Steyn & Garrety (No 3) - [2023] FedCFamC1F 617

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Steyn & Garrety (No 3) [2023] FedCFamC1F 617

File number(s): NCC 802 of 2013

Judgment of: HANNAM J

Date of judgment: 28 July 2023

Catchwords: FAMILY LAW – FINAL PARENTING – Best interest considerations – Consideration of risk of harm – Alienation – Where the parties have been in protracted litigation for 10 years – Where this is the third tranche of parenting proceedings – Where there have already been two changes in primary care arrangements – Where the children have been profoundly damaged by the proceedings – Where the children have been in the mother’s primary care since 2019 – Where the children have not spent any time with the father or his wife since 2022 – Where the father concedes that he and his wife engaged in alienation of the mother when the children lived with him – Where the single expert recommends that the children decide where they live – Consideration of whether it would be in the children’s best interests to determine their own parenting arrangements – Where the Court finds such an order places unreasonable burdens on the children – Consideration of whether it is possible for the children to derive a benefit from an arrangement in which they have a relationship with both parents – Consideration of whether ongoing harm is inevitable if the children spend time with both parents – Where the children are at risk of further exposure to the parents’ partisan conflict – Orders for the children to live with the mother and spend very limited supervised time with the father.

Legislation: Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61B, 61C(1), 61DA, 65D, 65DAC.

Cases cited:
Albert & Plowman [2020] FamCAFC 23

Donnell v Dovey (2010) FamCAFC 15

Fitzwater v Fitzwater (2019) 60 Fam LR 212

Goode & Goode (2006) FLC 93-286

Garrety & Steyn [2019] FamCAFC 124

Garrety & Steyn [2021] FamCA 67

Godfrey & Sanders [2007] FamCA 102

Isles & Nelissen [2022] FedFamC1A 97

Mazorski & Albright (2007) 37 Fam LR 518

McCall & Clark (2009) FLC 93-405

Steyn & Garrety [2019] FamCA 180

Steyn & Garrety [2019] FamCA 190

Division: Division 1 First Instance

Number of paragraphs: 370

Date of last submission/s: 9 March 2023

Date of hearing: 4-5 July; 17, 18 19, 21 October; 20-21 December 2022

Place: Parramatta

Counsel for the Applicant: Mr Roberts

Solicitor for the Applicant: Gillard Family Lawyers

Counsel for the Respondent: Ms Dart

Solicitor for the Respondent: Bainbridge Legal

Counsel for the Independent Children's Lawyer: Mr Havenstein

Solicitor for the Independent Children's Lawyer: Legal Aid Nsw
ORDERS

NCC 802 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR GARRETY

Applicant

AND:
MS STEYN

Respondent

INDEPENDENT CHILDREN'S LAWYER

order made by:

HANNAM J

DATE OF ORDER:

28 July 2023

THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
2.The mother has sole parental responsibility for the children, X born 2009 and Y, born 2011 (collectively “the children”).
3.The mother is to notify the father of any decision made in the exercise of her sole parental responsibility in writing within 7 days of such decision being made.
4.The children are to live with the mother.
5.Until the commencement of the holidays following the conclusion of term 4, 2025 the children are to have no time or communication with the father except as follows:
(a)During each school term and holiday period (being a maximum of 8 occasions per year), the mother is to cause the children to engage with their therapist, Ms AG, for the purpose of her assisting the children to prepare letters / cards to send to the father and his household should they chose to do so NOTING THAT appropriate photos, artwork and/or school work may be provided with such communications;
(b)Upon receipt of the above communication, the father is to schedule an appointment with Ms AG for the purpose of seeking her professional advice and guidance on how to respond to the children;
(c)Within 3 weeks of receipt of the above letter / card, the father is permitted to respond to this communication with input from his household, a response to be sent to the children via Ms AG;
(d)The father is permitted to send a single gift to the children for each of their respective birthdays and at Christmas conditional upon the children being able to retain these gifts in the mother’s household.

6.Commencing during the holiday period following the conclusion of term 1, 2026 the children shall spend time with the father as follows:
(a)For 1 day during each school holiday period for up to 8 hours on each occasion;
(b)Such time is supervised by AH Contact Service or should they not be available, such other professional supervision agency nominated by the mother;
(c)The cost of supervision is solely met by the father;
(d)The father is restrained from permitting his wife, Ms F, to be present at, or within the vicinity of, supervised visits, including changeover, unless the prior written consent of the mother has been obtained.

7.By no later than 1 February 2026, each parent is to contact AH Contact Service and thereafter do all acts and things required of them, including participating in any intake interviews, for the purpose of enabling supervised time as provided in these orders to commence.
8.Changeover for the children’s time with the father shall occur at a location agreed between the parties in consultation with the supervised contact service from time to time and in default of agreement, AJ Shopping Centre.
9.Changeover is to be facilitated by the contact supervisor to ensure that the parties do not come into direct contact with each other.
10.The parents are to do all acts and things to engage with Ms AG (“the Therapist”) for the purpose of addressing the matters outlined in the expert report of Dr AK, including those matters identified at paragraph 1338 therein.
11.The mother is to:
(a)Do all acts and things to encourage the children to attend upon the Therapist at such times and dates as is nominated by the Therapist;
(b)Ensure the children remain aware that the Therapist is available to them at any such time that the children may wish to engage.

12.In the event the Therapist requests or recommends the attendance or participation of maternal or paternal family or household members, the parties shall do all things reasonably necessary to request and facilitate such individual’s attendance and participation.
13.Each parent shall continue to engage with the Therapist and do all things reasonably necessary to encourage and facilitate the children’s engagement with the Therapist until such time as the Therapist recommends or directs that engagement may cease.
14.The mother shall give all consents, provide all documents and secure any further GP Mental Health Care Plans as requested by the Therapist from time to time, and shall do so in the manner and time frame requested by the Therapist.
15.The mother is to provide the Therapist with an irrevocable authority that will enable the therapist to contact the children’s school and/or any other expert engaged in relation to the children or either of them, should the Therapist consider such contact necessary or desirable.
16.In the event there are any fees payable to the Therapist after the application of any Medicare rebate and/or private health insurance:
(a)The father shall meet all fees associated with his appointments with the Therapist;
(b)The mother shall meet all fees associated with her appointments with the Therapist; and
(c)The father shall pay all fees associate with the children’s appointments with the Therapist.

17.Should Ms AG become unavailable to provide continued therapy to the family, the parties are to engage with such alternate therapists as nominated by the ICL following consultation with Ms AG.
18.The ICL has leave to provide to the Therapist a copy of these orders and the Reasons for Judgment in respect of these orders (“the Documents”) subject to the Therapist undertaking in writing prior to receipt:
(a)The Documents shall be securely and confidentially stored, including any hard copy or electronic copy and shall not be disseminated or made accessible to any third parties; and
(b)All copies of the Documents whether held in hard copy or electronic form including on any cloud or back up device or server shall be securely destroyed at the conclusion of the period of time the Therapist is required by any applicable law governing her professional practice to retain her professional records.

19.In the event the parties engage an alternative therapist pursuant to order 17 prior to the discharge of the appointment of the ICL, the ICL has leave to provide a copy of the Documents to the alternative therapist in accordance with order 18.
20.The mother has leave to provide to any medical practitioner, psychologist or psychiatrist engaged with respect to the children and/or herself, a copy of the expert report of Dr AK together with the Court’s Reasons for Judgment.
21.The ICL has leave to provide to the Single Expert Dr AK a copy of the Documents upon receiving Dr AK’s written undertaking that:
(a)The documents shall be securely and confidentially stored, including any hard copy or electronic copy and shall not be disseminated or made accessible to any third parties; and
(b)All copies of the documents whether held in hard copy or electronic form including on any cloud or back up device or server shall be securely destroyed at the conclusion of the period of time he is required by any applicable law governing his professional practice to retain his professional records.

22.Pursuant to s 68B of the Act, the father is restrained by injunction from:
(a)Contacting, approaching and/or communicating with the children by any means except as provided for by these orders or with the prior written consent of the mother;
(b)Causing, allowing, permitting, facilitating or acquiescing to Ms F having contact or communication with the children other than with the prior written consent of the mother;
(c)Attending any residence, school or extra-curricular activity of the children or either of them without the prior written invitation of the mother;
(d)Doing any act or thing to undermine the children’s placement and/or relationship with their mother and their sibling, J.

23.If the children or either of them contacts the father and/or the father reasonably suspects or otherwise becomes aware that there has been contact between the children (or either of them) and a member of his household except as permitted by these orders, the father is to immediately notify the mother and provide her a copy of any written communication received.
24.If the father reasonably suspects or otherwise becomes aware that there has been contact between the children (or either of them) and Ms F, the father is to immediately notify the mother and provide to her a copy of any written communication received.
25.The parents are restrained from:
(a)Denigrating the other parent or members of the other parent’s family or household to or in the presence or hearing of the children and shall remove;
(b)Denigrating the other parent or members of the other parent’s family or household on social media platforms, online forums or web pages including in the form of writing, images, memes or recordings;
(c)Allowing any third party to denigrate the other parent or members of the other parents’ family or household on their social media pages and for this purpose:
(i)Where such writing, image, meme or recording can be deleted or removed directly by the parent that they shall do so forthwith and within 2 hours of identifying such entry; and
(ii)Where such writing, image, meme or recording requires the assistance of an administrator of the relevant social media platform, the parent shall forthwith and within 2 hours of identifying such entry submit a request in the form required by the social media platform to seek the deletion or removal of the same;

(d)Publishing, posting or sharing any writing, image, meme or recording on social media platforms, online forums or web pages in relation to these proceedings including but not limited to allegations raised, evidence submitted or documents filed in, produced or prepared for the primary purpose of these proceedings;
(e)Providing to the children or otherwise causing to be held or stored in such manner that the children may have access to a copy of any legal correspondence or documents filed in, produced or prepared for the primary purpose of these proceedings;
(f)Discussing with or in the presence or hearing of the children these proceedings including but not limited to allegations raised, evidence submitted or documents filed in, produced or prepared for the primary purpose of these proceedings except for such minimal discussion as may be required to facilitate compliance with these orders (such as the timely attendance for court ordered appointments or attendance upon therapeutic practitioners);
(g)Requesting or encouraging the children to refer to either parent other than by ‘mum’ or ‘dad’ respectively or variations of such terms; and
(h)Requesting or encouraging the children to refer to any person other than the parents by ‘mum’ or ‘dad’ or variations or such terms.

