioural therapist;
(e)Mr K – Y’s exercise physiologist;
(f)Ms L - X’s psychologist,
(g)Dr M - Y’s paediatric allergist/immunologist; and
(h)Ms N - paediatric dietitian for both children.
Dr O, psychiatrist, confirms diagnoses for X of autism spectrum disorder level two, and several medical conditions. Dr O recommends that X continues with ongoing therapies such as physiotherapy, occupational therapy and psychology.
The paediatric neurologist identifies that Y has neuro developmental concerns, language regression and several medical conditions with a family history of a medical disorder. He recommended that Y be referred to a developmental paediatrician for ongoing evaluation, continue with allied health support for at least a couple of years with a multidisciplinary team, including a speech therapist and occupational therapist, and referral to a neurosurgeon and to the genetic team at P Centre. Dr C expressed the opinion that there were improving motor delays and joint hypermobility, and that no further neurological reviews were required. There were no concerning MRI brain issues, but he confirmed that Y does have multiple food allergies and possible obstructive sleep apnoea.[1]
[1] Affidavit of Dr C filed 7 November 2022
Both boys are in receipt of NDIS packages.
Competing Proposals in Summary
The Father’s proposal
The father’s position changed just the day before trial. He now proposes equal shared parental responsibility for all matters, whereas he previously sought sole parental responsibility for medical matters. Failing that, if the mother has sole parental responsibility he seeks a consultation clause.
He seeks orders for the return of the children to City B and a build up over two years to a week about living arrangement. If the children stay in Melbourne with their mother, he proposes spending time with the children each third week in Melbourne and a build up to the full weekend and half school holidays.
The father agrees to the food diary and accepts the proposal of the Independent Children’s Lawyer (“ICL”) for the mother to provide the children’s food for the first six months.
The Mother’s proposal

The mother seeks final orders that the children live with her in Melbourne and spend day time only with the father for the first five days of each school holiday period and time on Christmas day and Boxing Day.
She also proposes FaceTime contact two times each week and on special days.
She proposes that she have sole parental responsibility and that she advise the father within 48 hours of any significant medical decision.
The Independent Children’s Lawyer (ICL)
The ICL supports orders for the mother to have sole parental responsibility and for the children to continue to live with the mother in Melbourne.
In the event that the father does not live in Melbourne, the ICL supports orders for a build-up of the father’s time from four hours, unsupervised, moving in six monthly increments, and resulting in the father spending time with the boys for one weekend each month, one week during the short school holidays, and for two or three weeks during the Christmas holidays dependent on the expert recommendation.
In the event that the parties live in the same town, then the ICL saw the weekend time as moving to fortnightly.
The Issues for Determination
The significant issues for determination are: -
(a)The living arrangements for the children, including consideration of whether the children live in City B or Melbourne; and
(b)Whether there should be orders for equal shared parental responsibility or sole parental responsibility to the mother.
In determining those matters I must consider and where appropriate make findings about a number of issues including:
(a)Did one or both of the parties commit acts of family violence;
(b)Does the mother in effect “over service” the children’s medical needs;
(c)Does the mother exclude the father from medical matters and/or has the father failed to inform himself about medical matters;
(d)Does the father minimise the children’s medical needs;
(e)If she remains the primary carer, is the mother capable of facilitating the children’s relationship with the father;
(f)Is the father capable of facilitating the children’s relationship with the mother;
(g)Can the children’s medical needs be adequately met in City B;
(h)What would be the impact on the children of moving back to City B and changing service providers.
THE EVIDENCE
I have read the parties’ Outlines of Case documents, material relied on and documents tendered. I have heard the cross examination and submissions and considered the evidence of each of the parties, their witnesses and the expert evidence in these proceedings.
Where I have made statements of fact or expressed a view, those are to be read as findings. Where I have made findings, those findings are clear on the face of these Reasons and have been made on the balance of probabilities as required by s 140 of the Evidence Act 1995 (Cth).
The Witnesses
The Father
The Father was a stubborn witness. At times he was argumentative; speaking over counsel and taking offense at the cross examination style. His evidence that he believes the mother was on a ten year plan and that his marriage was a sham from the start did him no credit.
It was clear however that he is a loving, indeed devoted, father. Unfortunately he is critical of the mother for (in his view) over servicing the children’s medical needs. Despite that, he conceded under cross examination that he had no issue with the treating medical and allied health reports about the services received by the children and the assessments made as to their progress. In fact, he repeatedly noted that Y’s need for speech therapy was not being met. In this respect his evidence made no sense, as he expressed the view that the mother was both over-servicing and under-servicing the children’s medical needs.
The father conceded that he has called the mother “nutty”, a “liar”, a “narcissist”, “full of shit”, a “manipulative nightmare”, an “absolute nutter”. He conceded that he has said that she suffers from Munchausen’s syndrome by proxy and has falsified documents. He further conceded that this name calling behaviour has occurred in conversations with Child Protection and with Ms J, X’s behavioural therapist, as recently as October 2022. He should be ashamed of himself.
He conceded that he sought counselling support from Ms Q for anger management, volatility and for violence and abuse. His evidence was, however, that the idea that he was abusive was implanted by the mother and that he had not, in his view, perpetrated family violence. His evidence was that the things he said and how he said them were about “frustration” and not about abuse. This is despite his concessions of verbal abuse and despite the evidence in Ms Q’s notes that she saw his conduct as domestically violent and was trying to educate him to accept that.
Whilst the father loves the children, for the following reasons it was also clear that he is lacking in insight:
(a)His insistence that he had not perpetrated family violence. This was despite conceding that the counselling records reflected that sessions were focused on that, including working towards gaining insight as to the impact of his conduct on the mother.
(b)His proposal as recently as November 2022 for an equal time arrangement to commence forthwith even though his own evidence was that it was not achievable at this time.
(c)The father apologised if the mother felt that she had been forced into having sex, and he apologised if she saw the way he spoke to her at times as family violence. He nonetheless, maintained his position that it was not family violence, and so the apology was meaningless.
(d)Despite the counselling with Ms Q and Mr R, he does not seem to understand that, regardless of his intentions, verbal abuse and belittling the mother amounts to family violence. The name-calling, which he concedes, could not be perceived other than as demeaning and belittling. These were not one off occurrences. There are repeated events over years, based upon the notes taken by Ms Q and the father’s own concessions. It falls well within the definition of family violence.
(e)When exploring why he had told people that the mother had Munchausen’s by proxy, he agreed there was no such diagnosis, but said it was “one of his thoughts” and not meant to be hurtful or abusive. I find that it is an incredibly hurtful and abusive thing to say – particularly to a parent of two high needs children with multiple diagnoses.
(f)His insistence that his calls with the boys must be for precisely 30 minutes. Where you are dealing with a six year old and a three year old, the fact that the average time is close to 30 minutes is impressive but he could not see that.
(g)His laughter and expressed view that the mother asking him to mow the lawn contraindicated family violence.
I accept that he wants to be a better father, but I also formed the view that the father was very determined to be perceived as normal. He wanted the court to accept that he doesn’t “rely” on the medication that he takes now, that it was not depression medication but rather anxiety medication, that he did not “rely” on treatment received when his grandmother died, that his dad didn't “rely” on drink and therefore wasn’t an alcoholic. He expressed the view on more than one occasion that it was “normal” for couples to argue, that what happened within the parties’ relationship in this case was normal. He gave evidence that “any person” would have struggled in the situation in which he found himself in – meaning the children’s diagnoses, the difficulties in his relationship and the diagnosis of a medical condition. The father gave evidence to the effect that “every child has some disability”. That said, however, under cross-examination he did accept the diagnoses and disabilities of the children.
It is normal for people to struggle in times of hardship and it is normal for people to obtain medication and counselling to address those issues. This court looks favourably on those who acknowledge and treat their mental and physical health issues. It is not, however, normal to belittle and demean your partner directly to her, or to others. I do not accept that the father’s words used to describe the mother should be described as frustration. I find that they constitute family violence.
It was an interesting juxtaposition of honesty and lack of insight - in admitting his conduct, but failing to acknowledge that it amounts to family violence.
I was puzzled by the father’s evidence that he would not apologise for his behaviour, despite the fact that he had already done so, to a limited extent, on two occasions whilst in the witness box. I was also puzzled by his description of his discussions with his counsellor as his “thoughts and feelings”, that it was the mother who thought of him as abusive, and counselling was his attempt to try and understand where his relationship was going wrong. He was very keen to say that both he and his wife were to blame.
Overall I formed the view that the father had very old fashioned notions of marriage, family and family violence and that he has gained no insight from his therapeutic work as to how completely unacceptable his behaviour towards the mother has been.
The Mother
I found the mother to be a difficult witness to assess. At times evasive and at other times open and detailed in her responses. Overall I am satisfied that she is an honest and reliable witness who is very child focused. I have no doubt that she has her challenges and can only commend her for seeking the appropriate supports at the appropriate times.
Under cross examination, the mother conceded that prior to the move to Melbourne in February 2021, the children had attended upon a number of medical and allied health service providers, including some that were based in Melbourne, and upon whom the children attended by Telehealth means.
The mother also conceded that several of the service providers that the children now see in Melbourne could continue to provide their services either via Telehealth or in person, noting that some services required only to see the children every 6 to 12 months whereas other services were much more regular. The mother also conceded that some of the current medical and allied health appointment take place via Telehealth.
The mother conceded having moved on several occasions since living in Melbourne. Initially she was in Airbnb for some 2 to 3 weeks, then in a Hotel for nearly a month, then in temporary housing in Suburb S from 23 March to July 2021. She then rented a home in Suburb T for 12 months and at the time of trial was still living in Suburb T, but in a different home under another 12 month lease. Her evidence is that if possible she would choose to continue to live in that home, however rental accommodation is not always fixed in availability or indeed cost.
Whilst there is evidence that these children struggle with change due to their various diagnoses, they have experienced a lot change - in the home environment, in their medical and allied treatment service providers, and indeed so far as X is concerned, the movement from day care to school and then a change of school as a consequence of bullying.
The mother gave evidence that NDIS provides funding for treatments, and also for core services. Her evidence, which I accept, is that the core services funding meets the cost of a cleaner, but she has also used some of the funding to enable the father to attend on Y’s Dietitian to ensure that he understood the importance and impact on Y when improper food choices were made.
The mother made sensible concessions, which encourages the court to accept her evidence, and these include:
(a)That she smacked X on one occasion;
(b)That she yelled at the father on two occasions in the presence of the children;
(c)That she was very unwell with postnatal depression after X’s birth;
(d)That at times she struggled to manage X’s behaviours;
(e)That the marriage had ups as well as downs;
(f)That she has shouted at X;
(g)That she had discussed these proceedings with the children, but gave evidence that this was no more than was absolutely necessary, giving an example of the father insisting on discussing overnight arrangements in the presence of the children on one occasion.
Ms U - Family Report Writer
The Family Report writer was a helpful witness. She gave insight into each party’s capacities and child focus. Her opinion was that the mother and children should remain in Melbourne citing protective factors around that position.
The Medical Evidence
The purpose of this evidence was to address whether the boys have genuine medical needs and whether those needs can only be met or can best be met in Melbourne.
The mother filed eight affidavits from medical and allied health professionals, three from her friends and one from the boys’ day care provider.
The mother’s medical and allied health evidence comes from a treating paediatrician, an occupational therapist, a physiotherapist, a behavioural therapist, an exercise physiologist, a psychologist, a paediatric allergist and a paediatric dietician.
That evidence was reviewed with the father during his cross examination and his evidence was positive about the work being done and the improvement in each boy.
Ms H was cross examined. She is a physiotherapist and assists Y with his treatment supported by an allied health assistant who is a qualified OT. In her opinion Y experiences developmental co-ordination disorder which is often missed and not properly treated by physiotherapists. Her evidence, which I accept, is that Y has made great progress under her treatment plan, moving percentiles, and that he is unlikely to get the treatment he needs elsewhere. I accept her evidence that Y does not engage well with new people and that it has taken the allied health assistant a long time to build a rapport with Y.