26.The ICL has leave to provide to the Therapist, the Department of Communities and Justice and NSW Police a copy of:
(a)The expert report of Dr AK;
(b)A copy of these Orders;
(c)A copy of the Reasons for Judgment accompanying such orders.

27.Each parent shall comply with treatment recommendations issued by the children’s treating medical and allied health practitioners, including but not limited to doctors, counsellors, therapists, psychologists and psychiatrists in the manner and time frame directed or recommended and including but not limited to:
(a)Administering medications and facilitating the provision of therapies, equipment and tools;
(b)Attendance by the children and/or parent at appointments; and
(c)Pursuing any recommendations or referrals to engage with additional or alternative medical and allied health providers.

28.Each parent is authorised to obtain directly from the children’s schools at their own expense documents and information including school reports, newsletters, progress reports and school photo order forms.
29.In the event the school requires any consent, information or form is completed or provided in order to provide such documents and information in accordance with order 28, each parent shall immediately and within 48 hours provide such consent, information or complete such form.
30.The parents shall be restrained from attending at the children’s school whilst the children are present on school grounds, or attending at the location of school convened or facilitated activities unless:
(a)The children at that time live with or spend time with that parent pursuant to these orders; or
(b)With the prior written consent of the other parent.

31.The parents shall ensure that each of the children attend school for the duration of each day attendance is required of students by the school, unless absent due to:
(a)Illness substantiated by medical certificate or hospital attendance record;
(b)Attending court ordered appointments pursuant to these orders; or
(c)Attending medical or therapeutic appointments where such appointments are unable to be facilitated outside of school hours due to unavailability of appointments outside of school hours, and the parents are to do all things necessary to be placed on any available wait lists for appointments outside of school hours as soon as practicable.

32.Pursuant to s 11F of the Australian Passports Act 2005, the mother in her exercise of sole parental responsibility may obtain a passport for the children or either of them without the consent of the father being obtained.
33.Pursuant to section 65Y of the Family Law Act 1975 the mother is permitted to remove the children or either of them from the Commonwealth of Australia for the purposes of international travel for a period of up to 4 weeks each calendar year.
34.For the purposes of international travel pursuant to Order 33, the mother shall provide the father with the following:
(a)No less than 28 days written notice of her intention to travel;
(b)No less than 21 days prior to the departure date, copies of paid return tickets for the children or either of them;
(c)No less than 14 days prior to the date of departure, a detailed itinerary of the proposed travel including departure dates and return dates, destination of travel, flight numbers and method of travel, accommodation information including any address where the children will be staying abroad, emergency contact numbers and details of any other party travelling with the children.

35.The mother shall cause the children to be presented to the Parramatta Registry of the Federal Circuit and Family Court of Australia Division 1 on a date and time nominated by the Senior Court Child Expert for the purposes of the Independent Children’s Lawyer together with the Senior Court Child Expert or Court Child Expert explaining these orders to the children.
36.The Independent Children’s Lawyer’s appointment shall continue until 1 December 2023 for the sole purpose of nominating an alternative therapist in the event that Ms AG is unable or unwilling to continue to provide therapy to the family and/or the children.

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 Steyn & Garrety has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION

The parents (“the mother” and “the father”) of two girls aged 13 and 12 (“the children”) have been involved in highly acrimonious proceedings concerning the children’s parenting arrangements since 2013 when their five-year relationship came to an end.
The first tranche of litigation between the parents resolved following hearing by way of final orders made in 2014 (“the 2014 final orders”) which provided that the father have sole parental responsibility for the children and that the children live with him and spend defined time with the mother including during school holidays. Three years later in April 2017, in circumstances of severe conflict and animosity between the parents’ households, the mother sought to vary the 2014 final orders and instituted the second set of parenting proceedings. The mother’s main argument was that the parenting regime then in place was destructive for the children and causing a significant deterioration in the children’s relationships with her.

The second tranche of litigation resolved following a seven day final hearing with final orders made in March 2019 (“the 2019 final orders”) that effectively reversed the children’s parenting arrangements. Pursuant to those orders, the mother has sole parental responsibility for the children who live with her and spend defined time with the father. The father unsuccessfully appealed the 2019 final orders.
In March 2021 the father commenced the third and current tranche of proceedings seeking that the children’s primary care arrangements once again be reversed.
In May 2022 interim orders were made with the consent of the parties as recommended by the expert. Pursuant to these orders, the children’s time with the father is suspended and the father is restrained from having any contact with the children other than through letters sent with the guidance of a nominated therapist from whom the parents also agreed the children would receive therapy.
At present, there is no dispute between the parents that both children are profoundly emotionally disturbed by the significant level of conflict between the parents and the children’s chronic exposure to intensely partisan dynamics over the years. While both parents recognise that the children need relief from exposure to this dynamic, they cannot agree on the parenting arrangements that will best support and protect the children in accordance with their best interests.
The mother seeks orders that the children live with her and spend no time with the father until early 2026 and that during this period, the children communicate with the father only by way of letters with the involvement of a therapist. In 2026, the mother proposes that the children be reintroduced to the father through supervised time in a structured and gradual way. The mother remains opposed to the father’s wife being involved in the children’s lives as she contends that the father’s wife played an instrumental role in the breakdown of the relationships between herself and the children.
The father seeks orders in accordance with the recommendation of the expert which, if made will see the children continue to live with the mother and spend no time with him until the conclusion of term 4 in 2023. The father proposes that the children shortly attend upon the expert for the purpose of ascertaining where they wish to live and in the event they choose to live with him, he is to have sole parental responsibility for the children and they are to spend time with the mother during the school holidays. Alternatively, he seeks orders that would see the children immediately return to live with him and spend time with the mother in the school holidays.
At the conclusion of the final hearing, the Independent Children’s Lawyer (“ICL”) proposed that until the conclusion of term 4 in 2025, the mother have sole parental responsibility for the children and they live with her. The ICL proposes that the father be restrained from having any contact with the children during this time subject to the orders or unless agreed upon by the mother. The ICL proposes that from the commencement of 2026 the children shall live with, spend time and communicate with each parent in accordance with their wishes and the parent whom they chose to live with shall have sole parental responsibility for that child or children.
The question for me to determine is which of these alternate proposals is proper having regard to the children’s best interests as the paramount consideration.
BACKGROUND
The mother who is 41 and the father who is 46 formed a relationship in 2008 and commenced living together a short time later. Prior to their relationship, the mother had a previous partner with whom she shares a son (“the children’s half-brother”) who is now 16 years old and continues to live primarily with the mother.
In 2009 the parties’ first daughter (“the older child”) was born and their second daughter (“the younger child”) was born two years later in 2011.
The parents separated in 2013 and in the months that followed, the children lived with the father and spent regular weekend and holiday time with the mother, who had moved to live a significant distance away from the father’s home.
In around 2014 the father commenced a new relationship with a woman he later married (“the father’s wife”). The father and his wife have a daughter between them, who is now seven years old (“the children’s half-sister”). Also forming part of the father’s household is the father’s wife’s teenage daughter from a previous relationship (“the children’s step-sister”).[1] Both parents and their families live in regional areas outside metropolitan Sydney, a significant distance (of about five hours’ driving time) from one another.
[1] The father, his wife, the children’s half-sister and the children’s step-sister are collectively referred to as “the paternal family”.
Previous parenting proceedings
As noted earlier, there has been a protracted history of litigation between the parents following their separation.
The first set of parenting proceedings commenced by the father in 2013 proceeded to a defended hearing in December 2014. Final orders were made providing for the father to have sole parental responsibility for the children and for the children to live with him and spend time with the mother each alternate weekend until the older child commenced school and thereafter for up to five weekends in each school term and for some time during school holidays. Under the 2014 final orders, the children were to also have regular telephone contact with the mother.
There is no dispute between the parties that this initial parenting arrangement was fraught with difficulties and saw significant conflict and antagonism between the parents and their respective households. Changeover events in particular involved hostile interactions between the mother, the father and his wife, and at one point led to an Apprehended Violence Order (“AVO”) being sought by the father’s wife against the mother, which was ultimately dismissed following hearing.
On the father’s own evidence, when the children were in his care under the 2014 final orders, he and his wife engaged in a course of alienating the children against the mother which included “involving police and the Department of Family and Community Services [as it was then known (“the Department”)] unnecessarily”[2], and other alienating behaviours such as not correcting the children when they referred to the father’s wife as “mum”. For lengthy periods of time between 2014 and early 2017, the father also withheld the children from the mother and did not facilitate their time or communication with her pursuant to court orders.
[2] Father’s affidavit filed 13 October 2021, paragraph 5.
In response to the father’s non-compliance with court orders, the mother twice initiated contravention proceedings, initially in 2015 and later in March 2017, and most contraventions alleged by her were found proved. As a result of those contraventions, an order was made effectively restraining the father’s wife from being present at changeover, and the father was also ordered to enter into a bond to strictly comply with court orders and to be of good behaviour for a period of 12 months.
Despite the outcome of both contravention proceedings, the children’s time with the mother pursuant to the 2014 final orders still did not proceed without incident. In April 2017, the mother initiated the second set of parenting proceedings seeking effectively to reverse the children’s parenting arrangements in seeking orders that she have sole parental responsibility for children and that they live with her and spend defined time with the father.
In the course of the second set of parenting proceedings, the relationship and communication between the parents continued to deteriorate significantly. The children’s relationships with the mother and members of the extended maternal family also continued to erode. Quite apart from changeover events remaining difficult, each parent raised concerns about the children’s safety in the other parent’s care and the allegations were often reported to the Department or police authorities, with a number of welfare checks also being conducted on the children. One of the risk allegations made by the father at the time was that the children’s half-brother was acting in a sexually untoward manner towards either or both children. This allegation was never substantiated by the Department and was otherwise withdrawn by the father at a later stage.
By December 2017 the children were oppositional to transitioning from the paternal household into the mother’s care and began verbalising significant criticisms of the mother. More and more of their emotional vulnerabilities and distress as a result of the highly conflictual relationship between their parents also started to become evident.
The mother deposes that on at least two occasions between late 2017 and late 2018, the younger child in particular made statements to the effect that she wanted to “die” or harm herself. Due to these circumstances, and because the parties’ co-parenting relationship did not in any way improve, for many months prior to the second final hearing the mother ceased availing herself of the children’s time to provide the children (and herself) some respite from the toxic family situation.
When the final hearing in the second set of proceedings commenced in August 2018, the children were settled in the father’s care and were having minimal contact with the mother. The final hearing was adjourned and completed months later in January 2019 and final orders were ultimately made providing, in summary, the following:
·The mother hold sole parental responsibility for the children and the children live with her;
·The children initially spend no time with the father for a period of 10 weeks and thereafter spend gradually increasing time with him that was initially supervised until it reached an endpoint of one week in each of the shorter school holiday periods and three weeks during each long school holiday period;
·Changeovers occur at a contact centre and the father ensure that his wife is not present for any changeover;
·Following the 10-week period of no time with the father, and until each child starts high school, the children have telephone contact with the father every Sunday between 7.00 ‑ 7.30 pm; and
·Various restraints on each party including from denigrating the other party or any member of the other party’s household.
Reasons for Judgment relating to the 2019 final orders delivered in March 2019 (“the 2019 Judgment”)[3] were admitted into evidence in the current proceedings. A more comprehensive history of events between the parents, particularly relating to the negative attitudes each had fostered in their respective households and had displayed towards each other, is contained in the 2019 Judgment. It suffices to say, in summary that the trial judge made the following findings in being satisfied that a change in the children’s parenting arrangements, as sought by the mother at the time, was proper and in the children’s best interests:
[3] Exhibit 18; Steyn & Garrety [2019] FamCA 180.
212.The father together with his current wife has been unable to assist the children to enjoy a relationship with their mother. I conclude that part of the reason for that is that neither of them have understood their own contribution to the children’s distress and increasing rejection of their own mother. They themselves see the mother as an inadequate parent and a persistent nuisance. They are entitled to their views but to the extent to which the father and his wife believe that the children do not know about their negative views of the mother is a revelation of their lack of empathy for children who have been hiding how much they love their mother.
…
223.The children do need protection from psychological harm.
…
227.In the balance of risk the children are better protected living with the mother.
228.The evidence is overwhelming that both of the subject children are emotionally damaged by the conflict between their parents.
…
233.In this context of a poor, distrustful relationship between the two parents the children are stuck. Each of them has been the bearer of complaints about one parent to the other. Each of the parents has willingly and warmly accepted the truth of the statements at face value or if not, have acted as if they did accept it.
…
251.There will likely be a positive effect from the change in circumstances being an opportunity to restore the relationship with their mother who was their primary carer when they were very young children, up until March 2013. That result will take time.
…
257.A change of residence will also allow the children to expand and repair the relationship with their maternal grandparents who have been a constant presence in their lives when not deliberately excluded.
…
272.The father advised the Court that he believed an order for sole parental responsibility gave him the right to decide whether the children should spend time according to the orders or not. He was disabused of that belief, nevertheless he continued to breach orders and allowed his wife to continue to be present at changeovers despite the detailed clarification by the Court.
273.The father withdrew from electronic communication with the mother. He cut her off.
274.The father has not demonstrated an ability to understand the children’s feelings of love for their mother, nor their feelings of confusion and hurt over the competition between the mother and their step-mother.
275.Loyalty to the paternal family appears to have been required of the children at the cost of the natural love and affection for the maternal family.
…
282.The parties agree, and I have concluded, that to continue with the current orders is not only practicably impossible but destructive for the children. The recommendation of the single expert was that there be a change of residence and for the reasons above, I consider that is the appropriate course, despite the disruption of the life they have known for more than five years.
The father appealed the 2019 final orders but his appeal was dismissed in August 2019. Relevantly, it was reiterated by the Full Court in the Appeal Judgment[4] that in making the 2019 final orders, the primary judge ultimately considered that while both parents had behaved poorly over the years, the mother was “less blameworthy”[5] in this regard and there was more prospect of maintaining the children’s relationships with each parent in her care than there was in the father’s household.
[4] Garrety & Steyn [2019] FamCAFC 124 (‘Garrety’).
[5] Garrety at [80].
Events after the 2019 final orders
In the ensuing period following the making of the 2019 final orders, it appears to be common ground between the parents that their parental relationship was still marked with bitterness and the children’s supervised time with the father (at the conclusion of the 10-week period of no time) did not occur seamlessly. According to the mother, both children, but to a greater extent the younger child, remained emotionally unsettled and as a result the mother engaged various therapists for the children. The mother deposes to the younger child engaging in conduct such as acting erratically and violently and being verbally aggressive towards her or the maternal siblings.
There was one occasion in mid-2019 when the younger child was taken to hospital by an ambulance (“the 2019 hospital incident”). The mother says this occurred after a scheduled telephone call between the children and the father in which the paternal family members who were also present during the call had sung a song to the children to the effect of “[the paternal family] is the best”. The younger child is said to have become visibly upset and experienced “breathing difficulties and chest pains” after the call ended. The mother called an ambulance and this child was taken to hospital for examination. According to hospital records,[6] the mother relayed to hospital staff that the younger child experienced chest pain and was hyperventilating after the phone call with the paternal family and it is recorded that in the attending physician’s view such chest pain was likely “emotional/anxiety related”.
[6] Exhibit 14 – Emergency Department Hospital records.
As the children’s supervised time with the father at a contact centre progressed, the mother increasingly complained of defiant and disrespectful behaviours displayed by both children which made her concerned about their experience when spending time with the father and members of his household. Although the father asserts that the mother did not ever agree to the paternal family attending contact events, the mother gives evidence to the contrary deposing that there were various contact events commencing in July 2019 at which the paternal family members were present and which she insists resulted in a significant decline in the children’s behaviour.
Contact centre reports from June to October 2019[7] show that contact events were initially attended by the father alone and later included the paternal family. It is recorded that at those contact events attended by the paternal family, the children became increasingly upset and defiant when returning to the mother’s care and had begun acting negatively towards the mother including by being hostile and physically aggressive towards her.
[7] Exhibits 19 – Contact service records and Exhibit 20 – Contact service records.
The father maintains in his trial affidavit that the mother “excluded” members of the paternal family from being involved in the children’s lives and that this continued to be a theme for the balance of 2019 until early 2020. He says the mother did not allow any telephone contact between the children and the paternal family and would terminate the scheduled call when any members of his household became involved. The father further deposes that there was at least one occasion when he proposed that the children spend additional overnight time in his care and that the paternal family members also attend a school event at which the children were performing. The mother does not deny she was resistant to both these requests, but maintains that her concern arose from the concerning behaviours she says the children displayed following contact with the paternal family.
Despite her many qualms about the children’s wellbeing in this regard, in the school holiday period of October 2019 the mother facilitated the children’s holiday time with the father which was the first time they had spent unsupervised time in his care since the change in their parenting arrangements. The children were in the father’s care for one week and prior to their return to the mother the father wrote to the mother informing her that the younger child had reported previous suicidal ideation and a desire to remain living with him and his family.
When the father returned the children to the mother in October 2019 it is recorded in a contact centre report[8] that at changeover the children’s facial expressions were “downcast” and they did not separate easily from him. Both children were also reported as becoming highly defiant and aggressive towards the mother and did not leave the contact centre with her until police were called to intervene. Following this event, the mother says the children’s behaviour and attitude towards her only worsened.
[8] Exhibit 19 – Contact service records.
In 2020, the mother and children moved to live in a regional area in which they had previously lived. The location is further away from the father’s home and there is distance of about five hours driving time between the two parents’ homes.
In January 2020 the children again spent holiday time with their father and during this time the father emailed the mother complaining that the younger child had kicked the children’s half‑sister in the stomach and had pushed her “so hard [the half-sister] almost cracked her head open on the tv cabinet”. In the email, the father also described how the younger child’s behaviour had been “seriously unmanageable” and indicated that he contemplated returning this child to the mother’s care.