Mr K gave evidence that his programme has also greatly assisted Y. This witness is an exercise physiologist and psychologist. He spoke of the program that he had developed for Y and that this program was subject to minor changes on a monthly basis in order to reflect improvements and to continue to challenge Y’s neuro development. His program is applied by the mother at home with the therapy assistant who has been trained by him, and funded by NDIS. He said that for any third person to administer his program correctly, they would need to be trained by him face-to-face.
Mr K expressed the opinion that it would be quite an effort to maintain the program in the event that Y and X relocate to City B, due to the need for monthly changes to continue to support the progression. He considers that as Y gets older maturation would have an impact, but the intention of the therapy is to speed up the rate of development in excess of maturation.
The father’s medical evidence comes from Dr V, the children’s former paediatrician when they lived in City B and Dr W, psychologist. Both advise that similar services are available in City B, the majority in person and others via travel or Telehealth.
I accept the medical and allied health evidence.
Findings as to matters in dispute
There are a number of issues for determination which will assist me to determine the living arrangements that are in the best interests of these children.
Was it agreed that the mother and children would remain in Melbourne for only 2 – 3 weeks
I am of the view that I need not make a finding about this matter. I have no doubt that each party is sincere in their belief as to the agreement. It is not uncommon that people hear and believe what they want to hear and believe. What I must do is deal with the reality of the situation as it stands.
Did one or both of the parties commit acts of family violence
The Father
The letter from the father’s counsellor, Ms Q, confirms that he sought treatment in 2020 for anger management issues and spoke of his need for ongoing support without which her view was that there was “risk of returning to poor coping and mood dysregulation resulting in the risk of increased domestic violence behaviours and abuse within the family home”.
I am troubled about the father’s inability to change given the number of counselling session he had with Ms Q – I think some 22 sessions in all – and then having counselling with Mr R. Despite that work, he has continued to denigrate the mother and his evidence shows that he has not gained any insight as to what constitutes family violence or how inappropriate his language and verbal abuse has been.
It is also telling that Ms Q notified the mother’s lawyer of a possible troubling reaction from the father to having her notes subpoenaed. This is not lightly done by a treating therapist and is confined to cases where therapists are really troubled about risk factors.
For all those reasons I find that the father’s conduct constitutes family violence.
I also accept the mother’s evidence that she is fearful of the father.
The Mother
The mother conceded having raised her voice with X. She also conceded raising her voice to the father on two occasions, once in 2016, when she became distressed as the father was removing X. When speaking of the incident under cross examination, she became very distressed saying that she begged the father to bring the baby back. On the other occasion, she described an event where the father had been following her around, and she had asked him to go away and ended up yelling at him. She gave evidence, which I accept, that the father told her she was “psychotic” and described herself as terrified of him. I also accept her evidence that the father told her that if she left the relationship, he would take the children and the houses, and that she would never see the children again, and that she would have nothing.
The mother was cross examined about the incident on 19 March 2021. Her evidence about that event was consistent with her affidavit evidence. I accept her evidence that she did not delete any messages from the father; that she was at the police station on 18 March 2021 when those texts were sent by the father. That is supported by the date of the witness statement. Clearly emotions were running high on that date. I am of the view that neither party deliberately lied about those events, but rather their perceptions are coloured by their emotions.
The mother was taken through some of her therapeutic notes in an effort to establish that the relationship had good times. This was conceded. Her evidence was that she told the medical professionals that things were better than they were, as she was terrified that the children would be removed from her care. It was put to her that she lied to the health professionals, and her evidence was that she told them the children were safe. The mother concedes that she was struggling with her mental health at the time.
I am not troubled by evidence of the mother’s meltdown at Suburb AB shopping centre in 2016, noting that she had postnatal depression and obtained assistance to manage that.
I am satisfied that the mother’s inappropriate conduct was occasional, that it was in response to family violence perpetrated by the father and that she is not herself a perpetrator of family violence.
Corporal punishment
I accept that both parties concede having smacked X on one occasion. The mother alleges the father has smacked more often than he admits based on disclosures made to her by the children, and also what she witnessed during the relationship.
The mother’s description of the events that occurred in the shower when the father smacked X on the second occasion, was powerful and persuasive. She described the father shouting at X not to be a “pussy”, smacking his head, and then his head hitting the shower stall. The mother’s evidence was that she was present at the time, that X is a very anxious child, and that she was holding a dry cloth over his eyes to keep the soap from them. She acknowledged that X was flailing around. She conceded that it was not a hard hit from the father, but that X’s head had bounced off the glass. She was very clear that it was intentional, and not an accident as alleged by the father. I accept the mother’s evidence about those events.

In relation to her notification to child safety, the mother gave evidence of Y returning home after contact in a non-verbal state and crying. I accept her evidence that X told her that Y had been naughty, that he bit Daddy and daddy hit him and put him in timeout, and that X further said that the father was going to hit Y again but that he got in the way. Her evidence was that X also disclosed to his teacher at school. Her evidence was that she did not feel able to talk to the father because she was fearful of him. I accept the mother’s evidence about those disclosures made by X.
The mother also gave evidence of an event when they were still living in City B, where X pushed Y over and the father then smacked X on the head. Her evidence was that X has no emotional regulation, and Y has limited balance. On that occasion her evidence was that she advised the father that if he did it again, she would call child protection. She did not accept that it was a “mistake”, giving evidence that was what he always said.
I accept the mother’s evidence about those events.
Does the mother in effect “over service” the children’s medical needs
It is clear on the face of the medical and allied health evidence that the children both have high level special needs arising out of multiple diagnoses. I am satisfied that the mother is using her best endeavours to meet those needs and that she is in no way over servicing the children. Given the complexity of their needs, she is to be commended for the work that she has done.
Does the mother exclude the father from medical and other matters and/or has the father failed to inform himself about medical matters
The evidence is that the mother has at times excluded the father from medical matters. Firstly, by failing to allow him to be part of medical appointments and secondly by failing to list him as next of kin or as an authorised person.