In early 2020 an issue arose between the parents in relation to organising a phone call between the younger child and the father. The mother says she offered the father such time provided his wife was not involved in the call, but she did not receive any confirmation from the father other than words to the effect of “alienation at its best”. Ultimately, no call took place between the younger child and the father.
In March 2020 the father filed a Contravention Application (“the March Contravention Application”) alleging various breaches by the mother including in relation to facilitating the children’s face-to-face and telephone contact with him and keeping him informed of long-term decisions made by her in respect of both children. He also alleged that the mother denigrated both he and his wife in conversations with the children and on social media platforms.
In March 2020 the younger child had a violent outburst which resulted in an ambulance being called and police attending the mother’s home (“the March 2020 incident”). According to ambulance records,[9] the mother reported to paramedics that the younger child became angry that day, was “yelling, screaming and attempting to hit family members” and that this particular episode “lasted longer and was more intense than previous”. The child was not taken to hospital as the mother told paramedics that this child’s removal would only exacerbate the situation. No further action was taken by paramedics other than advising the mother to present the child to a general practitioner and paediatric specialists for further assessment. The father was not informed of this incident until it was briefly mentioned to him by the younger child in conversation and confirmed by the mother in a series of emails sent between the parents a few weeks later.
[9] Exhibit 17 – Ambulance records.
When the children spent time with the father in the April 2020 school holidays, each parent’s account of changeover for the return of the children was again problematic. Although they initially agreed between themselves to conduct changeover at a fast food restaurant closer to the mother’s home (as the original contact centre was unable to facilitate changeover on this occasion), just prior to changeover, the father told the mother to collect the children at a contact centre closer to his home due to difficulties he had in relation to his car. The mother says she was given less than three hours’ notice and had raised past issues with fraught changeovers at the particular contact centre nominated by the father and accordingly asked him to transport the children back to her using another motor vehicle she says he apparently owned. Changeover did not occur at the stipulated time and the mother was required to drive to the location suggested by the father, some hours away, and she arrived after 5pm. The children were again distressed and crying and resistant to returning home with the mother and according to her the father did not assist with containing the children’s emotional state.
Sometime in early 2020, the younger child was referred to a child and adolescent psychiatrist (“the younger child’s psychiatrist”) who reported in a letter[10] to the child’s general practitioner that on review, the younger child presented with a range of difficulties including Attention Deficit Hyperactivity Disorder (“ADHD”), anxiety, anger outbursts and sensory peculiarities. In the younger child’s treating psychiatrist’s opinion, the younger child also suffered “chronic emotion dysregulation with low frustration tolerance and sensory avoidance” and various recommendations were made including that this child undergo further testing and assessments and engage in behaviour/play-based therapies focusing on emotion regulation, anger management and problem-solving skills.
[10] Exhibit 21 – Annexures to Mother’s Affidavit sworn 14 October 2021 pages 115-116.
The father’s March Contravention Application was heard on 19 June 2020 and the mother was found to have breached orders without reasonable excuse relating to the children’s telephone communication with the father and her obligation to keep him advised of long-term decisions made by her relating to the children. Because of these contraventions, the mother was ordered to be of good behaviour for a total of six months and to comply with the 2019 final orders.
Later on the evening of 19 June 2020, the mother informed the father via email that she would enlist a third party to facilitate the children’s telephone calls with him and transcribe the calls. Although the father objected to this proposal, the mother insisted that the third party would simply record what occurred during the telephone contact to ensure the calls “occurred in accordance with court orders”. When the children spoke with the father on the phone a few days later, on 21 June 2020, the third party was present and in accordance with the mother’s request took notes of the telephone conversation.
In the months that followed, the general tenor of the children’s interactions with the mother following their time with the father and paternal family remained the same. The mother deposes that the children were continually antagonistic towards her including making allegations against her, calling her derogatory names and referring to the father’s wife as “real mummy”. The parents communicated their respective concerns about the children’s behaviours and presentation with each other via email, which culminated in the father requesting in August 2020 that the children be returned to live with him. Although the mother acknowledged the concerns around the children’s emotional regulation, she maintained that the existing parenting arrangements were based on expert recommendations and therefore in the children’s best interests.
At around the time these emails were exchanged between the parents, the mother also offered the father additional time with the children in the absence of the paternal family. The father was not agreeable to the suggestion that the paternal family be absent during the children’s time with him and ultimately rejected the mother’s proposal.
In October 2020 there was a further email exchange between the parents in which the father raised concerns about the children’s mental health. In response, the mother sought financial assistance from the father, insisting that making a financial contribution towards the children’s medical expenses would assist her in obtaining appropriate professional support for the children. The mother maintains that the father did not provide her financial help beyond paying around $20 per week for each child by way of child support. This is a dispute between the parties to which I will return to later in these Reasons.
In November 2020 the father filed a further Contravention Application alleging that the mother failed to inform him of the March 2020 incident and that she had contravened orders by instructing a third-party to record the children’s telephone communication with him. The father also alleged that on two other occasions in September 2020 the mother had interfered with the children’s telephone time with him as there had been disruptions to the phone call such as loud background noise from other persons present at the time. The majority of the contraventions alleged by the father against the mother were found proved at hearing in February 2021 and three good behaviour bonds were imposed upon the mother which were ordered to be served cumulatively.[11]
[11] Exhibit 16 - Contravention Judgment by Austin J: Garrety & Steyn [2021] FamCA 67.
In the early months of 2021, the mother deposes that there were at least four further occasions on which the younger child had emotional and violent outbursts which involved her becoming volatile and eventually physically and emotionally aggressive. On one such occasion in early 2021, there was again police intervention and an ambulance was called. The younger child was taken to a children’s hospital but later discharged. From around this time, the younger child began therapy with a psychologist on a regular basis.
With no improvement in the family situation, on 9 March 2021, the father filed a fresh application seeking orders that the children return to live with him and spend defined time with the mother. This represented the third parenting dispute between the parents, the current proceedings.
The current proceedings
When the father commenced the current proceedings in March 2021, he sought urgent orders for the children to live with him on an interim basis due to his concerns that the younger child’s mental health was rapidly deteriorating and as he claimed that both children had not received proper psychological support since moving into the mother’s care. The following month the mother filed a Response to the father’s application opposing orders sought by him on an interim and final basis.
The father’s interim application was heard on 4 May 2021 before another Family Court Judge in another registry and was dismissed. The substantive proceedings were otherwise transferred to the Parramatta registry.
In May 2021 there was a further incident in which the younger child became emotionally unsettled, aggressive and oppositional towards the mother (“the May 2021 incident”). Once again, an ambulance was called and this child was taken to hospital where she then calmed down. It remains the mother’s case that many of these behaviours displayed by the younger child (and at times the older child) stem from being with the paternal family for extended periods of time. The mother further deposes that because of this oppositional behaviour, she had struggled to get the younger child to school and thus at some point there was a decline in this child’s school attendance.
At around this time (mid-2021), the father took steps to organise for the younger child to receive therapy for anxiety and trauma. It appears that although an appointment was booked for an assessment, this was cancelled as this child was not in the father’s care on the date the assessment was to be held.[12]
[12] Exhibit 24 - Clinical notes.
In June 2021 an ICL was appointed to the proceedings and directions were made by a Registrar for the ICL to assist in the appointment of a suitable expert to report on matters relating to the children’s welfare.
In the July 2021 school holidays the children spent time with the father pursuant to court orders and at the conclusion of their time with him, the father unilaterally decided to withhold the children in his care. As the father did not return the children to the mother as prescribed by orders, on 12 July 2021 the mother filed an application for recovery and also instituted contravention proceedings against the father.
The mother’s recovery application was heard by a Senior Registrar on 16 July 2021 and orders were made for the father to return the children to the mother that same day. The Senior Registrar also made orders for the preparation of a report by a single expert child and family psychiatrist (“the expert”) and that the final hearing be expedited.
In early August 2021 directions were made to ready the proceedings for final hearing.
In late August 2021 both parties amended their respective applications for final orders and in October 2021 the parties filed their respective trial affidavits. The father sought orders that he hold sole parental responsibility for the children and that they live with him and spend time with the mother during the school holidays. The mother sought orders that she hold sole parental responsibility for the children and that the children live with her and spend four hours of supervised time with the father on four occasions each year.
Sometime in late 2021 the younger child was prescribed anti-anxiety medication by her psychiatrist which the mother says she administered when this child again displayed uncontained behaviour in September 2021.
In early October 2021 the father emailed the mother expressing concerns about disclosures said to have been made by the children about “disturbing and life-threatening situations” said to have occurred in the mother’s household particularly involving the younger child. One of the incidents the father alleged the children disclosed to him was that the mother threatened the younger child with a “needle” if this child did not take her medication.[13] In an email in response, the mother denied the veracity of the allegations made by the father.
[13] Exhibit 21 - Annexures to mother’s affidavit sworn 14 October 2021 pages 104-108.
The following events subsequent to the filing of trial affidavits between October 2021 and mid‑2022 are contained in updating affidavits which the parties later filed in June 2022.
The mother deposes that on the Monday following a meeting with the ICL, the younger child refused to leave the house or go to school and also insisted upon sleeping in the mother’s bed while wearing her clothes. The mother attempted to take the younger child to school on the Tuesday which caused the child to become emotionally dysregulated, physically aggressive and say words to the effect of “I don’t want to choose. I’m scared I won’t see you again”.[14] The mother was required to call an ambulance and the younger child was taken to hospital, but she was discharged later that evening. The mother, through her solicitors, provided the father with a letter detailing the incident together with a report from the younger child’s treating psychiatrist. Contained within the report was an assertion that the younger had reported that she “can’t manage the pressure of having to choose one parent to live with”.[15]
[14] Mother’s affidavit filed 24 June 2022, paragraph 7.
[15] Father’s affidavit filed 24 June 2022, exhibit “D”.
On 9 December 2021 the mother’s Contravention Application was heard by another Family Court Judge and dismissed.
In late December 2021, with the agreement of the parties, the younger child’s treating psychiatrist received a copy of the 2019 final orders, the 2019 Judgment, the Appeal Judgment of the Full Court and an earlier report prepared by the expert appointed in the second set of proceedings.
Other events that occurred between October 2021 and June 2022 include the older child getting a piercing, the father purchasing smartphones for the children, the children’s reactions to meeting with the ICL and Court Child Expert and a dispute between the parents about the father’s attendance at a graduation dinner for the older child. While not much turns on the factual disputes between the parties in relation to these events, it is apparent from each party’s account of the same that they continued to be unable to co-parent and the children continued to experience significant emotional and psychological distress due to this dynamic between their parents.
Throughout February and March 2022 the expert conducted his assessment of the family.
It is uncontroversial that in March 2022, the younger child attempted to self-harm while at school. Notwithstanding that the cuts were superficial, the mother took the child to a general practitioner who administered a tetanus injection out of caution.
The father deposes in a later updating affidavit that on 19 May 2022, the older child left the mother’s home and telephoned his wife from a payphone. The father’s wife deposes that the older child wanted to run away whereas the mother’s account is that the older child used her mobile phone to access the internet and saw a text message exchange between the mother and a friend regarding the proceedings which prompted this child to act out, run into town, and call the father’s wife on a payphone before the mother located her and brought her home. The father considers that this event highlights that the children are unsettled and at risk whilst in the mother’s care.
In May 2022 the expert’s report was released to the legal representatives only.
In his report dated 23 April 2022 (“the expert’s report”), the expert extensively details his observations of the family and his opinions relating to the children’s family environment. He recommended a parenting arrangement which at that stage was not sought by either party, but has been subsequently adopted by the father as his final proposal and is a matter to which I will return.
It suffices to say for the purposes of setting out the background, that in the expert’s view both children presented as “profoundly emotionally disturbed, cognitively disrupted/distorted, intermittently and at times dangerously behaviourally dysregulated, and developmentally diverted, distorted and damaged”[16] as a result of their experience of chronic exposure to intensely partisan dynamics between the parents over the years.
[16] Expert’s report dated 23 April 2022 at [903].
The expert also considered there to be significant risks of harm to the children in each household and recommended that the best way to manage risk in the longer term, notwithstanding the serious partisan distortion of the children’s narrative, is to give weight to the children’s views and allow them to choose their own place of residence. However, it was the expert’s recommendation that rather than an immediate enactment of the children’s wishes, there should first be a period of time of about 18 months where the children are in the sole care of the mother during which “intensive therapy” be provided by a psychologist (“Ms AL”) as specified by the expert.
In his report, the expert also made a number of recommendations about the children’s interim arrangements given that he assessed that they were both as at February 2022, experiencing “emotional, psychological and developmental harm in their current care arrangements, as well as [a] risk of physical harm through misadventure or self-harm”.[17] In these circumstances, the expert recommended that there be an immediate cessation of the children’s weekly direct communication with the father and that such communication occur only in writing facilitated by Ms AL from whom the expert urged the children should immediately receive therapy and that the children’s time with the father be suspended.
[17] Expert’s report dated 23 April 2022 at [1348].
On 17 May 2022, the parties agreed to interim orders (“the interim orders”) that the children’s time and communication with the father be suspended pending the final hearing in accordance with the expert’s recommendations. A few days later there was another Court event and with the consent of the parties, orders were made that the children engage in therapy with Ms AL and that the ICL and a Court Child Expert explain the interim orders to the children. This explanation was given on 25 May 2022.
The parents also each relied on a further updating affidavit (filed in October 2022) in relation to events following the change in parenting arrangements in late May 2022 as a result of the interim orders.
In her second affidavit, the mother deposes that the children did not welcome therapy with Ms AL. She also gives evidence that in mid-2022 the younger child harmed herself at school by cutting herself superficially in a manner that did not require medical attention. When the mother collected this child from school the child reported that her friends were being mean to her and also said “I hate therapy… I don’t want to go….talking is stressful”.[18] The mother sought assistance from Ms AL as she held a genuine concern that the therapy was only causing further stress to the children in particular, the younger child.
[18] Mother’s affidavit filed 24 June 2022, paragraph 87.
Ms AL, in consultation with the expert, concluded that the children should not be forced into therapy but, it should be provided to them as an option should they wish to attend. Ms AL instead suggested that the children could attend for the purposes of writing letters to their father and to receive letters from him. The children had not attended upon Ms AL prior to the commencement of the final hearing, but the younger child remains engaged with her psychiatrist and both children were participating in various therapies.