The father’s evidence is that he did not receive an email from the mother that X was being bullied at school until the day of the transfer to another school. This was a serious matter indeed as X had attempted to leave the school grounds. I have no reason to doubt that evidence as the father has been honest about matters which are to his detriment in these proceedings. Likewise the mother acknowledged that she had not included the father originally but rather had waited to see if the matter could be resolved with the school. Again I have no reason to doubt her evidence.
The mother also gave evidence that on one occasion the father had been excluded from medical records on the advice of the service provider due to the family violence order. I accept her evidence that this was subsequently rectified and that she has otherwise ensured that the father has since been recorded as next of kin with all service providers, advised of all medical matters and has contact details of all service providers.
I accept that the father has chosen not to engage with all service providers, though he has engaged with some.
I also accept the mother’s evidence that the father is not always timely in his responses to her emails about child related matters.
Does the father minimise the children’s medical needs
The weight of the medical evidence is that the father does not involve himself in the medical issues. The notes of Ms J reflect that when the father did talk to her, his focus was more on his criticisms of the mother than on the children.
Whilst it is understandable that the father is deeply hurt that the mother has remained in Melbourne, if he wishes to have orders for equal parental responsibility regarding child matters he needs to understand their health issues and engage with the service providers.
On the one hand, the father accepted the reports from the experts and the positive things they had to say about the boys’ progress, but on the other hand, he gave evidence that he did not think the boys had progressed in the way that should have done.
The father conceded he had previously sought sole parental responsibility or control of the children’s health matters because he didn’t want them over serviced. His evidence was he did not know any other child who experienced the same degree of medical interventions as his children. This does not however acknowledge the complex diagnoses that these children must live with.
The mother’s evidence is that the father failed to routinely complete the food diary. He said that he did not always do so as he wanted to focus on the boys during their limited time together but that he always sent an email afterwards. He was adamant that he had not taken the boys to McDonald’s. Having heard both parties in the witness box I prefer the mother’s evidence about the illness experienced by Y on this occasion and the cause of it.
Moving to the current day however, the boys’ health and wellbeing is the area where the father shone in cross examination. His interest in and focus on his boys’ health and happiness was very apparent. I have no doubt that he would not intentionally undermine their health and wellbeing. However, the toxicity of his attitude towards the mother has undermined his common sense.
I was troubled that he had not been in contact with all of the service providers. His feedback was that he had no issue with what they were doing and in general spoke of their work with the boys in glowing terms. For example, he said that the psychologist Ms L doing a great job with X and he accepted that Dr M was a world famous expert in food intolerances.
What I am troubled about is the father’s focus on being “normal”. I am concerned that he himself does not understand his position - I certainly struggled. And I am worried about the impact on the boys if he is sending them a message that they must be normal, that they should be troubled or ashamed about their health issues.
When pressed under cross examination, the father’s evidence was that he accepted the need for these supports but felt that the mother was actively looking for issues to address. He conceded not agreeing to genetic testing as he did not know what the testing was for and felt that it was, in effect, a fishing expedition.
The mother has undertaken courses and counselling to educate herself about the children and their special needs. The father has done so to a lesser extent. I am of the view that the father has struggled to accept the boys’ diagnoses, but that he has now done so.
It is unfortunate that the father has not agreed to the genetic testing. The medical evidence is that the source of Y’s issues has not been identified. If that was possible it may very well impact positively on the services and supports he received and assist him to reach his full potential.
If she remains the primary carer, is the mother capable of facilitating the children’s relationship with their father
I accept the father’s evidence that reading the affidavit from the day care provider was the first time he became aware which day care the boys attended.
It is disappointing that the father did not know where the children attend day care. That said, I understand the mother’s reluctance given the father’s admitted proclivity to tell service providers that the mother is a nutter who suffers from Munchausen’s by proxy. That behaviour reflects poorly on the father and not the mother.
The father also said he was not on all medical and allied health service providers as next of kin and had issues talking to some of them. I accept the mother’s evidence that this has been rectified.
I saw the mother in the witness box and I accept that the abuse directed at her by the father has had a long term impact and accept that she excluded the father to protect herself from further abuse. I accept that the father’s abusive conduct is ongoing noting his denigration of the mother to Ms J and to child protective service in Victoria as recently as October 2022.
The mother concedes that she did not immediately advise the father about bullying at school in Melbourne. Her evidence was that she was hopeful the school and she could work together to fix it. Unfortunately that was not possible and ultimately a change of school was necessary due to X’s attempt to run away.
The mother was critical of the father’s parenting. Her evidence was that the father had fed Y food off his safe food list. She relied not only on what the children told her but Y’s illness which required consultation with the doctor.
Her evidence was also that the father had not administered the full asthma medication dosage, had taken the children out on a 40° day, and that when Y had vomited on himself, he had attempted to hide it from her rather than bring it to her attention. I accept the mother believes that the father did or failed to do these things. I also accept that with special needs children complete honesty is required to ensure that their needs are meet.
The mother remained willing to provide food when the children spent time with the father, her evidence was that she had been doing that, and nonetheless, Y was given food that he could not tolerate. Her evidence is that there is a list of only 36 foods that Y can eat. I accept her evidence about those matters.
I accept the mother’s evidence that she has taken positive steps to facilitate the children’s relationship with their father through:
(a)Providing to the father the names and contact details of the children’s treating therapists;
(b)Rectifying the case where she had not placed him as next of kin on medical advice;
(c)Creating access to a family album;
(d)Facilitating the boys passing craft and paintings to the father;
(e)Facilitating the boys providing gifts to the father;
(f)Facilitating phone communication three or four times each week, and for an average of 28 minutes on each occasion.
I am of the view that while on some levels the mother will struggle to facilitate the father’s relationship with the boys, I accept that she has nonetheless used and will continue to use her best endeavours to ensure a positive and meaningful relationship between them.
Is the father capable of facilitating the children’s relationship with their mother
Given the father’s ongoing abuse of the mother in conversations with the children’s treatment providers and protective services, I have real doubts about his ability to facilitate the boys’ relationship with the mother. The open contempt he has for the mother together with his lack of insight about the impact and nature of his abuse leaves me with a real concern that he would have no issue in making it clear to the boys what he thinks of their mother.