In her second updating affidavit, the mother deposes that at 23 June 2022, the father was in arrears in his Child Support payments in the sum of $19,201. While the father subsequently did not dispute that this sum was outstanding at this time, he deposes to an explanation in his second updating affidavit in October 2022 that he had at that stage paid the debt in full and it was his understanding that it was being processed.
In her second updating affidavit filed in October 2022, the mother deposes that generally since the commencement of the new arrangements under the interim orders the children communicate in a respectful manner towards her and there has been a reduction in problematic events. The mother has observed that the younger child resorts considerably less to physical violence or destructive behaviour and is more cooperative, engaging and emotionally regulated. She deposes to a reduced involvement with emergency services and self-harm attempts. Similarly, the mother considers that the older child appears to be settled and focussed on pursuing her co-curricular activities.
The mother also deposes that the younger child continues sessions with a therapist and is benefitting from the assistance of a therapy animal in their home. She says that this child’s sleeping habits and her interaction and attendance at school has significantly improved and that since the commencement of term 3, the younger child ceased asking to be picked up from school and is now sleeping on her own.
The mother also concedes in this affidavit that on occasions the children have told her that they miss their father and that she has encouraged them to send cards and continued to promote the children attending upon Ms AL and writing letters to the father.
In the father’s affidavit filed in October 2022, he updates the Court on events that occurred between June 2022 and October 2022. He deposes that he and his wife attended upon Ms AL on three occasions for the purpose of drafting letters to the children. He says that the letter was mailed to the incorrect address and did not reach the mother’s residence.
As at October 2022, the father also remained concerned about the content posted on the mother’s social media. He deposes that in September 2022 he became aware of a post to a social media platform made by the mother which related to step-mothers that he considered to be inappropriate. The father’s concern is that given the older child’s age, she would not have difficulty in accessing and seeing the mother’s social media posts.
Final hearing
July 2022
The final hearing commenced on 4 July 2022 and on that day all parties were legally represented by counsel. The expert was cross-examined by each party’s counsel which took up majority of the day.
When the hearing continued the next day, 5 July 2022, the mother was no longer legally represented and had also discharged her counsel. The mother’s previous solicitors appeared amicus via video link to assist the Court. On this day, the mother made an application to vacate the balance of the hearing on the basis of having recently become self-represented and having discharged her counsel due to that counsel’s failure to explore matters of significance for her case through cross-examination of the expert.
In granting the mother’s application and making an order that the proceedings be adjourned to four days in October 2022, I accepted the mother’s submission that there was very little testing of the expert by her counsel and given she was self-represented, the mother was not in a position to conduct the complex proceedings to their completion that week. In opposing the mother’s application, the father submitted that there were then current risks arising from the children’s parenting arrangements and thus it was necessary to finalise the dispute. As explained in my ex-tempore reasons, I did not consider that the children were at such risk in the mother’s care having particular regard to the evidence available to the Court including the expert’s evidence. Ultimately, I was of the view that the interests of justice did require that the balance of the July hearing dates be vacated and that the matter be listed for conclusion in late October 2022.
Prior to adjourning the proceedings, a number of orders were made including that the parties be restrained from communicating to the children or facilitating any third-party to communicate to the children matters relating to the proceedings or any prior proceedings concerning them.
October dates 2022
The final hearing resumed on 17 October 2022. At that time, the mother sought leave to recall the expert for cross-examination. It was the mother’s case that her previous counsel had not questioned the expert about matters of particular significance to her case and had not appropriately tested the expert’s evidence. The father opposed the mother’s application but for reasons given ex-tempore, the application was granted. The expert was cross examined by the mother’s counsel and then further cross-examined by the father’s counsel.
The father was called towards the end of the day on 17 October 2022 and his cross-examination was concluded on 19 October 2022. Following completion of the father’s evidence, the younger child’s psychiatrist was interposed and then the father’s wife was cross-examined. The father’s case concluded on 21 October 2022 and the mother’s case was then opened and she was called to give her evidence. At the conclusion of the hearing on 21 October 2022, counsel indicated that they required a further two days to complete cross-examination of the mother and the final two days of the hearing were allocated in December 2022.
December 2023
The final hearing resumed on 20 December 2022 and the mother was cross-examined for most of the day.
On the final hearing day the mother’s counsel advised the Court that the mother also sought orders with respect to the children’s overseas travel. The parties subsequently agreed to part of mother’s proposal that she be permitted to take the children to the United States on one specified occasion.
On the final day of the hearing the father also filed an Application in a Proceeding seeking that the mother pay his costs thrown away as a result of the adjournment of the final hearing when it was first listed in July 2022. I noted that this application will be dealt with at the conclusion of the parenting proceedings.
THE EXPERT’S EVIDENCE
Expert Report
The expert appointed in the proceedings is a child, adolescent and family psychiatrist who interviewed the family over a full day in February 2022 and conducted further telephone interviews with each of the parents approximately a month later. In his report the expert records that he spent 42 hours reading, cross-referencing and deliberating upon the more than 10,000 pages of documents that he was sent to read (which included court documents, the reports of the expert previously appointed to the proceedings, past judgments and documents produced on subpoena) prior to writing up the conclusions and more hours during this process of writing it up. He conducted interviews with all parties including each parent, the father’s wife and each child and then spoke by telephone with nine different involved professionals. The following is a summary of the expert’s opinion and recommendations in his 130 page (1354 paragraph) report.
The expert first sets out in great detail over 66 pages the information he obtained from all sources including through interview with the family members and observations made during those interviews. In the maternal household he interviewed the mother, her friend Ms AM and a person who described herself as a “concerned citizen” who had previously been a friend of the father’s wife and had had some involvement in assisting with changeover arrangements when the children were previously living with the father. The expert also interviewed the children’s half-brother and the children themselves.
So far as the father’s household is concerned, the expert interviewed the father, his wife, the children’s step-sister and half-sister and interviewed each of the children again. With the consent of the parents, the expert spoke with a clinical social worker in practice in the vicinity of the father’s home (“the father’s therapist”) and an art therapist, an occupational therapist, two psychologists (who the mother had engaged for the children), a child and adolescent psychiatrist, the principal at the children’s school and each of the children’s classroom teachers.
The expert then summarises his professional observations and opinion noting that he considers some matters to be particular significance and that many matters are interrelated. The following is a summary of those opinions and observations.
The expert commenced by observing that, in his view, the children are on the one hand “rich in parenting resources” as he formed the impression that each of their parents is committed to the children and to the responsibilities of parenting at the level of intention and with respect to day to day care of the children each has adequate “and in some areas strong” capacity to meet the children’s basic needs for food, shelter and protection from harm, and their more complex emotional, intelligent, relational and developmental needs.
On the other hand in the opinion of the expert the children present as follows:
….profoundly emotionally disturbed, cognitively disrupted/distorted, intermittently and at times dangerously behaviourally dysregulated, and developmentally diverted, distorted and damaged (particularly in the domain of models of family and intimate relating to others, but also in other developmental domains), the same arising from their experience of chronic exposure to intensely partisan dynamics between the parents.[19]
[19] Expert’s report dated 23 April 2022 at [903].
In summary, the expert considers that each of the parents (and in the case of the father, together with his wife) has the capacity, if required, to raise the children entirely within their own household in an adequate and some areas quite strong parenting capacity but together, each of the parents and the father’s wife are responsible for creating the environment in which each of the children has been profoundly harmed in the manner described.
The expert goes on to summarise that mirroring the foregoing dichotomy, the children on one hand enjoy the positive day to day life in each parent’s household where they have attended school, had relationships with friends, extended family and family friends, attended extra‑curricular activities and had at the time of his assessment experienced regular and predicable time in the care of each parent.
On the other hand, the expert describes the children, at the time of his assessment, as being in a “precarious state, both in terms of their broader developmental trajectory, and in terms of immediate risk of harm to self or others”.[20] He opined that this precarity is evident in both households but notably, and particularly at times of partisan stress, and specifically during the period surrounding transfer from the care of the father to the mother.
[20] Expert’s report dated 23 April 2022 at [905].
The expert identifies that over the years, on repeated occasions, serious concerns have been expressed or allegations made by each parent regarding the welfare of the children in the care of the other parent and multiple reports have been made to the Department and to police about risks to the children and the same has been raised in family law contexts.
The expert describes the concerns and allegations as not “in and of themselves outlandish” but of the type of concern about risk to a child in a home context that is relatively common, but difficult for external parties to appraise. The concerns have included matters such as each parent alleging that the children report that the other parent is yelling at, hitting, threatening or otherwise mistreating a child and each party alleging that the other parent involves the children in partisan matters in a way that increases child distress and undermines their own relationship with the children and thus is psychologically and emotionally abusive.
The expert observes that this pattern of adult concerns and allegations continues to the date of his assessment and that a central question for the expert was determining where the truth lies concerning these matters. Despite the expert’s extensive hours of reading, cross-referencing and deliberating upon the enormous volume of documents he was required to read (set out at the commencement of this summary), the expert records that he has significant uncertainty and suspects that the same will be experienced by the trial judge even at the conclusion of a future protracted court hearing.
The expert records that this uncertainty arises in part from the highly partisan and court‑involved nature of the co-parenting context over the years such that each parent is motivated by that context to minimise their own failings and to amplify those of the other. He also importantly identifies that the uncertainty arises “because of the partisan distortion of the children’s own narrative about and behaviour towards each parent over many years”.[21] The expert considers that the result of the partisan distortion of the children’s narrative is very serious in terms of appraisal of risk. He observes that there is a risk of taking the children’s narrative and dispositions at face value and causing harm to the children by reinforcing a distorted negative narrative about the mother and failing to see risks in the father’s care as well as the alternative risk if the children’s signalling about circumstances in maternal care are correct and have not been heard.
[21] Expert’s report dated 23 April 2022 at [914].
The expert identifies that the importance of not being able to appraise current risk due to the distorted and unreliable nature of the children’s narratives and dispositions is relevant not only to assessing the current risk but appraising any future narratives or behaviours of the children. He raises a possibility that the children may raise concerns about life in one household with the other parent which may be dismissed as partisan and also that if contact with the non-resident parent is ceased or curtailed then the children lose that avenue of “raising the alarm”.
The expert opines that each parent is, in their own way, a strong and persuasive person capable of presenting well to their adult support system and a child may have difficulty raising the alarm within that context.
So far as risks of harm in each household are concerned, the expert opines that “there are significant risks of harm to the children in each household, over time, some of which are current/ongoing, but some of which are distal”.[22]
[22] Expert’s report dated 23 April 2022 at [919].
The expert opines that the best way to manage risk in the long term may be to give weight to the children’s views and allow them to choose their own place of residence. In order to manage ongoing risk over time, the expert explains that this would need to be not just a one-off choice but a structure that allows for the children for the remaining of their upbringing to understand that they are able to revisit that choice, that is go to live with the other parent. He opines that there should be a mechanism for non-partisan therapeutic assistance for the children when exercising this ongoing choice.
However, the expert did not recommend that the children be given an immediate ability to make the choice about their parenting arrangements. Rather, he recommended that a period of time in the sole care of the mother be instituted during which intensive therapy is provided “with a shared understanding that after that period of time the children will have a choice in the longer term” about where they should live. The expert sets out in detail the reasons why he makes this particular recommendation for a deferred enactment of the children’s wishes.
The expert then sets out a detailed summary of the father’s proposal at the time he was assessed which was for the children to live with him. The expert identifies in particular the risks to the children if such orders were made by the Court at this stage.
The expert next considers the mother’s proposal for a parenting arrangement and provides a detailed summary of how her proposed arrangement may mitigate or amplify risks present in her care.
When assessed by the expert, the mother appeared to be uncertain about the best arrangement for the children commenting that “either way it’s a bad outcome”. The expert formed the impression that the mother’s ambivalence about suitable orders was genuine and child-focused. He identified the advantages to the children in continuing to live with the mother.
The expert also reiterated his overall concern that the children’s pattern of partisan reactivity when transitioning from time with the father and their idealised yearning for restoration to his care is so entrenched that is likely to be activated by any direct connection with the father and in particular, his wife and the paternal household. For this reason, the expert recommended that if the children are to remain in living with the mother, then the priority is to achieve greater stability of emotion, thinking and behaviour for each child and a secure and reliant relating to the mother. For this to be achieved, the expert recommended that the children have a period where there is no direct “multisensory connectivity” with the father and paternal household but rather that this connectivity occur through letters, pictures and photographs from the father and paternal household and that such connectivity occur in a structured way and with mother‑involved therapeutic support.
At one stage in his report, the expert recorded his impression that “the mother overall is a more competent and less emotionally abusive parent than the father/ [his wife]”[23] which would lead him to support the mother’s proposal that the children live with her in the long term with some (modulated down) ongoing connection with the paternal household. The expert did however record a number of concerns about the mother’s proposal. In particular, he was concerned about the burden of loss and grief the children would experience from long term deprivation from connectivity with the father’s household, He also identified the children having the risks associated with an “idealised fantasy of eventual reunion” under this arrangement which would, in the expert’s view, place a burden of sadness and resentment upon the child/mother relationship and would disrupt processes of reflection and integration of a more balanced perspective. The expert’s concern was that ultimately if orders are made as sought by the mother, this may leave the children feeling without agency or voice.
[23] Expert’s report dated 23 April 2022 at [981].
A full exploration of the risks and benefits associated with each of the parties’ proposal, as set out in the expert’s report, are matters to which I will return.
The expert then expressed a view in relation to the specific considerations to which the Court must have regard when determining what parenting arrangement is in a child’s best interest. In this regard, the expert opined that it would benefit the children to maintain a meaningful relationship with each of their parents.
The expert then deals globally with a number of the other best interest matters that he was asked to consider and in this regard, expresses a view compendiously about the children’s relationships, the lifestyle and background and characteristics of each of the parents and characteristics of the children, the attitudes to the children and responsibilities of parenthood and the capacity of each of the children’s parents to provide for the children’s needs.
The expert observed that the children have a positive disposition towards the father and his wife and that both children consider all members of the father’s household as “family”.

In addition to the foregoing matters which I accept, I also consider it inappropriate for the children to bear responsibility for matters such as determining the level of risk posed by each parent and in each household and for the consequences of having made the “wrong” decision. In relation to the latter, under the proposal of the father and the ICL if a child or the children wish to change their mind about where they want to live it will be incumbent upon the child to cooperate with the procedure in the orders for their next “choice” to be enacted, which might involve the child remaining for some time in a household where she perceives, possibly accurately that she is at risk of harm.
Under cross-examination, the expert explained that in normal circumstances if children such as these are in crisis and needing to leave the care of a parent ordinarily a third party such as the Department might become involved. If that were to happen in this family each child’s narrative has been so damaged that it won’t not necessarily assist in risk assessment that may need to be undertaken at the time . It would be in the view of the expert better, if such a crisis were to occur, than rather the police or the Department attempting assess the relevant risk Department or the police could be shown the order stating that the child has the choice of where to live. In this way the children can decide by operation of the orders where to live so long as the chosen parent accepts them.
In my view if such a mechanism were in place, critical decisions in relation to the children’s parenting arrangements will be effectively imposed upon the children themselves which in effect delegates to them the responsibility of decisions and findings that must be made by the Court where parents cannot agree. I consider that these are powerful reasons that militate against the making of orders in which significant weight is given to the children’s views on an ongoing sense throughout their childhood.
Nature of the children’s relationships with each parent and other significant persons
Likely effect of change in the children’s circumstances
These two interrelated matters are particularly significant considerations in resolution of this dispute.
In his report, the expert records that he formed the impression that both children have a positive disposition towards the father and his wife and that both children consider all members of the father’s household as “family”. He formed the impression that both children have a collective idealising of the paternal family and its patterns of relating and living. As previously noted, he expressed the view in his report that it would benefit the children to maintain a meaningful relationship with the father, his wife and other members of the paternal family and opined that the children would bear a heavy burden of loss and grief from long-term deprivation from connectivity with the father’s household.
The expert also identified other risks related to the children’s relationships if orders are made as proposed by the mother. The expert is of the view that long-term separation from the father and the paternal family will bring with it an “idealised fantasy of eventual reunion”. This fantasy of reunion the expert opined, will place a burden of sadness and resentment upon each child’s relationship with the mother and will disrupt the children’s processes of reflection and integration of a more balanced perspective about life in the mother’s home.
If orders are made as sought by the mother, there will be little change for some time in the circumstances the children have experienced in the previous 15 months in which they have lived in the mother’s sole care and had no physical contact or communication with the father and members of the paternal family. The mother proposes that this separation from the father and the paternal family continue for another two and a half years. She then proposes that the children have limited physical contact with the father and that it occur in a supervised setting on four occasions each year and the children have no contact or communication at all with the father’s wife or other members of the paternal family.
In relation to the likely impact upon the children if orders are made as sought by the mother, the expert remained firm under cross-examination then there will be massive loss and grief for the children because of the depth of their partisan commitment to the father and as in their formative years when they lived with the father and his wife, they had a very positive day to day experience. The expert confirmed his view that the loss and grief he expected the children will experience in being entirely cut off from the father is likely to put a massive burden on the mother-child relationship because the children will always believe that she created this arrangement and they will carry a sense of grief and resentment to her. He also remained firm that although the mother has superior capacity to meet the needs of the children, she will struggle to match the idealised experience of the children in the father’s care and that there is also a risk that the children may “vote with their feet” and to return of their own volition to the father’s care.
When assessing the children’s relationships with the mother in the context of another best interests consideration, the expert considered the period from the birth of the children to the March 2019 orders, the period after the 2019 orders and under cross-examination also considered the period right up until the present.
In relation to the early years of the children’s lives and during the period prior to the 2019 orders, after scrutinising all of the available evidence, the expert accepted the mother’s narrative that she cared for the children well and in a nurturing way during their early years and that she had practised attachment parenting with close connectivity with the children.
The tenor of the expert’s evidence as dealt with at length in these Reasons is that the father and his wife have significantly damaged the children’s relationship with the mother over many years. When the family were assessed in April 2022 and the children had been living primarily with the mother for just over three years, the expert observed each of the children to have an inconsistent or fragmented/dissonant presentation with respect to their mother with each child displaying shifts between “day to day warmth, connectively and positivity towards and regarding the mother” and “more amplified, constructed, enacted negativity towards her” and “some uncertainty and insecurity and associated negativity regarding their thoughts about and disposition towards her”.[82] As earlier explained, the expressed negativity had two main components. The first related to the partisan dispute with the father and the mother’s attitudes towards the paternal household and the second related to the mother’s responses to the younger child’s episodes of emotional/behavioural dysregulation.
[82] Expert’s report dated 23 April 2022 at [1196].
The expert records that there was not much negativity beyond those domains and that both children and in particular the older child spoke positively of the mother, their experience of her, and of aspects of their current day to day life in her care. The expert also noticed that each child’s presentation of warmth, connectivity and positivity towards the mother and life in the maternal care tended to occur when each child was speaking of aspects of their day to day life. The older child was able to give the expert examples of “ordinary, positive, appreciated examples of [the older child]’s experience of maternal love, care and [a] developmentally appropriate balance of respect and monitoring”,[83] which the expert considered quite unusual in his experience of seeing many children experiencing high conflict parental separation. The expert recorded that the younger child’s presentation had some similarity to the older child although there was more marked fragmentation and shifting between states and her overt narrative when seen alone was negative about the mother in the context of being positive about the paternal household.
[83] Expert’s report dated 23 April 2022 at [1207].
The expert records in his report[84] that the children have developed a “mostly secure and reliant relationships with the mother, in the day to day”. He also records that the younger child’s psychiatrist felt that this child has an anxious attachment with the mother, whom she attacks when her needs are not met. When the expert spoke to the children’s school principal and art therapist both made observations of the younger child with her mother that the expert opined is consistent with the mother’s description of separation anxiety in this child and the child wanting to sleep with her. The expert opined that the mother is responding to this child’s separation anxiety in a way that meets the child’s needs.
[84] Expert’s report dated 23 April 2022 at [1259].
The expert also records that he observed that the children have a positive relationship with each other.
To some extent, I accept the submission made on the mother’s behalf that one of the difficulties with the proposals of the father and ICL in which the children are to make a choice about their own parenting arrangements is that I am unable to assess properly the likely impact upon the children of a future change in their circumstances as there is no certainty as to what that change may be.
Having acknowledged that there are some difficulties in assessing the likely impact of a change in circumstances upon the children, ultimately they will be living with either the father or the mother. As noted in submissions made on behalf of the father, the expert expressed an opinion about the impact on the children being separated from the mother should they return to live the father and compared that to the impact upon the children of separation from the paternal family. Having conceded that it is likely that if the children live with the father, they will not see their mother, the expert agreed that the children will suffer grief and loss from separation from their mother, but opined that it would be in a less impactful way than the grief and loss they would experience through long term separation from the father.
Submissions made on behalf of the mother attach significant weight to the need for these children to have stability in their lives especially as they have had such a disrupted childhood. In my view, the need for stability is a significant factor for these children and is more weighty than “flexibility” which is a central feature of the proposal of the ICL and father. It is difficult however to assess the extent to which the mother’s proposal will bring about a stable arrangement for the children because of the risk that they may take matters into their own hands and in the words of the expert “vote with their feet” and return to the father.
Extent to which each of the parents have taken or failed to take the opportunity to participate in long-term decision making regarding the children and to spend time and/or communicate with the children
This is not a salient feature in this dispute.
Each of the parents has been diligent in taking the opportunity to participate in long-term decision-making in seeking sole parental responsibility for the children and in exercise of the same when it has been allocated to each of them respectively. Each of them has also been committed to spend time with and communicate with the children as provided for under orders from time to time.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Curiously, in submissions made on behalf of both the father and the ICL, it is asserted that this is not a significant matter in the context of this case and it is noted that the expert had taken this into account in formulating his recommendations.
In my view, the expert did not attach sufficient weight to this matter when he recommended the orders which are now promoted by the father and with variation by the ICL. It may be that this would not be a significant factor if the parents had agreed that the parenting arrangement recommend by the expert and now sought by the father is in the children’s best interests. In this regard it is to be remembered that the expert recommended that the period in sole maternal care and no direct communication with the father be instituted on the “shared understanding” that the children would subsequently have a choice about where there were to live. Although the parties consented to orders that have had the result that the children have lived with the mother and have no contact on an interim basis for 14 months there is no evidence to suggest that the mother in particular ever consented to such orders on the understanding that she was consenting to an implementation of the expert’s recommendations in full. The mother has always maintained that it is in the children’s best interests to live with her and have very limited contact with the father.
I accept the submission of the mother that there are likely to be practical difficulties if in implementing the orders proposed by the father and ICL if such orders were made. In particular both the ICL and father’s proposals include the ongoing engagement of other services such as a therapist and even the expert himself, in the processes in which the children express their wishes.
If orders are made as sought by the father and ICL the children may choose to change residence in an ongoing way. The enactment of any change of wishes is to be done within a particular time frame and with the assistance of therapists which in my view could entail some significant practical difficulty and some expense. While the expert felt confident that the children would choose to live with the father and not subsequently change their minds, he did envisage scenarios in which there may be a crisis and one or both of the children are effectively “kicked out of home”. I consider that if this were to occur significant practical difficulties would arise in the regime provided for if the proposed orders were to be followed.
Capacity of each parent and any other person to provide for the children’s needs including emotional and intellectual needs
Maturity, sex, lifestyle and background (including culture and traditions) of the children and either parent
Attitude to the children and responsibilities of parenthood demonstrated by each parent
In his report the expert records his impression that both children have had genuinely positive valued experiences in the father’s care over many years. He also assesses that since the children moved to live with the mother in March 2019 that they have continued to have positive experiences when spending time with the father and his family on holidays. However, the expert records that as these positive activities have occurred in the context of “enduring and perhaps even amplified collective, idealised and emotionally intense shared household narrative”[85], it is has been difficult for the children to transition back to their mother’s care.
[85] Expert’s report dated 23 April 2022 at [1041].
As previously recorded when summarising his report, the expert opines that the father and his wife have shown over the years at least adequate and likely superior capacity to meet the children’s basic needs of day to day life such as food, shelter and protection from harm as well as meeting their more complex emotional, intellectual, relational and developmental needs. In his report the expert sets out at some length[86] the way in which the father and his wife have demonstrated a consistent positive attitude to the responsibilities of parenthood in day to day shared family life and in the same context in their parenting capacity. He assessed that the father and his wife are effective and high functioning people in day to day life and that each has applied themselves to their own role as parents and to family life in an effective high functioning way.[87]
[86] Expert’s report dated 23 April 2022 at [1044] – [1053].
[87] Paragraphs [130] and [131] of these Reasons.
The expert also identifies and sets out at great length, the vulnerabilities in the parenting capacity of the father and his wife and the risks to the children in their day to day care over time. These matters identified by the expert in both the periods before and after the March 2019 orders and up until the present current day are summarised in these Reasons between paragraphs [125] and [150]. In summary the expert identifies a number of serious shortcomings and vulnerabilities in the capacity of the father and his wife to provide for the children’s needs including emotional needs and identifies that the father in some respects demonstrates a poor attitude to the responsibilities of parenthood.
Although at one stage in his oral evidence the expert said “if the kids…go to one parent now, I would recommend the father”[88], he then explained that he only made that comment because living with the father will resolve the dissonance for the children. While the expert also added that if the children were to move to live with the father now they will “probably have, superficially a good upbringing”, he then said he is “really concerned about the developmental damage” that would occur under such an arrangement “in terms of how they will operate in their own family and partner relationships in future” as well as “that dread possibility” that the father and his wife have been abusive.[89]
[88] Transcript 4 July 2022, p.26 line 19 to line 20.
[89] Transcript 4 July 2022, p.26 line 22 to line 25.
When comparing the capacity of each parent to meet the children’s needs, the expert identified in his report and repeated in oral evidence that he assessed the mother as having better capacity. In his report[90], the expert opined that “the mother overall is a more competent and less emotionally abusive parent than the father and [the father’s wife] dyad, particularly in the domain of the healing of the children’s longstanding toxic partisan experience” and for this reason records that he supports the mother’s proposal that the children live with her in the long‑term. As noted when considering the nature of the children’s relationships the expert’s main concern with the mother’s proposal is that the children will experience long-term separation from the father and his household as a burden of loss and grief that will be heavy for each of them, and will put pressure on the children’s relationship with the mother and may cause them to feel without agency and voice. In oral evidence, the expert summarised the view he put forward in his report as “if we were going to pick one parent for the kids to live with for the rest of their time, I would pick Mum”.[91]
[90] Expert’s report dated 23 April 2022 at [981].
[91] Transcript 4 July 2022, p.24 line 39 to line 41.
I accept the submission made on behalf of the mother that the evidence indicates that the mother has not only demonstrated her capacity to meet the children’s considerable and challenging needs, she is the one parent who has managed to have the children maintain a relationship with the other parent albeit that came at a huge cost to the children. I also agree as submitted that in persisting with the maintenance of a relationship with the children and continuing to support the children’s relationship with the father under extremely difficult circumstances, the mother demonstrates a very responsible attitude towards the children and the responsibilities of parenthood.
It is the mother’s case that the father has also shown a poor attitude towards the responsibilities of parenthood in prioritising his own interests of exclusivity in his relationship with the children over their wellbeing and placed the mother under ongoing and relentless pressure without any regard how that may impact her ability to be responsive to the children’s needs. In my view, these actions of the father can be characterised in that manner.