Can the children’s medical needs be adequately met in City B
It is apparent that prior to their move to City B the children were seeing a number of medical and allied health practitioners in City B. They also saw some of the Melbourne practitioners via telehealth.
Having heard that evidence I am satisfied that the majority of the children’s health needs could be met in City B. Although one or two providers, such as the neurological paediatrician, are not available in City B - those could be accessed through telehealth. The exception is Mr Ks’ services which are not available in City B, further noting his evidence that it was essential to change and challenge Y on a monthly basis to ensure continued progress.
A significant issue however is the challenges the boys will face if required to return to City B; with everything changing – home, schools and day cares and service providers. This is particularly so where both boys have challenges and X is resistant to change. It is also a further challenge that these parents have a toxic relationship where the father continues to denigrate the mother including to health professionals.
Whilst the boys have had multiple changes of home and X has changed school in Melbourne, this is within the context of a supportive home environment. If they returned to City B it would be against the mother’s wishes and which would increase the mother’s exposure to the father’s abusive behaviour and no doubt cause her distress.
What would be the impact on the children of moving back to City B and changing service providers
I accept the expert advice about the children’s resistance to change and can only conjecture that there may be challenges in a return to City B.
The father’s level of insight
The Family Report writer questioned the father’s level of insight – as do I. This is due to his ongoing denigration of the mother and his failure to accept the impact on the mother of the verbal abuse he inflicted on her, despite the real efforts made by Ms Q.
I was troubled about his insistence on wanting things to be normal – “all couples argue”, “all kids have some disabilities”. On the one hand he accepted all the medical evidence under cross examination and was not critical of any service provider but still does not seem to understand how those disabilities impact on the boys.
I agree with the Family Report writer that the father was lacking insight about the boys’ disabilities. This is based on his repeated insistence on normality and the expressed view that the mother was in effect over focusing on the boys’ health when in fact the evidence of the treating practitioners is to the contrary.
He also lacks insight as to the impact of the verbal abuse and denigration that he has perpetrated. I agree with the Family Report writer that the psychological impact on the mother of that behaviour though unseen can be permanent.
It was particularly telling that the father was unable to give credit to the mother for the positive things she had done – the family album, gifts and pictures from the boys and indeed the calls three time a week for almost 30 minutes on most occasions. The latter alone is an incredible achievement with boys so young. Both parents are to be commended as much work must have gone into those calls.
THE LAW
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). I will be generally guided by s 60B which sets out the objects of Part VII of the Act and the principles underlying it.
When making parenting orders, s 60CA and s 65AA provide that the best interests of the child are the paramount consideration.
Section 60CC prescribes the various “best interests” considerations that the Court is obliged to consider in arriving at its determination.
Section 60CC(2) sets out the two primary considerations, described by Justice Brown in Mazorski & Albright (2007) 37 Fam LR 518 as “twin pillars”. I am required to give greater weight to the second of the primary considerations, being the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The “additional considerations” are set out in s 60CC(3) and I am required to consider all of those issues including parental capacity, the extent to which each parent has fulfilled their parental responsibilities cultural matters and family violence. I must also ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interest being treated as paramount (s 60CG). No greater weight is placed on any particular additional consideration.
In MRR v GR [2010] 240 CLR 461 on 3 March 2010, the High Court stated that s 65DAA(1)(a) and (b) and s 65DAA(2)(c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time.
A determination as a question of fact that it is in the child’s best interests and also reasonably practicable that equal time or significant and substantial time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order. It is only when both questions are answered positively that the court may make an order for equal time, or if not equal, significant and substantial time.
In determining the issue of potential relocation of a child, the Full Court in Taylor & Barker (2007) FLC 93-345 at [53], held:
When dealing with a case concerning the future living arrangements for a child, and involving a significant change in the geographical place where the child is to live, the preferred approach according to established principle has been not to deal with that change, or relocation, as a separate or discrete issue, but rather as just one of the proposals for the child’s future living arrangements, at least in so far as that approach is possible: see U v U (2002) 211 CLR 238; 191 ALR 289; 29 Fam LR 74; (2002) FLC 93-112; [2002] HCA 36 and Bolitho v Cohen (2005) 33 Fam LR 471; (2005) FLC 93-224; [2005] FamCA 458.
Over time a number of principles have been established to assist Judges when dealing with parenting matters when relocation is in issue. Judge McGuire (as he then was) usefully summarised those principles in Fawkner & Kado [2020] FCCA 1535 at [44].
APPLICATION OF THE LAW TO THIS MATTER
I now turn to consider the application of the law to the particular circumstances of this case based upon the evidence and the findings that I have made, the reasons I have outlined for those findings and how they determine which parenting Orders are in the best interests of the child.
S 60CC(2) THE PRIMARY CONSIDERATIONS:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
There is no dispute that these boys have a meaningful relationship with both parents and that this should continue.
I have made findings that the father has perpetrated family violence and that he lacks insight. I am troubled by the father’s conceded impulsivity and his reactiveness and the attendant risks to the boys emotional and physical well-being.
The mother identifies this as a risk case, and I agree that there are risks. Those risks are as a consequence of the father’s family violence, his lack of insight and his failures in relation to educating himself about the children’s medical needs.
S 60CC(3) THE ADDITIONAL CONSIDERATIONS:
S 60CC(3)(a) Any views expressed by the child and any factors that the Court thinks are relevant to the weight it should give to the child’s views
These are very young children. X, who was then six years old, spoke to the report writer of a wish to return to City B, but this is linked to the weather and his friends as well as his father. Regardless, at six years of age I am firmly of the view that he would be unable to assess what arrangements would be in his best interest and place no weight on his remarks.
S 60CC(3)(b) The nature of the relationship of the child with each of the child’s parents and other persons.
I have nothing to add.
S 60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major, long term issues in relation to the child; and to spend time with the child; and to communicate with the child.
The father had considered following the boys to Melbourne. He has however drawn back from that position and now says that he will not go. He cannot bring himself to relocate at the age of 45 years, with no job and no home to go to and only one person as a friend. I am not critical of that as it is his job to assess what he can manage.