I also agree with the submission made on the mother’s behalf that the provision by the father of expensive gifts in the paternal household when the mother could not afford the same created the differential between the two households in aid of what the expert described as the father’s “charm offensive”.
The extent to which each of the parents has fulfilled, or failed to fulfil the parent’s obligations to maintain the child
So far as financial support is concerned, it is correctly submitted on the father’s behalf that as at time of final hearing, the father was paying child support as assessed and is up to date with his child support obligations. The mother contends that through cross-examination of the father and his wife, it was established that after the 2019 orders were made they set about manipulating and rearranging their financial affairs in order to purposefully evade the father’s responsibility to support the children. The father denies that the evidence supports such a finding. It is in my view unnecessary to turn my find to a finding in these terms as many relevant maters in relation to child support were conceded by the father under cross-examination.
The father conceded that at various times after the children moved to live with the mother that the mother requested financial support from him including in relation to the children’s therapeutic needs. He also agreed that he is critical of the mother for not arranging for the children to receive adequate therapy, but agreed that he had not provided the financial support for that therapy as she had requested. The father also claimed under cross-examination that a series of unfortunate consequences resulted in him being in a precarious financial position following the 2019 proceedings. I am satisfied from the basis of the father’s own evidence that after the 2019 orders were made, he prioritised expenditure on ongoing proceedings including an unsuccessful appeal, contravention proceedings and the current proceedings over financially providing for his children.
Family violence relating to the children or a member of the children’s family
While it appears that matters related to allegations of family violence were raised in the first tranche of proceedings, this issue did not feature in the current parenting dispute.
Whether it would be preferable to make an order least likely to lead to the institution of further proceedings in relation to the children
It is common ground between the parents, the ICL and the expert that the children at the centre of this dispute have been enormously harmed by their exposure to parental conflict. It is beyond doubt that the children’s best interests will be served by the dispute being brought to an end and entirely predictable that the children would be harmed by further proceedings in relation to them such as contravention proceedings or fresh applications for parenting orders.
In my view, there is substantial opportunity for dispute between the parties that may lead to further proceedings if orders are made as proposed by the father and ICL. I also consider the most likely proposal to lead to further proceedings is that proposed by the father as under his orders if made, the first opportunity for the children to make a choice about their parenting arrangements will occur in a few months’ time and thereafter potentially continue for many years. It is not difficult to imagine that dispute will arise between the parents about the children’s expression of their views and matters such as their maturity and capacity to make a considered choice, or in the event that each child chooses different arrangements or in relation to making the arrangements for ongoing therapy. Dispute between the parents may also arise if either or both children changes her mind which may require a child to remain living with a parent contrary to her wishes for a lengthy period of time.
While I have no doubt about the sincere and child-focused intention of the expert in making the unusual recommendation that he did, now adopted by the father and in an amended version by the ICL, I consider that this proposal could have more likely prospects of success if both parents were of the view that it was the best way forward for the children. However, many of the components of the expert’s recommendation, adopted by the father and ICL require a great deal of cooperation and some patience on the part of both parents and the children which is difficult to foresee occurring in the real world occupied by this family. In my view, the proposal of the mother which provides for little opportunity for dispute between the parties is least likely to lead to the institution of further proceedings in relation to the children and is preferred for this reason.
Any other matter that the Court considers relevant
As touched upon earlier, the father proposes two alternate suites of orders. His primary proposal to which submissions made on his behalf were mainly directed is in accordance with the recommendation of the expert.
Included in the father’s Minute of Order is a different suite of orders under the heading “in the alternate”. Pursuant to this proposal, the children are to immediately live with the father, he is to have sole parental responsibility for them and the children are to spend time with the mother as agreed and failing agreement for half of each school holiday period. He also makes provision for other matters such as changeover and restraint from denigration and communication between the parties.
In submissions made on his behalf, it is submitted that the father seeks the alternate order “on the basis that the Court determines it is not in the best interests of the children to give them agency of choice in the future”. In this way, seeks in effect that the Court determine whether his primary proposal (and arguably the proposal of the ICL) is in the children’s best interests and if the Court does not agree with his submissions in this regard that the Court must then consider his alternate proposal.
As can be seen from the totality of this judgment, I considered the pros and cons of the father’s primary proposal, the mother’s proposal and the ICL’s proposal, having regard to each of the best interests’ considerations. In the course of that consideration, I of necessity included an assessment of any parenting arrangement in which the children are to live with the father and in this way also considered the father’s alternate proposal. In doing so I attached weight to the expert’s strongly held and consistent opinion that it would be enormously damaging for the children at their current ages and their highly partisan circumstances to move to live with the father now. As also noted it was a common theme in the expert’s evidence that if the Court is to choose an arrangement that would be developmentally best for the children, it would be that they stay living with the mother.[92] Another weighty factor in this regard in the firm expectation of the expert that if the children return to live with the father their meaningful relationships with their mother will effectively come to an end, albeit that he opines that in early adulthood these relationships are more likely to be rekindled.
CONCLUSION
[92] Transcript 17 October 2022, p.19 line 8; Transcript 4 July 2022, p.24 line 39 to pg. 25 line 45.
Parental responsibility
Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) of the Act provides that each of the parents of a child has parental responsibility for the child.
Section 61B defines “parental responsibility” as “all the duties, powers, responsibilities and authority which, by law parents have in relation to children”.
In Goode & Goode[93] the Full Court held that there is a difference between parental responsibility which exists as a result of s 61C of the Act and an order for shared parental responsibility, which has the effect set out in s 65DAC of the Act. The Court held that in the former, as there is no Court order in effect, the parties will exercise the responsibility either independently or jointly. On the other hand, once the Court has made an order allocating parental responsibility between two or more people, including an order for equal shared responsibility, the major decisions for long-term care and welfare of children must be made jointly, unless the Court provides otherwise.
[93] (2006) FLC 93-286.
Where the Court is to determine parental responsibility, the starting point is s 61DA of the Act. This section provides that when making a parenting order in relation to a child, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the child, or another child, or family violence (subsection 61DA(2)), or may be rebutted by evidence satisfying the Court that it would not be in the child’s best interest for the parents to have equal shared parental responsibility for them (subsection 61DA(4)).
There is no dispute between the parties about the parental responsibility in the sense that both parents and the ICL each seek orders that the parent with whom the child is living is to have parental responsibility for that child. In the case of the father and ICL, provision is made in their respective proposed orders for parental responsibility to shift in the event that the children’s living arrangements change. It may be assumed that these proposals recognise the complete inability for the parents to jointly make decisions about any matter which is amply demonstrated by their actions over the last 10 years. I am easily satisfied that the presumption of equal parental responsibility is rebutted and parental responsibility should lie with the parent with whom the children are to live.
Living arrangements
When I commenced a consideration of the best interests’ matters set out in s 60CC, I expressed the view that while the children may receive a benefit from having a meaningful relationship with each of their parents, there is no benefit to them in the Court crafting orders to foster their relationships with both parents. The children have been profoundly damaged by previous arrangements in which each of their parents has played a significant role in their lives and the likelihood of ongoing harm is virtually inevitable if orders are made to support the children having both parents in their lives.
The proposals of both the father and ICL in my view will place unreasonable burdens upon the children including an assessment of risk present in each parent’s household which is a burden that should be shouldered by the Court rather than these children.
While as opined by the expert that the children are on one hand rich in parenting resources and each parent has adequate and in some areas strong capacity to meet the children’s basic needs and is committed to the children and the responsibilities of parenting, a consideration of all of the relevant best interests matters and attaching weight to those identified for the reasons given, I am satisfied that the orders proposed by the mother are proper and in the best interests of the children and accordingly I made the orders set out as she seeks.