The mother does not want to return to City B but I accept her evidence that she will do so if the court orders the boys to return.
S 60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
The father pays $256 per week in child support.
S 60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents.

If the children remain living in Melbourne, their current care arrangements will remain in place with the mother as the primary carer but with some increase in time with the father – the extent of which is in dispute.
The mother became distressed when talking of a possible relocation to City B.
The mother conceded under cross examination that she may need to move again. Her current rental agreement expires in July 2023. Her preference is to remain in her current home but pressures of the rental market and possible future employment may require a move. I accept that once Y is six years old, the parenting payments will cease, and the mother is likely to need employment. She may need to move to be closer to any employment opportunities.
A move by the mother to a location of her choice due to work commitments or housing needs is very different from a move to comply with court orders. The latter would require her to move interstate against her wishes.
S 60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent.
While the children are in Melbourne, the cost of travel for the father from City B to spend time with them is high. The cost is estimated at $375 per week which is contained in his Financial Statement. His evidence was that he spent days over his financial statement and was satisfied that it was a true reflection of his situation and that he could afford to travel to Melbourne every three weeks in the event that the children stay there. I accept that evidence.
The mother’s evidence is that she communicates with the father, sending weekly information about the children’s appointments. She described the communication as difficult and challenging. Her evidence was that the father twisted whatever she says and she sees that as him trying to make things more difficult for her. Her evidence was that he does not respond to her emails or if he does so then he does at the last minute.
Her position was that she did not believe equal shared parental responsibility was in the boys’ best interest, but if ordered she would do her best to comply. I am satisfied that she would, indeed, as she has been compliant with court orders throughout.
S 60CC(3)(f) The capacity of each of the child’s parents to provide for the needs of the child, including emotional and intellectual needs.
The father has a diagnosis or indications of a medical condition. No submissions were made that this condition should be a consideration in making parenting orders at this time.
The mother extended an invitation to the father to view an online family album. He described it as the “only honest nicest thing she has done” and yet he did not accept it. His reasoning that he would prefer to see the boys in person is just cutting off his nose to spite his face. The father also conceded that the mother arranged for the boys to acknowledge special days with gifts and facilitated the boys giving their father artwork and craft projects. He conceded that she provided him with an iPad when his phone was broken on Christmas Day.
As noted earlier, I am satisfied that the mother has successfully managed to overcome her personal feelings due to the father’s abuse and that she encourages and facilitates the boys’ relationship with the father.
Having heard the mother’s evidence in relation to the children’s special needs and the impact on X of “masking” and coping at school, I am satisfied that she has a good understanding of their needs. I am also satisfied that she has taken steps to educate herself about the children’s needs as demonstrated in her affidavit. The father’s efforts to educate himself on the other hand have been significantly more limited.
I was left with the impression that regardless of his engagement with the experts, and his concessions in the witness box as to the boys’ medical needs, the father continues to have limited insight. This view is based upon the fact that the father has had extensive counselling about family violence, and in particular the impact on the mother, and despite this as recently as October 2022, he was still belittling, demeaning and denigrating the mother to third persons.
S 60CC(3)(g) The maturity, sex, lifestyle and background of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant.
I have already outlined the boys’ special needs in detail. I have nothing to add.
S 60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
I have nothing to add
S 60CC(3)(j) Any family violence involving the child or a member of the child’s family and s 60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order
I have already addressed and made findings about family violence.
On 10 August 2021 a one year family violence order was made in Victoria by consent without admissions. The mother was the aggrieved and the father the respondent. That order was subsequently extended to 8 August 2024.
S 60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
I am satisfied that these proceedings should be brought to an end. With their special needs the boys need certainty and finality.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant.
The findings I have made are the foundation upon which I have made my determination as to the boys’ best interests. In summary those findings are:
(a)The father is a perpetrator of family violence;
(b)The mother is not a perpetrator of family violence;
(c)The mother does not over-service the children but rather works hard to meet their complex needs;
(d)The mother has on rare occasions excluded the father from medical matters due to the family violence but has rectified that and no longer does so;
(e)The father struggles to accept the children’s special needs placing a high value on being “normal”;
(f)The mother will struggle to facilitate the children’s relationship with the father due to the family violence but has demonstrated that she can do so and I am satisfied that she will comply with orders;
(g)The father will struggle not to continue denigrating the mother and thus there is a risk that he will be unable to facilitate and encourage the boys’ relationship with her;
(h)The boys medical and allied health needs could be adequately met in City B;
(i)The boys will struggle with a move to City B because of their diagnoses and special needs, particularly noting that it will be against the wish of the primary carer and noting that X is resistant to change;
(j)The father is lacking in insight.
DETERMINATION
Parental Responsibility
In accordance with s 61DA(1), when making a parenting order the court must apply a presumption that it is in the best interests of children for the parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child, or family violence.
In this case, there is a family violence order in place. I have made findings that the father is lacking in insight, including as to what constitutes family violence, and that he has in fact perpetrated family violence against the mother. In those circumstances, the presumption does not apply so I turn to consider whether it would be in the boys’ best interest for it to apply.
The father is of the view equal shared parental responsibility could work, and gave evidence that he was “willing and able”. He expressed the view that both parties struggled with it, but he wanted to co-parent with the mother. He had to concede however that there was no evidence that they had been able to do so or that he had developed any insight. I am of the view that the father struggles with impulsivity - whilst he said he did not want to be at loggerheads with the mother he also spoke of things being said in “the heat of the moment”. Someone who is willing and able does not denigrate the other parent and certainly not to treating medical and allied health professionals. I do not accept that the father is willing and able to co-parent with the mother.
The father is clearly distressed, frustrated and angry about the mother’s refusal to return to City B. It is not the job of this court to right perceived wrongs, but rather to look at the totality of the evidence and to decide what is now in the best interests of these boys.
The father refused the genetic testing for Y because he was not told what they were testing for. On the evidence before the court, the father has not asked the purpose and the mother does not appear to have told him. I accept the mother’s evidence that at times the father did not respond to emails and at other times he responded at the last minute.