I certify that the preceding three hundred and seventy (370) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam.
Associate:
Dated: 28 July 2023

File number(s):	NCC 802 of 2013
Judgment of:	HANNAM J
Date of judgment:	28 July 2023
Catchwords:	FAMILY LAW – FINAL PARENTING – Best interest considerations – Consideration of risk of harm – Alienation – Where the parties have been in protracted litigation for 10 years – Where this is the third tranche of parenting proceedings – Where there have already been two changes in primary care arrangements – Where the children have been profoundly damaged by the proceedings – Where the children have been in the mother’s primary care since 2019 – Where the children have not spent any time with the father or his wife since 2022 – Where the father concedes that he and his wife engaged in alienation of the mother when the children lived with him – Where the single expert recommends that the children decide where they live – Consideration of whether it would be in the children’s best interests to determine their own parenting arrangements – Where the Court finds such an order places unreasonable burdens on the children – Consideration of whether it is possible for the children to derive a benefit from an arrangement in which they have a relationship with both parents – Consideration of whether ongoing harm is inevitable if the children spend time with both parents – Where the children are at risk of further exposure to the parents’ partisan conflict – Orders for the children to live with the mother and spend very limited supervised time with the father.
Legislation:	Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 60CC(2), 60CC(3), 61B, 61C(1), 61DA, 65D, 65DAC.
Cases cited:	Albert & Plowman [2020] FamCAFC 23 Donnell v Dovey (2010) FamCAFC 15 Fitzwater v Fitzwater (2019) 60 Fam LR 212 Goode & Goode (2006) FLC 93-286 Garrety & Steyn [2019] FamCAFC 124 Garrety & Steyn [2021] FamCA 67 Godfrey & Sanders [2007] FamCA 102 Isles & Nelissen [2022] FedFamC1A 97 Mazorski & Albright (2007) 37 Fam LR 518 McCall & Clark (2009) FLC 93-405 Steyn & Garrety [2019] FamCA 180 Steyn & Garrety [2019] FamCA 190
Division:	Division 1 First Instance
Number of paragraphs:	370
Date of last submission/s:	9 March 2023
Date of hearing:	4-5 July; 17, 18 19, 21 October; 20-21 December 2022
Place:	Parramatta
Counsel for the Applicant:	Mr Roberts
Solicitor for the Applicant:	Gillard Family Lawyers
Counsel for the Respondent:	Ms Dart
Solicitor for the Respondent:	Bainbridge Legal
Counsel for the Independent Children's Lawyer:	Mr Havenstein
Solicitor for the Independent Children's Lawyer:	Legal Aid Nsw

NCC 802 of 2013
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR GARRETY Applicant
AND:	MS STEYN Respondent
INDEPENDENT CHILDREN'S LAWYER

order made by:	HANNAM J
DATE OF ORDER:	28 July 2023