I accept that on one occasion, the mother enquired where the father was staying with the boys and the father told her it was none of her business. With a child who has autism, preparation for new people and environments can be a significant issue. Certainly, the evidence of the children’s treating therapists is to that effect.
On another occasion, the mother gave evidence of a typographical error as to the date she sought a reply from the father. Her evidence was that the content of the email, and the communication book made it clear that it was a typographical error but it still created an issue.
The mother’s evidence is that she would communicate with the father as required but expressed concern that her communication would be twisted, and that it was toxic and challenging to communicate with the father. Her evidence was to the effect that at times decisions needed to be made in a hurry, for example changes to X’s medication. I accept the mother’s evidence about those matters.
The father is a loving and informed parent who wants the very best for the boys but if the parents cannot communicate respectfully and positively then equal shared parental responsibility simply cannot work. The father says he is willing to communicate and co-parent but conceded under cross examination that there were no examples of them doing so. In fact the evidence is to the reverse.
The father needs to stop blaming the mother and criticising her to the treating specialists. Rather he should focus on the boys. He repeatedly said that he was willing but there is no evidence that he is in fact able.
I was impressed with the father when he was going through the medical evidence – he showed that he was capable of focusing on the boys and their needs. That is however very different to co-parenting with the mother.
The father’s proposal is for equal shared parental responsibility, the boys to return to live in City B and over a two year period build up to living between their parents on a week about basis. That is by the time Y is five years of age the father expects these two boys to be living on a week about basis. This may be something that would be appropriate for children who did not have significant disabilities, but I accept the opinion of the Family Report writer that it is not appropriate for these children, given their diagnoses. I am of the view that the father’s proposal confirms his lack of insight.
I am not persuaded that it would be in Y and X’s best interest for the parties to have equal shared parental responsibility for the following reasons:
(a)The father’s denigration of the mother to Victoria child services and Ms J in October 2022;
(b)The very existence of the family violence order;
(c)My acceptance that the mother is fearful of the father;
(d)The father’s concession that he has verbally abused the mother; and
(e)The father’s refusal to accept that as family violence and his insistence that it was not meant that way.
I am therefore of the view that it is in the boys best interests for the mother to have sole parental responsibility.
I have considered whether a consultation clause will be in the best interest of these boys. The mother is opposed, though, she is content to keep the father informed and for the father to be able to communicate with the medical professionals. This is quite the concession given what he said to Ms J.
Given the father’s conceded abusive conduct I do not propose to make the consultation clause.
Living arrangements
The Family Report writer indicated that a relocation would be an adjustment for these children regardless of whether it was back to City B or to another suburb in the Melbourne area. The evidence is that the boys have coped and adjusted to the initial relocation from City B to Melbourne, the change in homes and the change in schools and medical and service providers. But the evidence is that none of those changes have been easy and they have been managed with the whole hearted support of the mother.
The mother’s evidence is that she does not want to live in City B. She said that she has lost her friends in City B because of relationship issues with the father, and that the one friend she had in City B had been visited by the father demanding to know her plans. She described everything in City B as “tainted” and spoke of her hurt, the uncertainty about where she would live, and her ability to afford a rental.
One of the issues I was asked to consider in relation to a relocation back to City B was the impact on the mother given the family violence. The Family Report writer spoke of the possibility that the mother may not be able to give her full self to the boys and certainly the mother became very distressed in the witness box. She did however assure me that if the court made such an order that she would comply, and I am satisfied that she would use her best endeavours to do so. Given however the father’s lack of insight it is important that the mother be able to parent to the maximum of her potential.
The medical information is that X is resistant to change, so in the event that there was a move back to City B the Family Report writer supported a lead time and that the change of home and school did not start together. She also expressed the opinion that much would depend on the ability of the parents to sell it to X as a positive. She was of the view there would need to be parental co-operation. Based on the findings I have made I am doubtful that could be achieved.
The father conceded that his earlier proposal to leap straight to week about time was impractical but that it was what he ideally wanted. His evidence was that he was being realistic now seeking build up to equal time over two years.
All parties agree that the mother will initially provide food for Y to the father and that the father will maintain a food diary. The Family Report writer expressed the opinion that the father does not understand the impact on Y of not strictly complying. The father spoke sincerely about this issue under cross examination and I formed the view that he had developed some understanding of the issues faced by Y.
While the father expressed the opinion that he could build up a business that would allow him to spend significant time with the boys, I agree with the Family Report writer that building up a business to that stage can take a lot of hard work and there can be no guarantee that the father would be able to compartmentalise his work and spend time with the boys in the way he suggests. At the current time that is just a dream.
The mother describes X’s current school as excellent. She spoke of regular communications with the teacher and the benefit to X of being able to “piggyback” onto another child’s teacher’s aide. She gave evidence about the school being able to provide a safe space, fidget toys, and other benefits which meant that X has attended the new school every day. This was not the case at his previous school. She conceded that X says he still hates school but her view is that is more about separation from her than the school itself.
Submissions were made to the effect that the father had not offered the mother and children the option to move into the former matrimonial home, however her evidence was she did not want to live there in any event. The mother conceded, if it was ordered, she would return to City B for the sake of the children, but expressed the opinion that it would impact on her. At this point, the mother was very distressed and her evidence was that she was extremely fearful of the father. I accepted that evidence.
Whilst not agreeing with the Independent Children’s Lawyer’s proposals, the mother’s evidence is that an 8:00 am start/handover was impossible with two high needs children. Her evidence was she had enough difficulty getting them to school on time and that a 9:00 am time start was a more realistic proposal.
The mother’s proposal is that the father’s time with the children not extend beyond four hours. She does not believe that the father complies with Y’s dietary restrictions and further she believes that he continues to be physically abusive towards the boys.
While I am troubled about the father’s lack of insight, I am not satisfied that the risks he poses are to such a level that the children’s time should be limited in the way the mother proposes. I am of the view that the risks can be managed by the detailed orders and restraints proposed by the ICL.
To attempt to manage the risks through limiting contact to a few daytime hours only may create other issues for these children, and I struggle to see how a meaningful relationship could be maintained. I am simply of the view that it is not proportionate to limit time so severely to manage the particular risks of this case.
On the other hand, I am not of the view that a move towards an equal time arrangement is in the best interests of children who have multiple health diagnoses. They need consistent parenting and supports. Based on the findings I have made, I am of the view that the children’s best interests are best met by the mother and by remaining in Melbourne.
In the event that the father relocates to Melbourne then the orders proposed by the ICL will facilitate an increase in time but allow that stability to continue.
The father was content with the ICL’s proposal for orders other than those regarding parental responsibility – that is to keep the food diary, to only feed the boys what is recommended by the experts, to keep in touch with the boys treating dietician and allergist and that his time be conditional upon those matters. The father was also content to see a psychologist, if need be. That can only be to the benefit of the boys. I therefore propose to make orders in those terms
I do not accept that this is “experimenting” with the boys, as was suggested by counsel for the mother, to make orders as proposed by the ICL, but rather a reflection of my findings as to risks and the ability to manage those risks while facilitating a meaningful relationship.
For all those reasons I propose to make orders in terms proposed by the ICL that the children remain living with the mother in Melbourne but spend gradually increasing time with the father.
As regards the Christmas holiday block time, the ICL proposed a build-up of time but was uncertain whether that should culminate in a two or three week block. Given the young age of the boys, I propose that block time in the Christmas holidays follow the ICL’s plan then move to a two week block until the youngest child has settled into Grade 1, at which time a three week block will come into effect. This allows them time to become accustomed to increasing time away from their mother.
International Travel
The mother sought orders that she alone be able to travel internationally with the children. This was no doubt due to the limited time she proposed that the father have with the children.

Under cross examination, the father stated that he did not press orders for international travel if he was only to have five days with the boys. As orders are to be made that the father ultimately have half school holidays then international travel is no doubt on the cards as he has family in the UK. I therefore propose to make orders as sought by the father for international travel to be available to both parties.
Changeovers
The Family Report writer appeared alarmed at the idea of changeovers occurring at McDonald’s and supported handovers at a contact centre or from school or day care. I agree with the Family Report writer that any steps to reduce contact and therefore risk of confrontation is preferable.
I will therefore make orders in terms of those proposed by the ICL but with the change to a changeover centre rather than McDonald’s or at the mother’s election at day care or school/ after school care facility.
Video/ Phone Calls
The father proposed orders for communication on four occasions each week and at any reasonable time requested by the children. The mother and the ICL each proposed calls on two occasions each week plus special occasions.
The view of the Family Report writer was that greater frequency was required initially after the move to Melbourne due to Y’s young age, but that this could now be dropped to two or three times per week.
I accept the mother’s evidence that the father has been insistent on the calls occurring as per the order and insistent that they last for precisely 30 minutes, despite this not always being in the boys’ best interests. I therefore propose to make orders in terms of those sought by the ICL as to frequency and will not include a time frame. Sometimes the calls may last for an hour and on other occasions they may last only five minutes; that is simply the nature of talking to children via electronic means and the father must accept that. I also trust that if the father calls a few minutes early or later the mother will still facilitate the calls.
I have made findings as to the mother’s capacity to facilitate the relationship. I am satisfied that she will encourage the boys to talk to their father when he calls or when there is some event to share.
Other orders
There are a number of other orders proposed by the ICL which are non-contentious and which I propose to make.
In particular the non-denigration clause is vitally important given the father’s admitted history of denigrating the mother. If the father denigrates the mother to the boys then I have no doubt that there will be emotional and psychological harm caused to these already vulnerable children. For the record I note that denigration goes beyond the name calling which the father has conceded, and includes making faces, inappropriate hand gestures, failing to communicate, failing to respond to communication or communicating rudely. This restraint is necessary as the father’s abusive conduct must stop.
An order will not be made requiring the father to provide information to the mother about his health as there was no evidence that this is necessary at this time. Nor will the court make injunctions sought by the father where there is no evidence to support the need for same. I do not propose to make an order that the parties undertake further courses or counselling although if they choose to do so it can only be of benefit to the children.
CONCLUSION
Based on the findings and reasons set out above I am satisfied that the Orders that I now make are in the best interests of the children.

I certify that the preceding one hundred and ninety (190) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cope.
Associate:
Dated: 21 April 2023

File number(s):	CSC 265 of 2021
Judgment of:	JUDGE COPE
Date of judgment:	21 April 2023
Catchwords:	FAMILY LAW – Parenting – Relocation – Where the mother seeks to remain with the children in Melbourne –Father lives in City B and opposes relocation – Both children have diagnoses which require significant medical and allied health intervention – Where by agreement the mother and the children travelled to Melbourne from City B for medical treatment for the boys and unilaterally did not return – Family violence – Where the father admits his conduct, but fails to acknowledge that it amounts to family violence – Allegations of mother over-servicing the children’s medical needs – Where mother has on occasion excluded the father from medical matters – Where father struggles to accept the children’s special needs placing a high value on being “normal” – Orders made for sole parental – Mother permitted remain in Melbourne with children.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) Part VII ss 60B, 60CA, 60CC, 65AA
Cases cited:	Fawkner & Kado [2020] FCCA 1535 Mazorski & Albright (2007) 37 Fam LR 518; [2007] FamCA 250 MRR v GR [2010] 240 CLR 461; [2010] HCA 4 Taylor & Barker (2007) FLC 93-345; [2007] FamCA 1246
Division:	Division 2 Family Law
Number of paragraphs:	190
Date of hearing:	5, 6, 7, & 8 December 2022
Place:	City B
Counsel for the Applicant:	Ms Borrows of Counsel
Solicitor for the Applicant:	D Lawyers
Counsel for the Respondent:	Mr Fellows of Counsel
Solicitor for the Respondent:	E Lawyers
Counsel for the Independent Children's Lawyer:	Mr Eylander of Counsel
Solicitor for the Independent Children's Lawyer:	F Lawyers

CSC 265 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR STENHOUSE Applicant
AND:	MS STENHOUSE Respondent
INDEPENDENT CHILDREN’s LAWYER

order made by:	JUDGE COPE
DATE OF ORDER:	21 April 2023